In Germany, agrivoltaic systems have not been considered in most legal sectors that are applicable to these installations. They have not been fully embedded into the legal framework, so that some legal challenges remain unresolved. In order to advance the technology and to contribute to the energy transition and sustainable food production, legal implementation is of great relevance. Agrivoltaics presents a solution to a conflict of interest concerning the sealing of surfaces on the one hand and the need to increase the use of photovoltaic systems on the other hand. An analysis of the three sectors construction, energy and agriculture aims to present the current state of affairs of the legal framework for agrivoltaics in Germany. Agrivoltaics is usually built outside of an urban area without a development plan. In many cases, it is difficult to obtain a permit for these areas because the classification as a privileged project is not always possible. In the area of a development plan, the stipulated use may conflict with an installation of the agrivoltaic system. With regard to the EEG, agrivoltaics often falls into the category of ground-mounted systems and will regularly not be eligible for payment if erected on agricultural land. The innovation auctions present new possibilities for agrivoltaics to gain an eligibility for payment. A crucial question for farmers remains whether their land loses its eligibility for EU direct payments due to the implementation of agrivoltaics.

Topics
Photovoltaics, Food
1.
Deutsche Bundesregierung
, (
2018
).
Deutsche Nachhaltigkeitsstrategie, Presse- und Informationsamt der Bundesregierung
,
Berlin
.
2.
The Federal Immission Control Act (BImschG) does not apply because agrivoltaic systems are not listed in the annex to the fourth ordinance for the implementation of the Federal Immission Control Act (4th Federal Emission Protection Ordinance (BImSchV
)).
3.
e.g. § 61(1) no. 3 lit. a-b BauO Bln, § 63(1) no. 3 lit. a-b LBO SH, § 61(1) no. 3 lit. a, b BbgBO.
4.
Federal Administrative Court, verdict of 3 November 1972, file no. 4 C 9.70.
5.
Federal Administrative Court, decision of 4 November 2008, file no. 4 B 44.08.
6.
Federal Administrative Court, NVwZ 2003, 98.
7.
See no. 2 of § 21(1) EEG.
8.
See § 22(3) EEG; in determining the “750 kW limit”, the “system combination rules” contained in § 24(1) and (2) EEG also have to be observed.
9.
Regarding the EEG, also see 2004 Federal Court of Justice (BGH), verdict of 17 November 2010, file no. VIII ZR 277/09.
10.
See lit. h. and i. of sentence 1, § 37(1) EEG.
12.
See verdict of 2 July 2015, file no. C-684/13.
13.
See verdict of 2 July 2015, file no. C-422/13.
14.
Federal Administrative Court, verdict of 4 July 2019, file no. 3 C 11.17.
15.
See verdict of 15 November 2018, file no. RO 5 K 17.1331.
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2022
Author(s)