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faculty of law groningen centre of energy law

29-10-2012 1

Developing Transnational Electricity Infrastructure Offshore: Legal Framework and Regulatory Solutions Hannah Katharina Müller, LL.M. Groningen Centre of Energy Law University of Groningen

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faculty of law groningen centre of energy law

29-10-2012

Overview

› Legal framework under international law

› Applicability EU law & EU competence to establish a legal framework for offshore development

› Legal framework under national law

› Challenges and possible solutions

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faculty of law groningen centre of energy law

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International Law

› States` jurisdiction offshore

› UN Convention on the Law of the Sea (UNCLOS)

› Territorial sea

Sovereignty, subject to Convention

› EEZ

Sovereign rights for economic exploitation

Jurisdiction over use of installations

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faculty of law groningen centre of energy law

29-10-2012

Challenges

› Interconnecting or transit cables

Lack of clarity concerning jurisdiction

Resort to general rules of international law

› UNCLOS focuses on exploitation by single state

› Yet, states have to go beyond national approach:

Can EU become active in developing legal framework?

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faculty of law groningen centre of energy law

29-10-2012

EU Law

› Does EU law apply to the marine areas?

› To what extent does the EU have the authority to adopt legislation for the energy sector?

› Can the EU provide an adequate legal framework for offshore grid development on its own?

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faculty of law groningen centre of energy law

29-10-2012

Scope EU Law

› Article 52 TEU

› Applies to territory + territorial sea

› Maritime zones outside territory?

MS must apply EU law when they have the respective rights offshore

› Consequences

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faculty of law groningen centre of energy law

29-10-2012

EU Competence

› Art. 194 TFEU (Energy Chapter).

What is the competence/where are the limits?

Has it been extended?

› Diverging opinions in literature

Energy legislation without explicit competence

May lead to more political certainty & legal clarity

› Relation with other competences

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faculty of law groningen centre of energy law

29-10-2012

Outlook › Majority of future energy legislation probably based

on Art. 194 TFEU

› Role of Art. 172 TFEU (TEN-E): Proposal for guidelines TEN-E

Implication for grid development?

Forum to cooperate?

› Main competence is still with MS

EU may regulate (internal market/cross border)

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faculty of law groningen centre of energy law

29-10-2012

First Conclusions

› International law allows for coordinated development, but no clear directions

› EU can provide a forum to cooperate (Article 114, Article 194 TFEU)

› National Law still the decisive factor?

Uncertain relations between EU/MS competences

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faculty of law groningen centre of energy law

29-10-2012

National Law

› Different approaches

UK: OFTO is responsible, competitive tender

NL: Developer responsible

Denmark:

- Tender: TSO owns cables

- Open door: developer pays transmission of the produced electricity to land (never applied)

Germany: TSO responsible, joint links

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faculty of law groningen centre of energy law

29-10-2012

Challenges

› Differences might constitute barriers

For example the obligation to connect OWF in Germany (Kriegers Flak)

Lacking incentives to cooperate

Subsidies

No overarching long-term planning

› What would an optimal legal framework involve?

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faculty of law groningen centre of energy law

29-10-2012

Conclusions

› The chance might be missed to coordinate national development

› A common (European) approach would facilitate a more efficient connection

› A European/regional framework is needed

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Thank you for your attention.

H.K.Muller@rug.nl