In the case of large and mostly controversial projects, lawsuits almost inevitably arise. The court proceedings usually take a long time and delay the projects.
(Photo: dpa)
Berlin Federal Minister of Justice Marco Buschmann (FDP) wants to ensure that important energy and infrastructure projects are no longer blocked by years of court proceedings. But now the Federal Administrative Court, where many of these processes are negotiated, is criticizing the minister.
“Some of the proposed regulations meet considerable legal concerns,” says a previously unpublished letter that is available to the Handelsblatt. “Moreover, they are sometimes excessive and impractical and sometimes superfluous.”
Buschmann presented the draft bill for his law in August. Accordingly, court proceedings on “particularly important infrastructure projects” such as wind turbines, high-voltage lines or highways should take precedence over other proceedings.
Provision is also made for judges to be able to disregard formal deficiencies in the disputed administrative act in the future if it is clear that these deficiencies will be remedied “in the foreseeable future”. The aim is to reduce the duration of the procedure for projects with a high economic or infrastructural importance, “without impairing the effectiveness of legal protection”.
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The Federal Administrative Court is sharply critical
The Federal Administrative Court is now complaining: “The draft does not meet this goal.” The letter dates from the beginning of September and is signed by the then Vice President Andreas Korbmacher. Korbmacher is now President of the Federal Administrative Court.
Above all, the plan that the courts should ignore procedural or formal errors is met with criticism. “The regulation has no relevant scope,” says the six-page letter of September 6th. Even now, the violation of procedural or formal requirements is not taken into account in summary proceedings if “their relevance to the result” can be ruled out.
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Errors that could affect the content of the administrative act, on the other hand, would have to be corrected in a supplementary procedure, which should in principle be conducted with an open outcome. “In such cases, it is not obvious that the error correction cannot result in a change in the administrative act,” the letter clarifies.
According to the previous experiences of the planning senates of the court, major deficiencies in a planning approval decision cannot be remedied in a timely manner. As a rule, the supplementary “healing proceedings” take longer than the main court proceedings.
There is another criticism for Buschmann: The constitutional principles of fair proceedings, equality of arms for those involved and judicial neutrality prohibit the court from acting as a “repair company” for the administration and from initiating the correction of errors in a supplementary procedure basket maker out. The task of the court is the administrative control, not the delivery of “recommendations for error correction”.
Ministries argue about draft law
The criticism is explosive, as the state secretaries of several federal ministries have been wrestling with the law for weeks – also and especially with the new paragraphs criticized by the judges. For example, the Ministry of the Environment vetoed the proposal to be able to subsequently heal errors in the process in the future. The department of Minister Steffi Lemke (Greens) rejects the fact that new roads, waterways and airports are also subject to the regulation – and not just wind turbines and power lines.
She is supported by officials from the Economics Ministry led by Robert Habeck (Greens). The Federal Ministry of Justice, however, insists on giving the courts leeway.
Since then, everyone involved has said that the point must be “politically united”. The statements of the judges were “a hard defeat for Minister Buschmann”, it was said in coalition circles.
The Federal Administrative Court also harshly criticizes another key point in Buschmann’s draft. In the future, there should be a hearing “at an early stage of the proceedings”. Here the judges should primarily explore the possibilities of an “amicable settlement of the legal dispute”.
Criticism of the Minister of Justice’s proposed legislation comes from all sides.
(Photo: Reuters)
However, the Federal Administrative Court found: “These considerations describe an ideal-typical procedure, they ignore reality.” The scope for amicable solutions, especially in the larger procedures, is “extremely limited”. Because the public is usually already involved in the planning process in order to find mutually acceptable solutions with the project developer in the event of objections. “As a rule, there is therefore no longer any potential for comparison in court proceedings,” explains Korbmacher.
Other public statements on the law are critical. For example, the Association of German Administrative Judges (BDVR) calculates that the average duration of legal proceedings that are assigned to the Federal Administrative Court in the first instance and that concern important infrastructure projects last year was twelve months and 18 days.
Judges and lawyers see little scope for further acceleration
The BDVR writes: “In practice, there is widespread agreement that the possibilities for accelerating the administrative court proceedings have almost been exhausted, which is why the present draft bill is not expected to make a significant contribution to further accelerating the court proceedings.”
The main reason for the excessively long duration of planning procedures is clearly the lack of experts in the authorities and the lack of equipment.
The Federal Chamber of Lawyers (BRAK) is also “skeptical as to whether the problem can be substantially solved by further changes to procedural law”. There is concern that legal protection options for those affected will again be restricted. The German Lawyers’ Association (DAV) complains that the fact that a court “disregards” a legal deficiency in an official decision that it has found is undesirable from a constitutional point of view.
Actually, the law should have passed the Federal Cabinet long ago. In view of the coalition dispute, November 30th is now under discussion – and that in connection with other legislative proposals. There is already talk of a “bazaar”.
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