Solar power in France: regulatory changes and market opportunities

France is currently on course to miss its target to commission 20.1GW of solar power by late 2023. In the third quarter of 2022, just 15.8GW was in service and the gap is now too broad for this year’s target to be achieved. The failure is, in part, due to a disappointing year for solar power development in France.

In response, the French government has enacted a number of industry-specific provisions to catch up, and to meet new objectives contained in the Multiannual Energy Plan for 2024-2033, which will be published later this year. An Act designed to accelerate the production of renewable energy came into force in February after several months of parliamentary debate. The Act devotes a whole section to the development of "thermal, photovoltaic and agrivoltaic" solar energy.

The Act offers access to state-owned land, like plots along or near railway tracks, which, until now, have remained unused. It also lifts construction restrictions, provided that developments on the land do not jeopardise the safety of rail traffic. While this reservation seems obvious, clear enforcement criteria will be required. In addition, the Act established a ‘solar registry’ to help identify ‘acceleration zones’, listing the development potential of available roofs and carparks that could have solar panels added to them by local authorities.

The legislation will also allow solar power plants to be developed on wasteland, salt flats and strips of land along highways. Unsurprisingly, developers will need to demonstrate that their projects do not harm general interests, such as biodiversity and public safety. Projects on wastelands will need to prove that a solar development is a preferable option to ‘re-naturing’ the area.

But while the Act opens up new opportunities to develop previously unused land, it also bans solar projects that require the clearing of 25 hectares of forest or more. The ban, which covers applications made from February 2024 onwards, effectively shuts the door to the construction of large power plants that play an essential role in the development of solar energy.

Legal definition of ‘agrivoltaism’

According to the Act, an ‘agrivoltaic’ project is a solar power project, set on farmland, that contributes substantively to the installation, maintenance or development of agricultural production. The Act sets out a list of services that an agrovoltaic project must provide to the farmland, with a priority given to food production.

It also makes clear that land used for agrovoltaic projects can still receive EU subsidies from the common agricultural policy. The Act also allows the government to conduct calls for tenders for agrivoltaic projects, a prospect which will likely benefit from the publication of the next Multiannual Energy Plan.

Some non-agrivoltaic solar projects can also be developed on farmland if they are considered to be compatible with agriculture. Their compatibility with agriculture is assessed by comparing the proposed site for the project with one or several neighbouring plots belonging to the same owner. If the proposed plot is not currently used for agricultural production, it is assessed in light of the potential offered by the area.

A framework document identifying the areas in which non-agrivoltaic projects can be developed has been drawn up in conjunction with the Departmental Commission for the Preservation of Natural, Agricultural and Forest Areas (CDPENAF). In these areas, only uncultivated sites can be developed for these projects, for a duration that will be set by decree. The removal of the ten-year threshold which was initially provided for in the Bill is welcome and should help ensure harmonisation with the specifications required for ground-mounted solar power plants, which can be placed in sites that have been fallow for more than five years.

Parking shades are also expected to play a role, with the duty for carparks set to come into force from 1 July 2023. Developers will be able to fit carparks with an area of at least 1,500 sqm with solar panels on at least 750 sqm. The enforcement of this measure is adapted according to the size of the car park, its contractual management and the existence of renewable energy production processes on site.

The duty to integrate a renewable energy production process is also extended, with delayed entry into force, to existing non-residential buildings with a surface of at least 500 sqm, on an area to be defined by decree. However, this duty can be fulfilled if a vegetation system based on a cultivation method that does not use drinking water is integrated on the roof. New non-residential buildings will also subject to a ‘priority solarisation’ target from 1 July 2025. For large residential buildings, responsibility for placing solar panels on roofs will lie with each building’s co-owners.

Simplified regulations

Two other regulatory measures are also noteworthy. Decree No. 2022-1688 of 26 December 2022 raised the threshold of applicability of the building permit to ground-mounted solar plants from 250KW to 1 MW. The change will accelerate the development of these small projects. In addition, Decree No. 2022-1379 of 29 October 2022 aims to shorten the litigation duration, particularly for solar plants with a capacity greater than or equal to 5 MW. When the challenged decision is issued between 1 November 2022 and 31 December 2026, and is among the 25 decisions listed in the decree, the court must rule within ten months of the claim date of registration. If it does not, the challenge will be automatically brought before the higher court. This decree also limits the recourse period to two months for the listed decisions, which is not extended in case a prior non-contentious recourse is filed.

In terms of tariffs, new calls for tenders were opened late 2022. Among the notable developments, a volume of 200 MW is reserved for ground-mounted projects of less than 5 MW that meet certain conditions, including a distance of at least 500 meters from another plant that was appointed in the same call for tenders in the last two years. Finally, Article 54 of the 2023 Finance Act, enforces and reinforces in domestic law the price cap established by European Regulation 2022-1854 of 6 October 2022. Market revenues from solar power plants that exceed €100/MWh are subject to a tax based on three periods, the first of which is retroactive to 1 July 2022. This tax is due until 31 December 2023.

Many measures have been enacted by the government in recent months. Whether temporary or permanent, they have the merit of focusing on solar power a whole, including a device on parking shades, or the simplification of town planning procedures for small projects. Despite the emergence of agrivoltaism and a temporary decree on the duration of litigation proceedings for plants of at least 5 MW, these provisions seem to focus on these projects, given the ban on plants requiring a forest clearing of at least 25 hectares. If their development is necessary for the overall growth of the sector in the national energy mix, it is necessary to ensure an acceleration of the entire sector and therefore not to neglect large-scale ground-based power plants.

Co-written by Charles Bressant of Pinsent Masons.