German Constitutional Court Rules on Complaints Against Offshore Wind Energy Act

The First Senate of Germany’s Federal Constitutional Court has ruled on constitutional complaints filed against the country’s existing Offshore Energy Act (WindSeeG).

On the matter of the Act not providing for any compensation for the planning and site investigation expenses incurred by developers whose projects were initiated under previously applicable law but were terminated when the existing Act entered into force, the First Senate found the Act to be unconstitutional.

“Compensation is required where documents and results of any investigations can still be utilised for the “preparatory site investigations” conducted by the state under the new law”, the First Senate stated in a press release from 20 August.

The rest of the constitutional complaints made against the Offshore Energy Act were rejected.

In the case of the rejected complaints, the First Senate found the Offshore Wind Energy Act to be compatible with the requirements of the general principle of the protection of legitimate expectations.

According to the ruling on these complaints, the Act does not violate the fundamental rights to property and freedom of occupation, and it does not violate the general guarantee of the right to equality.

The constitutional complaints arose after the Ordinance on Offshore Installations Seaward of the Limit of the German Territorial Sea – which was applicable until the end of 2016 and under which the complainants had submitted requests for approval of offshore wind farms located in German North Sea Exclusive Economic Zone in the North Sea – was replaced by the current Offshore Wind Energy Act, which led to a fundamental revision of the approval procedure for wind farms located in the Exclusive Economic Zone.

Under the old regulation, offshore wind farms could be approved without any prior formal planning or systematic coordination of the establishment of connection to the power grid, while the Offshore Wind Energy Act brought more detailed provisions for the approval procedure.

“In order to transition to the new system, ongoing planning approval procedures were terminated and previously issued permits lost their validity. The provisions under the transitional legal framework are not applicable to the complainants’ projects”, the First Senate explained.

The First Senate held that the Offshore Wind Energy Act has a quasi-retroactive effect that is not entirely justified under constitutional law, and that the complainants must receive financial compensation for any necessary expenses for planning and site investigations insofar as this can be of use to the preparatory site investigation conducted by the state under §§ 9 et seq. of the existing Offshore Wind Energy Act.

The legal authority also said that, to be considered of use, tenders to establish an offshore wind farm on a relevant site must be accepted by 31 December 2030. The legal basis for such interests in compensation must be set out by the legislator in greater detail, with the legislator obligated to do so until 30 June 2021 at the latest.