Analysis - Legal storm looms over France's offshore plan

FRANCE: While developers are pushing ahead with projects selected in the first round of the French offshore wind power tender, and bids in the second round are due on 29 November, environment minister Philippe Martin has indicated that a third tender will be launched next year.

French president François Hollande (Picture credit: Jean-Marc Ayrault)

In a separate move, president François Hollande tantalisingly announced a tender for floating turbines is "envisaged" for 2015, without giving further details.

Despite all the optimism, however, there is still a long way to go before turbines start turning off the coast of France.

Projects awarded in the tender still have to pass through a complex permitting process and a lengthy appeal period. The timing over grid connections is also tight.

More worryingly, the industry has recently signalled its concern over another potential problem waiting in the wings, regarding the legal standing of the offshore concession.

The decree governing the granting of the right to use the public maritime domain, which forms part of the permitting procedure, was issued in 2004.

As is common in international law, the decree outlines what happens if the state wishes to revoke the right for reasons of public interest: if, to take an extreme example, large oil and gas reserves are discovered in an area allocated for offshore wind power. 

The decree currently says that, in the case of an early termination, the state can only pay compensation for that part of the investment which has not yet depreciated.

"If, for example, you have a 20-year power purchase agreement depreciated over 15 years, the state could grab the asset for free after 15 years,"said Anne Lapierre, a partner at law firm Norton Rose Fulbright.

Under international law, the general principle normally applied is that the state should pay the full amount, including all outstanding loans, equity and all or part of the revenue.

The uncertainty surrounding compensation for early termination will "very quickly create stress on the bank," Lapierre noted, making it difficult for projects to secure financing. It will also impact the sponsor, who typically puts up 30% of the project cost in equity, she added.

The question is not new — it was also an issue during discussions over the financing of Enertrag's Côte d'Albâtre project, which was never built — but has largely been pushed into the background while everyone focuses on the current tenders. As the first four projects advance, however, the matter will become increasingly urgent, Lapierre warned.

According to the present timetable, the developers are now completing the risk-mitigation stage, comprising various technical and financial feasibility studies. Permitting comes next, followed by a final investment decision in late 2015.

The industry has raised its concerns over the terms of the concession with the government and is pushing for an early resolution, Lapierre said. Since any changes to the decree will take time, it is essential that work starts soon on formulating an amendment.