News
28. March 2023
HFK Update: BVerwG removes uncertainty regarding the application of the prohibition of disturbance under the species protection law.
With its ruling of October 6, 2022 (Ref.: 7 C 4 21), the Federal Administrative Court has initially eliminated legal uncertainties with regard to the prohibition of disturbance under species protection law.
Previously, due to a decision of the ECJ on the Swedish species protection law of March 4, 2021 (Ref.: C-473/19 Föreningen Skydda Skogen), doubts had arisen in part about the conformity with European law of the German regulation on the species protection law prohibition of disturbance in § 44 para 1 No. 2 BNatSchG. This is because the ECJ had classified the Swedish regulation, according to which the prohibitions under species protection law should only intervene in the event of adverse effects on the conservation status of the species concerned (in Sweden), as incompatible with the Fauna-Flora-Habitat Directive.
The Federal Administrative Court now clarified that even taking into account this decision of the European Court of Justice, the German regulation is compatible with the Habitats Directive and thus complies with European law. In Germany, the question of the existence of a disturbance is permissibly based on the local population of a species and thus on a smaller group.
Since the Federal Administrative Court has refrained from a referral to the European Court of Justice, however, a review of the German regulation on the prohibition of disturbance by the ECJ is still pending.
Your contact persons:
Attorney Dr. Thorsten Behle, environmental consultant (WBSU), HFK Hamburg (Behle@hfk.de)
Attorney Wulf Clausen, specialist lawyer for administrative law, HFK Hamburg (clausen@hfk.de)