A Legal Framework for a Transnational Offshore Grid in the North Sea by Hannah Katharina Müller, Published by Intersentia, 2016, 416pp., £138, hardback.

• Published date: 01 July 2019
• Author: Sanna Elfving
• DOI: http://doi.org/10.1111/reel.12299
• Date: 01 July 2019

    

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BOOK REVIE WS

DOI: 10 .1111/reel .12299

A LEGAL FRAMEWORK FOR A

TRANSNATIONAL OFFSHORE GRID IN THE

NORTH SEA by Hannah Katharina Müller,

Published by I ntersentia, 2016 , 416pp., £138, hardbac k.

This book engag es in depth with the comple xities of developing offs hore

wind project s, which would lea d to the development of a r egional offsho re

grid in the Nor th Sea.1  Although it h ighlights the nex t decade as signif icant

for the transit ion to an increase d share of offsho re wind energ y, this is

unlikely to happe n without some change s to the current legal fr ameworks

at the national, i nternational and regi onal level, which are cur rently unable

to support pro jects that could produce a sign ificant amoun t of intermit‐

tent wind energ y in the absence of suf ficient storage o ptions. Addition ally,

it becomes clea r from this book that t he European Union's (EU) ro le in pro‐

moting the creat ion of a regional offsh ore grid is constrain ed, and much of

it depends on the North Sea countries themselves. However, there is great

diversity be tween nationa l legal systems i n terms of how they regu late

offshore win d projects. Where as the German legal sys tem can be named

as an example of be st practice due to c lear incentives for d eveloper parti c‐

ipation, the regulatory regime in place in the United Kingdom (UK) appears

to effective ly hinder more comple x projects.

The introduc tion sets out fo ur options for conn ecting off shore

wind farms to the o nshore grid. Th e chapters are di vided into four

main parts , which explore the legal base s for the four options under

international a nd EU law (Part I) as wel l as existing regio nal and na‐

tional legislat ion (Part II). Part III con cerns the application of th e legal

frameworks to O ptions 2 and 3; while Pa rt IV addresses t he necessary

amendments to the existing legal frameworks for developing offshore

wind project s and ultimately a transn ational grid. Most coast al States

currently use t he radial conne ction from an of fshore wind fa rm to

shore (Option 1). Howe ver, due to the cost of such conn ections and

a scarcity of ad equate cable routes, the l ogical next step is to cluste r

wind farms via of fshore hubs (O ption 2) and/or to connect t hem to

several countri es (Option 3). Müller furt her notes that States need to

move beyond Option s 1 and 2 in order to develop a region al offshore

grid in the Nor th Sea in the next deca de (Option 4).

Chapter 1 explor es the rights an d duties of States in r elation to

offshore win d energy under internati onal law. The radial connectio n

(Option 1) does not p resent any legal diff iculties from an inte rnational

law perspec tive, since the United Nations Co nvention on the Law of

the Sea 1982 (UNCLOS)2  pres cribes the basic right to lay subma rine

cables withi n the North Se a as well as for the exp loitation of wind

energy, which is als o understood to inclu de the right to connect wi nd

energy inst allations to the onshore grid .3  However, it becomes clear

that the Conventi on fails to provide a dequate suppor t for the con‐

structio n and operation of t ransnational i nfrastruc ture project s be‐

cause of its ina bility to clarify th e scope of the rights of sever al States

beyond the right to l ay cables in the Exclusive Econom ic Zone (EEZ)

of other States. Ad ditionally, this does not in clude jurisdicti on for reg‐

ulating the cab les located in the other State s’ EEZs. Perhaps for this

reason, existing offshore interconnections between neighbouring

European countr ies are typic ally governed by bil ateral agreem ents,

albeit that such a greements would not s uffice for a transn ational grid.

Since most Nor th Sea countries are c urrently EU Member St ates,

Chapter 2 investi gates how the EU may contribute to the e stablish‐

ment of a regional of fshore grid. Even though the grid w ould serve

various EU objec tives by reducing environment al impacts, allowing

for a more effic ient exploitat ion of offshore wind energy, and co n‐

tributing to th e functioning of the interna l energy market as well as

the establi shment of trans‐European ene rgy networks, the EU' s ex‐

isting compete nces do not extend to offsho re wind energy installa‐

tions or to park‐to‐shore c ables. Even if Memb er States must t ake

into account exist ing EU law in the develo pment of their of fshore

wind energy infrastructure, the competence concerning their en‐

ergy polic y as well as the const ruction, pl anning and oper ation of

energy infrastructure remains vested in them. Additionally, while the

EU enjoys competen ce in the field of energy in rel ation to the inter‐

nal market (Ar ticle 114 TFEU),4  it cannot ad opt legislation t hat im‐

pacts upon t he sovereignty of a M ember State over it s energy

sources (Ar ticle 194(2) TFEU). Moreover, although the EU 's compe‐

tence relating to t rans‐European networks in t he area of energy in‐

frastruc ture (Article 170 TFEU) a ppears prima facie to provide a basis

for developing a cro ss‐border offshore infras tructure, the EU is un‐

able to initiate transnational projects or impose legal obligations.5 

Chapter 3 explor es the legal implic ations of secondar y EU law for

the four options. Provided that wind energy enjoys beneficial treat‐

ment and the inter nal market rules are adhere d to, neither Option 1

nor Option 2 pose s any legal uncer tainty bec ause the Memb er

States remain re sponsible for establishin g the legal status of cables

connecting w ind farms and the of fshore grid. Inste ad, problems arise

in relation to hybr id projects (O ption 3). Althou gh these projec ts

could reduce the co nstruction and oper ation costs of the necess ary

infrastruc ture, second ary EU law was not dr afted with hybr id

projects in m ind and therefor e its applica bility to thes e projects is

1 In 2010, 10 North S ea countries si gned a Memoran dum of Underst anding under w hich

they agree to wo rk jointly towar ds a transnatio nal offshore g rid.

2 United Natio ns Convention on t he Law of the Sea (ad opted 10 Decembe r 1982, entered

into force 16 Novem ber 1994) 1833 UNTS 3 (UN CLOS).

3 Submarine c ables are cover ed under Arti cles 56(3) and 79(4) U NCLOS (ibid), whe reas

cables conn ecting wind f arms to the shore a re covered by Art icle 60 and off shore hubs

(Option 2) are co nsidered inst allations wit hin the meanin g of Articles 56 (1) and 79(4).

4 Treaty on the Func tioning of the Eu ropean Union [201 2] OJ C326/47.

5 The EU may only prom ote ‘Projects of C ommon Interes t’ in the context of Re gulation (EU)

No 347/2013 of the Europe an Parliament a nd of the Counci l of 17 April 2013 on guid elines

for trans‐Eu ropean energ y infrastr ucture and rep ealing Decis ion No 1364/200 6/EC and

amending Reg ulations (EC) No 713/200 9, (EC) No 714/2009 and (EC) No 715/2009 [2013]

OJ L115/39. The Regulation is onl y applicable to of fshore hubs, if t he projects de monstrate

at least the po ssibility of a co nnection to a nother countr y at a later stag e.