The review period for the Renewable Energy Expansion Act (Erneuerbaren-Ausbau-Gesetz, EAG) running until 28 October 2020 has not expired yet, however, a first obstacle is presenting itself which could slow down the photovoltaic revolution in Austria and thwart the goal of the Federal Government to generate 100% of the energy from renewable sources: the draft amending the Burgenland Space Planning Act 2019 (Burgenländisches Raumplanungsgesetz 2019). The review period for the draft ends on 28 October 2020. The following is a first analysis of the main points:

1.Increased promotion of rooftop-mounted systems

Paragraph 1 of the amended section 53a of the Burgenland Spacial Planning Act stipulates that photovoltaic systems shall be mounted primarily on rooftops or integrated into buildings. This is insofar unspectacular as the provisions of the Burgenland Spacial Planning Act have, in most cases, no significant impact on existing buildings and photovoltaic systems with a peak power of 10 kW are even exempted from the applicability of the Burgenland Construction Act 1997 (Burgenländisches Baugesetz 1997) pursuant to its section 1 (2) (7).

2.Photovoltaic systems in open spaces for one’s own demand

Section 53a (2) of the envisaged amendment provides for the possibility to deviate from predominantly installing systems on rooftops under certain conditions:

-      Demand of the associated building (item 1)

-      Installation in the zoning area of the building including a limitation to certain zoning categories (item 2)

-      Limitation of the modules to a maximum of 35 square metres or to 100 square metres in case of operational areas and industrial plots (item 3)

It is notable that paragraph 2 (2) restricts the possibility to install systems in open spaces for one’s own demand to specific zoning categories defined in section 33 (3), and that this precisely does not permit leisure and tourism facilities (section 33 (3) (7)) and special areas (section 33 (3) (8)) to install systems in open spaces for the relevant building’s own demand. However, energetic self-sufficiency is quite desirable, especially for tourism facilities.

Against the backdrop that a module of appr. 7 square metres is required to produce a power output of one kW_peak, also the limitations to 35 square metres and 100 square metres can be considered as very conservative, in particular taking into account the idea that Renewable Energy Communities or Citizens Energy Communities are to be established.

3.“State-owned systems in open spaces”

Under constitutional and also European law, the following provisions of section 53a (3) to (7) are considered as questionable: Section 53a (3) provides for determining suitable zones for the installation of systems in open spaces which is still legitimate. It is not uncommon for Austrian provinces to demand such prohibitive and suitable zones in space planning acts, and identifying suitable zones has, in general, already proved to be successful, in particular in the case of wind turbines.

However, a novelty in Austria is the amendment at hand stipulating that these zones are only to be determined under the condition that these open spaces are either owned by a federal province or by an institution or company which said federal province controls fully at least in an indirect manner. In fact, installing and operating photovoltaic systems in open spaces is thus being nationalised. The draft law lacks a factual justification for this approach. Even the explanation given by the federal province that climate and energy goals can only be achieved by the federal province controlling the installation of photovoltaic systems in open spaces, does not constitute a factual justification. Sufficient control mechanisms already exist in the form of determining suitable zones and restricting the maximum size of open spaces intended for photovoltaic systems (see Lower Austria). Furthermore, it remains unclear why such restrictive regulations would only apply to photovoltaic systems in open spaces and not to other sources of renewable energy as well, such as for example to wind turbines.

In addition to these restrictive regulations, a charge for photovoltaic systems is also envisaged in paragraphs 4 to 6, the amount of which is to be determined by way of a statutory order issued by the regional government. It is unclear in which manner such a statutory order will be designed for the amount to remain proportionate, not violate the principle of equality and also be practicable, in particular since the amount depends on the severity of the impact on the landscape image and on the size of the space. Furthermore, a regulation governs that 50% of the charge shall be passed on to the municipalities having control over the location in which area the system is installed. The draft does not contain an explanation of how the remaining 50% of the charge are to be used.

Beside the fact that the photovoltaic systems may only be installed in spaces owned by the federal province or by a company controlled by it, another novelty is to be found in paragraph 7: The compensation for the use of the spaces shall also be regulated by way of a statutory order issued by the regional government. The fact that the regional government determines the price of the spaces to be used and, at the same time, forbids all other market participants to install photovoltaic systems in open spaces seems dubious, in particular in the light of clearly reducing the private autonomy. In addition, this also raises practical questions as to the incentive for owners making their land available for the use of photovoltaic systems.

Conclusion

In summary, the draft at hand raises serious concerns with regard to constitutional law. Regardless of these concerns, the conflict at hand clearly shows that the envisaged expansion of renewable energy can only be achieved together with the Austrian federal provinces or by the federal government taking on its planning competence referred to in the government programme and which generally exists.

If the other federal provinces choose the same approach, one thing is for sure: The photovoltaic revolution has been stopped before it had really begun.