BOn the railway it is an average of 20 years. That’s how long it takes for larger rail projects from planning to commissioning. Because it is similar with other construction projects in Germany, “planning acceleration” has been part of the standard vocabulary of political declarations of intent for years. They fill several pages in the traffic light coalition agreement. But there is hardly any acceleration in their realization.
Also a new one billwith the Federal Justice Minister Marco Buschmann (FDP) wants to streamline the procedures of the administrative courts should not increase the pace significantly. “What the Federal Minister of Justice has put together in this draft does not do any harm in principle, but on its own will not bring about any significant acceleration in the existing administrative court practice,” judges Jan Ziekow, who, as director of the German Research Institute for Public Administration at the University of Speyer, has been responsible for planning and Approval processes observed. The draft law is “essentially just a confirmation of actual practice,” said Ziekow WELT, “could make sense as a kind of reminder for the back of the judge’s mind”, but will “accelerate little”.
Specifically, Buschmann wants courts to rule on larger wind power projects, high-voltage lines, the connection of LPG terminals as well as important transport projects give priority to the relevant procedures over other cases. The proceedings should also start quickly: According to the draft, a first hearing should take place no later than two months after the reply to a complaint.
Furthermore, the Minister of Justice wants the courts to reject statements and evidence that are only presented after a period set by the court. And if the administrative act for a project has deficiencies that can be remedied in the foreseeable future, these deficiencies should not have a suspensive effect.
In addition, the courts should take it into account if the Bundestag has determined that the project is in the overriding public interest. In addition, Buschmann wants to set up planning adjudication bodies at administrative courts that specialize in such procedures and are staffed with particularly competent judges.
“Is there already the expertise that the minister wants to create”
In Ziekow’s opinion, all of this is not wrong, but could hardly speed up the practice that is practiced anyway. “As far as politically and economically priority infrastructure projects are concerned, such as large transport projects, high-voltage lines and especially LNG terminals, the procedures have already been streamlined and, with the concentration on higher administrative courts and the Federal Administrative Court, all possibilities for acceleration have already been exhausted,” states Ziekow.
In fact, already in Investment Acceleration Act of the Grand Coalition of 2020 the jurisdiction of higher administrative courts for such priority projects. And at these higher courts, according to Ziekow, “there is already the expertise that the minister now wants to create through planning adjudication bodies”.
Ziekow also considers Buschmann’s stipulation that evidence received late and deficiencies that can be easily remedied should be ignored to be “a bit impractical”. “On the one hand, this is already possible for the courts today, and on the other hand, the lawyers of those involved in the proceedings before the Federal Administrative Court are professionals who do not submit evidence late.”
Ziekow is critical of Buschmann’s demand for prioritization of such procedures. Something like that could be written into a law. “But this cannot and must not change the fact that it is part of judicial independence to determine when a case is ready for a decision and when it is not. Even the most expert judges first have to familiarize themselves with plan approval documents, which often have more than 2,000 pages.”
If the court proceedings as such cannot be speeded up much, the question is all the more how speed can be ensured otherwise. Citizen participation as early as possible is often mentioned in order to prevent lawsuits through consensus solutions. As exemplary is now the Deutsche Bahn AG, which transparently involves those affected in large-scale projects decided by the legislature right from the start. But even that cannot prevent possible lawsuits against a specific route in the end. In addition, numerous different routes are discussed in rail participation forums, all of which have to be analyzed and calculated. This takes time and requires a lot of specialist staff – which is currently lacking.
In the opinion of the Union faction, however, there are definitely ways to shorten the procedures: “Both planning and citizen participation and legal procedures could be greatly accelerated if there were standardized digital platforms for the provision and exchange of documents,” said Union faction Vice Steffen Bilger (CDU ) WORLD. Furthermore, he demands that Ampel does not retreat to the fact that some acceleration options could fail due to European law. If necessary, the federal government in Brussels must work for changes, for example in species protection issues.
But in this case, the traffic light “does not even use the leeway that EU law opens up”. The fact that the government is now weighting species protection differently than before in the case of LNG terminals and the expansion of wind power is not enough: “An appropriate interpretation of species protection specifications must also be applied to important transport projects,” demands Bilger. In addition, the rights of associations to sue would have to be defined differently: “FDP and SPD should finally persuade the Greens not to align the right to sue as a group to the interests of NGOs, but rather to whether an association is affected at all in a specific project or not, for example from Lower Saxony in Germany a procedure in Lower Bavaria intervenes.”
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