The claimant requests for her business unit "Production of plastic packaging - without tool making" (hereinafter referred to as "plastics"), located at the site in L., for the year 2012 a limitation of the Renewable Energy Sources Act (EEG, Erneuerbare-Energien-Gesetz) surcharge (EEG surcharge, EEG-Umlage) in accordance with the special equalisation regulation pursuant to section 41 (5) EEG in the version of 25 October 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I, p. 2074), - EEG 2009 - which was valid from 1 January 2009 to 31 December 2011 in conjunction with the Ordinance for the Further Development of the Federal Equalisation Scheme of 17 July 2009 (BGBl. I, p. 2101), - Equalisation Scheme Ordinance 2009.

The business unit "tool making" which is also located on the business premises in L. and which, by being set up as a separate unit has become a legally independent company effective 21 December 2012, develops and manufactures special tools which are required for the production process of the plastic parts. The power supply for both company units is organised via the common withdrawal point of the claimant’s factory buildings at the site in L.

The application by the claimant of 8 June 2011 for a limitation of the EEG surcharge to the, in the claimant’s opinion, independent business part "plastics" was rejected by the Federal Office of Economics and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle, hereinafter referred to as Federal Office) with decision of 2 December 2011. The Federal Office argued that the share of the electricity costs in relation to the gross value added does not exceed 15 % in this business unit, as prescribed by the applicable provision of section 41 (1) no. 2 EEG 2009. The objection filed against this decision was dismissed by the defendant with a decision on the objection of 10 May 2012 with the legal reasoning that the business unit "plastics" did not constitute an independent business unit within the meaning of section 41 (5) EEG 2009.

The Administrative Court dismissed the action with judgment of 14 March 2013. The Higher Administrative Court dismissed the claimant’s appeal on points of fact and law with judgment of 9 January 2014. The organisational independence of a business unit was, according to the Court, to be evaluated in light of the overall conditions on a case-by-case basis, whereby, apart from the location of the business, the architectural, technical, and infrastructural connection to the remaining business units, the organisational outsourcing of the production process from the entire company, the creation of an own accounting area, the purchase of raw materials and supplies from third parties or from within the company group and the sale of the manufactured products to consumers or customers outside the company needed to be taken into consideration. It was impossible to separate a company "into independent business units pursuant to section 41 (5) EEG 2009" because otherwise "the company" which forms the basis for the right to benefit from the equalisation scheme would cease to exist, the Court argued. In applying these provisions, it had to be concluded that the business unit "plastics" should not be regarded as an independent business unit in the sense of section 41 (1) EEG 2009 but rather as "the company." Notwithstanding the above, according to the Court, the action was also unfounded because the claimant - as a company - had not provided sufficient evidence for the necessary relationship of 15 % electricity costs to the gross value added as prescribed in section 41 (1) EEG 2009 for the financial year 2010/2011. The business unit "tool making" should be included in the relevant period because it could be interpreted as an independent, particularly not as a low-energy business unit. According to the Court, costs accrued in the business unit "tool making" should be included in determining the gross value added. "Splitting off" of "company parts deemed irrelevant in terms of energy use, i.e. production locations without significant power demand" was "explicitly not subject of the regulation of section 41 (5) EEG 2009"; otherwise content and rationale of the regulation would be turned upside-down. Apart from that, the question whether the claimant was not entitled to any limitation of the EEG surcharge because the company had used a common power connection for all business units in the pertinent financial year 2010/2011 and had spread the costs arithmetically, could also be left undecided, as well as the correctness of the concrete calculation of the electricity costs to the gross value added. (…)

10 The admissible appeal on points of law is unfounded. The challenged judgment of the Higher Administrative Court does violate in part Federal Law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). Notwithstanding that, the judgment does ultimately prove correct for other reasons (section 144 (4) VwGO). (…)

13 2. The Higher Administrative Court has violated Federal law in interpreting and applying section 41 (5) EEG 2009.

14 a) Although the Court has rightly found that for the legal assessment of the claimant's demand to limit the EEG surcharge for the business unit "plastics" at the location L., the legal basis is applicable which was valid at the point in time when the limitation period expired (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 31 May 2011 - 8 C 52.09 (…) and of 10 December 2013 - 8 C 25.12 (…) as well as - 8 C 24.12 - (juris para. 14). (…)

15 b) However, the interpretation of the term "independence" of a business unit in the sense of section 41 (5) EEG 2009 by the Higher Administrative Court violates federal law. (…)

17 It is a violation of law subject to review in appeals on points of law that the Higher Administrative Court has denied the claimant's demand without any further examination of the merits of the case, simply because, according to the Higher Administrative Court, it was "intellectually inconceivable" that a company could be entirely split up into independent business units. Whether the business unit concerned, namely "plastics", had to be assessed as "independent" in the sense of section 41 (5) EEG 2009 in the relevant financial year (1 April 2010 to 31 March 2011) only depended on its organisational makeup and structure within the claimant's company.

18 Pursuant to the applicable law, a company with its own legal personality may comprise several independent business units in the sense of section 41 (5) EEG. A company in the meaning of the special equalisation regulation of the section 40 et seqq. EEG 2009 is the smallest legally separate unit (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache 16/8148, p. 66). In the case of the claimant, that is the company in its entirety but not the different business units which do not possess their own legal personality and can therefore not act in their own name in legal affairs. It is not "inconceivable" to assume that a company can consist entirely of legally not independent but - according to its corporate structure - organisationally independent business units in the sense of section 41 (5) EEG. This can be deduced from the legislative context, the rationale of the regulation and its legislative history.

19 The law provides in section 41 (5) EEG 2009 the eligibility for a limitation for a company pursuant to the special equalisation regulation in section 40 et seqq. EEG 2009 for independent business units with high energy consumption without limiting or conclusively regulating the number of business units which may benefit from this regulation. The regulation aims at preventing the spin-off of business units with high energy consumption into legally independent companies solely for the purpose of preventing the intended applicability of the special equalisation scheme. By allowing the application of a company for a limitation for organisationally independent business units the legislator wanted to "create a situation where the chosen organisational form of a company would have no influence nationally and internationally on its competitive position." (see BT-Drs. 16/8148, p. 66). Against the backdrop of this intention, it is not comprehensible why the entire break-up of a company into several organisationally independent but legally dependent units for the use of the special equalisation scheme should not be possible. For the conditions of entitlement pursuant to section 41 (5) EEG 2009 to be present, it is necessary that, apart from the other applicable conditions pursuant to section 41 (1 to 4), the (legally dependent) business unit for which an application according to the special equalisation regulation has been filed, needs additionally to be organisationally independent.

20 bb) The opinion of the Higher Administrative Court that the organisational split-up of the business unit "tool-making" was irrelevant because it was not a business area characterised by high energy consumption and which therefore could by itself not be regarded as "independent" pursuant to section 41 (5) EEG 2009 does also violate federal law (…). According to the Higher Administrative Court, in terms of the company in its entirety, the claimant, however, had for the financial year 2010/2011 not provided sufficient evidence for the necessary share of electricity costs of 15 % of the gross value added pursuant to section 41 (1) no. 2 EEG 2009 (…).

21 These arguments of the court of appeal are also incompatible with federal law. The application by the claimant here to be examined refers neither to the (entire) company pursuant to section 41 (1) EEG 2009, nor to the business unit "tool-making" but exclusively to the business unit "plastics" pursuant to section 41 (5) EEG 2009. For the application to be successful, it is a prerequisite that the business unit was "independent" in the relevant financial year (1 April 2010 to 31 March 2011) and if the further preconditions pursuant to section 41 (5) in conjunction with section 41 (1 to 4) EEG 2009 have been met. The "independence" of a business unit (here: the business unit "plastics") does not depend on the independence of another business unit of the company.

22 cc) In the present case, there is no need for a final examination and presentation of the substantive requirements of the term "independent" business unit pursuant to section 41 (5) EEG 2009 (see BVerwG, judgment of 22 July 2015 - 8 C 8.14 (…)). Because the challenged judgment of the Higher Administrative Court already violates for the stated reasons the provision of section 41 (5) EEG 2009 and is founded on this violation.

23 3. Regardless of the determined violations of federal law, the challenged judgment of the Higher Administrative Court does prove right in the end for other reasons (section 144 (4) VwGO). The asserted claim for a limitation of the EEG surcharge is not valid because pursuant to section 41 (2) and section 43 (1) first sentence EEG 2009, it has not been proven until the expiration of the limitation period on 30 June 2011 that the business unit "plastics" has by itself used up electricity of more than ten gigawatt hours (section 41 (1) no. 1, EEG 2009). The facts essential for this supposition which can be discerned from the files of the authority may be taken as a basis by the final appellate court, regardless of section 137 (2) VwGO, because they are undisputed by the parties concerned and need not be proved, their use serves a final settlement of a dispute and interests of the parties worthy of protection remain unaffected (see BVerwG, judgments of 20 October 1992 - 9 C 77.91 - Rulings of the Federal Adminstrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 91, 104 <106f.>, of 23 February 1993 - 1 C 16.87 (…) and of 15 November 2011 - 1 C 21.10 - BVerwGE 141, 151 para. 19 (…)).

24 Pursuant to section 41 (1) EEG 2009 the requirements for a limitation of the EEG surcharge for the year following the application have to be proven by presenting the company's data of the year before. The legislator thus signifies that the limitation decision shall be based not primarily on the prognoses and estimates of the applicant but on company-specific facts verifiable without any further official investigations as they can for instance be gathered from the company's power supply contract or electricity bills pursuant to section 41 (2) EEG 2009 (see BVerwG, judgment of 31 May 2011 - 8 C 52.09 (…)). The purpose is to ensure that in the interest of all power consumers only those companies profit from the special equalisation regulation which actually meet the legal preconditions (BVerwG, judgment of 31 May 2011 - 8 C 52.09 (…)). This need of protection also exists in the case of applications for limiting the EEG surcharge for business units. The necessity to prove the requirements pursuant to section 41 (5) EEG 2009 thus demands that the authorities can rely on assured facts to preclude, if possible, unjustified limitation decisions.

25 The requisite evidence shall be present in its entirety at the authority before the limitation period expires on 30 June of the current year. (section 43 (1) first sentence EEG 2009). Otherwise a possible claim for a limitation of the EEG surcharge expires (see BVerwG, judgment from 10 December 2013 - 8 C 24.12 (…) juris para. 17). Subsequent amendments of the application are therefore not possible. The purpose of the material preclusion of belated evidence is to ensure that all applications can be processed on a uniform basis of data and that the decisions can be made at the same point in time. This is to ensure identical competitive conditions for all companies with high energy consumption (see BVerwG, judgment from 31 May 2011 - 8 C 52.09 (…)). As the administrative assessment of the preconditions for a limitation of the EEG surcharge may be conducted already starting on 30 June of the current year on a final and reliable basis of facts which renders own official investigations unnecessary, it is simultaneously assured that all applications may be decided upon before the beginning of the limitation period on 1 January of the following year. The need to create identical competitive conditions for all companies with high energy consumption and for timely decisions shall also apply for requests for a limitation of the EEG surcharge for individual business units. Hence the entire evidence of the fulfilment of the requirements pursuant to section 43 (1) first sentence EEG 2009 has to be presented before the limitation period expires.

26 Based on this reasoning, by not having provided the evidence of the minimum amount of electricity used by the business part "plastics" pursuant to section 41 (1) no. 1 EEG 2009 within the prescribed time limit, the claimant has no right to a limitation of the EEG surcharge. In the decisive time period, there were no separate current withdrawal points for the business units "plastics" and "tool-making" but only one withdrawal point for the entire company. The in-house distribution of the amount of electricity was also not measured with an electricity meter. Rather, according to the certification by the auditing company, the amount of electricity supplied to the business unit "tool-making" was estimated by extrapolation; the difference between the estimate and the total amount of electricity was the amount of electricity used by the business unit "plastics" (…). The certification does not contain any information on the facts of reference of the extrapolation and on its methodology. Relevant information was also not handed in until the limitation period had expired. All these facts remain undisputed by the parties concerned.

27 Thus, the authorities did not dispose of a reliable basis of facts in regard to the amount of power used by the business unit "plastics" until the preclusive time period had expired. Although one cannot, in applying section 41 (2) EEG 2009 for application of limitation requests, demand the proof by way of electricity supply contracts and electricity bills. Business units which are only organisationally independent in the sense of section 41 (5) EEG 2009 may not become parties to power supply contracts and addressees of electricity bills of third parties. The authorities therefore need to be provided with a basis of assured facts regarding the electricity used by the business unit itself. This is possible if, for instance, the business unit has its own withdrawal point, or the distribution of the electric power to the business units is measured by electricity meters (see now section 64 (6) no. 1 last half sentence EEG 2014 with the transitional regulation pursuant to section 103 (1) no. 3 EEG 2014). The conditions under which other forms of evidence could be appropriate and sufficient need here not be decided upon. As explained, the evidence must be provided in such a way that the authorities may safely assess the information provided on the amount of electricity used without any official investigation. Only providing the information of the amount of electricity determined by extrapolation as here in this case, without any information on the chosen methodology, which does not even allow the authorities a check of its plausibility, does not suffice. Contrary to the opinion of the claimant, corrections of the information provided after the limitation period has expired are not possible for the reasons stated.

28 Insofar as the claimant pleads that other claimants were granted the requested limitation of the EEG surcharge even if they were not able to present any evidence of the electricity use limited to the independent business unit, the legal consequences are in the end the same. A violation of section 3 (1) of the Basic Law (GG, Grundgesetz) is not discernible insofar as preferable limitation decisions, which may have been made despite the absence of sufficient evidence, would be unlawful. Referring to "non-discrimination in injustice" may not found a legal entitlement.

29 It could not be held against these considerations that the claimant having presented the case did not count on the relevance of the issue of providing evidence. In the oral proceedings before the deciding Senate, the claimant and the claimant's counsels were, with regard to the claimant's right of being heard, given the opportunity to state their opinion regarding the requirement of providing evidence according to section 41 (5) in conjunction with (1) and (2) EEG 2009. The claimant exercised this option through the counsel. This also applies to the question of whether the documents and evidence presented by the claimant were sufficient. In light of these facts, the Senate has not seen any reason for an adjournment ex officio. A motion for adjournment or for a time limit to file a supplementary written submission has not been filed by the legal representatives in the course of the oral proceedings.(…)