Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 110
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Germany
(see 2.2(c) below) and the Federal Grid
Agency (Bundesnetzagentur – "BNetzA")
which is an authority attributed to the
Federal Ministry for Economic Affairs
and Climate Action and which is inter alia
responsible for tender procedures.
(b) State level
If installed within the territorial sea, the
construction and operation (see (iii)
above) of OWTGs (and other facilities)
is subject to the permit issued by the
competent state authorities based on
the permitting regime of the (general)
Federal Immission Control Act, not the
Offshore Wind Energy Act.
Within the territorial sea/coastal waters
and internal waters, in general, also laws
and other legal instruments of the relevant state apply and might be relevant.
2.2 Scheme in relation to exclusivity to
construct, own, and operate a project,
as well as to receive feed-in revenues
(a) Exclusivity
Under the German regulatory regime
exclusivity to construct, operate and
(potentially) receive subsidies for
OWTGs is given to the successful bidder
in the public tender procedure.
The bidder in the mandatory tender
process conducted under the Offshore
Wind Energy Act who receives the award
for a specific offshore wind development
site has the exclusive right to take part in
the procedure for the planning approval
(Planfeststellungsbeschluss) which is the
type of permit required for the cons-
truction and operation of OWTGs. In
addition, the successful bidder receives
the entitlement to connect the OWTGs
to the relevant grid connection system
and use its capacity.
The valid award is also a pre-condition
for the entitlement to receive public
benefits under sec. 19 of the Renewable
Energies Act (i.e., a market premium or
feed-in revenues), in case such apply to
the planned OWTGs (see below).
Thus, only the bidder receiving the award
will be able to realise its project on a
specific site.
(b) Different tender procedures
depending on pre-investigation
The 2023 revision of the Offshore Wind
Energy Act has introduced material changes to the tender regime for offshore
wind sites.
So far, a "central" model applied under
which the German federal state was
responsible not only for the spatial planning but also for the pre-examination of
possible installation sites. This model
has been introduced in 2017 in order to
align and accelerate the development of
grid connections systems and OWTGs.
Considering the new offshore wind
development targets, the public resources are not sufficient to adequately
respond to the huge demand for suitable
offshore sites and related site investigations. Therefore, tender procedures have
been (re-)introduced for offshore sites
