Renewable energies facing the health and social emergency
To deal with the covid-19 epidemic, the emergency law n° 2020-290 of 23 March 2020 to deal with the covid-19 epidemic was adopted on 23 March.
In order to respond to the legal issues arising from the economic impact of this period of crisis, no less than 26 ordinances were published in the Official Journal of 26 March 2020, pursuant to Act No. 2020-290 of 23 March 2020 on the emergency response to the covid-19 epidemic, marking the country’s transition to a state of health and social emergency. Among these, Order No. 2020-306 of 25 March 2020 on the extension of the time limits due during the period of health emergency and the adaptation of procedures during this same period.
Article 8 of Ordinance No. 2020-306 (“Time Limits” Ordinance) thus establishes an automatic and generalised suspension of the time limits imposed by the administration, in accordance with the law and regulations, granted to any person to carry out inspections and work or to comply with requirements of any kind.
In short, administrative procedures (whatever their form, in particular acts, formalities, registration, etc.) whose failure to complete within the period initially prescribed could produce particular legal effects (such as a penalty, a prescription, etc.), but which could not be completed during the period of a state of emergency plus one month, may be completed at the end of that period within the period normally provided for, and at the latest within two months following the end of that period.
Regarding the renewable energy projects and their financing, however, it is not legally certain that this suspension strictly speaking affects the connection and commissioning of all renewable energy installations under construction, whether they are eligible for the Purchase Obligation or for a Complementary Remuneration Contract.
Indeed, this “Deadlines” Order does not specifically refer to the Energy Code, and its Article 8 only concerns deadlines that expire between March 12, 2020 and the expiry of a period of one month from the date of cessation of the state of health emergency.
However, in the specific case where the deadline for connecting or commissioning an installation expires between 12 March 2020 and the expiry of a period of one month from the date of cessation of the state of health emergency, the producer concerned should be able to invoke the said Article 8 of the “Expired deadlines” Order.
However, article 9 of the Ordinance “Time limits expired” also provides that: “Notwithstanding the provisions of articles 7 and 8, a decree shall determine the categories of acts, procedures and obligations for which, for reasons of protection of the fundamental interests of the Nation, security, protection of health, public health, preservation of the environment and protection of children and young people, the course of time limits shall resume. […] ».
It should thus be noted that on this basis, Decree No. 2020-383 of 1 April 2020 derogating from the principle of suspension of deadlines during the period of health emergency linked to the covid-19 epidemic has just been published in the Official Journal of 2 April in order to “unfreeze” the course of certain deadlines, particularly in the area of ICPE.
However, the DGEC has indicated to EDF OA that it would be appropriate, in the current special circumstances, to grant delays to producers penalised by these delays.
The following instruction dated 19 March 2020 was in fact sent to EDF OA: “In order not to penalize the projects and taking into account the exceptional circumstances resulting from the covid-19 epidemic and the measures taken by the public authorities to combat the spread of the virus, delays will be granted to producers penalized by these delays linked to the Coronavirus epidemic. In order to facilitate the administrative management of these cases, flat-rate delays will be granted to all producers, irrespective of the support mechanism or technology. They will be defined in relation to the sectors when the situation is re-established and can be differentiated according to technology”.
The ministry in charge of energy has thus indicated that it will grant flat-rate deadlines defined in relation to the sectors when the situation is re-established and can be differentiated according to the technologies if necessary, which could in the meantime create uncertainty in this area, particularly for projects for which financing is under way.
In addition, the dates for submission of bids for current and future calls for tenders by the end of 2020 have also been postponed by two months overall, and the applicable specifications will have to be amended accordingly.
With regard to the sessions for onshore wind and ground-based solar energy, it was decided in particular to maintain one third of the volumes for the July sessions, and to postpone the remaining two thirds to next November, which implies a new timetable.
Similarly, the deadline for submitting bids for the third session of the call for tenders for the construction and operation of hydroelectric facilities has been postponed from 31 March to 30 May 2020, with amended specifications to be published shortly, in conjunction with the Energy Regulation Commission (CRE).