Businesses planning to claim the Special Compensation Rule under the German Renewable Energy Sources Act [Gesetz für den Ausbau erneuerbarer Energien - EEG] need to file an application with the Federal Office for Economic Affairs and Export Control [Bundesamt für Wirtschaft und Ausfuhrkontrolle - BAFA] no later than 30 June each year or, if it is a newly formed company, no later than 30 September. These time limits are material preclusion periods, i.e. it is mandatory to observe them, extensions are not possible. If this time limit cannot be observed, the limitation of the surcharge for renewable energy for the next year must be rejected – regardless of the reasons for missing the time limit.
In consideration of the COVID-19 pandemic it will probably be a problem for many companies to observe the time limit. With the strong measures adopted by the Federal Government and the states public life in Germany has been more and more brought to a standstill. Observing the application time limit could become virtually impossible in this situation, as together with the application for limitation the confirmation of a Public Auditor and the evidence of operating an energy management system must be submitted. But how can these requirements be met – even if applying the greatest possible care – if employees and auditors are no longer reliably available?
BAFA: COVID-19 pandemic is force majeure
Fortunately, BAFA is now being lenient. In its public notice of 20 March 2020 the authority clarified that the effects of the COVID-19 pandemic may prevent applicants from observing the material preclusion period (30 June 2020). Where a complete application, in particular the documents relevant for observing the time limit, i.e. the „Wirtschaftsprüfervermerk" (auditor's report) and „Zertifizierungsbescheinigung“ (certification), cannot be submitted properly by 30 June 2020 due to the COVID-19 pandemic, BAFA will regard this as "force majeure" and apply discretion.
Be careful with evidence
However, the affected companies are required to file their applications without delay and to inform BAFA in the application process as to the reasons why the effects of the CoVID-19 pandemic did not allow to file the application within the prescribed time limit.
Contact us. We will be pleased to answer your questions regarding the effects of the COVID-19 crisis on the EEG application.