The highest German administrative court sees a possible violation of the European Environmental Impact Assessment Directive(EIA Directive). In a ruling dated March 14, 2017, the judges referred the legal dispute to the European Court of Justice in order to clarify whether German regulations on plan maintenance meet the requirements of EU law.
Background to the legal dispute
The background to the proceedings is an action for judicial review against a development plan that was intended to create the legal conditions for four additional wind turbines in a wind farm. The development plan was unlawful due to incomplete publication of the draft plan. It lacked the necessary information as to which environmental information could be inspected by the municipality. Under German law, this procedural error would initially be irrelevant under Section 215 BauGB because the plaintiffs had not notified the municipality of this error within one year. The OVG Lüneburg therefore rejected the application for a review of the standards.
The Federal Administrative Court (BVerwG for short) now sees a need to clarify whether Section 215 BauGB, which may allow a development plan to become final despite procedural errors, is compatible with the EIA Directive. Within the scope of application of the EIA Directive, European law requires access to a court in order to challenge the legality of a sovereign act. Furthermore, according to a ruling by the ECJ on October 15, 2015, causes of action may not be restricted by national law. The Federal Administrative Court therefore considers a restriction of legal protection that is inadmissible under European law to be possible in this respect.
Effects on practice
The ECJ 's decision harbors particular risks for municipalities and investors in wind turbines. Violations of Section 3 para. 2 sentence 2 half-sentence 1 BauGB are common in practice. In its ruling of 18.07.2013, the Federal Administrative Court ruled that when interpreting development plans, the environmental issues must be summarized according to subject blocks and characterized in the customary local announcement. Many development plan procedures do not meet these strict requirements. The provision of Section 215 BauGB has resulted in numerous so-called non-conforming development plans. Opponents of wind farms might have an additional, suitable means of attack in legal disputes against wind turbines if the ECJ were to interpret the EIA Directive narrowly and thus restrict the scope of application of Section 215 BauGB accordingly. The ECJ's decision is therefore eagerly awaited.
Addendum
In the meantime, the applicant has withdrawn his application for a review of the standard. The Federal Administrative Court discontinued the proceedings in its ruling of 01.03.2018 - 4 CN 1.18 - so that the ECJ will no longer rule on the question referred. The legal uncertainty created by the request for a preliminary ruling will therefore continue.
Dr. Johannes Badenhop