“The Federal Government will probably try to link the payment of EEG feed-in tariffs to operators of energy plants to certain minimum requirements for the land use agreements.”
But what kind of regulation could stipulate the maximum usage fees and how should they be fixed over the lengthy term of usage contracts, usually set for 30 years? A ‘user fee audit’ with an annual review of the amounts paid would result in too much administrative work and be impractical. However, due to the text form requirements of the usage contracts, it could be sufficient for participants in EEG auctions to make a binding commitment to the Federal Network Agency to comply with certain standards. This would ensure no increase in user fees (that have not already been laid out) could be made during the contract term without operator consent. Whether further controls are necessary remains to be seen in practice. Due to the widespread due diligence checks by buyers and financing banks, a market standard should quickly emerge that places importance on complying with these requirements to secure a long-term EEG feed-in tariff.
The state already has experience with the limitation of remuneration under lease agreements – namely rent brake. Whilst these are very different subject matters – rent brake is intended to counteract the displacement of lower income groups from high-demand residential areas – nonetheless, certain aspects of this measure are comparable. For example, the rent brake’s framework includes mechanisms to decide at what point an apartment’s rent is considered excessive. Similar mechanisms could be used to take action against excessive usage fees.
What could a limitation model for usage fees look like? Currently there is no ‘energy investment index’. Will there be certain administrative categories or certain value criteria for wind and solar areas in the future? From an operator/developer’s point of view, road and grid connection conditions on site, as well as wind, light and ground conditions would be of interest in determining charges. So far, the German Wind Energy Association (“BWE”) has remained somewhat unprecise on this point: in his view, the link to the tender and the correct control mechanism are “important” for the implementation of the limitation model of usage fees. The BWE prefers a model with a loss of the acceptance of a bid in the auction for EEG feed-in tariffs in the event of violation of a reference remuneration. It therefore remains to be seen which criteria the legislator will consider permissible and how a ‘reference remuneration’ could be determined for regional areas.