You install mounting structures and modules, build the plant as general contractor or run its operation and maintenance? We review EPC, subcontract and O&M contracts, negotiate them with the investor or the general contractor, and when a dispute arises we pursue payment and defend you against contractual penalties. In English, German and Polish, across Germany.
Most disputes start with a contract signed in a hurry, just before mobilising to site or taking over the operation of a plant.
The investor sends an EPC or O&M contract in English with German law as the governing law. Terms such as liquidated damages or taking-over are then interpreted under German law, because the law applicable to a contract governs its interpretation (Art. 12 (1) (a) Rome I Regulation).
The O&M contract guarantees a certain annual availability of the plant and provides a penalty for every missing percentage point. The definitions decide the outcome: what counts as unavailability, which downtimes are excluded and whether penalties are capped.
The plant is running and feeding into the grid, but the client does not sign the acceptance because it is waiting for tests, documentation or the removal of minor defects. Yet acceptance (Abnahme) makes the remuneration due (sec. 641 (1) sentence 1 BGB) and starts the limitation period for defect claims (sec. 634a (2) BGB).
Ground conditions differing from the survey, a changed table layout, additional cable routes or a postponed grid connection. Whether you are entitled to extra payment or more time depends on the risk allocation in the contract and on what was notified in writing during the works.
The general contractor deducts penalties, retains a security (Sicherheitseinbehalt) or withholds the last instalment until it has settled with the investor. Clauses making payment conditional on the investor’s payment (pay when paid) need to be checked in the specific contract.
Customs checks the registration of posted workers and the minimum wage, and SOKA-BAU asks for holiday fund contributions. For PV installation, whether SOKA-BAU applies depends on the type of work and on who directs and performs it.
EPC and O&M contracts are usually drafted by the investor or the general contractor. We show where the contract shifts risks onto you that are not priced in, and we propose specific amendments.
Turnkey construction of a solar farm: scope and interfaces, schedule, tests and acceptance, contractor warranties, delay penalties and securities.
Installation of mounting structures, modules, inverters and cabling: scope, measurement, remuneration, deductions and obligations passed down from the main contract (flow-down).
Preventive and corrective maintenance, response times, availability guarantee, performance ratio, spare parts, reporting and additional work.
Framework agreements with general contractors, individual orders and the client’s standard terms attached to purchase orders that change the agreed quote.
Bank and insurance guarantees (Bürgschaften), retentions and parent company guarantees: amount, return date, conditions for calling and payment on first demand.
Contracts with your own subcontractors and suppliers, so that the risks, penalties and documentation duties from the main contract do not remain with you alone.
Who is responsible for the grid connection, transformer station, access roads, fencing, monitoring and documentation for the grid operator. Every gap between scopes is a future dispute over extra payment.
The daily penalty rate, the cap and whether the penalty requires fault. In terms drafted by the other side for multiple contracts (AGB) an excessive penalty may be invalid (sec. 307 (1) sentence 1 BGB).
The formula, the measurement period and the exclusions: grid failures, curtailment instructed by the grid operator, force majeure, waiting time for manufacturer spare parts. Plus the ratio of penalties to your remuneration.
The aggregate liability cap, the exclusion of lost profit and indirect damage and the relation between penalties and damages. If the contract is silent, the creditor may claim the penalty as the minimum amount of damages and pursue higher damages (sec. 340 (2), sec. 341 (2) BGB).
When acceptance takes place, whether partial acceptance is allowed and which tests it depends on. Until acceptance the contractor as a rule bears the risk of accidental loss of the work, for example cable theft from the site (sec. 644 (1) sentence 1 BGB).
Payment schedule, retentions, guarantees and their return dates. Under a construction contract the contractor may demand security for payment, and the contract cannot exclude this right (sec. 650f (1) and (7) BGB).
Until the work is completed the client may terminate at any time without giving reasons, but the contractor is then entitled to the agreed remuneration less saved expenses and less what it earns, or maliciously fails to earn, by using its capacity elsewhere (sec. 648 sentences 1 and 2 BGB). Contracts often change this, so we check the settlement and the handover of documentation.
Governing law, state courts or arbitration, the place of proceedings and the prevailing language version where the English and German texts differ.
After the review you receive a short report: which clauses are dangerous, how large the financial risk is and what we propose instead. We mark up the contract in track changes in its own language, English or German, with comments you can pass on to the other side. You know the cost of the review before instructing us.
A good amendment is half the job. The other half is a rationale that convinces the other side’s legal team, and a sequence of concessions planned before the first round.
Together with you and your project manager we define which amendments are a condition for signing, which are important and which you can give up. We put a euro figure on each item so that concessions are not made at random.
Each amendment comes with a short rationale in English or German: market standard, a reasonable allocation of risk and, where needed, an argument from the rules on standard business terms.
We handle the correspondence and comment rounds in the document and join online meetings with the investor or the general contractor, on your behalf or as support in the background.
We close the text, check cross-references and annexes and give your project manager a list of deadlines, notices and reporting duties that must not be missed.
Terms drafted by one party for multiple contracts are standard business terms under German law (Allgemeine Geschäftsbedingungen, sec. 305 (1) sentence 1 BGB). If such a clause is invalid, the rest of the contract remains in force and the statutory provisions apply instead (sec. 306 (1) and (2) BGB). Terms individually negotiated between the parties, however, are not standard business terms (sec. 305 (1) sentence 3 BGB) and are not subject to this review. That is why, before negotiations, we assess which clauses must be changed expressly and which are better left undiscussed.
When building a solar farm, the money depends on the letters sent during the works, not on the documents collected at the final account.
Under a VOB/B contract, extra payment for a change instructed by the client follows from sec. 2 (5) VOB/B and for additional work from sec. 2 (6) VOB/B, which requires notice of the claim before the work starts. Under a construction contract governed by the BGB, changes are regulated by sec. 650b and sec. 650c BGB.
Report a delayed grid connection, missing modules to be supplied by the client or impassable site roads in writing without delay (Behinderungsanzeige). Without such notice a hindrance is only taken into account if the client was obviously aware of the facts and their effect on the works (sec. 6 (1) VOB/B).
Report concerns about the soil survey, the structural design or components supplied by the client in writing without delay, if possible before starting work (Bedenkenanmeldung, sec. 4 (3) VOB/B). The contractor is liable for a defect resulting from such circumstances unless it gave that notice (sec. 13 (3) VOB/B).
Commissioning the plant and technical protocols are not automatically acceptance within the meaning of sec. 640 BGB, and the client may not refuse acceptance because of insignificant defects (sec. 640 (1) sentence 2 BGB). If the client delays, the contractor may set a reasonable deadline after completion. If the client does not refuse acceptance within that deadline stating at least one defect, the work is deemed accepted (sec. 640 (2) BGB).
The limitation period for defect claims starts with acceptance (sec. 634a (2) BGB). It is 2 years for a work consisting in the manufacture, maintenance or alteration of a thing and 5 years for a building structure (sec. 634a (1) nos. 1 and 2 BGB), and under VOB/B generally 4 years for building structures (sec. 13 (4) no. 1 VOB/B). In one case the Federal Court of Justice applied the 5-year period to a PV system added to the roof of an existing hall and stated that a technical installation permanently connected to the ground, directly or via a building, can itself be a building structure (Bauwerk) if permanent use is intended (judgment of 2 June 2016 – VII ZR 348/13). It has not ruled expressly on ground-mounted solar farms, so the period is best agreed in the contract.
Under a construction contract the remuneration falls due after acceptance and a verifiable final invoice (sec. 650g (4) BGB). The contractor may also demand security for payment (sec. 650f (1) BGB). If a business is in default, interest of 9 percentage points above the base rate and a lump sum of 40 euros are owed (sec. 288 (2) and (5) BGB).
A service contract runs for years, and its risks only show at the first hailstorm, inverter failure or dispute over the availability report.
The formula matters: whether availability is measured in time or in energy, over which period and which events are excluded, for example grid outages, curtailment instructions from the grid operator, force majeure, waiting for manufacturer spare parts or no site access.
The penalty table should have a threshold, a rate and an annual cap, and availability and performance ratio penalties should not add up for the same event. It is also worth stating expressly whether a penalty closes further claims for the same event and whether it counts towards the liability cap.
The list of work covered by the lump sum, response and repair times and a price list for additional work. Without them every cable replacement, mowing or module cleaning becomes a dispute over whether it was included.
Annual and aggregate caps, exclusion of lost profit and indirect damage and liability insurance matching the cap. In standard business terms such exclusions have limits (sec. 307 BGB), so their wording needs precision.
When the investor may terminate without cause, what compensation it then pays and what the service provider hands over to its successor: documentation, monitoring data, spare parts and system access.
If the same company builds and services the plant, the warranty under the construction contract and the duties under the O&M contract must fit together. Under VOB/B, for electrotechnical parts whose maintenance affects safety and functionality, the limitation period for defect claims is 2 years unless otherwise agreed, if the client has decided not to entrust the contractor with maintenance for the duration of that period (sec. 13 (4) no. 2 VOB/B). Awarding the service contract therefore also affects liability for construction defects.
On a large solar farm, a customs inspection or a letter from SOKA-BAU can cost more than a dispute over a single invoice.
An employer based abroad that employs workers in Germany in sectors including construction must register them with the customs authorities before each assignment starts (sec. 16 (1) MiLoG in conjunction with sec. 2a (1) no. 1 SchwarzArbG). The A1 certificate concerns social security, not wages or holiday fund contributions.
A business that commissions another business is liable, like a guarantor who has waived the defence of prior enforcement, for the payment of the net minimum wage by that business and further subcontractors and for their contributions to joint institutions of the collective bargaining parties such as SOKA-BAU (sec. 14 AEntG, sec. 13 MiLoG). Hence the declarations, document checks and retentions in subcontracts.
Installing PV systems is both construction work and electrical installation work. According to the Federal Labour Court, coverage by the construction industry collective agreements then depends on who directs or performs that work. In a case where two master electricians supervised all the work, the business was not covered, and the collecting institution lost its claim for EUR 102,423.13 in contributions (BAG, judgment of 27 April 2022 – 10 AZR 263/19).
Most can be achieved before signing. But we step in at any stage, including when a dispute is already under way.
Contract with annexes, specification, schedule and correspondence. In a short call we define what matters most to you and when you need to sign. You know the cost before instructing us.
A report in English or Polish, track changes in the language of the contract, proposed wording and rationales for the other side.
Comment rounds, meetings with the investor or general contractor, the final signing version and a list of obligations for your project manager.
Notices during construction, letters on acceptance, reservations and accounts and, where necessary, court proceedings in Germany.
Handles disputes of construction and installation companies in Germany over remuneration, additional work and acceptance. Reviews and negotiates contractor agreements, including in English. His doctoral thesis at the European University Viadrina dealt with claims for additional work under lump-sum contracts.
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Negotiates and reviews commercial contracts and advises on investment projects and on posting staff to Germany. She gained experience, among other things, advising a major energy operator in Germany.
View profile →Availability, penalties, liability caps, additional work, termination and service handover. A checklist for service providers and contractors of solar farms.
Yes. Contracts for solar projects in Germany are often written in English but governed by German law. We review them in the original language, prepare the risk report in English or Polish and mark up amendments in the language of the contract. English terms such as liquidated damages or taking-over are then interpreted under German law, because the law applicable to a contract governs its interpretation (Art. 12 (1) (a) Rome I Regulation).
Yes. We can handle correspondence and meetings on your behalf or prepare amendments and rationales that you pass on to the other side yourself. The choice depends on your relationship with the counterparty, the stage of the talks and who has led the negotiations so far.
That depends on the length of the contract, the number of annexes and the signing date. We agree the timing and the cost before you instruct us. If signing is urgent, we start with the clauses carrying the greatest financial risk: contractual penalties, liability caps, guarantees and securities.
Not always. A penalty in terms that the other side drafted for multiple contracts is subject to review under sec. 307 BGB. The Federal Court of Justice held that a penalty clause in a client’s standard terms for a construction contract is invalid if its cap exceeds 5 % of the remuneration (default judgment of 23 January 2003 – VII ZR 210/01). The reference value is the remuneration under the correct final account (Abrechnungssumme), so in a unit-price contract a cap based on the sum in the order letter is not enough (judgment of 15 February 2024 – VII ZR 42/22). An individually negotiated penalty is not subject to this review (sec. 305 (1) sentence 3 BGB), and a merchant cannot ask the court to reduce a penalty promised in the course of its business (sec. 348 HGB).
After completion, set the client a reasonable deadline for acceptance in writing. If the client does not refuse acceptance within that deadline stating at least one defect, the work is deemed accepted (sec. 640 (2) BGB). Also check whether the contract makes acceptance conditional on tests, as-built documentation or approval by the grid operator, because those conditions then have to be met and documented.
Not automatically. PV installation is both construction and electrical work, and the Federal Labour Court held that what matters is who directs or performs it. A business whose work was supervised by master electricians was not covered by the construction industry collective agreements (BAG, judgment of 27 April 2022 – 10 AZR 263/19). An assessment requires documents on the type of work, qualifications and supervision.
Yes, as regards the minimum wage and contributions. A business that commissions another business is liable, like a guarantor who has waived the defence of prior enforcement, for the payment of the net minimum wage by that business and its further subcontractors and for contributions to joint institutions of the collective bargaining parties such as SOKA-BAU (sec. 14 AEntG, sec. 13 MiLoG). That is why general contractors require declarations and documents from subcontractors, and you can require the same from yours.
Yes. The firm is based in Frankfurt (Oder) and advises solar companies across Germany. We work with you in English or Polish and prepare contracts, correspondence and court documents in German or English. You know the cost before instructing us.
Customs registration, EUR 13.90 minimum wage, SOKA-BAU for PV installation, 15 % withholding without a Freistellungsbescheinigung, reverse-charge VAT, penalty caps and customs inspections on site.
The plant is running but the client will not sign? Acceptance versus commissioning, deemed acceptance under BGB and VOB/B, partial acceptance, condition surveys and defect periods.
Contract for work or services, availability formula and exclusions, penalty versus liquidated damages, liability caps in standard terms, termination and the EPC warranty interface.
Tell us which contract it is (EPC, subcontract, O&M), who the other party is, which language the contract is in and when it has to be signed. For a dispute, tell us the stage: construction, acceptance, service or final account. You know the cost before instructing us.
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