The German Planning Safeguarding Act: Establish resistance to Corona of planning procedures

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There is no area of the economy, public and private life that is not steered off course by Corona. The Federal Government is endeavouring to redesign as many processes of economic life as possible and make them “resistant to Corona”. Last week, on 29 April, the Federal Cabinet passed a draft of a Planning Safeguarding Act [Planungssicherstellungsgesetz], thus putting it on the legislative path. On 7 May the German Bundestag dealt with the draft law for the first time. The background to this proposed legislation is that a large number of important infrastructure and construction projects should not be brought to a standstill or even fail as a result of the Corona pandemic.

The law will allow general procedural steps that require a physical contact between people to be replaced by electronic procedural steps. So far, there are similar regulations in individual sectoral laws, but not in the broad majority of the laws. Against the background of municipal administrations that are largely closed to the public, this has led to a delay in administrative procedures in the past few weeks, since the statutory required public participation could not be carried out.

The law lists a number of essential federal laws for which electronic options are to apply. These are, for example, the Federal Immission Control Act [Bundesimmissionsschutzgesetz], which is important for the approval of industrial plants, or the German Offshore Wind Energy Act [Windenergie-auf-See-Gesetz], which is essential for the offshore wind industry. The draft law picks out procedural steps with third party participation provided for in sectoral laws (local and public announcement, interpretation of documents or decisions, statement for recording, as well as meetings for discussion, oral hearings and application conferences) and chooses adequate options in each case to carry them out digitally without the need for physical meetings.

For the public announcement, section 27a of the German Administrative Procedure Act [Verwaltungsverfahrensgesetz, VwVfG] already provides for an additional announcement on the Internet. Under the Planning Safeguarding Act, the competent authority in future will only have recourse to an announcement via the Internet and will not have to offer an on-the-spot consultation if the announcement is also made in a daily newspaper or in an official bulletin. The legislator is thus reversing the rule-exception relationship between analogue and online announcement. Nevertheless, the participation rights of citizens who do not use modern media must also be observed. Otherwise, the law would achieve little legal certainty. Rather, there would be a risk that those whose participation rights are restricted could hinder approval procedures through appropriate lawsuits. The purpose of the law, to be able to complete approval procedures for essential projects in the Corona Pandemic, would be counteracted. This is also the benchmark for the other digitised procedural steps which the Planning Safeguarding Act is intended to standardise. The concrete procedure is left to the discretion of the implementing authority. When exercising its discretion as to whether an optional meeting for discussion takes place at all, the law explicitly mentions the restrictions due to the COVID 19 pandemic as a recital, because meetings for discussion and oral hearings typically lead to an encounter of a larger number of people. Obligatory meetings for discussion, on the other hand, must still take place, but can be held through online consultations, which in practice are held through video conferencing. Minutes must be taken – it will also be important to ensure that there are no technical disturbances in the course of the videoconference. Otherwise there would be legal uncertainties for this reason as well, which could become the subject of lengthy disputes.

In general, there is a risk that the discretion exercised by the authority in determining the course of action may become a stumbling block. If, for example, an authority decides that due to the pandemic, it should not be possible to make a statement for recording in a procedure, the use of discretion will be very demanding. Completely denying the possibility of lodging objections to citizens who are not trained in digital media is a massive intervention – a less severe means would be to receive objections by telephone, which should also be possible from the home office of the authority employee. The legislator is trying to prevent the gateway for legal uncertainty by applying the rules on the insignificance of errors in the respective sectoral laws accordingly.

The conclusion is that the proposed legislation is intended to achieve an important goal. It should not be overlooked, however, that the detailed design, the official application, and the technical implementation could cause new legal uncertainties which could endanger the purpose of the law.

Your contact person:
Dr. Gerhard Schwartz, Counsel
M +49 162 414 9236
gerhard.schwartz@arqis.com

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