In its guidance decision of 12 February 2026, the EEG/KWKG Clearing House clarified that, when determining the applicable value (Section 3(3) of the EEG 2023) for existing biogas plants under Section 39g(6) of the EEG 2023, the calculation must not be based solely on the payments actually made by the grid operators. This is likely to provide at least some relief to the operators of existing biogas plants. Recently, it has been observed in practice that, when determining the applicable value under Section 39g( 6 of the EEG 2023, did not take the market value into account, but based their calculations solely on the average market premium paid over the last three years prior to claiming the connection remuneration. The Oldenburg Regional Court upheld this approach by the grid operators in its judgement of 21 November 2025 (Case No.: 6 O 3033/24). In its interpretation, the court strictly adhered to the wording of Section 39g(6), second sentence, of the EEG 2023, which refers to ‘payments made under the Renewable Energy Sources Act’.
‘To determine the average, the quotient of all payments made for the plant in each of the three years, which were made under the Renewable Energy Sources Act or a statutory instrument issued pursuant to that Act, shall be calculated […]’
However, such a narrow interpretation of the provision is likely to call into question the economic viability of the vast majority of existing biogas plants. This, however, runs counter to the very spirit and purpose of EEG support. The aim of the support scheme is to ensure a future for biogas plants – including existing ones – as part of the expansion and stabilisation of energy diversity in the electricity market. Biogas plants also make an important contribution to this. At the same time, the aim is to prevent biogas plants from receiving higher subsidies in the second funding period than in the first. In line with the legislative intent, the Clearing House clarified in its decision that, when determining the applicable value within the meaning of the aforementioned standard, the market value must also be taken into account, as this payment is, in fact, a payment made under the EEG. The wording of the provision does not preclude this preferred interpretation. The wording specifically refers not only to payments made by the grid operator, but to all payments made under the EEG. The Clearing House provides a differentiated answer as to whether, in addition to the market value, other payments under the EEG are also to be taken into account. Whilst, in the Clearing House’s view, the flexibility premium or flexibility surcharge under Sections 50a, 50b of the EEG 2023 and compensation payments under Sections 13, 13a of the EnWG and Sections 14 et seq. EEG 2017/2021 should not be taken into account, payment increases under Section 8(2), (3) and (4) of the EEG 2004, under Section 27(4) and (5), Section 66(1)(4a) of the EEG 2009 and Section 27(2) of the EEG 2012. It remains to be seen how the Clearing House’s reference to case law will play out. We will continue to monitor this issue on your behalf.