Wind farm developers must be partially indemnified

Wind farm developers must be partially indemnified

The offshore wind energy act, which has regulated the development of offshore wind energy since 2017, is partially unconstitutional.

This was confirmed by the federal constitutional court in a decision of 30. June of this year, which was made public in karlsruhe. According to this law, project developers must be indemnified if their projects were no longer feasible under the new law and the preliminary work could be further exploited. (1 bvr 1679/17, 1 bvr 2190/17)

Those affected are not satisfied with this decision. They would rather build wind farms than receive financial compensation.

The offshore wind energy act fundamentally reorganized the development of offshore wind energy in the exclusive economic zone outside the territorial sea. There is now a state-responsible flat development and a centralized tendering procedure. The construction of wind farms, transmission lines and grids are coordinated with each other. There was a transitional arrangement for ongoing projects that were to be operational by the end of 2020.

Several project developers who wanted to build wind farms in the north sea had filed complaints in karlsruhe against the regulations in the law. They had already invested millions in preliminary studies of soil and natural conditions and environmental impact assessments, but were now unable to pursue their projects. They lacked the commitment to be connected to the electricity networks.

The constitutional court partially upheld the companies’ constitutional complaint. The karlsruhe judges ruled that it was lawful for earlier procedural steps such as permits and zoning decisions to lose their legal significance when switching to a fundamentally new regulatory system. They are not property within the meaning of article 14 of the basic law and are therefore not protected. This also applies to the investments that have already been made. "Taken in isolation, they are simply expenditures," the memo states.

However, the system changeover is not fully compatible with the general principle of the protection of legitimate expectations. "The provisions have a non-genuine retroactive effect that is in part not justified under constitutional law," they said in their ruling. The challenged regulations were not absolutely necessary because the legislature had a milder, equally suitable means at its disposal to achieve its goals. However, this constitutional violation does not invalidate the wind-energy-at-sea law because it only affects a marginal area.

The state must compensate developers financially for the costs of their planning and studies if they hand over their data and documents and an award is made for the relevant areas by 2030, the court ruled. This would make the trust of the complainants less. Lawmakers must wait until 30. June 2021 to regulate the compensation claim by law.

The bremen-based project developer wpd, whose already approved project kaikas with planned 80 wind turbines failed due to the new law, criticized the karlsruhe decision. "We are confirmed in our view that the exclusion of kaikas in this form was not lawful," said board member achim berge olsen. "But we are not really satisfied with a financial indemnity. Finally, we want to build projects."

The federal ministry of economics said that the new regulation on financial compensation would be examined carefully, including the question of whether the constitutional court’s stipulation could already be implemented in the current amendment to the wind lake act. "The law will continue to apply after the decision has been made," the ministry explained. This means that the projects from next year will be put out to tender as planned. This is of central importance for the successful further expansion of offshore wind energy in germany and for achieving the energy and climate policy goals in this area.

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