Wind energy

Wind energy

Wind energy

date: august 2011

1. Act on Renewable Energy Sources (EEG)

a) EEG 2009

1. Act on Renewable Energy Sources (EEG)
a) EEG 2009
b) EEG 2012
2. Real estate law / lease right
a) Procurement law
b) Right of way / pipeline right
3. Regional development plans
4. Public building law
a) Construction planning law
b) Building law
5. Emission control
6. Aviation / Air traffics
7. Nature protection

The currently effective EEG 2009 has been in force since 01 January 2009. Compared to its predecessor (the EEG 2004) the law has lead in big parts to a noticeable betterment of electricity production out of wind energy. This can be read off the above-average growth rate of wind energy concerning the electricity supply. By far, the wind energy is the most powerful kind of renewable energy sources.

In general, the EEG 2009 differentiates between onshore wind energy plants (§ 29) and offshore wind energy plants (§ 31). Depending on the way of utilisation, different conditions for remuneration have to be obtained. Onshore wind energy and offshore wind energy have in common that it is differentiated between a basis remuneration and an increased initial remuneration.

The basis remuneration for electricity out of onshore wind energy plants it 4.92 cent per kilowatt-hour at the moment (2011). Within the first five years of operation, the remuneration for wind energy plants (that started running in the year 2011) is 9.02 cent per kilowatt-hour. For electricity out of offshore wind energy plants the basis remuneration is 3.5 cent per kilowatt-hour whereas the initial remuneration is 13 cent per kilowatt-hour for the first twelve years from the date of commissioning. The period of the increased initial remuneration can be extended for offshore wind energy plants as well as for onshore wind energy plants when certain requirements are fulfilled. Offshore wind energy plants that will be launched before 01 January 2016 will obtain additionally the so called “sprinter bonus” of 2 cent per kilowatt-hour. The yearly degression for onshore wind energy plants is 1 %. For offshore wind energy plants the degression will start in the year 2015; then it will be 5 % yearly.

With the legal validity of the EEG 2009 the conditions for a repowering of onshore wind energy plants had been improved notably. Compared to the legal situation of the EEG 2004 repowering plants do not have to be situated within the same administrative district as before, now it is possible to implicate neighbouring administrative districts. According to the current legal situation a repowering is already possible when the replaced plants were running for at least 10 years and when the output of the repowering plants is at least twice or five times the output of the old plant as a maximum. When these conditions are fulfilled, the initial remuneration is increased by currently 0.49 cent per kWh for the whole period of payment of the initial remuneration.

Since 01 January 2009, the so called bonus for system services (SDL-bonus) had been introduced newly into the remuneration system for wind-generated electricity. At the moment it is 0.49 cent per kWh. The SDL-Bonus is currently paid for all newly build plants that will be launched before 01 January 2014, when they fulfil certain technical requirements from the beginning of their operation because such kind of wind energy plants can be better integrated into the grid. The technical requirements that have to be fulfilled are stated within the Ordinance on System Services (SDLWindV) of 03 July 2009. But the bonus for system services is also beneficial to already existing old plants that started running between 01 January 2002 and 31 December 2008. They get a remuneration of 0.7 cent per kWh for a period of five years when they fulfil the requirements of the ordinance due to a conversion that took place before 01 January 2011. According to the opinion of the “Clearingstelle EEG” (advice of 06 June 2011) it is sufficient that the plant operator only fulfils the requirements of the SDLWindV until this date. It is possible that the evidence thereof is provided until 28 February 2012 when the conversion took place within the year 2011 (advice of the “Clearingstelle EEG” of 06 June 2011). But this is not valid for the evidence concerning the installation of the according to § 5 SDLWindV technically necessary attachments. This evidence has to be provided until 30 December 2010 at the latest.

Since 01 January 2009 plant operators have to fulfil more stringent technical requirements. Newly launched wind energy plants have to be equipped with a technical or operational attachment to remote-controlled reduce the fed-in power in case of grid congestion (feed-in management). They also have to be equipped with an attachment to call-up the actual feed-in to which the grid operator has access. Incidentally, new plants have to fulfil the specifications of the SDL-ordinance. When one of these requirements is missing, the claim for remuneration according to the EEG is omitted for the period of its failure. This regulation is (with exception of the SDL-requirements) also valid for old plants since 01 January 2011!

For new plants (i. e. plants that had been launched after 31 December 2008) but also for already existing plants it is obtained in general that the grid operator is allowed to regulate the feed-in capacity of plants with more than 100 kW as far as otherwise the grid capacity would be busy for this grid area. Plants for the production of electricity out of combined heat and power are thereby equated with plants for the production of electricity out of renewable energy sources – this is one difference to the EEG 2004. According to the intention of the legislator it should be possible in this way to switch off exactly that plant which causes the grid congestion. But the grid operator is only allowed to execute the feed-in management for a transition period until its grid is extended. To urge the grid operator to an accelerated grid extension, § 12 EEG 2009 envisions a claim of compensation for all switched-off or rather all output throttled plant operators. It is possible that grid operator and plant operator agree on a certain amount of compensation. When they do not come to an agreement, the missed electricity revenues less saved expenses have to be replaced. Please note: The one who has to pay for the compensation is always the grid operator whose grid has caused the overload. This is not always the grid operator who has to collect and reimburse the feed-in electricity according to the EEG. Also the up streamed grid operator of the transmission grid has to be considered.

Other heavily discussed questions concerning the EEG have been clarified in the meantime on the legal way:

For example: The jurisdiction has newly judged the disputable clause of the right grid connection point at the example of wind energy: Within the EEG 2004 and according to the jurisdiction of the Federal Court of Justice and in due consideration of the suitable voltage level, a grid connection point was the right one when it had the shortest distance to the plant within the air-line distance and when it was the most cost-effective one – not regarding the question in which grid it had been located exactly. The Higher Regional Court of Hamm and the Regional Court of Duisburg had now decided that a macroeconomic comparison of cost within the EEG 2009 can only be executed when the connection points are located within different grids. When more connection points are lying within the same grid, the right connection point is the one that has the shortest distance to the plant within the air-line distance regarding a suitable voltage level. This principle has to be obtained in general. The grid operator can only refer to a more cost-effective connection point then the nearest one when the other grid connection point is located within another grid. The grid operator is not allowed to execute a macroeconomic consideration of different grid connection points within the same grid. It is only possible to compare the macroeconomic costs of the nearest grid connection point with the costs of other connection points within another grid.

Within this context it is also interesting that the Higher Regional Court of Hamm has – besides the new interpretation of the term “grid connection point” – awarded the plant operator (who had gotten a different grid connection point than the obligatory on by the grid operator) a claim on the additional charges caused by the wrong appellation against the grid operator. The Higher Regional Court of Düsseldorf had decided in a similar way within its decision of 09  December 2009.

With its decision of 06 April 2011 the Federal Court of Justice has decided on a similar controversial disputed problem. Within the jurisdiction of the Regional Courts it was heavily disputed whether the grid operators can charge the costs for reactive energy on the account of the plant operators. On the one hand this had been seen as admissible. On the other hand the courts had seen a breach of the minimum remuneration according to the EEG. The Federal Court of Justice has now decided that the stipulated fee for reactive energy out of a standard contract does not breach the obligation of the grid operator to pay the minimum remuneration that is determined within the EEG. The agreement relating to such a fee according to § 307 BGB is also not invalid. But the plant operators have the exclusion of set-off according to § 23 section 1 EEG 2009 on their side. As far as they deny the claim of the grid operator, they are not allowed to make a set-off and to directly reduce the feed-in remuneration. According to the Federal Court of Justice this is also valid when the grid operator has announced a set-off with the court case and this is already ready for decision.

b) EEG 2012

On 30 June 2011 the German Federal Parliament has decided a new amendment of the EEG that shall become effective on 01 January 2012. The basic structures for the remuneration of electricity out of wind energy are preserved in general. This is also the case for the rates of remuneration for onshore wind energy, only the degression will be increased from 1 % to 1.5 %.

Also the legal specifications concerning the repowering are preserved in principle. The legislator has concretised the requirements for a repowering qualifying for bonuses and partially in a tighten way. In the future, the replaced old plants had to be launched before a certain date (01 January 2002). The capacity of the new plants is determined with at least twice and at a maximum ten times of the replaced plants. By the way, the discussion about the number of replaced plants in the scope of a repowering has now been decided by the legislator: According to the amended version of the law, the number of repowering plants must not exceed the number of old plants. The bonus for repowering is 0.5 cent per kilowatt-hour. The legislator has not considered the degression since 2009 at this point.

For offshore wind energy plants the increased initial remuneration will be increased by 2 cent per kilowatt-hour compared to the present regulation. For plants that will be launched from 01 January 2012 onwards, 15 cent will be paid per kilowatt-hour within the first 12 years. Within this rate of remuneration the present sprinter bonus is incorporated, this bonus will be omitted. The initial remuneration will remain at 3.5 cent per kilowatt-hour. The beginning of the degression is postponed once again. It will start on 01 January 2018 and amounts to 7 % yearly.

As an improvement the EEG 2012 envisions an optional compression model. According to this it will be possible in the future for plants which will be launched until 31 December 2017 to let pay out the increased initial remuneration within the first eight years from commissioning. In this case, the size of remuneration is 19 cent per kilowatt-hour. Times of the extended initial remuneration are still reimbursed with 15 cent per kilowatt-hour. But the requirement for the claim of the remuneration compression is that the plant operator is informing the grid operator thereof before the commissioning of the plant.

Also the regulations concerning the feed-in management (§ 11) and concerning the closely connected hardship provision have been reformulated. In principle, the priority of renewable energy sources and combined heat and power concerning the regulation of plants is preserved. But other plants for the production of electricity can be exempted from this regulation as far as the safety of the system and the reliability are calling therefore. Furthermore, photovoltaic plants that are coming with an installed capacity of at most 100 kW and an attachment to reduce the fed-in power must only be regulated in a subordinated way.

The legislator has also made modifications regarding the hardship provision for plant operators that are concerned by the feed-in management. Without needing a separate agreement with the grid operator, plant operators will only have a claim for 95 % of lost revenues plus additional charges. The saved revenues have to be set off. Only when the determined losings are exceeding 1 % of the annual income, the compensation has to be carried out within the entire scope – as it has been the case until now. The claim for compensation is still persisting against the grid operator, whose grid had caused the reason for the regulation. But to the plant operator, the grid operator is a joint and several debtor together with the grid operator to whose grid the plant is connected. This is an enormous boost of the legal situation of the plant operator because he is able to choose which of the possible grid operators he wants to call upon. Please note: This new regulations are not valid for old plants which have been launched before 01 January 2012! In this case, the previous regulations are still valid.

The most important aim of the youngest EEG-amendment is to push the marketability of renewable energy sources. For this purpose, the requirements concerning remuneration have been tighten in wide details. Additionally, the participation on the free market had been stimulated. Particularly with the introduction of a marketing premium plant operators shall be motivated to directly merchandise the electricity produced within their plants. The possibility to get in or to back out of the EEG with a respite of one calendar month is already envisioned within the EEG 2009 (§ 17). The EEG 2012 continues forcefully with this approach, concretises the requirements for a direct marketing and determines particularly that the grid operator is eligible for the achieved market revenues as well as for the marketing premium against the grid operator. The size of the marketing premium is newly calculated for every calendar month. The concrete calculation mode is quite complex and results from the new appendix 4 to the EEG 2012. The marketing premium offers a lot of economic changes to the plant operator. But it is also risky due to the strict legal requirements. A legal consultation is necessarily in order.

2. Real estate law / lease right

a) Procurement law

The decision of the European Court of Justice and the subsequent jurisdiction of the German courts has lead to an extent of the procurement law, which have been very important for the urbanistic contractual practise and have had a direct impact on wind energy projects due to the high investment volume. According to this legislation numerous real estate contracts and planning agreement with participation of the public authorities have been subject to the procurement law. When these regulations have been disregarded, the invalidity of the agreement has impended and therewith the failure of the whole wind energy project. With the amendment of the procurement law of 20 May 2009, the legislator has tried to work against this extensive jurisdiction. On this occasion and with the decision of 02 October 2008, the Higher Regional Court of Düsseldorf decided to bring its opinion to the European Court of Justice. With its decision of 25 March 2010, the European Court of Justice decided that the sale of real estate of the public authorities is not a subject to the procurement law in default of “a public building application” when the construction work is not in favour of the applicant as the public applicant is only exercising the urbanistic regulation responsibilities.

Within its first decision after the decision of the European Court of Justice, the Higher Regional Court of Düsseldorf has followed the guidelines of the European Court of Justice.

b) Right of way / pipeline right

There are often difficulties with communities or private persons who do not want to afford the necessary connection rights on their landed property. When pipeline rights including easement are required on public ways, there are legal possibilities due to the Energy Industry Act to force the communities to make an adequate license agreement. The approved quality of the wind farm owner to supply electricity to the public helps in that case.

For the case that it is about closed landed property of private persons or communities, there is the possibility of expropriation and accelerated putting in possession due to the Energy Industry Act and partly due to the anti trust law. It is also possible to expropriate communities! The Administrative Department of Thuringia has reached this decision under reference to the high-ranking public interest concerning production of electricity out of renewable energy sources.

According to the jurisdiction of the Higher Administrative Court of Koblenz, the owner or the occupant of a landed property lying in the outlying area may has the subjective legal position derivated from article 14 section 1 German Constitution to use the municipal grid of rural roads for the purpose of the correct management of an admissible business for raw material extraction. The same applies to wind energy plants. The use of the municipal rural roads (which are not up to the public) can also not be interdicted with the help of a statute of the community concerning the use of the ways.

It is also possible to realise a wind energy project against the will of the local community based on the anti trust law. In September 2008, the Federal Court of Justice has decided that the denial of cable rights of a community is seen as a misfeasance of a market dominating position or rather an unfair obstruction or discrimination in terms of §§ 19, 20 Law against Restraints on Competition (GWB), when the community is the only provider for “public ways” at the market (also only real public ways). This leads to a claim on the acceptance of cable laying according to § 33 GWB.

3. Regional development plans

Despite of the fusion of the planning regions Chemnitz Erzgebirge and South West Saxony due to the local reform of the year 2008 there are no changes in the regional planning situation. The existing regional planning remains the same.

The Administrative Court of Chemnitz expresses it doubts concerning the regional development plan Chemnitz-Erzgebirge. Due to a mistake during the execution of the plan of the year 2002 the responsible chambers of the Administrative Court are thinking that the total planning for the planning region of Chemnitz-Erzgebirge is invalid. The planning association of South West Saxony has chosen a similar planning approach, so that it is possible that also the planning for this region is ineffective. In the case of a real ineffectiveness of both plans the chances of success for a wind energy project can increase considerably in these areas because there are no foreclosing effects of the regional development plan any longer.

The Federal Administrative Court has confirmed the “important and fundamental concerns” of the Higher Administrative Court of Saarland against the legal significance oft the regional development plan adopted by the land. Furthermore the Higher Administrative Court has questioned the methodical approach of the regional development plan of Saarland. That is why the regional development plan can not be a reason to interdict wind energy projects. This opinion can be important for other regional development plans as the regional planning authorities are using similar methodical appendages for planning all over Germany.

On 23 July 2009, the Higher Administrative Court of Magdeburg has declared the regional development plan Anhalt-Bitterfeld-Wittenberg as ineffective due to an evaluation deficit. Indeed, there had been an additional procedure for the elimination of the evaluation faults during the law suit but thereby neither the necessary environmental audit had been executed nor the necessary environmental report had been issued.

On 29 April 2010, the Administrative Court of Stuttgart has decided that the regional development plan Heilbronn-Franken 2020 is suffered by incorrect evaluation und therefore does not display a foreclosing effect. In particular the Court considers the evaluation criterion “encircling of sites” (reputed visual overload symptoms at a certain number of priority areas within a radius of 3 km to housing settlements) to be not feasible. That is why the determination of a minimum location size of priority areas for objectively not necessary and therefore incorrect in evaluation.

Within its decision of 03 June 2010 the Administrative Court of Luneburg has decided that the regional planning programme of the administrative district of Luneburg is incorrect in evaluation and therefore ineffective due to a total evaluation deficit.

Within its decision of 14 September 2010, the Higher Administrative Court of Berlin and Brandenburg has declared the regional development plan of Havelland-Fläming (objective subplan concerning the use of wind energy) as ineffective for the second time, this time due to incorrect evaluation. According to the Higher Administrative Court, the plan does neither guarantee an adequate space potential for wind energy plants nor a comprehensible procedure concerning the composition of the planning concepts or rather the selection of the designated zones.

4. Public building law

a) Construction planning law

The Higher Administrative Court of Greifswald was the first court which had to deal seriously with the legal priority principle concerning public building law. Thereby the court deploys the priority principle in general, but it also considers other criterions as aspects of faith. This is also approved by two current decisions of the Administrative Court of Schwerin, which solves competitions according to this principle.

And now the administrative department of the federal state Saxony-Anhalt has confirmed that wind energy plants can be seen as a main usage (as a business enterprise). That is why they are also admissible in areas which are fixed as industrial area. This clarification could be important all over Germany and not only within the scope of responsibility of the administrative department. An advantage of wind energy plants within industrial areas is that they could not be interdicted due to a possible foreclosing effect of a concentration zone for wind energy plants on the level of regional development plans or land use plans.

A problem is still the requested bail for the deconstruction of wind energy plants within the outlying area. In many cases the operator considers itself to a financial double taxation when the licensing authority demands a bond to its favour and the operator has already committed itself to covering the deconstruction costs due to a bond to the owner of the building plot. By the use of contractual arrangements it is possible to solve the problem of the financial double taxation.

When a community has displayed a concentration zone for the use of wind energy within the land use plan in a correct way or possible incorrect evaluations are unremarkable, opposing interests according to § 35 section 3 sentence 1 BauGB, which have been weighted away on the planning level, can not be reactivated as a barrier concerning the decision of the authorization of a project according to the decision of the Federal Administrative Court of 20 May 2010. Within its decision, the Federal Administrative Court has also decided that in the case of a replacement of the municipal agreement the requirements of § 35 BauGB have to be checked by the court when the community uses the legal remedy, i. e. the legal scope is not limited to the reasons which the community has used to deny the municipal agreement. The Federal Administrative Court has therewith clarified a question which had been controversial for a long time.

With its decision of 4 August 2009, the Federal Administrative Court has clearly raised the requirements concerning the simplified procedure. According to this, it is only possible to dispense with the environmental audit, when it is not necessary under European law, i. e. no important effects on the environment are expected. Every community has to check whether important effects on the environment are expected or not before choosing the kind of procedure.

b) Building law

In the context of an examination concerning the deviation of a distance space the Higher Administrative Court of Koblenz has decided that the possibility of deviation to 0.25 H is seen as a so called intended judgment according to § 8 section 10 Regional Building Law (LBauO). That is why there will be given a greater leeway to wind energy plants because the licensing authority has to approve the deviation when it is no atypical case. This relation between exception and rule is normally in favour of wind energy plants. According to the opinion of the Higher Administrative Court of Munich, wind energy plants are due to their relatively small architecture no typical structural works and the availability of landed property, which allow for the observance of legal distance spaces, is rare due to the size of modern wind energy plants. That is why the Higher Administrative Court of Munich assumes an atypical situation concerning the right of distance spaces, which normally justifies the granting of a deviance from distance spaces.

According to the opinion of the Administrative Court of Saarland wind energy plants are representing buildings in the sense of the Regional Building Law. The Administrative Court of Weimar holds the same view within its decision of 22 December 2010. Consequently, the construction of wind energy plants is only admissible when the wind energy plant in its whole “gets up” on the legally assured building plot. According to the opinion of the court this also includes the area underneath the rotor blades! The decision of the Administrative Courts of Saarland and Weimar are heavily discussed at the moment. At the moment, the decisions are checked by the Higher Administrative Courts.

The Federal Administrative Court is calculating the distance spaces of wind energy plants from a circle around the axis of the plant. The radius is determined by the distance of the vertical rising rotor of the centre of the mast, the so called “fictitious exterior wall”.

5. Emission Control

The Higher Administrative Court of Luneburg has made some important clarifications concerning noise emissions and shadow emissions: It regularly requests a safety margin of 2 dB(A) to the sound power level. The court says that this safety margin can not be requested in a global way. The used empirical formula concerning shadow projections can not be used as a legal rule. Based on this fact the Higher Administrative Court has accepted in the litigious case the reasonability of a possible period of shadowing of 32 minutes a day with the advice that the neighbor is able to take hold of counteractions.

The Federal Administrative Court of Kassel has now decided that also on residential estates bordering to the outlying area an interim value has to be set up and the emission values for village areas and mixed areas are normally sufficient.

More and more courts are deciding that it is possible to ask for so called additions for impulses to the sound prognosis in the matter of the admissibility of a wind energy plant. According to the jurisdiction of the Higher Administrative Courts it should not be possible that this fact foils the basic right of permission the applicant has so that an individual examination has always to be carried out. The global incorporation of additions for impulses can not be desired. Also the size of the additions complies with the individual case, but regarding to the claim of authorisation of the applicant they shall not be set to high.

6. Aviation / Air traffics

The Administrative Court of Aachen has brought about a rebound with its decision concerning the topic “licensing applications in the range of radar devices”. Until now the licensing authorities came back to global safety risks. The Administrative Court of Aachen requests now for the first time a concrete danger for the air traffic with regard to the concretely submitted wind energy plant. In this context the court has also decided that one additional plant in the framework of an already existing wind farm does not increase the existing radar interference. Also the common statement of the air traffic authorities that undetected small air planes could affect the airports is not sufficient enough for the presumption of a concrete danger.

This fundamental decision had been confirmed by the Higher Administrative Court of Weimar in the year 2009 also for wind energy plants within the protection area of airfields. Subsequently, wind energy plants are admissible within the especially interference-prone protection area when no concrete danger is existing.

The Administrative Court of Minden has subscribed to this jurisdiction in 2010. The court has allowed wind energy plants even in the aerodrome circling und therewith clarified that the respite for the granting of the acceptance according to § 12 section 2 Air Traffic Act (LuftVG) can not be extended by implication. This fictitious acceptance is binding to the licensing authority; insofar the authority has no independent inspection right (regarding the building law). Furthermore, the court has clarified that the suggestions of the conference of interior ministers concerning minimum distances for the downward approach of an aerodrome circling is not legally binding in default of an inclusion into the LuftVG or the subsequent regulations and guidelines. The Administrative Court desires an individual assessment of risks.

The Administrative Court of Hannover has tightened the requirements concerning the existence of a disturbance of a radar plant within its decision of 21 December 2010. A disturbance is existing, when the wind energy plant will interfere negatively with the function of the radar in a not acceptable way. Regarding the question, in which situation a decrease in the efficiency is acceptable by the military, the Military District Administrative shall have a scope for judgement evaluation that will be checked by the courts. The court has clarified that the burden of proof concerning the disturbance of a radar plant is completely on the side of the German armed forces. Because only the German armed forces sees into the functionality of its radar plants. A very disturbance or the very possibility of a disturbance of the radar plants is not sufficient. According to this, the duty to explain of the German armed forces is very high and has to comply with approved professional requirements concerning the response to natural scientific problems.

The Federal armed forces are more and more referring to § 18a LuftVG with respect to the functional assurance of their radar plants. According to § 18a LuftVG, buildings must not be constructed when thereby air traffic control systems may be disturbed. In practise normally the Federal armed forces are deciding and not – in opposition to the specifications of § 30 section 2 sentence 3 LuftVG – the Federal Supervisory Office for Air Traffic Control (BAF). Therewith the respite of § 14 LuftVG is compassed so that the danger of a fictitious acceptance is eliminated. But this is illegal as only the BAF is responsible for this decision. Also a decision according to § 18a LuftVG requires the existence of a concrete danger. Because § 18a LuftVG is protecting the same subject of protection as § 14 LuftVG (safety of air traffic), so that the same criterions for audits have to be applied.

Again and again, protection areas, that have been determined according to the laws of the German Democratic Republic, are turn out to be ineffective as protection areas only continue to exist when the operator of the airfield has filed an application at the responsible aeronautical authority until 01 March 1999. Without such an application of the operator of the airfield, the old protection area does not exist any longer and can not be countered to wind energy projects.

7. Nature protection

The jurisdiction tends to carry out the weighting under building law according to § 35 section 3 number 5 BauGB including the special criterions of Federal Immission Control Law (BNatSchG).

The Federal Administrative Court as well as the jurisdiction of the Higher Administrative Courts assumes a breach of the prohibition to kill when the collision risk is increased in a significant way for the animal species that are concerned by the particular project. In this consideration, measures for the prevention or the reduction of collisions have to be included.

According to current nature protection studies on behalf of the Federal Environment Ministry, the collision risk can be reduced in a significant way by using adequate system configurations measures to reduce conflicts (e. g. temporary turning-off of the plants, herbal harassment actions). This is accepted by the jurisdiction concerning the protection of bats and cranes.

It is still heavily discussed whether the prohibition to kill is also violated when the collision risk is only increased in a significant way for only one individual of an animal species or whether a reference to the population has to be required. The Higher Administrative Court of Münster and the Administrative Court of Minden are arguing for the requirement of a danger to the whole population.

The use of overall distance criterions concerning breeding areas or other areas of the avifauna which are worthy of protection is denied by the majority of jurisdiction. The Higher Administrative Courts of Luneburg, Madgeburg and Koblenz are justifying their decision with the requirement of an examination of the individual case with the help of approval certificates. Only the Higher Administrative Court of Weimar is referring (up to now) to overall distance criterions within it decision of 14 October 2009.