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Author: Kurt Faßbender

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Das Verhältnis der Netzplanung zur Landesplanung journal article

Kurt Faßbender

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 19 (2021), Issue 2, Page 137 - 147

Since the decision of the Federal Constitutional Court of 1954, for reasons of competence in German planning law a distinction has to be made between general space planning and (specialised) sectoral planning. The general space planning consists of the three branches federal state planning, country planning of the Länder and urban land use planning. In the past, the construction of the electricity grid was mainly subject to country planning of the Länder. In 2011, the federal Energy Line Extension Acceleration Act (Netzausbaubeschleunigungsgesetz Übertragungsnetz – NABEG) introduced new sectoral planning procedures. Since then, the relationship between requirements of country planning of the Länder and the new sectoral planning procedures was disputed. The paper deals with this relationship and analyses the latest amendments of the NABEG that aim, inter alia, at clarifying this relationship.

Aktuelle Rechtsprechung zum europäischen Wasserrecht journal article

Kurt Faßbender

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 15 (2017), Issue 2, Page 152 - 166

The following paper presents and analyses current judgements of the Court of Justice of the European Union (CJEU) and of German administrative courts dealing with the environmental objectives outlined in Article 4 of the Directive 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive –WFD). From a European point of view, the most important recent decision is the judgement of May 4, 2016, concerning the authorisation of a hydropower plant on the Schwarze Sulm River in Austria where the CJEU concluded that the construction of such a plant may be an overriding public interest in the meaning of Article 4 (7) of the WFD. According to the Court, in that regard, the Member States must be allowed a certain margin of discretion for determining whether a specific project is of such interest. Furthermore, the Court stated that, contrary to the Commission’s assertions, the Austrian authorities did analyse the contested project as a whole, including its direct and indirect impact on the objectives of Directive 2000/60, and weighed up the advantages of the project with its negative impact on the status of the body of surface water of the Schwarze Sulm. Thus, according to the CJEU all the conditions for a derogation from the objective to prevent deterioration of the status of bodies of surface water were taken into account and were rightly considered to be met.

Die Zuständigkeit des Bundes für die Umsetzung der Wasserrahmenrichtlinie an den Bundeswasserstraßen journal article

Aktuelle Rechtslage, Reformbedarf und Reformoptionen

Kurt Faßbender

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 14 (2016), Issue 1, Page 17 - 39

From the traditional and for a long time mainly agreed point of view of the German Federal Constitutional Court, the Federal Administration of German Federal waterways laid down in Art. 89 (2) of the German Constitution (Basic Law) extends solely to the waterways as transport routes. Therefore, according to existing law, the Federal Administration is still, basically, limited to maintaining the inland waterways, as transport media, in a condition required for navigation whereas the German Länder authorities are mainly responsible for the achievement of the Environmental objectives outlined in Art. 4 of the Water Framework Directive. The following paper argues that there is no need anymore to limit the administrative powers of the Federal Administration to the waterways as transport routes, since the Federal Government now has, as a result of the Federalism Reform of 2006, concurrent legislative competence with regard to the water (industry and quality) regime. On this basis, the author briefly analyses the existing legislative framework with a focus on the recent amendments of the Water Industry Act (Wasserhaushaltsgesetz) that led to an important extension of the tasks of the Federal Administration concerning the ecologic quality of German Federal waterways. Nevertheless, the paper calls for a further reform of the existing legislative framework that allows an integrated achievement of the Environmental objectives outlined in the Water Framework Directive.

Die Umweltziele der Wasserrahmenrichtlinie journal article

Grundlagen und offene Fragen nach dem Urteil des EuGH vom 1.7.2015

Kurt Faßbender

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 13 (2015), Issue 3, Page 178 - 195

Since Rüdiger Breuer has given an important impetus towards the making of the Directive 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive – WFD), the following paper briefly analyses the Environmental objectives outlined in Article 4 of the Directive. The two most important Environmental objectives are the obligation to prevent deterioration of the status of all bodies of surface water or groundwater and to protect, enhance and restore all bodies of surface water or groundwater with the aim of achieving a good status until the end of 2015. On 1 July the European Court of Justice concluded that these obligations apply not only to the planning process established by the WFD but also to the authorisation of individual projects. Furthermore, the Court stated that a deterioration of the status of a body of surface water is established as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. The paper briefly analyses this judgement and the consequences including the relevance of the exemptions to the Environmental objectives.

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