In just over two months (on September 10), the new application round for the SDE++ subsidy will open. With a budget of EUR 11.5 billion, this subsidy can support many projects that contribute to sustainable energy production and climate transition. Companies and organisations wishing to claim this subsidy will soon start working on their applications (if they have not already done so).

The Trade and Industry Appeals Tribunal (Het College van Beroep voor het bedrijfslevenCBb), the highest administrative court (in subsidy cases), has given some important points of attention in a number of recent rulings. It is important to consider these for new applications, as the sanction is withdrawal of the subsidy, with major financial consequences.

The take-aways:

Realisation in accordance with application

• In its ruling of 2 April 2024, the CBb decided that the realisation of solar panels on the adjacent roof instead of on the roof indicated in the application was an essential change (essentiele wijziging), which required the Minister’s permission. This had not been granted here and (according to the CBb) the minister was entitled to withdraw the subsidy.
• In its ruling of 18 June 2024, the CBb decided on a case where the applicant had stated that the solar panels would be realised on an existing building. The applicant ended up demolishing the barn in question to put up a business warehouse (on which the solar panels would then be installed). This incorrect information also led to a (justified) withdrawal of the subsidy.
• A similar case was at issue in a ruling also on 18 June 2024 by the CBb, where, after receiving the subsidy, the subsidy recipient had realised another business warehouse on which the recipient could better put the solar panels. Again, the CBb ruled that this was an essential change, on the basis of which the Minister was allowed to withdraw the subsidy.

Read the application thoroughly!

• In a ruling on 9 April 2024, the CBb decided that incorrectly filling out the owner of a building (on which solar panels are to be built) can result in withdrawal of the subsidy. The (adviser of the) applicant had filled out the wrong owner, and the CBb ruled that this was at the applicant’s risk, whether this was done accidentally or not. The CBb stated that the Minister was not required to give the applicant the opportunity to adjust this.

Pay attention to deadlines!

• The project for which a subsidy is granted must be commissioned within a certain realisation period (this period differs per category!). That date is also immediately the start date of the subsidy. The deadline for commissioning can be postponed (by up to one year), but the start date of the subsidy cannot be postponed. Therefore, if you are delayed by one year and have been granted a waiver for this, you will miss one year of subsidy. In a ruling on 26 March 2024, the CBb decided that the legal framework indeed does not enable such a postponement.

Proportionality

In the aforementioned rulings, the CBb has also consistently considered the proportionality of its decisions. From that assessment, it follows that correct and complete subsidy applications are important for the Minister to assess the feasibility of the project. In order to use the SDE++ scheme as efficiently as possible, strategic (or speculative) applications must be avoided. The CBb considers the withdrawal of subsidy decisions as an appropriate measure if the application is not properly made. Misinforming the Minister about the location, the owner’s consent and whether an environmental permit was required is so essential that this provides grounds for revocation.

The consequence of a withdrawal is often huge, because when the subsidy is withdrawn, the generating plant will have (often) already been built. The costs of construction have then already been incurred and sometimes the subsidy has already been paid. The consequence is then that this subsidy will have to be returned and the production installation may become unprofitable.

Therefore, please take these concerns into account when submitting a new application for the SDE++ this year!

For more information, please contact Victor van Ahee or Sophie Silverstein.