The energy transition in Germany requires not only technical innovations but also legal adjustments. To accelerate the construction of new renewable energy (RE) installations, new provisions have been introduced in the Renewable Energy Sources Act (EEG). §§ 11a and 11b EEG obligate public-sector property owners to tolerate certain uses of their land for the construction and operation of RE installations.
§ 11a EEG: Laying of Cables
§ 11a EEG strengthens the right to tolerate claims by operators of renewable energy (RE) installations against public-sector entities, as already recognized in case law (Federal Court of Justice, judgment of 11 November 2008, KZR 43/07). The law permits the laying of cables and associated technical equipment necessary for the grid connection of RE installations and battery storage systems. This privilege applies to installations connected to the public grid as well as those with direct lines to electricity consumers.
The cables are deemed to be apparent fixtures under the statutory provision, eliminating the need for a usage agreement or the registration of an easement. Furthermore, the cables may remain in the ground for up to four years after decommissioning.
Despite the obligations imposed on public-sector property owners by § 11a EEG, they are also granted certain rights. For instance, they have the right to claim a usage fee amounting to 5% of the market value of the affected part of the property. Additionally, property owners may, in certain cases, such as interference with the use of their property, claim compensation for damages.
An exception to the obligation to tolerate exists if the use of the property would be unreasonably impaired by the installation of the cable.
§ 11b EEG: Transport of Wind Turbines
§ 11b EEG extends the obligation to tolerate to include the crossing over and swinging over of public-sector properties for the construction or deconstruction of wind turbines. However, the transport of large components during operation cannot be enforced by law.
However, the permitted measures are subject to certain conditions: They must be genuinely necessary for the construction or deconstruction of a wind turbine. Additionally, only the land areas that are absolutely required may be used.
The amount of compensation for property owners varies depending on the measure. While swinging over a property is not considered a significant impairment and therefore does not give rise to compensation claims, the legislature has set compensation for crossings at 28 euros per month per hectare.
Obligations to Tolerate for Public Roads
Properties owned by the public sector are treated the same as public roads. Therefore, the new provisions of §§ 11a and 11b EEG also apply to public roads. However, an exception must be noted for public streets, as they do not fall within the scope of § 11b EEG.
Conclusion
The obligations to tolerate under §§ 11a and 11b EEG are an important component of the energy transition in Germany. They enable the further expansion of renewable energies. At the same time, they ensure that the interests of public-sector property owners are protected by granting them a right to compensation. Through these provisions, the EEG helps to achieve the goals of climate policy and ensures a sustainable energy supply.
Due to our existing expertise in enforcing the legal obligations to tolerate for energy providers and telecommunications companies, we can offer you the best possible support on this topic.
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