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27 March 2026
Publication series – 3 of 80 Insights
Flensburg Regional Court: no entitlement to claim damages based on the market price
- Quick read
The Flensburg Regional Court (Case No. 6 O 49/24) has ruled on the interpretation of a contractual provision regarding the calculation of lump-sum damages for falling short of a guaranteed technical availability of wind turbines. The wind farm operator demanded further compensation from the manufacturer and maintenance contractor, in addition to an amount already calculated according to the EEG feed-in tariff, as part of the settlement of the availability guarantee. This was because the wind farm operator was of the view that the loss of earnings should be calculated on the basis of the higher market price for electricity during the relevant period.
The court dismissed the claim ruling that the decisive factor was not the market price, but the feed-in tariff set under the EEG. The court considered it decisive that the contractual compensation provision of the availability guarantee, as lump-sum damages, was embedded within an overall regulatory framework limiting liability and could therefore not be interpreted as a claim to the full realisation of any potential market profit.
Analysis
The decision is convincing. Within the framework of the availability guarantee, the parties establish a simplified, flat-rate method for calculating damages in the event of loss of revenue if the guaranteed availability is not achieved. Comprehensive compensation for the loss of revenue had not been agreed. Against this background, it seems logical to base the calculation not on the fluctuating electricity market price, but on the EEG remuneration determined by law. A market-price-based approach would have significantly expanded the agreed liability model in economic terms and would have meant complete compensation for lost revenue. The wind farm operator was not unduly disadvantaged by this interpretation, as it probably calculated the economic viability of the purchase and operation of the wind turbines on the basis of the guaranteed EEG feed-in tariff rather than a potentially higher market price.
In essence, the judgement reinforces the importance of a balanced, systematic interpretation of contracts in relation to technical availability guarantees in the energy sector. It also clarifies that developments in the energy industry towards direct marketing and a market premium model cannot be retroactively applied to older contracts. In practice, this means that maintenance and service contracts should explicitly specify the reference value for claims for compensation for loss of earnings to avoid disputes on whether the EEG feed-in tariff, market value or some other reference price should be used.
The general question of the validity of availability guarantees in service and maintenance contracts for wind turbines was considered by the Hamburg Regional Court in 2025, please read the following article here.
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