EEG Clearing Agency Defines Buildings and Noise Protection Walls

Clearingstelle EEG (EEG Clearing Agency) concluded an advice procedure (Hinweisverfahren) concerning the terms “building” and “noise protection wall” in Section 33 para. 1 and 3 Renewable Energy Sources Act 2009 (EEG 2009) and its amendment, which entered into force on 1 January 2012 (EEG 2012).

Solar feed-in tariffs pursuant to Section 33 EEG 2009 and EEG 2012 for electricity generated from solar radiation in, attached to or on top of a building or a noise protection wall are higher than electricity generated from other photovoltaic installations specified in Section 32 EEG 2009 and 2012. While Section 33 para. 3 EEG 2009/2012 defines buildings in the sense of Section 33 EEG 2009/2012 as roofed building structures which can be independently used and entered by humans and are primarily designed for the purpose of protecting humans, ani­mals or objects, this definition itself leaves room for interpretation. Hence, the correct interpretation of the terms “building” and “noise protection wall”, is of great interest to operators of solar installations and investors.

With its latest decision on the matter, EEG Clearing Agency, which serves interested parties with regard to the interpretation and disputes relating to the EEG, gave guidance on the correct  interpretation of the two terms. However, the interpretation by EEG Clearing Agency is not binding for the courts, but it carries weight as the decisions are made by lawyers as well as (environmental) engineers

Below some of the most interesting aspects of the 33-page long decision regarding buildings and noise protection walls will be outlined.

A. (Non-exhaustive) Guidance by EEG Clearing Agency with regard to the term “building” in the sense of Section 33 EEG 2009/2012

  • The term “building” in 33 EEG 2009/EEG 2012 can generally be interpretated in line with the definition in the building regulation law (Bauordnungsrecht), but in a way that is consistant with the spirit and purpose of the EEG.
  • A building is roofed if it has an overhead cover. This can also be the solar installation. A solar installation is therefore also attached to building if it completes the building structure. 
  • Buildings can be primarily designed for the purpose of protecting humans, ani­mals or objects if the investment costs for the photovoltaic installation exceed the investment costs for the building. 
  • The primary purpose of the building is established at the time of the installation of the solar plant. Subsequent changes of the purpose of the building do not alter the classification as a building in the sense of EEG 2009/2012. However, a change of the purpose of the building that takes place within a short time after its erection can be an indication that the building never served the purpose of protecting humans, ani­mals or objects.

B. (Non-exhaustive) Guidance by EEG Clearing Agency with regard to the term “noise protection wall” in the sense of Section 33 EEG 2009/2012

  • A noise protection wall is a building structure that in its height and breadth exceeds its depth by far and which primarily serves to protect humans or animals from harmful, adverse, irritating or other bothering or unwelcome sounds (noises).
  • There is the irrefutable assumption that a noise protection wall primarily serves to protect against noise if the wall was errected because emission limits were exceeded or because of noise related legal provisions, in particular relating to emission control, installation, transport, building regulation and building planning law as well as laws regulating neighbour relations. 

Source: Clearingstelle EEG

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