Does the Utilities Directive apply on offshore wind projects in the exclusive economic zone of Norway in light of article 126 of the EEA Agreement?

Arqam Hamza Ahmad will present his Master thesis about the application of EU/EEA law for offshore wind projects.

Abstract

With an expected value creating effect of 117 billion NOK over the next 30 years, offshore wind is touted to be the next oil adventure for Norway. A question that needs to be answered is whether offshore wind development is a matter of national law, or a matter covered by the rules of EEA procurement law, when the project is located in the Exclusive Economic Zone of the Kingdom of Norway.

On one side, the Utilities Directive imposes special procedural rules on the purchasing activities of Contracting Entities given special or exclusive rights that exceeds the thresholds in the Directive. On the other side, it is to date unresolved whether the EEA Agreement and its amended secondary legislation covers areas beyond the territorial waters.

This study aims to clarify the geographical scope of the Utilities Directive by analyzing both the directive and article 126.1 in the EEA Agreement. The analysis has been performed by using the customary Treaty interpretational rules provided in arts. 31-33 in the Vienna Convention on the law of Treaties.

The analysis showed that using the factors of ordinary meaning of the term, context, object and purpose, and the overarching goal of good faith in the interpretating process suggests an application of the Utilities Directive beyond territorial waters to be the most loyal interpretation of article 126.1.

In the case of non-applicability of the EEA Agreement beyond territorial waters, the case of Scanteam v. The Norwegian government suggests an extraterritorial application of EEA rules where there is a sufficient linkage between the activities performed and the internal market. Although being a case-by-case assessment, this also suggests an application of the procedural rules of the Utilities Directive for offshore wind projects located in the Exclusive Economic Zone of Norway.

About the speaker

Arqam Hamza Ahmad studied at the Faculty of law in Bergen from 2015-2020. During his fifth year he chose the elective courses in EU/EEA Public Procurement Law, Competition Law and Comparative Energy Law - Renewable energy and energy market. He handed in his master thesis in December 2020

Guidelines for our virtual seminars:
- Link to join the webinar here
- "Doors open" at 12:00. From 12:00-12:15 you will be able to present yourself and be introduced to the rest of the participants.
- After 12:15 and whenever you are not speaking please mute your microphone, as this can disturb others.
- If you have a comment or a question please use the chat function (speech bubble on the options panel) to signal you have a question. 
- The moderator will introduce you when it is your turn to ask a question. Remember to unmute your microphone!