The Bypass Highway : answers

Preliminary remark :

The case is roughly based on a decision of the German Federal Administrative Court (Judgement 14.07.2011 – 9 A 12/10 -, BVerwGE 14, 149).

1. Are certain objections precluded in lawsuit because they were not submitted in due time during administrative procedure (public participation) ? If so : Is this in line with EU law ?

According to national law the objections concerning plants and birds were not submitted during the public participation procedure within the 6 weeks deadline, insofar the NGO is precluded in the court proceedings. The same may apply to the argument concerning an alternative route which was not sufficiently substantiated by the NGO.

The preclusion might not be relevant however if the respective national provision contravenes EU law (principle of primacy). An impairment of EU law might be discussed with regard to Art. 11 of the EIA Directive guaranteeing wide access to a review procedure before a court in cases like this. In case an impairment had to be assumed, the direct effect of the Directive would apply (see CJEU judgement TRIANEL).

Yet according to the jurisdiction of the Federal Administrative Court the preclusion is in conformity with EU law, especially with Art. 11 EIA Directive. As a principle member states are competent to set procedural rules (CJEU judgement Milchkontor). EU law only requires compliance with the principles of equivalence, effectiveness and proportionality. Here : No violation of these principles. Public participation is not restricted disproportionately ; the time limit on one hand is dedicated to accelerate the planning procedure including collecting all information and gathering crucial aspects of the project at stake, on the other hand it serves the principle of legal safety. The principles of equivalence and effectiveness are not harmed, at least if the requirements for substantiation of objections are kept moderate, taking into account the limited resources of people raising objections. NGOs with a professional staff are expected to deliver more specified objections, though, depending on the quality, complexity and amount of the files submitted by the AA or an operator.

2. Does the administrative act contravene the prohibitive provisions in Art. 12 HABITATS Directive as regards BAT and SAND LIZARD ?

The question aims at the legal requirements of actions to be subsumed as prohibited by Art. 12 Para 1. As a general rule the German Federal Administrative Court proceeds from the question whether the risk of killing or destroying protected specimens or their habitats is significantly increased by the project. Otherwise the prohibitive provisions would become an unproportional obstacle for any project planning. The aims and instruments of the Directive are extensively described in the “Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC“, edited by the Commission in 2007.

With regard to the facts of the case we have to distinguish :

2.1 BATs :

Art. 12 Para 1.(d) deterioration or destruction of (breeding sites or) resting places

probably caused by cutting the trees for the planned track. Problem : Are the remaining trees not enough to provide for sufficient resting places, looking at the forest as a whole ? The bats use to change their roosts.

Art. 12 Para 1 (a) deliberate (capture or) killing of specimens of these species in the wild

Killing is probable at least in the crossing area by collision with road traffic ; CEF planting fast growing bushes not sufficient to prevent collisions, even not in combination with the tunnel partly flown through by the bats ; monitoring as such is obviously no active protection measure.

Problem : Deliberate killing ? – Direct intention of killing not necessary, accepting the possibilty i.e. taking the risk fulfills the legal requirement (see CJEU Judgement 18.05.2006 - C-221/04 Commission ./. Spain – fox hunting permit for using stopped snares perhaps endangering strictly protected otters) :

For the condition as to ‘deliberate’ action in Article 12(1)(a) of the directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.
See also CJEU C-103/00 Commission ./. Greece – sea turtle CARETTA CARETTA :
It follows that the use of mopeds on the sand beach to the east of Laganas and the presence of pedalos and small boats in the sea area around Gerakas and Dafni constitute the deliberate disturbance of the species in question during its breeding period for the purposes of Article 12(1)(b) of the Directive.

the Court finds that by failing to take, within the prescribed time-limit, the requisite measures to establish and implement an effective system of strict protection for the sea turtle Caretta caretta on Zakinthos so as to avoid any disturbance of the species during its breeding period and any activity which might bring about deterioration or destruction of its breeding sites, the Hellenic Republic has failed to fulfil its obligations under Article 12(1)(b) and (d) of the Directive.

2.2 SAND LIZARD

Deliberate Capture ?

Problem if it requires a minimum space of time for the specimens to be deprived of their freedom ; no case law of the CJEU until now ; both opinions acceptable

Deliberate Killing ?

Not directly if capture is successful, open question whether all specimens can be found.
Apart from that indirect killing seems probable with regard to tendency of the animals to return to their former home area and moreover enter the highway which is attractive for its warmth. So failure to prevent this by the CEF taken ; also a problem of proof / evidence (see below 5.)

3. Are the ordered CEF legally capable and factually sufficient to compensate possible violations of Art. 12 HABITATS Directive ?

Legally capable yes, in principle. It goes without saying that the AA must try to avoid infringement of Art. 12. But it has to be examined case by case if the measures taken can be successful and do not raise other or even more severe problems.

4. In case of violations of Art. 12 HABITATS Directive : Are requirements of exemptions according to Art. 16 met ?

All conditions of Art. 16 have to be fulfilled, i.e.

a) no satisfactory alternative

BATs :

no alternative to destroying roosts in the planned track area, but an alternative route might avoid the destruction ; therefore the AA principally has – apart from the preclusion of the NGO in this case - to demonstrate that other routes have been considered and turned out altogether not to accomplish the justified goals of planning. If the AA failed to consider alternative routes, the precondition of “no satisfactory alternative” is not met as long as the AA does not undertake and deliver the respective assessment.

as to the killing danger because of collisions satisfactory alternatives might consist of erecting additional walls along the bridge or even covering the bridge. Insofar the precondition is not met.

SAND LIZARD :

alternatives to capture may not exist, but

alternatives to the too nearby translocation causing the killing danger are imaginable, have at least not yet sufficiently been investigated and assessed by the AA. Insofar no fulfilment of the precondition for the time being.

b) the derogation is not detrimental to the maintenance of the populations of the species
concerned at a favourable conservation status in their natural range

The point of view is a broad one, not restricted to single specimens or local population of certain species, but more or less related to the region or even country, putting the question whether the population as such remains as a viable element.

No narrow interpretation of “maintenance … at a favourable conservation status”. If such a positive status is no more existent, the precondition may nevertheless be fulfilled according to CJEU case law (Judgement 14.06.2007 – C-342/05 Commission ./. Finland – Wolf hunting) :

None the less, the grant of such derogations remains possible by way of exception where it is duly established that they are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status.

In our case the precondition is likely to be met for BATs as well as for SAND LIZARD.

c) in the interests of public health and public safety, or for other
imperative reasons of overriding public interest, including those of
a social or economic nature and beneficial consequences of primary
importance for the environment

As far as I can see there is no case law of the CJEU yet concerning this precondition. National German jurisdiction made an approach to “imperative reasons” by requiring reasonable responsible grounds of considerable weight. Not to be demanded are factual inevitable needs nobody can evade.

An “overriding” public interest can be assumed only in accordance with a weighting of the interest in species protection underlying the prohibitive provisions of Art. 12 of the Directive in relation to the urgency of the public interest pursued by the project.

Here the public interest is strong with regard to the intended reduction of immissions in the residential area and in the historic town, and it is recognized by the federal traffic requirement plan as urgent. In comparison to that the interference with the species affected by the highway seems not too intense at least if possible amendments of the plan in favour of species protection and additional CEF better adjusted to the facilities of protection are taken into account.

Therefore this precondition might be regarded met.

5. Is there - if so to what extent - a discretion of the AA to be respected by the court ?

a) as to the factual biological findings and prognosis of developments

The AA has the burden to submit respective information as far as possible, but may have to a certain extent a discretion in assessing the consequences (prognosis). Insofar also the usual establishing of facts by the court ex officio is limited, and the scope of judicial control likewise.

b) as to the planning result as a whole

Judicial control of administrative planning concentrates on the procedure, less on the result. As a first step the necessity of the project is examined rather broadly, in terms of rational grounds, insofar granting administrative/political discretion. After that the factual basis is scrutinized densely whether all relevant data and alternatives have been collected and considered. At last the decision for one and against all other alternatives is subject again only to a restrained judicial control, and will be repealed or declared unlawful more or less only I cases of evident erroneous weighting.

6. Which decisions can the court take ?, e.g. :

a) repeal the administrative act,

only if the legal mistakes are profound and infect the substance of the planning act

b) declare it illegal and not executable,

in case of minor mistakes which are correctible in an additional administrative procedure

c) impose additional conditions on the AA along with its decision ?
This is done quite often by the court in proposals of amicable settlements, and happens in decisions finalizing interim proceedings (e.g. ordering monitoring duties). Insofar the courts have some discretion. In main proceedings it is unusual – the parties have the opportunity to study the reasoning and draw the consequences for their future conduct.

Relevant legal framework :

I. DIRECTIVE 2011/92/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 December 2011
on the assessment of the effects of certain public and private projects on the environment
(EIA Directive)

Article 11
1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned :
(a) having a sufficient interest, or alternatively ;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition ;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.
3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient for the purpose of point (a) of paragraph 1 of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of point (b) of paragraph 1 of this Article.
4. The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
5. In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.

II. COUNCIL DIRECTIVE 92/43/EEC
of 21 May 1992
on the conservation of natural habitats and of wild fauna and flora
(HABITATS Directive)

Article 12
1. Member States shall take the requisite measures to establish a
system of strict protection for the animal species listed in Annex IV
(a) in their natural range, prohibiting :
(a) all forms of deliberate capture or killing of specimens of these
species in the wild ;
(b) deliberate disturbance of these species, particularly during the period
of breeding, rearing, hibernation and migration ;
(c) deliberate destruction or taking of eggs from the wild ;
(d) deterioration or destruction of breeding sites or resting places.
2. For these species, Member States shall prohibit the keeping,
transport and sale or exchange, and offering for sale or exchange, of
specimens taken from the wild, except for those taken legally before this
Directive is implemented.
3. The prohibition referred to in paragraph 1 (a) and (b) and
paragraph 2 shall apply to all stages of life of the animals to which
this Article applies.
4. Member States shall establish a system to monitor the incidential
capture and killing of the animal species listed in Annex IV (a). In the
light of the information gathered, Member States shall take further
research or conservation measures as required to ensure that incidental
capture and killing does not have a significant negative impact on the
species concerned.

Article 16
1. Provided that there is no satisfactory alternative and the derogation
is not detrimental to the maintenance of the populations of the species
concerned at a favourable conservation status in their natural range,
Member States may derogate from the provisions of Articles 12, 13,
14 and 15 (a) and (b) :
(a) in the interest of protecting wild fauna and flora and conserving
natural habitats ;
(b) to prevent serious damage, in particular to crops, livestock, forests,
fisheries and water and other types of property ;
(c) in the interests of public health and public safety, or for other
imperative reasons of overriding public interest, including those of
a social or economic nature and beneficial consequences of primary
importance for the environment ;
(d) for the purpose of research and education, of repopulating and reintroducing
these species and for the breedings operations necessary
for these purposes, including the artificial propagation of plants ;
(e) to allow, under strictly supervised conditions, on a selective basis
and to a limited extent, the taking or keeping of certain specimens
of the species listed in Annex IV in limited numbers specified by
the competent national authorities.
2. Member States shall forward to the Commission every two years a
report in accordance with the format established by the Committee on
the derogations applied under paragraph 1. The Commission shall give
its opinion on these derogations within a maximum time limit of 12
months following receipt of the report and shall give an account to the
Committee.
3. The reports shall specify :
(a) the species which are subject to the derogations and the reason for
the derogation, including the nature of the risk, with, if appropriate,
a reference to alternatives rejected and scientific data used ;
(b) the means, devices or methods authorized for the capture or killing
of animal species and the reasons for their use ;
(c) the circumstances of when and where such derogations are granted ;
(d) the authority empowered to declare and check that the required
conditions obtain and to decide what means, devices or methods
may be used, within what limits and by what agencies, and which
persons are to carry out the task ;
(e) the supervisory measures used and the results obtained.