A legal opinion has declared Section 2 of the Renewable Energy Sources Act (EEG) in its 2023 version unconstitutional because the then Minister of Economic Affairs, Habeck, effectively mandated that courts prioritize wind and solar power in cases involving fundamental rights conflicts with the “wind power turbocharger.” This is intended to replace an open, case-by-case review. The expert sees this as an infringement on a constitutionally enshrined principle: judges must weigh competing rights against each other, rather than implementing a politically predetermined outcome. (welt: 10.02.26)
Why the priority mechanism is allegedly unconstitutional
Legal scholar Volker Boehme-Neßler of the Carl von Ossietzky University of Oldenburg reaches this conclusion in his still-unpublished expert opinion. The client is “Vernunftkraft Niedersachsen,” an association that critically assesses the expansion of wind power. The crucial factor is the structure of the legal text. When citizens and project developers invoke fundamental rights, the Basic Law requires an individual assessment with a balancing of interests in the specific case.
In administrative law, this balancing of interests is a core instrument. It ensures that courts properly weigh property rights, freedom of occupation, health, nature conservation, and the common good. Boehme-Neßler warns against a shift in roles. Laws may set frameworks, but they must not predetermine judicial decisions.
“Renewable energies always take precedence”
With the political slogan “wind power turbo,” the Federal Ministry for Economic Affairs and Energy, under the leadership of Robert Habeck, amended the Renewable Energy Sources Act (EEG) in 2023. Since then, Section 2 states that the construction and operation of renewable energy plants are “in the overriding public interest” and serve “public health and safety.” This includes clear instructions for courts. In “balancing of competing interests,” renewable energies are to be considered a priority.
The expert succinctly summarizes the effect: “The outcome is predetermined. Renewable energies always take precedence.” This means that a case-by-case assessment with a fixed outcome is “effectively no longer a case-by-case assessment.” This very automatic process is the core of the criticism. From the expert’s perspective, it tips the balance to the detriment of individual rights.
Property, freedom of occupation, and municipal rights in conflict
In legal proceedings against wind or solar projects, residents frequently invoke Article 14 of the Basic Law (Germany’s constitution). The issues at stake are property, depreciation of value, and usage rights. Businesses can also be affected, such as those in agriculture, forestry, or tourism. Therefore, Article 12 of the Basic Law, concerning freedom of occupation, regularly plays a role.
Furthermore, there are questions of health and municipal planning authority. Municipalities see their right to self-government infringed upon when projects are pushed through against local objectives. This is precisely why the case-by-case assessment carries such weight. If the legislature consistently tips the scales in one direction, this, according to the expert opinion, is unconstitutional.
Climate Argument Insufficient, According to Expert Opinion
Proponents often refer to Article 20a of the Basic Law and climate protection as a national objective. From this, they conclude that the expansion of renewable energies must take precedence in conflicts. Boehme-Neßler disagrees and demands a broader sustainability perspective. Article 20a requires a “holistic understanding of sustainability that encompasses climate, species, soil, and landscape protection equally.” An absolute priority that systematically subordinates other environmental concerns, therefore, violates the principle of sustainability, according to his interpretation.
The Federal Ministry for Economic Affairs and Energy, on the other hand, sees no constitutional problems. A spokesperson stated that the legislature has “generally broad discretion” to weigh public interests, and that there are “no constitutional concerns.” Nevertheless, members of Vernunftkraft Niedersachsen and other opponents are reportedly considering whether to initiate a constitutional review based on the expert opinion. Then a court would have to decide whether the “wind power turbo” is merely a politically harsh formulation or actually unconstitutional.