LegislationMain environmental regulations
What are the main statutes and regulations relating to the environment?
Environmental legislation in Germany is mostly determined either by directly applicable EU regulations (eg, on chemicals, waste shipments or food contact materials) or EU directives requiring national implementation, such as most product, nature conservation or water quality regulations. This is to avoid ‘environmental dumping’ across the European Union (ie, production relocation in EU member states with less environmental enforcement).
German environmental regulations primarily concern soil and water protection, nature protection and mining laws (eg, gas underground storage, submarine cables and geothermal installations).
Environmental protection has been set out in the Constitution as a government objective since 1994. Environmental protection rights, however, cannot directly be derived from the Constitution, but only from the relevant environmental laws. The adoption of a comprehensive and uniform Environmental Code failed in 2009 and has not been pursued further since. As a result, industrial operators are subject to the relevant EU, federal, state and sometimes local regulations.Integrated pollution prevention and control
Is there a system of integrated control of pollution?
There is a system of integrated control of pollution regarding industrial and other activities that are prone to cause environmental impacts subject to permits under the Emissions Control Act; for complex infrastructure projects of all types (road, rail, waterways, harbour or mining installations, high-voltage electricity lines) the related issues are dealt with in the plan approval. These permits and plan approvals are ‘integrated’, meaning that they generally regulate all environmental concerns in one decision.Soil pollution
What are the main characteristics of the rules applicable to soil pollution?Liability
The Federal Soil Protection Act provides for liability for hazardous soil changes, historic and suspected soil pollution and groundwater contamination caused by soil pollution. The following parties are liable: the polluter; the owner and (under certain conditions) the former owner of the site; and the tenant. In exceptional cases the shareholder of the owning company can be liable (eg, malicious undercapitalisation). The liability of the listed parties is joint and several and regardless of their contribution to (suspected) contamination to avoid the taxpayer having to assume such costs. The authorities select at their lawful discretion the liable party and the measures that must be taken, usually at the liable party’s expense. Site owners are often held liable to ensure efficient and fast action (deep pocket principle).
Measures such as investigation, remediation or containment may be limited by the permissible use of the site, proportionality or the value of the site after decontamination. In Germany, thresholds for contaminants are regulated by an ordinance, environmental guidelines and standards. The applicable limits are, therefore, often subject to compromise with the authorities and made subject to remediation agreements determining measures, objectives and deadlines.Regulation of waste
What types of waste are regulated and how?Waste
‘Waste’ is all substances and objects that their owner discards, intends to discard or is obliged to discard. ‘Discarding’ means that the owner has lost interest in the material, disposes of it or leaves it to third parties (eg, municipal waste collections or recyclers) for recovery or disposal, such as incineration plants or recycling facilities. ‘Compulsory waste’ is any substance or object that is no longer used for its original purpose and is proven to be an environmental hazard and must therefore be disposed of.
The Circular Economy Act (CEA) sets out the main provisions on waste handling, prevention, preparation for reuse, recycling and disposal. According to the ‘waste hierarchy’, the reuse or recycling of waste is more desirable than its disposal. ‘Recycling’ includes the preparation or processing of waste with the objective of reuse for its previous purpose (substance recovery) or a new purpose (eg, energetic recovery) excluding waste used as a combustible or filling material. Hence, the CEA requires that recycling is promoted and includes an obligation to collect different types of waste separately (paper, glass, (plastic) packaging, biowaste, batteries, electr(on)ical equipment, etc). As Germany is not rich in resources such as metals or rare earths, emphasis is placed on the recovery of valuable materials and resources. Waste disposal must be done in a safe and environmentally sound way (either by incineration in an approved installation or a landfill site after having been pre-processed) and must be comprehensively documented.Regulation of air emissions
What are the main features of the rules governing air emissions?Emissions Control Regulations
The reduction of air pollution is one of the EU’s main objectives. In Germany, rules and thresholds for air emissions of industrial installations or other emissions sources are regulated in the Federal Emissions Control Act, specific ordinances and the Technical Instruction on Air Pollution. Thresholds for nitrogen oxide and particulate matter apply to city traffic (eg, PM10: 50µg/m3 daily limit value not to be exceeded more than 35 times per year; 40µg/m3 average annual limit value).
The relevant air emissions thresholds were exceeded in 66 German cities in recent years. As a result, the European Commission litigated against Germany before the European Court of Justice. Diesel cars and the failure to control and act against their producers have been identified as major contributing factors in this non-compliance. In an unprecedented chain of court actions an environmental NGO successfully sued major German cities to obligate them to issue bans on older diesel and petrol vehicles. The rulings were implemented in 2019 and, so far, several German cities have issued driving bans in certain areas or implemented further measures to reduce air pollution.
Certain industrial installations (among them large combustion plants) are, based on the EU Industrial Emissions Directive (current consolidated version of 6 January 2011), under a continuous obligation to be adjusted based on the Best Available Techniques, subject to regular monitoring by the authorities and publication of the results.
Buildings have to comply with ever stricter energy efficiency requirements. These also apply to modernisation measures.Protection of fresh water and seawater
How are fresh water and seawater, and their associated land, protected?
The Water Management Act requires the sustainable management of bodies of water. The use of water (ie, its withdrawal or discharge) requires a permit and is charged in order to incentivise water conservation. The discharge of wastewater and other substances into bodies of water or sewage systems is heavily regulated. For instance, the Groundwater Regulation specifies criteria to control the amounts of nitrates in groundwater. In 2018, the European Court of Justice condemned Germany because of its failure to reduce groundwater pollution from nitrates and the European Commission is threatening enforcement, which could result in daily penalties of up to €850,000.
The interpretation of water laws (eg, the EU Water Framework Directive’s ‘good status’ standard and the maintenance of water standards, current consolidated version of 20 November 2014) and their implementation into German law are currently the ‘environmental highlights’ and key challenges in industrial and infrastructure projects. One issue is whether the quality of groundwater has deteriorated if only one substance threshold has been exceeded or how to handle already exceeded thresholds. The latter would hinder any new projects in bodies of water that do not meet the required threshold.Protection of natural spaces and landscapes
What are the main features of the rules protecting natural spaces and landscapes?
The requirements for natural spaces and landscapes are regulated by the Federal Nature Protection Act and ordinances of the German states specifically regulating protected areas and the applicable rules and prohibitions.Protection of flora and fauna species
What are the main features of the rules protecting flora and fauna species?
The protection of flora and fauna species is regulated in two ways: first, certain habitat types and species are protected within specific areas called ‘Flora-Fauna-Habitat areas’ or ‘Natura 2000 sites’ (based on the EU Conservation of Natural Habitats and Wild Fauna and Flora Directive, current consolidated version of 1 July 2013, and the EU Conservation of Wild Birds Directive, current consolidated version of 26 June 2019); second, protected species are protected as individuals against impairments (eg, killing, impacts on reproduction, breeding and migration). Natura 2000, however, is the biggest challenge for projects.
The 5,266 German Natura 2000 sites cover more than 15.4 per cent of Germany’s land area and almost half of its marine area. If a project is planned near a Natura 2000 site, the relevant environmental authority must assess whether the project could have adverse effects on the site. The project developer must generally provide comprehensive inventory of relevant habitats and species, (inter)relations and (expert) documentation for such projects. Natura 2000 has therefore been an effective instrument for environmental NGOs who want to challenge and delay infrastructure, industrial and energy projects. For example, the approval for the German motorway section of the German-centric Hessisch Lichtenau – ultimately connecting Polish with the Benelux states’ motorways – took more than 15 years owing to three court procedures based mainly on non-compliance with Natura 2000-related issues.Noise, odours and vibrations
What are the main features of the rules governing noise, odours and vibrations?
The basic legislation for noise, odour or vibration emissions is the Federal Emissions Control Act. It addresses emissions of all types of (industrial) installations (including eg, animal-breeding plants), but also includes regulations for transport carriers (routes) and vehicles. Ordinances, administrative provisions or technical guidelines supplement the Act such as, in particular, the Technical Instruction on noise protection with limit values, parameters for the calculation of noise and noise measurement procedures or the Administrative Provisions on odour emissions. Vibrations are regulated in technical norms regarding protection of humans in buildings and for prevention of building damage.
There is no general regulation for protection against traffic noise, but noise abatement is based on various approaches and regulations for noise from roads, railroads or aircraft. As a rule, noise is calculated, not measured. Yet, the implementation of the EU Environmental Noise Directive takes a different, comprehensive approach on noise caused by distinct sources. Noise limits are specifically set in permits for industrial plants or plan approvals for infrastructure projects as well as in zoning plans and building permits.Liability for damage to the environment
Is there a general regime on liability for environmental damage?
The Environmental Damage Act is based on the ‘polluter-pays’ principle and gives incentives to operators to adopt measures and develop practices to minimise the risk of environmental damage. Environmental damage is defined as damage to habitats and species (biodiversity damage), surface or groundwater or soil. It depends on specific occupational activities listed in the Annex and applies regardless of fault if a causal link can be established between activity and damage. For activities not listed, the liability relates to biodiversity damage only and the responsible party must have acted with intent or negligence. As Germany has specific regulations on soil and water contamination, the Environmental Damage Act is mainly relevant for biodiversity damage.Environmental taxes
Is there any type of environmental tax?
Environmental taxes are designed to incentivise a scarcer use of natural resources. Environmental taxes in Germany are lower than in other EU countries. In 2019, environmental taxes in Germany amounted to €60.7 billion including energy tax, taxes on electricity and vehicle tax. The energy tax (€40.7 billion) applies to any purchase of mineral oil or biofuels. Electricity taxes (€20.5 per MWh) are levied from electricity consumers and resulted in revenues of €6.7 billion in 2019. Vehicle tax relates to vehicles used on public roads. There are also charges, for example, for certain public services (waste and wastewater treatment), the use of resources (the industrial abstraction of groundwater for cooling purposes) and plastic bags in shops.
Hazardous activities and substancesRegulation of hazardous activities
Are there specific rules governing hazardous activities?
Hazardous activities are not a category under German law, but rather the operation of (industrial) installations or projects (including underground activities) that potentially cause environmental risks or nuisances for nearby residents or the general public. Such installations usually require a permit under the Emissions Control Act or the Mining Act. The main activities under the Emissions Control Act, inter alia, relate to generation of electricity, processing of steel, quarries, production of chemical products, food, mineral oil refining, storage of certain substances or waste processing above certain thresholds.Regulation of hazardous products and substances
What are the main features of the rules governing hazardous products and substances?
Dangerous chemicals are, inter alia, subject to the EU Regulation on Registration, Evaluation and Authorisation of Chemicals (current consolidated version of 20 April 2020) establishing the principle ‘no data, no market’. That is, chemicals must not be placed on the Union market before they have been registered with the European Chemicals Agency after a comprehensive assessment of substance properties (technical dossier) and impacts (chemical safety report) to be provided by the companies producing or marketing such substances.
Substances of very high concern are to be replaced in the long term because of their hazardous features. They are ultimately listed in Annex XIV (Authorisation) with a sunset date for their marketing. Any longer use requires an application for authorisation well before the sunset date. Annex XVII (Restriction) contains conditions for or prohibition of the manufacture, use or marketing of certain substances owing to unacceptable risks to human health or the environment caused by such substances. Further, comprehensive information requirements apply in both cases.Industrial accidents
What are the regulatory requirements regarding the prevention of industrial accidents?
Installations particularly prone to hazards to human health and environmental damage (‘Seveso installations’) are subject to specific organisational and action obligations considering various scenarios and reporting obligations. For these installations, comprehensive information sharing with the authority and the public must be set up before and after any incident or accident. A regular issue with these installations or the neighbouring buildings and uses are the distance requirements that must be observed.
Environmental aspects in transactions and public procurementEnvironmental aspects in M&A transactions
What are the main environmental aspects to consider in M&A transactions?Emissions
Environmental aspects in M&A transactions vary corresponding to the business activity of the target company. For industrial installations emissions (air, noise) regularly play a key role, especially of the installations with greater environmental impact (being subject to the EU Industrial Emissions Directive), which must be adapted to the Best Available Techniques regularly and which are inspected repeatedly by the authorities. Here, any backlog or issue may become expensive for a purchaser. Also, the allocation of emissions allowances under the European Emissions Trading System in the new trading period (starting 2021) and possible challenges of the allocation decisions are worth considering given the rising value of the certificates.
Soil and groundwater contamination liability is a regular issue, especially at older industrial sites. In this case, besides liability, subsidies may also be taken into account.
Energy and water
Energy generation and costs and the availability and use of water have become important issues with the phasing out of nuclear and coal-generated energy and less water being available due to the summer draughts and the sophisticated legal requirements.Environmental aspects in other transactions
What are the main environmental aspects to consider in other transactions?
The environmental aspects depend on the business or activities concerned. In financings of industrial installations often the validity and enforceability of permits is key. In real estate transactions soil and building contamination is a regular issue and, increasingly, questions of energy supply and generation (renewable energies) and energy-efficiency requirements. Bankruptcy proceedings may impact on existing permits since the operator is no longer able to financially guarantee compliance with the environmental obligations.Environmental aspects in public procurement
Is environmental protection taken into consideration by public procurement regulations?
The public procurement regulations allow for inclusion of environmental aspects at all stages of the procurement procedure: the awarding authority can already, when selecting the contract object, choose an environmentally friendly alternative or incorporate environmental requirements as technical specifications. As a bidder qualification, certain standards for environmental management can be required to the extent relevant for the performance of the contract. Moreover, environmental criteria can be included in the tender evaluation as award criteria or, ultimately, in the conditions for the contract performance (eg, regarding the way and manner in which the goods are delivered).
Environmental assessmentActivities subject to environmental assessment
Which types of activities are subject to environmental assessment?
The construction, modification and operation of projects listed in the annex of the Environmental Impact Assessment Act or relevant state laws (eg, projects affecting public roads) that could have an adverse effect on the environment require an environmental impact assessment (EIA). The procedure and requirements are regulated in the EIA Act. Projects subject to an EIA encompass, for example, (renewable) energy projects, railways, airports, sugar, paper, tiles or steel production, breeding of animals exceeding certain numbers, holiday complexes and gravel pits. The EIA is part of the permit proceeding for a planned activity and covers (non-)industrial projects. The conditions of an EIA vary in accordance with the scope of the project. For example, a windfarm with 20 facilities (higher than 50 metres) high requires a full (mandatory) EIA, while a windfarm with only 36 facilities triggers an EIA related to the conditions of the envisaged location (‘screening’). Several small projects may fall within the scope of the EIA requirement in order to avoid ‘Salami tactics’. EIAs often give rise to actions by environmental NGOs.Environmental assessment process
What are the main steps of the environmental assessment process?
The EIA begins with the authority’s decision on whether to perform an EIA. The project developer submits the documentation for assessing the project covering all its features, such as size, performance, location and potential environmental impacts. Then, the scope of the investigation is defined and upon application, discussed with all involved authorities and stakeholders, such as neighbours, environmental NGOs and affected municipalities (‘scoping’). On the basis of the scoping, the investigations, reports and expert opinions are performed. The final EIA report, which the project developer submits to the authority, contains likely environmental impacts and, inter alia, a description of the environment, the location and measures taken to prevent the occurrence of adverse environmental effects. Relevant reports and recommendations as well as the EIA report are made subject to a public hearing. The EIA report is considered by the authority when issuing the approval for the project as well as statements. The conclusions drawn from the EIA report by the authority can be challenged by the affected parties together with the final approval. The decision to approve or reject the project must be published by the authority.
Regulatory authoritiesRegulatory authorities
Which authorities are responsible for the environment and what is the scope of each regulator’s authority?Federal level
On the federal level, the Ministry for the Environment, Nature Conservation and Nuclear Safety is responsible for the government’s environmental policy, with direct or indirect support from the following.
- The Environment Agency gathers data concerning the environment, commissions expert opinions and provides policy advice to federal bodies and information to the general public. It deals with, inter alia, waste avoidance, climate protection and pesticide approvals.
- The Agency for Occupational Health and Safety is responsible for all matters involving occupational safety and health, chemicals and biocides. It advises policymakers (eg, under the EU Regulation on Registration, Evaluation and Authorisation of Chemicals) and performs functions concerning hazardous substances and product safety legislation.
- The Federal Institute for Materials Research and Testing is a scientific and technical institute undertaking research in key areas of safety engineering, testing methods and standardisation (eg, relating to eco-design requirements for energy related products). It is responsible for the implementation and evaluation of physical and chemical tests of materials, including the preparation of reference processes and materials. It further issues notifications in the rank of technical rules, on product safety standards.
The 16 German states have their own ministries for environment supplemented by state authorities. They are responsible for the execution of environmental laws and are split into higher and lower authorities. The higher authorities issue permits for industrial installations, plan approvals for infrastructure projects and water management and ensure the protection of nature in a region, among other things. The lower authorities are either responsible for the district or on a municipal level, and deal with local issues.Investigation
What are the typical steps in an investigation?
In investigations, a distinction has to be made between criminal investigations owing to suspected environmental crimes and investigations as an enforcement measure for environmental compliance. Criminal offences are investigated by prosecutors, whereas authorities are competent for investigations in relation to enforcement and administrative offences. Authority investigations of the industrial operator can be announced or unannounced. Unannounced investigations require an imminent environmental risk or that the purpose of the measure cannot otherwise be achieved.
Basically, in an investigation all measures compatible with the proportionality principle are possible. Depending on the level of suspicion, the intensity of the investigative action can increase. This includes, for example, a request for access to files, commissioning of expert opinions, measurements either carried out by the operator or the authority and site visits. Operators subject to authority investigations have a right to be heard and challenge actions and orders.Administrative decisions
What is the procedure for making administrative decisions?
Before making administrative decisions (eg, granting an environmental permit for an industrial installation or an infrastructure project) the authority consults with the stakeholders (the applicant, neighbours, environmental or other NGOs and other authorities) and (usually) takes into account the findings and objections. Where a decision only affects the applicant, the applicant must be granted a hearing right in advance. Administrative decisions need to be sufficiently precise, the authority must give reasons for its decision and it must set out the possibilities for legal redress.Sanctions and remedies
What are the sanctions and remedies that may be imposed by the regulator for violations?
The German environmental laws provide for a variety of remedies for non-compliance, which are generally governed by the principle of proportionality. Before orders are imposed (eg, on industrial operations) a hearing is granted to enable the operator to take action voluntarily. Often, the authorities are open to discussions on how to restore compliance. Whenever this is not the case, the authorities can access business premises, request documents and perform investigations. They may order appropriate measures and enforce them, including a partial or complete shutdown of operations or, in a worst-case scenario, revoke a permit (partially or fully). This instrument is a rarely used last resort to fight non-compliance in an industrial plant.Appeal of regulators’ decisions
To what extent may decisions of the regulators be appealed, and to whom?
As a rule, legal redress is granted against final decisions that are in some way disadvantageous to the addressee or third parties. Interim injunctions may be possible whenever accomplished facts must be ruled out or where an administrative decision is directly enforceable (ie, legal redress does not result in a suspension of the effect of the administrative decision). In these cases, the court weighs the consequences of a suspension of the decision taken with the risk of the applicant not being successful on the basis of a fully fledged legal assessment in the main proceedings. Any evidence can be used by the parties. Under German law, however, the administrative courts investigate the facts ex officio in the main proceeding.
Judicial proceedingsJudicial proceedings
Are environmental law proceedings in court civil, criminal or both?Administrative courts and the European Court of Justice
The majority of environmental legislation in Germany pertains to administrative law. Permits (including the consultation of the stakeholders), orders (eg, to restore compliance in an industrial installation) and other decisions are issued in administrative proceedings by the authorities. As a result, administrative decisions can be challenged before the administrative courts. Administrative courts are also competent for the judicial review of contractual agreements with the authorities. If the interpretation of (directly) applicable EU law is an issue, the higher instances have to submit the questions on the interpretation of EU law to the European Court of Justice (ECJ), which issues a preliminary ruling.
Whenever applicable regulations are governed by civil law the civil courts have jurisdiction. For example, the Environmental Liability Act regulates the civil law liability of operators of certain listed installations for any damage caused by environmental impacts to life, limb or property of private parties up to a maximum amount of €85 million.
Criminal offences against the environment are dealt with by the criminal courts. Administrative offences (fines) are imposed by the authorities, but can also be subject to judicial review before the criminal courts.Powers of courts
What are the powers of courts in relation to infringements of environmental law?
The powers of the courts depend on whether the authorities’ decision was based on discretion either when assessing the facts (prognoses or risk assessments on environmental facts, relations or interconnections) or with regard to the action required or whether the decision is fully controllable. If the authority has discretion, the court may only review whether the authority applied its discretion within the legal limits (no extraneous considerations, compliance with the legal basis, proportionality, etc).
The decision of the administrative courts further depends on the type of action. In the event a decision is challenged the court can suspend or withdraw the unlawful decision. If a permit is applied for and denied the court may not be in apposition to grant the permit, but must require the authority, for example, to issue a new decision based on additional investigations, expert statements or information to be submitted by the applicant.
Interim injunctions may be possible whenever accomplished facts must be ruled out or where an administrative decision is directly enforceable (ie, legal redress does not result in a suspension of the effect of the administrative decision).Civil claims
Are civil claims allowed regarding infringements of environmental law?Civil claims
The Act on Environmental Liability provides for civil law claims of private parties in the event certain listed industrial installations cause damage to their life or limb, properties or objects. If the installation was operated in compliance with the relevant environmental provisions, the operator’s liability for property damage is excluded for non-substantial damage and it can rebut the assumption of causation of damage by its operations.
Contractual agreements are possible between private parties, for example, on the allocation of costs for damage (such as a remediation of soil contamination between the seller and the purchaser of a contaminated site). The authorities are, however, not bound by such agreements between private parties under civil law. Agreements of operators with the authorities are governed by administrative law since they replace the issuance of a unilateral administrative decision by the authority. Here, the operator can agree with the authority on a timetable to implement or restore environmental compliance.Defences and indemnities
What defences or indemnities are available?
Environmental liability under German law is strict liability (ie, it applies regardless of fault). This means that possible defences are limited, for example, to force majeure, causation by another party, absence of risk for human health or the environment, adequate existing emergency procedures and prevention measures, rapidly implemented remedial or long-term prevention measures. In the case of civil law liability, the offender may argue that it did not act wilfully or negligently.Directors’ or officers’ defences
Are there specific defences in the case of directors’ or officers’ liability?Criminal liability
Under German law there is no corporate criminal liability, but only of individuals, when acting for the company. Directors and officers are criminally liable for their own and their employees’ actions in the case of specific instructions or if they have assumed responsibility otherwise. A defence would then relate to unforeseeable behaviour beyond instruction, adherence to the conditions of a permit or a compliance system.
Liability for administrative offences
With regard to administrative offences in Germany, the company is primarily liable for environmental offences. Yet, managers may become personally liable if they act wrongfully. They are not only liable for their own infringements but can also be held liable for employees’ violations if they have failed to duly supervise them or to establish an appropriate supervision system. Therefore, a possible defence is acting in compliance with the requirements of such a supervision system.Appeal process
What is the appeal process from trials?Appeal courts
Whenever the administrative courts are the first instance, there is an appeal instance reviewing the facts (higher administrative courts). The Federal Administrative Supreme Court only reviews and ensures the correct application of the laws. It harmonises interpretation of federal laws with binding effect throughout Germany. It does not, however, interpret state laws. The Federal Constitutional Court reviews compliance of decisions or laws with the Constitution and the fundamental rights.
Usually only the higher administrative courts refer questions on the interpretation of EU laws or their German implementation to the European Court of Justice for a preliminary ruling. On the basis of such rulings the national courts decide their cases. Thus, in a matter we advised on, the ECJ opened permits under the Emissions Control Act to judicial review regarding species and habitat protection. As a consequence, the German court had to withdraw the permit for a power plant on the basis of the ECJ’s ruling. Further, the Act on Legal Redress by environmental NGOs had to be amended.
International treaties and institutionsInternational treaties
Is your country a contracting state to any international environmental treaties, or similar agreements?POP Convention
Germany is a signatory to most international environmental treaties and agreements, among them various conventions banning certain substances from the product chains and the market, among them the Stockholm Convention prohibiting persistent organic pollutants (POPs) that are not readily degradable and, thus, build up in human and animal bodies. POPs can, via air, water or the food chain, have toxic effects far from the place where they were released. Further, they may disrupt the reproductive process, give rise to hormonal disorders or cause cancer. POPs are by now broadly eliminated in product chains (eg, in functional clothing, firefighting foams, plasticisers for building materials and plant protection products). The obligations were implemented into German law and are continuously enforced.
The Aarhus Convention gives, as a rule, private parties and NGOs broad access to environmental information, administrative procedures and legal redress. It is implemented into EU law by the Directive on Environmental Impact Assessments and some obligations in the Industrial Emissions Directive, which Germany, in turn, transposed into national law.
Espoo Convention and bilateral agreements
The Espoo Convention regulates the cross-border environmental impact assessment (EIA) procedure (including authority and public participation) in the case of transboundary infrastructure or other projects or national projects with transfrontier impacts. It applies to motor- or railways, electricity networks, gas pipelines and dangerous industrial installations, among others. The Convention is flanked by bilateral agreements such as the German–Polish EIA Agreement or project-related international treaties such as the treaty between Germany and Denmark relating to the Fixed Fehmarnbelt Project.International treaties and regulatory policy
To what extent is regulatory policy affected by these treaties?Substantial impacts of the Aarhus Convention
The implementation of the Aarhus Convention into EU and national law (inter alia, in the Environmental Information Act, the Act on Environmental Impact Assessment and the Legal Redress Act for environmental NGOs) has substantially changed public participation and legal redress in Germany. By now, environmental NGOs have, for example, successfully challenged denials of access to authority files, infrastructure permits without prior or with a deficient EIA, or permits under the Emissions Control Act without an appropriate assessment of impacts on protected species or habitats under the Natura 2000 regime. Also, where environmental NGOs initially did not have legal redress at all, they broadened their actions rights by invoking non-compliance of the national laws with the Aarhus Convention and EU implementing regulations. Since in many of these cases the European Court of Justice decided on the required interpretation of the national laws (in light of the obligations under the Aarhus Convention and EU law) and found the laws to be deficient, the German legislature had to amend the regulations accordingly.
Update and trendsKey developments of the past year
Are there any emerging trends or hot topics in environment law in your jurisdiction?Continued growth and change
Environmental law continues to change and evolve, as new regulations are adopted and existing rules are interpreted, amended or challenged in practice and before the courts. The transition to the closed cycle economy, stricter control of chemical substances, nature protection and decarbonisation of energy generation, industry, traffic and households continues to dominate German environmental efforts.
The ongoing infringement procedures against Germany based on violation of EU environmental laws initiated by the European Commission are showing results. In particular, the non-compliance with the EU air quality requirements for particulate matter, NO2 and CO2, are reshaping urban traffic owing to bans of older diesel vehicles in bigger cities, have provided the impetus for the shift to electro-mobility and are ultimately transforming the German automotive industry. Further, the German government has agreed on a climate protection package (€54 billion) that provides for a future price on CO2 emissions for everybody, investments into infrastructure and e-mobility, and numerous incentives for greater energy efficiency and decarbonisation.
Photos of plastic bags floating in the oceans and their planned ban for shopping as of 2021 are only symbols for the raising of public awareness for closed cycle management. Yet, in total, waste quantities have increased in such a way that the capacities of waste incineration or energetic recovery from waste are exhausted and waste needs to be held in interim storage. The legislature is increasingly regulating waste streams and obligations to collect waste separately and prioritise substance recovery. Packaging waste is only one further example of extended producer liability, with comprehensive obligations that entered into force in 2019.
The possibilities of environmental and other non-governmental NGOs have been and are still being expanded by the courts mainly due to provisions based on the requirements of the Aarhus Convention. As a result, certain infrastructure, energy and industry projects can be successfully challenged or substantially delayed for reasons of nature protection, which is increasingly becoming a problem for urgently needed renewable energy projects and expansion of the railway network.Coronavirus
What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?
In environmental law, planning and permit procedures, as well as inspections, monitoring and expert action, are regularly required. As a result of the covid-19 pandemic, new regulations were required in these areas to ensure continuity with regard to environmental law requirements. Unfortunately, the pandemic also increased the undesired disposal of plastic waste in the wild and, consequently, low recycling rates. As a measure to boost more sustainable use and the circular economy in this sector, the EU member states adopted a plastic tax.
Digital Act to Secure Planning Procedures
The legislature and the authorities have adopted all kinds of delays, postponements of deadlines and simplifications and enabled the use of digital solutions in ongoing procedures. In May 2020, the Digital Act to Secure Planning Procedures entered into force. The Act aims to ensure the successful continuation or performance of planning procedures for, among other things, all types of infrastructure, energy or industry projects by providing – for a limited period – digital alternatives for certain procedural steps.
The Act allows digital applications, objections, granting of access to files and notification of decisions. Hearings of the administration or the courts can be carried out as online consultations or by telephone or video conference. The authorities and courts are obliged to provide electronic access. To safeguard business and trade secrets in digital proceedings, the project developers can object to the publication of information via the internet.
The Act applies to ongoing procedures, if the publication and public display ends on 31 March 2021 at the latest. The Act continues to apply for a transitory period until 31 December 2025. It is broadly expected that the Digital Act to Secure Planning procedures is only the first surge in a more far-reaching digitalisation of procedures before authorities and courts.
Delays and simplifications
Examples of delays and simplifications introduced by the authorities by way of decree or administrative provisions are postponements of regular environmental on-site inspections by authorities under the Industrial Emissions Directive or by approved inspection agencies for dangerous installations such as elevators, installations in explosive atmospheres, and storage and tank facilities.
Also, EMAS registrations, product conformity assessments and expert assessments can be delayed, partly upon application. The same applies to notification duties of operators or companies placing products on the market or necessary verification of documentation (eg, on waste disposal).
For a limited period, certain technical norms (eg, relating to protective masks) were provided cost-free to facilitate product compliance by producers and importers at low cost.
Single-use plastic and plastic tax
Another effect of the pandemic is the increased quantities of (single-use) plastic wastes (eg, of foods, packaging, masks and medicines, and in other sectors, partly also for reasons of hygiene). As of 3 July 2021, the EU Single-Use Plastics Directive, which was enacted in 2019, will prohibit the placing on the market of certain single-use plastic products, such as food and beverage containers, plates, straws and cotton buds.
To generate proceeds and to boost legal action, the EU member states agreed on a tax on plastic wastes that are not recycled to be introduced in January 2021. The tax must be paid by the EU member states and amounts to €0.80 per kg of unrecycled plastic waste. For 2021, tax revenues of around €5.7 billion are expected.
Given the numerous delays and simplifications, industry clients should have a strict management and monitoring system of duties and deadlines in place. When regulatory normality returns, this will be a safeguard against unwelcome surprises. In parallel, clients should check whether they comply with the preconditions of numerous EU, national, regional and local subsidy programmes that have been set up to cushion some of the effects of the pandemic.
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25 August 2020.