Production of hydrogen

Green hydrogen as an energy source of the future

In particular hydrogen produced from green sources can contribute significantly to decarbonising the economy and thus to the success of the German energy revolution because all electricity used must come from renewable sources and, consequently, no CO2 is emitted into the atmosphere. Companies generating electricity from renewable sources will be involved in the production of green hydrogen to the same extent as suppliers or operators of electrolysis equipment or of entire power-to-x systems.

Our lawyers have identified the following legal issues surrounding the production of hydrogen:

Legal issues relevant to technology suppliers:

Protecting intellectual property (Questions about patenting)

Controlling access to proprietary technology

Distribution of IP rights under a cooperation scheme

Antitrust issues to be observed in particular when cooperating with competitors

Subsidies available for the development of technologies

Special safety rules to be observed

Standards applicable to technologies that are used on a large scale for the first time

Legal issues relevant to operators of electrolysis plants:

Criteria for selecting sites for constructing electrolysis plants

Permit/approval procedures to be completed; permit vs. approval; requirement for environmental impact assessments; involvement of the public into permit/approval procedures

Approval requirements applicable to the extraction of water for electrolysis

Special requirements applicable to the operation of electrolysis plants at sea near offshore wind power generation plants

Safety/security requirements to be observed

Subsidies available for the construction of plants

German and, if applicable, EU subsidy programmes

Contracts with technology suppliers

Contracts with plant builders

Contracts with electricity suppliers

Contracts with hydrogen offtakers

Green certification of hydrogen produced; certifying bodies and authorities

Liability for the certification risk, i.e. for the risk of hydrogen not being sufficiently green; plant operators’ liability for this risk and possibilities of shifting it off by contract, e.g. to electricity suppliers or hydrogen offtakers

Responsibility for applicable taxes and levies

Available exemptions from, for example, the statutory tax to promote renewable energy sources [EEG-Umlage]

Apportionable costs

Right of fair, reasonable and non-discriminatory connection and access to the hydrogen network to distribute hydrogen produced in the market