Court ruling on the effectiveness of availability guarantees for wind turbines

Briefing

Provisions on technical availability guarantees in service and maintenance contracts for wind turbines have become indispensable and are frequently the subject of contractual disputes. However, there have only been a few court rulings on the admissibility of such clauses to date, particularly on their effectiveness under the provisions of the law on general terms and conditions.

The Hamburg Regional Court (Case No. 415 HKO 28/24) recently had to deal with this issue. The court found that the limitation of liability contained in the availability guarantee is valid under the law governing general terms and conditions and is not subject to any serious doubts as to its validity.

The facts

The facts underlying the Hamburg Regional Court’s decision are quite typical for the wind energy sector. The plaintiff, an operator of a wind farm, had concluded a contract with the defendant for the maintenance and repair of its wind turbines. Due to a technical defect in the control system, the turbines had to be taken out of operation at regular intervals. During these downtimes, the plaintiff suffered loss of earnings, which it then demanded in full from the defendant as the contractual partner under the maintenance and service contract. The defendant argued that it was only liable for loss of earnings within the scope of the compensation payments provided for in the maintenance and service contract in the event of failure to achieve the guaranteed technical availability. The plaintiff, on the other hand, argued that the limitation of liability amounted to an invalid general term and condition (GTC).

The nature of the availability guarantee

A central component of maintenance and service contracts for wind turbines is the guarantee of technical availability, or availability guarantee for short. This ensures that a specific wind turbine or an entire wind farm can be operated reliably and without significant restrictions over a specified period, usually expressed in months or years. It therefore concerns the stationary availability of the respective wind turbine or wind farm. A percentage availability rate is usually agreed, which is generally between 93% and 97%. If the agreed availability rate is not achieved, the contractor usually guarantees the operator lump-sum compensation in the maintenance and service contracts. The amount of this claim is based on the expected yield specified in the contract.

The decision of the Hamburg Regional Court

The Hamburg Regional Court leaves open whether the provisions concerning the limitation of the defendant’s liability for loss of earnings to a compensation payment under the provision on guaranteed technical availability constitute general terms and conditions of the defendant which were imposed by the defendant at the time of conclusion of the contract within the meaning of Section 305(1) sentence 1 of the German Civil Code (BGB). It finds that even assuming that these are general terms and conditions, the underlying provisions limiting the defendant’s liability in the event of loss of earnings do not give rise to any serious legal concerns. In doing so, it proceeds in accordance with the case law of the Federal Court of Justice, whereby total liability limitations are generally invalid if they undermine the essential legal positions of the contractual partner of the user of the clause, in particular because they deprive the contractual partner of rights which the contract is intended to grant him according to its content and purpose, or restrict such rights in an impermissible manner. In the opinion of the Hamburg Regional Court, such an inadmissible disclaimer does not exist in the provisions on the availability guarantee.

According to the Regional Court, the required overall assessment, considering the interests of both contracting parties within the framework of Section 307(2) No. 2 of the German Civil Code (BGB), must include the fact that the limitation of liability for loss of earnings is inextricably linked to the provision on guaranteed technical availability. This gives the defendant’s contracting party – in this case the plaintiff – a claim for compensation if the agreed availability is not achieved, even if there is no culpable breach of duty on the part of the defendant or if such a breach cannot be proven. This is a considerable advantage for the operator of the plant compared to the statutory claim for damages, since, according to the statutory provision, in the event of a dispute, the operator must prove a breach of duty, the causality of the breach of duty for the damage and the amount of the damage. Such evidence can be difficult and costly and time-consuming. The plaintiff is relieved of this risk.

The availability guarantee in conjunction with the provision of a lump-sum compensation claim for loss of earnings therefore enables a simple and mutually calculable settlement of a claim for loss of earnings, which is in the interests of both parties.

The Regional Court therefore does not see any risk to the achievement of the purpose of the contract in the provision on limitation of liability.

Statement

With its decision, the Hamburg Regional Court has found an appropriate and practical solution. In line with earlier case law of the Higher Regional Court of Schleswig (judgment dated 1 March 2022, ref. 5 U 47/11, juris), the Hamburg Regional Court also correctly recognises that a total limitation of liability for the unavailability of a system in general terms and conditions is valid. It is to be hoped that other courts, in particular the Federal Court of Justice, will follow this pragmatic approach. This not only ensures a fair distribution of risk but also contributes to the practical and legally secure drafting and execution of contracts in the wind energy industry.

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