GERMANY Law and Practice Contributed by: Udo Olgemoeller, Nicolaus Ascherfeld, Johann von Pachelbel and Janina Müller, A&O Shearman
required for particular technologies, such as onshore wind, and grid‑related conditions may address the specification of connection assets and curtailment protocols. Amendments Amendments to permits are obtained through modi- fication procedures under the BImSchG for substan- tial changes, which assess whether the change has significant environmental effects and apply public participation in proportion to the change’s impact, while non‑substantial modifications can be addressed through simplified procedures or notifications. Condi- tions may be relaxed upon a substantiated showing that the original risk basis has changed or that equiva- lent or better protective measures are in place. Judicial review remains available to challenge refusals or disproportionate conditions, with courts applying proportionality and precautionary principles consist- ent with environmental and administrative law. In par- ticular, Section 16b of the BImSchG establishes a sim- plified modification permit procedure for repowering renewable energy installations. Only adverse changes relative to the existing installation’s condition require assessment (the “delta test”). Repowering covers full or partial replacement of a plant or equipment, irrespective of size or capacity changes. For complete replacement, the new instal- lation must be erected within 48 months and sited within five times the total height of the old installa- tion. Wind turbine permits cannot be refused solely on noise grounds if post-repowering immission contribu- tions are lower and the turbine meets the state of the art. Planning law, nature conservation (Natura 2000) and building law remain fully assessable. 3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities Rights In Germany, generation facility developers do not generally enjoy a statutory power of eminent domain to acquire private land for plant sites; instead, they must secure land rights through private law transac- tions such as purchase, lease or easements, often supported by municipal land use planning that des-
ignates appropriate zones. Expropriation is available only where a statute expressly permits it for projects serving the public good and where private acquisi- tion has failed. In practice, such powers are reserved for linear infrastructure such as transmission lines or, in different sectors, for mining under specific laws; generation plants as assets are ordinarily not expro- priated. Compensation Compensation for expropriation, where available for authorised infrastructure, is based on full and fair rec- ompense reflecting market value and specific losses, determined in an administrative procedure subject to judicial review; for voluntary acquisitions, compen- sation is contractual and market‑driven. As a result, project land strategies for generation facilities focus on early site control through option agreements and alignment with municipal planning to minimise legal risk and community opposition. 3.5 Decommissioning a Generation Facility Requirements Decommissioning obligations are typically embedded in the original permit under the BImSchG or build- ing law, and require the safe cessation of operations, the removal of installations, waste management in accordance with circular economy laws, and the restoration of the site to an agreed condition, with specific technical standards depending on the tech- nology and materials involved. For certain technolo- gies, permit conditions may require decommissioning securities or guarantees to be posted to ensure funds are available at end of life, with amounts calibrated to anticipated dismantling and disposal costs. Nuclear decommissioning is governed by a special- ised federal regime under the Atomic Energy Act, with funding arrangements and public law trusts established for legacy liabilities, but this is no longer relevant for operating plants following the 2023 shut- down; fossil and renewable plants follow the general environmental and permitting framework. Operators must plan decommissioning in advance, obtain any necessary supplementary permits for dis- mantling works that may have environmental effects, and comply with occupational safety, waste and envi-
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