Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 102
102
France
6. REAL ESTATE
7. OTHER
6.1 Rights over land to be secured
As mentioned above, the producer/operator’s rights over offshore land are secured
through a lease of the seabed concluded
with the State, allowing it to use the maritime public domain (see section 3 above).
When the first tender procedure was
launched in 2011, the French regulatory
framework and OWF policy was clearly unfit
for a successful implementation of OWF. In
particular:
On the contrary, rights over onshore and nearshore land are given to RTE. Therefore, RTE
itself manages the securing of these rights.
6.2. Costs and risk of legal challenges
There are high risks that the rights of use
of the public domain are challenged before
the courts. The authorisation to use the
maritime public domain is indeed one of the
authorisations required for the projects and
there is a regular habit for environmental associations to challenge such authorisations,
so the risks of delays due to the occurrence
of this scenario are substantial (even though
recent legislative and case law evolutions
have limited the impact and likelihood of the
occurrence of such risks).
Therefore, in practice, projects do not
achieve financial close until all outstanding
claims/ultra vires challenges are completely
and finally settled.
(a) insufficient preliminary studies had been
performed by the public sector on the
concerned projects, leaving them to be
done by the successful bidder after the
bid award; and
(b) the permitting process had not been sufficiently adapted to match the specifics
of OWF projects and imposed upon
the winning bidder the need to obtain a
number of various administrative authorisations, some of them requiring several
years of processing, in particular insofar
as most of them indirectly required the
prior completion of preliminary technical
and impact studies or consultations of
the public before their award. These multiple authorisations have in turn been
challenged by numerous environmental
associations before several distinct
courts. Therefore, a wide and sparse judicial fight took place for about 10 years
and completely crippled the projects.
This explains to a large extent why until
very recently (i.e., November 2022), no
French OWF (except one small floating
wind installation) had been commissioned, and why only one OWF is currently
operated at a commercial scale at the
day of the printing of this document.
