Germany – Speed Things Up
Strengthen personal responsibility through trust-based regulation
6 November 2024
Introduction
"For 83 per cent of European companies, the complexity and length of permitting procedures are an obstacle to investing in Europe." (Business Europe February 2024)
Strengthen operators' own responsibility and increase the authorities' competences
Permitting procedures are the bottleneck for security of supply and the transformation of the economy. Especially in times of crisis, the federal and state governments must speed up all relevant permits and make decisions much more quickly. Acceleration can only succeed in Germany with clear and manageable regulations. Officials can only issue permits as quickly as the law allows. An unmanageable number of undefined legal terms, complex norms that are difficult to understand, a lack of standards and unmanageable individual case regulations drive both project operators and permitting authorities into almost endless procedures. A fundamental revision of European and German environmental law is therefore unavoidable.
In order to realise the agreed climate targets in Germany and Europe, it is imperative that the gas and electricity grids and transport infrastructure are converted, and in particular that industrial infrastructure and production facilities are converted across the board. The procedures should be organised in such a way that planning can be completed quickly and with legal certainty at a reasonable cost. To achieve this, the operators' own responsibility must be strengthened and the authorities' competences increased. The BDI calls for:
▪ Trust-based regulation for more personal responsibility on the part of project operators
▪ Speeding up procedures must become a top priority
▪ Strengthen the decision-making power and competences of the permitting authorities
▪ Relieve administrative courts and reduce the depth of scrutiny
▪ Consolidate and modernise EU environmental law and implement it 1:1 in Germany
▪ Rapid implementation of "low hanging fruits" in Germany (deadline regulation, partial measures, spatial compatibility, standards)
▪ Driving forward digitalisation
The number of permitting procedures for industrial production and wind turbines alone will double by 2030. By 2030, there will be 15,000 regular industrial permits and 5,000 regular permits for wind energy. In addition, there will be permitting procedures for 15,000 additional wind turbines and 5,000 additional modification permits for the production conversions of industrial plants.
Trust-based regulation for more personal responsibility on the part of project operators
There is a culture of mistrust towards industry in Germany. The state hardly trusts companies anymore, everything is regulated and controlled down to the last detail. Companies have to spend more and more time fulfilling reporting and documentation obligations, complying with regulatory requirements and adapting to new regulations. The culture of mistrust towards business urgently needs to give way to trust-based regulation. Trust-based regulation should provide a framework that allows companies to act on their own responsibility, thereby strengthening them and creating more opportunities for growth.
In order to achieve the goal of providing companies and the population with nationwide coverage with high-performance Internet access, hundreds of thousands of kilometres of fibre optic cable will have to be laid and tens of thousands of mobile phone sites will have to be built or modernised over the next few years. The application process for mobile phone masts takes longer than the actual construction: it takes 18 to 20 months for approval.
Speeding up procedures must become a top priority
Germany needs more feasible, comprehensible, long-term regulations that all stakeholders can adapt to. The work on the federal-state pact for accelerating planning and permitting and on the so-called fuel switch regulations for switching from gas to oil in the gas shortage situation have shown how Germany can move at speed The Federal Chancellery has made it clear to all departments that acceleration is unavoidable and absolutely necessary. In this way, useful proposals and regulations could be found and implemented quickly instead of laboriously constructing compromises that are so shortlived, complicated, unmanageable and extensive that even experts can no longer see through them and enforcement is largely overwhelmed.
Learning from this means that the Federal Chancellery, together with the Minister Presidents of the federal states, must be in charge of speeding up procedures. If there is disagreement between the ministries regarding new regulations, the Federal Chancellery and the state chancelleries decide without reservation in favour of speeding up procedures. Similarly, the frequently neutral stance of the Federal Government at European level must give way to a decision in favour of acceleration. To support cooperation between the federal and state governments, a committee of experts comprising project sponsors, planners, permitting authorities, environmental associations, construction companies and experts from the fields of law and science will be established to review and organise planning and permitting law in order to resolve contradictions, record duplicate checks and identify superfluous regulations. After all, there can be no acceleration without a change or reduction in the level of environmental law requirements, which are regulated down to the smallest detail.
A total of up to seven public participation procedures are held for extra-high-voltage lines, without this repetition necessarily leading to any substantial gain in knowledge. In the past ten years, there have already been four acceleration laws to speed up the expansion of the transmission grids alone, although their effectiveness has proven to be limited.
Strengthen the decision-making power and competences of the permitting authorities
The threat of lawsuits against projects only rarely strengthens environmental protection; instead, it prevents important projects for the transformation and climate neutrality of our economy and society. Authorities are under immense pressure due to the threat of legal action and are securing even insignificant details in permitting procedures with expert opinions in order to withstand judicial reviews. The resulting flood of expert opinions does not lead to more environmental protection; on the contrary, environmental protection and nature conservation are increasingly seen as a brake and blockade for important projects. Instead of looking for problems and thus preventing projects, Germany needs a change towards a decision-making culture. The political level must exemplify this culture and decisively strengthen decision-making powers and the administration's scope for judgement. This can strengthen the necessary determination on the part of the authorities to utilise existing discretionary powers in a solution-oriented manner and within the framework of the applicable regulations and administrative law practice
Previously, the planning, permitting and construction of a new federal trunk road took an average of around 19 years, with 15 years being spent on planning and permitting. Commissioning a new railway line even took an average of 23 years, with a full 14 years for planning and permitting alone.
Relieve administrative courts and reduce the depth of scrutiny
In order to grant a permit, an official examines 90 percent of environmental law and therefore an abundance of undefined legal terms that are open to interpretation, e.g. "significant", "suitable" or "harmful" The authority thus makes a series of prognosis and risk decisions in which it has to make a probability judgement, usually with the help of external experts. The authority's mostly scientific judgements are fully scrutinised by German administrative courts down to the smallest technical detail. In the German legal protection system, the administrative courts alone decide what the correct interpretation is in the event of a dispute. The administration in Germany therefore only ever has the penultimate word. For this reason, it takes a lot of courage on the part of public authority employees to make decisions. Administrative courts, as in other European countries, should rather be a supervisory body and examine whether the authority's decision is justifiable and can be justified. A judicial review reduced to the control of the authority's decision and thus limited to an examination of justifiability would significantly reduce the number of expert opinions and thus massively speed up the procedures.
While the planning approval decision for the western runway at Frankfurt Airport in 1971 only had 23 pages, the planning approval decision for the new north-west runway at Frankfurt Airport in 2007 has around 2,500 pages.
Consolidate and modernise EU environmental law instead of constantly introducing new regulations
For over 20 years, environmental protection and nature conservation in Germany have been largely determined by European regulations. Several directives have proven to be particularly relevant for the permitting of projects. These include the Industrial Emissions Directive, the Habitats Directive, the Birds Directive, the EIA Directive and the Water Framework Directive (WFD). The German implementation of these directives imposes considerable burdens on project developers and permitting authorities in many areas, which are increasingly perceived as disproportionate and whose contributions to environmental protection are being critically scrutinised. In particular, the directives and their interpretation by the courts often do not provide sufficient leeway to coordinate the requirements of the projects pragmatically and efficiently with those of environmental protection in the interests of both parties.
European environmental law is now far too tight a corset to really speed up procedures in the long term. The increasingly complex, confusing and sometimes outdated European legal situation is in urgent need of modernisation Germany must make a clear commitment to the EU as an industrial centre at EU level. In the next legislative period of the EU, the EU Commission must consolidate and modernise the existing environmental regulations without issuing new directives and regulations on procedural and environmental law. At the same time, the German government must reduce German environmental law to a 1:1 implementation of the EU directives instead of going one step further and unnecessarily tightening laws.
Frustration over the length of planning and permitting procedures has been unabated for years: Procedures today often take twice as long as required by law A survey conducted by the BDI has revealed this: In the last five years, the longest permitting procedure under the BImSchG took 36 months, the shortest five months. The legal requirement is nine months.
The German legislator can also initiate additional legislative changes to speed up permitting procedures for industrial plants, which could be implemented quickly and easily ("low hanging fruits"). Over the last three years, the legislator has created a complicated set of regulations in order to speed up the procedures for renewable energies in particular. The acceleration measures, which are now enshrined in a bewildering number of laws with different characteristics, must apply uniformly to all procedures in Germany. For example, the early start of construction or public participation is regulated in several laws with different requirements. The BDI is therefore calling for the introduction of a standardised cut-off date regulation for all procedures, the waiving of spatial impact assessments, the consistent optionality of the discussion meeting and the regulation of an interdisciplinary provisional order for partial measures, the introduction of deadlines and amendments for permits under water law and the creation of standards for species protection. It is also particularly important to press ahead with the digitalisation of administration.
Rapid implementation of "low hanging fruits" in Germany
The construction of a wind turbine (2.3 MW) requires more than 1,500 tonnes of mineral raw materials. The situation is similar in the infrastructure sector: The construction of one kilometre of railway track requires as much as 35,000 tonnes of rock raw materials. Raw material shortages, which have repeatedly occurred locally in the past, are the result of excessively lengthy permitting processes. Entrepreneurial activity and the willingness to make large investments require a predictable legal framework and time-limited implementation deadlines.
BDI demands to speed up procedures
"Each Commissioner will be tasked with focusing on reducing administrative burdens and simplifying implementation: less red tape and reporting, more trust, better enforcement, faster permitting" (July 2024, Political Guideline Ursula von der Leyen).
1. strengthen the personal responsibility of the operators, submit documents subsequently
German permitting law requires the most extensive examination of material environmental requirements in the permitting procedure. The environmental impact of a project is examined as part of the procedure, meaning that a large number of environmental regulations have to be processed. The extensive and complicated examination procedure for the granting of a permit gives rise to many questions with regard to the construction and operation of the project to be authorised. Very detailed documents are often submitted in the permitting procedure, a large number of expert reports and calculations to explain the environmental impact. However, many of these documents are not required for the construction or conversion of the plant, but only when it is commissioned. It would therefore save a lot of time in the preparation of a permit application if these documents, which are only relevant for the operation of the plant, had to be submitted during the ongoing procedure.
The BDI is therefore calling for legal clarification that not all documents required for permit must be available at the start of the procedure. For example, the following documents could be submitted later during the course of the procedure: Technical descriptions, such as R+I flow diagrams, process flow diagrams, machine drawings and machine installation plans, documents on measurement, control and regulation concepts for the plant, structural calculations, room volumes, architectural documents and plans, proof of stability / structural analysis, proof of fire resistance duration, proof of thermal, noise and vibration protection, suitability assessment, etc. Many of these documents are not relevant to the procedure, the public or the environmental impact of a project. Implementation plans such as manufacturer's declarations, data sheets, but also certain measurements and health and safety specifications can be checked without any problems during the realisation of the project or even during the operational phase.
In addition, general permits are only required with regard to the environmental impact of a project, without regulating all technical details up to the commissioning and subsequent decommissioning of the plant. A permit is therefore intended to provide the framework within which the project operator can operate. When the permit is granted, it is usually still completely open as to who will supply which parts of the plant, for example how a new innovative exhaust gas purification technology will be implemented. This can be left open without any problems, as the permitting authority can oblige the applicant to comply with the values by stipulating ancillary provisions and can monitor these later. In addition, the permit notice can be supplemented at any time with subsequent ancillary provisions and orders. In order to ensure the safe commissioning of the plant, the authority already resorts to ancillary provisions under current law, for example with a reservation on commissioning until all documents have been submitted and checked. This would significantly reduce the time required for the procedures and at the same time increase the operators' personal responsibility. The authority can therefore authorise a project and thus the start of construction work even without the submission of all documents at the start of the procedure
Concretisation of the demands under:
▪ Company survey on the duration of permitting procedures
▪ BDI position "Subsequent submission of documents"
2. leadership of the Federal Chancellery for the acceleration of procedures
The Federal Chancellery, together with the Minister Presidents of the federal states, must be in charge of accelerating procedures. If there is disagreement between the ministries with regard to new regulations, the Federal Chancellery and state chancelleries will decide without reservation in favour of speeding up procedures. The frequently neutral stance of the Federal Government at European level must also give way to a decision in favour of acceleration.
Procedural regulations can be found in numerous environmental and building laws: Atomic Energy Act, General Railway Act, Federal Waterways Act, Federal Immission Control Act, Federal Mining Act, Federal Nature Conservation Act, Federal Trunk Roads Act, Energy Industry Act, Land Consolidation Act, Genetic Engineering Act, Circular Economy Act, Air Transport Act, Passenger Transport Act, Radiation Protection Act, Environmental Impact Assessment Act and the Federal Water Act, as well as a significant number of state regulations, particularly in construction law. In addition, there are numerous acceleration laws with renewed special regulations for individual projects from recent years, such as the Wind Energy at Sea Act, the Grid Expansion Acceleration Act and the Act to Accelerate Permitting Procedures in the Transport Sector.
A panel of experts comprising project developers, planners, permitting authorities, environmental organisations, construction companies and legal and scientific experts must sift through and organise this complex and complicated set of regulations, resolve contradictions, record duplicate checks and identify superfluous regulations. After all, there can be no acceleration without changing or reducing the level of requirements under environmental law, which is regulated down to the smallest detail.
The method and procedure of the survey of associations on concrete proposals for better regulation and bureaucracy reduction in spring 2023 were encouraging. 442 proposals were submitted to the Federal Ministry of Justice and the Federal Statistical Office by business and civil society. In August 2023, the Federal Government agreed on a bureaucracy reduction package at the cabinet meeting in Meseberg, which unfortunately only took up a few of the 442 proposals that had been submitted.
The Federal Chancellery, together with the Minister Presidents, must make it clear to all departments that acceleration is unavoidable and absolutely necessary. In this way, sensible proposals and regulations can be found and implemented instead of laboriously constructing compromises that are so shortlived, complicated, unmanageable and extensive that even experts can no longer see through them and enforcement is largely overburdened.
Concretisation of the demands under:
▪ BDI proposals for reducing bureaucracy
▪ BDI company survey on the flood of expert opinions
3. strengthen licensing authorities, withdraw full judicial control and restrict everyone's right to sue
The threat of lawsuits against projects does not improve environmental protection; on the contrary, it prevents important projects for the transformation and climate neutrality of our economy and society. This is because the authorities and project operators are under immense pressure due to the threat of legal action and are securing even insignificant details with expert opinions in permitting procedures. As part of a procedure, they make a series of forecast and risk decisions in which they have to make a probability judgement, usually with the help of external experts.
The high level of judicial review in Germany has a considerable impact on the permitting procedure. In permitting procedures, possible legal action against a decision is already taken into account during the procedure and each individual decision is therefore secured in many cases. Project operators and authorities want to be on the safe side so as not to risk the enforceability and validity of the permit. To this end, investigations are carried out as a precautionary measure and alternatives are considered that are not legally required.
The decision-making powers and scope for judgement of the administration must therefore be decisively strengthened. The authority's scope for judgement, which cannot be fully reviewed by the courts, must be clearly defined in law This requires a revision of many environmental law standards Particularly in environmental law, which is strongly characterised by the natural sciences, it is appropriate to give the authority the final decision-making authority in many areas. If a generous margin of judgement were to be granted, this would leave a relatively wide area that could not be reviewed by the courts, especially for technical issues when applying undefined legal terms. A combined approach of standardisation of technical requirements and withdrawal of judicial review in the interpretation of undefined legal terms would make sense. In this way, the necessary determination on the part of the authorities can be strengthened and existing discretionary powers can be utilised in a solution-oriented manner and within the framework of the applicable regulations.
From the point of view of German industry, the question of the extent to which full judicial control in German environmental law is still up-to-date and appropriate in the European context should also be urgently clarified at a political level. The mostly scientific assessments of the authorities are fully scrutinised by German administrative courts down to the smallest technical detail, again with the help of external expert opinions.
The procedural documents compiled by the authority in this way, often comprising many tens of thousands of pages, must be analysed by the administrative courts if the authority's decision is contested. The depth of the court's penetration in administrative court proceedings must be scrutinised and reviewed. It cannot really be the task of the administrative courts to delve into the final technical ramifications of technical and environmental expert reports for many hundreds or even thousands of hours and decide on their "correctness" based on their own expert judgement The expert opinions of the specialists involved in the administrative procedure are already exchanged and evaluated in detail there
In addition, the right of associations to take legal action must be limited to those environmental organisations that are actually directly affected. This would rule out the possibility of Bavarian associations being able to take legal action against a planning project in Brandenburg, as in the TESLA case. Important construction projects and infrastructure measures have been unnecessarily delayed by legal proceedings in the past.
In addition, the actual purpose of public participation in the approval process must be brought back into focus: objections are increasingly being raised without any local or personal involvement. For example, individual procedures can be delayed by so-called action groups or citizens' initiatives that are opposed to certain types of major projects by generating a large number of objections with the help of external expertise. It must be made clear that not just anyone can raise objections, but only those who belong to the affected public are authorised to raise objections. Affected members of the public are persons whose interests are affected by a decision and associations whose statutory remit is affected. This would significantly reduce the future effort involved in examining objections.
Concretisation of the demands under:
▪ BDI statement Strengthen permitting authorities, reduce depth of review
▪ Application by the State of Lower Saxony for "Everyman" objections
4. cross-departmental review of European environmental law
The high environmental and climate policy standards of the environment department are reflected in legislative activism, which ultimately has a counterproductive effect. European environmental law is too tight a corset to really speed up procedures in the long term. The increasingly complex, confusing and sometimes outdated European legal situation in environmental law is in urgent need of modernisation Germany must make a clear commitment to the EU as an industrial location at EU level. In the next legislative period of the EU, the EU Commission must consolidate and modernise the existing environmental regulations without issuing new directives and regulations on procedural and environmental law.
German planning and environmental law is largely characterised by European law. In recent years, the requirements of European law have led to considerable implementation difficulties and ever new requirements in practice. It is therefore imperative to strengthen the influence of the entire federal government on the development of European environmental law, not just the environment ministry A comprehensive critical review of the existing regulations is absolutely essential with regard to their relevance and practicality.
Concretisation of the demands under:
▪ Mastering EU challenges - tackling climate change and environmental risks with technological innovation
▪ Putting European environmental law to the test
5. Evaluation of the 1:1 implementation of European requirements in current law
The much invoked 1:1 implementation has not taken place in Germany in many areas; German planning and environmental law often goes far beyond EU requirements. These stricter German requirements must be reduced in order to speed up procedures. For example, the number of permits required for industrial plants should be significantly reduced. Under German law, more permits are required for the construction and modification of industrial facilities than required by European law, for example for smaller facilities or activities with a low environmental impact. Even without a permit, operators are responsible for operating industrial facilities properly and complying with environmental regulations. One example: Permits under the 4th BImSchV should only be provided for installations in accordance
with the Industrial Emissions Directive and faster notification procedures should be prescribed instead of permitting procedures.
Concretisation of the demands under:
▪ BDI proposals for amendments to the 4th BImSchV
▪ BDI environmental policy paper
6. introduce cut-off date regulation for all procedures
The legal and technical requirements often change, or the data basis becomes outdated in the course of the procedure. As a rule, the application documents then have to be improved and environmental studies updated, which often leads to renewed participation by the public or at least environmental associations, specialised authorities and other affected parties.
A cut-off date regulation specifies a certain date by which new legal requirements must be taken into account in the permitting procedure. Deadline regulations are thus intended to prevent the need to repeatedly make new adjustments to changing legal conditions. The basis for the permitting decision should therefore be the legal situation applicable at the time of the declaration of completeness.
On average, there are 1,200 new standards and 360 amendments to existing standards in environmental law and occupational health and safety at federal and state level within a year. In addition, there were around 3,500 relevant court judgements from environmental law in 2021. According to the DIHK, just under 1,600 regulations were cancelled in 2021, but 2,400 new legal acts were issued at the same time. In 2022, the ratio was already just under 700 deleted regulations to around 2,500 additional ones.
These new laws, ordinances, technical regulations and conventions must be taken into account in the ongoing procedures. Application documents must be kept up to date until the date on which the permit is issued. If the legal requirements change in the course of the procedure, improvements must be made. A cut-off date regulation could be set at the time of the declaration of completeness of the application documents and thus prevent the time-consuming subsequent submission of documents due to changes in the law. To ensure that the cut-off date regulation is effective for all projects to be approved, the BDI is calling for a standardised cut-off date regulation in the Administrative Procedure Act and all specialised laws.
Concretisation of the demands under:
▪ BDI opinion Introduce cut-off date regulation for all procedures
7. waiver of spatial impact assessments
Prior to the permitting procedure, a spatial impact assessment must be carried out for certain spatially significant projects. Although the procedure is similar to an permitting procedure with public participation, it is not binding and is merely a kind of expert opinion from the responsible state authority.
The spatial impact assessment (formerly the regional planning procedure) prior to the actual planning approval procedure leads to lengthy duplicate assessments and participation procedures. The assessment of the compatibility of a project with the objectives and principles of spatial planning is ensured via the planning approval procedure. Dispensing with spatial impact assessments would result in a
reduction of one to two years in the planning and approval times for projects subject to spatial planning requirements. The replacement of these procedures for transmission grids by a so-called federal sectoral planning procedure was regulated back in 2011. In 2018, it was then made possible to dispense with federal sectoral planning for the majority of projects. Both regulations are the main reason for the progress currently being made in the permitting procedures for the transmission grid, which is particularly significant in comparison to the area of federal transport routes, which is still subject to spatial impact assessment.
8. interdisciplinary provisional arrangement of partial measures
The BDI is calling for the legal establishment of a standardised provisional start date for measures. The instrument of the provisional order in relation to partial measures can mean many months or even years for the earlier start of a project. It should be introduced across all specialised legislation.
Regulations on the authorisation of early commencement can already be found in various specialist laws. With a general introduction of the early start of measures in the Administrative Procedure Act, for example, the early acquisition of land or the implementation of certain individual measures, such as clearing work, site clearance or foundations, can be carried out without simultaneously foregoing the legal certainty associated with the completion of the staged authorisation step.
It should also be legally stipulated that a regulation authorising an early start for individual measures can be issued prior to any public participation required in the permitting process. It is common practice that the early start of construction is only authorised after the public consultation meeting has been held, i.e. several months after the application has been submitted. However, the potential for acceleration lies in being able to start construction immediately after the application has been submitted and the building law review (approx. two to three weeks).
German industry also considers it imperative to organise the early start of measures without a forecast decision. In practice, the forecast decision requires a large number of separate review steps due to the large number of specialised authorities to be involved, as each authority must make this decision for its own area of expertise. In our experience, the authorities involved find it particularly difficult to make a prognostic decision and prefer to obtain further expert opinions, for example from the State Environment Agency In view of the fact that the project developer bears the risk of a premature start, which can also be financially secured for the public via security deposits, the prognosis decision is unnecessary.
9 introduce time limits and amendment status in water law
Every change in production and every modernisation is also associated with changes in the conditions for water withdrawal and/or discharge. The use of water bodies plays an important role in numerous planning and permitting procedures in industry, in the area of renewable energy expansion and in the infrastructure sector; water law permits are therefore of great importance for speeding up procedures. The necessary water law procedures must be accelerated with the help of procedural deadlines, amendments and a general liberalisation of the permit.
With regard to water law procedures, it is necessary to introduce deadlines for the examination, processing and approval of applications in the same way as for building or immission control law. Water law does not recognise any deadlines for processing applications, and this is increasingly becoming a problem. For example, a plant cannot be put into operation despite having a permit under immission control law because the permit under water law for the withdrawal and reintroduction of water has not
yet been finalised. The Water Resources Act (WHG) should therefore introduce procedural deadlines analogous to the Federal Immission Control Act.
The transformation of existing sites also always triggers adjustments to water law utilisation (for example, if an electrolysis plant is added as an additional water user and the intended use of the withdrawal is expanded for the same amount of water). As the WHG does not recognise any insignificant changes, practitioners - including the authorities - are always faced with the question of whether a completely new permitting procedure needs to be carried out. It would therefore have a considerably accelerating effect and relieve the authorities if an amendment were also introduced in water law and it were clarified that not every insignificant amendment or extension of the purpose of existing authorisations requires a complete permitting procedure.
Concretisation of the demands under:
▪ BDI position on accelerating water law authorisations
10. create standards in species protection, introduce population protection
In order to avoid several years of legal uncertainty and the resulting procedural delays, corresponding standards for the implementation of new legal requirements should be developed in parallel and introduced with the legal regulation. From the perspective of German industry, the federal government must fulfil its role as a standard setter to a greater extent and develop uniform nature conservation standards for this purpose. This would make it possible to clearly define the scope of the documents and expert opinions required for the permitting procedures right at the start of the process, in some cases significantly reducing them and reliably determining the duration of the procedure.
In 2018, the Federal Constitutional Court also warned that the legislator must create more clarity and binding guidelines for nature conservation. According to this, the legislator must not transfer decisions to administrations and courts without further specifications in a scientific "knowledge vacuum" that neither the court nor the administration are able to fill. From the industry's point of view, the Federal Government therefore has the task of drawing up further legally binding standards - similar to the Technical Instructions on Air and Noise - on the methodology of assessment. Closing this "knowledge vacuum" would also strengthen public confidence in the legality of permitting procedures and help to avoid mass objections and administrative court proceedings, for example.
In many projects, there is uncertainty on the part of those involved as to which specific documents need to be provided and to what level of detail. This tends to lead to over-fulfilment of the existing requirements. In the environmental sector in particular, these are almost impossible to keep track of. They are highly complex and are constantly evolving due to new scientific findings and extensive case law. In addition, there is often no differentiation between the size and complexity of projects when preparing the documents, which results in a disproportionately large amount of work for smaller projects. The requirements for the procedural documents are also currently hardly differentiated in terms of the extent to which the environment is affected, which is why a maximum amount of documents is often required here too.
Uniform national standards must be developed with regard to methodology, such as the level of detail in the documents. The criteria for reviewing the planning documents should also be standardised.
Excursus: Species protection
The Fauna-Flora-Habitat Directive of 1992 contains intricate regulations on species protection, which must also be observed in planning and permitting procedures. Federal legal standards reduce the complexity of individual decisions. When applying the requirements in the area of species protection, the competent authority has the prerogative of judgement if there is a lack of knowledge due to a lack of binding standards. This leads to high planning costs, considerable legal uncertainty and therefore delays. Involving the knowledge of all stakeholders, binding standards should therefore initially be prioritised for those protected species that use settlement areas or facilities as secondary habitats. The definition of significance thresholds also helps to speed up procedures.
Standards in species protection would also facilitate the introduction of population protection. This would no longer focus on the individual, but would instead take a population-based approach. In addition to the standards, this would significantly speed up planning and increase the effectiveness of species protection. At best, the standards should be issued in the form of ordinances and - where necessary - the necessary authorisation basis should be created in the Federal Nature Conservation Act. As far as population protection is concerned, the regulations that already exist for agriculture and forestry in the Federal Nature Conservation Act could be used as a guide.
Concretisation of the demands under:
▪ Successful business requires efficient processes
11 Drive forward the digitalisation of administration
Public administration in Germany is not sufficiently user-friendly, agile and digital. With an average of over 200 administrative contacts per year, companies are the power users of public administrationthey must therefore be the focus of administrative modernisation. Administrative digitisation is only progressing at a snail's pace - in mid-October 2024, for example, only 159 of the 575 services of the Online Access Act (OZG) are available nationwide, although all of them should be available by the end of 2022. The federal and state governments must work together to ensure that all OZG services relevant to industry are available in fully digital form nationwide by the end of 2026 at the latest - the restriction to federal services provided for in the OZG Amendment Act in conjunction with the deadline of around 2029 does not meet the needs of industry. The permitting process must be digitised end-toend; the initial attempts to digitise application documents alone will not help. The organisational account - based on rights and role management - should be the central interface between the administration and companies for all administrative acts. This would help to implement administrative procedures in companies more efficiently.
Administrative digitalisation is relatively advanced in the area of public participation in permitting procedures. It is therefore important not only to take comprehensive account of business secrets and security aspects, but also to fully exploit the benefits of digitalisation through shorter participation periods - as currently envisaged in the draft Hydrogen Acceleration Act. In contrast to the previous practice of paper copies being displayed in the town halls of municipalities, the documents can be viewed immediately, around the clock and worldwide by any (potential) objector. What is also needed is a nationally standardised and central publication portal for BImSchG permits similar to the EIA portal.
Concretisation of the demands under:
▪ Efficient, low-bureaucracy and digitalised administrative procedures are crucial for InnoNation
▪ Thinking digitally about authorisation procedures
Imprint
Federation of German Industries (BDI)
Breite Straße 29, 10178 Berlin
www.bdi.eu
T: +49 30 2028-0
Lobby registration number: R000534
EU Transparency Register: 1771817758-48
Editorial team
RAin Catrin Schiffer
Environment, Technology and Sustainability Officer
T: +49 30 2028-1582 c.schiffer@bdi.eu
BDI document number: D 2010