When does a cogeneration plant feed power to the net, according to the german KWK-G 2015?

Question

§7 (1) of the current german KWK-G (Law concerning co-generation plants) makes a huge difference for power fed into the grid, or not. Say an installation consumes 150-200 kW contiually, and operates a 100kW el CHP - so there's never any net backfeed into the net. This describes a typical sewage gas CHP at a wastewater plant. Is this cogeneration plant feeding into the net according to §7 (1)?

The relevant wording is "Der Zuschlag für KWK-Strom, der in ein Netz der allgemeinen Versorgung eingespeist wird, beträgt: ..."

Answer 1

(1) Der Zuschlag für KWK-Strom, der in ein Netz der allgemeinen Versorgung eingespeist wird und auf den die §§ 61e bis 61g und 104 Absatz 4 des Erneuerbare-Energien-Gesetzes in der am 31. Dezember 2022 geltenden Fassung nicht anzuwenden sind, beträgt...

The german is - unlike Ohwilleke complains with the english translation - quite clear:

Electric energy to qualify under this paragraph needs to:

• [be produced] by implication
• get put into a network for public consumption [in ein Netz der allgemeinen Versorgung eingespeist]
• needs to not be regulated under §§ 61e to 61g or 104 (4) EEG (law partaining renewable energy)
  • §61 was repealed and removed in the 2023 version, a §104 does no longer exist either.
  • Old versions of §61 EEG and §104 EEG are archived. The various §61a to g regulated which type of producer got which percentage and §104 regulated who gets money for produced energy.

Among those regulations, which make the meaning of §7(1) KWKG very clear is §61e EEG (2022)

(1) Der Anspruch nach § 61 Absatz 1 verringert sich auf null Prozent der EEG-Umlage für Strom aus Bestandsanlagen,

1. wenn der Letztverbraucher die Stromerzeugungsanlage als Eigenerzeuger betreibt,

(1) The entitlement pursuant to Section 61 subsection 1 is reduced to zero percent of the EEG surcharge for electricity from existing systems,

1. if the end consumer operates the power generation system as a self-producer,

Under the old law, you need to actually produce more than your own requirement to be entitled to a payout, as producing less was meaning you are only an Eigenerzeuger.

Even under the new requirement, Einspeisung is a standing term in Germany: It is only Einspeisung if the electrical energy is actually put into the public energy network ("Zufuhr von Strom in das öffentliche Versorgungsnetz").

Answer 2

I doubt that it is possible to answer this question accurately based upon the text alone (having read the statute in translation), and I doubt that there are even many lawyers or accountants in Germany who would know the answer if they don't work in this industry. The statutory language is ambiguous in these circumstances, and each of the possible readings could be reasonable in the fact pattern that you identify.

In practice, it would come down to what interpretation makes sense in light of the larger context of how the relevant utility operates its electrical grid.

If the grid were operated by the utility with meters that only disclose net power generation, then it is quite likely that this would not be treated as contributing to the grid.

But, if the grid were operated by the utility with meters that measured draws from the grid and contributions to the grid separately, it might be appropriate to treat the times when it did make contributions to the grid as contributions for purposes of Section 7.

A utility administrator or engineer would probably be more likely to know the answer even though, technically, it is a legal question.

I strongly suspect that German courts would be likely to defer to the utility company's interpretation of Section 7 so long as it had a clear, consistent and rational interpretation of what that term means.

On the other hand, if the utility treated one co-generation plant one way, and another one down the road differently, in the face of substantially similar facts, the court would probably decide which interpretation made the most sense under the circumstances itself, and would impose that interpretation on the utility.