The wind industry is particularly subject to opponents systematically raising acceptability issues related to the construction and operation of wind farms. As a matter of fact, a significant number of onshore wind farms have (or have had) to experience legal challenges brought against the granting of the relevant permits. As of the current time, all the authorisations granted to Enertrag4 and amongst the very few permits granted to the wind farm falling within the scope of the rounds 1 and 2 calls for tenders, the award decisions of the successful bidder, and the licenses to operate have been challenged. This situation underscores the necessity of ensuring an efficient settlement process.
The Decree provides for a specific litigation regime applicable to MRE authorisation intended to limit the number of recourses and the duration of the proceedings. These changes are welcome to the offshore wind industry as they limit the impact of litigation on the schedule for the development of a project and on the related expenses to be incurred.
These innovations became effective on 1 February 2016, therefore, any claim introduced from that date will benefit from the new breakthroughs.
Designation of a single court to rule on MRE authorizations related disputes
The most obvious innovation of the Decree is certainly the designation of the administrative court of appeal of Nantes as the exclusive jurisdiction empowered to settle legal disputes brought against authorizations required to undertake MRE projects5.
The Decree lists not less than fourteen authorizations which may be required to develop a MRE project. Among them, we can point out the power generation authorization6, the water law authorization, the concession to occupy the public domain, the award decision of the successful bidder, and building permits for connection facilities7.
Having a dedicated court appears to be an appropriate way to improve the litigation proceeding. The judges of the administrative court of appeal of Nantes should achieve an in-depth expertise in this kind of litigation, which is likely to accelerate the settlement of such disputes. However, attention must be paid to the risk of clogging up this jurisdiction resulting from an increasing number of litigations brought before the administrative court of Nantes, following the development of MRE projects and more specifically offshore wind farms.
Removal of one degree of jurisdiction
Even more significant and impactful for the MRE industry, the Decree specifies that the administrative court of appeal of Nantes will decide at first and last instance8. The Decree removes one degree of jurisdiction. MRE is the first industry to benefit from such kind of exclusivity of jurisdiction and one degree of jurisdiction.
With this breakthrough, the parties in a MRE authorization dispute will not be entitled to appeal the ruling of the administrative court of appeal, except by filing a supreme court appeal before the “Conseil d’Etat”, which recourse can only be introduced to challenge the decision strictly as to matters of law (i.e, facts are no longer subject to discussion).
The renewable industry has welcomed this modification, as opponents to renewable energy projects typically use all legal recourse available in order to delay the realisation of the projects.
It should however be noted that the change effected by the Decree could on occasion present a drawback for the MRE industry as developers will be prevented from challenging any ruling canceling an authorisation and will have to apply for a new one.
This innovation should nevertheless reduce the time needed to resolve litigation issues, which have been forecasted by developers of MRE projects in their business plan schedules.
New tools to master the length of litigation
In order to shorten the litigation procedure, the Decree provides two interesting developments.
First development: a one-year ruling
Judges are required to issue their ruling within one year from the date on which a dispute is brought before them. Such precision is intended to provide better visibility and allow developers to maintain a precise development schedule even in case of litigation. The Decree remains silent as to any sanction or consequences in the event that the deadline is not met. Therefore, the one-year time frame must be considered as merely indicative.
Second development: freezing the arguments to be raised by the parties in proceedings
The Decree extends to MRE disputes a litigation rule presently applicable to building permits9. A party involved in a proceeding concerning MRE authorizations will be allowed to ask the judge to freeze the ability of any party to add new arguments (nouveau moyen) to the issues being disputed. Usually, it is the judge’s remit to decide spontaneously when it is relevant to stop the exchanges of arguments between the parties. With this new development, parties will have an interesting means of accelerating the proceeding by arguing that the case is ready to be dealt with. However, the judge has no obligation to accept the request.
This improvement may avoid irrelevant extension of time of the pending proceeding and is likely to halve the time needed to resolve this kind of dispute.
A new admissibility criteria of the recourse
With the purpose of striking a balance between securing the MRE authorization issued and respecting third-party rights, the Decree provides a new obligation to be borne by anyone intending to challenge the lawfulness of MRE authorisations. Such obligation already exists with respect to building permits and unique authorisation10. The claimant will henceforth be required to notify the issuing entity of the MRE authorisation and the MRE authorisation holder of the introduction of proceedings. Such notification must be made by registered letter with acknowledgement of receipt within fifteen days following the introduction of the challenge by the claimant.
Non-compliance with this obligation will result in the inadmissibility of the recourse. Therefore, based on the probability of such omissions, this new litigation rule, specific to MRE projects, may reduce the number of recourses that could jeopardize a project.
This new proceeding requirement will apply to all authorizations issued from the date of publication of the Decree (i.e. 10 January 2016).
Standardization of the deadlines to contest MRE authorizations required by the water law.
Providing security against claims made against MRE authorizations issued is clearly one of the objectives of the Decree. The time-window to challenge the authorizations required by the water law, has been harmonized and set at four months, when such authorization is required for renewable energy generation installations, electricity connection public facilities and necessary port infrastructures11.
It should be noted that the draft version of the Decree made available in July 2015 proposed a recourse period of two months. Therefore, this development is of limited effect but still demonstrates the position of the government in the matter.
This innovation shall apply to all authorizations issued from the date of publication of the Decree (i.e. 10 January 2016).