The purpose of the Decree of 27 April 2016 on hydropower concession contracts,now incorporated into the French Energy Code, is to implement the provisions of the aforementioned Law of 17 August 2015 and to modernise the regulatory framework for hydropower concession contracts (in particular by clarifying certain aspects of the procedure for awarding hydropower concession contracts by approving a new model for general terms and conditions).
Under the Energy and Climate Law of 8 November 2019, a declaration procedure may now be used for a power increase, subject to compliance with several conditions, including acceptance by the administrative authority.
In accordance with Article L. 523-2 of the French Energy Code, when a hydropower concession contract is renewed or extended under the conditions provided for by Articles L. 521-16-2 or L. 521-16-3 of the French Energy Code, an annual concession fee that is proportional to the revenues generated by the concession contract is levied, which is paid in part to the French State and in part to the French departments and municipalities through which the waterways used flow. A limit is set by the contracting authority on a case-by-case basis for each new or renewed concession contract. Article 69 of Law no. 2015-1785 of 29 December 2015 (the Budget Act for 2016) expressly confirmed that this type of concession fee excludes the application of the concession fees provided for by Article L. 523-1 of said Code, which apply to concession contracts that were renewed before 2006. Moreover, Law no. 2018-1317 of 28 December 2018 (the Budget Act for 2019) levies a fee on any “rolling delay”concession extended in accordance with Article L. 521-16 of the French Energy Code,starting on 1 January 2019. Decree no. 2019-664 of 28 June 2019 relating to the proportional fee for a hydropower concession contract extended under Article L. 521-16 of the French Energy Code (Article R. 523-5 of the French EnergyCode) sets the base of that fee and its rate: 40%.
Articles R. 214-112 et seq. of the French Environment Code contain provisions that are applicable to the safety and security of hydropower facilities that are authorised and operated under concession contracts. Dams are divided into three classes (A, Band C) according to their characteristics, in particular their height and the volume of the floodwaters. According to this classification and the legal rules applicable to the facility, the regulations require the operator or concession contract holder to fulfil certain number of obligations in order to guarantee the safety and security thereof (in particular by carrying out and updating hazard studies – see section 1.4.1.5.1.2“Hydropower safety”). The aforementioned Decree of 27 April 2016 on hydropower energy concession contracts contains provisions that are designed to unify the regulations, regardless of the legal rules that are applicable to the facility. The Decree of 6 August 2018 setting the technical requirements for dam safety applicable to facilities approved for construction and to those in operation lays down basic safety requirements applicable to dams. The provisions will gradually come into force for existing dams between 31 December 2025 and 31 December 2035 depending on the type of dam.
The Water Framework Directive of 23 October 2000 is the foundation of Community Water policy. It defines a framework for the management and protection of water, foreach major river basin, and sets targets for maintaining and restoring the status of surface waters, in particular to ensure the correct ecological and/or chemical status of water by 2015.
In France, the Directive was primarily transposed into law through the Water and Aquatic Environments Act of 30 December 2006, which stipulates the measures that are designed to ensure that the Directive’s targets are attained. These targets are determined for each river basin in the master plans for water development and management (SDAGEs). All EDF’s activities that could impact water and aquatic environments must be compatible with the targets set in the SDAGEs.
The Water Act also requires the various uses of water to be reconciled. The requisite balanced, sustainable management of water resources therefore has consequences for the operating rights of hydropower plants, and indirectly for all EDF’s activities that affect aquatic environments.
The EU Water Framework Directive makes provision for its re-examination by the EU Commission no later than 19 years after its entry into force i.e. by 2019. It was the subject of a consultation in the first quarter of 2019 and it may now be revised.
The “Climate Package” (known as the “2020 Energy-Climate Package”) is thesource of a set of measures aimed at ensuring that, by 2020, the EU will achieve the objectives of a 20% reduction of greenhouse gas (GHG) emissions, a 20%improvement in energy efficiency and a 20% portion of renewable energy (REN) in energy consumption. The “2030 Energy-Climate Package”, which was adopted on24 October 2014, set new targets for 2030: a 40% reduction in GHG emissions compared to 1990, 27% of renewable energies in the energy mix and a 27%improvement in energy savings. The “Clean Energy for all Europeans” package,adopted by the European Commission on 30 November 2016, raised these targets by setting a target of a 32% share of renewable energies in the energy mix by 2030.
Following on from Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from renewable sources introduced as part of the “2020 Climate & Energy Package”, Directive 2018/2001 of 11 December 2018 on the promotion of the use of energy from renewable sources pursues the objective of maintaining the European Union’s position as a world leader in renewable energies and meeting its GHG reduction commitments under the Paris Agreement.
In this respect, pursuant to regulation 2018/1999 of 11 December 2018 on the governance of the energy union and climate action, also part of the “Clean Energy for all Europeans” package, each member state is required to draw up a ten-year national energy and climate plan for 2021-2030 setting out the actions to be implemented to achieve the new 2030 targets for renewable energy and energy efficiency. On the basis of the multi-year energy programme and the Nation alLow-Carbon Strategy, France published its draft integrated national energy and climate plan in February 2019.
In domestic law, the Law of 17 August 2015 on Energy Transition for Green Growth also provides for a target of 32% of renewable energies in energy consumption by 2030. Furthermore, the Grenelle 2 Law created land planning instruments with a view to enabling balanced development between the various renewable energy sectors, which include:
In addition, an Order of 14 September 2011 (ratified by Law no. 2013-619 of 16 July 2013) amended the legal rules on the guarantees of origin of the electricity produced using renewable sources or by cogeneration, laid down in Articles L. 314-14 et seq.of the French Energy Code. The terms and conditions to implement this new scheme and the rules for appointing the organisation in charge of managing guarantees of origin (issuing, transfer, cancellation) are stipulated in Articles R. 314-24 to R.314-41 of the French Energy Code. As producer and mandatory purchaser of electricity produced using renewable energy sources, the EDF group is concerned by these provisions.
Lastly, Order no. 2016-1059 of 3 August 2016 relating to electricity generation from renewable energies, codified in Article L. 314-1 et seq. of the French Energy Code,amended the provisions applicable to facilities generating electricity from renewable sources in order to ensure a better integration into the electricity market and to provide the technical provisions necessary for a better integration into the electricity system of electricity generation facilities connected to a public distribution network,particularly facilities generating electricity from renewable sources.
