Competitive bidding procedures in the 2017 Renewable Energy Sources Act

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1 CLIENT UPDATE Competitive bidding procedures in the 2017 Renewable Energy Sources Act August 2016 On 8 July 2016, the lower and upper chambers of the German parliament passed a fundamental reform of the Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz EEG). The principal amendment to the Act consists in the financial support system s conversion to competitive bidding procedures. From 2017, these will be used to work out financial support for new solar installations, wind farms and biomass facilities. Once the Act has been published in the Federal Law Gazette, some of its provisions will still need to be notified to the EU Commission. The Act will take effect on 1 January 2017 and is therefore referred to as EEG Starting position and goal The 2017 amendment to the EEG builds on EEG Legislators wish to structure power generation from renewable energies in a more cost-effective way. In doing so, they are adhering to the goal of expansion: 40 to 45% of gross electricity consumption is to be covered by renewable sources by The bidding procedures for ground mounted photovoltaic installations introduced by the EEG 2014 (see our client update of February 2015) were a success in the view of the Federal Ministry for Economic Affairs, responsible for the matter. Primarily for reasons of subsidy law the Commission had expressed concerns about the previous system s compliance with EU law (details below), as widely reported the EEG financial support system is now to also be converted to bidding procedures for the key renewable energy sources (onshore and offshore wind energy, solar, biomass). The competent body is the Bundesnetzagentur (Federal Network Agency, or BNetzA). Until now, the operators of installations that qualify for financial support have been subject to statutorily defined values per kilowatt hour of EEG electricity (termed the value to be applied ). For direct marketing of electricity, these values are used to work out the market premium; for electricity feed-in in return for feed-in tariff, they are used to calculate remuneration. Although EEG 2014, currently in force, made direct marketing mandatory in principle in order to bring renewable energies onto the market, the installation operator also receives a market premium in addition to the price obtained on the market. Ultimately, therefore the operator is not subject to competition. CONTENT 1. Starting position and goal Key changes Main features of the competitive bidding. procedure Solar installations Onshore wind energy Offshore wind energy Biomass facilities Joint bidding procedures and innovation bidding procedures Conclusion...4

2 To bring renewable energies still further onto the market, the level of the value to be applied, and thus the market premium, will in future be worked out through competitive bidding procedures. In order to improve the planning of expansion, the maximum annual additional capacity will also be statutorily defined at the same time. 2.2 Solar installations For solar installations, legislators have been able to tie into the procedure which is regulated in the Ordinance on Competitive Bidding for Ground-Mounted PV Installations (Freiflächenausschreibungsverordnung). The reform rescinds this Ordinance and integrates its key elements into EEG Key changes In addition to structuring the basic design of the competitive bidding procedure, the EEG 2017 sets specific requirements on solar installations, onshore and offshore wind turbines, and biomass facilities. All other energy sources i. e. hydropower, geothermal, landfill gas, sewage treatment gas, mine gas installations will continue to be subject to the current financial support system, however. 2.1 Main features of the competitive bidding procedure The competitive bidding procedures will determine which projects receive financial support and in what amount. Each round of bidding will concern a specific total amount of power. The lowest bids will receive an award until the bidding volume has been reached. The bids are not permitted to exceed the statutory maximum price. Generally, the value offered by the operator awarded the bid is what is termed the award value (pay as bid). The individual award value is used to calculate the market premium. The project that is awarded the bid must be realized within a certain period. Otherwise, penalty payments will become due, for which securities will have to be deposited in the course of the competitive bidding procedure. The target value for annual gross additional capacity in solar installations which are to receive financial support is set at the lower threshold of the current flexible cap, i. e. 2,500 megawatts (section 4 no. 3, section 49 EEG 2017). However, the annual competitive bidding volume equally distributed across the bidding dates of 1 February, 1 June and 1 October is only 600 megawatts (section 28(2) EEG 2017). This is reduced by several factors, including the capacity of the ground mounted PV installations realized outside of competitive bidding procedures. It is increased by volumes that were not awarded in the previous year (section 28(2a) EEG 2017). The great discrepancy between competitive bidding volumes and the goal of expansion derives from the fact that the competitive bidding obligation only applies to large solar installations with installed power of over 750 kilowatts (section 22(3) sentence 2 EEG 2017). Smaller installations i. e. the major part of solar power expansion which is financially supported by the EEG continue to be released from the competitive bidding requirement, as such bidding would be too costly given the large number of such installations. In contrast to what was regulated under the Ordinance on Competitive Bidding for Ground-Mounted PV Installations, large installations which are to be erected atop or on buildings or other physical structures are subject to a competitive bidding obligation (cf. section 37(1) nos. 1, 2 EEG 2017). Moreover, it is up to the federal states whether they choose to go beyond the federal statutory regulation and allow the awarding of contracts for large installations on farmland and grassland (section 37c(2) EEG 2017). 2.3 Onshore wind energy Competitor complaints directly against an award are excluded (section 83a EEG 2017). Any request for legal protection (taking the form of a complaint pursuant to sections 75 et seq. Energy Industry Act) by a party can only be directed at obtaining the award for the party itself. This means that legal remedies are only well founded if the complainant would have won the award procedure without the legal violation. With the EEG 2017, a bidding procedure will be introduced for onshore wind turbines for the first time. The bidding volume is 2,800 megawatts for the years 2017 to 2019 and 2,900 megawatts from 2020 on (section 28(1) EEG 2017). However, these values are also flexible in that any projects that may be realised in cross-border bidding procedures will reduce the future bidding volume, while volumes from the previous year which were not awarded will increase it page 2

3 (section 28(1)a EEG 2017). However, only wind turbines with installed power of over 750 kilowatts are subject to a competitive bidding obligation. Smaller installations are still not subject to bidding procedures (section 22(2) sent. 2 no. 1 EEG 2017). In order to be able to participate in a bidding procedure, an authorisation pursuant to the Federal Emissions Protection Act (Bundes-Immissionsschutzgesetz - BImSchG) must be granted for the installation (section 36(1) no. 1 EEG 2017). The developers must therefore make substantial investments in advance before it is established whether and in what amount the installation involved will receive EEG support. This investment risk can typically only be borne by larger project developers. In order to maintain a diversity of players in the market, section 36g EEG 2017 therefore provides that subject to certain prerequisites, so-called citizen energy companies (Bürgerenergiegesellschaften) can tender bids even before they have received an authorisation under emissions protection law. Moreover, in derogation of the payas-bid procedure that is applicable in the general design of the tender, if citizen energy companies are awarded, they will always receive the bid value of the highest bid from competitors that was awarded (section 36g(5) EEG 2017). Thus, the uniform pricing procedure is applied for them. Finally, such companies have four years after the granting of the award in which to complete their installations, while all other tenderers are subject to a much shorter time period of two years. If they fail to meet these deadlines, tenderers must, as is the case with all other energy sources, pay penalties to the relevant transmission system operator (section 55 EEG 2017). In order to better coordinate the additional wind turbine capacity with the delayed grid expansion, the granting of the awards is to be further limited in the grid expansion area, which will most likely encompass parts of northern Germany (section 36c EEG 2017). 2.4 Offshore wind energy The installed power of offshore wind turbines is to be increased to 6,500 megawatts by 2020 and to 15,000 megawatts by 2030 (section 4 no. 2 EEG 2017). The design of the tender for offshore wind power is regulated in the new Act on the Development and Promotion of Offshore Wind Energy Offshore Wind Energy Act (Gesetz zur Entwicklung und Förderung der Windenergie auf See Windenergie-auf-See-Gesetz WindSeeG). The EEG 2017 applies additionally (cf. for example sections 15, 72 Offshore Wind Energy Act). The Offshore Wind Energy Act centrally regulates the issues of spatial planning, plant approvals, EEG support und grid connection in order to interlink them better than had been the case before. By the end of June 2019, the Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie - BSH) will determine potentially suitable areas in the exclusive economic zone and the coastal see for future wind farms in a development plan. These areas will no longer be investigated in advance by the developers, but rather centrally by the Bundesnetzagentur (sections 9 et seqq. Offshore Wind Energy Act), which can delegate this responsibility for areas in the exclusive economic zone to the BSH, and for areas in the coastal see to the relevant competent federal state authority. Parts of these areas will then be tendered on 1 September of each year for the first time in 2021 by the Bundesnetzagentur for the realisation of EEG-supported wind turbines. This central approach follows the Danish model. The bidding volume can fluctuate between 700 and 900 megawatts and should not exceed 840 megawatts per yar on the average (sections 17, 5(5) Offshore Wind Energy Act). Due to the great planning expense, and thus the very long realisation periods involved for offshore wind turbines, this model will only apply to installations which will be commissioned as of 1 January 2026 (section 16 Offshore Wind Energy Act ). All installations which have received an unconditional grid connection commitment or a grid connection capacity by the end of 2016 and are commissioned by the end of 2020, will not be subject to a bidding procedure (section 22(5) sent. 2 no. 1 EEG 2017, section 2(1) Offshore Wind Energy Act). For the realisation period 2021 to 2025, two special bidding procedures will be carried out for 1 March 2017 and 1 March 2018, each with a volume of 1,550 megawatts, in which only installations for which the plans are well advanced can participate (sections 26 et seqq. Offshore Wind Energy Act). The bidding procedures are supposed to generate an additional capacity of 500 megawatts in 2021 and in 2022, as well as 700 megawatts each year from 2023 to 2025; for grid connection reasons, the additional capacity for 2021 will be limited to the Baltic Sea (section 27(3), (4), section 34(2) Offshore Wind Energy Act). With this transitional provision, the investments already made by the developers are to be at least partially taken into account. In these bidding procedures, developers who do not participate will merely receive a right of entry with regard to those awards which are page 3

4 granted in a later (regular) bidding procedure for their former areas (sections 39 et seqq. Offshore Wind Energy Act). However, it is not certain whether these areas will become the subject of a later bidding procedure. Constitutional objections have therefore been raised against this transitional provision because they are particularly problematic with regard to protecting legitimate expectations. 2.5 Biomass facilities Under the original draft bill, bidding procedures for biomass facilities were to be made subject to the adoption of a corresponding ordinance, but this concept was abandoned in the course of the legislative procedure. The design of the tender for biomass is now regulated directly in the EEG Generally speaking, bidding procedures are to only be held for biomass facilities with an installed power of more than 150 kilowatts (section 22(4) EEG 2017). In derogation of this rule, existing biomass facilities which seek to obtain followup funding will always be obliged to participate in bidding procedures regardless of their capacity (section 22(4) sent. 2 no. 1 2nd half-sent., section 39f(1) sent. 2 EEG 2017). In the event of an award, the uniform pricing procedure will apply for them as an exception (section 39f(1) sent. 3 EEG 2017). The bidding volume will be 150 megawatts from 2017 to 2019 and 200 megawatts from 2020 to 2022 (section 4 no. 4, section 28(3) sent. 1 EEG 2017), minus the capacity of the installations realised in the previous year outside of bidding procedures, while on the other hand volumes that are not awarded in the respective following year will be added (section 28(3a) EEG 2017). Accordingly, it will not be possible for biomass facilities to exceed the expansion target by way of bidding procedures. Due to ongoing disagreements, in particular between the federal state of Bavaria and the federal government, the expansion target and the bidding volume for the period from 2023 on have not yet been set. As is the case with onshore wind turbines, biomass facilities must already be in possession of building permits, or authorisations under the Federal Emissions Protection Act, when tendering their bids (section 39(1) no. 2 EEG 2017). section 39i EEG 2017). However, these do not involve additional capacities; on the contrary, where joint projects are awarded, the volumes for individual bidding procedures for solar installations and onshore wind turbines will decrease accordingly (section 28(1a) sent. 1 no. 2, (2a) sent. 1 no. 2 EEG 2017). The joint bidding procedures are meant to serve testing purposes. The federal government is legally obliged to present a proposal on the basis of the accumulated learnings on whether, and to what extent, such procedures should be continued or expanded from 2021 on. The same applies analogously for the innovation bidding procedures which are to be carried out in the same period of time (section 39j EEG 2017). All renewable energy providers, or any combination thereof, would be able to participate in them. However, the bidding volumes are only 50 megawatts per year (section 28(6) EEG 2017). 3. Conclusion With the EEG 2017, the support regime for solar power, wind energy and biomass facilities will be converted to bidding procedures, meaning that the question of whether financial support will be granted and how much will be ascertained in the competition. Solar and wind installations with less than 750 kilowatts of power and new biomass facilities with less than 150 kilowatts of power are exempted from this requirement. Tenderers must carefully weigh whether and if so to what extent and with what bid they would like to participate in the future bidding procedures. Special care must be taken with regard to compliance with the legal requirements for structuring the bids, which are very complex in parts. Particularly in the beginning, due to a lack of experience, it will most likely be very difficult to calculate the bids. It would be advisable to tender bids that at least cover the costs, since in addition to a loss which is deliberately risked, high penalties could be imposed if, as a result of an inadequate calculation and associated refinancing difficulties, the realisation of the project should be delayed or fail completely. 2.6 Joint bidding procedures and innovation bidding procedures In addition to these technology-specific bidding procedures, joint bidding procedures for onshore wind turbines and solar installations are planned for the years 2018 to 2020 with a volume of 400 megawatts per year (section 28(5), page 4

5 Your Contacts Andreas Neun Partner, Berlin T E andreas.neun@gleisslutz.com Yvonne Kerth Rechtsanwalt, Stuttgart T E yvonne.kerth@gleisslutz.com André Lippert Rechtsanwalt, Berlin T E andre.lippert@gleisslutz.com This document is intended for information purposes only and does not represent legal advice. Gleiss Lutz shall not accept any liability for the accuracy or completeness of the text. If you no longer wish to receive information from us in future, please notify us by to clientupdate@gleisslutz.com. Gleiss Lutz Hootz Hirsch PartmbB Rechtsanwälte, Steuerberater (registered office: Stuttgart, Stuttgart Local Court PR 136). A list of our partners is available in our offices or under the heading Legal Notice at page 5

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