Comparative-contrastive analysis of the questionnaires related to the legal basis for the authorization and installation of offshore wind farms, the system of incentives and the electric market

Plants installed, on going projects, project proposal In the light of the data received on the regulations in the countries involved, is shown a considerably diverse picture both in terms of facilities, both in terms of resources and investments allocated. Some countries, like the Netherlands and Germany, show more experience in the planning and building of wind farms offshore, others, such as Italy, Greece and Latvia are making their first steps only now.

Legal framework – permit release for the construction and functioning of OSW plants With regard to the procedures for permits and authorizations necessary for the construction of the plants there is in all the countries concerned a particularly elaborate and complex regulatory structure. In each country there is a superposition of multiple regulations, issued by different authorities sometimes on different aspects, other times on the same side of the problem: that clearly involves great difficulties for interpreters and creates a lack of clarity among the operators involved, resulting in unnecessary delays procedure.

Suggestion It would be of paramount importance to achieve greater legal clarity and possibly uniformity (if possible at the European level, but at least at the national level) in the rules on the authorization to build and operate plants for the production of energy from renewable sources, going to include even those off-shore and taking into account in a unified way all the related issues, such as the environmental impact study (which seems to be required by all the countries concerned).

Legal framework – parties concerned and authorities involved in the procedure of permit release Generally the parties and/or the authorities concerned in the procedure for the granting of permits and those with expertise on maritime zones often coincide. A number of Ministries are always involved, different for each country. In certain cases the Ministries simultaneously involved are few, usually the Ministry of Transport and/or the Economy and/or the Environment, as in Italy, Germany, Latvia and the Netherlands. In other cases, on the contrary, are in a higher number, with the likely consequence of a significant lengthening of the time and complexity of the procedure: see Poland with seven Ministries and Greece with six. Also many local offices are involved in the procedure, such as the Maritime Offices. The parties involved may be different depending on the construction site of the wind turbine (within or beyond the twelve nautical miles from the coast).

Suggestion A) Well aware that the subject of renewable energy potentially affects many areas and that the authorities involved in the abstract may be many, it would be, however, more appropriate to keep minimized the number of institutions involved. B) Always with a view to greater speed and simplicity, deserves to be considered the possibility that regardless of the place of construction of the plant (whether within or beyond the twelve nautical miles from the coast), at least at the level of licensing, the procedure would be carried out exclusively by authorities just at one level.

Legal framework – relation between the OSW plant Licence and the EIA The environmental impact assessment is generally a prerequisite for the OSW plant licence, as in Italy, Latvia, Germany, the United Kingdom. In other cases (Poland, the Netherlands) is, however, necessary after obtaining the location permit.

Legal framework – the authorization procedure The authorization procedures, although structurally different in the involved countries, are often substantially similar to each other: for example, in Italy, Poland and Latvia include obtaining an authorization, a license and an environmental impact assessment.

Suggestion It is considered appropriate to examine whether and in which countries there are mechanisms of so-called "consent by silence". The question is: do the laws of the countries concerned, where they have set the precise timing procedural which the administrations involved in the process are bound to observe, provide, in the event of failure to comply with these deadlines, the adoption of the principle of tacit consent, that, after the time limit laid down, the authorization and/or license required by individuals is deemed to be given?

Legal framework – the licencing procedure and the procedure for the authorization of the connection plant to the power line In Italy, Greece and Latvia (in the latter works a company in monopoly) the licensing procedures includes the authorization procedure for the facility to connect to the power line. The same does not happen in other countries.

Legal framework – restrictive rules, compensative measures, standards applied for the settling in the landscape Each country has its own autonomous rules. In the Netherlands exists a special compensatory measure consisting of the purchase by the companies who commissioned the construction of wind power plants of the land areas to be devoted to nature reserves. In the Netherlands, Germany, Poland and Latvia in the selection of areas for implant placement are taken into account the needs of fisheries, shipping and marine fauna (e.g. wildlife migration).

Suggestion It would seem appropriate to establish at European level a few clear ground rules about choosing the place of installation of the plant, taking into account certain factors, such as shown by Germany, the Netherlands, Latvia and Poland (i.e. navigation, fishing and natural areas/wildlife migrations). Certainly useful, in order to obtain the benefit of the local communities concerned, is the adoption of compensatory measures as the Dutch ones.

The incentive system While in Italy and in Germany the incentive system is operating normally, in Poland it will be introduced only in 2013, in the Netherlands has been temporarily eliminated just for the off-shore wind and in Malta is non-existent. In Scotland has been made available the fund of seventy million pounds for renewable energy in order to finance the offshore wind sector. To that fund are added those at the regional level. In almost all the countries concerned (in Italy, Germany, Poland, the Netherlands, Scotland), the mechanism of incentives involves the issue of so-called green certificates.

Suggestion Given the particularly high initial investment required for the installation of offshore wind power, it is considered useful to create a single European fund ad hoc, access to which should be granted to all the EU countries bordering the sea/ocean in proportion to the amount of population that inhabits them. Having regard to the status quo, what appears to be the best practice, however, is that of Germany, as it provides additional incentives not only for the construction of new infrastructure and facilities, but also for the training of technical staff. A similar system is also found in Scotland, where the above mentioned fund of seventy million pounds is directed primarily to finance the creation of the supply chain.

The Electric Market Unlike in other interested countries (Italy, Germany, the Netherlands, UK), in Latvia and Poland the electric market is not liberalized.

Suggestion It now seems beyond doubt that in order to ensure a quality service at competitive prices, the line to follow is that of liberalization. As suggested in the questionnaire filled in by the Scottish partner, with a view to creating a single EU electric market, liberalization could be extended to the whole of Europe, so that every citizen can have the freedom to choose, for example, the company that distributes which offers the best service. In this case, however, it will be first necessary to standardize the electricity transmission and the energy regulation.

Issues out of the PESTEL that are relevant

- 1 - Since each country concerned has its own peculiar territorial institutional structure (think to the Germany's federal structure, to the regional Italian, to the Dutch, and so on) what are, in the various stages of the proceedings, the role and responsibilities of the central Government with respect to the regional/local authorities, both when there’s a project to build a plant within twelve nautical miles from the coast, and when it will be settled in the Exclusive Economic Zone?

- 2 - What are the timing of the bureaucratic/administrative steps required for obtaining permits and concessions? In fact, if the steps under the laws of a state are more than those required in another state, but the total times are lower, then the best practice could be identified in the procedure requested by the first country.

- 3 - Are any mechanisms of consent by silence provided by the legal framework of the countries concerned in cases of non-compliance of the government/authorities involved in the process with procedural deadlines set? What is the value of the consent by silence? Does it acquire the same value of the authorization/license measure that the authority would have had to issue, or has less force?

- 4 - There should be evaluated if a public engagement procedure, with the intervention of the various categories of stakeholders in the process could allow to prevent/avoid the opposition ex post of local communities, in the territory of which must be constructed plants, making them participate, through their representatives, the authorization procedure. Then, do the participation of stakeholders in some of the phases of the process may permit the omission of certain procedural steps later?

- 5 - Are there any limits in the constitution and/or primary sources of law in the countries involved in the adoption and application of a uniform European legislation on the subject, which can also change the internal administrative procedures?

Five issues to be deepened 1 European guidelines are needed to standardize the authorization procedures; 2 The gradual liberalization of the electric market poses the problem on the financing for the construction of the plants. A possible solution would be to create a dedicated European fund intended to finance the construction of infrastructure and facilities; 3 - It should be considered the creation of a common market for green certificates, or of a common system of incentives for wind energy production; 4 It is necessary to establish at Community level what are the factors to be taken into consideration when choosing the location of the plant and in carrying out the Environmental Impact Assessment (EIA); 5 Given the difficulty in recruiting skilled personnel, should be evaluated the possibility of creating special centers for training of specialized personnel.