On 5 November 2020, the German Bundestag (Germany’s Parliament) passed the Act to Accelerate Investments in the Traffic Sector (briefly referred to as the “Investment Acceleration Act”, Bundestag document no. 19/22139). The plan is to speed up planning procedures by simplifying German regional planning law and the approval of the electrification of railway lines. Judicial proceedings will also be able to be carried out more quickly. For large wind turbines, the suspensive effect of third-party objections and actions will no longer apply in future.
The Investment Acceleration Act is already the fourth in a series of German acts that are intended to accelerate planning and approval procedures for infrastructure projects. The goal of the first of these acts, the Act to Accelerate Planning and Approval Procedures in the Traffic Sector from the year 2018 (Federal Law Gazette I 2018, 2237), was to speed up judicial proceedings and enhance procedural efficiency. Two further acts entered into force in spring 2020: the Measures Acts Preparation Act (Federal Law Gazette I 2020, 640) enables the German Bundestag to approve important traffic projects by means of “measures acts”. The increased democratic legitimacy resulting from such “measures acts” is intended to help projects in the railway and waterway sectors find wider acceptance while, at the same time, reducing the amount of time needed to plan and prepare the projects. The Act to Further Accelerate Planning and Approval Procedures in the Traffic Sector (Federal Law Gazette I 2020, 433) provides for an exemption from the approval requirement for certain new buildings that are constructed to replace older ones and, therefore, do not involve any significant changes. In addition, that act is intended to ease the burden on municipalities carrying out works in the area of railway level crossings through the assumption of costs by the Federal Government and the German states, thus accelerating investments in infrastructure and in the railway system. The Investment Acceleration Act is the continuation of this series of acts.
Article 1 of the Investment Acceleration Act contains an amendment to the German Code of Administrative Court Procedure (VwGO) that will have an effect on more than just infrastructure projects. Administrative court proceedings will become shorter, as the number of stages will be reduced for certain proceedings. Instead of the administrative courts, the higher or state administrative courts (Oberverwaltungsgerichte/Verwaltungsgerichtshöfe) will have initial jurisdiction in certain proceedings. Appeal proceedings involving a second determination and assessment of the facts will be omitted in future. Furthermore, under the Investment Acceleration Act, third-party objections and actions to set aside the approval of onshore wind turbines measuring more than 50 meters in height or other projects regarding federal transport routes or mobile networks will no longer have suspensive effect. This is intended to speed up proceedings and make it possible for the onshore wind power expansion targets to be reached.
According to Articles 2 and 4 of the Investment Acceleration Act, an exemption from the approval requirement under the German General Railway Act will be made for works regarding the electrification of railway lines and other smaller construction projects. This is to enable such projects to be implemented more quickly. Smaller construction projects in the above sense include, for example, equipping railway lines with signalling and safety technology, setting up noise barriers or extending platforms. However, the exemption applies only in cases where an obligation to carry out an environmental impact assessment does not exist. The exemption from the approval procedure eliminates the need to communicate with public authorities and compile the approval documentation. This can save time and costs.
According to Article 5 of the Investment Acceleration Act, regional planning procedures will become optional; in addition, their scope will be reduced and they will be better linked with planning approval procedures. As a rule, when a project is being planned that will use space or otherwise be relevant for regional development purposes, a regional planning procedure will only be carried out in future if the party who is responsible for this project considers such a procedure to be reasonable and files an according request. Furthermore, upon completion of this procedure, the regional planning authority will send the procedural documents to the approval authority electronically. The approval authority should limit the approval procedure to aspects that have not already been examined in sufficient detail in the regional planning procedure. In addition to the above, the regional planning procedure will be optimised, across fields, for example by means of enhanced digitalisation through the use of electronic documents and publication on the internet. This can also save time and costs, in particular because the regional planning procedure would require involving the public and performing an environmental impact assessment.
The acceleration of planning and approval procedures is generally to be welcomed. It remains to be seen, however, whether this fourth act will now have a sufficient accelerating effect on the extension of the road and railway systems or whether a fifth act will be needed, as could be heard during the Bundestag debate. The exclusion of the suspensive effect of objections and actions to set aside lodged to prevent the construction of wind turbines is to be welcomed: this might expedite the currently stagnant expansion of renewable energies, which has often failed recently as a result of the opposition of residents. In the event of ongoing appeal proceedings, this also means, however, that construction will commence at the risk of the party responsible for the project.