Offshore Wind Worldwide 2022 edition - Flipbook - Page 82
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the grid in a certain timeframe, failing which
RTE shall pay a penalty to the producer. The
risk of grid malfunction during the operation
is also mitigated through an extension of the
duration of the PPA for a duration equivalent
to the unavailability period.
For the third public tender and the upcoming
ones, the producer is better protected as RTE
has to pay compensation in case of damage
or dysfunction of offshore production
installations’ connection facilities lasting
more than a fixed number of days
(depending on the moment of the
disruption).47 As in case of delay, the
producer shall receive from RTE a monthly
prepayment corresponding to 80% of its
financial loss, depending on the number of
days during which the connection facilities
were not available, but still supports a
deductible amount of 10%. However, the
modalities of the compensation stated in
such case, if any, by the concerned tender
specifications shall prevail on these general
provisions.
E. Onshore grid congestions,
prioritisation of renewable energy
resources and compensation
mechanisms
Such risk can theoretically materialise, but
the principles set out in clause V.D. above in
case of disruptions of the GCS, which allocate
such risks to RTE (save for the 10% deductible
on losses mentioned above), shall apply.
47 Articles L.342-7-1 and D.342-4-13 of the Energy Code.
Hogan Lovells
France
VI. Real estate
A. 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 clause III
above).
On the contrary, rights over onshore and
nearshore land are given to RTE. Therefore,
RTE itself manages the securing of these
rights.
B. 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 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.