Cet article est uniquement disponible en anglais. Il a pour objet de décrire le nouveau régime indemnitaire applicable aux retards ou indisponibilités du raccordement des installations de production à partir d’énergies marines renouvelables. N’hésitez pas à contacter le cabinet pour tout complément.
The indemnification regime applicable to producers of electricity from renewable marine energies in case of connection works delay or transmission network unavailability or dysfunction, has evolved over time. The decree No. 2022-315 of 3 March 2022 modifies once again the regulatory framework.
Throwback to the previous indemnification regimes.
Tenders 1 and 2. In order to reassure offshore wind developers and lenders in consideration of projects without precedent in France, the law No. 2017-227 of 24 February 2017 created a lump-sum indemnification regime in case of connection works delay, at Article L. 341-2, 4°, of the Energy Code. This framework, which benefits to all renewable marine energy plants, is specified by the decree No. 2017-628 of 26 April 2017 (codified at Articles D. 342-4-9 to R. 342-4-11 of the Energy Code) and by a ministerial order of 10 November 2017.
This regime covers the first six offshore wind farm projects (c. 500 MW each, bottom-fixed), awarded in 2012 and 2014: Saint-Nazaire, Fécamp, Courseulles-sur-Mer, Saint-Brieuc, Yeu-Noirmoutier and Dieppe-Le Tréport.
Absent these provisions, the liability of the TSO may have been sought on the grounds of ordinary contract law and of the contractual frameworks binding the parties, with higher uncertainties on the extent of TSO’s liability: this is not so convenient for smaller projects but the stakes and thus the risks are even higher for major offshore windfarm projects. A lump-sum regime allows for a faster and more transparent indemnification, while lowering the risk of disputes.
Tenders 3 and sq. The law No. 2017-1839 of 30 December 2017, which provided that the TSO RTE shall bear the costs of the offshore substation of marine renewable energies projects, also specified at Article L. 342-3, indent 5, and Article L. 342-7-1 of the Energy Code, that the projects awarded following tenders which notice is posterior to 1st January 2016 shall benefit from a new indemnification regime.
This new framework has been detailed by the decree No. 2018-222 of 30 March 2018, codified at Article D. 342-4-12 and D. 342-4-13 of the Energy Code. It does not only provide for indemnification in case of delay but also for indemnification during the operation of the plant, in case of unavailability or dysfunction of the connection works.
The projects covered by this regime are the Dunkirk (c. 500 MW fixed-bottom), the Normandy (c. 1 GW fixed-bottom; ongoing tender), the South Brittany (c. 250 MW floating; ongoing tender) projects and all future tendered projects.
The modifications introduced by the decree of 3 March 2022.
The new decree modifies the second indemnification regime described above and thus applies to the projects awarded under tenders 3 and sq.
Limitation to a delay of the whole connection works. Article D. 342-4-12 of the Energy Code now provides that the regulatory lump-sum for delay shall only be due if the connection works are delayed beyond the date when the whole connection works should have been made available. It means that the indemnification regime will not be triggered by a delay only affecting the part of the connection works that were supposed to be made available earlier than the remaining of the connection works.
Indemnification period in case of delay. The decree specifies that the lump-sum for connection works delay applies to the period between the date when the connection works should have been made available to the producer, and the date when they have actually been made available to the producer. This period of indemnification shall however not exceed the period between the latest availability date of these works as provided by the tender specifications, and the date when they have actually been made available to the producer.
Moreover, the producer may only benefit from the indemnification for delay if it affects the wind turbine generators (WTGs) that may actually produce electricity on site. The previous regime only required the producer to justify that a final firm order had been issued with an installation date of the WTGs set before the date when the connection works were foreseen to be made available.
Extension of the period covered by the indemnification for unavailability or dysfunction. The period covered by the regulatory indemnification regime does not only cover the power purchase agreement or contract for difference signed with EDF, but now also covers the period before the entry into force of this contract. The unavailability of the transmission system during this early period of operation of the plant thus benefits from the regulatory lump-sum provided by the decree, notwithstanding the possibility to apply ordinary contract law (however, other indemnities that may be provided in the grid tariff for the same prejudice shall not apply, as in the previous regime).
Starting point of the indemnification in case of unavailability of the transmission system. Being consistent with the previous modification, the decree specifies that the indemnification for unavailability of the transmission system takes place from the date when the connection works have actually been made available to the producer. The previous regime provided that the starting point was the latest availability date of these works as provided by the tender specifications.
Waiting period in case of unavailability. The previous regime provided for a waiting period, according to a number of days of unavailability of the connection works. It is now an amount of energy in MWh per MW. As previously, the waiting period is progressive per 5-year periods, thus taking into account the higher risk of unavailability of the connection works the older they get.
The new waiting period formula is more objective since it is not affected by the meteorological conditions: a delay in winter time is more harmful to the producer if the waiting period is a daily amount and more favorable to him in case of delay in summer time. Having an amount of energy as waiting period prevents this bias.
It should be noted that for the period prior to the entry into force of the power purchase agreement or – most likely – the contract for difference, a distinct waiting period applies depending on the characteristics of the connection: direct current or alternating current.
The waiting period is without prejudice of the 10% deductible applicable to the lump-sum granted in case of delay or unavailability of the connection works, which remains relevant.
Cooperation in case of delay. Finally, the decree provides for a better coordination and cooperation between RTE and the developers or producers. That is a monthly update between the parties in case of delay in the transmission works, and a mandatory meeting after the end of the three-year indemnification cap in order to find a permanent solution to carry on with the project.
Reminder on the marine energies projects awarded after tender.
The developers must keep in mind that the indemnification regime provided in the Energy Code as modified by this decree, may be modified for the projects awarded through a tender pursuant to Article L. 311-10 sq. of the Energy code.
All ongoing offshore windfarm projects up to date have been subject to this tendering procedure. However, such alternative indemnification is not mandatory and the tender specifications may be confined by the authorities to a reference to the regulatory regime described above, or may not even refer to this regime in which case it would apply anyway.
Negotiations during the competitive dialogue phase may not be excluded on this point and this is one of the many points of focus that the tenderers must keep in mind.
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