Far reaching implications for plant approval –European Court of Justice (ECJ) ends possibility of precluding objections from the applicant's counterparty
With its ruling of 2015-10-15(C-137/14), the ECJ found several German legislative provisions with respect to environmental impact assessments (EIA) incompatible with EU law. Among these provisions are § 46 VwVfG and especially the so-called „Präklusionsvorschriften“ (foreclosure provisions) of § 73para 4 VwVfG and § 2 para 3 UmwRG and also the transitional rule of § 5 para 1 and para 4 UmwRG.
This court ruling effects the core area of administrative processes with reference to the EIA by suspending the possibilities of precluding objections from the applicant's counterparty in terms of content and time. Furthermore, the so-called „Kausalitätsrechtsprechung“ (causality jurisdiction) of the BVerwG should now belong to the past.
This judgement eliminates from now on the material preclusion for all administrative and court proceedings which are subject to the EIA or the Industrial Emissions Directive (IED). Against this background, the approval authorities and project developers are well advised to take the judgement into account in ongoing procedures.
Therefore in the future, methodologically correct and totally complete expert reports as well as internally consistent application documents will be even more important for achieving the highest possible level of legal certainty.
