Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 93
Offshore Wind Worldwide 2023
French Republic’s sovereignty or jurisdiction. 25
Thirdly, the producer/operator has to obtain
an environmental authorisation, which
is known as the "unique environmental
authorisation", as it actually gathers in
one single authorisation several licences
and authorisations pertaining to several
distinct legislations and regulations. 26 This
authorisation is also granted by the Prefect.
According to a law of 2018 which eases the
feasibility of the OWF projects27, all or part of
the impact study can be undertaken by the
Minister in charge of energy. Besides, under
a very recent law of 2023, it is the State’s
responsibility to carry out the technical
and environmental studies required for the
preparation of projects by candidates and
for conducting the impact study, and these
studies may be initiated in advance with a
view to launching a competitive tendering
procedure. 28 This will help the candidates
to better adjust their offers and pricing to
the reality of the project and to allow all
candidates to submit bids based on similar
information. Besides, where applicable, the
unique environmental authorisation now
stands in lieu of the unique authorisation
and approval set out respectively in articles
20 and 28 of aforementioned ordinance
93
n°2016-1687, and of the approval order for
the concession agreement for the use of the
maritime public domain located outside the
administrative borders of ports. 29
According to the aforementioned law
n°2018-727, these three authorisations can
define flexible/variable features for the
concerned projects, as regards the number
of wind turbines concerned, their size and
installed capacity, or their organisation in
the dedicated area. 30 Thus, the projects
can be modified after the delivery of the
authorisations without requesting any new
authorisation, for example to adjust them to
new technologies.
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. 31 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
25 Articles 12 and 20 of the ordinance. The maritime prefect is entitled to deliver this authorisation (decree n°2013-611 dated 10 July 2013 regarding
regulations applicable to artificial islands, installations, structures and their associated facilities on the continental shelf and in the EEZ and ecological
protection zone, and to submarine cables and pipelines, as modified by decree n°2021-1942 dated 31 December 2021).
26 Articles 181-1 and following, and R.181-54-1 and following of the Environment Code.
27 Law n°2018-727 dated 10 August 2018 for a State serving a society of trust and decree n°2018-1204 dated 21 December 2018 relating to authorisations procedures of offshore renewable energy installations.
28 New article L.311-10-3 of the Energy Code, added by law n°2023-175 of 10 March 2023 on the acceleration of renewable energy production.
29 Article L.181-3 of the Environmental Code as amended by the aforementioned law n°2023-175 of 10 March 2023.
30 Article L.181-28-1 of the Environmental Code. This mechanism is called "envelope permit" ("permis enveloppe" in French).
31 Article L. 121-8-1 of the Environmental Code.
