For municipalities and other legal entities under public law, a duty to tolerate the laying, construction, maintenance, repair, protection and operation of lines and other facilities for connecting systems for the generation of electricity from renewable energy sources to a grid connection point has now been expressly stipulated in Section 11a para. 1 EEG. The operator of the line and its authorized representatives are entitled to enter and drive on the property for this purpose. The obligation to tolerate this does not apply if the use of the property is unreasonably impaired as a result or if this conflicts with national and alliance defense interests. This duty to tolerate was essentially already in place under sections 19 and 20 of the ARC.
However, a new regulation on the amount of compensation has been introduced. Operators must pay municipalities a one-off payment of 5 percent of the market value of the area for the protection strip when the line is commissioned (Section 11a para. 2 EEG). This regulation will be difficult to assess for publicly dedicated roads, as public roads and paths generally have no market value. There is considerable potential for dispute here as to which assessment basis will be used to determine the market value. If no agreement is reached, the operator could sue for the conclusion of a contract for the laying of the lines in the public roads. If no agreement is reached, the operator has the option of obtaining a temporary injunction in accordance with Section 83 para. 2 EEG (Section 11a para. 5 EEG).
The new EEG-2024 does not provide for a right of way. Operators must continue to reach an agreement with the municipalities in accordance with Sections 19 and 20 GWB. A toleration obligation for municipalities and other legal entities under public law is only provided for the crossing and panning for the erection and dismantling of wind turbines in accordance with Section 11b para. 1 EEG.
If you have any questions regarding the review of new or existing contracts, please contact us:
Contact: RA Dr. Johannes Badenhop, RA Judith Foest