Fast, faster, better? – Draft RED III implementation act

As part of the European Green Deal, the European Union (EU) has set itself the binding target of achieving climate neutrality by 2050. As an interim target on the road to climate neutrality, the EU has committed to reducing its emissions by at least 55% by 2030.

In order to adapt the current European legal framework to these targets, the EU adopted a comprehensive legislative package under the heading "Fit for 55",  in June 2021. A key element of the Fit for 55 package is the revision of Directive (EU) 2018/2011 (Renewable Energy Directive II – RED II). The revised directive – Directive (EU) 2023/2413 (Renewable Energy Directive III – RED III) – came into force on 20 November 2023. It provides, in particular, measures to accelerate approval procedures.

The provisions of RED III must generally be implemented by the member states within 18 months. For some regulations regarding approval procedures, a shorter implementation period applies – until 1 July 2024.

The Federal Ministry for Economic Affairs and Climate Protection has now prepared a draft: "Act on the Implementation of the EU Renewable Energy Directive in the Field of Offshore Wind Energy and Electricity Grids" (Gesetz zur Umsetzung der EU-Erneuerbaren-Richtlinie im Bereich Windenergie auf See und Stromnetze). This draft was published 1 February 2024 and provides for amendments to the Offshore Wind Energy Act (Windenergie-auf-See-Gesetz – WindSeeG) and the Energy Industry Act (Energiewirtschaftsgesetz – EnWG). In addition to the provisions of RED III, the draft also aims at implementing the requirements of Directive (EU) 2010/75/EU (Industrial Emissions Directive – IE Directive).

The main proposed amendments can be summarised as follows:

1. Definition of so-called acceleration areas in the FEP

• The catalogue of possible specifications in the spatial development plan (Flächenentwicklungsplan – FEP) (sec. 5 WindSeeG) shall be expanded to include so-called acceleration areas (Beschleunigungsflächen). Going forward, the FEP shall provide "sufficient acceleration areas".
• An area (Fläche) shall be designated as acceleration area if it is a designated area for wind energy in the FEP, and no significant environmental impacts are likely to be expected from the construction and operation of wind turbines in the area. This will be the case if the area:
  • is not located in a particularly sensitive area; these are areas in which, based on existing data, a particularly high occurrence of protected wind energy-sensitive species is expected,
  • is not a Natura 2000 site,
  • is not located in a protected marine area and
  • is not located in a designated bird migration corridor..
• The Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie – BSH) shall define effective mitigation measures for the acceleration areas in the FEP in order to avoid or at least reduce possible negative environmental impacts. For a limited period of time, new mitigation measures whose effectiveness has not yet been tested ("pilot projects") may also be defined.
• In the event that the BSH determines in the course of a so-called screeningprocedure that a project is highly likely to cause significant unforeseen adverse environmental impacts despite the implementation of mitigation measures, the draft implementation act provides for additional mitigation measures or – if no proportionate mitigation measures are available – compensatory measures.
• If proportionate mitigation or compensation measures for species protection are not available, project developers shall pay financial compensation. The compensation payment will be determined by the BSH as an annual amount of EUR 500,000 per year. It is unclear whether this amount relates to each individual wind turbine or the entire wind farm.

2. Faster approval procedures for projects on acceleration areas

• The approval procedures for projects on acceleration areas shall be accelerated.
• To this end, the draft implementation act essentially provides for the following regulations:
  • Plan permit (Plangenehmigung) instead of plan approval (Planfeststellung): Projects on acceleration areas shall be subject to a mere plan permit requirement, which is granted within twelve months of the start of the approval procedure.
  • Limited assessment program: As part of the approval of projects on fast-track sites, no EIA, no FFH impact assessment and no species protection assessment will be carried out.  Other measures will apply if the project is likely to have a significant impact on the environment of another member state or if a member state that is likely to be significantly affected submits a corresponding application.
  • Completeness check and confirmation: The completeness check or (one-time) additional request for documents shall be carried out within 30 days of receipt of the application (see below).

3. Further regulations to accelerate approval procedures

• In addition, the draft implementation act provides for regulations to accelerate the approval procedure for all installations under the WindSeeG (i.e. also those outside of acceleration areas).  
• The completeness check and confirmation by the BSH, which is already common in practice but has not yet been regulated by law, is to be written down and specified in law.
  • The draft implementation act provides for the following deadlines:
    • Installations outside of acceleration areas: Confirmation of completeness or request for additional documents within 45 days of receipt of the application
    • Installations in accordance with the IE Directive: Confirmation of completeness or request for additional documents within 60 days of receipt of the application
    • Installations on acceleration areas: Confirmation of completeness or request for additional documents within 30 days of receipt of the application.
  • If no documents are requested within the specified deadlines, the application is deemed to be complete.  Confirmation of completeness, submission of additional documents, or the occurrence of fiction mark the start of the plan permit or plan approval procedure.
• The start of the plan permit or plan approval procedure, in turn, is decisive for decision deadlines – 18 months for plan permit procedures, 12 months for plan approval procedures. In the future, an extension of the decision deadlines shall only be allowed "in cases duly justified by exceptional circumstances" („in durch außergewöhnliche Umstände hinreichend begründeten Fällen“). The draft implementation act also stipulates that the BSH must provide reasons for the extension of the deadline. However, it does not provide for any consequences in the event of a breach of the decision deadlines.

4. Special regulations for electrolysers: Strict monitoring and priority for consideration

• The draft implementation act provides for a comprehensive monitoring regime for installations within the scope of the IE Directive – in the EEZ this should be electrolysers.
  • The operator shall be obliged to submit a report on the baseline condition with  the application for planning approval. In the event that the plan approval decision becomes invalid, the operator shall be obliged to remove any soil or groundwater contamination and to restore the initial state specified in the baseline report.
  • The BSH shall draw up monitoring plans – with regular on-site inspections and further checks. The operator of the installation shall be required to cooperate.
  • In addition, special operator obligations are provided for the installations within the scope of the IE Directive, compliance with which must be ensured by the responsible person during the entire operating time.
• The provision in sec. 1 para. 3 WindSeeG, according to which the construction and operation of wind turbines at sea and offshore connection lines is in the overriding public interest, shall also include other energy production facilities for hydrogen production at sea (sonstige Energiegewinnungsanlagen zur Erzeugung von Wasserstoff auf See) and for the transmission of hydrogen from other energy production facilities (Anlagen zur Übertragung von Wasserstoff aus sonstigen Energiegewinnungsanlagen). This would "pre-set" the weight of the electrolysers and the transmission facilities in weighing decisions. The priority of these facilities could only be overridden in atypical and specially justified exceptional cases (cf. on the provision in sec. 2 Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz – EEG), see OVG Greifswald, judgment of 7 February 2023, 5 K 171/22 OVG, NJOZ 2023, 719).

5. Designation of infrastructure areas and acceleration of grid projects

• The draft implementation act provides for amendments to the EnWG, according to which the plan approval authority shall designate so-called infrastructure areas (Infrastrukturgebiete) for projects confirmed for the first time in the grid development plan after 19 November 2023 or for routes and route corridors defined for the first time in the FEP as well as converter locations for offshore connection lines in the EEZ.
  • The designation of infrastructure areas shall not have any direct external effect (unmittelbare Außenwirkung) and shall not replace the decision on the approval of the grid project.
  • The infrastructure areas are also intended to identify mitigation measures to prevent or at least reduce negative impacts on the conservation objectives and on specially protected species. Particularly relevant for project developers: According to the draft implementation act, an obligation to pay compensation in the amount of EUR 20,000 per kilometer or part thereof of the route length shall apply regardless of whether mitigation measures are implemented or not.
• The approval procedures for grid projects in infrastructure areas shall be accelerated.
  • To this end, the draft implementation act stipulates in particular that, in principle, no EIA, no FFH impact assessment, and no species protection assessment shall be carried out. The only exception would be if the project is likely to have a significant impact on the environment of another member state or if a member state that is likely to be significantly affected submits a corresponding application.
  • Instead of these assessments (EIA, FFH, species protection), a review procedure shall be carried out in order to mitigate or compensate for unforeseen adverse effects.
  • If this review procedure shows that the project is very likely to have a significant adverse impact on FFH areas or protected species, the plan approval authority shall order mitigation measures or – if proportionate mitigation measures cannot be taken – compensation measures.
  • If no appropriate compensation measures are available, the operator shall make financial compensation. The amount of the compensation payment shall be EUR 5,000 per kilometer or part thereof of the route length for which adverse environmental impacts have been identified.