On 29 May 2020, the "Act to ensure proper planning and licensing procedures during the COVID-19 pandemic”, in short “Planning Security Act” (Planungssicherstellungsgesetz, PlanSiG) entered into force. The purpose of this Act is to ensure that planning and licensing procedures can be carried out under the difficult conditions of the pandemic. Although the planned extensions are limited in time, they can also be seen as a positive step towards digitised licensing procedures.
Due to the pandemic-related contact restrictions, many authorities had to restrict or stop public access. This meant that the public display of licensing or planning documents required under procedural law was practically no longer possible. Hearings and application conferences could not be held as planned either. As a result, there is a risk of considerable loss of time, as procedural steps have to be interrupted or at least partially repeated.
This is where the new law comes in: It provides for digital participation options for a large number of licensing procedures, such as contactless public participation on the Internet or the newly introduced online consultation. The wide scope of application includes in particular emission control law and network planning procedures, but also applies to procedures for which an environmental impact assessment is required and other sectoral planning laws in which public participation is mandatory (e.g. under the Water Resources Management Act (WHG), the Federal Highway Act (BFernStrG) or the Atomic Energy Act (AtG)). Where previously the notification by means of public display on a notice board was required, it can now be replaced by publishing the content of the notification on the Internet. However, publications in official gazettes cannot be replaced.
Publication on the Internet is also possible with regard to the documents or decisions otherwise to be displayed, which cannot be waived. This requires precise information in the notification of the public display that the documents are available online and where they can be found. In addition, any specialist legal regulations governing receipt of messages provided via a central web portal must be observed. In addition, the documents should also be actually displayed, where possible. If this is not possible according to the assessment of the authority, "other easily accessible means of access" should be created, for example through publicly accessible reading devices. In justified cases, the documents can also be sent to interested parties at the due discretion of the authority.
The new law not only enables new forms of public participation, but also allows public hearings, oral hearings and application conferences to be held digitally. To this end, the law introduces the new participation form of online consultation. The parties must be granted access to the information that would have been covered during the physical meeting replaced by the online consultation and must be given the opportunity to make written or electronic comments within a reasonable deadline. This online consultation may also be replaced by a conference call or video conference with the agreement of the parties involved. It remains to be seen whether this agreement can actually be achieved in practice. If, however, due to the provisions of the specialist legislation, these are only optional hearings, the law does not provide for their replacement.
The digital participation opportunities opened up by the new Planning Security Act are initially limited until 31 March 2021. It remains to be seen whether the pandemic-related restrictions will be obsolete by then or whether the period of validity of the law will be extended. Regardless of its occasion and period of validity, the Act can in any case be considered an important step towards the digitisation of public administration. In this respect it has a pilot character. The publication and display of procedural documents on the Internet are a step towards adapting the legal situation to the possibilities offered by technology. Moreover, experience for future digital instruments and formats can thus be gained in licensing procedures, which have or may gain their justification and acceptance independently of the current situation. In this respect, the PlanSiG can be seen as a first concrete step towards increased digitisation of administrative procedures. The resulting experience will also be incorporated into future reform considerations on the simplification and digitisation of procedures and public administration.