Decarbonisation means industrial transformation

We are a recognised market leader in environmental and planning law. Numerous industrial groups place their trust in us when they embark on their journey towards carbon neutrality and, to this end, have to reposition themselves and implement the necessary changes. Helping defend against disproportionate burdens and minimising excessive requirements is part of our day-to-day business.

For all projects, regardless of size, we put together a well-functioning team that collaborates across disciplines. This is why we have a reputation for working effectively and delivering on time when providing assistance, advice and representation in the necessary environmental approval procedures for the construction and operation of climate-friendly plants, including ancillary facilities. We also provide reliable advice in planning procedures (development plan or plan approval procedures) and work closely with the different types of engineering professionals needed for this purpose.

Our advisory services at the interface between energy law and European emissions trading (for example, in connection with emission permits under the German Greenhouse Gas Emissions Trading Act - TEHG and the allocation of emissions certificates) are also closely related to the construction of new plants. In addition, we can act as a one-stop shop for you when it comes to advising on the topic of environmental information rights and waste and product-related environmental law issues (German Electrical and Electronic Equipment Act - ElekroG, WEEE, RoHS, REACH).

The production of green hydrogen and green electricity has to be significantly increased to maintain fair, competitive market conditions and successfully decarbonise the supply of energy in Europe and Germany. Our recognised experts in energy law work closely with experts from other fields of law and jurisdictions to offer our clients an interdisciplinary and international perspective with a full-service approach.

The use of (green) hydrogen in industry, for example, will be a key element to achieving net-zero emissions. The European and also the German legislative bodies have for some time been creating comprehensive new regulations to promote the market ramp-up of hydrogen and the transformation of energy supply. Measures include the Renewable Energy Directive (most recently in the form of RED III), the EU hydrogen and gas markets decarbonisation package, the Delegated Regulations on renewable fuels of non-biological origin, the introduction of comprehensive support schemes and new tender procedures, for example, for hydrogen-fuelled power plants and the construction of a hydrogen core network. The conclusion of long-term power purchase agreements (PPAs) is also continuing to gain momentum, as industrial electricity users, for example, wish to decarbonise their power supply and benefit from long-term predictability of prices.

With their wealth of know-how and industry knowledge and many years of experience gained from advising on a large number of complex energy projects and transactions, Luther’s experts can make the difference to your hydrogen and green electricity projects. We have not only just identified hydrogen as a topic of the future: our first project dates back to 2009! Furthermore, we have also been advising for many years on all aspects of renewable energy, from various perspectives, supporting in particular industrial purchasers.

We have in-depth experience in the field of hydrogen procurement, for example. We assist with the organisation of large-scale cross-border invitations to tender and with the drafting of hydrogen supply contracts, for supply within the EU and when importing from non-EU countries. In addition, we also provide ongoing advice on matters related to hydrogen distribution, in particular on building a hydrogen network infrastructure, including converting gas networks. We advise on the contracting of both hydrogen transportation and hydrogen storage capacities. In the field of hydrogen projects, we further provide regulatory advice on the development of projects regarding hydrogen production and the procurement of green electricity for hydrogen production, participation in greenhouse gas reduction (GHG) quota trading and hydrogen usage as an option towards meeting the greenhouse gas reduction quota, as well as investment in hydrogen-related technologies. We also have extensive experience advising on utility, corporate and financial PPAs, in various structures and from various perspectives, including supporting industrial purchasers. We not only provide comprehensive regulatory and contract law advice, we also never lose sight of the economic interests involved in doing so.

Climate protection agreements are one of the key instruments used by the current German federal government to help industry become climate-neutral. The agreements are made between the federal government and companies and work on the principle that companies in energy-intensive industries are compensated by the state for the additional costs they incur in erecting and operating more climate-friendly plants.

This funding instrument has enormous legal implications and the stakes are high, as the climate protection agreements are awarded by the federal government on the basis of a bidding procedure. Against this background, our client work in the area of climate protection agreements is characterised by many years of experience, an excellent network of contacts, clear responsibilities, foresighted planning and lean processes. We are convinced this is a prerequisite for being able to successfully assist you in obtaining a climate protection agreement within the available amount of time.

We should like to point out that the topic of climate protection agreements is not only dealt with by layers at Luther: we also have a team of other staff who have academic knowledge in the fields of energy, resources and the environment. This way, we advise comprehensively on diverse aspects of environmental, climate protection and energy law, and we also cover the field of environmental compliance.

As far as decarbonisation projects are concerned, our services in the area of state aid and grant law include providing advice and assistance on applications related to all kinds of funding instruments and public grants. We can assist you on your transformation path with an individual state aid notification to the EU Commission, as well as with the complete management of the funding, for example. We can provide highly specialised services through our Brussels office, which has an excellent network of connections there.

When you are setting up a projects portfolio, we can support you by carrying out a plausibility check, and we speak your financial executives’ language when it comes to developing a funding gap analysis. As we have already advised on the receipt of public grants in multi-billion euro decarbonisation projects, we know the points of contact within the EU Commission and the German Federal Ministry for Economic Affairs and Climate Action just as well as the employees responsible for decarbonisation projects at Projektträger Jülich or other institutions.

We are also able – for example, with the help of AI – to identify suitable funding programmes for your company and use them in conformity with the funding rules. You can thus rely on us to advise you from match making to the preparation of the documentation evidencing how the funding was used. This allows you to see funding as a driver of innovation and improve your own competitive position in the market.

As a result of receiving public funding, private-sector companies become “infected” with public procurement law. This places many companies in an entirely new situation as regards their procurement processes. Can current master agreements continue to be used? How many tenders need to be obtained? How should the selection be made? And what happens in the event that contractors have unique selling points? Our public procurement law team, which comprises over 35 professionals, has the answers to these and many other questions.

Luther was the recipient of the JUVE 2023 “Public Procurement Law Firm of the Year” award not least because we have concepts that allow private-sector companies to comply with funding requirements based on only slight changes to their processes. We can analyse the relevant funding programme in advance and use the time until you receive the grant notice to make your purchasing team fit for the decarbonisation project. To this end, we develop processes that are tailored to your company’s needs and test them with you in practice. We rely on best practices and on our many years of experience in decarbonisation projects to provide these services.

Complex, large-scale procedures can, of course, also be handled completely by our public procurement law team. This often frees up scarce capacities on the part of our clients which can then be used to deal with the really important decisions in those procedures, or to continue to reliably take care of ongoing operations. After all, that is precisely the problem: the decarbonisation project needs to be managed alongside day-to-day business, as there is no switch to simply shut down your existing production facilities and turn on the new, carbon-free facilities. This is why you need a strong law firm to support you.

The overall financing of the project is the key factor to success and to maintaining the competitiveness of a company in transformation. This is because regardless of whether or not you receive state funding, a significant portion of the new production facilities will always have to be financed using your own resources.

Our team will be happy to advise you together with your financial advisors in negotiations with credit and financial services institutions, investment management companies, asset managers, fund initiators, institutional investors (e.g. insurance companies, pension schemes and pension funds) and wealth managers (e.g. foundations and family offices), but also corporates and multi-nationals. Our lawyers have many years of experience, a very high degree of specialisation and impressive track records in their respective fields of specialisation.

Our practice area Corporate and the financing of decarbonisation projects with borrowed funds are closely associated with each other. Thanks to our large team of lawyers, we are always in a position to prepare a complete due diligence report or compile a legal fact book in preparation for discussions with banks. Our Corporate team, which is deeply involved in advising on transformation processes, has special expertise in the preparation of such reports, which often refer to the past and deal with the complex industrial sector.

It goes without saying that each decarbonisation project further requires that existing operational structures be put to the test. A restructuring within the company or the formation of one or more separate legal entities is a challenge on the transformation path that can always be met in close collaboration with the company’s own competent staff; however, we can provide a secure framework to ensure that all stakeholders’ interests can be taken into account in the time available.

Our added value ultimately lies in our ability as a full-service law firm to simultaneously cover, for example, all employment law and tax aspects with a corporate dimension to them in decarbonisation projects. Is the process subject to co-determination and, if so, to what extent? Is there a plan on how to secure the location’s future existence? How are issues such as works council, provision of personnel, group structure and provision of services to be handled in the case of groups of companies? We know that in times of transformation companies need an excellent corporate structure to be able to grow and operate successfully in the long term. Thanks to our innovative, experience-based consultancy approach, we are not only familiar with the circumstances prevailing in your industry, but also recognise important future topics at an early stage.

With the Net-Zero Industry Act (“NZIA”, in force since June 2024), the EU has created a further instrument to decisively boost the transformation towards a carbon-neutral European industry, which is essential for climate protection.

The NZIA aims to pave the way for a reliable, sustainable and competitive supply of what is called European net-zero technologies in order to strengthen the resilience of the EU and its supply chains in this field. The following factors, in particular, are intended to ensure a successful production ramp-up regarding such net-zero technologies:

• Acceleration measures for operators of and investors in industrial installations, for example: maximum duration of permit-granting processes; priority status of “strategic projects”; establishment of “single points of contact” responsible for facilitating and coordinating procedures and of “acceleration valleys” to enable overall environmental impact assessments; and establishment of „regulatory sandboxes“ for the purposes of testing innovative technologies in a real-world environment.
• Public procurement requirements to scale up the manufacture of clean technologies, for example: inclusion of minimum mandatory requirements regarding the environmental sustainability of technologies, supplemented by further specific requirements, conditions and contractual obligations regarding, for example, cyber security for works contracts and works concessions, as well as taking into account the resilience contribution of the tenders in the procurement procedures.
• Obligation of gas and oil companies to invest in carbon storage
• Taking into account sustainability and resilience criteria in auctions for the deployment of energy from renewable sources to promote net-zero technologies and diversify the supply of these net-zero technologies within the European Union.

The NZIA has extensive implications in terms of environmental, planning, public procurement, antitrust and energy law. We can advise you comprehensively on the implementation of the measures and requirements of the NZIA, drawing on our wealth of knowledge and expertise in many fields of law. Our legal project management team will also be happy to assist you and ensure that you get the best out of the new acceleration measures, or that no disproportionate burdens are being placed on you.

Our experience has shown that in order for legal work to be carried out effectively and in a timely manner in decarbonisation projects, the projects must be recorded, planned and managed in line with the company’s goals. Decarbonisation projects are usually highly complex and require a combination of various legal and other external competencies; at the same time, the overall project is extremely pressed for time.

We help handle this situation by employing specialists with the relevant know-how to work at the interface between content and organisation and perform the following project-supporting tasks as controllers:

• (Continuous) evaluation and definition of transformation goals and requirements
• Legal project organisation and management of all internal and external resources involved in the project
• Project planning (defining work packages, resources, input and output formats)
• Project control (transparent open issues, risks, times and expenditures)
• Project communications (exchange of information, jour fixe management and documentation)

We regard legal project management as an important discipline and task that can and should be performed by legal project managers with specialised legal knowledge, rather than by lawyers. This ensures you get a highly cost-effective approach for each area of expertise.