The draft of the EAG contains numerous provisions relevant to state aid law and must therefore be approved by the European Commission before it can enter into force. The draft may be substantially amended before it will be submitted for parliamentary vote.
Cross-technology tenders for new plant capacities (i.e. all or several technologies are tendered together) are currently not foreseen in the EAG draft. The technology-specific tenders are limited to photovoltaics and biomass. Wind and hydropower as well as small-scale biomass plants and biogas are to be subsidised by means of an administrative market premium.
There are also technology-specific differences in the so-called "applicable value", i.e. the value that is set in relation to the respective market value or market price in order to calculate the market premium (reference market price for biomass and biogas vs. reference market value for other technologies).
If the reference market price or reference market value is greater than the applicable value, whether the plant operator is obliged to partially repay the market premium depends on the size of the plant, the type of plant and the actual extent of the surplus amount.
Interesting questions will also result from the process described in the EAG draft for the administrative determination of the "applicable value". Although the EAG contains general principles for determining the applicable value, these by their very nature provide a margin of discretion, which is evident from the fact that the competent minister can obtain "one or more" expert opinions to determine the applicable value. The same applies to the setting of maximum prices for competitive tendering procedures.
The promotion of renewable gas (e.g. hydrogen) has not been included in the draft law and, according to the legislative materials, will be part of a later legislative package.
In contrast to other countries, all first-instance project permits must be obtained in order to participate in the tendering procedure. Although this increases the probability of project implementation in the event of an award, it could also make it more difficult to find financing for the project because it is not possible to predict whether, when and at what price the project will be awarded and thus receive funding.
The applicable value discount of 30 % for ground-mounted photovoltaics could provide an advantage for roof-mounted PV systems. This is in line with the general objective of the EAG: "one million roofs".
"In view of the high level of funding, the EAG leaves no doubt that the expansion of renewable energies is one of the main objectives for the next ten years."
In addition, the reduced network tariff (local tariff) and the reduction of the Renewable Energy Subsidy Fee for Renewable Energy Communities raise questions regarding the principle of cost-causation-based tariffing. Other market participants could be required to pay for the planned reductions.
The EAG is scheduled to come into force in the first quarter of 2021. The implementation of tenders, specific tender dates and maximum prices must still be determined by the competent ministry.