BImschG-Novelle: Windpark
03.07.2024 | KPMG Law Insights

BImSchG amendment to speed up approval procedures

On 17.05.2024, the traffic light parliamentary groups agreed on the amendment to the Federal Immission Control Act (BImSchG). The law is intended to create faster and less bureaucratic procedures and thus speed up approval processes. Wind turbines and other industrial plants (e.g. plants for recycling waste) should be able to be built more quickly in this way.

Early start should no longer depend on forecast decision

In future, plant operators should be able to start construction even faster. Construction prior to the granting of approval is not permitted in accordance with. § Section 8a BImSchG is already possible, but only if a forecast by the authority shows that a decision in favor of the applicant can be expected. According to the will of the traffic light, this requirement is now to be waived at the request of the applicant in the case of a permit for an installation on an existing site and in the case of a modification permit. However, it must be ensured that the provisional measures applied for are not expected to have any harmful effects on the environment, including nature conservation and water law issues.

New version of § 10 BImSchG (approval procedure)

The approval procedure acc. § 10 BImSchG is to be digitized. Among other things, licensing authorities will be able to require electronic applications in future. For people without Internet access, however, there should continue to be another, easily accessible access option. In such cases, documents could be submitted on a standard electronic storage medium, for example. In order to adequately protect trade and business secrets, project sponsors are to be granted a right of objection in accordance with the provisions of the Planning Security Act (PlanSiG). In contrast to the regulation in the PlanSiG, however, this should not result in the authority having to suspend the procedure until an interpretation has taken place. Rather, the new regulation stipulates that the authority must choose a different form of publication in this case. A corresponding regulation is also planned for the approval procedure for hazardous incidents in accordance with Section 23b BImSchG.

The procedure for involving the authorities is also to be further streamlined and accelerated for all installations that fall within the scope of the BImSchG. If an authority to be involved has not submitted a statement within the one-month period, it will in future be assumed that it does not wish to comment unless it has requested an extension. The option to extend the deadline should not be available for all systems. In the case of approval procedures for installations for the use of renewable energies or for the production of hydrogen from renewable energies, an extension of the comment period should be excluded. If the authority to be involved fails to issue a statement, the competent licensing authority should in future be able to either obtain an expert opinion at the expense of the authority to be involved or issue a statement itself.

In addition, based on the PlanSiG, the possibility of holding the discussion meeting in the form of an online consultation or by video or telephone conference is to be introduced.

Amendment to the 9th BImSchV (Ordinance on the Approval Procedure)

The traffic light coalition also wants to shorten the processing time of the authorities. The ordinance on the approval procedure is to be amended for this purpose. The authority should check the approval documents for completeness within one month. Secondly, it is stipulated that in cases in which the authority does not request the applicant to supplement the application, it is to be assumed that the application is complete with regard to the legal consequence of the start of the deadline. In the event that the documents are not yet complete in the opinion of the authority, the deadline shall commence upon receipt of the documents requested by the authority for the first time.

Time frame

The draft bill is expected to be discussed in committee on June 5, 2024 and passed into law the following day. 2. and 3rd reading by the Bundestag.

Conclusion and outlook

The draft law is a further opportunity to relieve the burden on industry in the construction of new plants and the expansion and conversion of existing plants, thus making an important contribution to strengthening Germany as a business location. The acceleration measures must be expanded further. Particular attention must also be paid to the forthcoming amendment to the Industrial Emissions Directive and its transposition into national law to ensure that the urgently needed reduction in acceleration and bureaucracy continues to exist so that the transformation processes towards climate neutrality can succeed.



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