The realisation of offshore wind park projects in Germany - political environment, legal framework and bankability implications

Table of Contents

Abstract

Acknowledgements

List of Figures

List of Abbreviations

1. Introduction
1.1 Motivation and objective
1.2 Structure

2. ;Offshore wind energy in Germany – a pioneer industry in the ; ;renewable ;energy sector
2.1 Definitions
2.1.1 Renewable energy and wind energy
2.1.2 Offshore wind generator and offshore wind park
2.1.3 Territorial Sea
2.1.4 Exclusive Economic Zone
2.2 The European and German (offshore) wind energy market
2.2.1 (Offshore) wind energy in Europe
2.2.2 (Offshore) wind energy in Germany

3. The political environment for offshore wind energy in Germany
3.1 Influence of international and European climate policy
3.1.1 Kyoto Protocol
3.1.2 Relevant EU legislation
3.2 Government policy and support in Germany
3.2.1 Germany’s offshore wind energy strategy
3.2.2 Germany’s overall energy concept before Fukushima
3.2.3 Germany’s overall energy concept after Fukushima
3.3 Chapter summary and outlook

4. ;Legal framework and approval process for the construction ; ; ;of OWP in the German EEZ
4.1 Legal framework
4.1.1 Renewable Energies Act
4.1.2 Energy Industry Act
4.2 Getting approval for the construction of an OWP
4.2.1 Legal basis and main applicable statutes
4.2.2 Phases of the OWP approval process
4.3 Outlook
4.4 Chapter summary

5. The bankability of OWP projects in Germany
5.1 OWP (project) financing in Germany: major challenges and ; ; bankability issues
5.1.1 Wind prognosis
5.1.2 Technology
5.1.3 Installation
5.1.4 Insurance
5.1.5 Grid connection
5.1.6 Operation & Maintenance (O&M)
5.1.7 Overview of results
5.2 Financing OWP in Germany
5.2.1 Typical banking standards in OWP financings
5.2.2 Project placement
5.3 Security package
5.3.1 Usual elements of security in OWP project finance
5.3.2 Taking collateral in the German EEZ
5.4 Chapter summary and outlook

6. Summary

Bibliography

Appendix
A – Project finance definition
B – Project finance characteristics
C – Corporate structure description
D – Transcript of FMHA (BSH) interview
E – Transcript of KfW IPEX interview
F – Map German EEZ Baltic Sea
G – Map German EEZ North Sea
H – Map OWP Baltic Sea
I – Map OWP North Sea
J – Map Spatial Planning Baltic Sea
K – Map Spatial Planning North Sea

Abstract

According to the German government’s recently introduced new energy concept, renewable energies shall replace fossil and nuclear energy sources step-by-step. The offshore wind energy sector plays a key role in this new energy strategy and shall contribute the major share of renewable energy to the future German energy mix. The purpose of this work is to examine and evaluate the applicable conditions to be considered by project developers and investors when realising an offshore wind park project in Germany. Firstly, it analyses the political environment for the offshore wind energy sector in Germany. Secondly, it gives an overview of the most relevant German legal statutes determining, inter alia, the establishment of wind energy priority areas, the applicable German feed-in tariff scheme and the necessary approval process for offshore wind parks to be erected in the German exclusive economic zone. Thirdly, potential bankability issues and financing challenges are discussed which an offshore wind park project planner might be exposed to when trying to secure a debt financing for such a sophisticated and capital-intensive project. The result of the investigation is that offshore wind park project developers can rely on a very supporting political environment and a sustainable legal framework in Germany, which provide for the investment security and planning reliability urgently needed. Furthermore, financing challenges for German offshore wind park projects have been considerably reduced lately. Overall, the conditions for the realisation of offshore wind parks in Germany should be very encouraging for project developers and investors nowadays and constitute a solid and reliable basis for the targeted strong growth of the offshore wind energy sector in Germany in the near future.

Key Words: offshore wind park, German exclusive economic zone, renewable energies act, feed-in tariff, governmental measures, wind energy priority areas, approval process, bankability, financing challenges

Author’s Email Address: steffenblomberg@web.de

Acknowledgements

I would like to express my gratitude to all those who have contributed to this work.

I’m grateful to Mr. Christian Dahlke, Head of Division Management of the Sea at the Federal Maritime and Hydrographic Agency, for being available to exchange views about the mandatory approval process for offshore wind parks to be erected in the German exclusive economic zone and for giving me an update on the recent (political) developments in this regard. ; ;

Furthermore, I would like to thank my colleagues working in the renewable energies department at KfW IPEX Bank GmbH, one of the leading players in offshore wind park (project) finance in Europe and the leading bank when it comes to the financing of offshore wind parks in Germany. Particular thanks go to Mr. Peter Schäfer, Mr. Mirko Sedlacek and Mr. Andrew Eckhardt for the advice provided and for giving me the opportunity to get a practical insight into this field and the financing challenges related to it. ;

Last but not least, I wish to express my sincere thanks to Dr. ;Oliver Lohse, who has drawn my interest to the field of renewable energies and the offshore wind energy sector in particular, with his energy finance class held at the Institute for Law and Finance at the Goethe-University Frankfurt am Main, Germany, for his helpful suggestions and valuable comments.

List of Figures

Figure 1: Installed offshore wind capacity (MW)/ Cumulative share by country 2010

Figure 2: Approved offshore wind capacity (MW)/Cumulative share by country 2010

Figure 3: Ownership structure German OWP 2010 (%)

Figure 4: Political environment for offshore wind energy in Germany

Figure 5: Legal framework - overview of main relevant statutes/papers

Figure 6: OWP approval process - legal basis and main applicable statutes

Figure 7: Overview of phases of the OWP approval process

Figure 8: Main bankability challenges

Figure 9: Typical project finance security package

Figure 10: Project finance characteristics

List of Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

1. Introduction

1.1 Motivation and objective

According to the German government the future German energy mix shall be mainly based on renewable energy sources. Offshore wind energy plays a key role in this new energy strategy and is expected to provide the major share of renewable energy to be produced in Germany in the future. Nevertheless, the German offshore wind energy sector has developed much slower than expected, despite considerable supporting efforts taken by the government. Compared to other European countries, there is only little installed offshore wind energy capacity available in Germany today, but the German legislator’s medium-term growth targets for this industry are enormous.

In this context, the following two questions are to be asked: Does the German government turn a blind eye to the contradictory development just mentioned and/or is there reason for hope that the German offshore wind energy sector will accelerate and grow much stronger in the future?

The purpose of this work is to describe the general conditions applicable in Germany, which a project developer or potential investor has to consider when planning an offshore wind park (OWP) in the German exclusive economic zone (EEZ).^[1]Furthermore, it analyses specific challenges related to the realisation of such kind of projects, identifies existing problems, and outlines possible solutions where appropriate. In doing so, the following chapters will mainly focus on the political environment for the offshore wind energy industry in Germany, the relevant legal framework applicable when realising an OWP, as well as on the bankability challenges a project developer might be exposed to when trying to secure a debt financing for an OWP project in Germany.

Apart from giving a theoretical overview about the main subjects referred to above, this work also tries to address recent developments one can observe in practice. Hence, personal interviews have been conducted with experienced practitioners to get a better picture of the current market situation in general and possible future developments, as well as to get a practical insight into the mandatory OWP approval process and the recent perceptions and sentiments of banks involved in the financing of OWP in Germany.

1.2 Structure

The followingSection 2contains definitions of some key terms used throughout this work. Subsequently, a brief illustration of the European and German offshore wind energy market is given to get a better idea of how Germany is currently positioned in this field among its peers.

From an OWP investors’ point of view, a stable and supporting political environment considerably reduces the political risks related to such kind of projects, which is usually an important pre-condition for major investments in this field. Section ;3deals with the political environment OWP project developers or investors are exposed to in Germany and particularly focuses on Germany’s offshore wind energy strategy as well as on the German government’s recently introduced new energy concept, which is mainly based on renewable energy sources.

In addition, a wise OWP project developer should also be familiar with all relevant legal statutes when planning an OWP and consider all important legal aspects in his project plan accordingly. Section ;4discusses the legal framework applicable in Germany when intending to realise an OWP in the German EEZ. The main focus is laid on the Renewable Energies Act, RE-Act (Erneuerbare-Energien-Gesetz, EEG) and the wind energy priority areas in both the North and the Baltic Sea, which have been defined by the legislator in the course of its spatial planning. Subsequently, this section outlines the mandatory approval process necessary for the realisation of an OWP project, containing, inter alia, references to the relevant legal statutes and a detailed description of each individual approval phase.

The investment volume for a German OWP can easily amount to EUR ;1 ;billion (bn) or more and thus normally requires also a sufficient amount of debt to be injected into the project. Hence, it is also of utmost relevance for an OWP project developer to be very well aware what has to be done to arrange for a project structure which is bankable at the end, in order to be able to secure the debt financing needed. Section ;5addresses bankability issues related to the realisation of an OWP in the German EEZ and contains an evaluation of the banks’ main financing challenges, an outline of applicable banking standards for OWP projects to be considered by the project developer to secure a successful project placement, as well as a brief description of some peculiarities one should be aware of when it comes to granting or taking collateral over assets located in the German EEZ.

Finally,Section ;6concludes with a summary of the main outcomes and results developed throughout this work.

2. Offshore wind energy in Germany – a pioneer industry in the renewable energy sector ; ;

Compared to other renewable energy technologies used in Germany, such as solar technology, the offshore wind energy sector is still in its early development stage. However, the German offshore wind industry has made further progress in the last years despite facing the typical technical and financial challenges when a new technology is trying to establish itself in the market. Installed German offshore wind capacity has continuously grown in the last 2 ;to ;3 years, but is coming from a very low or rather marginal level compared to other European countries like the United Kingdom or Denmark. Nevertheless, one can be certain that offshore wind energy growth rates in Europe and in Germany in particular, will become even stronger in the near future considering the recent political developments after the nuclear disaster in Fukushima (Japan).

Before going into detail,Section 2.1defines several key terms used throughout this work. The followingSection 2.2gives a brief overview about the European and German offshore wind energy market.

2.1 Definitions

2.1.1 Renewable energy and wind energy

Renewable energy is the sustainable production of energy from natural and regenerative resources, such as sunlight, wind or hydro power. Thus, the production of renewable energy is usually very environment-friendly (i.e. low carbon dioxide emissions).^[2]

Wind energy is renewable energy/electricity generated from wind by the use of modern windmills (wind generators).

2.1.2 Offshore wind generator and offshore wind park

An offshore wind generator (OWG) is a wind generator which has been erected at least three nautical miles seawards from the coast-line.^[3]

The accumulation of several OWG in a certain marine area which are usually under the control of the same operator is called an offshore wind park (OWP).^[4]

2.1.3 Territorial Sea

The territorial sea (Küstenmeer) of a coastal state is the sea belt adjoining to the coastal state’s land territory, which is limited to 12 nautical miles from its coast-line (Territorial Sea or 12-Mile Zone).^[5]

2.1.4 Exclusive Economic Zone

The exclusive economic zone (ausschließliche Wirtschaftszone) of a coastal state is the sea belt adjoining to the coastal state’s Territorial Sea, which is limited to 200 nautical miles from its coast-line (EEZ).^[6]

2.2 The European and German (offshore) wind energy market

2.2.1 (Offshore) wind energy in Europe

In 2010, the installed wind energy capacity in the EU totalled 84,074 megawatt (MW), contributing thereby the lion share (43%) to the global wind energy capacity available.^[7]

About 3.5% of that European wind energy capacity (i.e. 2,946 MW) was located offshore, distributed over 9 countries and 45 OWP. In the past, the United Kingdom, Denmark, the Netherlands and Sweden have been the major growth drivers in the European offshore wind energy segment.

Abbildung in dieser Leseprobe nicht enthalten

Figure 1: Installed offshore wind capacity (MW)/Cumulative share by country 2010

Source: EWEA, The European offshore wind industry - key trends and statistics 2010

It is not surprising that these countries are also the leading EU member states in terms of total installed offshore wind energy capacity, with the United Kingdom (UK) at the forefront (1,341 MW; 45%) followed by Denmark (DEN) and the Netherlands (NED) with 854 MW (29%) and 247 ;MW (8%) respectively. The contribution of Germany (GER) to the available European offshore wind energy capacity has so far been rather marginal (2010: ;92 ;MW, 3%) (see ;Figure 1).

However, a major impact can be expected from German OWP to be erected in the next decade. The German OWP currently under construction will create an additional capacity of about 400 MW and the new German OWP projects, which have already been approved by the German authorities, will provide a capacity of another 8,435 ;MW (see Figure 2).^[8]In 2020, the total European offshore wind energy capacity is expected to reach a size of 40,000 ;to ;55,000 MW.^[9]

Abbildung in dieser Leseprobe nicht enthalten

Figure 2: Approved offshore wind capacity (MW)/Cumulative share by country 2010

Source: EWEA, The European offshore wind industry - key trends and statistics 2010

The average size of installed offshore wind turbines in Europe at the end of year 2010 was 3.2 MW, but is very likely to grow further as sizes of up to 5 ;MW become more and more standard nowadays. The dominating wind turbine suppliers are Siemens AG (Germany) and Vestas Wind Systems A/S (Denmark), covering about 90% of the European offshore wind turbine supply market.^[10]The foundation type used is very much depending on the water depth of the sea site where the respective OWP shall be erected.^[11]

2.2.2 (Offshore) wind energy in Germany

Of the total of 84,074 MW of installed wind energy capacity in the EU, Germany is covering about 27,214 MW (32%), thus holding by far the largest share in Europe and being responsible for the third largest wind energy capacity worldwide after China (42,287 ;MW) and the United States of America (US) (40,180 MW).^[12]In 2010, about 17% of Germany’s total electricity consumption (Stromverbrauch) has been generated from renewable energy sources^[13], whereof electricity produced from wind has contributed the most with 6.2% of the total German electricity supply, followed by biomass (5.5%) and hydro power (3.4%)^[14]. The continuous growth of renewable energies helps to reduce greenhouse gases (especially CO2 emissions) and thus to comply with the international and European climate protection and emission reduction targets, but also, and in particular, to reach the ambitious growth targets defined by the German legislator due to its far-reaching change in energy policy^[15]. About 75 ;million (mn) tons of greenhouse gas emissions have been avoided in 2010 by electricity production from renewable sources, whereof wind energy was responsible for the main part with 27.8 ;mn tons (37%).^[16]Additionally, the wind energy industry, which has created about 100,000 jobs until today, has also become an important economic factor in Germany over the last years.^[17]Despite the aforementioned promising facts referring to the German wind energy sector in general, the offshore wind energy segment in Germany was rather underdeveloped for a long time due to its specific challenges, but is now ready to take off as we will see throughout this work.

But even today the installed German offshore wind energy capacity still amounts only to about 180 ;MW^[18], which is less than 1% of the total German wind energy capacity. Therefore, it is no wonder, that the current contribution of German OWP to the total German electricity consumption is negligible (0.03%)^[19]. Nevertheless, considerable and valuable progress has been made in the recent past with the official commissioning (Inbetriebnahme) of the Alpha Ventus test site (April 2010) and the first commercial German OWP Baltic 1 (April 2011), as well as with the successful placement of the first pure project finance-based German OWP (Borkum West II) in the banking market (December 2010^[20]). All these aspects are positive precedents which will further accelerate the development of the German offshore wind industry in the future. Hence, a strong growth of German offshore wind energy capacity is expected within the next decade. About 10,000 MW shall be available in Germany until 2020, which goes along with an overall investment volume of approximately EUR ;30 ;bn.^[21]

Investor groups which have been mainly active in the German offshore wind industry so far are utilities (39%), such as EnBW AG, E.ON AG or RWE AG, independent project developers (28%) and financial investors (e.g. Blackstone Group) (11%) (see Figure ;3).^[22]

Abbildung in dieser Leseprobe nicht enthalten

Figure 3: Ownership structure German OWP 2010 (%)

Source: KPMG, Offshore Windparks in Europa - Marktstudie 2010

However, especially the group of financial investors might play a bigger role in the future due to the recent supporting legal changes considered by the German legislator (e.g. improvement of expected return on investment^[23]). ;

Because of the high investment costs related to German OWP^[24]and in order to allow nevertheless for an economically feasible operation, average wind turbine sizes used in Germany are normally larger compared to other European countries. The first 5 ;MW turbines have been erected while suppliers are already developing prototypes with capacities of up to 6 or 7 ;MW. The German company Siemens AG is the leading supplier for offshore wind turbines in Germany and across Europe.

Despite still being in the early development stage, the German offshore wind industry has made considerable progress in the last 2 ;to ;3 years and is now ready to start a successful growth story, which, however, must be based on a supporting political environment, clear and confidence-building legal statutes as well as the support of the financial industry. The latter must provide sufficient debt finance so that the German offshore wind industry is able to handle the upcoming huge investment volumes in this sector. The German policy measures introduced to promote the offshore wind energy sector will be discussed in detail in the following chapter (Section 3). The most relevant legal statutes as well as the challenges related to secure a debt financing for an OWP project in Germany (bankability) are addressed inSections 4and5respectively. ;

3. The political environment for offshore wind energy in Germany

An unexperienced investor might wonder what politics have to do with the successful realisation of an OWP, which seems to be a purely commercial project at first glance. However, in practice a positive political environment, i.e. one which is supportive and reliable, is very important for the success of such kind of projects. This is even more so when technologies in their early development stage, such as the offshore wind energy sector, shall be financed with no recourse to the project sponsors (i.e. by the use of a project finance structure). Hence, a positive attitude of politicians towards the subject matter is essential for many reasons: They can put issues on the political agenda which are important for the offshore wind industry or refrain from doing that, they can be supportive when it comes to the identification of new marine offshore wind energy sites or not, they can arrange for an efficient and fast OWP approval process with less bureaucracy or fail to do that, they can pass encouraging legal reforms (e.g. implement adequate fixed feed-in tariffs)^[25]or not, and introduce other supplemental measures supporting the development of the industry^[26]or just leave it. Therefore, it should be worthwhile for an OWP investor or project developer to spend at least some time to make himself familiar and comfortable with the respective political environment in the course of his project due diligence. ;

With its overall energy policy, the German government aims to secure an affordable and reliable energy supply for the industry and private consumers in Germany, strengthen the economy by the development and use of state-of-the-art renewable energy technologies and consequently implement its climate protection targets (Klimaschutzziele). However, apart from its own national political goals, the German legislator needs also to consider the requirements of applicable existing international and European agreements as a factor in its policy making, such as the Kyoto Protocol or relevant EU legislation, which are briefly introduced in the followingSection 3.1.

The subsequentSection 3.2describes in more detail the national strategies and policy measures set by the German government. The development and use of renewable energy technologies in general has been promoted by the legislator already since 1990^[27]. However, having been a highly risky and unproven technology, for long time the offshore wind energy sector played only a marginal role despite its huge potential. To specifically push the developments in this field, the German government introduced an offshore wind energy strategy in 2002 (Section 3.2.1). Since then further policy measures have been implemented, which, inter alia, had (significant) influence on the offshore wind industry too. The main cornerstones have been the new energy concept of the German government introduced in September 2010 (Section 3.2.2) as well as the additional governmental measures (Maßnahmenpaket) passed after the disastrous nuclear accident at the Fukushima power plant in Japan in March 2011 (Section 3.2.3).

3.1 Influence of international and European climate policy

3.1.1 Kyoto Protocol

With the ratification of the internationally applicable Kyoto Protocol to the United Nations Framework Convention on Climate Change (“Kyoto Protocol”) passed in 1997, the EU gave a joint binding commitment to reduce greenhouse gas emissions by 8% compared to 1990 levels until 2012^[28], which was later distributed between the EU member states by a burden sharing agreement setting the individual reduction target for Germany at 21%^[29]. Thus, every EU member state was required to implement adequate measures to be able to comply with its respective emission reduction target. Germany was successful in this respect, by promoting, for example, renewable energy technologies (including the wind energy sector). By the end of 2009, German greenhouse gas emissions had already been reduced by approximately 29% compared to 1990 levels.^[30]

3.1.2 Relevant EU legislation

In addition, the EU determined for each member state an individual national target for its respective share of energy from renewable energy sources in gross final energy consumption (Endenergieverbrauch) to be reached until 2020. The individual target for Germany was set at 18%.^[31]By the end of 2010, Germany reached a share of about 11%^[32]. In order to meet the aforementioned target at the end of this decade, Germany has to continue with taking supportive measures and additional efforts. As we will see in the following section, the constant promotion of renewable energies, and the offshore wind energy sector in particular, is one of the main cornerstones of the German government’s energy policy to achieve both compliance with its climate protection and emission reduction goals and a successful implementation of its new energy policy (i.e. the transformation of the existing energy mix mainly based on fossil and nuclear sources into an energy mix with its main focus on renewable sources).

3.2 Government policy and support in Germany

3.2.1 Germany’s offshore wind energy strategy

The continuous expansion of renewable energies is part of the national sustainability strategy of the German government targeting, inter alia, a more environment-friendly energy supply and a reduction of the dependency on energy imports from other countries. To reach this aim, the legislator has supported the growth of renewable energies already since 1990. Since then, from all renewable energy sources, onshore wind energy has contributed the most to the German energy supply until today^[33]. Nevertheless, the German government’s intention to continuously maintain the growth of wind energy on a high level proved to be difficult due to the limited number of suitable onshore wind energy sites in Germany. Being aware of this problem and the great offshore wind energy potential in Germany at the same time, the legislator passed its “Strategy of the German Government on the use of off-shore wind energy” (Strategie der Bundesregierung zur Windenergienutzung auf See) in 2002 to improve the general conditions (Rahmenbedingungen) for the development of the offshore wind industry in Germany. The main elements of this offshore wind energy strategy have been the following:

a) Resolution of existing conflicts between the protection and the use of specific marine areas in Germany;
b) Acceleration of the OWP approval process;
c) Establishment of more legal security and planning reliability for OWP project developers (e.g. by the introduction of particularly suitable areas for OWP in both the North and the Baltic Sea^[34]); and
d) Initiation of additional research (e.g. erection of three offshore research platforms in the North and the Baltic Sea).^[35]

The introduction of the German offshore wind energy strategy in 2002 was an important turning point for the offshore wind industry in Germany and a first step into the right direction. However, since then additional efforts and political measures have become necessary to overcome the significant technological and other existing challenges related to such pioneer industry sector.

3.2.2 Germany’s overall energy concept before Fukushima

In September 2010, the German government published its long-term strategy for the energy supply in Germany until 2050, which shall ensure an effective protection of the climate and the environment, energy security and a fairly priced energy supply.^[36]

The main cornerstone of this concept is that renewable energies shall replace fossil and nuclear energy sources step-by-step and contribute the major share to Germany’s future energy mix.^[37]As such a process cannot take place over night nuclear energy was identified to be used as a bridge technology (Brückentechnolgie). That is why the legislator at that time extended the operating lives (Nutzungsdauer) of all 17 German nuclear power plants in operation by an average of 12 years. As a consequence, the nuclear power plants, which have started operations after 1980, got concession to operate until 2030 or longer.^[38]

Furthermore, the German government has defined clear guidelines within its new energy concept to reach its climate protection targets until 2020 (2050), which are as follows:

a) Greenhouse gas emissions shall be reduced by a minimum of 40% (80%) compared to 1990 levels;
b) Share of electricity generated from renewable energy sources in Germany’s total electricity consumption (Stromverbrauch) shall account for 35% (80%); and
c) Share of energy from renewable energy sources in Germany’s gross final energy consumption (Endenergieverbrauch) shall increase to 18% (60%).

According to the legislator, wind energy plays a key role when it comes to the implementation of such an energy concept, being fully aware of the fact that onshore and offshore wind energy capacities must be extended massively to reach the targeted levels in 2050^[39]and that there is further need for (political) action (Handlungsbedarf) to achieve that growth. For example, the offshore wind energy capacity of 25,000 ;MW to be erected until 2030 alone does require an expected investment volume of about EUR ;75 ;bn.

The identified measures to be implemented in the course of such new energy concept, which are most relevant from the offshore wind industry’s point of view, are the following:

a) Introduction of an EUR ;5 ;bn special offshore wind energy state credit programme to accelerate the financing and construction of the first 10 OWP in Germany (elimination of liquidity gap)^[40];
b) Applicable legal statutes shall be amended to avoid the hoarding/reservation of licences to build OWP and to streamline the approval process^[41];
c) Cost-neutral amendment of applicable feed-in tariffs to facilitate investment in OWP by a higher possible return on investment (introduction of an optional compression model (Stauchungsmodell))^[42];
d) Update of spatial planning for Germany’s EEZ to ensure the availability of sufficient marine sites to cope with the strong expansion of offshore wind energy capacity; and
e) Implementation of a nationwide grid expansion and upgrade plan for the next 10 years to be in the position to process the increasing share of offshore wind energy produced in the North of Germany.^[43]

Most of the aforementioned measures have been implemented in the meantime or will become effective in 2011 or as of 01 ;January ;2012 at the latest. Besides the German government’s obvious general willingness to continuously support the development of renewable energies, one of the main reasons why the government acted so fast was the nuclear accident in Fukushima which happened in March 2011, i.e. only half a year after the new German energy concept described above had been introduced by the government. Through the nuclear disaster in Japan, the debate about the use of nuclear technology in Germany was reopened. The outcome was a complete political turnaround in Germany with regard to nuclear energy, which in consequence put the German legislator under increasing pressure to set up a political environment where renewable energies can flourish as we will see in the following section.

3.2.3 Germany’s overall energy concept after Fukushima

The nuclear disaster at the power plant in Fukushima made the world realise that it is impossible, even for one of the highest developed and technological leading countries like Japan, to control the catastrophic impacts of a nuclear accident. The aftermath of Fukushima also had a considerable impact on the energy policy in Germany and caused the German government to reassess its position vis-à-vis the use of nuclear energy and to revaluate the risks related to this kind of technology. Based on this reassessment, the German legislator decided to cancel the extension of the operating lives for German nuclear power plants, which had been passed only half a year earlier. This heavy political turnaround had of course significant effects on the future German energy strategy.

Although this strategy had been already aiming at a strong growth of renewable energies beforehand, the legislator was now forced to improve and supplement its energy strategy even further to arrange for a prosperous environment for alternative energies and to allow for a faster development of such technologies. Indeed, the German government acted very promptly and introduced additional governmental measures (Maßnahmenpaket) only about three months after the accident in Fukushima (i.e. in June 2011), which will be reviewed on a yearly basis. The measures most relevant for an OWP investor and/or project developer are as follows:

a) Immediate shutdown of 8 out of 17 German nuclear power plants and phase-out of the remaining 9 nuclear power plants still in operation until 2022^[44], which has an enormous positive effect on the future prospects of renewable energy technologies in Germany (with offshore wind energy having the greatest potential);
b) Improvement of feed-in tariff schemes in certain renewable energy sectors where the return on investment has so far been rather insufficient for investors (inter alia, for the offshore wind energy sector)^[45];
c) Acceleration of the expansion and upgrading of onshore grids and streamlining of the planning and approval process for nationwide transmission lines (überregionale Stromleitungen) to be able to better cope with the growing production of renewable energy in general and especially the necessary transfer from the offshore wind energy production sites in the North of Germany to the main industrialised regions in the South^[46];
d) Removal of time limitation of the Transmission System Operators (TSO)’ duty to cover all costs related to the OWP’ grid connection (i.e. no more uncertainties that these costs may have to be covered by OWP project developers again after the expiry of that legal provision), as well as increased facilitation of smart grids and storage technologies (Speichertechnologien) to better cope with the fluctuating energy production by renewable sources (e.g. (offshore) wind energy)^[47]; and
e) Faster implementation of some of the measures already identified and agreed in the course of the introduction of the new energy concept shortly before the disaster in Fukushima, such as the establishment of the EUR ;5 ;bn special offshore wind energy state credit programme^[48]and the streamlining of the OWP approval process to further accelerate the development of the offshore wind energy sector.^[49]

After the nuclear accident in Fukushima and the decision to phase out the use of nuclear power plants in Germany much faster, the legislator has shown once again its willingness to strongly support the development of renewable energies by the quick implementation of effective and supportive measures. In particular the offshore wind industry faces a very supporting and stable political environment in Germany. One can barely find precedents in the past where the legislator has supported a subject matter in such a sustainable way^[50]and has continuously improved and adjusted the political framework when necessary, which is very likely to be the case also in the future^[51].

3.3 Chapter summary and outlook

Implementing the complete phase-out of nuclear energy in Germany until 2022 on the one hand, while complying with the legislator’s main target to secure an affordable and reliable energy supply on the other hand, will be the major challenge for German policy makers in the future. As already demonstrated above, a lot of supportive and effective governmental measures have been passed and implemented in the (recent) past to accelerate the growth of renewable energies in Germany, which is very likely to be the case also in the future when the German legislator deems it necessary.

Abbildung in dieser Leseprobe nicht enthalten

Figure 4: Political environment for offshore wind energy in Germany

Overall, the legislator has laid a very solid, reliable and encouraging political foundation for the continuous and strong growth of renewable energies in Germany, but, in particular, for the development of the offshore wind energy sector (see Figure 4), which is considered to be the major source of renewable energy in Germany in the future. It is now up to the sponsors, the financial industry, and of course the project developers themselves to make use of such a supporting political environment and to facilitate the transformation from a nuclear and fossil-based German energy supply to an energy supply mainly based on renewable sources.

4. ;Legal framework and approval process for the construction of OWP in the German EEZ

The previous chapter has demonstrated that OWP project developers face positive political sentiment and a supporting political environment in Germany. However, even more important for the successful realisation of a German OWP is a precise knowledge of the legal framework applicable to be able to consider all relevant aspects in the project planning. Hence, the legal statutes most relevant for an OWP project developer will be discussed inSection 4.1. Furthermore, the erection of an OWP in Germany is subject to approval by the relevant authorities. A good knowledge of the requirements of the authorities involved and its procedures is therefore necessary to allow for a fast and efficient approval process and to avoid or at least minimize costly delays of the erection of the respective OWP. The legal basis of this approval process as well as the individual approval phases an OWP project planner has to go through are described inSection ;4.2.

4.1 Legal framework

The by far most important legal statute when it comes to the realisation of an OWP in Germany is the RE-Act (EEG), which will be discussed in detail in the followingSection 4.1.1. The subsequentSection 4.1.2briefly outlines some complementing provisions considered in the Energy Industry Act, EI-Act (Energiewirtschaftsgesetz, EnWG) of which an OWP project developer should be aware of too.

4.1.1 Renewable Energies Act

In 1990, the German government has started to aid the development of renewable energies with the introduction of its first feed-in law (Stromeinspeisungsgesetz), which was continuously enhanced and finally replaced by the introduction of the RE-Act (EEG) in 2000. Since then, two RE-Act amendments (EEG-Novellen) were passed in the years 2004 and 2009 respectively to correspond to the fast development of the renewable energy sector, of which the latter is still in force today.^[52]

A precise knowledge of the provisions of the RE-Act (EEG) and the applicable mechanisms is vital for potential investors and/or project developers when pursuing an OWP project in Germany. ;

The following remarks will focus on the RE-Act (EEG) articles and complementary matters which should be most relevant to OWP investors when thinking about an investment in a German OWP. They include, a brief description of the purpose of the RE-Act (EEG), a detailed explanation of TSO’ duties vis-à-vis OWP operators (Anlagenbetreiber) and an assessment of the reliability of the existing legal set-up in Germany, i.e. whether investors’ confidence in the legal statutes applicable is protected (Vertrauensschutz). Finally, a short evaluation of the effectiveness and competitiveness of the overall German feed-in system is conducted. ; ; ;

4.1.1.1 Purpose of the RE-Act (EEG)

The main purpose of the RE-Act (EEG) is the protection of the climate and the environment^[53], the security and sustainability of energy supply as well as the promotion of renewable energy sources, which also includes the erection of OWP in the German EEZ.^[54]With the implementation of the latest amendment of this act in 2009 being still in force today, the German government ambitiously aimed to increase the share of renewable energy to at least 30% of the total German electricity supply in 2020.^[55]The German RE-Act (EEG) is one of the leading feed-in laws worldwide and shall provide potential investors in renewable energy projects in Germany as much planning reliability and investment security as possible. It, inter alia, establishes a clear and certain regulation of the relationship between TSO and OWP operators by stipulating far reaching TSO duties to support the activities of the offshore wind energy industry.^[56]

4.1.1.2 TSO duties

To attract investments in the field of renewable energy in Germany, the RE-Act (EEG) grants OWP operators certain rights providing for additional comfort when making an investment decision. These rights are basically structured as clearly defined duties the respective TSO has to comply with when dealing with a specific OWP operator (Netzbetreiberpflichten).

The main duties are the requirement to connect the OWP with the onshore grid, to purchase, transmit and distribute the energy generated by the respective OWP, the remuneration of the offshore wind energy fed in to the grid (payment of feed‑in tariff) and to expand grid capacity if needed. These duties are described in the following in more detail:

a) Duty to connect(Anschlusspflicht): As indicated above, TSO are required to connect OWP immediately and with priority to their respective grids.^[57]In case a TSO should not comply with that duty by willful misconduct and/or negligence (vorsätzliches Missverhalten und/oder schuldhafte Fahrlässigkeit), the respective OWP operator concerned is entitled to claim for damages (Schadensersatzanspruch).^[58]At least of same importance as the implementation of a successful and timely grid connection itself is the question, who will bear the considerable costs caused by such a measure. Normally, those costs would have to be borne by the OWP operator itself.^[59]However, having the necessary boost of offshore wind energy in mind to meet its ambitious growth targets, the German legislator has considered a special regime for the grid connection of OWP erected in the German EEZ, which exceptionally requires that the respective TSO has to cover any costs related to it^[60].
b) Duty to purchase, transmit and distribute (Pflicht zur Abnahme, Übertragung und Verteilung): Besides covering the costs for the establishment of the OWP grid connection, the TSO is also obliged to purchase, transmit and distribute the entire electricity which is offered to it by an OWP operator. Again, the TSO has to comply with that duty immediately and has to give electricity generated by renewable sources priority vis-à-vis electricity produced from conventional sources.^[61]
c) Duty to remunerate (Vergütungspflicht): When feeding in his offshore wind energy into a TSO grid, the OWP operator receives a claim for payment from the respective TSO, who in turn has to remunerate the OWP operator in line with the requirements of the RE-Act (EEG).^[62]The RE-Act (EEG) remuneration scheme for offshore wind energy consists of a basic tariff (Grundvergütung), an initial tariff (Anfangsvergütung), the commencement and duration of the respective tariff payment (Vergütungsbeginn und -dauer) and an applicable tariff/bonus reduction scheme (Absenkung von Vergütungen und Boni bzw. Degression).^[63]

;The basic tariff for offshore wind energy in general is currently fixed at EUR 3.5 cents per kilowatt-hour (kwh).^[64]

The applicable initial tariff amounts to EUR 13.0 cents per kwh and can increase by another EUR 2.0 cents per kwh if the OWP, or, to be more precise, the respective offshore wind generator (OWG) has reached its commissioning stage (Inbetriebnahme) before 01 January 2016 (increased initial tariff/erhöhte Anfangsvergütungor“Sprinterprämie”).

The payment of the initial tariff as outlined above is limited to a duration of 12 years. Such period shall be extended by 0.5 months for each full nautical mile a respective OWG is located beyond the 12-Mile Zone and by 1.7 months for each additional full meter of water depth beyond 20 meters.^[65]If the payment period of the initial tariff has expired, the basic tariff will be applied until the final expiry date of the feed-in scheme, which is 20 years plus the remaining year when the commissioning stage for the OWG has been reached.^[66]The OWP operator has the right to receive payment from the TSO as outlined above, once the respective OWG produces electricity exclusively from renewable sources and such electricity is fed into the grid system.^[67] ;

For all the aforementioned offshore wind energy tariffs, a tariff/bonus reduction scheme applies considering a tariff reduction of 5% per year (degression) starting in 2015.^[68]The legislator has introduced this concept in expectation of lower future production costs for offshore equipment (e.g. economies of scale) and other learning curve effects by OWP suppliers and operators. Furthermore, such a mechanism shall also secure the continuous public support of the development of renewable energies, as sky-high returns for OWP investors to be finally paid by the public could negatively affect the positive attitude towards this kind of renewable energy.

d) Duty to expand grid capacity (Pflicht zur Erweiterung der Netzkapazität): Temporary shortages of grid capacity (e.g. due to an oversupply of electricity) could have harmful negative effects on the economics of an OWP project, as the electricity produced cannot be fed into the grid and thus the OWP operators’ payment claim would be lost during this period. However, to arrange for further OWP investors’ certainty, the legislator has obliged the TSO to continuously optimise, improve and even extend its grids, if necessary, to allow for a smooth electricity transmission from the OWP to the onshore grids and thereafter. The OWP operator has the right to claim damages in case the TSO should not comply with that duty by purpose or by negligence.^[69]

e) Other TSO duties: Further duties of TSO, such as information and publication requirements, are also considered in the RE-Act (EEG), but are less relevant for potential OWP investors.^[70]

In summary, the legislator has stipulated very far reaching rights for OWP operators in the RE-Act (EEG) to support the development of the offshore wind energy sector in Germany, by requiring the respective TSO to comply with quite a number of binding duties vis-à-vis OWP operators.

4.1.1.3 Protection of investors’ confidence

As indicated above, the RE-Act (EEG) gives energy generated from renewable sources a preferential treatment compared to energy produced from conventional sources. A wise OWP operator or investor should therefore ask the question whether the German feed-in system is in line with existing EU regulation (e.g. the prohibition of state aid (Beihilfeverbot) and/or the principle of free movement of goods (Warenverkehrsfreiheit)). The answer is: Yes. The European Court of Justice decided that the German feed-in model to support the development of renewable energy does not violate applicable European law^[71], which gives OWP investors the comfort that the content of the German RE-Act (EEG) cannot be questioned from a European law perspective.

However, once the investment has been made, an OWP operator could still face the theoretical risk that the national legislator in Germany may subsequently adjust or amend the applicable feed-in system and that the resulting new regulation would have a negative effect on the economics of his project (the most obvious example would be the potential risk of a reduction of the applicable feed-in tariffs).^[72]In practice, such a risk is rather remote. German legal experts agree that OWP investors should be protected by the German legal system from subsequent adverse changes of the RE-Act (EEG)^[73]and can usually rely on the legal environment which was applicable when making their investment decision. Furthermore, the German legislator is very much aware of the fact that such a tremendous legal and/or financial risk would barely be acceptable for potential investors and accordingly would constrain the targeted strong expansion of the German renewable energy sector.

Hence, OWP investors in Germany can rely on a very stable and supporting legal environment (protection of investors’ confidence (Vertrauensschutz)) and should have enough legal certainty to invest in the German renewable energy sector and the offshore wind energy segment in particular.

4.1.1.4 Evaluation of German RE-Act (EEG)

In his work, Mendonca has analysed different renewable energy support schemes worldwide as well as varying feed-in laws, and deduced general lessons and requirements for the effective implementation of a feed-in law. The main aspects are to set up a simple, flexible and transparent feed-in system, to guarantee grid connection and a fixed feed-in tariff which is high enough to ensure a profitable operation, to differentiate between different types of renewable energies, and finally to assure public support and acceptance.^[74]

Indeed, the German RE-Act (EEG) considers all the aforementioned requirements for an effective feed-in law and thus provides investors in renewable energy projects in Germany an environment with high investment security and planning reliability. Furthermore, the German public has always supported the development of alternative and “green” energies in the past and will do so even more after the nuclear accident at the Fukushima power plant in Japan. ; ;

If well-designed and implemented, a feed-in model like the German RE-Act (EEG) has proven to be the most effective and successful instrument to support and accelerate the development of renewable energies. A positive development of renewable energies can usually be achieved much faster and cheaper compared to alternative models like the UK quota model.^[75]The German feed-in law is one of the most successful in the world.^[76]Similar feed-in systems have been introduced subsequently in many other countries in Europe, but also in countries outside Europe like India or China.^[77]

4.1.2 Energy Industry Act

Besides a good knowledge of the content of the RE-Act (EEG), an OWP investor should also be aware of some important complementing provisions contained in the German EI-Act (EnWG). The main purpose of the EI-Act (EnWG) is to secure for the general public a reliable, reasonably priced, environment-friendly and efficient energy supply, which also includes the TSO’ duties to expand the grids if necessary and to continuously provide for the grid capacity needed.^[78]When it comes to the realisation of an OWP, the EI-Act (EnWG) contains two relevant and interrelated provisions^[79], both dealing with the TSO’ duty to establish the necessary grid connection, which will be discussed in the following in more detail:

- Duty to connect to grid (Netzanschlusspflicht) and to cover the related costs (Kostenübernahme): As indicated in the previous section, which has covered the provisions of the RE-Act (EEG) most relevant for OWP operators, TSO are required to connect OWP to be erected in the German EEZ with the onshore grid, but the respective OWP operator usually would have to compensate for the related costs caused.^[80]However, to further boost the development of the promising offshore wind energy sector, the German legislator has introduced an exemption from that regulation in 2006^[81], which was later incorporated as an amendment to the EI-Act (EnWG). According to the new provision, TSO are not only required to connect OWP/OWG until the date of its technical operational readiness (technische Betriebsbereitschaft) at the latest, but also to bear the complete costs caused by the grid connection.^[82]However, OWP operators and potential investors should consider that this exceptional rule does only apply to OWP/OWG whose construction has commenced on or before 31 December 2015.^[83]

However, despite the existence of the above regulation, in practice a lot of uncertainties and problems between OWP operators and TSO could be observed in the past. Most of the OWP operating to date have faced (considerable) delays until the respective grid connection was in place. That is why the German Federal Network Agency, GFNA (Bundesnetzagentur,BNetzA) has published a clarifying position paper to further improve legal, planning and investment security for OWP operators and investors. ;

The GFNA (BNetzA) position paper (Positionspapier zur Netzanbindungsverpflichtung gemäß § 17 Abs. 2a EnWG^[84])contains the requirement that an OWP project developer must adequately and sufficiently demonstrate that his respective OWP project will materialize (hinreichender Nachweis der Realisierungswahrscheinlichkeit) to avoid any unnecessary costs of the TSO responsible for the erection of the respective grid connection.^[85]In order to provide this evidence, an OWP developer should comply with the following criteria for grid connection (Anbindungskriterien) defined by the GFNA (BNetzA):

1) Availability of all necessary authorisations (öffentliche Genehmigungen) necessary for the erection of the OWP (the approval to be granted by the Federal Maritime and Hydrographic Agency, FMHA (Bundesamt für Seeschifffahrt und Hydrographie, BSH) in particular^[86]);
2) Provision of a feasible time schedule (Bauzeitenplan) containing a description of the major construction stages (wesentliche Bauabschnitte);
3) Availability of ground investigation (Baugrunduntersuchung) of respective OWP site; and
4) Availability of binding wind turbine supply contracts (verbindliche Verträge über die Bestellung der Windenergieanlagen) in connection with a) the evidence that the financing for the OWP has been secured (verbindliche Finanzierung), i.e. availability of investors’ capital as well as of the necessary bank debt commitments, or, alternatively, b) the availability of “pre”-supply or reservation contracts (Reservierungs-vereinbarungen) for the main large components (Großkomponenten) of the respective OWP, such as the foundations and the transformer station/platform.

The TSO has the duty to provide to the OWP operator a conditional grid connection undertaking (bedingte Netzanbindungszusage) if either the aforementioned grid connection criteria no. 1 to 3, or, alternatively, criteria no. 1, 2 and 4 have been satisfied by the respective OWP operator. In case all four criteria have been met, an unconditional grid connection undertaking (unbedingte Netzanbindungszusage) must be issued by the TSO. Furthermore, the TSO is required to arrange for the necessary grid connection as soon as reasonable possible, but within 30 months after the issuance of the conditional grid connection undertaking at the latest.^[87]

In case of a delayed grid connection, the OWP operator has the right to claim damages if the TSO has behaved unreasonably.^[88]So, an OWP operator is protected in case a TSO has shown wilful misconduct and/or negligence, whereas to date no damages can be claimed in cases where a delayed grid connection was the result of unexpected matters the TSO could not foresee despite acting reasonably (i.e. acts of god/force majeure^[89], such as bad weather conditions at sea). But the fact that risks related to force majeure are normally not covered in (project) financings is also true for other industries.^[90]Hence, an OWP investor should consider the potential risk of a delayed grid connection when planning an OWP project (i.e. the planning should include a reasonable time buffer).

Overall, the issuance of the GFNA (BNetzA) position paper has considerably reduced investors’ uncertainties and thus clearly improved planning reliability for OWP in Germany.

Abbildung in dieser Leseprobe nicht enthalten

Figure 5: Legal framework - overview of main relevant statutes/papers

After having discussed the RE-Act (EEG) and the EI-Act (EnWG) in the course of this section which are the two main legal statutes most relevant for OWP investors in Germany and which stipulate clear and far reaching rights for OWP operators (see Figure 5), the subsequent section now deals in detail with the approval process which is necessary to realise an OWP project in the German EEZ.

4.2 Getting approval for the construction of an OWP

As previously mentioned, the erection of an OWP in Germany is subject to the approval of the relevant authorities. When planning the construction of an OWP, project developers should be aware of the fact that such an approval cannot be granted over night. Even if the necessary approval process for an OWP in the German EEZ runs very smoothly, it typically takes about 2 years. Hence, a well-prepared OWP project developer should be familiar with the relevant applicable legal regimes regulating the approval process and have good knowledge about the approval process itself to avoid unnecessary failures (e.g. incomplete or insufficient OWP project application documents), which normally go along with a delayed approval of the OWP project at significant additional costs for the OWP developer, or which could theoretically even result in a rejection of the project^[91]. In a nutshell, OWP developers should try to reduce the probability that an approval is not granted as much as possible.

The legal basis for that approval to be granted and the main relevant legal statutes applicable are discussed inSection 4.2.1.

The subsequentSection 4.2.2deals with the approval procedure for OWP in the German EEZ itself and the individual approval phases an applicant has to go trough.^[92]

4.2.1 Legal basis and main applicable statutes

The approval process for OWP in the German EEZ in general is based on the Marine Facilities Ordinance, MFO (Seeanlagenverordnung, SeeAnlV), which specifically regulates the necessary individual steps and requirements to be considered by the FMHA (BSH). A good knowledge of such legal statute is important for an OWP developer to be well prepared when approaching the FMHA (BSH) with his application documents. The provisions most relevant will be discussed in the followingSection 4.2.1.1.

Furthermore, the FMHA (BSH) has developed spatial plans (Raumordnungspläne) for the German EEZ^[93]on the basis of the Federal Spatial Planning Act, FSPA (Raumordnungsgesetz, ROG) to help better coordinate the recovery of the sea which is exposed to various and often conflicting marine uses, but in particular to accelerate the development of the German offshore wind energy industry in such areas. The introduction of those spatial plans had of course a direct impact on the approval process for OWP to be erected in the German EEZ as the FMHA (BSH) has to consider the guidelines of that spatial planning when reviewing a new OWP project (see ;Section 4.2.1.2).

4.2.1.1 Marine Facilities Ordinance

The MFO (SeeAnlV) is based on the United Nations Convention on the Law of the Sea, UNCLOS (Seerechtsübereinkommen der Vereinten Nationen, SRÜ)^[94]and the Federal Maritime Responsibilities Act, FMRA (Seeaufgabengesetz, SeeAufgG),^[95]and governs the whole approval process for OWP in the German EEZ.^[96]

Before an operator or investor can start with the construction of an OWP, he has to apply for an approval by the FMHA (BSH)^[97], which verifies whether any grounds for a rejection do exist or not. The reasons which could lead to a refusal of such an application are as follows: a potential negative impact on the safety or efficiency of the maritime traffic, and/or negative effects on the marine environment, or a conflict with the spatial planning for the German EEZ.^[98]

While examining a specific OWP project, the FMHA (BSH) shall consider opinions and statements of other public authorities in its decision making process whose administrative fields are affected by the project. These public authorities include, e.g., the Federal Research Institute for Fishery (Bundesforschungsanstalt für Fischerei), the Federal Environment Agency (Umweltbundesamt), and the respective State Mining Authority (Landesbergamt). However, consideration in this respect does not mean that those statements have a binding effect on the FMHA (BSH)’ final decision, which remains independent in this regard.^[99]Hence, the requirement in question can be rather interpreted as a duty to extend the basis of information and to analyse the project from different view points to ensure a well-educated final decision of the FMHA (BSH). In contrast to the public authorities mentioned above, the responsible regional Waterways and Shipping Directorate, WSD (Wasser- und Schifffahrtsdirektion, WSD),^[100]and the Federal Agency for Nature Conservation, FANC (Bundesamt für Naturschutz, BfN),^[101]must give its consent to the OWP project in any event before an approval can be finally granted by the FMHA (BSH).

Furthermore, usually an Environmental Impact Assessment, EIA (Umweltverträglichkeitsprüfung, UVP) has to be conducted by the OWP developer in the course of the approval process to enable a better evaluation of the probability and the magnitude of potential (negative) impacts on the marine environment.^[102]

Besides the aforementioned requirement to conduct an EIA (UVP), the FMHA (BSH) must also consider European legislation on the protection of the (marine) environment applicable when examining a new OWP project in the German EEZ, e.g. the EU directives on the conservation of natural habitats and of wild fauna and flora (FFH-Richtlinie)^[103]and on the conservation of wild birds (Vogelschutzrichtlinie).^[104]The (marine) areas protected under these legal regimes do belong to an European ecological network of special areas of conservation and protection called “Natura 2000”,^[105]and the FMHA (BSH) must take into account the provisions of those EU directives in its decision making process as far as a protected “Natura 2000” area is concerned.^[106]However, we will learn in the subsequentSection 4.2.1.2that the German legislator has established an even stricter approach when it comes to the potential construction of OWP in such “Natura 2000” areas.

In case there are no concerns foreseeable regarding the aforementioned environmental matters or when one can validly assume that (potential) minor negative effects caused by the construction and operation of an OWP can be successfully remedied or compensated, the applicant has the right to get approval from the FMHA (BSH) for his project.^[107]The permit granted can be transferred (übertragen) to an alternative operator or investor. However, the transfer must be announced to the FMHA (BSH).^[108]

Furthermore, the FMHA (BSH) has the possibility to grant its approval subject to the fulfilment of specific project-related conditions and will make use of it if it deems necessary for a certain project. In addition, every FMHA (BSH) approval typically contains rather standard conditions which apply to all approved OWP, such as setting time limits for the commencement of the OWP construction to avoid unreasonable delays^[109], asking for compliance with specific and/or generally recognised technological standards^[110], setting limits for noise emissions (Lärmemissionen), as well as requiring the removal of the OWP facilities once the approval/license granted has expired (usually after 25 years)^[111]. If the OWP operator should not comply with one or more of the conditions outlined above, the FMHA (BSH) has the right to revoke its approval.

The approval granted by the FMHA (BSH) must be published by public announcement. If no objections have been submitted by an opposing party within one month after the announcement, the approval is valid and an appeal (Widerspruch) against it is no longer possible, which gives an OWP project developer a high degree of legal certainty (protection of confidence (Vertrauensschutz)).^[112]

Even though one can assume that prospects of success are rather less promising, it shall be nevertheless mentioned that the applicant has the right to file an action (Klageeinreichung)^[113], if the FMHA (BSH) should grant an approval subject to a condition to which the applicant cannot agree or should even completely reject the requested approval for building an OWP.

If the FMHA (BSH) should receive competing requests from independent applicants for the approval of the erection of an OWP in the same marine area, it shall give priority to the request which has fulfilled and provided all necessary information first and thus is ready for approval (genehmigungsfähig).^[114]

Finally, the FMHA (BSH) has identified and established particularly suitable areas (besondere Eignungsgebiete) for OWP in the German EEZ to reduce uncertainties among potential OWP operators and/or investors and to accelerate a systematic construction of OWP in these identified special areas,^[115]which have been later converted into wind energy priority areas (Vorranggebiete) in the course of the introduction of Germany’s spatial planning for the German EEZ^[116].

4.2.1.2 Spatial planning for the German EEZ

As discussed in Section 3.2, the German government is pursuing an intense growth strategy for the renewable energy sector due to the intended phase-out of nuclear energy in Germany until 2022, with offshore wind energy being the major driving force. OWP in the German EEZ shall contribute a considerable portion to the future energy mix of Germany. To achieve this goal, the German government has passed a multitude of legal provisions in the recent past to promote a fast construction and installation of OWP in that area. The introduction of the spatial planning for the German EEZ has been an important aspect as well.

Before the respective spatial plans for the German EEZ of the North and Baltic Seas were determined, potential OWP investors faced a lack of planning reliability and thus had difficulties to evaluate the probability of a successful realisation of OWP projects. This often led to a resistance to invest^[117]. The main problems have been as follows: Firstly, a multitude of different marine uses (such as energy production, shipping, conservation areas and the sea(bed) as food and raw material source^[118]) and the rising need for the coordination of growing conflicts between them and secondly, the legislator’s impossibility to regulate and influence the developments in the German EEZ due to a missing legal basis for setting a sustainable and integrated spatial plan in this area. The reason for the latter was that the German Federal Spatial Planning Act, FSPA (Raumordnungsgesetz, ROG) was only applicable in the German national territory but not in the German EEZ at the time.

So, what did the German legislator do to arrange for both a proper coordination of all the individual marine uses in the German EEZ on the one hand, and the continuous promotion of the German offshore wind industry by further improving the (legal) environment to encourage OWP investors’ confidence on the other hand?

[...]

^[1] ; ; ; ; ; Despite the fact that this work is mainly written through the eyes of an OWP project developer or investor, it might be also an interesting reading for bankers and lawyers active in the German offshore wind energy sector as well as for students who wish to get more familiar with such red-hot topic.

^[2] ; ; ; ; ; See Böttcher, Finanzierung von Erneuerbare-Energien-Vorhaben, 2009, p. 9, and Maier, Die Ausdehnung des Raumordnungsgesetzes auf die Ausschließliche Wirtschaftszone (AWZ) dargestellt an der auslösenden Situation der raumordnerischen Steuerung von Offshore-Windenergieanlagen, 2008, p. 2.

^[3] ; ; ; ; ; See Article 3, No. 9 RE-Act (EEG). Please note that OWG located closer than three nautical miles from the coast-line are defined as “nearshore”. However, the offshore wind industry itself normally does not make use of such differentiation (see Both, Die Rolle der Assekuranz bei der Entwicklung regenerativer Energieformen - am Beispiel der Windenergie in Deutschland, 2006, p. 89). ; ; ;

^[4] ; ; ; ; ; OWP in the German EEZ normally contain 20, 40 or 80 OWG.

^[5] ; ; ; ; ; Simplified definition; for more details, please refer to Part II, Section 1, Article 2 and Section 2, Article 3 et seq. UNCLOS (SRÜ).

^[6] ; ; ; ; ; Simplified definition; for more details, please refer to Part V, Article 55 and 57 UNCLOS (SRÜ). Maps of the German EEZ for both the Baltic and the North Sea can be found in Appendix F and G respectively.

^[7] ; ; ; ; ; See BMU, Erneuerbare Energien in Zahlen - Nationale und internationale Entwicklung, 2011b, p. 71, http://www.bmu.de/files/pdfs/allgemein/application/ pdf/broschuere_ee_zahlen_bf.pdf (accessed 22 October 2011).

^[8] ; ; ; ; ; See KPMG, Offshore Windparks in Europa - Marktstudie 2010, 2010, p. 19, www.offshore-stiftung.com/Offshore/61/61/60005/.../download.html (accessed 02 October 2011) and EWEA, The European offshore wind industry - key trends and statistics 2010, 2011a, pp. 10-11, 14, http://www.ewea.org/index.php?id=1861 (accessed 22 October 2011).

^[9] ; ; ; ; ; See EWEA, The European offshore wind industry - key trends and statistics 2009, 2010, p. 6, http://www.ewea.org/fileadmin/emag/statistics/2009offshore/pdf/offshore %20stats%2020092.pdf (accessed 22 October 2011).

^[10] ; ; ; See EWEA, The European offshore wind industry - key trends and statistics 2010, 2011a, p. 12, http://www.ewea.org/index.php?id=1861 (accessed 22 October 2011).

^[11] ; ; ; Up to 20 ;m water depth monopile foundations are mainly used (44%), between 20 ;to ;40 ;m jacket and tripod foundations are rather common (58%), and for water depths of 40 ;m and more jacket systems are often the preferred choice (49%) (see KPMG, Offshore Windparks in Europa - Marktstudie 2010, 2010, p. 42, www.offshore-stiftung.com/Offshore/61/61/60005/.../download.html (accessed 02 ;October 2011)). Overall, the foundation types mostly used so far are monopile (65%) and gravity (25%) structures. However, this might change very soon as water depths and distances to the coast of new European OWP projects are more and more increasing (see EWEA, The European offshore wind industry - key trends and statistics 2010, 2011a, p. 3, http://www.ewea.org/index.php?id=1861 (accessed 22 October 2011)). One of the reasons for this development is that most of the German OWP will be located much further out at sea compared to existing European OWP already operating in compliance with the strict requirements of the German government (if possible no visibility of OWP from the coast). Furthermore, also other European countries are about to develop much more remote marine areas for their offshore wind energy activities (as suitable sites in shorter distances are, to a large extend, already used in this respect).

^[12] ; ; ; See BMU, Erneuerbare Energien in Zahlen - Nationale und internationale Entwicklung, 2011b, pp. 71-72, http://www.bmu.de/files/pdfs/allgemein/application/ pdf/broschuere_ee_zahlen_bf.pdf (accessed 22 October 2011).

^[13] ; ; ; The share of electricity supply from renewable sources has continuously grown in Germany over the last 20 years from 3.1% in 1990 to 17.0% in 2010 (see BMU, Erneuerbare Energien in Zahlen - Nationale und internationale Entwicklung, 2011b, p. ;13, http://www.bmu.de/files/pdfs/allgemein/application/pdf/broschuere_ee_zahlen_ bf.pdf (accessed 22 October 2011)).

^[14] ; ; ; See BMU, Development of renewable energy sources in Germany 2010, 2011a, p. 8, http://www.bmu.de/files/english/pdf/application/pdf/ee_in_deutschland_graf_tab_en. pdf (accessed 22 October 2011).

^[15] ; ; ; See also Sections 3.2.2 and 3.2.3 below.

^[16] ; ; ; Among all the renewable energies wind energy has the best greenhouse gas avoidance factor (Treibhausgas-Vermeidungsfaktor) after hydro power (see BMU, Erneuerbare Energien in Zahlen - Nationale und internationale Entwicklung, 2011b, pp. 24-26, http://www.bmu.de/files/pdfs/allgemein/application/pdf/broschuere_ee_zahlen_bf.pdf (accessed 22 October 2011).

^[17] ; ; ; See BMU, Erneuerbare Energien in Zahlen - Nationale und internationale Entwicklung, 2011b, p. 36, http://www.bmu.de/files/pdfs/allgemein/application/ pdf/broschuere_ee_zahlen_bf.pdf (accessed 22 October 2011).

^[18] ; ; ; See Appendix D, question 17.

^[19] ; ; ; See BMU, Erneuerbare Energien in Zahlen - Nationale und internationale Entwicklung, 2011b, p. 12, http://www.bmu.de/files/pdfs/allgemein/application/ pdf/broschuere_ee_zahlen_bf.pdf (accessed 22 October 2011).

^[20] ; ; ; See Appendix E, question 12.

^[21] ; ; ; See KPMG, Offshore Windparks in Europa - Marktstudie 2010, 2010, p. 3, www.offshore-stiftung.com/Offshore/61/61/60005/.../download.html (accessed 02 ;October 2011).

^[22] ; ; ; See KPMG, Offshore Windparks in Europa - Marktstudie 2010, 2010, p. 54, www.offshore-stiftung.com/Offshore/61/61/60005/.../download.html (accessed 02 ;October 2011).

^[23] ; ; ; See also Section 4.3.

^[24] ; ; ; German OWP, normally have to cope with larger distances to the coast and higher water depths which cause higher investment costs compared to OWP in other European countries.

^[25] ; ; ; ; The legal framework in Germany, including the applicable feed-in tariff scheme, will be discussed in detail in Section 4 below.

^[26] ; ; ; For example with the implementation of a special offshore wind energy state credit programme as introduced by the German legislator (see Section 3.2.3 for further information).

^[27] ; ; ; See Section 4.1.1 for further information.

^[28] ; ; ; See Articles 2, 3 and Annex B of the Kyoto Protocol and Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, pp. 54, 149. The Kyoto Protocol entered into force in 2005 (for further information see BMU, Kyoto Protocol, 2011, pp. ;1-2, http://www.bmu.de/english/climate/international_climate_policy/kyoto_ protocol/ doc/41823.php (accessed 29 October 2011)).

^[29] ; ; ; See Mendonca, Feed-in Tariffs - Accelerating the Development of Renewable Energy, 2007, p. 37.

^[30] ; ; ; See BMU, Kyoto Protocol, 2011, pp. 1-2, http://www.bmu.de/english/climate/ international_climate_policy/kyoto_protocol/doc/41823.php (accessed 29 October 2011).

^[31] ; ; ; See Article 3, No. 1 and Annex 1 of EU Directive 2009/28/EC on the promotion of the use of energy from renewable sources.

^[32] ; ; ; See BMU, Development of renewable energy sources in Germany 2010, 2011a, p. 2, http://www.bmu.de/files/english/pdf/application/pdf/ee_in_deutschland_graf_tab_en. pdf (accessed 22 October 2011).

^[33] ; ; ; See Section 2.2.2 above.

^[34] ; ; ; For further information see Section 4.2.1.1.

^[35] ; ; ; See Bundesregierung, Strategie der Bundesregierung zur Windenergienutzung auf See, 2002, pp. 2, 4, 7, 9-10, 12, 15 ;et ;seq., 22, http://www.bmu.de/files/pdfs/allgemein/ application/pdf/windenergie_strategie_br_020100.pdf (accessed 30 October 2011).

^[36] ; ; ; See Bundesregierung, Energy Concept for an Environmentally Sound, Reliable, and Affordable Energy Supply (Energiekonzept für eine umweltschonende, zuverlässige und bezahlbare Energieversorgung), 2010, p. 3, http://www.bmwi.de/English/ Redaktion/Pdf/energyconcept,property=pdf,bereich=bmwi,sprache=en,rwb=true.pdf (accessed 30 October 2011).

^[37] ; ; ; Besides the expansion of energy supply from renewable sources, the integrated energy concept of the German government is also aiming at an improvement of energy efficiency, the necessary extension of the onshore electricity grid, as well as at the development of new electricity storage technologies. For further information see Bundesregierung, Energy Concept for an Environmentally Sound, Reliable, and Affordable Energy Supply, 2010, pp. 3-4, 11 ;et ;seq., 18 ;et ;seq., http://www.bmwi.de/Elish/Redaktion/Pdf/energyconcept,property=pdf,bereich=bmwi,sprache=en,rwb= true.pdf (accessed 30 October 2011).

^[38] ; ; ; The use of nuclear technology for the production of energy has always been controversially discussed in Germany. After long lasting and intensive debate, the German legislator actually decided already in 2000 to phase out the usage of nuclear power plants over time. However, by the introduction of its new energy concept, such decision has been considerably diluted by the significant extension of the operating lives for German power plants. At that time (i.e. before Fukushima), the German government was of the opinion that such limited extension seemed to be justifiable considering the fact that German nuclear power plants comply with the highest technological standards and belong to the safest in the world (see also Bundesregierung, Energy Concept for an Environmentally Sound, Reliable, and Affordable Energy Supply, 2010, pp. 15-16, http://www.bmwi.de/English/Redaktion/ Pdf/energyconcept,property=pdf,bereich=bmwi,sprache=en,rwb=true.pdf (accessed 30 ;October 2011).

^[39] ; ; ; However, new wind energy areas will be rather located offshore. The expected increase of onshore wind capacity will be to a large extent based on repowering activities of existing sites.

^[40] ; ; ; For further information see Section 5.2.2.

^[41] ; ; ; For further information see Section 4.3.

^[42] ; ; ; For further information see Section 4.3.

^[43] ; ; ; See Bundesregierung, Energy Concept for an Environmentally Sound, Reliable, and Affordable Energy Supply, 2010, pp. 4-5, 8-9, http://www.bmwi.de/English/ Redaktion/Pdf/energyconcept,property=pdf,bereich=bmwi,sprache=en,rwb=true.pdf (accessed 30 October 2011) and Bundesregierung, 10 point immediate action programme (10-Punkte-Sofortprogramm), undated/a, pp. 1-2, http://www.bmu.de/files/ pdfs/allgemein/application/pdf/10-punkte-sofortprogramm_en_bf.pdf (accessed 30 ;October 2011).

^[44] ; ; ; Thus, the German government has implemented the recommendations of the ethics commission (Ethik-Kommission), which was established after the Fukushima nuclear accident to analyse and clarify open questions concerning the future German energy supply in general, but also to suggest a final expiry date for the use of nuclear energy in Germany (see Dreizehntes Gesetz zur Änderung des Atomgesetzes (AtG), http://www.bundesregierung.de/Content/DE/Artikel/2011/08/2011-08-05-gesetze-energiewende.html (accessed 05 November 2011) and Ethik-Kommission, Deutschlands Energiewende - Ein Gemeinschaftswerk für die Zukunft, 2011, pp. 4, 6, http://www.bundesregierung.de/Content/DE/__Anlagen/2011/05/2011-05-30-abschlussbericht-ethikkommission,property=publicationFile.pdf (accessed 05 ;November 2011).

^[45] ; ; ; Before Fukushima the German legislator was looking rather for a cost-neutral way to increase incentives to invest (see Section 3.2.2 above), whereas afterwards also cost increasing measures have been implemented to additionally push the development of renewable energies (e.g. increased feed-in tariff and deferment of tariff reduction scheme for offshore wind energy projects; for further information see Section 4.3 below). Moreover, such supporting measures have been agreed even earlier than initially scheduled, i.e. the corresponding RE-Act amendment (EEG-Novelle) has been passed already in 2011 instead of 2012.

^[46] ; ; ; See also Grid Expansion Acceleration Act, GEAA (Gesetz über Maßnahmen zur Beschleunigung des Netzausbaus Elektrizitätsnetze, NABEG), http://www.bundes-regierung.de/Content/DE/Artikel/2011/08/2011-08-05-gesetze-energiewende.html (accessed 05 November 2011).

^[47] ; ; ; See Section 4.3 below and EI-Act (EnWG) amendment (Gesetz zur Neuregelung energiewirtschaftsrechtlicher Vorschriften, EnWGÄndG), http://www.Bundes-regierung.de/Content/DE/Artikel/2011/08/2011-08-05-gesetze-energiewende.html (accessed 05 November 2011).

^[48] ; ; ; This programme has been introduced by the German state bank “Kreditanstalt für Wiederaufbau (KfW)” in the meantime (program no. 273 - Offshore-Windenergie - was released in June 2011) and allows for a direct participation of KfW in loans and/or cost overrun facilities of up to 50% per OWP project, however, with an upper limit of EUR ;400 ;mn and EUR ;100 ;mn respectively. The maximum life of such loans is 20 years with grace periods of up to 3 years. For further information see KfW, Merkblatt KfW-Programm Offshore-Windenergie, 2011, http://k-f-w.net/kfw/de/I/II/Download_ Center/Foerderprogramme/versteckter_Ordner_fuer_PDF/6000001940_M_273_ Offshore_Windenergie.pdf (accessed 30 October 2011).

^[49] ; ; ; See BMWi, Der Weg zur Energie der Zukunft - sicher, bezahlbar und umweltfreundlich, 2011a, pp. ;1 ;et ;seq., http://www.bmwi.de/BMWi/Navigation/ energie,did=405004.html (accessed 05 November 2011).

^[50] ; ; ; No matter which political party was running the country.

^[51] ; ; ; In October 2010, German environment minister Röttgen said: “We will only be able to meet our energy policy target of 25,000 megawatt offshore wind power by 2030 if we resolutely advance the expansion of this energy sector. […]”. So, prospects are good that the German offshore wind energy industry can continue to rely on a supporting political environment (see BMU, EU Commission approves state aid for offshore wind farm alpha ventus - Environment Minister Röttgen noted: Decision comes at the right time, 2010, p. 1, http://www.bmu.de/english/current_press_releases/pm/46658.php (accessed 29 October 2011)).

^[52] ; ; ; A third RE-Act amendment (EEG-Novelle) has already been passed by the German government in year 2011 to further push the development of renewable energy and the area of offshore wind energy in particular. Such amendment will enter into force as of 01 January 2012 and thus one year earlier than initially scheduled. The major changes compared to the currently applicable legislation are outlined in Section 4.3 below. The RE-Act (EEG) is a typical feed-in tariff model, the most successful support scheme used by policy makers so far to support the growth of renewable energy (for further details concerning the specifics of a feed-in tariff model and the beginnings of the overall development of the German feed-in law system see Mendonca, Feed-in Tariffs - Accelerating the Development of Renewable Energy, 2007, pp. XIV, 8-9, 13 and 26 ;et seq.).

^[53] ; ; ; The German RE-Act (EEG) was, inter alia, designed to set up a national legal framework accelerating the compliance with the binding international and European climate protection and greenhouse gas reduction targets mentioned already above (see also Sections 3.1.1 and 3.1.2). ;

^[54] ; ; ; See Articles 1, 2 No. 1, 3 No. 3 and No. 9 RE-Act (EEG).

^[55] ; ; ; See Articles 1 (2) RE-Act (EEG). Such share has been increased to 35% in the meantime in the course of the introduction of Germany’s new energy strategy in September 2010 (see Section 3.2.2 above) and will be adjusted in the course of the next amendment of the RE-Act (EEG) accordingly (see Article 1 (2) No. 1, Bundesregierung, Gesetz für den Vorrang Erneuerbarer Energien (Erneuerbare-Energien-Gesetz - EEG), Konsolidierte (unverbindliche) Fassung des Gesetzestextes in der ab 1. Januar 2012 geltenden Fassung, undated/c, http://www.bmu.de/ files/pdfs/allgemein/ application/pdf/eeg_2012_bf.pdf (accessed 11 September 2011)).

^[56] ; ; ; Please note that even though Section 4.1.1 of this work usually specifically refers to OWP projects or OWP operators, most of the relevant articles of the RE-Act (EEG) do apply to renewable energy projects in general.

^[57] ; ; ; See Article 5 (1) RE-Act (EEG).

^[58] ; ; ; The Articles 276 and 280 of the German Civil Code, GCC (Bürgerliches Gesetzbuch, BGB) would apply accordingly (for further information see Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, p. 272 and Gabler, EEG 2009 - Grundzüge der neuen Rechtslage für Anlagen- und Netzbetreiber: Netzanschluss, Einspeisung, Vergütung, Ausgleichsregelung, Rechtsschutz, 2010, pp. 21-22).

^[59] ; ; ; See Article 13 (1) RE-Act (EEG).

^[60] ; ; ; For more details please refer to the subsequent Section 4.1.2 covering the relevant complementary provisions of the EI-Act (EnWG).

^[61] ; ; ; See Article 8 (1) RE-Act (EEG). The priority principle (Vorrangprinzip) applicable in Article 5 and 8 RE-Act (EEG) shall give energy from renewable sources a preferential treatment compared to energy from conventional sources (fossil or nuclear energy). That means that, for example, in cases of limited grid capacity, conventional energy operators would have to reduce their amounts of electricity produced to allow for a complete feed-in of the renewable energy available (see BMU, EEG - Das Erneuerbare Energien Gesetz: Die Erfolgsgeschichte nachhaltiger Politik für den Standort Deutschland, 2007, p. 5 and Gabler, EEG 2009 - Grundzüge der neuen Rechtslage für Anlagen- und Netzbetreiber: Netzanschluss, Einspeisung, Vergütung, Ausgleichsregelung, Rechtsschutz, 2010, pp. 13-14).

^[62] ; ; ; See Article 16 (1) RE-Act (EEG) in connection with Articles 20 (1), (2) No. 7, 21 and 31 (1), (2). Alternatively, an OWP operator also has the opportunity to sell the energy produced directly to third parties (Direct selling/Direktvermarktung) (see Article 17 (1) RE-Act (EEG)).

^[63] ; ; ; Based on Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, pp. ;672 ;et seq.

^[64] ; ; ; See Article 31 (1) RE-Act (EEG).

^[65] ; ; ; See Article 31 (2) RE-Act (EEG). Please note that those rules will apply for each individual generator of an OWP separately, i.e. the remuneration of a whole OWP will be calculated for each of its wind turbines individually. A good example how the remuneration scheme of the RE-Act (EEG) works in detail can be found in Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, p. 675.

^[66] ; ; ; See Article 21 (2) RE-Act (EEG).

^[67] ; ; ; See Article 21 (1) RE-Act (EEG). At first glance, the concurrence of Article 21 (1) and (2) RE-Act (EEG) sounds very plausible. However, the legislator has made a very fine distinction between thecommencement dateof the remuneration period on the one hand (Article 21 (1): first commissioning of OWG - no matter whether by pure renewable energy or not, an available grid connection and thus possible feed-in is not necessary for such purpose), and themomentwhen the OWP operator really has aclaim for paymenton the other (Article 21 (2): production of electricity exclusively from renewable sources and successful feed-in into the grid system as already mentioned above) (see also Gabler, EEG 2009 - Grundzüge der neuen Rechtslage für Anlagen- und Netzbetreiber: Netzanschluss, Einspeisung, Vergütung, Ausgleichsregelung, Rechtsschutz, 2010, pp. 96-97). Hence, OWP operators should facilitate that commissioning (Inbetriebnahme) of its OWG will take place only shortly before or only when the respective grid connection is available to avoid a partial loss of its payment claim (see also Kersting, Die Projektfinanzierung eines Offshore-Windparks, 2011, p. 59).

^[68] ; ; ; See Article 20 (1) No. 7a RE-Act (EEG).

^[69] ; ; ; See Article 9 (1) and 10 (1) RE-Act (EEG).

^[70] ; ; ; A detailed overview of all TSO duties considered in the RE-Act (EEG) can be found in Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, pp. 243 ;et ;seq.

^[71] ; ; ; See Gabler, EEG 2009 - Grundzüge der neuen Rechtslage für Anlagen- und Netzbetreiber: Netzanschluss, Einspeisung, Vergütung, Ausgleichsregelung, Rechtsschutz, 2010, pp. 7-8, Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, p. 85, and Oschmann/Sösemann, Erneuerbare Energien im deutschen und europäischen Recht - Ein Überblick, 2007, p. 2.

^[72] ; ; ; Indeed, the implementation of the first and second RE-Act amendment (EEG-Novellen), a third one under way, indicates that the legal environment may change from time to time. However, so far the legislator has only reacted on new developments not yet considered in the relevant statutes and usually always improved conditions for OWP investors to further increase incentives for investments in the offshore wind energy sector.

^[73] ; ; ; Klinski comes to the conclusion that investors should be in general protected from subsequent legal changes, but names two exemptions: The first one, the existence of a contradictory EU regulation, is rather theoretical, as German legislation is in line with existing EU law, and it is rather unlikely that the EU will issue a directive which could have a potential negative effect on the development of renewable energies in the future. The second exemption is that the German legislator might have the right to reduce feed-in tariffs if it should turn out that the initial levels set were too high and OWP investors gain an inappropriate high return on their investment which is much higher than initially expected by the state and the OWP operator/investor (see Klinski, EEG-Vergütung: Vertrauensschutz bei künftigen Änderungen der Rechtslage?, 2009, pp. ;45 ;et ;seq.). However, the potential risk of OWP investors to “lose” an upside which they never really expected to occur should not hinder a rational investor to invest.

^[74] ; ; ; See Mendonca, Feed-in Tariffs - Accelerating the Development of Renewable Energy, 2007, pp. 103-104.

^[75] ; ; ; See Mendonca, Feed-in Tariffs - Accelerating the Development of Renewable Energy, 2007, pp. XIV ;et ;seq., XX, 16 ;et ;seq. and 13 for the pros and cons of feed-in laws.

^[76] ; ; ; The introduction of the RE-Act (EEG) has led to a significant increase of the share of renewable energies in total German electricity consumption from 6% in 2000 to 17% in 2010 (see Bundesregierung, Entwurf - Erfahrungsbericht 2011 zum Erneuerbare-Energien-Gesetz (EEG-Erfahrungsbericht), 2011, p. 3, http://www.bmu.de/files/pdfs/ allgemein/application/pdf/eeg_erfahrungsbericht_2011_entwurf.pdf (accessed 11 ;September 2011)).

^[77] ; ; ; See BMU, EEG - Das Erneuerbare Energien Gesetz: Die Erfolgsgeschichte nachhaltiger Politik für den Standort Deutschland, 2007, pp. 20-21.

^[78] ; ; ; See Articles 1 (1), 11(1) and 12 (3) EI-Act (EnWG).

^[79] ; ; ; See Article 17 (2a) in connection with 118 (3) EI-Act (EnWG).

^[80] ; ; ; See Articles 5 (1) and 13 (1) RE-Act (EEG).

^[81] ; ; ; The relevant provision was part of the Infrastructure Planning Acceleration Act, IPAA (Infrastrukturplanungsbeschleunigungsgesetz, InfraStrPlanVBeschlG) which was passed in 2006.

^[82] ; ; ; The introduction of this cost exemption provision has had a significant positive effect on the profitability of OWP in Germany, as TSO now would have to cover the respective grid connection costs which so far have been responsible for about one third of the total investment costs for an OWP (see Dena, Offshore-Netze - Die Netzanbindung der Offshore-Windparks, 2009, pp. 1-2, http://www.dena.de/themen/ thema-esd/publikationen/publikation/dena-factsheet-offshore-netze-die-netzanbindung-der-offshore-windparks/ (accessed 09 September 2011).

^[83] ; ; ; See Article 17 (2a) in connection with 118 (3) EI-Act (EnWG). These two specific offshore wind energy-related articles do prevail over the general provisions considered in Article 5 and 13 (1) of the RE-Act (EEG) (see Gabler, EEG 2009 - Grundzüge der neuen Rechtslage für Anlagen- und Netzbetreiber: Netzanschluss, Einspeisung, Vergütung, Ausgleichsregelung, Rechtsschutz, 2010, p. 58, and Frenz/Müggenborg, Erneuerbare-Energien-Gesetz Kommentar, 2010, p. 404). Furthermore, legal experts are of the opinion that the TSO right to refuse the establishment of a grid connection, if economically unreasonable (unzumutbar) according to Article 17 (2) EI-Act (EnWG), does not apply under the offshore wind energy-specific Article 17 (2a) EI-Act (EnWG). However, even if the general Article 17 (2) EI-Act (EnWG) would apply, TSO would probably have difficulties to provide such evidence as they usually can pass on all related costs to the end customers (see Britz/Hellermann/Hermes, EnWG - Energiewirtschaftsgesetz, 2010, pp. 200, 265).

^[84] ; ; ; See BNetzA, Positionspapiers zur Netzanbindungsverpflichtung gemäß § 17 Abs. 2a

EnWG, 2009, http://www.bundesnetzagentur.de/DE/Sachgebiete/ElektrizitaetGas/ Sonderthemen/AnbindungOffshoreWindparks/AnbindungOffshoreWindparks_node. html (accessed 09 September 2011).

^[85] ; ; ; See BNetzA, Positionspapier zur Netzanbindungsverpflichtung gemäß § 17 Abs. 2a

EnWG, 2009, p. 4, http://www.bundesnetzagentur.de/DE/Sachgebiete/ElektrizitaetGas /Sonderthemen/AnbindungOffshoreWindparks/AnbindungOffshoreWindparks_node. html (accessed 09 September 2011).

^[86] ; ; ; Please refer to the subsequent Section 4.2 for further information.

^[87] ; ; ; See BNetzA, Positionspapiers zur Netzanbindungsverpflichtung gemäß § 17 Abs. 2a EnWG, 2009, pp. 5 ;et ;seq., http://www.bundesnetzagentur.de/DE/Sachgebiete/ Elektrizitaet/Gas/Sonderthemen/AnbindungOffshoreWindparks/AnbindungOffshore Windparks _node.html (accessed 09 September 2011).

^[88] ; ; ; See Kersting, Die Projektfinanzierung eines Offshore-Windparks, 2011, p. 59, Gabler, EEG 2009 - Grundzüge der neuen Rechtslage für Anlagen- und Netzbetreiber: Netzanschluss, Einspeisung, Vergütung, Ausgleichsregelung, Rechtsschutz, 2010, p. ;60, Britz/Hellermann/Hermes, EnWG - Energiewirtschaftsgesetz, 2010, pp. 200, 265 and Wustlich, Das Recht der Windenergie im Wandel - Teil 2: Windenergie auf See, 2007, p. 128.

^[89] ; ; ; For further information regarding the force majeure concept in general see Vinter, Project Finance, 1998, pp. 88 ;et ;seq.

^[90] ; ; ; The much more important question is rather what kind of events are to be considered force majeure and what kind of events not. There is no doubt that the weather risk is normally defined as a force majeure event. However, whether delayed supplies to the TSO should also qualify as a force majeure event is another story. This may be rather a question of agreeing proper liquidated damages in the respective supply contracts. ;

^[91] ; ; ; Considering the fact that available offshore wind energy priority areas in the German EEZ are limited and thus it is not rare that the applications of different OWP projects compete for the same offshore site (see Appendix D, question 3), good knowledge about the FMHA (BSH) approval process can be a key advantage.

^[92] ; ; ; The vast majority of OWP to be installed in Germany will be located in the German EEZ, and only a very small number of OWP do or will operate in the German Territorial Sea. Hence, this section focuses solely on the approval process required by law for the construction of OWP in the German EEZ to allow for a more detailed analysis of the subject matter. Furthermore, available areas in the German Territorial Sea for installing (large) OWP are very limited and are by far not sufficient to implement the German government’s ambitious growth plans for offshore wind energy. Finally, compared to OWP erected in the German Territorial Sea, OWP located further out at sea in the German EEZ are much more accepted by the general public, as they are usually not visible from the coast. Thus, the natural scenery remains largely unaffected (see FMHA (BSH), Non-technical summary (North Sea): environmental report, undated, p. 23, http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_ German _EEZ/index. jsp (accessed 20 June 2011)).

^[93] ; ; ; Spatial plans have been introduced for the German EEZ of the North and the Baltic Sea.

^[94] ; ; ; The sovereignty of a coastal state (Küstenstaat) ends at the 12-Mile Zone and thus does not extend to the EEZ sea belt further out at the sea. The latter area is instead subject to a special legal regime (besondere Rechtsordnung), which assigns to the respective coastal state sovereign rights (souveräne Rechte) and specific jurisdiction (Hoheitsbefugnisse), regarding, e.g. the production of energy from wind and the exclusive right to construct, authorise and regulate the construction of facilities in the EEZ (see Part II, Section 1, Article 2 and Part V, Article 55-60 UNCLOS (SRÜ); for an in-depth analysis on the application of UNCLOS (SRÜ) in the EEZ please refer to Maier, Die Ausdehnung des Raumordnungsgesetzes auf die Ausschließliche Wirtschaftszone (AWZ) dargestellt an der auslösenden Situation der raumordnerischen Steuerung von Offshore-Windenergieanlagen, 2008, pp. 62 ;et ;seq.). The aforementioned legal provisions include also the right to approve the construction of OWP (see Klinski, Rechtliche Probleme der Zulassung von Windkraftanlagen in der ausschließlichen Wirtschaftszone (AWZ), 2001, p. 10). ;

^[95] ; ; ; The FMRA (SeeAufgG) assigns the authorization to examine and approve facilities (including OWP) in the German EEZ to the German federal state (Bund), who in turn has assigned this right to the FMHA (BSH) (see Section 1, No. 10a and Section 5 (1), No. 4 FMRA (SeeAufgG)).

^[96] ; ; ; See Article 1.1, No. 1 and 1.2, No. 1 MFO (SeeAnlV). On the contrary, the approval process of OWP within the Territorial Sea (i.e. 12-Mile Zone) is governed by the laws and regulations of the respective federal coastal state (Küstenbundesland) (see FMHA (BSH) http://www.bsh.de/en/Marine_uses/Industry/Wind_farms/index.jsp (accessed 22 ;June 2011).

^[97] ; ; ; See Article 2 MFO (SeeAnlV). The German legislator prohibits the construction of OWP in the EEZ as long as no approval has been granted for such kind of projects by the FMHA (BSH), a higher federal authority in Germany belonging to the Federal Ministry of Transport, Building and Urban Development(Bundesministerium für Verkehr, Bau und Stadtentwicklung). In German legal literature such approach is often called a preventive ban subject to permit (präventives Verbot mit Erlaubnisvorbehalt) (see Klinski, Rechtliche Probleme der Zulassung von Windkraftanlagen in der ausschließlichen Wirtschaftszone (AWZ), 2001, p. 45). Nevertheless, the FMHA (BSH) has the right to exempt facilities not endangering the marine environment from the duty to apply for an approval according to Article 10 MFO (SeeAnlV).

^[98] ; ; ; Simplified description (for more details see Article 3 MFO (SeeAnlV)).

^[99] ; ; ; See Article 5 (3) MFO (SeeAnlV) and Klinski, Rechtliche Probleme der Zulassung von Windkraftanlagen in der ausschließlichen Wirtschaftszone (AWZ), 2001, p. 68.

^[100] ; ; See Article 6 MFO (SeeAnlV) and FMHA (BSH), http://www.bsh.de/en/Marine_uses/ Industry/Wind_farms/Approval_Procedure.jsp (accessed 22 June 2011).

^[101] ; ; With its last revision in March 2010, the Federal Nature Conservation Act (Bundesnaturschutzgesetz) was extended to the German EEZ. Thus, in addition to the required FMHA (BSH) approval, a separate approval to be granted by the FANC (BfN) became necessary when planning the erection of an OWP in the German EEZ.

^[102] ; ; According to Article 2a MFO (SeeAnlV), an EIA (UVP) is obligatory for all OWP which are covered by the definition of Article 3 EIA-Act (UVPG) and, at the same time, do require an approval by the FMHA (BSH) according to Article 2 MFO (SeeAnlV). However, for OWP consisting of at least 20 windmill-powered plants with an overall size of each plant of more than 50 ;m, such EIA (UVP) has to be conducted in any case (see Article 3b (1) and Appendix 1, Clause 1.6.1 EIA-Act (UVPG)). OWP in the German EEZ do normally easily meet both requirements (in size and in number of plants), as they would be barely economically feasible otherwise due to the long distance to the coast. To achieve more transparency and further reduce uncertainties in the course of the OWP project’s environmental assessment, the FMHA (BSH) has recently developed a pre-defined standard (“Standard: Investigation of the Impacts of Offshore Wind Turbines on the Marine Environment”), which has to be considered by the respective applicant when performing its EIA (UVP) (see FMHA (BSH) web page, http://www.bsh.de/en/Products/Books/Standard/index.jsp (accessed 25 June 2011)).

^[103] ; ; Council Directive 92/43/EEC

^[104] ; ; Council Directive 79/409/EEC. See also Klinski, Rechtliche Probleme der Zulassung von Windkraftanlagen in der ausschließlichen Wirtschaftszone (AWZ), 2001, p. 25.

^[105] ; ; For further information see EU web page, http://europa.eu/rapid/pressReleasesAction. do?reference=MEMO/05/294&format=HTML&aged=0&language=EN&guiLanguage=en (accessed 25 June 2011).

^[106] ; ; For an overall summary of applicable international, European and national legislation on the protection of the environment in Germany please refer to FMHA (BSH), Umweltbericht zum Raumordnungsplan für die deutsche ausschließliche Wirtschaftszone (AWZ) in der Nordsee, pp. 17-21, http://www.bsh.de/de/ Meeresnutzung/Raumordnung_in_der_AWZ/index.jsp (accessed 25 June 2011).

^[107] ; ; In this case, the FMHA (BSH) has no administrative discretion (kein Ermessensspielraum) and is bound to grant its approval (gebundene Entscheidung). However, the approval granted does not have a so-called concentration effect (keine Konzentrationswirkung) (see Maier, Die Ausdehnung des Raumordnungsgesetzes auf die Ausschließliche Wirtschaftszone (AWZ) dargestellt an der auslösenden Situation der raumordnerischen Steuerung von Offshore-Windenergieanlagen, 2008, p. 26, and Klinski, Rechtliche Probleme der Zulassung von Windkraftanlagen in der ausschließlichen Wirtschaftszone (AWZ), 2001, p. 15). At the moment, the necessary FANC (BfN) approval must be still obtained separately, but this might be soon no longer necessary. However, as of to date, the separate approvals to be granted by the responsible WSD and the respective TSO (for grid connection) will remain.

^[108] ; ; For further details see Article 14 (5) MFO (SeeAnlV) and Wustlich, Das Recht der Windenergie im Wandel - Teil 2: Windenergie auf See, 2007, pp. 128-129.

^[109] ; ; In the past, the standard time limit within which the construction of an OWP had to be started was 2 years after its approval. Today, this time limit is variable and is determined by the FMHA (BSH) on a case-by-case basis depending on the specifics of the individual project (see Appendix D, question 5).

^[110] ; ; See Article 4 (1), (4), Article 5 (2) MFO (SeeAnlV). The OWP operator is required to use state-of-the-art technology (Stand der Technik). In addition to the STEA (StUK) to be considered when performing the EIA (UVP) (see footnote 102), the project developer must also comply with the “Standard: Ground Investigations for Offshore Wind Farms (Standard: Baugrunderkennung für Offshore-Windenergieparks)” and the “Standard: Design of Offshore Wind Turbines (Standard: Konstruktive Ausführung von Offshore-Windenergieanlagen)”. The latter contains binding technical requirements for each of the following specific OWP project phases: development and design, construction and implementation, operation, deconstruction (see FMHA (BSH) web page, http://www.bsh.de/en/Products/Books/Standard/index.jsp).

^[111] ; ; See Article 12 (1) MFO (SeeAnlV) and FMHA (BSH), http://www.bsh.de/en/Marine_ uses/Industry/Wind_farms/Approval_Procedure.jsp (accessed 22 June 2011). To ensure an orderly removal of the OWP facilities by the OWP operator, the FMHA (BSH) has the right to require adequate security from the applicant if it deems it necessary (see Article 12 (3) and Appendix MFO (SeeAnlV)). The FMHA (BSH) normally makes use of this right. Typically, a corporate or bank guarantee will be required covering the expected costs of such removal. As a rule of thumb, Mr. Dahlke states that the expected costs of removal will be slightly less than the installation costs of the OWP (see Appendix D, question 7). KMPG calculates removal costs of about EUR 0.2 ;mn/MW (see KPMG, Offshore Windparks in Europa - Marktstudie 2010, 2010, p. 82).

^[112] ; ; Once the period has expired, an approval can only be revoked (Widerruf) by the FMHA (BSH), if new findings or information arguing against the project have suddenly emerged, which were not available when the respective approval was granted. However, even in such cases it is rather likely that a subsequent revocation of a FMHA (BSH) approval would come along with the project developer’s right to claim an indemnity for any damages suffered (see Appendix D, question 2).

^[113] ; ; See Klinski, Rechtliche Probleme der Zulassung von Windkraftanlagen in der ausschließlichen Wirtschaftszone (AWZ), 2001, p. 71.

^[114] ; ; The so-called priority principle (Prioritätsprinzip) applies (see Article 5 (1) MFO (SeeAnlV) and Dannecker/Kerth, Die rechtlichen Rahmenbedingungen für Offshore-Windenergieanlagen in der deutschen Ausschließlichen Wirtschaftszone (AWZ), 2009, p. 751). Competing applications for the same sea site are not uncommon in practice as the amount of promising priority OWP areas is rather limited (see Appendix D, question 3), which is one more good argument for an OWP project developer to arrange for a fast and efficient approval process. ;

^[115] ; ; See Article 3a MFO (SeeAnlV).

^[116] ; ; See subsequent Section 4.2.1.2 for more details.

^[117] ; ; ; The definition of particularly suitable areas for OWP in the German EEZ according to Article 3a MFO (SeeAnlV) was a first step in the right direction to improve the environment for OWP investors (see also Section 4.2.1.1 above). This concept was finally replaced and refined by a more integrated approach with the introduction of the spatial planning for the German EEZ and the definition of wind energy priority areas.

^[118] ; ; See FMHA (BSH), Attachment - Spatial Plan for the EEZ in the North Sea, 2009, p. 3, http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/index.jsp (accessed 22 June 2011) and Maier, Die Ausdehnung des Raumordnungsgesetzes auf die Ausschließliche Wirtschaftszone (AWZ) dargestellt an der auslösenden Situation der raumordnerischen Steuerung von Offshore-Windenergieanlagen, 2008, p. 16.