Constitutional appeal against Offshore Wind Energy Act on behalf of wpd: Gleiss Lutz achieves partial success due to lack of compensation scheme for offshore wind farm already planned
On 20 August 2020 the First Civil Panel of the Federal Constitutional Court decided that the Offshore Wind Energy Act was unconstitutional to the extent that it made no provision whatsoever for compensating the planning and investigation costs of project developers whose projects, started under earlier law, were terminated owing to the entry into force of the new law. Compensation is necessary where the documents and findings can still be used for the “preliminary investigations” to be conducted by the State under the new law. The constitutional appeals were otherwise dismissed.
On 29 September 2017 Gleiss Lutz had filed a constitutional appeal on behalf of Bremen-based wind energy company wpd with the Federal Constitutional Court against key provisions of the Offshore Wind Energy Act.
Founded in 1996, wpd is a global onshore and offshore wind farm developer and operator. Kaikas, a North Sea offshore wind farm project developed by wpd, was particularly affected by the new provisions of the amended Offshore Wind Energy Act that came into force on 1 January 2017. Approval for the wind farm with 83 turbines was already granted back in 2013, but because of the new legislation it is now excluded from all future invitations to tender – as the only already-approved project – and therefore has no hope of being realised. This meant that all the investments were in vain – without compensation.
The following Gleiss Lutz team advised wpd on the procedure: Dr. Marc Ruttloff (partner, lead), Lisa Freihoff, Markus Walter (all Stuttgart), Dr. Lars Kindler (Düsseldorf, all public law).