date: august 2011

1. Act on Renewable Energy Sources (EEG 2009)

  1. Act on Renewable Energy Sources (EEG 2009)
  2. Real estate law / lease right
  3. Approval / conditions of authorisation

Since 17 May 2011 there has been a draft bill for the new EEG 2012. This envisions several changes also in the field of electricity production out of solar energy. This is not astonishing for the photovoltaic branch as the regulations concerning photovoltaics have been changed permanently since the middle of the year 2010.

Based on the fact that the amendment for photovoltaics 2011 can be seen as an advanced EEG-amendment for photovoltaics, the legal conditions for electricity production out of solar energy are largely adequate to the amendment for photovoltaics 2011. But the flexible or rather dynamic parts of the remuneration for photovoltaics have been already extended through the development of the “breathing cover of degression” with the amendment for photovoltaics 2011 that this adherence only promises a minor legal safety with the planning phase of a photovoltaic plant.

The reason for the introduction of the “breathing cover of degression” has been the unexpected development of the market of plants for the production of electricity out of solar energy in the year 2009. This had lead to a strong price decline by what it came – according to the opinion of the legislator - to an excessive support by the regulations of the EEG 2009.

According to the draft bill concerning the EEG-amendment 2012 there should be a degression for photovoltaics twice a year in the future, which is depending on the particular rate of annexes of the previous year. As far as the installed output until 30 September of the particular previous year within the previous 12 months exceeds a certain threshold level, a further decrease in remuneration between 3 and 15 percent takes place at 01 July. For the planning and the calculation of profitability of a photovoltaic plant it has to be considered in the future that the remuneration can decrease up to 30 % within the year of programming. The degression will only concern the plants that have been newly constructed within one period of degression.

The remuneration requirements of the amendment for photovoltaics 2011 have been retained to a large extent within the draft bill. The qualification for remuneration concerning electricity production on conversion sites shall be limited to areas which are no nature protection areas or national parks in terms of the federal law on nature protection. It is debatable whether this is really a limitation or only a concretisation of the previous regulation as the ecological inferiority of an area has already been seen as a criterion of conversion sites. Sites that have been listed as areas of collective interest before 01 January 2012 shall be excluded from the qualification of remuneration.

A really radical change is the explicit comprehension into the feed-in management. Thereby, it is differentiated between plants with an installed capacity of 30 up to 100 kilowatt and such ones with a higher output. Whereas smaller plants have to fulfil the technical requirements of § 6 section 1 EEG 2012 necessarily, bigger plants can alternatively limit the active power feed-in at the grid connection point to 70 % in a long-lasting way. For the calculation of the installed output in terms of § 6 section 1 EEG 2012, the rule of § 6 section 3 EEG 2012 has been introduced, according to which – along the lines of § 19 section 1 EEG 2009 – several plants are seen as one plant independent from the ownership structure and only for the purpose of calculation of the installed capacity when

  • they are located at the same plot of land or in direct and close proximity and
  • they have been commissioned within 12 consecutive calendar months.

The envisioned regulation concerning the change of damaged modules within the draft bill is very welcome. According to the opinion of the legislator, the changed module has not to be seen as an independent new plant with an independent point of commissioning and own size of remuneration but instead it is integrated into the already existing plant.

2. Real estate law / lease right

When photovoltaic plants are installed on external plots of land or rather on roofs, care should be taken, when the concerned plot of land is part of a compulsory auction. It is possible that rights have to be asserted so that they do not expire. In the scope of a contractual regulation, rights of passing of the user for installation and maintenance purposes, the responsibility concerning damage to the roof or possible restrictions of use of the land owner concerning the prevention of a shadowing effect of the plant have to be considered.

When a landlord builds up a photovoltaic roof plant on its own rental property, the question comes up, whether the costs of the plant has to be bear by the landlord or whether it is possible to allocate costs on the rent.

It is also legally possible to lease a photovoltaic roof plant on the own building to a third person. In this case, the leaseholder becomes plant operator in terms of the EEG.

The decision of the European Court of Justice and the subsequent jurisdiction of the German courts has lead to an extent of the procurement law, which have been very important for the urbanistic contractual practise and have had a direct impact on wind energy projects due to the high investment volume. According to this legislation numerous real estate contracts and planning agreement with participation of the public authorities have been subject to the procurement law. When these regulations have been disregarded, the invalidity of the agreement has impended and therewith the failure of the whole wind energy project. With the amendment of the procurement law of 20 May 2009, the legislator has tried to work against this extensive jurisdiction. On this occasion and with the decision of 02 October 2008, the Higher Regional Court of Düsseldorf decided to bring its opinion to the European Court of Justice. With its decision of 25 March 2010, the European Court of Justice decided that the sale of real estate of the public authorities is not a subject to the procurement law in default of “a public building application” when the construction work is not in favour of the applicant as the public applicant is only exercising the urbanistic regulation responsibilities.

Within its first decision after the decision of the European Court of Justice, the Higher Regional Court of Düsseldorf has followed the guidelines of the European Court of Justice.

3. Approval / conditions of authorisation

The construction of a photovoltaic free-field plant is subject to an approval under building law. This results from a converse argument out of § 63 section 1 number 2 b) SächsBO, that normalises an exception of the authorisation requirements for photovoltaic plants in and at roofs and exterior walls.

According to § 63 section 1 number 2 lit. b) of the Building Code of Saxony, photovoltaic plants at roofs and exterior walls are free of procedure as far as they are plants for the building services, i. e. as far as the produced electricity is at least used for the building on its own. When the electricity is fed into the public electricity grid, photovoltaic roof plants are also subject to approval. A draft bill of Saxony is now trying to exclude photovoltaic plants at building from the approval procedure independent from the feed-in into the public grid.

The Higher Administrative Court of Münster has decided on 20 September 2009 that the construction of a photovoltaic plant on a roof of a riding hall is seen as a change in use which is subject to approval. The riding hall is an agricultural business; the photovoltaic plant is a commercial use of the roof area. This change in use is not optional to the obligation to obtain a permit. The interdiction of use of the not authorised photovoltaic plant was lawful according to the opinion of the court.

As far as no building permit is necessary for the construction of a photovoltaic plant, it has to be adequate to the material building law. Elsewise it is possible that the elimination of the plant can be commanded (§ 80 sentence 1 SächsBO). In this context, the order of deformation under the Federal State Building Order (§ 9 SächsBO) is very important.

When a project is situated within the scope of a qualified development plan according to § 30 section 1 BauGB, its admissibility is determined only according to the determinations of the development plan. Thereby, the type and degree of building and land use results normally from the determination of one of the building areas according to the Land Use Ordinance (§ 1 section 3 BauNVO). Within the outlying area, photovoltaic plants are not privileged. There is neither an own matter of fact concerning the privilege of the energetic use of solar energy, neither a normal matter of fact concerning the privilege of § 35 section 1 BauGB.

Free-field photovoltaic plants are admissible on principle within declared business areas. Due to the EEG-amendment 2010, project developers and also local authorities have to ask the explosive question, in which spatial extent photovoltaic free-field plants are admissible within business areas or rather whether a complete development of a business area with photovoltaic plants is possible under the construction planning law.

The regional planning (e. g. Western Saxony) has tendencies to manage the use of solar energy by an accommodation of particular objectives into the regional development plan. Thereby, explicit taboo zones are determined in which the use of solar energy shall be excluded. This development is the basis for important concerns. On the one hand, the area of regional planning concerning a coarse control is left at the expense of the local planning competence (partly against the will of the concerned community) and on the other hand it is possible on the level of the local area development planning to have a planning equation, which refers more the concerned interests. Insofar it is not necessary to have an inter-local regulatory element. That is why it is debatable at the moment whether such an approach would have legal continuance.

In the scope of a debate about fees concerning the authorisation of a solar park the question was raised by the relevant people whether the particular modules are individual plants or one whole plant. One the one hand this has effects on the licensing work and on the other hand on the fees concerning the authorisation. The authorities tend to the assumption of one consistent structural work. A concluding evaluation of the question does not exist at the moment.

According to the constant jurisdiction of the Higher Administrative Court of Mannheim, a method of approach, which is graded after the grounds of protection, has to be used for the examination of the authorisation capability of a photovoltaic plant on listed buildings. Despite this, the listed building has to be part of the examination regulating listed building issues as a whole. This has been clarified by the Higher Administrative Court of Mannheim within its new decision of 10 June 2010.

According to a decision of the Administrative Court of Neustadt, the significant damnification of the monument predominates the interest concerning a commercial use of a photovoltaic roof plant on a listed building when the owner is not able to explain that the property cannot be used any longer in a cost-effective and reasonable way without having revenues out of the electricity production. The decision can be understood in that way, that there is a claim of authorisation for listed buildings when the owner is able to explain that the expenditure necessary for the proper maintenance of the building is reasonable without having the commercial advantage out of the photovoltaic plant.