While the development of the first four offshore wind projects awarded by the French state back in 2012 to the consortia EDF Energies Nouvelles / DONG Energy / Alstom (3 projects) and Areva / Iberdrola (1 project) is progressing and operators are getting close to final investment decisions, it was crucial for developers to obtain more legal certainty concerning their projects. Indeed, the development of renewable projects in France in general has notably been hindered by lengthy court proceedings and the large number of administrative authorisations that can be challenged through separate court proceedings. For example, in the current system, final investment decisions could easily be delayed several months because of court proceedings and, in some cases, several years. Moreover, the legal framework was not always adapted for these kind of projects. Given the significant amount of investments required by offshore projects, such uncertainties and inconsistencies were seen as the major obstacle to securing the financing. A new decree has been enacted on 8 January 2016 with a view to overcome these problems (the “Decree”).
The main features of the Decree are as follows:
-
Single court: All claims against the various authorisations granted in relation to offshore renewable energy generation and transportation facilities (including the facilities built in the harbours in connection with the construction, storage and the pre-assembly of these facilities) shall be assessed by one court only – the administrative court of appeal of Nantes (“Nantes ACA”). In the current system, the competent court is the court that has jurisdiction over the area where the project is located. Centralizing these claims with a single specialized court should bring more uniformity and avoid different courts rendering conflicting rulings in similar matters.
-
Two tiers of proceedings system: The Decree replaces, for authorisations granted in relation to offshore renewable energy generation and transportation, the system of three tiers of proceedings by a system of two tiers of proceedings, where the Nantes ACA will be the first and last instance court for claims against such authorisations and its rulings may be subject to appeal before the supreme administrative court, the Conseil d’Etat. In the new system, the first instance decision is no longer rendered by the administrative court of first instance, subject to appeal, but is taken directly by an appeal court, the Nantes ACA.
-
Time limit for delivering decisions: The Nantes ACA shall render a decision within 12 months of the submission of the claim. Although there is no sanction for failing to comply with this time limit, imposing the limit is likely to incite the court to produce speedier decisions. Indeed, the career advancement of judges is linked to their ability to adhere to the procedural requirements. In any case, the introduction of this time limit coupled with the two tiers proceedings system should significantly shorten the period of legal uncertainty for these authorisations. Indeed, the average time needed to obtain a final court decision in the previous three tiers of proceedings system was 4 and a half years. It is expected that the new system will cut this delay in half (assuming that the decision from Nantes ACA is appealed).
-
Extension of the duration of concession agreements: The maximum duration of the concession agreements for the occupancy of the maritime public domain is currently 30 years. This duration is not suitable for renewable projects, which are amortized over a long period of time. The Decree establishes 40 years as the maximum duration of the concessions. (One could have expected the maximum duration to be 50 years to enhance the attractiveness of the French regulatory framework.)
