Offshore Wind Worldwide 2022 edition - Flipbook - Page 75
Offshore Wind Worldwide 2022
Besides, the producer/operator’s tasks have
also been mitigated as it is no more in charge
of the organisation of the participation of the
public to the OWF projects.26 The Minister in
charge of energy is indeed responsible for
requesting the intervention of the French
national public debate commission before
the public tender. This commission
determines the modalities of the
participation of the public to the decision
process of the public tender. The public is
consulted, among other things, on the
location of the project. The consultation of
the public upstream of the tender may
reduce the risk of challenge of the projects
before the courts.
Finally, the administration can repeal or
remove a decision creating rights for its
beneficiary – such as the abovementioned
authorisations – within four months after
their award if it appears that the decision to
award such authorisations was illegal.
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In such a case, the authorisation will be final
and binding only once all actions will be
served – i.e., in the past, after that the first
instance’s judge, the judge of appeal and the
highest court have made decisions and, now,
only after the highest court (the Council of
State) has ruled.27 After having given the
competence to the administrative court of
appeal of Nantes in first instance, the
legislator has indeed gone further in 2020 by
adding a new provision stating that the
Council of State will directly rule in the first
and last instance for actions against
decisions regarding offshore wind farms,
their related works, the works of the related
public electricity networks and some related
port infrastructures.28 The detailed list of the
concerned decisions is fixed by decree.
In practice, the most important risk is that of
a challenge of one or several authorisations
by environmental associations. The
authorisations can, in principle, be
challenged before the administrative judge
within two months (or more if an
administrative appeal has been done) of the
notification of the decision to its beneficiary.
26 Article L.121-8-1 of the Environmental Code.
27 Decree n°2021-282 dated 12 March 2021 which created article R.311-1-1 in the Code of administrative justice.
28 Article L. 311-13 of the Code of administrative justice created by law n°2020-1525 dated 7 December 2020.