It is a fact that some owners demanded very high remuneration. This is due to suitable land for energy projects being a rarity and usually sought after by several competitors. Some owners therefore initially demand what is being called a “whole bouquet” of remuneration demands to obtain a maximum usage fee. Considering hefty six-figure annual remuneration is often required for a wind turbine – which hardly restricts agricultural use – it is understandable that the Federal Government sees this a problem.

From a free-market perspective, one might note that in such a system pricing will be determined by supply and demand. The use of the area then costs the price that an operator of energy plants is willing to pay for it. The parties involved find efficient solutions by way of private autonomy through essentially free contract negotiations. On the other hand, if the state wants to steer economic developments with subsidies, ensuring that these state-directed incentives reach where they can have the best effect – and in a cost-conscious manner – is imperative given that the expansion of renewable energy is subsidised by taxpayers’ money.

Legally, however, the issue is not easy to resolve. Beyond Paragraph 1045 quoted at the beginning of the coalition agreement, very little is known regarding any concrete government plans. How the Federal Government intends to implement this project remains unclear given it does not have a constitutional majority in either the Bundestag or Bundesrat without support from the Greens or the Left. That said, this would not be necessary if the government is able to achieve limited usage fees by altering the participation conditions for the granting of EEG feed-in tariffs. So perhaps the legislator will not need to intervene deeply in private autonomy or commercial leasing law in the BGB, but can simply set limits at the point where the state subsidy system comes in. 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.

Such limitation provisions (which have yet to be developed) may only affect future land use agreements, i.e. those that have not already been concluded because of the protection of a status quo for agreements that have already been concluded. This would be an argument for landowners to establish facts and to conclude contracts on the negotiated terms. If a limitation model for energy generation plants that are to receive EEG feed-in tariffs is actually implemented by the Federal Government, existing usage contracts would have to be adhered to by the parties for the time being. If projects become uneconomical as a result of the new EEG regulations because the operators cannot obtain the required EEG feed-in tariff, the respective operator/project developer would usually have a right to withdraw from the contract or try to renegotiate with the landowner in order to prevent it from going under.

It is likely that there will be no automatically effective reduction of already contractually agreed user fees. This would be too much of an encroachment on privately autonomous contracts. If, however, in the case of already concluded user contracts with high usage fees, the subsequent obtaining of an EEG feed-in tariff was excluded due to the expected limitation regulations, such projects with high contractual usage fees could be put to the test – and fail.