A new law could result in considerable additional costs in the future for operators of wind energy and ground-mounted PV systems in the Free State of Saxony. The Renewable Energy Profit-Sharing Act (EEErtrBetG for short) came into force on 29 June 2024.

The Free State is following a similar legislative proposal from Brandenburg as well as comparable regulations from the federal states of Mecklenburg-Western Pomerania, North Rhine-Westphalia and Lower Saxony (we already reported on the Brandenburg Tax Act here on 15 February 2024).

What does the new EEErtrBetG regulate?

The Profit-Sharing Act obliges the operators of wind energy and ground-mounted PV systems to provide a financial share to eligible municipalities (Section 3 EEErtrBetG) unless they have already agreed individual participation in accordance with Section 6 EEG (Renewable Energy Act) or in some other form. The key requirement for the obligation is that the installed capacity or total capacity of the respective systems is at least one megawatt.

Operators of wind energy systems are generally obliged to pay 0.2 cents/kWh per year and operators of ground-mounted PV systems 0.1 cents/kWh (Section 2 no. 1, Section 4 (1), (2) EEErtrBetG).

For ground-mounted PV systems, the mandatory minimum amount is often lower than for agreements in accordance with Section 6 EEG; in practice, this is regularly 0.2 cents/kWh. This means that the municipalities are likely to continue to favour agreements in accordance with Section 6 EEG for ground-mounted PV systems.

When does the payment obligation apply to system operators?

The payment obligation applies to installations whose construction is approved after 31 December 2024. The critical approval date in this context is the date on which the start of construction is permitted. Existing installations are exempt from the mandatory regulation.

A special feature, however, is Section 5 (2) EEErtrBetG: according to this, operators of existing installations can also enter into agreements with municipalities.

No double burden for operators

Pursuant to Section 5 (1) EEErtrBetG, a double burden on plant operators - as permitted by the Brandenburg Tax Act (namely BbgPVAbgG) - is excluded. This is clear from the wording of the provision, according to which a “different participation model” is only permitted “instead” of the payment obligation under the EEErtrBetG. As a result, municipalities can only demand an individual agreement from operators, e.g. in accordance with Section 6 EEG or payment within the meaning of Section 4 EEErtrBetG.

However, unlike the EEG, the EEErtrBetG does not provide for any reimbursement options. This alone can result in considerable additional costs for operators of wind energy and ground-mounted PV systems.

Additional risk for wind turbine operators

Operators of wind turbines need to be careful in future: An individual agreement in accordance with Section 5 (1) EEErtrBetG is also permissible outside of Section 6 EEG up to twice the value of the payment obligation - i.e. 0.4 cents/kWh (Section 5 (1) sentence 2 EEErtrBetG). On this basis, municipalities could demand a higher payment than previously permitted under Section 6 EEG. This risk does not exist for operators of ground-mounted PV systems because the maximum amount under the EEErtrBetG corresponds to the amount already permitted under Section 6 of the EEG.

Outlook

Section 5 EEErtrBetG standardises the possibility of an individual agreement between the operator and the municipality, i.e. the operator can agree a different participation model with each eligible municipality instead of the payment in accordance with section 4 EEErtrBetG. Municipalities and operators can therefore structure their agreements much more flexibly than under the current legal situation. It remains to be seen whether the flexibility gained will be utilised for agreements that are tailored to the specific requirements of a municipality and its residents, and which do not lose sight of the interests of the system operators.

Do you have questions about the approval procedures for PV or wind energy systems and/or construction or environmental protection, etc.? We look forward to hearing from you.