Case study : German case

On Toads & Tadpoles

1. Facts

A former military training compound of the Bundeswehr is to be used as a so-called “off road area” for civilian all-terrain-vehicles equipped with four low pressure tires (ATVs). The project is subject to authorisation according to the German Federal Act for Protection against Immissions (Bundes-Immisssionsschutzgesetz: BImSchG). A BImSchG-authorisation includes all legal aspects of the project. Therefore, there is only one authorisation procedure rendering all the other procedures demanded by the fields of law concerned unnecessary (concentration effect ). The project is not covered by the provisions of the Directive 2003/35 EC (providing for public participation in respect of the drawing up of certain plans and programs relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EC and 96/11/EC). The area figures in the Commission’s list of “sites of Community importance” pursuant to the Habitats Directive (Directive 92/43/ECC on the conservation of natural habitats and of wild life fauna and flora). Art. 4 (5) of the Habitats Directive provides that as soon as a site is listed it shall be subject to Article 6 (2),(3) and (4). However, for an area to enjoy the status of a “site of Community importance” the German Federal Nature Protection Act demands in addition a notification of the list at the national level, which has been not done in the case. The public authority ascertains that the project would indeed affect the ecological integrity of the site concerned, i.e. kill adult toads and stop young toads from developing (of the rare species of bombina variegata listed in annex II of the Habitats Directive) but justifies the interference with imperative reasons of overriding interest thus granting an exemption from the prohibition to affect sites of Community importance according to the Bavarian Nature Protection Act. The project is supposed to compensate for the loss of jobs due to the closure of the military training compound.

The Association for Environmental Protection in the Free State of Bavaria (Bund Naturschutz in Bayern) brings an action for annulment before the administrative court against the authorisation for the off-road area. The Federal Nature Protection Act (Bundesnaturschutzgesetz) grants legal standing to non-governmental associations in procedures dealing with certain matters concerning the protection of the environment. A general legal standing of NGOs does not exist under the German law.

The defendant (Free State of Bavaria) considers the action not admissible on the ground that, technically, the basis of the claim is not the law on nature protection but the law on immissions the procedure of which does not provide for a legal standing of NGOs. The defendant considers the action not founded too on the ground that the area has not been officially notified according to national law. Furthermore, the defendant considers the ecological interference justified by imperative reasons of overriding interest.

Since the action has suspensive effect according to the German Code of administrative procedure the public authority declares the authorisation immediately enforceable. The claimant applies for interim measures.

2. Legal Framework

a. EC Law: The Habitats Directive

Article 6 of the Habitats Directive states :
(1) For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
(4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’

b. National Law

§ 13 German Federal Act for Protection against Immissions (Bundesimmissions¬schutzgesetz) states:
The authorisation comprises other decisions by public authorities concerning the project, particularly approvals, permissions (…).

§ 61 (1) combined with § 33 (2) Federal Nature Protection Act (Bundesnaturschutz¬gesetz) states:
An association recognised according to the Law of the Länder (…) has the right to legal remedy according to the Code of administrative procedure against exemptions from prohibitions (…) for the protection of sites of Community interest.

§ 10 (6) (1) Federal Nature Protection Act (Bundesnaturschutz¬gesetz) states:
The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety notifies the sites of Community interest in the German Federal Bulletin.

Art. 49 a (2) combined with Art. 13 b, c (2) Bavarian Nature Protection Act (Bayerisches Naturschutzgesetz) states:
A project can be exempted from the prohibition (to affect a site of Community interest) if the exemption is demanded for imperative reasons of overriding interest

Art. 6 Habitats Directive has been implemented into national law, both at federal and Länder level, on a word by word basis.

Solution

I. The procedural framework

Article 80 (5) of the Code of Administrative Procedure (VwGO) provides for a special procedure for interim measures. The Administrative Tribunal adjudicates upon the urgency and – although in cursory way - lawfulness. A further appeal is possible to the upper (Regional) Administrative Court.

II. The problems

There are three crucial problems:

1. Does the plaintiff have legal standing?
2. Is the German Law to be considered as as correctly transforming the Habitats Directive?
3. Is the permit justified by “imperative reasons of overriding interest”?

1. The first question concerns the admissibility of the administrative action. The administrative Courts have been extremely reluctant to grant legal standing to NGOs in such a configuration because of the so-called “concentration effect”. Article 13 of the Federal Immission Control Act (Bundesimmissionsschutzgesetz) does not allow for an explicit exemption for actions concerning the Law on Nature Protection.

The chamber did not follow this opinion and regarded it too formalistic.

2. The second problem lies with the notification requirements set down in the German Federal Nature Protection Act which are not stipulated by the Habitats Directive.

The chamber considered the lack of the additional notification (of the list of sites of Community importance) in an official gazette (Bundesanzeiger) as an impediment since the notification requirement is no condition for the application of the Habitat’s Directive.

3. The third problem concerns partly the assessment of facts. Are the compensatory measures sufficient ?.

The chamber found that there were no imperative reasons of overriding interest.

III. Decision of the Administrative Tribunal of Würzburg

The decision of the Chamber: Suspensive effect was ordered.

Date of appeal: 1st of June
Date of decision: 17th of July

Costs:

Court fees: 249 € (main issue: 726 EUR)
Expenses of the winning party which was represented by a lawyer: 661 EUR (main proceedings 1707 EUR)

IV. Future Prospects

The decision of the Chamber was appealed. The Upper (Regional) Administrative Court (Bayerischer Verwaltungsgerichtshof) has not yet ruled upon the case.