Case study “Mountain bike downhill course” (Germany)

Facts

In a northern Bavarian mountain range (up to 832 meters above see level) a chairlift for skiing exists. An operator plans to create a mountain bike downhill course by using the chairlift in the snowless season to get the cyclists uphill. The project comprises a “free ride track” and a “4X track”. The latter facility serves the competition of four cyclists running down at the same time. The local community is in favor of this project as it expects a promotion of tourism in this in former time underdeveloped region.

The part of the area concerned not covered by wood is mainly classified as Special Protection Area (SPA) under Council Directive 79/409/ECC of 2 April 1979 on the conservation of wild birds (“Wild Birds Directive”) and is listed in accordance with article 4 (2) subparagraph 3 of Council Directive 92/43/EEC of May 1992 on the conservation of natural habitats and of wild fauna and flora (“Habitats Directive”) as Site of Community Interest by Commission Decision 2008/25/EC of 13 November 2007 as follows:

“DE5426320 Hohe Rhön 1 620 ha”.

According to a landscape protection regulation for the entire mountain range from the 80s a permit is required for the project. The public authority, assuming that the project has likely a significant effect on the Natura 2000 site, requires an ecological expertise. The operator submits an expert’s report from a (private) Society for Ecology and Landscape Planning (hereinafter “the expert’s report”)

The expert’s report points out: Subject to examination was a stripe of 25 meters on both sides of the tracks. This area hosts the following natural habitat types according to Annex I of the Habitats Directive:

6230 Species-rich Nardus grasslands, on silicious substrates in mountain

areas (and submountain areas in Continental Europe), designated as priority habitat type

6520 Mountain hay meadows

The expert’s report assumes that about 1000 m² of the Natura 2000 site will be used. It concludes that the project will not adversely affect the integrity of the site in view of the site’s conservation objectives.

A non governmental organization (NGO), promoting the protection of wild birds, which is recognized by the Free State of Bavaria in the context of rules on legal standing in environmental matters, submits objections.

The public authority grants the permit supplied with a list of conditions. Following the expert’s report the public authority holds that a dispensation from the Natura 2000 rules is not necessary.

The NGO lodges an appeal with the Administrative Court and claims the annulment of the permit. It challenges the assessment by the experts instructed by the operator. It argues that irrespective of other impacts by the project the loss of 1000 m² of the protected area contravenes the Natura 2000 rules. The legal conditions for a dispensation were not met.

The operator is summoned to the proceedings as a third party.

The defendant is of the opinion that the assessment of an effect on the Natura 2000 is subject to review by the court on obvious errors only. It holds furthermore that the loss of 1000 m² is not significant in relation to the size of the site (16 200 000 m²). Furthermore it points out that overriding reasons of an economic nature have to be recognized.

The reporting judge carries out an inspection of the site in question.

In the final oral hearing the appellant (NGO) hands out a list of supplementary conditions. It agrees to an amicable settlement if the operator will be bound by these additional conditions. In the case of an amicable settlement every party wants a solution in which it has no liability for costs.

Questions:

What is the extent of the judicial review of the impact assessment made by the public authority?

Does the project adversely affect the integrity of the site?

Assuming such an impact, must/can the court reverse the decision because of a procedural error or must/can the court check whether a dispensation is justified?

Are the preconditions for dispensation, set out in article 6 Habitats Directive, met?

Should the court suggest an amicable settlement in this case even if it considers the claim as founded and if it has doubts whether the additional conditions in question may prevent the initially feared impact on the Natura 2000 site?

How may the dispute be settled without a judgment in this case? If there are different possibilities, which way to you prefer, taking into consideration the German rules on costs?

Legal framework

It shall be assumed that legal standing for the NGO is granted by the national law.

The solution on the merits shall be based on the Habitats Directive assuming that the national substantial nature protection law has exactly the same wording.

Habitats Directive

Article 4 (2) subparagraph 3

The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.

Article 4 (5)

As soon as a site is placed on the list referred to in the third subparagraph of paragraph 2 it shall be subject to Article 6 (2), (3) and (4).

Article 6

…

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.

Article 7

Obligations arising under Article 6 (2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4 (4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4 (1)…

Wild Birds Directive

Article 4

1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.
…

4. In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.

German Code of Administrative Court Procedure

Section155 (2)

Anyone who withdraws a motion, an action, an appeal or another remedy shall bear the costs.

Section 161 (2)

If the dispute is settled in the main case, …, the Court shall rule by order on the costs of the proceedings at its reasonably exercised discretion; the previous status of the case and of the dispute shall be taken into account….

Section 162

(1) Costs shall be constituted by the court costs (fees and expenses) and the expenditure of
the parties necessary to properly pursue or defend rights, …

(2) The fees and expenses of an attorney or legal counsel, …, shall always be refundable.