Almost every major project today reaches the limits of local acceptance. In order to reduce resistance, new legal mechanisms of financial participation are becoming tangible

The mere fulfilment of complicated procedures is no longer sufficient for the success of a project in reality. Ultimately, the community population must always be convinced. Practice shows how fragile this interaction is: even in very late project stages, projects repeatedly fail due to politically motivated referendums.

Curiously, this applies even if the Constitutional Court subsequently annuls such consultations as illegal. The debates about wind power in Carinthia or the S-LINK local transport project in Salzburg are prominent examples of how largely planned and partly already approved projects were "sunk" by a combination of political calculation and cleverly launched surveys.

Conversely, implementation is often successful when municipalities and project operators work together at an early stage to develop and regulate solutions – for example, through so-called municipal contracts, which provide for compensation payments for burdens.

Variants of contracts

Municipal contracts have a long tradition, especially in wind power; however, they have so far had the disadvantage that in the past they were only considered permissible if they were "ancillary regulations" to real estate transactions, or could be concluded as so-called regional planning contracts. This is because, according to the prevailing view, "contracts close to intervention" require an explicit legal basis.

This means that such contracts may not (as with all contracts between private parties) regulate everything that is not prohibited, but only that which has been expressly declared permissible in legal provisions. And here there are often obstructive shackles in regional planning contracts. This is due to the fact that, until now, the amendment of a zoning plan could not be too closely linked to contractual services (so-called "prohibition of coupling"), but at the same time the services and their use had to have a factual connection to the project.

Until now, it has therefore been extremely sensitive to impossible from a legal point of view for a wind power operator to make financial resources available to a municipality, which could then use it completely freely – for example, for the construction of new municipal housing (social housing).

Participation in the energy transition

The new draft law on the Renewable Expansion Acceleration Act (EABG) brings movement to the matter. In the future, municipalities are to be given a legally secured opportunity to conclude financial agreements with operators of wind power and photovoltaic systems for an "energy transition participation". The money can be used flexibly, for example for infrastructure, housing or social projects.

However, the current draft law is not yet without pitfalls. A closer look at the text shows that politicians want a liberating blow, but are still too hesitant in implementing it. For example, the pure text of the law so far explicitly speaks only of wind turbines and photovoltaic systems. Only in the accompanying explanations is there more general talk of an "energy transition participation for energy plants".

From our point of view, these broad considerations (to be made) should also be explicitly incorporated into the text of the law in the explanatory notes. The meaningful creation of such an instrument should also extend to other current types of projects, such as energy storage in particular, but also to particularly energy-intensive projects that go beyond the production of renewable energy (e.g. data centres).

Improvements needed

However, the legislator's welcome approach is still deficient in other respects as well: First of all, it seems to be in need of improvement that the list of possible agreement contents is exhaustive and not merely exemplary (unlike, for example, most state legal bases for regional planning contracts). According to the text of the law, only an agreement can be regulated either on the dedication and use of land in accordance with the intended use or on the provision of land owned by the municipality. The latter, however, would not require a legal basis at all, and the former, on the other hand, to conclude contracts directly via a "dedication", is on extremely thin ice under constitutional law.

The planned push for a financial participation of the municipalities is a very sensible approach. However, in order for this liberating blow to really work in practice, the legislator must significantly improve the text, make it more flexible and extend it to other types of projects. Otherwise, the momentum for the energy transition threatens to fizzle out again due to legal uncertainties. (Michael Hecht, Josef Peer, 4.5.2026)