Success for 50Hertz with CMS before the Federal Administrative Court
Compensation provision in planning approval orders for Ostwind project lawful
Hamburg – On 15 January 2025, the Federal Administrative Court dismissed the claims being brought by a mining company seeking to supplement the compensation provisions in two planning approval orders issued by the Mecklenburg-Western Pomerania Ministry of Economic Affairs.
A CMS team led by Dr Neele Christiansen represented the project developer 50Hertz Transmission GmbH (50Hertz), as interested third party, in the proceedings before the Federal Administrative Court. The team had already advised 50Hertz as part of the planning approval and supplementary planning procedures, in the course of which the compensation provisions, that have now been found to be lawful, were established.
The planning approval orders concern the Ostwind 1, Ostwind 2 and Ostwind 3 projects for connecting offshore wind farm clusters located in the Baltic Sea EEZ to the transmission grid through the construction and operation of a total of seven 220 kV AC cable systems. In each case, the section running in the territorial sea was approved. The contested compensation provisions concern the fact that the projects cross an approval area subject mining law.
The Federal Administrative Court, acting as competent court of first instance, had to decide for the first time on specific compensation provisions for interventions only into approvals subject to mining law. The Federal Administrative Court held that it is sufficient to state the reduction in value of the approval as the basis of assessment for the amount of compensation which must be determined in separate compensation proceedings. Such a provision in the planning approval orders is sufficiently specific. No further criteria or procedures must be established to determine the value of the approval. There is also no need for the operative part of the judgment to establish a right of the project developer to "assume" the approval.
The decision was made by the 11th Energy Senate of the Federal Administrative Court. The new Senate formed at the end of 2023 deals with energy law proceedings which need to be accelerated.
The Federal Administrative Court's case numbers are 11 A 9.23 and 11 A 11.23.
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