Kapplöpning om allmänt vattenområde - En utredning av hur konkurrens om att utvinna förnybar energi inom allmänt vattenområde hanteras vid tillståndsprövningen

Sammanfattning: There are only a few sea areas that can be used to exploit renewable energy. An increased interest in expanding offshore energy production can therefore lead to intensified competition for the same areas. A competitive situation is especially challenging in the public water area (the area outside private properties) since it is not possible for developers to secure an exclusive right to the area before the permit proceeding begin. When a developer is applying for a permit to construct an installation to exploit renewable energy in the public water area the Court might have to consider competing claims to exploit the area. First, before a permit procedure can start, the Court might have to decide whether they can consider the application even though the applicant does not have an exclusive right of disposition to the relevant public water area. Without a right of disposition, the application cannot be admitted for a decision. Kammarkollegiet gives a right of disposition. Second, to determine whether a permit can be granted, the Court needs to decide whether a shared interest in using the sea area precludes the granting of the applied permit. At present, there is no solid legal framework that handle competing claims to exploit the public water area. This legal essay determines, based on a legal dogmatic method, how competition to use the public water area to exploit renewable energy is handled within the permit process. This essay also aims to examine how the rules on competition relate to the Environmental Code's goal to promote sustainable development. The essay concludes that the legal position regarding competing claims within a permit matter is unsettled. Nevertheless, the Court is likely to consider an application even if several developers have a right of disposition within the same public water area. The application can be admitted on two feasible grounds, either because a consent from Kammarkollegiet is considered to be sufficient in itself or because the right of disposition is sufficient in the specific case. It is also concluded that the right to use an area is divided differently depending on whether the activity in question is competing with a licensed, a contemporary or a future activity. The interest to ensure that licensed activities can be carried out predictably limits the possibility of restricting licensed activities in favour of new activities. When the right to exploit energy is divided between contemporary activities, the possibility of considering the objective of the Environmental Code is greater. If a court have established that contemporary activities may be allowed separately but not together, it should be assessed which use of the area is most appropriate from a general point of view. The possibility of extracting energy may be limited in favour of a future activity only if it can be carried out at no undue cost to the activity being examined. This limits the possibility of ensuring a distribution compatible with the purpose of the Environmental Code when considering future activities.