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The German Renewable Energy Act (EEG) – Unlawful State Aid?

Thomas Lübbig, Marie-Christine Fuchs


A legal Assessment of the State Aid Proceedings by the European Commission against Germany

The European Commission’s decision to initiate formal proceedings against the German EEG has intensified discussions about the compatibility of the EEG system with European State aid law. This article examines the Commission’s analysis of the EEG surcharge, the cap on the EEG surcharge (§§ 40-41 EEG Act 2012) and the reduction of the EEG surcharge for electricity suppliers benefitting fromthe “green power privilege” (“Grünstromprivileg”) (§ 39 EEG Act 2012). Contrary to the Commission’s position, the authors make the case that none of these measures constitute State aid in the sense of Article 107(1) TFEU and that even if they did, all of the measures are justifiable. The article also examines the Draft Guidelines on Environmental and Energy State Aid for 2014-2020 and suggests amendments to the criterion of ‘trade intensity’.

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