Note on Section 104 (4) EEG 2017 - amnesty regulation

In principle, the German Renewable Energy Sources Act  EEG 2017, as well as the previous versions of the EEG, stipulated that operators of electricity generation plants that supply electricity to other end consumers are obliged to pay the full EEG levy to the transmission system operator responsible for regulation for the amount of electricity supplied.  

In deviation from this, there was no obligation to pay the EEG levy for so-called self-generation from (older) existing installations (see Sections 61c and 61d EEG 2017). In particular, this self-generation also requires that the operator of the electricity generation plant and the end consumer are the same person and that this constellation already existed before 01.08.2014 or 01.09.2011.  

In the past, in order to achieve the status of self-generation, end consumers were granted pro rata contractual rights of use to certain generation capacities of electricity generation plants. The actual operator of the electricity generation plant therefore assumed that they would not have to pay any EEG levy, which sometimes resulted in considerable liabilities at their expense and in favor of the EEG burden equalization.  

Section 104 para. 4 EEG 2017, which came into force on January 1, 2017, contained a transitional provision for cases of so-called slice lease models or similar multi-person constellations. Accordingly, a right to refuse performance with regard to the payment of the EEG levy could be exercised vis-à-vis the transmission system operator, provided that the transmission system operator had received all the information specified in Section 104 para. 4 in conjunction with Section 74 and Section 74a EEG by December 31, 2017. § Section 74 and Section 74a of the EEG 2017.

Section 104 para. 4 EEG 2017 took account of the misunderstood ownership regulation and issued an amnesty regulation, which was, however, also subject to approval by the EU Commission in accordance with Section 104 para. 7 EEG 2017. This was tied to a corresponding notification to the responsible transmission system operator by December 31, 2017 as a material exclusion period, within which affected companies and persons had to invoke the right to refuse performance vis-à-vis the respective transmission system operator responsible for the regulation and immediately provide the basic information in accordance with Sections 74 (1) and 74a (1) EEG 2017. If the reporting obligation was not fulfilled within the material exclusion period, the EEG levy obligation continued to apply in full, even retroactively.  

For further information, please refer to the notice published by the Federal Network Agency.

The transmission system operators provided a reporting template in Excel format for the timely application of the amnesty regulation in accordance with Section 104 (4) EEG 2017, which was to be viewed as an aid to reporting and was to be completed independently if necessary.