The gas surcharge is to come even though the main beneficiary, the energy company Uniper, is being nationalised. This means that money from a compulsory levy decreed from above flows into a state-owned company, which is constitutionally controversial. Economics Minister Habeck is checking whether it is still possible.

Now both are coming: For around 30 billion euros, the federal government is acquiring 98.5 percent of the reeling energy supplier Uniper. And: The gas surcharge of 2.4 cents per kilowatt hour, which all gas consumers have to pay, will be introduced on October 1st. In practice, the state finances its own company twice at the expense of the citizens: First, in which it pays the takeover price from the tax coffers, and secondly, in which it asks households and companies that are dependent on gas to pay in addition. Constitutionally, this is highly doubtful. The federal government can already expect a wealth of well-founded lawsuits against the gas surcharge.

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The leading Ministry of Economics is aware of the delicate situation. In fact, the question arises as to whether it is constitutional to levy a gas surcharge that goes to a state-owned company, according to the Green Federal Minister for Economic Affairs, Robert Habeck. “The gas surcharge is a bridge until this question has been finally clarified,” said the minister.

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His hope: It will take three months anyway before the state entry into Uniper has taken place. Until then, the gas surcharge is necessary “to ensure Uniper’s financial position”. The company, like other gas suppliers, must remain able to buy gas on the market. “The constitutional reviews are in full swing.” Nationalization and levy are necessary “to ensure security of supply for Germany”.

Businesses and consumer advocates had already stormed against the first version of the gas levy, as announced by the Ministry of Economic Affairs last month, and had announced lawsuits. The stumbling block was that energy suppliers who were not in an emergency also benefited from the gas levy in its original design. This bug should now be fixed. “As announced, we have found a legally secure way to push the free riders off the footboard,” said Habeck.

Nevertheless, doubts are also growing in the governing coalition as to whether Habeck will be able to find a legally compliant solution for the gas levy. Matthias Miersch, Vice-Chairman of the SPD parliamentary group, speaks of ‚Äúconstitutional concerns‚ÄĚ in an interview. They are not easy to ignore and “will not get smaller if Uniper is nationalized in the end”. He suggests that as an alternative to a “legally highly uncertain and one-sided” gas surcharge, excess profits in the electricity sector could be skimmed off, budget funds used and a “performance-related energy obligation” introduced.

Lawyers are agreed that ultimately the Federal Constitutional Court will deal with the gas levy. Consumers can initially only turn to the ordinary courts, such as the district court or regional court. It is also possible that a court that considers the gas levy to be unconstitutional will submit this question to the Federal Constitutional Court. Another way of independent legal review is for the federal government, a state government or a quarter of the members of the Bundestag to submit the gas surcharge as a norm control procedure to the highest judges, who then make a decision. However, all of these procedures take years.

The crisis surrounding the energy supply in Germany, on the other hand, is getting worse every day. According to information from the Federal Ministry of Economics, Uniper is responsible for 40 percent of the German gas supply and obtained 50 percent of its gas from Russia. Meanwhile, Russia has phased out its existing pipelines, pointing to the gas-filled and operational Nord Stream 2 pipeline as an alternative. However, Germany and its allies refuse to open them because of the Russian war of aggression.

The article “Habeck wants to push through the gas levy, but the doubts are getting louder” comes from WirtschaftsKurier.