GERMANY Law and Practice Contributed by: Udo Olgemoeller, Nicolaus Ascherfeld, Johann von Pachelbel and Janina Müller, A&O Shearman
ed by the BKartA, whose investigatory powers include dawn raids, document seizure and interviews under the GWB. It can levy substantial fines and impose remedies; criminal sanctions may apply in egregious cartel cases for individuals under separate statutes. In addition, wholesale electricity and gas markets are subject to extensive surveillance under REMIT, imple- mented nationally by the BNetzA, which collects and analyses transaction data, conducts investigations and can impose administrative sanctions for market manipulation and insider trading, with co‑ordination at EU level by the EU Agency for the Cooperation of Energy Regulators (ACER). Regulatory decisions and sanctions are subject to judicial review by the competent administrative or, for competition cases, specialised courts, ensuring legal- ity and proportionality consistent with German public law principles (including fundamental rights principles to be respected particularly by state-owned players in the industry). 3. Generation Facilities 3.1 Constructing and Operating Generation Facilities Construction and operation are governed, in particu- lar, by: • the EnWG; • the EEG; • the WindSeeG; • the BauGB; • the BImSchG; • the German Nature Protection Act ( Bundes - Natur- schutzgesetz – BNatSchG); and • the states’ construction codes. 3.2 Obtaining Approvals to Construct and Operate Generation Facilities Regulatory Process For installations subject to the BImSchG, the compe- tent authority in the relevant area conducts an inte- grated permitting procedure that includes compre- hensive public participation, publication of application documents and, where necessary, a public hearing, alongside a formal environmental impact assessment
for projects meeting the relevant criteria. The authority issues a legally binding permit with enforceable condi- tions, provided that all statutory requirements are met. For projects not covered by the BImSchG, building permits under the states’ construction codes are required and may be combined with planning law instruments such as development plans at munici- pal level, with environmental assessments integrated as necessary. Public participation in these cases is provided through the plan-making process and, for certain permits, through disclosure and objection mechanisms. Notably, in certain federal states, build- ing permits are no longer required for photovoltaic installations and/or battery energy storage systems, reflecting a broader trend towards regulatory simplifi- cation for such technologies. Offshore wind energy follows a distinct federal plan- ning and permitting process co-ordinated by the responsible federal authority under the WindSeeG, incorporating centralised pre-surveys and auctions as well as separate construction and operation permits issued following successful bids. Environmental and maritime spatial planning controls are integral to this regime. Authority Such approvals and permits are regularly granted by local or regional authorities that involve, as the case may be, higher authorities including ministries (when deviation from land or spatial planning regulations is necessary – eg, for solar facilities). 3.3 Approvals to Construct and Operate Permits for generation facilities typically impose emission limit values, noise limits, operational and monitoring requirements, construction method state- ments, environmental mitigation and compensation obligations, and decommissioning and site resto- ration duties, all tailored to the technology and site sensitivity. Renewable projects may have conditions addressing bird and bat protection, curtailment during sensitive periods, and habitat compensation. Compli- ance reporting, incident notification, and maintenance of financial security for decommissioning may be Generation Facilities Terms and Conditions
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