EurUp 02/2015


Natur- und Gewässerschutz – Ausgangsparameter, Zielsynergien, Zielkonflikte
Prof. Dr. Dr. Wolfgang Durner
Traditionally, German law used to draw clear borderlines between water law and nature protection law: On the Federal level, the Federal Nature Protection Act aimed at protecting wildlife and nature while the Federal Water Resources Act dealt with the management and use of water as a resource. In 2000, however, the European Water Framework Directive recognized that „water, due to its ecological and social value is more than a resource“, and obliged Member States to attain a good ecological status of all water. With its new approach, the Water Framework Directive became the starting point of a comprehensive ecologization of German water law. Nevertheless, while the newly created links between water management and nature protection are to be welcomed, both fields of law have to preserve their respective rationalities.
Entwicklungslinien und Perspektiven des Wasserrechts - Grundzüge eines wasserrechtlichen Reserveregimes nach dem 22.12.2015
The objective of achieving a good status of all water bodies in the European Union, as provided by the EU Water Framework Directive, will significantly be missed by the reference date in December 2015. Reasons can not only be found in the different framework conditions in the Member States, but also in non-realistic ecological objectives as well as in methodological deficiencies of the Directive itself. Instead of reforming the Directive, the anti-systemic extension of time today seems to be the favourite instrument to provisionally achieve the environmental aims, for covering the existing problems, and to adjourn necessary decisions until further notice. Contradictory to the jurisprudence of the ECJ, which encourages the Member States to fill out the substantial water relevant scopes in their decisions, Germany largely avoids responsibility by taking the easy way out and implementing the so-called 1:1-way. As a consequence, the interpretation and decision-making authority increasingly is left to the European Institutions. In contrast, it still is very rarely made use of determining environmental objectives, which are less strict and more differentiated as well as enforceable, although this would be legally and practically appropriate.
Das Verfahren der Netzplanung als Vorbild für andere Infrastrukturplanungen?
Prof. Dr. Alexander Schink
For the admission of high-voltage lines that cross the borders of federal states or to other Member States of the European Union, the Energy Industry Act (EnWG) and the Energy Line Extension Acceleration Act (NABEG) contain special rules. These regimes allow for accelerated legally secure approval of these constructions so that the power lines necessary for the implementation of the energy transition can be completed in time. In addition to a legal needs test and the introduction of public participation at all stages of the plan approval upstream process, the Federal Trade Planning as a new instrument was introduced. It replaces the Zoning and line determination process and determines with binding effect for the subsequent planning approval process a route corridor for the high-voltage line. The legal protection is focused on the authorization decision. Subject of the following paper is the question of whether these changes in the approval process for high voltage lines in the Energy Industry Act and the NABEG can be transferred to other authorization procedures for infrastructure projects. The paper concludes that many elements are not new legislation. This applies in particular to the legal needs assessment and public participation. The process of public participation is, however, modified by the introduction of a resolution conference, to be carried out in the scoping process and early public participation, notwithstanding § 25 para. 3 VwVfG pretend mandatory. This procedure should be adopted in other approval procedures for infrastructure projects. This also applies to the Federal sectoral planning which contributes to accelerated procedure and a shift of complex scanning operations with relieving effects for the subsequent planning approval. On the other hand, a concentration of legal protection on the final approval decision is not recommended.
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