Headnotes

to the Order of the First Senate of 23 March 2022

- 1 BvR 1187/17 -

(Wind Farm Participatory Companies)

1. For purposes of determining legislative competence between the federal level and the Länder (federal states), legal obligations requiring a specific use of legal entities and certain forms of corporate organisation that already exist under company law do not themselves fall within the sub-category of ‘company law’ under the competence clause ‘law relating to economic matters’ in Article 74(1) no. 11 of the Basic Law; instead, legislative competence for establishing such legal obligations depends on the purpose of the obligations.

2. Levies to be paid by wind farm operators to the municipalities in which their wind turbines are located serve the interest of the common good in expanding the production of onshore wind energy, in that the funds received are used to improve the acceptance of new wind farms by the residents of the affected municipalities; as non-tax levies, they may be established by the level of government that is competent to legislate on the underlying substantive matter.

3. The expansion of renewable energy production serves the climate goal of Article 20a of the Basic Law and the protection of fundamental rights against the risks posed by climate change, because the zero emission electricity thereby generated can reduce the consumption of fossil fuels in the electricity sector as well as in other sectors such as transport, industry and buildings. At the same time, the expansion of renewable energy production also serves the interest of the common good in securing the supply of energy, because it helps to meet the need for zero emission electricity arising from the climate goal and reduces dependence on imported energy.

4. In balancing conflicting fundamental rights interests, the contribution of individual measures to climate protection and the protection of fundamental rights against the risks posed by climate change – here, the individual measures serving to expand renewable energy production – cannot be called into question on the basis that each such measure taken by itself might be minor in comparison to the total amount of CO2 emitted globally. In the case of measures taken by the Länder or municipalities to promote renewable energies, particularly those that might serve as pilot projects, the significance of such measures for climate protection, for the protection of fundamental rights against the risks of climate change and for securing the energy supply also depends on the amount of electricity that is or can be generated by similar measures in other Länder or municipalities.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 1187/17 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Harbarth,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 23 March 2022:

1. § 10(6) second sentence of the Act on the Participation of Citizens and Municipalities in Wind Farms in Mecklenburg-Western Pomerania of 18 May 2016 (Law and Ordinance Gazette for Mecklenburg-Western Pomerania page 258) is incompatible with Article 12(1) of the Basic Law and is void.

2. For the rest, the constitutional complaint is rejected.

3. […]

R e a s o n s:

A.

I.

The constitutional complaint is directed against provisions of the Act on the Participation of Citizens and Municipalities in Wind Farms in Mecklenburg-Western Pomerania (Citizen and Municipal Participation Act, Bürger- und Gemeindenbeteiligungsgesetz – BüGembeteilG) of 18 May 2016 (Law and Ordinance Gazette for Mecklenburg-Western Pomerania, Gesetz- und Verordnungsblatt für Mecklenburg-Vorpommern – GVOBI M-V, page 258), as amended by the Act of 26 June 2021 (GVOBI M-V page 1032).

1. According to the explanatory memorandum in the bill by the Land government, the premise for the law was that Mecklenburg-Western Pomerania could only make a significant contribution to the transformation of the energy sector (Energiewende ), including a phase-out of the use of fossil fuels, by improving public acceptance of new wind turbines despite their negative visual impact on the landscape. A proven means of doing so is ensuring that residents and municipalities participate in [the economic value created by] wind farms. […] To that end, the law requires project developers to offer residents and municipalities in the vicinity of new wind farms shares in special purpose vehicles (“project companies”) or alternative forms of economic participation (cf. Landtag (state parliament) document, Landtagsdrucksache – LTDrucks 6/4568, pp. 1 f., 23, 27, 30).

2. Pursuant to § 3 BüGembeteilG, wind farms in Mecklenburg-Western Pomerania may only be installed and operated via “project companies” dedicated solely to the generation of wind energy. Pursuant to § 4(1) first sentence BüGembeteilG, project developers are obliged to offer at least 20% of the project company’s shares to certain eligible purchasers that are defined in § 5(1) and (2) BüGembeteilG. Local residents qualify as eligible purchasers if they live within five kilometres of the wind farm, while municipalities are eligible if the wind farm is situated directly on their territory or within a five-kilometre range of the municipality. This geographical eligibility requirement is based on the assumption that, in the landscape prevalent in Mecklenburg-Western Pomerania, wind turbines are typically still visible within a radius of five kilometres (cf. LTDrucks 6/4568, p. 30).

[…]

As an alternative to offering shares in the project company, pursuant to § 10(5) BüGembeteilG project developers can ensure the economic participation of eligible parties by paying a “compensation levy” to the municipality and offering a savings product to local residents. According to § 11(2) BüGembeteilG, the amount of the levy to be paid to the municipality is determined based upon the earnings of the project company. The funds accruing from the levy must be used by the municipalities to increase the acceptance of new wind farms among their residents, for example, by upgrading the townscape or by funding cultural, educational or leisure facilities in the municipality (cf. § 11(4) BüGembeteilG). In accordance with § 2 no. 5 BüGembeteilG, the savings products that project developers can offer to local residents as an alternative to company shares are savings bonds and fixed term deposits, both of which have deposit protection. The interest rate on the savings products is also based on the earnings of the project company ([…]). [...]

Unlike in the case of residents, project developers must offer the purchase of company shares to eligible municipalities under § 10(7) second sentence BüGembeteilG unless the municipalities agree either to collect a compensation levy or accept a third alternative of a reduced local electricity tariff. The eligible parties must be able to choose freely between these options ([…]). […]

Finally, upon obtaining an immission control permit or winning a tender for a wind farm project, project developers must immediately provide the eligible municipalities with detailed written information about the project in order to determine the remuneration for the electricity generated. Among other things, the information must identify the project company and set forth the investment structure ensuring limited liability, as well as the share price, the total investment amount, the sum of all company contributions and a summary assessment of the company’s earnings value based on the project developer’s own preliminary calculation ([…]). This information must be disclosed even if the product developer prefers not to offer municipalities the option of purchasing shares in the project company under § 4 BüGembeteilG and would rather pay the levy under § 11 BüGembeteilG instead ([…]).

The law also contains further information requirements and provisions governing the subscription procedure and the allocation of the offered shares (§§ 7 to 9 BüGembeteilG). Pursuant to § 13 BüGembeteilG, the competent administrative authority is authorised to take all necessary measures to prevent violations of the legal obligations of project developers; further, all such violations are subject to fines pursuant to § 14 BüGembeteilG.

3. […]

II.

The complainant is a company in the wind energy industry. [...] It installs and operates wind turbines in Mecklenburg-Western Pomerania, among other places. In May 2017, it submitted an application for immission control permits in connection with the construction and operation of wind farms at two sites located (...) in Mecklenburg-Western Pomerania. [...] The complainant is entitled to use the site areas based on contractual arrangements with the landowners. An immission control permit [...] has not yet been issued.

The constitutional complaint directly challenges §§ 3, 4, 6, 11 and 12 BüGembeteilG. The complainant alleges a violation of its fundamental rights under Art. 3(1), Art. 12(1) and Art. 14(1) of the Basic Law (Grundgesetz – GG).

[…]

III.

[…]

B.

The constitutional complaint is admissible.

I.

The complainant directly challenges the obligations imposed on project developers, set out in §§ 3, 4, 6, 11 and 12 BüGembeteilG, to construct and operate wind turbines solely through a special purpose project company and to offer shareholding or economic participation in the value of the company to eligible municipalities and individuals. A closer examination of the constitutional complaint reveals that it is also directed against further provisions that limit the freedom of decision-making of project developers, in that they cannot offer alternative forms of participation to eligible third parties other than the options prescribed in the law (§ 1(3), § 10(1), (4) and (5) in conjunction with (7) second sentence BüGembeteilG). In assessing the proportionality of the contested provisions, the law’s limitations on the freedom of project developers to choose different options of ensuring economic participation must be taken into account (cf. also Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 133, 277 <279 f.>; 141, 220 <259>). [...]

II.

The complainant has standing to bring a constitutional complaint. It has sufficiently demonstrated the possibility of a violation of fundamental rights (1) and is presently and directly affected by the challenged provisions (2). The constitutional complaint satisfies the requirements of subsidiarity (3).

1. The complainant sufficiently asserts and substantiates the possibility that the contested provisions violate its fundamental rights (§ 23(1) second sentence first half-sentence, § 92 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG).

a) This does not apply, however, to the extent that the constitutional complaint contends that the provisions violate the general guarantee of the right to equality under Art. 3(1) GG, in that the obligation to provide for the economic participation of individuals and municipalities in project companies only applies to wind farms and not to other comparable operations.

[…]

b) By contrast, the contention that the obligation to pay a compensation levy violates Art. 12(1) and Art. 14(1) GG, as well as the principle of the equal burdening under fiscal law derived from Art. 3(1) GG, meets the statutory requirements of substantiation.

2. [As an addressee of the law,] the complainant is affected by the contested provisions. […] (cf. BVerfGE 108, 370 <384>; 140, 42 <57 para. 57>).

[…]

3. The constitutional complaint satisfies the requirements arising from the principle of subsidiarity (§ 90(2) first sentence BVerfGG).

a) The principle of subsidiarity generally requires that, before lodging a constitutional complaint, complainants first pursue all available procedural options that might remedy the alleged violation of the Constitution or prevent a fundamental rights violation. A decisive factor is whether clarification by the ordinary (non-constitutional) courts is necessary in order to avoid the Federal Constitutional Court having to render its decisions on an uncertain factual and legal basis. […] ([...]) (cf. BVerfGE 150, 309 <326 f. para. 42 ff.>). [...]

b) For purposes of constitutional review, the challenged provisions, which oblige project developers to establish a project company for the purpose of constructing and operating wind turbines and to offer eligible third parties the opportunity to participate in the economic value generated by the project company, do not require further clarification in terms of statutory interpretation. Nor does a constitutional assessment of these provisions require further factual clarification. The success of the constitutional complaint depends solely on the specific questions of constitutional law raised.

III.

The Federal Constitutional Court has jurisdiction to review the challenged provisions against the standard of fundamental rights laid down in the Basic Law, as the Citizen and Municipal Participation Act does not transpose any mandatory EU legislation into German law (cf. BVerfGE 155, 119 <162 ff. para. 83 ff.>; 156, 11 <35 ff. para. 63 ff.>). EU law does not prescribe any specific policy for Member States regarding the expansion of renewable energies. According to Art. 3(2) of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (Renewable Energy Directive – EERL), Member States are only required to specify what contribution they plan to make to achieving the EU's goal of increasing the share of electricity from renewable sources to at least 32% of gross final energy consumption by 2030 (Art. 3(1) EERL).

C.

The constitutional complaint is largely unfounded. The Citizen and Municipal Participation Act is incompatible with Art. 12(1) GG only insofar as the obligation to provide information [on the project company and the shareholding option] pursuant to § 10(6) second sentence BüGembeteilG requires project developers to incur extensive costs that may well be incurred in vain if the municipality involved accepts the alternative offer of a compensation levy in accordance with § 10(7) second sentence BüGembeteilG. Otherwise, the law is compatible with Art. 12(1) GG (see I. below). There is also no violation of Art. 14(1) GG (see II. below) or principle of equal burdening under fiscal law derived from Art. 3(1) GG (see III. below).

I.

The challenged provisions constitute an interference with the fundamental right to occupational freedom under Art. 12(1) GG of those wind farm operators defined as project developers under § 2 BüGembeteilG (1). The interference is formally constitutional. The Land Mecklenburg-Western Pomerania has the necessary competence to adopt such legislation (2). The challenged provisions are also, for the most part, substantively compatible with Art. 12(1) GG; the only exception being the obligation to provide information pursuant to § 10(6) second sentence BüGembeteilG (3).

1. The challenged provisions (see para. 26 above) interfere with the fundamental right to occupational freedom under Art. 12(1) GG.

a) Art. 12(1) GG guarantees all Germans a comprehensive fundamental right to freely choose and practice their occupation. “Occupation” is any activity that is practised on a long-term basis and serves to create and maintain a livelihood (cf. BVerfGE 97, 228 <252 f.>; 103, 172 <182 f.>; 105, 252 <265>; 145, 20 <67 para. 120>). The protection of occupational freedom is not limited to traditional or legally-defined professions, but also includes occupations that have come into existence as a result of technical, social or economic development (BVerfGE 145, 20 <67 para. 120>). One manifestation of occupational freedom is the ‘freedom of enterprise’, understood as the right to freely found and operate a business (cf. BVerfGE 50, 290 <363>; established case-law). This also includes the freedom to structure the organisation and contractual arrangements of the business as well as the freedom to determine how to make economic use of one’s occupational or professional work (cf. BVerfGE 30, 292 <312 ff.>; 50, 290 <364>; 97, 228 <253 f.>; 121, 317 <344>; 123, 186 <238 f.>; 138, 261 <284 f.>; 141, 82 <97 f.>; 145, 20 <70 f. para. 126 ff.>). In accordance with Art. 19(3) GG, this right also extends to commercial legal entities such as a limited partnership under German law (cf. BVerfGE 53, 1 <13>). Public taxes interfere with the fundamental right protected in Art. 12(1) GG if they are closely related to the exercise of an occupation and objectively have an inherent regulatory effect (objektiv berufsregelnde Tendenz ) (cf. BVerfGE 98, 83 <97>; 113, 128 <145 >; 124, 235 <242>).

The operation of wind farms is a protected occupation under Art. 12(1) GG (cf. BVerfGE 155, 238 <276 para. 93> regarding the operation of offshore wind farms).

b) The challenged provisions adversely affect the freedom to operate wind farms, which falls within the protection afforded under Art. 12(1) GG.

aa) Art. 12(1) GG protects against interferences that specifically relate to occupational activity, in that they directly prevent or restrict the practice of an occupation (cf. BVerfGE 113, 29 <48>; established case-law). Interferences with occupational freedom include provisions that generally prohibit the practice of an occupation or make it subject to approval by the authorities on a case-by-case assessment (cf. BVerfGE 8, 71 <76>; 145, 20 <70 f. para. 129>). Provisions that prohibit construction and operation of a facility unless express authorisation is obtained directly interfere with occupational freedom if the facility represents the main basis for an occupational activity and is the focus of this activity (cf. BVerfGE 25, 1 <10 f.>).

By contrast, occupational freedom does not protect against every legal provision that affects the general parameters of business activities (cf. BVerfGE 148, 40 <50 f. para. 27>). Otherwise, the contours of this fundamental right might become blurred, as almost every legal provision or its application could have an impact on occupational activity depending upon the circumstances (cf. BVerfGE 97, 228 <253 f.>; established case-law). Under certain conditions, however, legal provisions that are not directly related to an occupation may amount to interferences with occupational freedom; this is the case when the law objectively has an inherent regulatory effect on occupations (cf. BVerfGE 113, 29 <48>; 155, 238 <277 f. para. 97>; established case-law).

bb) Based on the foregoing, the contested provisions do not just indirectly affect the general parameters of the operation of wind farms. Rather, the law imposes specific obligations on project developers that must be fulfilled when constructing and operating wind turbines in Mecklenburg-Western Pomerania, and thus directly restrict the free exercise of occupational activity.

(1) Such a restriction results from § 3 BüGembeteilG. Pursuant to this provision, project developers in Mecklenburg-Western Pomerania may not construct and operate wind turbines themselves or through a company form selected according to their own considerations of expediency; they may only do so through a project company that satisfies certain statutory requirements. In addition, project developers must offer eligible residents and municipalities the opportunity to purchase up to 20% of the shares in this project company (§ 4(1) BüGembeteilG) or, alternatively, must pay a compensation levy to the municipalities (§ 10(5), § 11 BüGembeteilG) and offer residents a savings product (§ 10(5), § 12 BüGembeteilG). It is the municipalities, not the project developers, that decide between the stock purchase option and the alternative of a compensation levy (§ 10(7) second sentence BüGembeteilG). Consequently, project developers may be forced to accept a municipality as a shareholder in their project company. The freedom to practice an occupation is further restricted in that detailed requirements must be observed when determining the purchase price and denomination of the shares of the project company, when determining the amount of the compensation levy and the interest on the savings product, and when informing eligible third parties about the project (§ 4(3) in conjunction with § 7(2), § 6, § 11(2), § 12(4) BüGembeteilG).

Non-compliance with any of these obligations is punishable by fine (§ 14(1) BüGembeteilG). The competent authority can also take regulatory measures in accordance with § 13(1) BüGembeteilG if project developers violate these obligations.

In addition to these direct restrictions on freedom of business organisation and activity, project developers also face economic losses that are specifically linked to the legislative aim of improving acceptance of onshore wind energy production. [...]

(2) The obligation to pay a levy under § 11 BüGembeteilG also directly interferes with project developers’ occupational freedom. The interference arises when an eligible municipality chooses this alternative (§ 10(7) second sentence BüGembeteilG) and continues for as long as a project developer operates wind turbines through the project company. [...]

2. The challenged provisions fall within the scope of the legislative competence of the Land (see a) below). This also applies to the obligation to pay a compensation levy (see b) below). Federal law relating to the energy sector does not exert any preclusive effect under Art. 72(1) GG (see c) below).

a) The challenged provisions fall within the category of ‘law relating to economic matters’ under Art. 74(1) No. 11 GG, for which the Federation has concurrent legislative powers. Among the sub-categories listed in that competence clause, the provisions belong to the sub-category of energy law and not the sub-category of ​​company law. [...]

aa) (1) The interpretation of competence clauses in the Basic Law is based on the general rules of constitutional interpretation, according to which interpretation relies mainly on the wording, systematic approach, spirit and purpose, and legislative history of the constitutional provision in question. In this assessment, the clearest possible vertical separation of powers must be ensured. There is as little room for considerations of expediency as there is for considerations based on the principle of proportionality or the principle of subsidiarity (cf. BVerfGE 138, 261 <273 f. para. 28 f.>; 157, 223 <260 f. para. 100 ff.>; Federal Constitutional Court, Orders of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 119, and - 1 BvR 971/21 inter alia -, para. 79).

(2) The assignment of a specific provision to an area of competence is based on its direct subject matter, statutory purpose, effects, the entities to which it is addressed, as well as constitutional traditions (BVerfGE 121, 30 <47> with further references). The relevant area of competence is determined “first and foremost” by the objective subject matter of the law to be examined (cf. BVerfGE 121, 317 <348>; 142, 268 <283 para. 55>; established case-law). In this respect, it is the substantive content of a provision rather than the designation chosen by the legislator that is determinative. By identifying and examining the factual context of the provision, it can then be determined whether the provision specifically concerns a particular area of competence, as opposed to just having an incidental connection (cf. BVerfGE 157, 223 <262 f. para. 105>; Federal Constitutional Court, Orders of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 121, and - 1 BvR 971/21 inter alia -, para. 81).

The effects of a law are determined by its legal consequences. Statutory purpose, on the other hand, is derived from the objective intent of the legislator (cf. generally BVerfGE 11, 126 <131> and most recently BVerfGE 150, 244 <276 para. 74>; 157, 223 <263 para. 106>). Objective intent is to be determined by recognised methods of legal interpretation, i.e. the wording, systematic approach, spirit and purpose, as well as through the legislative materials and legislative history. These methods are not mutually exclusive, but instead, complement one other (cf. BVerfGE 144, 20 <212 f. para. 555>; 157, 223 <263 para. 106>; Federal Constitutional Court, Orders of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 122, and - 1 BvR 971 /21 -, para. 82).

Individual provisions within the law that are so closely "interlinked" with the overall focus of the law that they appear to be a part of the same framework belong to the same area of ​​competence as the law generally (cf. BVerfGE 97, 228 <251>; 121, 30 <47 f.>; 138, 261 <274 para. 30>). If, on the other hand, the individual provisions of the law must be assessed independently, or if the law is aimed at several purposes of equal importance based on its objective normative content, then the provisions can be assigned to several areas of competence (cf. BVerfGE 103, 197 <215 f.>; 136, 194 <241 para. 111 >; 138, 261 <275 f. para. 33>). In the case of Land legislation, it must be determined with regard to each applicable area of competence whether the Federation has exercised its concurrent legislative powers in a preclusive manner (Art. 72(1) GG).

bb) Based on the foregoing, the Citizen and Municipal Participation Act is part of the Federation’s concurrent legislative competence for ‘law relating to economic matters’ pursuant to Art. 74(1) no. 11 GG, specifically, the sub-category of ‘energy’ rather than the sub-category of ‘company law’.

(1) (a) The competence clause of ‘law relating to economic matters’ in Art. 74(1) no. 11 GG is broadly defined (cf. BVerfGE 5, 25 <28 f.>; 116, 202 <215>; 135, 155 <196 para. 101>; established case-law). This area of competence includes the regulation of economic life and activity, in particular, laws that relate in any way to the production, manufacture and distribution of goods serving an economic need (cf. BVerfGE 8, 143 <148 f.> 116, 202 <215 f.>; 135, 155 <196 para. 101>; established case-law; on Art. 74(1) No. 11 GG as the basis for the regulation of business-related special levies, cf. BVerfGE 82, 159 <182>; 124, 348 <364>). […]

(b) Company law is a sub-category of the ‘law relating to economic matters’ in Art. 74(1) no. 11. Among other things, company law creates organisational prerequisites for economic activities by providing different legal entities that allow individuals to form private-law associations or partnerships to pursue a common purpose, with the ability to participate in legal transactions ([...]). Company law therefore includes all provisions that directly relate to the structure of legal entities and the specific design of such associations or partnerships; in this respect, the Federation has made extensive use of its concurrent legislative power (cf. BVerfGE 98, 145 <157>). By contrast, legal obligations for the establishment and organisation of companies based on already-existing forms of legal entities cannot be categorised as company law. In terms of competence, such obligations are properly assigned according to their objective legislative purpose ([...]).

(c) ‘Energy” law’, as one of the sub-categories listed in Art. 74(1) no. 11 GG, pertains to those provisions that specifically concern economic activity in the energy sector. These include provisions relating to the organisation of the energy sector and the legal entities involved, insofar as such provisions do not directly establish the legal form and structure of such entities, which would fall under company law, as well as provisions relating to the generation and distribution of energy, the regulation of energy prices and measures to secure and save energy ([…]).

(2) (a) Based on the foregoing, the Citizen and Municipal Participation Act does not fall within the area of company law.

The key provisions of this law relate to the organisation and ownership structure of companies established for the generation of wind energy. Wind turbines in Mecklenburg-Western Pomerania may only be constructed and operated by a special purpose project company (§ 3(1) BüGembeteilG), in which eligible residents and municipalities must be offered the opportunity to participate in the economic gains: either through shareholding or, alternatively, through a savings product offered to residents and a compensation levy paid to the municipalities (§§ 4, 5, 12 BüGembeteilG). There are also provisions pertaining to the determination of the purchase price and denomination of the shares, as well as the amount of interest on the savings product (§§ 6 and 12(4) BüGembeteilG). Nevertheless, these provisions do not constitute company law in the context of legislative competence. While they require the establishment of special project companies, they do not prescribe the specific form or design of the legal entity used to fulfil this obligation. Instead, they require that project companies be established according to existing requirements for the establishment and structure of legal entities already provided for under company law. The challenged provisions therefore follow, rather than supplant, existing company law.

[…]

(b) The obligations under the Citizen and Municipal Participation Act must therefore be classified under the sub-category ‘energy’ rather than the sub-category ‘company law’ under the competence clause of Art. 74(1) No. 11 GG. The subject of the Act is the organisation and ownership structure of businesses operating in the wind energy industry, with the central obligations of project developers to establish a project company for the installation and operation of wind turbines and to offer participation in the economic gains of the project company to residents and municipalities. Similarly, the obligation of project developers pursuant to § 3(3) BüGembeteilG to structure the project company in such a way so that eligible municipalities can purchase shares in conformity with municipal law requirements must also be classified as energy industry law, not municipal law. The Citizen and Municipal Participation Act does not alter existing requirements in municipal codes for the acquisition of shares in private companies by municipalities, nor does it oblige municipalities to purchase shares in project companies in cases where these requirements are not met. Rather, the addressees of the law are project developers, whose obligation to enable the acquisition of shares in a project company by municipalities is intended to promote the expansion of wind energy production by improving public acceptance.

(c) […]

(d) Contrary to the opinion expressed in the legislative process (cf. LTDrucks 6/4568, p. 23), the Citizen and Municipal Participation Act does not fall under Art. 72(3) first sentence no. 4 and third sentence GG or Art. 74(1) No. 31 GG, which allow the Länder to enact legislation at variance to federal legislation in the areas of regional planning and spatial planning, respectively. The Act also does not fall into the category of land use law under Art. 74(1) no. 18 GG.

b) The compensation levy under § 11 BüGembeteilG, which a project developer must pay to an eligible municipality (§ 10(7) second sentence BüGembeteilG) as an alternative to the municipality's participation as a shareholder in the project company, is not a tax within the meaning of Art. 105 GG. It is a non-tax levy, which, like the other provisions of the Citizen and Municipal Participation Act, falls under the category of energy law pursuant to Art. 74(1) no. 11 GG.

aa) Taxes, within the meaning of Art. 105 GG, establish a common burden that is imposed on all who meet the tax criteria. They are levied independently of individual considerations and serve to finance public functions (cf. BVerfGE 110, 274 <294>; 149, 222 <249 para. 53>). An earmark of the revenue received does not preclude the classification of a levy as a tax in the sense of a special-purpose tax, so long as the performance of public functions that the levy serves to finance does not constitute a service or benefit granted directly in return for payment to the person liable for paying the levy (cf. BVerfGE 49, 329 <353 f. >; 110, 274 <294 f.>; 149, 222 <249 para. 53>). In addition to the conventional levies which compensate a benefit (fees and contributions), non-tax levies also include levies that have distinctive characteristics that set them apart from taxes and thus do not serve a competing function with taxation (cf. BVerfGE 101, 141 <150 f.>; 108, 186 <217>). The Federal Constitutional Court has held this to be the case for, among other things, levies that are intended to compensate for the burden of a public service obligation and to fund the fulfilment of such obligation (cf. BVerfGE 13, 167 <172>; 57, 139 <167 f.>; 67, 256 <277>; 92, 91 <116 f.>) or that serve to offset the benefit received from the use of a public good that is subject to a resource management regime (cf. BVerfGE 93, 319 <345>).

The formal legal classification of a levy as a tax or non-tax levy is based solely on its objectively determined factual content; implications for legal issues arising under substantive law, such as the principle of equal burdening under Art. 3(1) GG, are of no relevance (cf. BVerfGE 108, 1 <13>; 137, 1 <17 para. 40>; 145, 171 <207 para. 103>; 149, 222 <250 f. para. 56 f.>).

bb) Given its legal structure, the ‘compensation levy’ pursuant to § 11 BüGembeteilG is to be classified as a non-tax levy, which is not governed by the constitutional rules on taxing powers, but instead, must be assessed under the general allocation of legislative powers under Art. 70 ff. GG.

(1) Pursuant to § 11(4) first sentence BüGembeteilG, municipalities must use the funds from the compensation levy “to increase acceptance of wind farms among their residents”. The law also determines how this is to be done. Various measures with which this purpose can be achieved are provided as examples, such as upgrading the townscape and the local infrastructure, optimising energy costs or energy consumption in the municipality, or the funding of events and institutions for culture, education or leisure. In each case, it must always be made clear to the residents that there is a connection between the measure and the revenue generated from wind energy production (§ 11(2) second sentence BüGembeteilG). Pursuant to § 11(4) third sentence BüGembeteilG, the revenue may only be used for elective municipal projects, not for public functions that the municipality is required to fulfil in any case ([...]).

This means that the levy is not imposed to finance municipal functions. Municipalities are not free to use the revenue from the levy, which is to be documented in the budget ([...]), for just any municipal purpose. Rather, municipalities may only use the funds in such a way that the municipality’s participation in the economic value generated locally by the wind farms and the resulting improvement in the local quality of life can be experienced by residents to an appreciable extent. Under the law, the levy is an alternative to the obligation of project developers to offer the municipalities the purchase of shares in the project company. Both measures serve the same purpose of increasing public acceptance of new wind farms in order to promote the further expansion of production of this renewable energy ([...]). [...]

(2) By contrast, the classification as a non-tax levy cannot be based on the argument that the levy has a compensatory and incentive function relative to the “primary” obligation of project developers to offer eligible municipalities the option to purchase shares in the project company, and in this sense differs from a tax (but see LTDrucks 6/4568, p. 41). Under public finance law, a compensatory function exists when a levy is imposed as a form of compensation from those who, for whatever reason, fail to fulfil public law obligations to take a certain action or to refrain from certain activities, in order to distribute a public burden as evenly as possible. In this respect, such compensatory levy also serves to incentivise the fulfilment of these obligations (cf. BVerfGE 57, 139 <167 f.>; 67, 256 <277>; 92, 91 <117>).

This is not the case here. Like the obligation to offer local municipalities the opportunity to participate in the project company via shareholding, the levy is a means of improving acceptance of wind energy in the interest of expanding production of this renewable energy. Given that the levy constitutes as an alternative obligation that replaces the public law obligation to offer the purchase of shares, it cannot simultaneously perform a compensatory and incentive function in respect of the latter obligation. This also applies with regard to any additional burdens incurred if municipalities are included as shareholders in the project company. It is not possible to determine at what point the public acceptance-promoting effect of the levy ends and a compensatory effect begins. On the contrary, the higher the levy, the greater its acceptance-promoting effect, because the economic benefits of having wind farms in the locality can then be made even clearer to the residents. The levy cannot have an incentive function because, according to § 10(7) second sentence BüGembeteilG, it is the municipalities rather than the project developers that have the right to determine whether they will acquire shares in the project company.

cc) As a non-tax levy, the compensation levy according to § 11 BüGembeteilG [...] [also] falls under the legislative competence for ‘energy law’ listed in Art. 74(1) no. 11 GG. It represents an alternative to the obligation to offer shareholding in the project company, while serving the same objective of improving public acceptance of new wind turbines in the interest of further expanding the production of this renewable energy.

c) Federal law relating to the energy sector does not exert any preclusive effect on the Citizen and Municipal Participation Act under Art. 72(1) GG.

aa) Under Art. 72(1) GG, the Länder have power to legislate on matters within the concurrent legislative power of the Federation so long as and to the extent that the Federation has not exercised its legislative power itself. The Länder may not legislate where federal law exhaustively regulates a specific question (cf. BVerfGE 18, 407 <417>; 67, 299 <324>; 138, 261 <280 para. 43>). This can be done either positively by directly addressing the matter in legislation, or negatively by deliberately refraining from regulating a particular matter (cf. BVerfGE 32, 319 <327 f.>; 98, 265 <300>; 113, 348 <371>; 138, 261 <280 para. 43>). The deciding factors are whether a specific matter is actually regulated comprehensively, without gaps, or is intended to be finally regulated according to the objective intent of the legislator, which can be determined from the legislative history and the legislative materials (cf. BVerfGE 102, 99 <115>). The exercise of legislative competence by the Federation must be “sufficiently recognisable” (cf. BVerfGE 98, 265 <301>; 113, 348 <372>; 138, 261 <280 para. 43>). Mere values ​​and objectives formulated by the Federation do not have a preclusive effect (cf. BVerfGE 49, 343 <359>; 138, 261 <280 para. 43>). If the implementation of Land legislation means that federal law can no longer be applied, cannot be applied in its entirety or can only be applied in a modified manner, this points to a preclusive effect under Art. 72(1) GG (cf. BVerfGE 102, 99 <115>).

[…]

bb) In light of the foregoing, federal law does not exert any preclusive effect under Art. 72(1) GG in regard to the matters addressed in the Citizen and Municipal Participation Act.

(1) In this respect, it must be taken into account that the Federation has enacted (and later amended) the Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz – EEG), which also serves to expand the production of renewable energies. In the several times that the Renewable Energy Sources Act has been amended since the Citizen and Municipal Participation Act came into force on 18 May 2016, the Federation has not exercised its legislative competence in such a way that precludes the Länder from enacting legislation that serves to improve acceptance for wind energy production by requiring project developers to allow third-party participation in project companies.

(a) This also applies to 2014 version of the Renewable Energy Sources Act, as amended by the Act of 21 December 2015 (Federal Law Gazette I, Bundesgesetzblatt – BGBl I p. 2498), which was already in existence at the time the Citizen and Municipal Participation Act came into force on 18 May 2016.

This 2014 federal law did not contain any provisions that were in any way aimed at promoting the further expansion of wind energy by improving public acceptance of new wind farms. Neither the legislative history nor the legislative materials indicate an intent to preclude the enactment of such measures.

The obligation of project developers under Land law to offer shareholding or economic participation in the project company to municipalities and residents also does not counteract the subsidisation of wind farm operators provided for under the 2014 Renewable Energy Sources Act in the interest of expanding wind energy production (cf. BVerfGE 102, 99 <115>). This law – as well as the following amendments thereto – guaranteed a fixed remuneration to wind farm operators for electricity from wind energy in order to ensure the economic viability of wind farms and increase the proportion of electricity generated from renewable energies in electricity consumption (cf. § 1(2), § 19 EEG 2014). Thus, Land law provisions that would deprive wind farm operators of the benefit of such subsidies granted under federal law would be precluded under Art. 72(1) GG.

However, the Citizen and Municipal Participation Act does not have such an effect. [...]

(b) The 2017 Renewable Energy Sources Act of 13 October 2016 (BGBl I p. 2258, last amended by Art. 1 of the Act of 25 May 2020, BGBl I p. 1070) also has no preclusive effect on the Citizen and Municipal Participation Act.

This version of the Renewable Energy Sources Act, for the first time, contained provisions aimed at improving public acceptance of wind turbines, which were largely retained in subsequent amendments. [...]

The legislative history of the 2017 Renewable Energy Sources Act indicates that the Federation deliberately refrained from enacting further federal measures to increase public acceptance of new wind turbines through an obligation on project developers to ensure participation of municipalities and residents in the economic value of wind energy projects similar to the Citizen and Municipal Participation Act. A proposal aimed at this type of participation model […] was rejected in the Committee on Economics and Energy (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 18/9096, p. 349 ff.). Instead, on the recommendation of this committee, provisions on privileging energy companies with citizen or municipal shareholders were supplemented by a reservation in favour of legislation by the Länder . […] Based on the course of the committee deliberations, it can be assumed that this reservation for the Länder was also made with a view to existing Land legislation, such as the Citizen and Municipal Participation Act, which already required project developers to involve residents and municipalities in the economic value of wind farms.

As such, the federal legislator itself deliberately refrained from enacting provisions that, in addition to giving privileges to energy companies with citizen or municipal shareholders when tendering the remuneration for new wind energy projects, would oblige all project developers to only operate wind farms within the framework of locally anchored project companies, as the Citizen and Municipal Participation Act does. Given the explicit reservation in favour of the Länder [...], this deliberate choice of the federal legislator to refrain from further legislating on this issue was not meant to rule out supplementary Land law on this matter (cf. BVerfGE 35, 65 <73 f.>; 132, 372 <387 para. 43>).

(c) Finally, the 2021 Renewable Energy Sources Act (BGBl p. 3138), which has been in force since 1 January 2021, does not exclude the legislative competence of the Länder under Art. 72(1) GG.

This law allows wind farm operators, within certain limits, to offer local municipalities payments based on the amount of electricity generated on site (§ 6 EEG 2021; previously § 36k EEG 2021). […] The federal law model for improving the acceptance of new wind turbines differs from the Citizen and Municipal Participation Act in that it relies on voluntary payments by wind farms operators to municipalities, which can ultimately be passed on to the consumer via the electrical grid operator and the surcharge in accordance with § 6(5) EEG 2021 ([...]). Nevertheless, given the reservation […] in favour of Land legislation, these federal law provisions do not have a preclusive effect on Land law provisions that oblige wind farm operators to establish a project company and offer participation therein to third parties and, in particular, not with regard to an obligation to pay a levy to the municipality. Thus, the Länder may still exercise their legislative powers to enact more far-reaching provisions relating to public participation and to increasing public acceptance for new wind farms.

(2) Other federal law provisions in the field of energy law, such as the Energy Industry Act (Energiewirtschaftsgesetz ), in particular, do not have a preclusive effect on the Citizen and Municipal Participation Act either. […] In light of the subject matter addressed in that legislation and the regulatory purpose of ensuring fair competition ([...]), these laws have no connection with the promotion of wind energy production through acceptance-enhancing measures like the ones at issue here. Therefore, it cannot be assumed that this federal legislation was intended to have a preclusive effect.

[…]

3. The interference with the occupational freedom of project developers is justified for the most part. In line with the principle of proportionality, it serves legitimate purposes under constitutional law, is suitable and necessary for pursuing these purposes and, apart from the obligation to provide information under § 10(6) second sentence BüGembeteilG, is also appropriate.

a) The challenged measures, which are directly aimed at promoting the acceptance of new wind farms (see aa) below), serve to promote the overarching goal of increased production of wind energy (see bb) below), and thereby serve legitimate interests of the common good: protecting the climate (Art. 20a GG), protecting fundamental rights from the adverse effects of climate change, and securing the electricity supply (see cc) below).

aa) The design of the obligations imposed on project developers demonstrates that the immediate purpose of the law is to improve public acceptance of wind farms. The definition of the residents and municipalities eligible for participation pursuant to § 5(1) and (2) BüGembeteilG, which hinges on the geographical criterion of a five-kilometre radius of the site of the wind farm, is informed by the extraordinary visibility of wind turbines in the typical landscape in Mecklenburg-Western Pomerania, and thereby addresses a decisive element for public acceptance ([...]). The valuation of the shares of the project company according to the modified capital value method pursuant to § 6(3) and (4) BüGembeteilG is intended to lead to a purchase price below the market price, such that the right to purchase granted to eligible residents and municipalities is aimed at increasing acceptance (cf. LTDrucks 6/4568, p. 31). […] Pursuant to § 3(2) BüGembeteilG, the liability of residents and municipalities that are eligible to purchase shares must be limited to the amount of capital invested. In addition, by prohibiting project companies from ownership participation in any other company that goes beyond auxiliary or ancillary business activity pursuant to § 3(1) third sentence BüGembeteilG, the legislator sought to rule out non-project-related risks to the economic success of the project company (cf. LTDrucks 6/4568, p. 27). When a project developer decides to offer eligible residents a savings product ([...]), the interest on the savings product must be calculated, pursuant to § 12(4) BüGembeteilG, based upon the earnings of the project company ([...]).

In addition, § 11(4) BüGembeteilG provides that the levy payable by project developers be used by the local municipality in such a way that the advantages of locating wind turbines in the region can be appreciably experienced by residents (see para. 76 f. above). In this respect, participation in the economic value generated by wind energy production is ensured by means of an earnings-based assessment of the levy under § 11(2) BüGembeteilG, which is the financial equivalent of a profit distribution that municipalities with ownership interest in a project company would receive ([...]).

bb) The improvement in public acceptance is in pursuit of the overarching purpose of securing and strengthening the further expansion of wind energy production in Mecklenburg-Western Pomerania. The legislator views the lack of public acceptance as a major obstacle to the further expansion of wind energy production. This lack of public acceptance results from the significant impairment of the landscape caused by the wind turbines, which are visible from far away; it persists because this impairment is not offset by any relevant benefit to region, because wind farms are constructed and operated by non-local companies without the participation of affected residents and municipalities ([...]). The Land government of Mecklenburg-Western Pomerania submitted in these proceedings that regional planning associations encountered considerable resistance from local residents and municipalities in the search for new sites suitable for the use of wind energy production due to the lack of opportunity for the local community to benefit from the economic value (see Landtag of Mecklenburg-West Pomerania, Plenary Minutes 6/104 of 22 October 2015, p. 40).

cc) The aim of the Citizen and Municipal Participation Act to expand the production of wind energy by improving acceptance for new wind farms – like any promotion of the use of renewable energies – serves legitimate interests of the common good: protecting the climate (Art. 20a GG), protecting fundamental rights from the adverse effects of climate change and securing the electricity supply.

(1) Electricity can be generated from renewable sources, such as wind power, without climate-damaging CO2 being emitted, as is the case with conventional methods of electricity generation using fossil fuels. As such, every measure aimed at the further expansion of the use of renewable energies – along with measures for energy efficiency and energy saving – serves to protect the climate, which the state is obliged to do under the climate protection mandate of Art. 20a GG (cf. BVerfGE 157, 30 <138 ff. para. 197 ff.> – Climate Change). The climate is protected from harmful CO2 emissions by replacing conventional forms of electricity generation with renewable energies and by replacing fossil fuel consumption in other sectors such as transport, buildings and industry with electricity generated from renewable sources or with “green” fuels (such as hydrogen) produced using such electricity.

(2) The duty of the state to protect life and health as well as property from the risks posed by climate change arises from Art. 2(2) second sentence and Art. 14(1) GG (cf. BVerfGE 157, 30 <110 ff. para. 143 ff.>). In addition to adaptation measures to prevent serious consequences following from already-occurring climate change (cf. BVerfGE 157, 30 <113 para. 150, 119 f. para. 164>), this duty also includes measures to limit climate change itself by reducing emissions from CO2 to a climate-neutral use of energy. The existence of such duty is not called into question by the fact that Germany cannot counteract climate change on its own, but rather must act as part of an international effort due to the global impact and the global nature of the causes of climate change (cf. BVerfGE 157, 30 <113 para. 149; 139 ff. para. 199 ff.>). By promoting the expansion of wind energy production, the Citizen and Municipal Participation Act thus also serves to protect the aforementioned fundamental rights against the risks posed by climate change.

(3) Finally, an expansion of electricity generation from renewable energies also serves an interest of the common good by securing the electricity supply.

In exercising its mandate and prerogative to specify the constitutional requirements for climate protection, the legislator has further defined the climate goal of Art. 20a GG in § 1 third sentence of the Federal Climate Change Act (Bundes-Klimaschutzgesetzes – KSG), which provides that the increase in the global average temperature should be limited to well below 2°C and preferably to 1.5°C above pre-industrial levels. The temperature limit specified in § 1 third sentence KSG is the relevant standard under constitutional law and must also form the basis of the Federal Constitutional Court’s review (cf. BVerfGE 157, 30 <145 ff. para. 208 ff.>). From this standard follows the requirement to progressively reduce CO2 emissions from the consumption of fossil fuels to the point where the use of energy no longer contributes to global warming (cf. BVerfGE 157, 30 <150 ff. para. 216 ff.> on the remaining CO2 budget). This requires the reduction and eventual elimination of electricity generation through the consumption of fossil fuels, which must be offset by increased use of renewable energies to ensure sufficient electricity supply. In addition, there is the legally mandated phase-out of the use of nuclear energy, which, due to the obligation to achieve climate neutrality, can only be replaced in the long term by electricity from renewable energies. Finally, increased demand for energy from renewable sources arises from the fact that fossil fuels must be replaced not only in electricity generation, but also in other sectors such as transport, buildings or industry with “green electricity” or with alternative fuels such as hydrogen generated through such electricity. Thus, securing the electricity supply while maintaining the constitutional climate protection goal at the same time requires an increased expansion of renewable energies (cf. Federal Ministry for the Environment, Climate Action Plan 2050, p. 39; Climate Action Plan 2030, Measures to achieve the 2030 climate protection goals, BTDrucks 19/13900, p. 26).

Further, increased use of energy from renewable sources available in Germany also serves to secure the electricity supply because it reduces dependence on energy imports and strengthens self-sufficiency.

b) The challenged provisions of the Citizen and Municipal Participation Act are suitable for pursuing these objectives of the common good.

aa) The suitability requirement under constitutional law is satisfied if there is a possibility of achieving the legislative objectives with the statutory provisions. A provision can only be found to be unsuitable if it cannot further the legislative purpose pursued in any way or if it counteracts this purpose (Federal Constitutional Court, Order of the First Senate of 8 July 2021 - 1 BvR 2237/14 inter alia -, para. 131 with further references – Interest on Back Taxes and Tax Refunds). When assessing whether a provision is suitable, the legislator has a certain leeway in terms of evaluating the factual situation, making any necessary prognoses and choosing the means by which the legislative aims are to be achieved. The extent of this leeway is not always the same. Rather, its scope depends on the individual case, in particular, the nature of the subject matter in question, the extent to which the basis of decision-making allows for sufficiently reliable conclusions and the importance of the legal interests at stake (cf. Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 185).

bb) In light of the foregoing, the legislator’s assumption that the contested provisions could improve public acceptance of new wind farms (see (1) below), thereby promoting the expansion of wind energy in Mecklenburg-Western Pomerania (see (2) below) and thereby contributing to achieving the objectives of the common good mentioned above, is not objectionable under constitutional law (see (3) below).

(1) The Land legislator assumes that requiring project developers to establish project companies for the operation of wind farms, and ensure the participation of local residents and municipalities in their economic value, can improve acceptance of new wind farms. The resistance on the part of residents to the further expansion of wind energy in Mecklenburg-Western Pomerania is primarily due to the considerable impact on the landscape caused by the wind turbines, which can be seen from afar, and that the economic value generated for the most part does not remain in the region. In this respect, the legislator cites the higher acceptance of wind energy in regions in which wind farms are operated predominantly with the participation of residents and municipalities (cf. LTDrucks 6/4568, p. 1 f.).

This assessment is supported by survey results. In a survey ([...]) conducted on behalf of the Land government in Mecklenburg-Western Pomerania in 2015 by [an] opinion research institute [...], around three quarters of those questioned supported the possibility of local residents and municipalities financially participating in new wind farms as a good or even very good measure. In a nationwide telephone survey conducted in 2021, respondents emphasised that when wind turbines are constructed in their region, it is (very) important to them that the surrounding municipalities can help shape the implementation (83%) and benefit financially from it (79%) and that the wind farms are at least partially operated as community-based energy projects (57%). As factors that are particularly suitable for active support for the construction of wind turbines in the locality, respondents named discounted electricity tariffs (72%), project-related revenue from the municipality directed toward improving local living conditions (70%), the possibility of investing in the wind energy project by local residents (63%) and operation as a citizen energy project (54%).

The federal legislator also assumes that locally anchored “citizen energy companies” make a significant contribution to the acceptance of new wind farms. [...]

Finally, the European legislator also shares the assessment that participation of residents and “local bodies” in renewable energy projects improves public acceptance (Recital 70 of the Renewable Energy Directive). According to Art. 22 of the Directive, Member States are therefore obliged to ensure that such local “renewable energy communities” receive non-discriminatory access to all suitable energy markets.

Accordingly, the legislator could plausibly assume that acceptance of new wind farms can be improved by the various obligations imposed on project developers under the Citizen and Municipal Participation Act to enable the economic participation of residents and municipalities in local project companies for the production of wind energy. The same applies to the obligation to pay a levy to eligible municipalities as an alternative to the offer to purchase company shares. The legislator’s assessment that the levy can also increase the acceptance of wind energy if the revenue generated thereby is used in accordance with the requirements of § 11(4) BüGembeteilG (see para. 76 f. above) is not objectionable. It is reasonable to assume that such an effect can occur if residents can see that improvements in the local quality of life are based on the participation of the municipality in the economic value generated locally through wind energy.

(2) Improved public acceptance by means of economic participation can also contribute to promoting the expansion of wind energy production.

According to the Land Mecklenburg-Western Pomerania, before the Citizen and Municipal Participation Act was passed, regional planning associations encountered considerable resistance from residents and affected municipalities in the search for suitable sites for wind farms, because the expansion of wind energy production was accompanied by extensive changes in the landscape without any corresponding opportunities for municipal and civic participation in the economic value generated through such production. The willingness to designate new suitable sites was therefore increasingly made dependent on a legally binding guarantee of participation in wind energy production projects ([...]). Given the foregoing, the legislator could assume that if project developers were obliged to ensure the participation of the affected municipalities and residents in the financial yield of wind energy production, the willingness of the [...] regional planning associations to create the prerequisites under public planning law for the construction of new wind farms would also increase, because they would then encounter less resistance from the population and from the affected communities. This assessment was subsequently confirmed by the fact that, according to information from the Land government, the willingness of the planning associations to designate additional sites for wind energy production has become apparent in the ongoing process of updating the regional plans.

The legislator was not required to conclude that that the measure is not suitable for promoting the expansion of wind energy because the obligation to found project companies and enable participation in their earnings by residents and municipalities could disincentivise wind farm operators from doing business in Mecklenburg-Western Pomerania. The nationwide lack of suitable sites for wind farms speaks against such a conclusion. In practice, according to the Land government of Mecklenburg-Western Pomerania, the Citizen and Municipal Participation Act has not led to a decrease in the number of applications for permits for new wind farms.

(3) Finally, the Citizen and Municipal Participation Act can make a contribution to protecting the climate, protecting fundamental rights from the adverse effects of climate change and securing the electricity supply by improving acceptance of new wind turbines, which serves to expand onshore wind energy production.

(a) No state can stop global warming on its own. Furthermore, emissions of climate-damaging CO2 from every state contribute to climate change. Resolving the global climate problem will only be possible if climate action is taken worldwide (BVerfGE 157, 30 <140 para. 200>). Thus, every measure aimed at reducing CO2 emissions – such as the expansion of wind energy production in Mecklenburg-Western Pomerania – promotes a limitation of the rise in global temperature by making a contribution to the global climate action initiated by the international community with the Paris Agreement (cf. BVerfGE 157, 30 <140 ff. para. 201 ff.>).

(b) Any measure that contributes to limiting the rise in global temperature by reducing CO2 emissions, as in the case of the Citizen and Municipal Participation Act, is also suitable for protecting health and life (Art. 2(2) first sentence GG) and property (Art. 14(1) GG) against the risks posed by climate change. The faster and higher the earth’s temperature rises, the greater the harmful effects on these fundamental rights, and the more likely these harms will occur (cf. BTDrucks 18/7111, p. 36 ff.).

(c) The expansion of wind energy production that is the objective of the Citizen and Municipal Participation Act also contributes to securing the electricity supply, because electricity generated in this way can replace the electricity generated from fossil fuels. This serves to fulfil the constitutionally mandated climate protection target, which cannot be achieved by nuclear energy production due to the statutory phase-out of such operations. In addition, the expansion of wind energy can meet the additional demand for electricity from renewable sources that arises from the reduction of the climate-damaging consumption of fossil fuels in other sectors such as transport, buildings and industry (see para. 107 above). Further, the increased use of wind energy strengthens domestic self-sufficiency, which is in the interest of a secure electricity supply.

c) The various legal obligations imposed on project developers to allow eligible residents and municipalities to participate in the economic value generated locally through wind energy production are necessary in the constitutional sense for the furtherance of these interests of the common good.

aa) Interferences with fundamental rights must not go further than is necessary to protect the common good. A measure falls short of this standard if an equally effective means is available that would be less intrusive for the affected fundamental rights holders and would not entail greater burdens for third parties or the general public. In this regard, it must be clearly established that the alternative measure is equally effective for achieving the purpose pursued. The legislator has a margin of appreciation for the assessment of necessity. This margin of appreciation includes, among other things, considering the effects of the chosen measures in comparison with other, less intrusive measures. The margin may be narrower depending on the fundamental right affected or the severity of interference (cf. BVerfGE 152, 68 <119 para. 134>). Conversely, the more complex the matter addressed by the legislator, the broader the margin (cf. BVerfGE 122, 1 <34>; 150, 1 <89 para. 173> with further references).

bb) In light of the foregoing, the contested regulations are necessary in the constitutional sense. In the present case, alternatives to the expansion of wind energy production are not relevant to the necessity test because such alternatives would not obviously be a less restrictive means for the complainant, a company in the wind energy industry. With regard to the relevant objective of the common good – promoting the expansion of wind energy production – it is not certain that public acceptance of new wind farms can be achieved with the same level of effectiveness in ways that are less burdensome for project developers than those provided for in the Citizen and Municipal Participation Act.

(1) This applies, on the one hand, to the right of eligible municipalities pursuant to § 10(7) second sentence BüGembeteilG to reject an offer to pay a levy under § 11 BüGembeteilG and thus to be able to obtain an ownership interest in the project company against a project developer’s will. Allowing project developers the freedom to choose between a levy and the sale of shares in the company would constitute a less restrictive means under constitutional law only if it was certain that paying the levy could just as effectively promote the public acceptance of new wind turbines as the participation of the municipality in ownership of the project company. However, this cannot be established without a doubt.

A finding of equal effectiveness cannot be derived from the fact that project developers are granted freedom of choice with regard to the offer to purchase shares to eligible residents. Specifically, project developers have the option of offering residents the purchase of a savings product rather than shares in the project company in accordance with § 12 BüGembeteilG without the consent of residents (§ 10(5) and (7) first sentence BüGembeteilG). However, the freedom of choice granted project developers in this instance does not imply that the legislator ascribes no higher acceptance-enhancing effect to participation via shareholding than to the compensation levy or the savings product. Rather, this option allows project developers to avoid the even greater restrictions that may arise due to a large number of residents holding shares in a project company, as compared to shares held by a limited number of municipalities (cf. LTDrucks 6/4568, p. 45).

The conclusion reached in the legislative process that municipalities will not generally insist on being a shareholder in the project company, but instead will accept the offer to receive payment of a compensation levy, also does not speak in favour of the levy having the same effectiveness as participation via shareholding. The reasoning for this conclusion was not that public acceptance would be better, or at least equally as well, promoted by the levy. Rather, reference was made to the fact that payment of the levy was easier to implement for the municipalities than shareholding (cf. LTDrucks 6/5335, p. 41, 50). […]

In addition, the legislator could assume that holding shares in the project company is the more effective means of promoting public acceptance in cases in which a municipality decides against the levy, despite the associated administrative costs ([...]), because the acceptance of wind energy production is highest in areas where wind farms are operated as municipal and citizen cooperatives ([...]). […]

(2) The other alternative option for economic participation authorised by § 10(1) BüGembeteilG, a reduced local electricity tariff that is subject to the consent of those otherwise eligible to purchase shares or savings products, cannot be regarded as clearly as effective as the obligation to offer the opportunity to purchase shares in project companies. Under § 10(1) first sentence BüGembeteilG, eligible residents and municipalities are free to choose such an offer in lieu of purchasing shares in the project company. Insofar as those eligible for such an offer may opt instead for shareholding, it cannot then be assumed that the offer of electricity at a discounted rate will have at least the same acceptance-promoting effect.

(3) The same applies to the amendment to § 1(3) BüGembeteilG made by the Act of 26 June 2021 (GVOBl M-V p. 1032), according to which the competent authority can allow exceptions to the statutory obligations, “if another form of participation, in particular, the uniform federal framework within the meaning of § 36k of the Renewable Energy Sources Act, is to be implemented in a binding manner that fulfils the purpose of the law”. This alternative differs from the alternative under § 10(1) BüGembeteilG in that it depends on a discretionary decision of the competent authority, does not have to be offered in addition to the obligation to offer shares for purchase and can be limited to a binding financial participation of the municipalities. However, it cannot be generally assumed that such “other forms of participation” are equally effective in promoting public acceptance, because such forms are not specified by law, but instead, are determined by the project developers. It is therefore not objectionable that the approval of the alternatives proposed by a project developer depends upon a case-by-case assessment by the competent authority based on the interests of the common good.

d) The obligations imposed on project developers – with the exception of the obligation to provide information under § 10(6) second sentence BüGembeteilG that applies in the case of an alternative offer to pay the compensation levy under § 11 BüGembeteilG – are also appropriate (proportionality in the strict sense).

aa) The principle of proportionality in its strict sense requires that in an overall assessment, the severity of the legislative interference with a fundamental right not be disproportionate to the importance of the reasons invoked to justify it. In this respect, an appropriate balance must be struck between the severity of the interference and the legislative aim pursued, and between the conflicting interests of the individual and the general public (cf. BVerfGE 83, 1 <19>; 100, 313 <375 f.>; 113, 348 <382>; 120, 378 <428>; 133, 277 <322 para. 109>; established case-law).

bb) The Citizen and Municipal Participation Act interferes with the occupational freedom of project developers, which is protected under Art. 12(1) GG. The severity of this interference is considerable.

(1) The Act interferes with project developers’ freedom to organise their company and business activities as they see fit.

According to § 3(1) first and second sentence BüGembeteilG, project developers must set up a separate company for each individual wind energy project. This deprives them of the ability to carry out such projects through their own company or in some other manner of their choosing based on considerations of expediency regarding taxes and organisation. The freedom to structure such a project company is also restricted. Pursuant to § 3(1) third sentence BüGembeteilG, ownership participation of a project company in other companies is restricted to auxiliary or ancillary business. In accordance with § 3(2) BüGembeteilG, the liability of eligible residents and municipalities that purchase shares in the project companies under § 4 BüGembeteilG is limited to the amount of capital invested. Further, pursuant to § 3(3) BüGembeteilG, the project company must be structured in such a way so that eligible municipalities can hold shares in the company in conformity with existing municipal law requirements. The fact that municipalities can request the share purchasing alternative even if the project developer in question prefers other forms of participation (§ 10(7) second sentence BüGembeteilG) also significantly impairs freedom of organisation. The project developer must then allow, against their will, third parties to be shareholders in the project company.

(2) The contested provisions also reduce the earnings from the occupational activity of project developers.

Project developers are obliged to offer eligible residents and municipalities at least 20% of the shares of the project company for purchase or, as an “economic surrogate” (cf. LTDrucks 6/4568, p. 41, 45 f.), offer a savings product to residents and payment of a compensation levy to municipalities (§§ 4, 5, 10, 11 and 12 BüGembeteilG). This reduces project developers’ prospects for returns. In addition, the capital value method required by § 6 BüGembeteilG is intended to keep the purchase price for the shares in the project company below a price that could be achieved on the market (cf. LTDrucks 6/4568, p. 31). Project developers receive nothing in return from the eligible municipalities and residents for the payment of the compensation levy or the interest on the savings product. The establishment of the project company, the determination of those eligible under § 5 BüGembeteilG, the determination of the purchase price of the company shares to be offered using a capital value and an earnings value method by certified auditors (§ 6(3-6) BüGembeteilG) and the determination of the earnings value, which is decisive for the assessment of the levy and the interest on the savings product, all involve quite considerable expenses for project developers. Additional costs are associated with having to fulfil the various information obligations.

cc) By promoting the expansion of wind energy production in Mecklenburg-Western Pomerania through acceptance-enhancing measures – obligations to establish project companies for the generation of wind energy with participation of local residents and municipalities in their economic value – the legislator is pursuing interests of the common good that are of considerable importance.

(1) The state’s mandate for climate action and duty to protect fundamental rights from the effects of climate change constitute a significant interest of the common good.

(a) The weight attached to this interest is not diminished by the fact that the amount of zero emission electricity that can be generated by increasing wind energy production in Mecklenburg-Western Pomerania is marginal in view of the total amount of CO2 currently emitted worldwide.

The rise in the earth’s temperature depends largely on the total amount of CO2 emitted globally, as it can be assumed that anthropogenic CO2 emissions will naturally remain in the atmosphere indefinitely and that there is a roughly linear relationship between the concentration of CO2 in the atmosphere and the global temperature increase. This means that every additional amount of CO2 that enters the Earth’s atmosphere, and is not then artificially removed, permanently increases the concentration of CO2 and leads to a further rise in temperature (cf. BVerfGE 157, 30 <52 f. para. 19, 60 f. para. 32>). Therefore, in considering the importance of measures to expand the use of renewable energies for climate protection and the protection of fundamental rights from the effects of climate change, the amount of electricity that can be generated without emissions is a relevant factor in this assessment. However, significance for the common good of measures with only limited scope – such as the obligation at the Land level to allow third parties to participate in the economic value created by wind farms or individual municipal measures – is not limited from the outset by the fact that the amount of zero emission electricity thereby generated is low in comparison with the total amount of CO2 currently emitted globally. Given that climate change is caused by countless emissions of greenhouse gas, often involving relatively small amounts when viewed in isolation, the only way to combat climate change is to adopt measures aimed at reducing all possible emissions. It is in the nature of things that individual measures are not capable by themselves of having a decisive impact. However, precisely because climate change can only be halted if these innumerable and often small amounts of CO2 emissions are prevented at the local level, individual measures cannot be criticised as only having a minimal effect. (cf. BVerfGE 157, 30 <141 f. para. 202 f.>; Federal Administrative Court, Judgment of 30 June 2005 - 7 C 26.04 -, para. 35 f.; Berlin Administrative Court, Judgment of 31 October 2019 - 10 K 412.18 -, para. 74).

(b) Moreover, individual measures for the expansion of renewable energies can take on additional significance for the common good if they contribute towards achieving national climate targets within the international framework. If states are able to have mutual trust that other states will take action to reach the agreed climate targets, this can have a conducive effect on efforts to combat climate change. A state can strengthen this mutual trust in the international community if it actually implements internationally agreed climate protection goals by reducing its emissions (cf. BVerfGE 157, 30 <142 f. para. 203 f.>). Against this background, individual measures – such as the acceptance-increasing obligation of project developers to allow those affected by wind energy production to participate in the resulting economic value – serve to improve the national emission balance, thereby contributing to the success of global climate protection.

(c) Finally, the significance of the challenged measures for the common good cannot in any case be evaluated solely in terms of the amount of electricity generated within the territory where the measures apply. Such an isolated consideration, limited to the individual measure, would mean that certain measures by the Länder or municipalities would be deemed unreasonable even when, in an overall view of the amount of electricity achieved or achievable through similar measures, the severity of the interference with fundamental rights is not disproportionate to the importance of the public interest pursued. Such an overall assessment is particularly of merit here because the Citizen and Municipal Participation Act can be of transnational importance as a pilot project to promote the expansion of onshore wind energy.

Efforts to expand onshore wind energy are clearly beset with acceptance problems. According to the legislator’s assessment, which is unobjectionable under constitutional law, these problems are less acute where wind energy is produced by companies with strong local connections, which are dedicated to single projects and involve citizen and municipal participation. As a result, such “citizen energy companies” are privileged in the tender for subsidised electricity (§ 36g(3) EEG 2021) and EU law ensures that locally anchored energy producers have non-discriminatory access to the energy markets ([...]). With the Citizen and Municipal Participation Act, residents and municipalities are, for the first time, statutorily guaranteed the right to participate in local wind energy projects by the corresponding obligations of project developers, even where the municipality itself has not initiated any such projects. The law can thus serve as a template for similar legislation that guarantees residents and municipalities the right to participate in the development of wind energy, thereby improving levels of acceptance. [...]

In the case of measures of a pilot project nature, it must therefore be taken into account, when assessing the significance to the common good, that such measures can encourage similar measures in other Länder or municipalities. Consequently, in assessing whether it is appropriate in the constitutional sense to require project developers to ensure participation of affected residents and municipalities in special project companies as under the Citizen and Municipal Participation Act, the use of similar measures in other Länder to improve the acceptance of new wind turbines and promote the expansion of wind energy must be taken into account.

In light of the foregoing, the challenged provisions have considerable significance for the protection of both the climate and fundamental rights from the effects of climate change.

(2) Within the context of securing the electricity supply, which is likewise an interest of the common good, the significance of an individual measure aimed at renewable energy development is directly related to the amount of electricity that can thereby be generated. The more electricity that is domestically generated from renewable sources, replacing electricity generated using fossil fuels and increasing energy self-sufficiency, the more secure the electricity supply becomes (see para. 107 f., 123 above).

In this respect, not least due to its pilot project nature, it cannot be argued that the promotion of onshore wind energy, achieved through project developers’ obligation to involve those affected in the economic value generated by local wind energy production in order to increase acceptance, is only of minor importance for securing the electricity supply.

dd) The severity of the interference on occupational freedom resulting from the obligation imposed on project developers to found a project company and offer economic participation to eligible residents and municipalities is not disproportionate to the importance of the interests of the common good pursued. However, the obligation imposed on project developers who offer eligible municipalities the payment of a compensation levy to provide the information required by § 10(6) second sentence BüGembeteilG is not appropriate in the constitutional sense.

(1) In the assessment of proportionality in the strict sense, the obligation of project developers to set up a project company and to involve affected residents and municipalities as such is appropriate.

It is reasonable (zumutbar ) to require project developers to set up and operate wind farms through project companies that are founded and structured in a specific way to exclude project-related risks (§ 3(1) BüGembeteilG); this obligation applies in cases in which the competent authority does not permit an exception under § 1(3) BüGembeteilG for other forms of participation, in particular, the financial participation of municipalities according to § 6 EEG 2021 (previously § 36k EEG 2021) or in which those eligible to purchase do not accept the offer of an alternative financial participation, such as through a reduced local electricity tariff (§ 10(1) BüGembeteilG). It is also not disproportionate to the pursued interests of the common good that eligible residents and municipalities can participate economically in the earnings of the project company in various ways: through interest on a savings product (§ 12 BüGembeteilG); the payment of a compensation levy (§ 11 BüGembeteilG); or, if an eligible municipality so decides under § 10(7) second sentence BüGembeteilG, purchase of project company shares by the municipality.

It is true that these obligations significantly interfere with the freedom of organisation protected under Art. 12(1) GG. This applies all the more when project developers – if the municipality refuses to agree to the payment of a levy – must accept this municipality as a shareholder in the project company against their will and structure the company in such a way that the liability of the municipality is limited to the amount of capital invested and the requirements applicable to municipal shareholding are met (§ 3(2) and (3) BüGembeteilG). On the other hand, according to the tenable assessment of the legislator (cf. Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 216 with further references), it is particularly conducive for the public acceptance of new wind farms when they are operated by a locally anchored project company under the joint responsibility of residents and municipalities (see para. 112 ff. above). This assessment is not affected by the new option of financial participation by local communities that has been recently made possible through § 6 EEG 2021. This is confirmed by the fact that when it comes to tendering for wind farms, only “citizen energy companies” that have diversified ownership and diffuse voting rights are privileged (§ 36g(3) EEG 2021 […]), and not plant operators whose local participation is limited to payments to the municipality based on the amount of electricity generated on site (§ 6(2) EEG 2021). In addition, in view of this new option for financial participation via the opening clause of § 36g(5) EEG 2021, the federal legislator has authorised the Länder to enact comprehensive legislation on public participation to increase public acceptance for the construction of new wind farms (see para. 95 above). Even though the option of shareholding participation by a municipality against the will of a project developer restricts the freedom of organisation more severely than the payment of an earnings-based levy, this restriction is justified, because it can be assumed that it is particularly conducive to local acceptance if the municipality, despite the associated administrative expenses, decides to acquire shares in the project company.

In assessing whether the obligations to ensure public participation are appropriate under constitutional law, however, it is important that the legislator did not give one-sided priority to improving public acceptance over the conflicting interests of project developers. For example, the obligation to offer shares in the project company for purchase is limited to 20% ([...]), which would not result in a blocking minority; thus, purchasers can neither dictate the business operations of the project company nor block shareholder decisions ([...]). In addition, according to § 10(5) and (7) first sentence BüGembeteilG, project developers are free to offer eligible residents a savings product in lieu of shares in the project company in order to avoid the burdens resulting from having share ownership distributed across a large number of residents ([…]). That the measure also benefits private stakeholder interests in the wind energy industry mitigates, to some extent, the reduction in returns that results from enabling local residents and municipalities to participate in the project company’s dividends and predicted earnings. The legislative aim of improving public acceptance and thereby promoting the increased production of onshore wind energy furthers the overall interest of wind energy industry to have access to more suitable sites for wind energy generation.

Given the special importance of wind energy for climate protection and for securing the electricity supply, as well as the pilot project nature of the obligation to offer participation to affected residents and municipalities as a means of improving public acceptance (see para. 112 ff. above) – as a supplement to “citizen wind farms” that are created on their own initiative – the contested provisions are indeed appropriate under the principle of proportionality.

(2) This is not the case, however, with the obligation to provide information under § 10(6) second sentence BüGembeteilG.

Pursuant to § 10(6) first sentence BüGembeteilG, project developers who wish to pay eligible municipalities a compensation levy instead of offering shares in the project company for purchase must make a binding declaration of this intention to the municipalities immediately after receiving approval permit under immission control law. This declaration, pursuant to § 10(6) second sentence in connection with § 4(3) second, third and fourth sentence, § 7(2) first sentence nos. 3, 7, 8 and 13 BüGembeteilG, must include detailed information, including the total investment amount, the sum of all company contributions and a summary of the company’s earnings value based on the project developer’s own preliminary calculation.

In order to fulfil this obligation, the procedure for founding the project company in the form prescribed by § 3 BüGembeteilG must be completed or at least nearing completion. In addition, determining the probable economic metrics of the project company comes at some expense, even when it is only a preliminary calculation; all the more so since the calculation of the share price under § 6 BüGembeteilG must be based not only on an earnings value, but primarily on a capital value determination. However, a significant part of these expenses and preparations will be useless if the eligible municipalities agree to the offer to pay a compensation levy in accordance with § 10(7) second sentence BüGembeteilG. In particular, the obligation under § 3(2) and (3) BüGembeteilG to design the project company in such a way that the municipal requirements for shareholding are met and that the municipality is only liable up to the amount of its investment would no longer apply in that scenario. This may prompt changes in the articles of association or the bylaws of the project company, resulting in additional expenses, and can lead to recalculation of the earnings value, which is necessary for the assessment of the compensation levy (§ 11(2) BüGembeteilG) and for the interest on the savings product (§ 12(4) BüGembeteilG).

The burdens resulting from the obligation to provide information under § 10(6) second sentence BüGembeteilG are unreasonable for those project developers who decide against offering municipalities the opportunity to purchase shares and instead for the alternative of paying a compensation levy. They are disproportionate to the legitimate aim of the information requirements, which is to provide eligible communities a comprehensive basis for making the decision between purchasing shares in the project company and the payment of a compensation levy. During the legislative process, it was assumed that municipalities would typically opt for the levy because they would be wary of the administrative burdens associated with shareholding. […] It can therefore be assumed that the municipalities’ choice among alternatives only rarely depends on comprehensive information about the prerequisites and consequences of acquiring shares in a specific project company. Constitutional law does not rule out a legislative design that gives municipalities the final say in whether to accept the alternative offer of payment of a levy (see para. 129 f., 153 f. above). However, in order to avoid burdens that ultimately serve no purpose, it is necessary to require that municipalities make a binding decision at an earlier stage of the process – possibly based on only preliminary information as to the structure of the project company and the prospects for returns – for example, in the context of an expression of interest. This applies all the more so as, due to the targeted focus of the project company, there should not be any serious risk of loss given that the project company serves exclusively to generate wind energy and is not allowed to own or have other participation in other companies (§ 3(1) BüGembeteilG) ([...]).

(3) On the other hand, the obligation to provide eligible municipalities with the same information “about the project” pursuant to § 4(3) second, third and fourth sentence in conjunction with § 7(2) BüGembeteilG is compatible with Art 12(1) GG. The obligation to provide information is creates reasonable burdens for those project developers who decide to only offer the purchase of shares in the project company in accordance with § 4 BüGembeteilG instead of opting to offer the payment of a compensation levy to eligible municipalities in accordance with § 10(5) and (6) BüGembeteilG. In contrast to the situation where an offer to pay a levy pursuant to § 10(5) and (6) BüGembeteilG is made, the expenses and preparations associated with complying with the information requirements would not become useless in that scenario. The obligation to provide information pursuant to § 4(3) second, third and fourth sentence in conjunction with § 7(2) first sentence BüGembeteilG must therefore be interpreted in accordance with the Basic Law in such a way that it only applies when a project developer decides to offer eligible municipalities the opportunity to purchase shares in the project company without the alternative of choosing a compensation levy.

II.

The challenged provisions do not interfere with Art. 14(1) GG.

Art. 12(1) supersedes Art. 14(1) GG as the applicable fundamental right where the interference by a public authority affects the freedom of individual earning capacity and performance rather than the possession and use of existing assets (cf. BVerfGE 84, 133 <157>; 85, 360 <383>).

This is the case here. The complainant seeks to set up and operate wind turbines in Mecklenburg-Western Pomerania without having to set up a project company and without having to involve local residents and municipalities either as shareholders or in some other type of financial participation. Art 14 GG is not the applicable standard even with regard to project developers’ obligation to offer, against their will, shares in the project company for purchase to municipalities if the municipalities refuse to consent to the alternative offer to pay a levy (§ 10(7) second sentence BüGembeteilG). There is no expropriation within the meaning of Art. 14(3) GG, because the shares of individual project developers in project companies are not deliberately seized by the state for the purposes of fulfilling specific public tasks (cf. BVerfGE 101, 239 <259>; 104, 1 <10 f.>; on the protection of share ownership under property law, BVerfGE 50, 290 <341 ff.>; 132, 99 <119 para. 52>).

III.

The unequal treatment of project developers obliged to pay a levy under § 11 BüGembeteilG as compared to other taxpayers (cf. BVerfGE 149, 222 <254 para. 65>) is justified under constitutional law.

1. Art. 3(1) GG requires that all people be treated equally before the law. The resulting requirement to treat equally that which is essentially alike and to treat matters that are essentially unlike differently applies to unequal burdens and unequal privileges. At the same time, Art. 3(1) GG does not entirely prevent the legislator from differentiating. Differentiations, however, must always be justified by objective reasons commensurate with the aim and the extent of the unequal treatment. The standard of constitutional review applicable here is a fluid one that is based on the principle of proportionality. Its limits cannot be determined in the abstract but rather on the basis of the particular subject matter and areas addressed in the legislation in question (cf. BVerfGE 138, 136 <180 para. 121>; 148, 147 <183 f. para. 94> with further references; established case-law). The general guarantee of the right to equality gives rise to varying limits on the legislator depending on the matter addressed and on the criteria for differentiation; these range from the mere prohibition of arbitrariness to strict proportionality requirements. Stricter limits on the legislator may arise from the freedoms affected in a given case. Moreover, the less the individual can influence the criteria on which the legislative differentiation is based, or the more such criteria resemble those listed in Art. 3(3) GG, the stricter the constitutional requirements (cf. BVerfGE 138, 136 <180 f. para. 122>; Federal Constitutional Court, Order of the First Senate of 8 July 2021 - 1 BvR 2237/14 inter alia -, para. 111; established case-law).

2. Based upon the foregoing, the disadvantages imposed on project developers under § 11 BüGembeteilG are not objectionable under constitutional law. It need not be determined in the present case whether this disadvantage must be measured against the requirements of strict proportionality, as these requirements are met in any case. The levy directly serves to promote the development of onshore wind energy in the interest of the common good by improving public acceptance (see para. 76 above). This is also the reason for charging project developers, as owners of the project companies for the generation of wind energy, with the levy. By prescribing the purpose for which the funds from the levy may be used, the legislation aims to provide residents with tangible returns demonstrating that wind energy can enhance the quality of life in the local area, rather than merely having a negative impact on the landscape. This is intended to increase access to suitable sites for generating wind energy with the aim of reducing CO2 emissions in the interest of climate protection, protecting fundamental rights from the harmful effects of climate change and securing the electricity supply (see para. 77 above). As such, the levy is suitable, necessary and appropriate for achieving these objectives of the common good (see para. 116, 117 ff. above). Furthermore, the burden associated with paying the levy is not disproportionate to the significance of those objectives, especially given that project developers have the discretion to choose whether to offer local municipalities the payment of a levy instead of the option of purchasing shares in the project company (§ 10(6) first sentence and (7) first sentence BüGembeteilG).

D.

In conclusion, the obligation of project developers under § 10(6) second sentence BüGembeteilG to provide comprehensive information about the structure of the project company and the economic indicators underpinning an acquisition of shares in the same to eligible municipalities when an offer to pay a compensation levy is made violates the complainant’s fundamental rights under Art. 12(1) GG. This provision is therefore void pursuant to § 95(3) first sentence BVerfGG. For the rest, the contested provisions remain valid and applicable.

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