In the year 2012 the competent administrative authority (AA) took the decision for planning a new two lane highway of 15 km length dedicated to bypass a town of 40.000 inhabitants and replace the main through road affecting residential areas and the historic town centre. The project is marked in the federal traffic requirement plan as urgent. The new route shall cross a forest where several species of BAT (like the greater mouse eared bat “myotis myotis”) listed in Annex IVa of the Council Directive 92/43/EEC (as amended, HABITATS Directive) have their roosts in holes and gaps of trees. Their favourite hunting area is above and along an old railroad track rarely used by trains nowadays. The railroad track shall be spanned by a bridge of the new road, forming a tunnel underneath of 10 m in width, 30 m in length and 8 m in height. Outside the forest the new route shall lead along mine dumps with a considerable population of SAND LIZARD (“Laceta agilis”), also listed in Annex IVa of the HABITATS Directive.
During the planning procedure including an Environmental Impact Assessment (EIA) a recognized environmental NGO made certain objections invoking infringement of national environmental law by which respective provisions of the HABITATS Directive were transposed, particularly Art. 12 and 16 HABITATS Directive with regard to BAT and SAND LIZARD species. The national legal deadline of 6 weeks after public announcement and presentation of the project files was kept with these objections.
The AA approved the plan by administrative act combined with numerous conditions, mainly imposing CEF (Continuous ecological functionality-measures), among others :
Planting fast growing bushes alongside the bridge to avoid collisions of BAT with road traffic ;
Collecting SAND LIZARD on the area needed for the new track and releasing them on adjacent premises already inhabited by the species, in addition enlargement of this habitat ;
Monitoring of effectiveness of these measures.
The NGO in due time challenged the administrative act by lodging an action with the competent administrative court, arguing :
prohibited killing of BAT at least above the crossing of new highway and old railroad track, CEF insufficient ;
unjustified destruction of resting places of BAT ;
prohibited capture of SAND LIZARD ;
translocation of SAND LIZARD insufficient to prevent killing by traffic ;
alternative tracks less harming the protected species have not sufficiently been taken into consideration ;
also plants and birds underlying strict protection would be destroyed or killed without justification ;
The AA argues :
NGO precluded with all objections not submitted during public participation procedure, particularly as to plants and birds protection and to alternative tracks ;
killing of BAT too unlikely to justify further CEF ; besides derogation of prohibition justified in public interest ;
short time capture of SAND LIZARD no relevant violation ;
Monitoring will show if SAND LIZARD return to their former living area ;
Discretion of AA to assess dangers to protected species and effectiveness of CEF ;
general planning discretion of AA to choose the track among different solutions.
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 ?
2. Does the administrative act contravene the prohibitive provisions in Art. 12 HABITATS Directive as regards BAT and SAND LIZARD ?
3. Are the ordered CEF legally capable and factually sufficient to compensate possible violations of Art. 12 HABITATS Directive ?
4. In case of violations of Art. 12 HABITATS Directive : Are requirements of exemptions according to Art. 16 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
b) as to the planning result as a whole
6. Which decisions can the court take ?, e.g. :
a) repeal the administrative act,
b) declare it illegal and not executable,
c) impose additional conditions on the AA along with its decision ?
Final remark : The NGO is supposed to have legal standing, and the solution on the merits shall follow the provisions of the HABITATS Directive assuming the relevant national law is identical.
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
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
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
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
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.