| Press Release: Administrative Court Frankfurt am Main strengthens promotion of CHP plants |
| Monday, 12 April 2010 10:00 | ||
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By decision dated March 31, 2010, the Administrative Court Frankfurt am Main annulled the decision of the Federal Office of Economics and Export Control (BAFA) to not permit a newly constructed CHP plant and obliged BAFA to grant the permit to the CHP plant. This means: the replacement of a cogeneration unit is thus regarded as a new CHP plant, even if the replaced plant was put into permanent operation only after April 1, 2002. With its ruling dated March 31, 2010 being the first one across the Federal Republic of Germany based on the German Combined Heat and Power Act [Kraft-Wärme-Kopplungsgesetz – KWKG] amended as of January 1, 2009, the Administrative Court (VG) Frankfurt am Main strengthens the promotion of CHP plants (File no.: 1 K 3375/09.F). Subject of the proceedings was the replacement of a mini-cogeneration plant serving to supply a hotel with power and heat. The original plant was put into permanent operation in 2004. After more than 40,000 operating hours, the owner of the hotel decided to replace the existing CHP plant by a new one, since a general overhaul of the old plant would be due anyway. The new plant was put into permanent operation at the same location at the beginning of 2009. The Federal Office of Economics and Export Control (BAFA) refused to permit the CHP plant – newly constructed at the same location – as new small CHP plant in accordance with Section 5 para. 2 no. 1 KWKG, because the original CHP plant was put into permanent operation after April 1, 2002. BAFA found that only the replacement of old and new existing installations (put into permanent operation by April 1, 2002) could be promoted. The court agreed with claimant’s opinion that the amendment of the KWKG as of January 1, 2009 did not aim at restricting the promotion of installations. If an existing installation is replaced, the new one will continue to be promoted as new CHP plant for the whole duration of the promotion period, regardless of the previous use of the location. The court's decision has become legally binding in the meantime. BBH represented the claimant in these proceedings. Ulf Jacobshagen, lawyer and Partner Counsel with the law firm, is really pleased with the decision: „Many municipal utilities and other operators of CHP plants will benefit from this decision. A dismissal of action might have slowed down considerably the extension of CHP plants in locations, at which a CHP plant was put into permanent operation after April 1, 2002” Becker Büttner Held is a leading provider of consulting services for energy and infrastructure companies and their customers with a special focus on public services. BBH advises about 350 municipal utilities (Stadtwerke), energy companies of any kind, industrial enterprises, investment firms etc. With important publications as well as numerous landmark decisions and a path-breaking approach, BBH has managed to make its contribution to the development of the energy industry. Should you have any further questions, please do not hesitate to contact Ulf Jacobshagen and Dr. Markus Kachel. Sincerely yours, Becker Büttner Held, Rechtsanwälte Wirtschaftsprüfer Steuerberater
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