New enforcement guide by the Federal Ministry for Economic Affairs and Climate Action (BMWK) on the implementation of the so-called EU Emergency Regulation - can section 6 of the German Wind Energy Area Requirements Act (WindBG) bring about the hoped-for turnaround for the expansion of wind power?

New legislative projects often suffer from legal uncertainties preventing their effective implementation, especially in the period shortly after they come into force. Terminological ambiguities, a lack of case law and the absence of scientific voices on the law can cause addressees to hesitate before adjusting their investment behaviour based on a new law. It is then up to the state to provide clarity for companies in order to ensure effective implementation of legislative projects and allowing them and bring the intended benefits. The BMWK has now done this with regard to the new section 6 WindBG by publishing (the draft of) an enforcement guide.

EU regulatory background

The "COUNCIL REGULATION (EU) 2022/2577 laying down a framework to accelerate the deployment of renewable energy" (so-called EU Emergency Regulation) was transposed into national law by the legislator with the "German Act to amend the Spatial Planning Act and other regulations" (ROGÄndGIm). Although the EU Emergency Regulation is in principle directly applicable, it allows for the member states to make additional simplifications and concretisations in national law, which the German legislator has now taken advantage of.

Acceleration of permit procedures under the German Wind Energy at Sea Act

The ROGÄndGIm made adjustments to the WindBG, the German Wind Energy at Sea Act inter alia.

Specifically, a new section 6 was inserted into the WindBG by the ROGÄndGIm on 29.03.2023. This is intended to further accelerate the expansion of wind energy, in particular by avoiding lengthy environmental impact assessments and simplifying species protection law assessments.

The material scope of application of the amendments extends to applications for the erection and operation as well as for changes in the location, nature or operation of a wind energy installation in a wind energy area designated at the time of the granting of the permit. For these, neither an environmental impact assessment (EIA) nor a species protection assessment pursuant to section 44 para. 1 of the Federal Nature Conservation Act (BNatSchG) needs to be carried out – provided it is subject to the restrictive conditions specified in Article 6 WindBG. This can lead to a considerable gain in time, as EIA procedures have an average duration of 4 to 6 months and can even take considerably longer in individual cases.

Easing of measures for species protection

The omission of the EIA and the species protection assessment also eliminates the risk that the project proves to be unfeasible at a later stage of the procedure due to mandatory species protection regulations. This is because a permit refusal of wind turbines on grounds of special species protection law (sections 44 ff. BNatSchG) is no longer possible under section 6 WindGB. Even if a violation of special species protection law is established payment into national species support programmes within the meaning of section 45d para. 1 BNatSchG is sufficient to obtain the approval of a project according to § 6 WindBG.

Temporal scope

If companies want to realise projects based on these changes, which are favourable to them, they must act quickly. From a temporal point of view, the scope of application is limited to applications submitted by the applicant by the end of 30 June 2024 and proving that the land on which the wind turbine is to be erected has been contractually secured for the erection and operation of the wind turbine. The procedure pursuant to section 6 WindBG may also be applied at the applicant's discretion to companies whose approval procedures were already commenced prior to the entry into force of section 6 WindBG. Project developers should check this for procedures already underway, as the changeover is likely to prove useful as a rule.

It is also possible to extend the period of validity of the provisions of the EU Emergency Administrative Procedures Ordinance (and thus also the corresponding provisions in section 6 WindBG), Article 9 s. 3 EU Emergency Regulation, however it remains to be seen whether the EU Commission wants to make use of this. Companies should not bet on it but instead make use of the favorable regulations.

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