On 3 November 2020, the Federal Administrative Court dismissed the lawsuits brought against the planning approval for construction of the Fehmarn Belt Fixed Link. In one of the biggest environmental cases in the history of the Federal Administrative Court, the Nature and Biodiversity Conservation Union of Germany (NABU), the Alliance for Action against Fehmarn Belt Fixed Link, three ferry companies, several municipalities and a land owner had filed a complaint against construction of the combined railway and road tunnel. The actions brought by the town of Bad Schwartau, the municipalities of Scharbeutz and Großenbrode and by the land owner were ended by means of a settlement.
A CMS team headed by lead partner Dr Christiane Kappes represented Femern A/S in the case before the Federal Administrative Court, both initially and on appeal. The team previously advised Femern A/S on all aspects of the planning approval procedure.
The almost 18-kilometre-long tunnel between the Danish island of Rødby and the German island of Fehmarn will consist of a four-lane motorway and a double-track electrified railway line. Involving investment of over EUR 7 billion, this is one of the largest infrastructure projects in Europe. State-owned Danish project company Femern A/S is handling planning of the Fehmarn Belt Fixed Link together with Schleswig-Holstein’s State Agency for Roads and Transport. It will also construct and operate the tunnel.
Extensive surveys were carried out over many years in relation to the cross-border infrastructure project, including looking at environmental aspects, traffic considerations, geotechnical engineering and the safety of shipping. Some 35,000 pages of application documents were prepared for the planning approval procedure on the German section of the project. In January 2019, the Federal State of Schleswig-Holstein granted planning approval for the project, running to around 1,300 pages. The Danish part of the tunnel was approved in 2015 via a building law passed by the Danish parliament.
The Federal Administrative Court has rejected all the objections to the planning approval raised by the claimants in their more than 4,000 pages of legal claims. The court held that the planning is consistent with legislation on trunk roads and railways. It is also compatible with current law on the protection of nature and wildlife. Specifically, the thresholds for assessing the effects of sedimentation and the limits on underwater noise aimed at protecting porpoises provided an adequate level of precaution, the court found. A significant detriment to the Fehmarn Belt FHH protection area was not expected, according to the court, nor was an infringement of bans aimed at wildlife protection or of the impact regulation under nature protection law. Legally protected reefs in the Baltic Sea had also been mapped properly with regard to content and scope. As a result, the mapping was not called into question by the new studies conducted by the Federal State of Schleswig-Holstein. The federal state had identified additional reef areas near the island of Fehmarn during biotope mapping in summer 2020 as part of its reporting obligations under European law. The court acknowledged that an exemption under nature conservation law, required for the newly identified reefs, could be obtained in a separate procedure, leaving the legality of the planning approval unaffected. It concluded that the claimants were not entitled to demand implementation of the project as a bored tunnel. The case references at the Federal Administrative Court (BVerwG) are: 9 A 6/19, 9 A 7/19, 9 A 9/19, 9 A 11/19, 9 A 12/19, 9 A 13/19.
CMS Germany
Dr Christiane Kappes, Lead Partner
Dr Fritz von Hammerstein, Partner
Dr Neele Ann Christiansen, Counsel
Sebastian Belz, Senior Associate
Jan Gröschel, Associate
Yannik Mügge, Associate, all Environmental and Planning Law
Press Contact
presse@cms-hs.com
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