At least six utility cases against the REFIT are lodged at the federal court, but these are unlikely to be heard until well into 2000, since the judge handling them retires this year and will not have time to deal with them, Warnecke says. Meanwhile, the European Commission is also attacking the REFIT for contravening European competition law (Windpower Monthly, September 1999). To add to the general uncertainty, Warnecke predicts that the REFIT law may be revised by as early as spring 2000, making the federal court cases irrelevant. He notes that a meeting on the subject is to take place at the German economy ministry on October 28.
The case against Schleswag, a subsidiary of German utility giant Preussenelektra, was lodged by biogas plant operator BEA Dithmarschen. The ruling in favour of the plaintiff is especially pertinent for several potential wind station operators who have been refused grid access by Schleswag. They have lodged appeals against the power company at the local courts of Itzehoe, Flensburg and Kiel.
The Schleswig court ruled that when laws-such as the REFIT-have been passed under proper procedures, courts must abide by them except when the judge of that court is convinced that the law is unconstitutional. The local court cannot simply wait for guidance from a federal constitutional court ruling on a separate case. This judgement overturns a previous ruling at the same court in June and a decision of the federal administrative court in March 1998. Warnecke believes that courts in Kiel and Flensburg will now lift their suspension of court proceedings relating to potential wind station operators.
The Bundesverband Windenergie, the German wind association, greets the ruling with pleasure. Many projects that have been put on ice for a long time can now be realised, it says. The Schleswig judgement is only valid in Schleswig-Holstein, however. Courts in other Länder may come to a different conclusion.