The German Energy Ministry has published a FAQ on the recent attempt of the EU Commission to dictate German renewable energy policy (in German language). Thanks to this tweet by Heiko Stubner for the link.
On the lack of EU Commission competence the Ministry, speaking for the new German Federal Government, shares my view:
Ändert ein Hauptprüfverfahren die bisherige Rechtsmeinung der Bundesregierung zum EEG?
Nein. Die Bundesregierung steht weiterhin auf dem Standpunkt, dass das EEG-Finanzierungssystem inklusive Ausnahmen für die energieintensiven Industrien mangels “staatlicher Mittel” bereits tatbestandlich keine Beihilfe nach Art. 107 AEUV darstell (Basis: PreussenElektra-Urteil des Europäischen Gerichtshofes, C-379/98 vom 13.3.2001). Die Abwicklung des EEG erfolgt zwischen Privaten (Anlagenbetreibern, Netzbetreibern und Versorgern).
To explain that in English, the German Federal Government has not changed its view about the Law on Priority for Renewable Energy. It is not state aid. That’s because no state resources are involved. The system is completely in the hand of private actors (electricity producers, grid operators, and utilities).
The Energy Ministry also explains what happens next. The Federal Ministry will state their opinion on this matter to the EU Commission in one month. Eventually the full EU Commission decision will be published and third parties will be able to comment as well.
There will be a decision by the EU Commission on this matter some time in 2014, and the German Federal Government will be able to challenge it at the European Court of Justice, if they are so inclined.
As to the substance, the Federal Government has decided in the coalition agreement to get rid of the reduction in feed-in tariffs for utilities that deliver a certain quota of renewable energy (Article 39 of the law). That makes the related complaints by the EU Commission largely a moot point. Which is another reason why the Commission should really have waited with their complaint until the new Government has realized the reform agreed in the coalition agreement.
As for the industry privileges, the Federal Government wants to tackle that point as well, and they will consider EU Commission input, even if their legal point of view is that they have no obligation to do so, since the EU Commission lacks any competence once the feed-in tariffs are not state aid in the first place.
That probably means that the EU Commission illegal power grab has paid off. They will get some political influence on the next reform, which they should not have as a purely legal question.
That is a sad state of affairs. On the other hand, it is of course a good thing that EU and German renewable energy policy is coordinated, and there is good cooperation between the EU Commission and the German Federal Government. As long as it is clear that the EU Commission is in no position to order the German Federal Government around, there is nothing wrong with listening to their opinions.
There may be even some EU Commission opinions that have merit on their own.