In a judgement dated 12 March 2026 (Case No. 307 O 76/24), the Hamburg Regional Court emphasised the central importance of presumptions of availability in maintenance and service contracts for wind turbines.
The proceedings were based on a maintenance and service contract which provided for an average technical availability of 95%. Losses of revenue were to be compensated exclusively by lump-sum damages if this threshold was not met; further claims for compensation were expressly excluded. The guarantee was accompanied by a clause stipulating that the plant was to be deemed “technically available” even during periods of downtime attributable to breaches of duty by the wind farm operator.
The operator claimed damages for a downtime of just under one month, citing a failure to meet the guaranteed availability. However, the Hamburg Regional Court found that the downtime was solely due to the operator’s breach of its contractual obligation to provide suitable access routes and parking areas for service and heavy-goods vehicles. In accordance with the contractually agreed presumption of the wind turbine’s availability, this period was therefore to be treated as “available.”
Taking this deemed availability into account meant that the overall availability during the relevant billing period was above the guaranteed threshold. The availability guarantee had therefore been met and there was no entitlement to lump-sum damages.
The decision makes it clear that availability guarantees only achieve their full effect in conjunction with such presumption of availability clauses: these provisions can mean that even significant downtimes do not count as a lack of availability under the contract, provided they are attributable to the operator’s sphere of risk. For the operator, this means that economically real losses of revenue remain legally irrelevant and even longer downtimes do not trigger claims if they are due to breaches of the operator’s own obligations. This appears appropriate because the contractual allocation of risk prevents the operator from deriving benefits from its own conduct in breach of contract and shifting the risk onto its contractual partner.
