Federal Constitutional Court, 23 September 2010, Ref.: 1 BvQ 28/10
The Renewable Energy Sources Act ("EEG") obliges grid operators to purchase electricity from renewable energy sources and to remunerate it at a certain level.
In accordance with Section 32 (1) of the Renewable Energy Sources Act (EEG), the remuneration for electricity from systems that generate electricity from solar radiation is 31.94 cents per kilowatt hour. This purchase obligation is restricted by the PV amendment ("First Act to Amend the Renewable Energy Sources Act of 11 August 2010 in the version published in the Federal Law Gazette (BGBl. I p. 1170) on 17 August 2010") in such a way that the purchase obligation only applies to arable land solar installations that are commissioned before January 2011 and whose underlying development plan was issued before 25 March 2010. The reason for the restriction is the increasing competition between agricultural use and the use of this arable land by photovoltaic systems.
FactsThe applicant is a company active in the field of solar energy. Since, according to its own statements, it would not be able to complete 24 projects for solar parks on former arable land within the transitional periods, the amendment by the PV amendment would have drastic consequences for it. The applicant was therefore of the opinion that the PV amendment violated the principle of the protection of legitimate expectations in conjunction with Art. 12 para. 1 GG ("freedom of occupation"), alternatively in conjunction with Art. 2 para. 1 GG. This is because the remuneration regulation of the EEG, which is limited until 1 January 2015, initially provided companies with investment security. This trust was disappointed by the excessively short transitional provisions of the PV amendment with regard to installations on former arable land.
Federal Constitutional CourtIn the opinion of the BVerfG, the interference with professional or general freedom of action associated with the new regulation does not violate the principle of the protection of legitimate expectations, which must also be observed in the case of such interference. By making the promotion of electricity from solar radiation energy on former arable land dependent for the first time on the existence of a development plan adopted by 25 March 2010 at the latest, the legislator, with the new provision in § 32 para. 3 sentence 1 no. 3 EEG challenged by the applicant, affects potential investors in a situation that is in any case unsecured in terms of the protection of legitimate expectations, because a corresponding development plan - albeit without a specific deadline - is also required under previous law (the adoption of which is legally uncertain).
In such cases, the introduction of a deadline based on the date of the resolution on the development plan does not place an unreasonable burden on the affected party and serves the legitimate legislative objective of effectively limiting the future use of open spaces for photovoltaic systems to protect nature and the landscape and in favour of food and animal feed production.
Source: Federal Constitutional Court
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