2. An overview of relevant EU regulations and directives
Image: Freepik
The EU has introduced a wide range of laws within the EU/EEA framework that regulate the licensing processes for offshore wind farm development. EU regulations affect Member States, and EU norms take precedence over national legislation, including constitutional provisions. For Norway, an EEA country, EU law must first be deemed EEA-relevant and then incorporated into the EEA Agreement before being transformed into national legislation. In the following we will go through selected directives and regulations deemed particularly relevant and make brief notes on the implementation status in the Nordic countries. When reviewing the Nordic countries’ licensing frameworks for offshore wind in the chapters below, we will, when relevant, point out differences in how EU law is incorporated and whether these differences influence the efficiency of the offshore wind process.
The Marine Spatial Planning Framework (2014/89/EU) requires Member States to implement marine spatial planning. MSP is a tool designed to alleviate conflicts between different human uses/industries as well as between human uses and the marine environment, and thereby contribute to the effective management of marine activities.
The MSP Directive requires a marine plan with non-binding visions, strategies, planning concepts, or guidelines and management principles related to the use of marine areas. It is specified in the Preamble that “this Directive should not impose any other new obligations, notably in relation to the concrete choices of the Member States about how to pursue the sectoral policies in those areas but should rather aim to contribute to those policies through the planning process.” However, the Directive is a minimum harmonisation directive, meaning that the states are free to go further than what is required and implement binding marine plans. This contributes to substantial differences in marine planning in the Nordic countries.
The MSP Directive is implemented in Denmark through law (lov om maritim fysisk planlægning, lovbekendtgørelse, 2020-04-06 nr. 400) and the adoption of a legally binding “havplan” (marine plan). The fact that the plan is legally binding means the authorities cannot adopt plans or make decisions on offshore wind licensing that are contrary to the marine spatial plan (or to a proposed new plan or amendments in the plan). At the same time, the binding character of the plan means that marine areas designated for energy development in the marine spatial plan are afforded precedence over other activities: allocating area to development zones means that licences primarily can only be issued for the purposes in question.
Where spatial overlaps occur within a designated zone, conflicts are handled through interministerial coordination (samråd) ahead of permitting.
The Impact Assessment Directives (2011/92/EU; 2001/42/EC) are legislative tools potentially requiring environmental impact assessments of offshore wind projects and others. Directive 2001/42/EC (Strategic Environmental Assessment – SEA Directive) requires assessments of the effects of certain plans and programmes on the environment, aiming to integrate environmental considerations into the preparation and adoption of these plans. Directive 2011/92/EU, as amended by 2014/52/EU, (Environmental Impact Assessment – EIA Directive) requires Member States to conduct detailed assessments of the environmental consequences of public and private projects before they are allowed to proceed. Both directives emphasise the need for assessment procedures which include public participation and consultation. The directives are minimum frameworks, meaning that the Member States can adopt stricter requirements in national legislation. Although the requirements and procedures that must be met under the two directives are similar in many respects, there are also important differences. Therefore, an investigation under one directive does not necessarily fulfil the requirements under the other directive.
Since the adoption of the directives, there has been extensive clarification of the directive requirements through the case law from the Court of Justice of the European Union (CJEU). One issue in relation to offshore wind licensing is the decision in Delena Wells, where the court concluded that when a licensing process consists of several stages (a principal licence decision followed by an implementing decision) the EIA must be conducted prior to the principal decision.
EIA Directive article 2(1) requires that impact assessments for projects “likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment”. Offshore wind farms are not among the project types listed in the Directive’s Annex I as always demanding impact assessments. They are listed in Annex II, which according to article 4(2) means that they must be subject to a screening test where it is determined whether the development is likely to have significant effects on the environment, either by virtue of a case-by-case examination or by thresholds or criteria set by the Member State. Criteria for determining whether the development will have “significant” effects are listed in Annex III. These criteria are formulated in a manner that leaves a considerable margin of appreciation to the Member States.
In Denmark, the directives are implemented in several laws, but in relation to offshore wind projects the relevant law is the environmental assessment law (Miljøvurderingsloven, LBK 2023-01-03 nr. 4). In Sweden, the directives are implemented through the Environmental Code (Miljöbalken, 1998:808). In Finland, the directives are implemented in a dedicated law (lag om förfarandet vid miljökonsekvensbedömning, No. 252/2017) and the governmental decree 2017/277 (statsrådets förordning om förfarandet vid miljökonsekvensbedömning). In Norway, the directives are implemented in regulations under plan og bygningsloven. It is however unclear whether the directives apply to Norway outside territorial waters (12 nautical miles), as the EEA Agreement applies only within “the territory” and not in the exclusive economic zone or on the continental shelf. It is also unclear whether Norway through the regulations has formally implemented the directives for plans and projects outside the territorial waters. The Offshore Energy Act does however demand both strategic and project-specific impact assessments, and in practice it has been stated that the environmental impact assessments shall comply with the EU directives. In fact, the Offshore Energy Act goes further than the minimum requirement in the EIA Directive concerning the demand to screen whether the proposed development is likely to have significant effects on the environment. According to the act, all offshore wind development must undergo a project-specific impact assessment. This requirement in Norwegian law may become a barrier for introducing fast tracks for licensing through “renewable acceleration areas”, as prescribed in the Renewable Energy Directive III (see below).
The Water Framework Directive and Marine Strategy Framework Directive (2000/60/EC; 2008/56/EC) aim at protecting and improving water and marine environments across Member States, including the Nordic countries, through ecosystem-based management. The former directive addresses coastal waters while the latter addresses sea areas. While the MSP Directive introduced above is focused on the spatial considerations at sea, these directives are focused on the environmental quality in the waters and the sea. A core aim is for the Member States to achieve or maintain “good environmental status”, and a mandatory tool is the adoption of marine management plans and strategies for all sea and water areas. The management plans can influence which types of measures/activities that can be approved and implemented.
These directives are also minimum harmonisation directives, meaning that the Member States can adopt stricter requirements in national law.
In Denmark, the directives are implemented in the Water Planning Act (lov om vandplanlægning, Lbk. 2017-01-26 nr. 126) and the Marine Strategy Act (Havstrategiloven, Lbk. 2024-02-01 nr. 123). In Sweden, the directives are integrated in national law through the Environmental Code (Miljöbalken, 1998:808) and the Marine Environment Ordinance (Havsmiljöförordningen (2010:1341)). In Finland, the directives are incorporated through national legislation by Vattenlagen (2011:587) and Miljöskyddlagen (2014:527).
For Norway, the Water Framework Directive is part of the EEA Agreement, and the Directive is implemented by the Water Regulation (vannforskriften). As a result of the Norwegian government’s position that the EEA Agreement only applies to the “territory”, the Marine Strategy Framework Directive has not been included in the EEA Agreement and is thus not implemented.
The Birds Directive and the Habitats Directive (92/43/EEC; 2009/147/EC) impose requirements for the designation of protected areas and dictate processes for assessing and addressing potential negative impacts of planned activities within these areas. The Birds Directive provides a framework for the protection and management of human impact on birds in Europe, while the Habitats Directive requires Member States to implement measures to preserve or restore valuable habitats and listed species. The sites protected under the two directives are known as Natura 2000 sites and jointly they make up the Natura 2000 network.
Protection through Natura 2000 does not necessarily mean a total ban on new activities. In marine Natura 2000 areas, combined use – where protection is one of several purposes for the area – is often established. When a new plan or project is likely to have a significant negative effect on a Natura 2000 site, the national authorities and the developer must however follow a specific procedure described in the Habitats Directive to get it approved. To avoid duplication and ensure effective processes, assessments can however be coordinated and aligned with the requirements for impact assessments under the SEA and EIA Directives.
When it comes to the decision regarding the plan or the project, a core requirement is that permission can only be granted if it has been “ascertained” that the plan or project will not “adversely affect the integrity of the site concerned”. The strict rules for making interventions in protected areas are however not without exceptions. There may be situations where protection must give way to other important societal goals. According to Article 6, paragraph 4, despite a “negative assessment of the implications for the site”, and in the absence of alternatives, a plan or project may still be carried out “for imperative reasons of overriding public interest, including those of a social or economic nature”.
For offshore wind, it is important to note that the Council adopted an Emergency Regulation 2022/2577 in late 2022 which defined renewable energy as an overriding public interest. In the latest version of the Renewable Energy Directive (RED III, see more below) renewable energy’s status as an overriding public interest has been confirmed. RED III explicitly notes that the definition of overriding public interests applies to the Birds Directive and the Habitats Directives.
In Denmark, requirements for Natura 2000 planning are instituted through various laws, including the Environmental Objectives Act (Miljømålsloven, LBKG 2023-05-26 no. 692) and the Executive Order on the designation and administration of international nature protection areas (BEK 2023-08-21 no. 1098). Additionally, the Water Planning Act (LBKG 2017-01-26 no. 126) is relevant. Sector-specific laws may impose additional requirements for impact assessments of projects designated as Natura 2000 areas. In Sweden, the directives are implemented through the Environmental Code (Miljöbalken). In Finland, the directives are implemented in the Environmental Protection Act (Miljöskyddslagen) and the Nature Conservation Act (Naturvårdslagen). Since the directives are not part of the EEA Agreement, they do not apply to Norway.
The Regulation on Energy Infrastructure (2022/869), known as the TEN-E Regulation, establishes guidelines for trans-European energy infrastructure, emphasising the development of “cross-border” networks, including offshore transmission grids. As a regulation, it is directly applicable in EU Member States (including Denmark, Sweden and Finland) without the need for national transposition. The regulation demands that Member States take measures that facilitate an efficient process and prioritise projects of common European interest, and make non-binding agreements on cooperation. The regulation’s applicability to the European Economic Area (EEA), and by extension Norway, has not yet been determined, and as such, it currently does not apply to Norway.
The Renewable Energy Directives (RED) aim at promoting renewable energy sources. RED I (2009/28/EC) established the foundational framework to advance the use of renewable energy sources throughout the EU. RED II (EU/2018/2001) set a target of achieving 32 per cent renewable energy consumption in the EU by 2030 and instituting measures to further foster renewable energy adoption across Member States. In July 2021, the European Commission proposed an amendment to the Renewable Energy Directive, aiming to increase the 2030 renewable energy target to 45 per cent.
RED III, Directive 2023/2413, includes measures to accelerate offshore renewable energy in the EU. These are particularly relevant to those involved in achieving the indicative targets for each sea basin, as outlined under Article 14 of Regulation (EU) 2022/869:
- Publication of Offshore Energy Plans: Member States must disclose their planned offshore renewable energy volumes, which they intend to achieve through tenders. This planning should account for both the technical and economic viability of the grid infrastructure, as well as any ongoing activities within the relevant sea basin.
- Maritime Spatial Planning: There is a requirement for Member States to designate appropriate spaces for renewable energy projects within their maritime spatial plans. This ensures that such developments are considered within broader spatial and environmental contexts.
- Designation of Renewable Acceleration Areas: Member States can in their planning point out either land or sea areas or both where the facilitation of renewable energy production is not expected to have significant environmental impacts and label them “Renewables Acceleration Areas”. When designating a Renewables Acceleration Area, the state must introduce rules and mitigation measures for the development of the area. These mitigation measures will, when they are implemented, presume the fulfilment of certain environmental obligations under the Birds and Habitats Directives as well as the Water Framework Directive. RED III points out that these areas shall “benefit from the presumption of not having significant effects on the environment”, meaning that there will not be a need for a project-specific impact assessment (EIA). The national authorities are nevertheless required to conduct a screening to identify whether the proposed offshore wind farm is highly likely to give rise to significant unforeseen adverse effects in view of the environmental sensitivity of the geographical areas where they are located, which were not identified during the environmental assessment of the plans designating renewables acceleration areas. The specific procedures for the Renewables Acceleration Areas aim to make the process quicker and easier once the area is allocated to the developer but might at the same time be seen as adding to the national authorities’ obligations.
- Permit-Granting Procedures: A significant enhancement introduced by RED III is the need for Member States to simplify and streamline the processes related to granting permits for offshore renewable energy projects. This involves reducing procedural complexities and enhancing both the efficiency and transparency of these processes, thereby facilitating smoother and faster project approvals.
EU Member States are required to implement RED III by 1 May 2025. Denmark has adopted amendments in Lov om fremme af vedvarende energi (nr. 673 af 11/06/2024) and has adopted regulations (bekendtgørelse no. 773 of 20 June 2024) related to contact points and licensing processes to comply with RED III. For Sweden, the process of assessing what measures need to be taken does not seem to be finished. Finland has amended the Nature Protection Act (Naturvådslag 422/2024) and their Law on Water and Ocean Governance (vattenvårds- och havsvårdsförvaltningen 1299/2024). The Directive has not been incorporated into the EEA Agreement and does not apply to Norway.
The table below summarises the status of the selected relevant EU regulation and directives in each of Denmark, Norway, Sweden and Finland.
Marine Spatial Planning Framework (2014/89/EU) | Implemented with binding maritime spatial plans | Not adopted, as it is not part of EEA | Implemented with non-binding spatial plans | Implemented with non-binding spatial plans |
|---|---|---|---|---|
Impact Assessment Directives (2011/92/EU; 2001/42/EC) | Implemented in environmental assessment law | Aligned through regulations related to EEA agreements for certain sectors | Implemented in Environmental Code | Implemented through Environmental Protection Act |
Water Framework Directive and Marine Strategy Framework Directive (2000/60/EC; 2008/56/EC) | Implemented for coastal and marine waters | Only the Water Framework is EEA-relevant | Integrated into Environmental Code | Implemented by environmental acts |
Birds Directive and Habitats Directive: “Natura 2000” (92/43/EEC; 2009/147/EC) | Fully integrated with specific planning for Natura 2000 sites | Not applicable; uses national nature diversity law | Fully implemented with planning for Natura 2000 sites | Implemented focusing on conservation site designations |
Regulation on Energy Infrastructure (2022/869) | Facilitation measures in place to support energy infrastructure development | Norway aligns through EEA where applicable, but slightly different focus | Supportive regulations are being developed within the national legal framework | Awaiting full development and implementation |
Renewable Energy Directive (RED I–III) | Implemented with provisions for accelerating renewable areas | RED not yet fully integrated into EEA | Implementation status unclear | Adjustments made in environmental and sea governance acts |
Barriers for accelerating offshore wind?
Strictly speaking, legal requirements, whether imposed by EU or the national lawmaker, can always be seen as “barriers”, since they put obligations on authorities and/or developers. However, viewing EU law as a barrier simply because it requires impact assessments, spatial planning or environmental considerations, which take time, is not a productive approach. When discussing barriers to the acceleration of offshore wind, the focus should be on identifying processes and requirements that are either not necessary, or more time-consuming than what is necessary, to achieve the intended goals.
As the overview here has shown, important EU directives often come in the form of minimum harmonisation directives, which means there can be differences in how Member States implement these frameworks nationally. Minimum harmonisation itself is not necessarily a barrier, as flexibility is needed to adapt to different countries’ jurisdictions and governance structures. However, the way a specific country chooses to implement a directive (or not implement it at all, as in the case of Norway) can be seen as a barrier to the acceleration of offshore wind development in that country. By closely examining the different countries’ systems for planning and licensing offshore wind, as we will be doing later in this report, we can identify whether the perceived barriers are due to the country’s licensing system, their specific implementation of EU law, or the EU law itself.
EU law requires assessments pursuant to the Environmental Impact Assessment Directives, the Marine Framework and Water Framework Directives and the Natura 2000 Directives. The SEA Directive and the EIA Directive both require impact assessments. SEA and EIA have different purposes: the former regulates plans and programmes, including preliminary assessment of potential risks, and the latter identifies and evaluates the environmental impacts of a specific project before it is carried out. SEA must be carried out before the tender deadline, and EIA before a construction permit for the farm can be granted. Increased focus on the relationship between SEA and project-specific EIA, as well as between these assessments and those required by the Natura 2000 Directives, and between marine spatial planning and offshore wind licensing, seems to be a productive approach for reducing the barrier of duplicated assessments and for accelerating the processes.
We also point out that EU regulations emphasise grid integration and interconnectivity, which require infrastructure planning and coordination across borders and with existing networks. This adds complexity, particularly for countries with differing national priorities and regulatory approaches. This complexity can also be a barrier.
Through RED III, the EU aims to accelerate the process for offshore wind development. One of the measures used is the classification of renewable energy development as an overriding public interest. This can particularly be significant to Natura 2000 sites and the Water Framework Directive. The requirement to designate “Renewables Acceleration Areas”, where there is a presumption that an EIA is not necessary, is another step that could accelerate offshore wind development. It is however yet to be seen how this works when being implemented into the Member States’ processes for marine planning and licensing. The requirements in the Net Zero Industry Act for a “single point of contact” and time limits for application processing, along with provisions aimed at accelerating procedures for certain strategic projects, are also intended to speed up processes for renewable energy.
EU and national regulations often aim to balance potentially conflicting interests, e.g. between biodiversity conservation and renewable energy production. The focus of this report is accelerating offshore wind energy production with minimal consequences for other interests.
Textbox 2.1: The Net Zero Industry Act
Requires a “single point of contact” (administrative coordinator) for the project promoter. Sets maximum time limits for the permit-granting procedures. Identifies certain projects as “net zero strategic projects” that the Member States, upon request from the project promoter, can grant priority status to ensure an even faster administrative process. Member-state consumer incentive schemes for net-zero products should use transparent, objective criteria and encourage sustainability and resilience across the supply chain. Public procurement procedures (that fall under the public procurement regulation) with offshore renewable technologies as part of their subject matter or contracts shall contribute to sustainability and resilience, through minimum requirements, technical specifications and contract performance clauses. For auctions to deploy renewable energy sources (not under the public procurement regulation), relevant authorities must apply specific non-price criteria in renewable energy auctions, to at least 30 per cent of the annual auctioned capacity or a minimum of 6 GW per year. Auctions must also include either pre-qualification or award criteria for assessing the contribution to sustainability and resilience. The requirements are specified and elaborated in the Implementing Act (Commission Implementing Regulation (EU) 2025/1176) that was adopted on 23 May 2025.
