The claimants object to the planning approval decision dated 31 January 2019 for the new construction of a Fehmarn Belt Fixed Link from Puttgarden to Rødby, German project section.

Subject of the proceedings is the German part of the Fehmarn Belt Fixed Link (hereinafter FBFL), a combined road and rail tunnel across the Fehmarn Belt that is planned jointly by the Federal Republic of Germany and the Kingdom of Denmark to connect the islands of Fehmarn and Lolland. The project for which planning approval has been granted involves the construction of an immersed tunnel in open cut construction between Puttgarden on Fehmarn and the border of the German and Danish Exclusive Economic Zones (EEZ).

The immersed tunnel in open cut construction is assembled from prefabricated elements that are lowered into a channel dug on the sea floor.

On 3 September 2008, the Kingdom of Denmark and the Federal Republic of Germany signed the Treaty on a Fixed Link across the Fehmarn Belt (hereinafter State Treaty) which was approved by the Bundestag by Act of 17 July 2009 (Federal Law Gazette (BGBl., Bundesgesetzblatt) II p. 799; hereinafter Approval Act). In this Treaty, the parties agree on a user-financed fixed link across the Fehmarn Belt which will be planned, constructed, operated and maintained by Denmark at its own expense. The State Treaty provides that Denmark will establish a company - the third party summoned to attend the proceedings as a party whose rights may be affected (hereinafter summoned third party) - which will take over planning, obtaining approvals, construction and operation of the FBFL. The FBFL will be constructed according to applicable Danish technical standards and regulations. The parties additionally undertake to expand the respective hinterland connections, which on the German side includes, among other things, expansion of the European route E 47 road link (federal highway B 207) between Heiligenhafen (East) and Puttgarden into a four-lane federal highway, electrification of the railway line between Lübeck and Puttgarden and double-track expansion of the railway line between Bad Schwartau and Puttgarden.

The project developers on the German side are the State Enterprise for Road Construction and Transport of the Federal State of Schleswig-Holstein (LBV, Landesbetrieb Straßenbau und Verkehr Schleswig-Holstein) for the road section and the summoned third party for the rail section. 

On 18 October 2013, the project developers applied for approval of the plan for the German part of the FBFL. Although the road and rail connections were treated as independent project parts, the procedure was conducted as a uniform procedure under the provisions of the General Railways Act (AEG, Allgemeines Eisenbahngesetz) with reference to section 78 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz). At the end of October 2018, the defendant commissioned an expert report on threats to the continued existence of claimant no. 1, which was submitted on 29 January 2019. According to this expert report, claimant no. 1 must accept significant losses in turnover and earnings due to operation of the FBFL, but its existence is not threatened.

The contested planning approval decision (PAD) was issued on 31 January 2019. 

Claimants no. 1 and no. 3 each operate three ferries between Puttgarden and Rødbyhavn. The former train service, which was also operated by the ferry, was already discontinued in 1997 (freight transport) and in December 2019 (passenger transport). Claimant no. 2 runs a border trade business for beverages and confectionery, mainly for Scandinavian customers, at Puttgarden ferry port. Claimant no. 1 is the owner of several plots (Flurstücke) and - together with claimant no. 2 - of another plot, which are partly used for the project.

The claimants raised numerous objections complaining about the invalidity as well as the formal and substantive unlawfulness of the planning approval decision. 

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) dismissed the actions.

13 The actions are admissible, but unfounded. The planning approval decision of 31 January 2019 in the version of the supplementation that was declared during the oral hearing is lawful.

14 A. The actions are admissible.

15 1. In particular, a violation of the claimants' own rights (section 42 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)) cannot be ruled out.

16 For claimants no. 1 and no. 2, this already follows from the fact that they are (joint) owners of properties which are used for the project, partly temporarily and partly permanently, and to which the upstream expropriatory effect (enteignungsrechtliche Vorwirkung) of the planning approval decision therefore extends pursuant to section 19 of the Federal Trunk Roads Act (FStrG, Bundesfernstraßengesetz), section 22 AEG.

17 Claimant no. 3 can also assert that its own rights are violated. It is true that article 14 (1) of the Basic Law (GG, Grundgesetz) does not provide it with an established legal position which it could use to defend itself against the impairment of its ferry service by the FBFL. However, the situation of claimant no. 3 is specific in that the project for which planning approval has been granted spatially coincides with its ferry service and is intended to replace it - at least part thereof. The frontager's interests of claimant no. 3 must hence in principle be included in the weighing of interests (see BVerwG, judgment of 28 April 2016 - 9 A 7.15 - (...) para. 14). Furthermore, it cannot be ruled out from the outset that the project violates other regulations which protect third parties, i.e., claimant no. 3 and which claimant no. 3 asserts have been violated, such as the obligation to ensure the safety of ferry traffic.

18 2. Furthermore, the actions of claimants no. 2 and no. 3 are admissible irrespective of the fact that they did not make statements in the planning approval procedure.

20 (...) According to the legislature's intent, conduct is abusive or dishonest within the meaning of section 5 of the Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz), with the consequence that the entire submissions by claimants no. 2 and no. 3 would have to be disregarded (...), if, for example, the appellant has declared in the administrative procedure or made clear in another way that there are no objections in this regard (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/9526 p. 41). This refers to contradictory and disloyal behaviour in the sense of "venire contra factum proprium". Non-participation in the administrative procedure alone is irrelevant because there is no obligation to participate. What is, instead, relevant is that the person concerned can be reproached from a subjective point of view in the required overall consideration of the case and that the late point in time of the submissions is based on a deliberate decision (see Court of Justice of the European Union (CJEU, hereinafter Court of Justice), judgment of 15 October 2009 - C-263/08 [ECLI:EU:C:2009:631] - (...) para. 38; BVerwG, judgments of 29 June 2017 - 3 A 1.16 - (...) para. 24, and of 12 June 2019 - 9 A 2.18 - (...) para. 38). Neither the defendant nor the summoned third party have asserted such circumstances nor are such circumstances apparent.

21 B. The actions are, however, unfounded.

24 The claimants' submissions, in as far as the claimants have a right to complain (I.), do not lead to either the formal (II.) or the substantive unlawfulness (III.) of the contested planning approval decision.

25 I. Since the planning approval decision is the basis for the subsequent expropriation (section 22 (1) AEG, section 19 (1) FStrG), it has an upstream expropriatory effect. According to established jurisprudence of the Federal Administrative Court, claimants no. 1 and no. 2 whose property, which is protected by article 14 (1) GG, is to be expropriated, may therefore demand a comprehensive judicial review of the planning approval decision (see BVerwG, judgments of 12 June 2019 - 9 A 2.18 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 166, 1 para. 42, and of 2 July 2020 - 9 A 8.19 - (...) para. 40). Claimant no. 3, in contrast, irrespective of the fact that its right to an established and operating business enterprise (Recht am eingerichteten und ausgeübten Gewerbebetrieb) is affected, can only complain violation of procedural rights and of norms of substantive law which specifically protect it, as well as improper weighing of its protected private interests, but it cannot demand overall error-free weighing of interests and planning (see BVerwG, judgments of 28 April 2016 - 9 A 14.15 - (...) para. 17, and of 28 November 2017 - 7 A 1.17 - (...) para. 19 et seqq.).

27 However, restrictions also exist with regard to rights of persons affected by the upstream expropriatory effect to obtain a judicial review of the objective lawfulness of the planning approval decision. According to this, an action for annulment cannot succeed if the asserted error of law is not for factual or legal reasons relevant and, in particular, not causal, for the claimant's property being affected. This is the case, for example, if a public interest asserted to have been violated is only of local significance and even the error-free observance of this interest would not lead to a change in planning in the area of the claimant's property or if alleged deficiencies in the decision can be remedied by simple supplements to the plan - for example, by protective measures or small-scale route shifts without impacts on routing at the level of the properties affected by expropriation (established jurisprudence, see BVerwG, judgments of 12 June 2019 - 9 A 2.18 - BVerwGE 166, 1 para. 42, of 14 March 2018 - 4 A 11.17 - (...) para. 23, and of 9 November 2017 - 3 A 3.15 - (...) para. 21; decision of 20 February 2015 - 7 B 13.14 - (...)). Furthermore, the right of the person affected by expropriation to oppose the use of its property that allegedly does not serve the common good does in principle not include the power to assume the role of administrator of rights which the legal system assigns to certain other right holders to exercise and concretise under their own responsibility (see BVerwG, judgments of 3 March 2011 - 9 A 8.10 - BVerwGE 139, 150 para. 106, and of 24 November 2011 - 9 A 24.10 - (...) para. 63).

28 The Senate adheres to this restriction of the right to a full review conferred on persons affected by expropriation (...), which is also recognised in legal literature, also in view of the criticism alleged by the claimants. In particular, the judgment of the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) on the "Garzweiler II" opencast lignite mine (BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 134, 242) does not indicate any constitutional necessity for an unexceptionally unrestricted right of review for persons affected by a plan.

29 a) First of all, the claimant's criticism is incorrect in as far as it assumes that the aforementioned restrictions of the right to review affect the admissibility of the action. Instead, the restrictions concern the scope of the right to complain and hence solely the merits of the action.

30 b) The claimants' objections are also otherwise unfounded.

31 Administrative decisions which - as in the present case pursuant to section 22 (2) AEG, section 19 (2) FStrG - have an upstream expropriatory effect are to be measured against article 14 (3) GG (see BVerfG, judgment of 24 March 1987 - 1 BvR 1046/85 - BVerfGE 74, 264 <282>; decision of 17 July 1996 - 2 BvF 2/93 - BVerfGE 95, 1 <21 et seq.>; chamber decision of 20 February 2008 - 1 BvR 2389/06 - (...) para. 9). This means that expropriation is only permissible for the common good. It may be made solely by law or pursuant to a law that determines the nature and extent of compensation. The prerequisite for a project to serve the common good is that the specific project must be suitable and necessary to achieve the common good objective. With regard to the necessity of the project, it is sufficient that it is reasonably necessary for the common good, i.e., that it is capable of making a substantial contribution towards achieving the common good objective. Furthermore, it must be appropriate. For this to be the case, the significance of the project for the common good objective pursued by it must be in appropriate relation to the interests impaired by the project. This means that the common good interests in favour of the project on the one hand and the public and private interests impaired by its implementation on the other must be weighed against each other. The extent and weight of the promotion of the common good objective by the project must be compared with the entirety of the private legal positions adversely affected by the project and the opposing public interests (see BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 186, 188 et seq.).

32 The legal basis within the meaning of article 14 (3) second sentence GG are the provisions of planning approval and federal-state expropriation law (see BVerfG, decision of 10 May 1977 - 1 BvR 514/68 - BVerfGE 45, 297 <320>). These provisions are not only the basis under administrative law for concrete encroachments on the property of the affected person, but they also limit the power of expropriation to the projects and purposes determined by the legislature in the respective provision. Expropriation as well as a planning approval decision with an upstream expropriatory effect are therefore only constitutional if they remain within this legally prescribed framework and if this framework is itself constitutional (see BVerfG, judgment of 10 March 1981 - 1 BvR 92/71 et al. - BVerfGE 56, 249 <262 et seq.> and of 24 March 1987 - 1 BvR 1046/85 - BVerfGE 74, 264 <284 et seqq.>; BVerwG, judgment of 18 March 1983 - 4 C 80.79 - BVerwGE 67, 74 <76>).

33 Therefore, the owner of a property that is used for the implementation of a project for which planning approval has been granted cannot merely challenge the planning approval decision by arguing that his or her private rights are infringed; instead, he or she can also claim that planning approval was contrary to the common good because it impaired public interests (see BVerwG, judgments of 16 March 2006 - 4 A 1075.04 - BVerwGE 125, 116 para. 453, and of 12 August 2009 - 9 A 64.07 - BVerwGE 134, 308 para. 23). Nonetheless, article 14 (3) first sentence GG does not establish a right to have a planning approval decision repealed or declared as unlawful and unenforceable because of a violation of objective law, which is not relevant to the use of the claimant's property (aa), nor does the right to property authorise the person affected by expropriation to become the administrator of interests which the legal system assigns to other right holders (bb). An express legal provision for this is not required (cc).

34 aa) The aforementioned restrictions of the right to complain are justified by the subjective concept of legal protection against public authority, which is provided by the guarantee of legal protection under article 19 (4) GG - and thus equally equipped with constitutional status (sections 42 (2) and 113 (1) first sentence VwGO; see BVerwG, judgments of 27 May 1983 - 4 C 39.80 - (...) and of 25 January 2012 - 9 A 6.10 - (...) para. 15; decisions of 5 October 1990 - 4 B 249.89 - (...) and of 10 October 1995 - 11 B 100.95 - (...)). This only enables the action by a party whose rights are violated (Verletztenklage) to provide a substantive review of the contested administrative act by the administrative courts and hence incidentally limits the scope of judicial review. With this system decision, which is fundamental for the administrative court proceedings, the German legislature has decided against a general review of lawfulness by means of an action by a party merely with sufficient interest (Interessentenklage). Such a general review of lawfulness does not fall within the regulatory scope of article 19 (4) GG and therefore requires special legal authorisation. In as far as section 64 of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz), section 2 UmwRG created the legal basis for recognised nature conservation and environmental protection associations to bring actions aimed at an objective review of lawfulness, this legal basis complements the subjective concept of legal protection, but does not extend it (see BVerwG, judgment of 25 January 2012 - 9 A 6.10 - (...) para. 15; decision of 5 October 1990 - 4 B 249.89 - (...)).

35 The fact that an essential element of the right to property under article 14 (1) first sentence GG is also the guarantee of effective legal protection does not lead to a different legal assessment. Just as this may not fall short of article 19 (4) first sentence GG and may not be rendered impossible, unreasonably impeded or rendered ineffective by the structure of the administrative procedure leading up to expropriation (see BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 191), it does not convey an objective right to legal protection that goes beyond this. Instead, the guarantee of effective legal protection derived from article 14 (1) GG requires that this be granted before accomplished facts are established and that, in as far as expropriation is based on preliminary decisions that were made by authorities and which were not yet accessible to judicial review, such preliminary decisions can also be subjected to comprehensive judicial review by challenging the expropriation (see BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 220 et seq.). This is ensured by the possibility of challenging the planning approval decision which may include judicial review of previous decisions that cannot be challenged in isolation (see section 47 (4), section 49 (3) of the Environmental Impact Assessment Act (UVPG, Gesetz über die Umweltverträglichkeitsprüfung)).

36 Contrary to the claimants' assumption, the above-described restriction of the right to complain does not lead to an unconstitutional procedural impediment or even ineffectiveness of legal protection compared to an action by a person addressed by an administrative act that is directly targeted against an expropriation decision (see, in this respect, BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 191). It is true that persons concerned must already challenge the planning approval decision due to its upstream expropriatory effect and cannot wait for the expropriation order addressed to them. However, the considerations justifying the restriction of the right to complain would also apply in the case of an incidental review of the lawfulness of the planning approval decision in the context of an action for annulment brought against expropriation. Furthermore, the restriction of the right to complain does not contradict the guarantee of effective legal protection because it would impose on the person affected by expropriation the burden of proof concerning the causality between the error of law and the use of the property. Instead, the right to complain only ceases to exist in as far as it is established that a possible error has no effect.

37 The claimants' objection that the requirements of European environmental law preclude a limitation of the right to complain is also unfounded. The subjective concept of legal protection is compatible with EU law (see CJEU, judgments of 15 October 2015 - C-137/14 [ECLI:EU:C:2015:683] - (...) para. 28 et seqq. and of 28 May 2020 - C-535/18 [ECLI:EU:C:2020:391] - (...) para. 57). Accordingly, and only with respect to natural and legal persons directly affected by a violation of provisions of an environmental directive, the Court of Justice has held that they must be in a position to require the competent authorities to observe such obligations, if necessary by pursuing their claims by judicial process (see CJEU, judgments of 3 October 2019 - C-197/18 [ECLI:EU:C:2019:824] - (...) para. 32 and of 28 May 2020 - C-535/18 - (...) para. 123).

38 bb) Furthermore, a right to make oneself the unrestricted administrator of third persons' rights would not only contradict the subjective concept of legal protection under administrative law, but would also run counter to the legal system in as far as an allocation of such rights to be exercised and concretised on a person's own responsibility includes a waiver of asserting such rights. This autonomy would be rendered ineffective if a third party were able to adopt these rights as its own by way of an action directed against the project (...).

39 This is not precluded by the fact that private parties whose property is to be expropriated for a project can assert that insufficient consideration was given to the impacts on all those persons affected by the project (see BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 216). Accordingly, the right to complain does not extend to individual rights of third parties, but presupposes that a multitude of effects on individual persons has been consolidated into a weighty common good interest, i.e., into a public interest. The Federal Constitutional Court affirmed this in the case of an opencast lignite mine that requires extensive resettlement (see BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 216, 230). However, such concerns are not at the centre of the present case.

40 Contrary to the claimants' assumption, this also does not constitute reduced protection of property and preferential treatment of the person benefiting from expropriation in such a way that in the overall weighing of interests all private and public aspects may be taken into account in favour of the project, whereas only the causally affected individual interests of those persons affected by expropriation may be considered as aspects speaking against the approval. The weighing requirement would be misunderstood if conclusions in favour of planning approval were drawn from the mere fact that public interests speak in favour of the plan and that (only) private interests mitigate against it. Even in the case of a conflict between public and private interests, it must instead be examined whether appropriate reasons, i.e., reasons that are orientated towards the legal planning objective and the planning principles and sufficiently weighty reasons justify subordination of one interest to the other (BVerwG, judgment of 14 February 1975 - 4 C 21.74 - BVerwGE 48, 56 <67 et seq.>). In this respect, the person affected by expropriation is not limited to asserting its own interests, but can also invoke opposing public interests in as far as this is relevant for its status of being affected by expropriation.

41 cc) The aforementioned restriction of the right of a property owner affected by expropriation to complain is not precluded by the fact that no separate legal standard exists for this beyond article 19 (4) GG and section 42 (2), section 113 (1) first sentence VwGO.

42 Article 14 (3) GG requires the legislature to decide on the conditions for expropriation. In the present case, this has been provided for in section 22 AEG, section 19 FStrG and the expropriation laws of the federal states. Furthermore, the legislature has expressly regulated the irrelevance of potential violations of laws, for instance, in sections 46, 75 (1a) VwVfG. According to these provisions, even a planning approval decision that is formally or substantively unlawful can, if the relevant procedural or weighing error does not affect the result, be the basis of expropriation for reasons of preservation of the plan, without this inappropriately setting back the legal protection interests of those persons affected by expropriation or violating article 14 (3) GG (see BVerfG, chamber decision of 16 December 2015 - 1 BvR 685/12 - (...) para. 20). The tension between the principle of article 19 (4) GG - or, in the present case, article 14 (1) first sentence GG, respectively -, pursuant to which effective legal protection must be granted and gaps in legal protection avoided, and the special need for legal consistency and planning certainty that specifically applies to planning approval proceedings (see BVerwG, judgment of 2 July 2020 - 9 A 8.19 - (...) para. 31), was not resolved unilaterally by the legislature, but by way of practical concordance that balanced the situation in such a way that only those errors are relevant that had affected the result of the decision.

43 The same applies to the principle of subjective legal protection enshrined in article 19 (4) GG, section 42 (2) and section 113 (1) first sentence VwGO and the related restriction of the right of a person affected by expropriation to complain about such violations of the law that have an effect on the use of its property. At the same time, it is justified by the principle of plan preservation which characterises planning approval law. This is an open principle that is generally capable of being further developed by jurisprudence and must therefore also be taken into account when interpreting the relevant legal provisions (see BVerwG, judgments of 17 January 2007 - 9 C 1.06 - BVerwGE 128, 76 para. 12, and of 20 December 2011 - 9 A 31.10 - BVerwGE 141, 282 para. 34).

44 II. The planning approval decision does not suffer from the formal errors asserted.

51 2. The planning approval decision does not violate the provision under federal state law in section 81a of the General Administrative Act for the Federal State of Schleswig-Holstein (LVwG SH, Allgemeines Verwaltungsgesetz für das Land Schleswig-Holstein) regarding the fear of bias or the principle of due process which is applicable here (see BVerwG, judgment of 23 June 2020 - 9 A 22.19 - (...) para. 23). Neither the defendant nor the LBV, which was competent until 2017, were committed to issuing the planning approval decision ahead of time.

53 The claimants (...) wrongly complain that, according to a press release of 19 April 2017 and a video of 29 December 2018, the respective ministers in office had already committed themselves to approve the project before the conclusion of the planning approval procedure and even before submission of the expert report on threats to the continued existence of claimant no. 1. Such political declarations of intent are not suitable to justify a fear of bias on the part of the authority's personnel involved in issuing the planning approval decision. It is true that fear of bias of a superior can, under certain circumstances, have an effect on the decision even if the superior does not directly make the decision (...). With regard to statements by a minister, however, it must not be disregarded that, pursuant to article 36 (2) of the Constitution of the Federal State of Schleswig-Holstein (LV SH, Verfassung des Landes Schleswig-Holstein), the minister has the position of a government organ with own powers, by virtue of which he or she is responsible for the political management - and hence also the organisation - of his or her department. However, the fact that the minister takes a political position in the dispute about a project does not in itself constitute a violation of section 81a LVwG SH as long as no pressure is exerted on employees to decide according to extraneous criteria and there are no indications of any other targeted influencing of the procedure (see Düsseldorf Higher Regional Court (OLG, Oberlandesgericht), decision of 12 July 2016 - VI-Kart 3/16 (V) - (...)). Furthermore, according to the defendant's letter of 28 December 2018, the draft expert report on threats to the continued existence was already available at the time of the video. It also confirmed the submissions of claimant no. 1 that it would be able to continue operating the ferry service after the tunnel was opened. Moreover, the planning approval authority would not have made a different weighing decision even in the case of a threat to the continued existence of claimant no. 1 (...).

54 3. In as far as the claimants repeatedly complain about insufficient independent examination by the planning approval authority, these submissions do not lead to a violation of the principle of investigation pursuant to section 83 (1), ( 2) LVwG SH.

55 According to this, the planning approval authority is obliged to subject the planning documents submitted to it to an independent legal examination and, if necessary, to carry out its own investigations. However, this does not mean that it has to request submission of all the documents mentioned in the project developer's application documents. Instead, it may limit itself to a plausibility check and must (only) carry out follow-up investigations if it considers the documents to be incomplete or if it deems certain assumptions to be insufficiently substantiated. It may also refrain from further investigation of certain circumstances if, in its legal opinion, this is not relevant or if it may assume such circumstance to be given in the specific case (see BVerwG, judgments of 24 March 2011 - 7 A 3.10 - (...) para. 85, of 25 June 2014 - 9 A 1.13 - (...) para. 12, and of 2 July 2020 - 9 A 19.19 - BVerwGE 169, 94 para. 25, in each case on federal-state provisions with identical wording). Furthermore, section 83 (1) and (2) in conjunction with section 84 (1) LVwG SH generally leaves it up to the authority to decide, at its discretion in accordance with legal obligation within the limits set by the subject matter of the procedure, which means it will use to investigate the facts (see BVerwG, decision of 26 August 1998 - 11 VR 4.98 - (...)). The defendant could therefore also make use of the special expertise of specialist authorities, such as the Federal Maritime and Hydrographic Agency (BSH, Bundesamt für Seeschifffahrt und Hydrographie), the Federal Waterways and Shipping Administration (WSV, Wasserstraßen- und Schifffahrtsverwaltung des Bundes) and the Federal Waterways Engineering and Research Institute (BAW, Bundesanstalt für Wasserbau).

56 4. The claimants' objection that the part of the project that is subject to trunk road law had the more weighty impacts - especially for them - which is why, pursuant to section 78 (2) VwVfG, competence and procedure should have been based on the Federal Trunk Roads Act instead of the General Railways Act is unfounded.

57 Pursuant to section 78 (2) first sentence VwVfG, competence and procedures are governed by the regulations relating to the planning approval procedure which is prescribed for the particular installation that - according to the result of a rough analysis conducted at the beginning of the planning approval procedure - affects a larger number of public-law relationships. The determination of competence is hence tied to objective criteria that include not only the size of the projects or their space requirements, but specifically consider the extent of the public and private interests affected by the projects. Therefore, the qualitative impacts of the respective project must also be taken into account (see BVerwG, judgments of 18 April 1996 - 11 A 86.95 - BVerwGE 101, 73 <80> and of 27 November 1996 - 11 A 99.95 - (...)).

58 In the present case, the procedure under railway law is hence the leading procedure pursuant to section 78 (2) VwVfG. In this respect, the planning approval decision rightly takes into account, above all, the technical requirements for planning under railway law (including minimum radii, maximum longitudinal gradients and a 1.7 km long voltage changeover point), which are the reason for an increased land requirement of the parallel road project, whose isolated planning would also require fewer wind turbines to be removed and would have a lesser impact on agricultural enterprises. Electrification of the line also requires extensive coordination with the Bundeswehr and has a greater impact on the landscape appearance. The project-related increase in traffic is also expected to be stronger in the case of rail traffic. Contrary to section 18e (5) first sentence AEG, the statement of reasons for the action fails to address this aspect, but refers solely to the impairments on the claimants.

59 5. It was not necessary for the conclusion of the State Treaty and the adoption of the Approval Act to be preceded by a Strategic Environmental Assessment (SEA).

60 a) Both pursuant to section 25 (8) first sentence in conjunction with section 14b (1) no. 1 and Annex 3 no. 1.1 UVPG in the version of the Act on the Introduction of the Strategic Environmental Assessment and on the Implementation of Directive 2001/42/EC (SUPG, Gesetz zur Einführung der Strategischen Umweltprüfung und zur Umsetzung der Richtlinie 2001/42/EG) of 25 June 2005 (BGBl. I p. 1746; hereinafter UVPG 2005) applicable at the time of the conclusion of the State Treaty and the enactment of the Approval Act, as well as pursuant to section 74 (8) first sentence in conjunction with section 35 (1) no. 1 in conjunction with Annex 5 no. 1.1 UVPG in the version of the Act on the Modernisation of the Law on Environmental Impact Assessment (UVPModG, Gesetz zur Modernisierung des Rechts der Umweltverträglichkeitsprüfung) of 20 July 2017 (BGBl. I p. 2808; hereinafter UVPG), an SEA must be carried out for transport infrastructure planning at federal level. Despite this deliberately open designation, the prerequisite for the SEA obligation is that it must concern federal planning that fulfils the requirements of section 2 (5) first sentence UVPG 2005/section 2 (7) UVPG (see BT-Drs. 15/3441 p. 42). Accordingly, plans and programmes within the meaning of the act are only those plans and programmes provided for by federal law/by federal law or legal acts of the European Union, which an authority is obliged to draw up, adopt or amend by legal provisions and administrative regulations, and/or which are drawn up and adopted by an authority, drawn up by an authority for adoption by a government or by way of a legislative procedure, or drawn up by a third party for adoption by an authority.

61 The question that is disputed between the parties, i.e., whether one of the latter constituent elements is fulfilled in the present case, can remain undecided. This is because the State Treaty and the Approval Act are neither plans nor programmes within the meaning of the provisions just mentioned. Although sections 5, 14b UVPG 2005/sections 2 (7), 35 UVPG do not contain a definition of this pair of terms, their character is concretised by the further requirements contained in sections 14b to 14d UVPG 2005/sections 35 to 37 UVPG. Accordingly, plans and programmes must have a framework-setting effect with regard to the approval decision for certain projects as well as likely significant environmental effects (...). In the system of staged project approvals, they are characterised by a medium degree of concretisation of the abstract requirements under planning law. As instruments of an upstream decision-making level (BT-Drs. 15/3441 p. 23), they must, on the one hand, go beyond the merely abstract general framework requirements of current environmental and planning law and make preliminary decisions for project approval, but, on the other hand, they are not permitted to already be part of the approval of a specific project. This is because a measure can only ever be subject to either a project EIA or an SEA (...). However, the State Treaty and the Approval Act refer solely to the construction of the FBFL. The fact that they contain requirements for their planning approval does not preclude this. Even in the case of multi-stage approval procedures, the fact that preliminary decisions for subsequent stages are already taken at an earlier stage does not lead to an obligation to carry out an SEA, but at most to the fact that an EIA may already have to be carried out at this stage (see CJEU, judgments of 7 January 2004 - C-201/02 [ECLI:EU:C:2004:12] - (...) para. 49 et seqq., and of 28 February 2008 - C-2/07 [ECLI:EU:C:2008:133] - (...) para. 26).

62 b) Contrary to the claimants' assumption, the SEA obligation for federal sectoral planning to determine route corridors pursuant to section 5 (7) of the Grid Expansion Acceleration Act (NABEG, Netzausbaubeschleunigungsgesetz Übertragungsnetz) does not preclude the aforementioned differentiation. The NABEG distinguishes between federal sectoral planning of the route corridors (for which an SEA is mandatory) (sections 4 to 17) and subsequent planning approval of the construction and operation as well as the modification of lines (sections 18 to 28). This subdivision corresponds to that of railway and trunk road law. The fact that projects exist in the area of power supply line law that require federal sectoral planning and hence an SEA for only short stretches does not preclude this. Moreover, it is based on the express requirement in section 5 (7) NABEG, which supersedes the relevant provision in section 14b (1), (2) UVPG 2005/section 35 (1), (2) UVPG in conjunction with section 2 (5) first sentence UVPG 2005/section 2 (7) first sentence UVPG for the area of grid expansion.

63 c) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ L 197 p. 30; hereinafter SEA Directive) also differentiates between projects on the one hand and plans and programmes on the other, setting the framework for their future approval (see recitals 10 and 11 as well as article 3 (2) and (4) SEA Directive). The same applies to the Fifth Environment Action Programme of the European Community which the SEA Directive serves to implement (recital 2). According to this, plans and programmes also constitute the macro planning process under EU law, on the basis of which subsequent projects are carried out. They are characterised by a (merely) medium degree of concretisation in that they are not limited to a specific project but establish the framework for future approval of, in principle, several projects by means of an organised and regulated system (see A European Community programme of policy and action in relation to the environment and sustainable development, adopted by Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council, of 1 February 1993 - OJ C 138 p. 70, 74; European Commission, Guidance on the Implementation of Directive 2001/42/EC, pp. 2, 7, 9; (...)).

64 This differentiation corresponds to the spirit and purpose of the SEA Directive to close the gap to the assessment of environmental effects according to the EIA Directive which arises when environmentally relevant decisions are already taken at an upstream level in the context of planning for a geographical area which can no longer be corrected when a project is approved (European Commission, Guidance on the Implementation of Directive 2001/42/EC, p. 2).

65 No SEA obligation follows from the case-law of the Court of Justice either. It is true that the provisions delimiting the scope of the SEA Directive, in particular those setting out the definitions of the measures envisaged by the Directive, must be interpreted broadly (see CJEU, judgments of 22 March 2012 - C-567/10 [ECLI:EU:C:2012:159], Inter-Environnement - (...) para. 30 et seq., and of 27 October 2016 - C-290/15 [ECLI:EU:C:2016:816] - (...) para. 40). However, these statements concerned the question as to whether the repeal of a plan or programme may require an SEA. At the same time, the Court of Justice emphasised the objective of the SEA Directive to establish an assessment procedure for measures which are likely to have significant environmental effects, which lay down criteria and detailed rules for land use and which normally concern a large number of projects, the implementation of which must comply with the rules and procedures laid down in those measures. Accordingly, the term "plans and programmes" refers to any measure which, by defining rules and procedures, establishes a significant body of criteria and detailed rules for approving and implementing one or more environmentally relevant projects likely to have a significant effect on the environment (CJEU, judgments of 27 October 2016 - C 290/15 - (...) para. 49, and of 7 June 2018 - C-671/16 [ECLI:EU:C:2018:403] - para. 53; Advocate General Campos Sánchez-Bordona, opinion of 3 March 2020 - C-24/19 [ECLI:EU:C:2020:143] - para. 87). In this context, the term "significant body of criteria and detailed rules" must be construed qualitatively in order to avoid strategies to circumvent the SEA obligation (CJEU, judgment of 7 June 2018 - C-671/16 - para. 55; Advocate General Kokott, opinion of 25 January 2018 - C-671/16 [ECLI:EU:C:2018:39] - para. 26). Conversely, however, it must be prevented that one and the same plan is subject to multiple environmental assessments (CJEU, judgment of 12 June 2019 - C-43/18 [ECLI:EU:C:2019:483] - (...) para. 73). Since, in the present case, the project agreed by the State Treaty had to be subjected to an impact assessment, an SEA obligation is also ruled out from this point of view.

67 d) The State Treaty or the Approval Act are also not subject to an SEA obligation because the Federal Transport Infrastructure Plan (Bundesverkehrswegeplan) or the requirement plans for the federal trunk roads and the federal railway lines would be modified as a result. It is true that these require an SEA pursuant to section 14b UVPG 2005/section 35 (1) no. 1 in conjunction with Annex 3 no. 1.1 UVPG 2005/Annex 5 no. 1.1 UVPG, and modifications to plans and programmes are also subject to an SEA obligation pursuant to section 33 UVPG, articles 3 (1), 2 (a) SEA Directive. However, the point of reference for this is not the specific project, but the plan as such (see BVerwG, judgment of 11 July 2019 - 9 A 13.18 - BVerwGE 166, 132 para. 53). The Federal Transport Infrastructure Plan remains unmodified by the project for which planning approval has been granted and which applies parallel to the requirement plans. This also does not constitute circumvention of the aforementioned SEA obligation. There are no national or European provisions pursuant to which rail or road construction projects may only be approved after their prior inclusion in overall planning covering all projects or that not only an EIA, but also an SEA must always be carried out for large-scale projects. The purpose of federal transport infrastructure planning covering all modes of transport is to steer transport investments. Since the FBFL is financed exclusively by Denmark, it is logical not to include it - unlike the so-called hinterland connection - in the Federal Transport Infrastructure Plan and the expansion plans. Moreover, only a few sectoral planning projects are eligible for an agreement under a state treaty, so that there is no risk of circumventing the SEA obligation in this respect either.

68 e) Finally, an SEA obligation does not follow from other provisions of EU or international law.

69 The affiliation of the project to the core network of the trans-European transport network pursuant to article 38 (1) in conjunction with Annex I of Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU (OJ 2013 L 348 p. 1) - TEN-T Regulation - does not justify an SEA obligation. This can neither be derived from recital no. 35 of the TEN-T Regulation, according to which project developers should carry out environmental impact assessments of plans and projects as provided for in Directives 92/43/EEC, 2000/60/EC, 2001/42/EC, 2009/147/EC and 2011/92/EU, nor from recital no. 15 or article 8 (1) of predecessor Decision No 661/2010/EU, which was repealed by article 59 of the TEN-T Regulation. In particular, subparagraph 2 of the latter provision does not establish an SEA obligation for all new TEN-T routes, but only for the programmes and plans leading to them.

70 Also, according to the Convention on Environmental Impact Assessment in a Transboundary Context of 25 February 1991 (hereinafter Espoo Convention - EC) and the Convention on Biological Diversity of 5 June 1992 (hereinafter Biodiversity Convention - BC), there is no obligation to subject the State Treaty to an impact assessment. It is true that article 2 (7) second sentence EC and article 14 (1) (b) BC set forth the objective to apply the principles of environmental impact assessment (EIA) to policies, plans and programmes to the appropriate extent and to introduce rules to ensure that the environmental consequences of the programmes and policies of the Contracting States are duly taken into account. Notwithstanding the lack of direct application, at least of article 14 BC (see BVerwG, decision of 27 November 2018 - 9 A 10.17 - (...) para. 39), the Conventions do not, however, provide for subjecting a specific project to an SEA obligation in addition to the EIA obligation. Nor does the fact that the construction of the FBFL requires a political agreement between Denmark and Germany because of its cross-border route mean that it is a "policy" subject to an SEA obligation within the meaning of the aforementioned Conventions.

71 6. There are no errors in public participations in the planning approval procedure.

72 a) The claimants wrongly complain that the 2nd plan amendment required renewed participation of the entire public pursuant to section 9 (1) of the Environmental Impact Assessment Act in the version of this Act of 24 February 2010 (BGBl. I p. 94; hereinafter UVPG 2010) because of the amended and newly added documents; a waiver could only be considered if amendments could obviously have no influence on the decision from the outset.

73 aa) Claimant no. 1 has no right to complain in this respect. This is because it was involved in the 2nd plan amendment procedure. It cannot assert a violation of solely third parties' participation rights (see CJEU, judgment of 28 May 2020 - C-535/18 - (...) para. 49 et seqq.). Claimant no. 3 has also no right to complain. Since it is not affected by expropriation, it can only complain about a violation of norms of procedural law that specifically protect it and thus, in principle, also that it was deprived of the opportunity to participate in the decision-making process as provided for by law due to errors in public participation (see BVerwG, judgment of 28 April 2016 - 9 A 7.15 - (...) para. 19). However, as an undertaking based in Denmark, its public participation is determined in accordance with section 9a UVPG 2010, which was applicable before 16 May 2017. In view of its purpose of involving the public of another state because of the significant environmental effects of a project there, the planning approval authority is not obliged to involve the public there again because of an amendment to documents which relate solely to the effects of the project in Germany.

74 bb) Notwithstanding this, the objection is unfounded.

83 7. The claimants' criticism of the generally comprehensible summary (AVZ, Allgemeinverständliche Zusammenfassung) is unfounded.

84 Pursuant to section 6 (3) second sentence UVPG 2010, the project developer is obliged to submit a generally comprehensible, non-technical summary of the information pursuant to section 6 (3) first sentence UVPG 2010. The question, which is disputed between the parties, as to whether the claimants' objections concern the formal or substantive lawfulness of planning can remain undecided (on the distinction, see BVerwG, judgment of 28 November 2017 - 7 A 17.12 - BVerwGE 161, 17, para. 29 et seqq.). In any case, they remain unsuccessful in substance.

85 a) The objections are already based on a version that is different from the version of the generally comprehensible summary of 13 December 2017 for which planning approval has been granted. 

86 b) Apart from this, the claimants' objections are also unfounded. The presentation of the information in the generally comprehensible summary must ensure that the public and legally affected persons can obtain an accurate and complete picture of the environmental effects of the project (...). Importing text sections from other documents is not a priori contrary to this, nor is the use of technical terminology. Pursuant to section 6 (1) third sentence UVPG 2010, the aim is to enable third parties to assess whether and to what extent the environmental effects of the project will impact them. This does not require all the documents to be completely reproduced, nor the possibility to comprehensively examine and assess the project. Instead, the requirements are met if there is a sufficient activating effect for the public concerned (see BVerwG, judgment of 10 November 2016 - 9 A 18.15 - BVerwGE 156, 215 para. 21). The complexity of projects under planning approval law cannot and should not be completely ignored. In particular, there is no need to present all project-related impacts in a popular scientific way nor to explain all technical terms used or to provide an introductory summary of the generally comprehensible summary. Readers are educated laypeople; for them, the generally comprehensible summary must contain a presentation that is comprehensible in terms of language and form (...). In addition, the explanations demanded by the claimants would further increase the scope of the generally comprehensible summary which they also criticise. It is therefore sufficient for the content of individual explanations to be understandable, at least in the context of the entire generally comprehensible summary. If it is difficult to understand certain terms, their meaning can be determined using a lexicon or by a simple Internet search. The Senate considers this to be reasonable for such a complex procedure.

88 c) Although the claimants described their criticism as referring to examples only, the Court was not obliged to examine ex officio the lawfulness of the generally comprehensible summary also under aspects not expressly complained about.

89 Pursuant to section 18e (5) first sentence AEG, the claimant must already state the facts serving as reasons for the action within the time limit for filing the statement of reasons and substantiate the subject matter of the proceedings in such a way that it is clear and unmistakable for the court and the other parties involved under which factual aspects a decision by an authority is being challenged. Evidence for a later application to take evidence must already be specified within the time limit for filing the statement of reasons for the action. This does not preclude a later, merely more detailed submission of facts. However, the aim is to prevent submission of new facts at a late stage of the court proceedings, to which the other parties and the court are no longer able to respond appropriately (see BVerwG, judgment of 27 November 2018 - 9 A 8.17 - BVerwGE 163, 380 para. 14). The obligation to state reasons is accompanied by the obligation of the claimant's counsel to review and legally classify the facts on which the action is to be based. A mere keyword-like mentioning or summary of points of criticism of attached expert reports or their mere verbatim reproduction does not meet these requirements (see BVerwG, decision of 27 November 2018 - 9 A 10.17 - (...) para. 16; judgment of 11 July 2019 - 9 A 13.18 - (...) para. 133 et seqq., 142). The claimant must also provide a discussion of the contested planning approval decision; a mere blanket reference to objections raised during the planning approval procedure or their repetition without an assessment of the planning approval decision is just as insufficient (see BVerwG, judgment of 6 April 2017 - 4 A 16.16 - (...) para. 37) as a mere denial of factual findings of the planning. These submissions in support of the claim must also be readily comprehensible on its own. This is because it is not the task of the court to ascertain or concretise the facts submitted and any implied applications from the written statements submitted by way of interpretation (see BVerfG, decisions of 21 June 1989 - 1 BvR 32/87 - BVerfGE 80, 257 <263>, and of 24 July 2018 - 2 BvR 1961/09 - (...) para. 64; BVerwG, decisions of 11 April 2017 - 4 B 11.17 - (...) para. 4, and of 14 August 2018 - 9 B 18.17 - (...) para. 4). Compulsory representation by a legal counsel pursuant to section 67 (4) VwGO serves to ensure an orderly and focused conduct of proceedings; by elaborating and submitting in a relevant manner the decisive aspects for the proceedings, the Federal Administrative Court is to be enabled to focus on the tasks of a supreme federal court and court of first instance in particularly important matters (see BVerfG, decision of 3 December 1986 - 1 BvR 872/82 - BVerfGE 74, 78 <93>; (...)). The submissions of the parties must be measured against this, with the consequence that only submissions that meet these requirements must be considered and decided upon (BVerwG, decision of 29 November 2018 - 9 B 26.18 - (...) para. 25).

92 III. The claimants cannot successfully claim a material error of the planning approval decision.

100 3. The planning justification for the project is given. It follows from the legal determination of need in articles 1 (1), 2 (1) of the State Treaty in conjunction with article 1 of the Approval Act (a), which is binding for the planning approval procedure and the judicial proceedings (b) and does not raise any constitutional concerns (c). The objections raised against the financial viability of the project are unfounded (d).

101 a) In articles 1 (1), 2 (1) of the State Treaty in conjunction with the Approval Act, the legislature has determined the need and hence the planning justification for an FBFL. According to these provisions, a user-financed fixed link across the Fehmarn Belt is to be constructed and operated between Puttgarden and Rødbyhavn as a combined rail and road link, consisting of an electrified double-track railway and a four-lane road link with the technical quality of a motorway. With the entry into force of the Approval Act and the entry into force of the State Treaty under international law, it became part of the national legal order with the rank of a federal law (see BVerfG, decision of 15 December 2015 - 2 BvL 1/12 - BVerfGE 141, 1 para. 45; BVerwG, decision of 26 March 1975 - 2 C 11.74 - BVerwGE 47, 365 <378>; (...)).

102 Articles 1 (1) and 2 (1) of the State Treaty are, according to their wording, purpose and content, suitable and sufficiently determined to have legal effect without further normative specification (see, in this respect, BVerwG, judgments of 27 September 1988 - 1 C 52.87 - BVerwGE 80, 233 <235> and of 16 October 1990 - 1 C 15.88 - BVerwGE 87, 11 <13>). The concretisation of the project not only corresponds to the concretisation in the requirement plans of the expansion acts, which determine the need in a binding manner pursuant to section 1 (2) AEG, section 1 (2) FStrAbG (established jurisprudence, see BVerwG, judgment of 12 June 2019 - 9 A 2.18 - (...) para. 22), but even goes beyond this, for example, with the determination of the lanes and the minimum speeds for train traffic.

103 The fact that the State Treaty leaves the final determination of the routing and the selection of the construction variant to the approval procedure does not prevent the assumption of sufficient concretisation. In particular, it was not necessary for the determination of need to finally opt for a tunnel or even an immersed tunnel. The aforementioned requirement plans also typically do not address this issue. References to the national approval procedure and the national law applicable to it, including the possibility of derogations (see article 2 (1) fourth sentence, (3) first and third sentences of the State Treaty), also do not preclude the binding determination of transport needs. These only concern the design of the crossing. It is true that national law may still prevent its construction as a whole. However, not least the affirmation of the need for a crossing for both rail and road traffic in paragraphs 1 to 4 of the preamble to the State Treaty make it clear that this is not intended to question or relativise the transport needs, but that a rejection of approval can at best be based on other grounds. Otherwise, there would have been no need for a treaty: Agreements that only included the political intention to (further) examine an FBFL were already concluded in 1992, 2004 and 2007.

104 The wording of the so-called Memorandum on the State Treaty, according to which the treaty "[sets] forth the responsibilities for the construction, operation and financing of the Fixed Link across the Fehmarn Belt and its hinterland connections in the Federal Republic of Germany and the Kingdom of Denmark" (BT-Drs. 16/12069 p. 21), does not lead to a different assessment. The subject matter of the State Treaty is, according to its - decisive - wording, not only a determination of responsibilities, but the crossing as such. In view of the clear definition of a "combined rail and road link", it cannot be concluded from the separate mention of a rail link in the preamble that the State Treaty only intends to define the need for this. Conversely, it does not follow from the mention of a cable-stayed bridge in paragraph 5 of the preamble that a need is determined only for this. The preamble merely points out that, according to the knowledge gained up to the conclusion of the treaty, a cable-stayed bridge would be particularly conducive towards achieving the common goals. The text of the State Treaty itself deliberately leaves the technical design of the crossing open.

105 Finally, the binding character of the State Treaty is not weakened by the fact that its conclusion dates back more than ten years. The State Treaty does not provide for a time limit. Both states adhere to it; they have not made use of the option to adapt the treaty as provided for in article 22 (2) of the State Treaty.

106 b) The legal determination of need is binding for the planning approval procedure and court proceedings (established jurisprudence, see, most recently, BVerwG, judgment of 2 July 2020 - 9 A 19.19 - BVerwGE 169, 94 para. 59).

107 The fact that the challenged project was not included in the Federal Government's expansion plans under road and railway law does not preclude this. It does not mean a binding negative determination that there is no need for the project (see BVerwG, judgment of 9 November 2017 - 3 A 4.15 - (...) para. 34; decisions of 15 July 2005 - 9 VR 39.04 - (...) para. 5, and of 12 July 2017 - 9 B 49.16 - (...) para. 5), but is based on the fact that the aforementioned plans are an instrument of financial planning (see BVerwG, judgment of 8 June 1995 - 4 C 4.94 - BVerwGE 98, 339 <345>). Because Denmark is constructing and operating the tunnel at its own expense, it did not have to be included in the requirement plans. The fact that the FBFL is not classified in a need category is therefore also irrelevant since this is also only of importance for financing the transport infrastructure expansion. The failure of the Bundesrat initiative to regulate the need for the project in a new section 17i FStrG and section 18f AEG does not imply that the legislature rejected a legal determination of need. The proposed regulation should not be constitutive, but merely clarifying (Bundesrat printed paper (BR-Drs., Bundesratsdrucksache) 389/18 p. 8 et seq., 14 et seq.).

108 The binding effect applies in the present case irrespective of an express provision in accordance with section 1 (2) of the Act on the Expansion of the Federal Railway Lines (BSWAG, Gesetz über den Ausbau der Schienenwege des Bundes), section 1 (2) second sentence of the Act on the Expansion of Federal Trunk Roads (FStrAbG, Gesetz über den Ausbau der Bundesfernstraßen). Pursuant to article 20 (3) GG, any legal determination of need is binding on the planning approval procedure without requiring a separate order by law. The aforementioned provisions are merely a reaction on the part of the legislature (see BT-Drs. 11/6805 p. 67) to previous jurisprudence of the Federal Administrative Court, which considered the requirement plans to be a regulation that was only internally binding on the administration, especially with regard to budgetary and temporal priorities (BVerwG, judgments of 22 March 1985 - 4 C 15.83 - BVerwGE 71, 166 <169>, of 6 December 1985 - 4 C 59.82 - BVerwGE 72, 282 <287> and of 11 April 1986 - 4 C 53.82 - (...)). However, the State Treaty does not have such a limited fiscal function.

109 Furthermore, the assumption that the determination of need is sufficient to justify the plan is not precluded by the fact that the requirement plan is regularly reviewed in accordance with section 4 first sentence FStrAbG and section 4 BSWAG, taking into account the interests of spatial planning, environmental protection and urban development in particular. Such reviews are no prerequisite for a binding effect of the legal determination of need. Notwithstanding this, the conclusion of the State Treaty was preceded by several years of investigations of technical and financial options, socio-economic and regional impacts, the overall economic assessment as well as of traffic forecasts and environmental effects of an FBFL, including a cross-border environmental consultation procedure. Furthermore, requirement plans continue to apply even if the obligation to examine the need for adjustment has lapsed (see BVerwG, judgment of 6 November 2013 - 9 A 14.12 - BVerwGE 148, 373 para. 26).

110 c) Neither the State Treaty in conjunction with the Approval Act (aa) nor the determination of need made therein (bb) meet with constitutional concerns.

111 aa) The State Treaty is not unconstitutional because it refers to Danish law (articles 3 (3), 10 (2) first sentence, 13 (7) first sentence of the State Treaty). Contrary to the claimants' complaints, this does not constitute a dynamic referral. The German legislature did not adopt Danish law as its own, but merely made a conflict-of-law provision as to which regulations were to apply to the construction and operation of the crossing (...). Apart from this, it is also immediately obvious that both halves of the tunnel will be constructed according to uniform technical regulations, that access by railway undertakings to the structure will take place according to uniform regulations and that not the version of the regulations applicable at the time the State Treaty was concluded but those applicable at the time of construction and/or the access decision are to apply. Furthermore, the (exclusive) application of regulations of the neighbouring state on border operating lines is provided for in principle under railway law (see section 3a (1) of the Construction and Operation of Railways Ordinance (EBO, Eisenbahnbetriebsordnung), section 10a first sentence of the Ordinance on the Issuance of Commissioning Approvals for the Railway System (EIGV, Verordnung über die Erteilung von Inbetriebnahmegenehmigungen für das Eisenbahnsystem), new version).

112 There are no indications that the application of Danish legal provisions and technical standards will lead to a safety standard that lags behind that of the relevant German standards. The objections raised by the claimants in this context do not already render the State Treaty ineffective, as will be explained below. Therefore, even if their objections were well-founded, they would not render the planning justification ineffective, but only concern the question as to whether the safety equipment of the tunnel for which planning approval has been granted meets the requirements of section 4 (1) AEG, section 4 first sentence FStrG. Even if the latter were not the case, there is no doubt - as will also be explained later - that a sufficient safety standard could be created for the tunnel with the help of additional safety measures, if any, such as reduced maximum speed, without the use of the claimants' property becoming obsolete. Hence, the claimants have already no right to complain.

113 Moreover, they do not specify any circumstances in which the applicability of Danish technical regulations would have a negative effect on tunnel safety. It is true that they point to the different implementation of Directive 2004/54/EC of the European Parliament and of the Council of 29 April 2004 on minimum safety requirements for tunnels in the Trans-European Road Network (OJ L 201 p. 56) - Tunnel Directive - in Germany and Denmark. In this respect, they argue that Denmark merely declared the Directive to be directly applicable, whereas the German Guidelines for the Equipment and Operation of Road Tunnels (RABT 2006, Richtlinien für die Ausstattung und den Betrieb von Straßentunneln) (Federal Ministry of Transport Gazette (VkBl., Verkehrsblatt) 2006 p. 471) went beyond the minimum requirements of the Directive. However, the only differences they mention are that according to no. 4.3.3 RABT 2006, longitudinal ventilation with point extraction is provided at intervals of ≤ 2,000 metres for tunnels with directional and in exceptional cases stop-and-go traffic if the tunnels have a length of 3,000 metres and more, and according to no. 6.1.3 RABT 2006, the distance between two emergency exits is limited to a maximum of 300 metres. It is true that the tunnel for which planning approval has been granted will not have a smoke extraction system. However, the Guidelines are not a rigid standard; instead, the requirements of traffic quality, safety and economic efficiency as well as environmental conditions must be taken into account in a balanced manner and integrated into an overall safety concept when the Guidelines are applied (no. 0.4 RABT 2006). In this respect, planning provides for emergency exits every 110 metres and thus at a significantly shorter distance than required by RABT 2006. The claimants do not assert that this is to the detriment of tunnel safety in the present case. Instead, they only complain about the deficiencies of the risk analyses prepared according to both Danish and German law and they themselves argue that it is irrelevant whether Danish or German technical standards are used as a basis. The application to take evidence of the fact that the Danish legal provisions and technical standards, according to which the FBFL will be constructed and approved by the Kingdom of Denmark, fall short of the relevant German standards with regard to the prescribed safety standard, had thus to be rejected both because the right to complain was lacking and because it was just an assumption.

114 bb) The legislature's determination, which is binding for the planning approval procedure and the court proceedings, i.e., that there is a transport need generally excludes the submissions that there is no transport need for the motorway section for which planning approval has been granted (established jurisprudence, see BVerwG, judgment of 28 April 2016 - 9 A 9.15 - (...) para. 53). There are no indications that the legal determination of need could be unconstitutional. This would only be the case if it were manifestly unobjective because there was no need whatsoever for the project with regard to the existing or expected future traffic load or - as is relevant in the present case - with regard to the transport development of an area to be developed. Furthermore, the determination of need may also become unconstitutional if the circumstances have changed so fundamentally since the legislature's decision on need that the intended planning objective cannot be achieved even approximately under any circumstances (established jurisprudence, see BVerwG, judgments of 12 March 2008 - 9 A 3.06 - BVerwGE 130, 299 para. 43, and of 28 April 2016 - 9 A 9.15 - (...) para. 54). However, such an exceptional case is not at hand here.

134 d) Finally, the planning justification does not fail due to the project's lack of financial viability. The type of financing is not the subject of the planning approval decision under trunk road law. However, the planning approval authority may not ignore a project's lack of financial viability; planning that cannot be executed for financial reasons lacks planning justification because it is not reasonably necessary. The planning approval authority must therefore assess with foresight whether insurmountable financial obstacles prevent the planned construction project (established jurisprudence, see, most recently, BVerwG, judgment of 28 April 2016 - 9 A 9.15 - (...) para. 58).

135 aa) The claimants doubt that the envisaged financing with the help of Danish state guarantees is permissible under EU law. However, there is already much to suggest that the permissibility of state aid under EU law is generally not to be examined in legal proceedings against planning approval decisions (see BVerwG, judgments of 19 October 2006 - 3 C 33.05 - BVerwGE 127, 42 para. 40, and of 26 October 2016 - 10 C 3.15 - BVerwGE 156, 199 para. 14). In any case, the court is limited to evidence control of European state aid law in planning approval procedures. Measured against this, the financial viability of the project is not ruled out. In its judgment of 13 December 2018 - T-630/15 [ECLI:EU:T:2018:942] - the European General Court only criticised the failure to conduct a formal investigation procedure, but did not express any fundamental substantive concerns about state aid funding.

136 The same applies to the judgment of the European General Court of 19 September 2018 - T-68/15 [ECLI:EU:T:2018:563] - concerning the granting of state aid for the construction of the Öresund crossing. Although both judgments prove the necessary scope of investigation of the financing model under EU law, they do not provide any indications of its obvious unlawfulness. Such a detailed examination of the permissibility of state aid under EU law, as undertaken by the claimants with their detailed application of the European state aid rules to the specific case, clearly goes beyond evidence control that is at best incumbent on the planning approval procedure; it must remain reserved for the review proceedings under EU law.

137 The assumption that at the relevant time of issuance of the planning approval decision, financing was not excluded due to restrictions under EU law is also confirmed by the fact that the Commission approved the financing of the FBFL in its decision of 20 March 2020 - albeit with minor modifications that do not, however, call the financing into question.

138 bb) The planning approval decision also does not - a fortiori not obviously - violate the prohibition to execute an intended state aid measure prior to the Commission's final decision (article 108 (3) third sentence of the Treaty on the Functioning of the European Union (TFEU)). This is because it does not refer to the granting of state aid, but only to the construction and operation of the project. However, article 108 (3) third sentence TFEU only prohibits Member States from granting or altering state aid. In order to protect the functioning of the common market, the effects of state aid should not take effect before the Commission had a reasonable period of time to decide on its compatibility (see CJEU, judgment of 14 February 1990 - C-301/87 [ECLI:EU:C:1990:67] - para. 17). The approval of a project, the financing of which may depend on the state aid in question, is obviously not covered by the blocking effect. A reference for a preliminary ruling to the Court of Justice under article 267 TFEU as suggested by the claimants was therefore not necessary.

139 The objection that toll collection is impermissible, or at least insufficient due to the low traffic volume, relates solely to the refinancing of the tunnel and thus does also not affect the planning justification.

143 5. The planning approval decision in the version of the supplementation that was declared during the oral hearing satisfies the requirements of safety law. Neither does the construction of the tunnel impair the safety and efficiency of ship traffic (a) nor does the project contradict the requirements for the safety and order of road and railway structures (b).

144 Pursuant to article 3 (2) of the State Treaty, the construction and operation of the FBFL must comply with the requirements for traffic safety and efficiency. In conjunction with the Approval Act, the provision, as lex specialis, takes precedence over comparable provisions, such as section 31 (5) first sentence WaStrG, section 4 (1) no. 1 AEG or section 4 first sentence FStrG, but is consistent with these in terms of content.

145 The necessary guarantee of the safety and order of the project requires the investigation and - especially when there are several technical alternatives, also a weighing - consideration of a multitude of different, in particular, safety-relevant circumstances. On the basis of a sufficient investigation of the facts, the project developer must first determine on his or her own responsibility which safety standard is appropriate in order to exclude safety risks in the specific case. It is primarily up to the project developer to assess which construction measures are required in order to ensure conditions that are harmless from the point of view of safety law. If the project developer develops a plausible and viable concept in compliance with the relevant technical regulations and on the basis of technical studies, he or she may adhere to it even if other solution models are also technically justifiable. The defendant, as the responsible body of the planning approval authority, is responsible for this concept in relation to external parties (BVerwG, judgment of 11 October 2017 - 9 A 14.16 - BVerwGE 160, 78 para. 25).

146 Having said this, the claimants' objections prove to be unfounded.

147 a) The construction of the project does not impair the safety and efficiency of ship traffic.

152 aa) The claimants' right to complain does not cover the safety and efficiency of ship traffic (1) in general (2), but is limited to objections against sufficient consideration of the safety and efficiency of ferry traffic (3).

153 (1) Traffic safety is impaired if the construction or operation of an offshore installation creates threats to waterway and road users or non-involved persons which, if left unchecked, are sufficiently likely to result in damage to legally protected rights - life, health or other legal interests. The key factor is whether shipping can be carried out safely in an orderly manner and in accordance with the rules of good seamanship. Traffic efficiency, i.e., smooth and unobstructed traffic flow, is impaired when the smooth flow of traffic is no longer guaranteed (...).

154 The guarantee of safety and efficiency of ship traffic is - subject to the case contemplated in section 31 (5) second sentence WaStrG, which is not applicable here - jus cogens and cannot be subject to a weighing of interests. Moreover, this is a public interest that does not protect the individual interests of third parties, such as waterway and road users. Third party protection is only afforded by those provisions which at least also serve to consider the interests of a specific group of persons (established jurisprudence, see BVerwG, decision of 19 March 1997 - 11 B 102.96 - (...)). In the present case, such a protective purpose cannot be concluded from the fact that every participant in shipping is part of ship traffic. The group of those involved in shipping is so broad that it is not sufficiently different from the general public (see Hamburg Higher Administrative Court (OVG, Oberverwaltungsgericht), decision of 30 September 2004 - 1 Bf 162/04 - (...) para. 8). Accordingly, section 5 (3) first sentence no. 2 of the Offshore Installations Act (SeeAnlG, Seeanlagengesetz) and section 48 (4) first sentence no. 2 of the Offshore Wind Energy Act (WindSeeG, Gesetz zur Entwicklung und Förderung der Windenergie auf See), for example, place the ground for refusal of "safe and efficient traffic" between the public interest of "endangerment of the marine environment" (no. 1) and "security of the defence of the nation and the Alliance" (no. 3) and only address the interests of third parties worthy of protection through the protection of priority activities under mining law (no. 4) as well as existing or planned lines, etc. (no. 5 et seqq.). Accordingly, the obligation to ensure the safety and efficiency of ship traffic exists only in relation to the general public and - just like the road construction and maintenance obligation under section 4 FStrG (see Federal Court of Justice (BGH, Bundesgerichtshof), judgment of 20 March 1967 - III ZR 29/65 - (...); OVG Münster, judgment of 28 October 2010 - 11 A 1648/06 - (...) para. 54, 56; (...)) - does not in principle grant any third-party protection (also with regard to the maintenance of waterways see BGH, judgment of 15 November 1982 - II ZR 206/81 - Rulings of the Federal Court of Justice in Civil Matters (BGHZ, Entscheidungen des Bundesgerichtshofs in Zivilsachen) 86, 152).

155 (2) Any planning approval deficiencies in this respect would therefore only be relevant for the property of claimants no. 1 and no. 2 being affected if the immersed tunnel for which planning approval has been granted could not be constructed - not even by means of additional measures - while maintaining the safety and efficiency of ship traffic. This is not the case.

156 (a) Notwithstanding the investigations carried out by the project developers, a different assumption is already precluded by the fact that the WSV, which is responsible for ship safety, stated in a letter from the Federal Waterways and Shipping Agency (GDWS, Generaldirektion Wasserstraßen und Schifffahrt) dated 19 September 2016 that the safety and efficiency of traffic can basically be maintained with the precautions provided for this purpose by the project developers as the minimum standard and for which planning approval has been granted (...). In a supplementary letter dated 9 June 2017, the WSV confirmed that the instruments listed in the planning documents represent suitable measures to ensure the safety and efficiency of traffic and that the aspects to be examined within the scope of the approval under the provisions on the prevention of threats to the status of waterways and to shipping pursuant to section 31 WaStrG can be sufficiently assessed in the planning approval procedure to ensure that the conflicts raised by the project can be managed. This assessment by a specialist authority, which is independent of the planning approval authority and the project developer, whose legally determined task is precisely to guarantee the safety and efficiency of ship traffic (section 3 (1) first sentence of the Act on Federal Responsibilities in Matters of Maritime Shipping (SeeAufgG, Seeaufgabengesetz), and whose technical specifications and assessments the planning approval decision has fulfilled, in particular, by extensively adopting the additional stipulations required by it, is of particular importance. This is because such information from specialist authorities is regularly based on special expertise and knowledge of the respective specific requirements of the subject matter in question. This special, independent expertise renders its opinion to be highly significant (regarding the significance of an opinion of the federal-state government in the context of an aerodrome approval pursuant to section 6 of the Civil Aviation Act (LuftVG, Luftverkehrsgesetz), see BVerwG, judgment of 3 May 1988 - 4 C 11.85 et al. - (...)).

157 This significance is not relativised in the present case by the fact that - as the claimants assume - the BSH would be the competent authority for ship safety in the EEZ area. Instead, the WSV is comprehensively responsible for assessing and monitoring the safety and efficiency of ship traffic. Therefore, for example, planning approval of installations in the EEZ pursuant to section 8 of the Offshore Installations Ordinance (SeeAnlV, Seeanlagenverordnung) also requires the Waterways and Shipping Directorate's consent because rather than the BSH it has the necessary expertise in issues regarding the prevention of threats to shipping (see BT-Drs. 17/6077 p. 8; (...)).

158 (b) Although the measures planned are hence in principle sufficient, the planning approval decision also expressly reserves, in obligation 2.2.8 no. 1 (...), the right to implement further risk-reducing measures when requested by the WSV. (...)

159 Finally, the connections across the Great Belt and Öresund in particular, but also the construction of an immersed tunnel in the Strait of Istanbul, prove that the construction of fixed links and thus the establishment of construction sites lasting several years is in principle possible even within busy shipping lanes.

160 (3) If, due to a lack of causality, claimants no. 1 and no. 2 do not have the right to complain based on the fact that their property is affected, claimants no. 1 and no. 3 are nevertheless entitled to claim a violation of the safety and efficiency of their ferry traffic. They are affected by the project not only as general participants in ship traffic in the Fehmarn Belt, but - comparable to a frontager - to a much greater extent because the construction site is located in the immediate vicinity of their ferry route. The ferry route is spatially restricted by the fact that the work areas are located in the eastern third of the water area that is so far used by the claimants' ships and that they must therefore move to the west during the four-and-a-half-year construction period and/or can no longer use the areas as an alternative area. In addition, barges will cross the ferry route.

161 bb) Measured against the principles set out at the beginning, the planning approval decision ensures the safety and efficiency of ferry traffic.

181 The operational interests of claimants no. 1 and no. 3, such as the possibility of maintaining the previous travel times and frequency of their ferries, are to be distinguished from the safety and efficiency of ferry traffic. These are not protected under article 3 (2) of the State Treaty.

182 The concept of efficiency may not be interpreted too narrowly; merely insignificant impairments are irrelevant (...). The smooth, unobstructed and unimpeded flow of traffic is only protected within the general framework of shipping, which includes the free usability of the water area and the freedom of navigation (section 5 WaStrG, article 87 of the United Nations Convention on the Law of the Sea (UNCLOS), the - albeit not unrestricted - right of coastal states to construct installations and structures (article 60 UNCLOS), as well as the right-of-way regulations according to international collision prevention rules. Neither the deterioration of a certain advantageous transport connection (see, in this respect, BVerwG, decision of 15 May 1996 - 11 VR 3.96 - (...)) nor the necessity of having to take a temporary diversion instead of the shortest distance between two ports or evasive manoeuvres vis-à-vis ships having the right of way therefore affect the efficiency of traffic (...).

183 In as far as the claimants refer to their ferry service as a "grown traffic structure" and complain that the ferries are forced to adjust their speed and course in order to avoid collisions due to the addition of construction site traffic, they fail to realise that the duration of their undertaking does not give them a special position with regard to the safety and efficiency of traffic, but that the legal requirements in this regard apply equally to all waterway and road users.

184 Instead, the operational interests are subject to weighing in accordance with section 17 (1) second sentence FStrG, section 18 (1) second sentence AEG. The planning approval decision considers the impacts asserted in this regard to be credible and states a significant disadvantage that may also have an effect on the attractiveness of the ferry service. Arguing against this, the planning approval decision states that, according to the expert report on threats to the continued existence, sales losses are to be feared, but not a threat to existence, and that there is no entitlement to having the current traffic situation maintained, in particular not against the addition of further waterway and road users. This does not give rise to any objections as a matter of law. In particular, the assessment is not excluded by any public interest in maintaining the ferry service at exactly the current level also during the construction phase. It is true that it plays an weighty role in connecting Scandinavia with the rest of Europe. However, this is not jeopardised by extending the duration of the crossing and reducing the frequency of operations. Traffic flow is regularly impaired during the expansion of transport routes. However, it would not be possible to expand transport routes if this had to be carried out without any impact on road and waterway users. Besides, the alternative connection across the Great Belt remains unimpaired by the construction work.

224 b) The objection that the tunnel does not meet the requirements for tunnel safety is also unfounded.

225 aa) With regard to the operational safety concerns asserted, the claimants have no right to complain. The national and European provisions on safety in road and rail tunnels do not serve to protect claimants no. 1 to no. 3. Claimants no. 1 and no. 2 have also no right to complain because they are affected by expropriation. Any planning errors would not be relevant for the use of their properties since they could be remedied by supplements to the plan, and even an error-free consideration of safety concerns would not lead to a change in planning in the area of the claimants' properties. As with the issue of the safety and efficiency of ship traffic, there is no doubt that a sufficient safety standard could be achieved for the tunnel with the help of additional precautions, such as a reduced maximum speed. In this respect, the claimants themselves point out that the maximum speed in most tunnels is 80 km/h instead of the 110 km/h provided for here.

226 bb) With regard to the design-related objections raised, the claimants have also largely no right to complain.

234 6. The project meets the requirements of expropriation law pursuant to section 22 AEG, section 19 FStrG.

235 Contrary to the defendant's concerns, the right of claimants no. 1 and no. 2 - but not claimant no. 3 - to complain includes the objection that the applicants in the planning approval procedure were not entitled to expropriate. The basic permissibility of expropriation already established in the planning approval decision is binding for the expropriation procedure (section 22 (1) second sentence, (2) AEG, section 19 (1) third sentence, (2) FStrG). The only examination is then whether, on the basis of planning within the detailed design phase, the (entire) area must in fact be used and whether the further prerequisites for complete expropriation of precisely this property are met. In as far as the binding effect extends, it can - and must - hence already be challenged in the proceedings against the planning approval decision. In this respect, it cannot be argued to the detriment of the claimants that they themselves had admitted that expropriation was permissibly possible - albeit under a different legal framework - which is why an alleged error would not be causal for their property being affected.

236 However, their objections are unfounded. Expropriation is in principle permissible in favour of both the summoned third party (a) as the project developer of the part of the FBFL subject to railway law and of the LBV (b) as the project developer of the part subject to road law. Furthermore, there is no need for a separate allocation of the properties and/or parts thereof to be expropriated to the parts of the project that are subject to railway law and road law (c).

237 a) The summoned third party can be the beneficiary of expropriation pursuant to section 22 AEG.

238 Accordingly, expropriation is permissible for the purpose of constructing railway operating facilities in as far as it is necessary for the execution of a construction project approved in accordance with section 18 (1) AEG. Railways are, inter alia, undertakings organised under private law which operate railway infrastructure - i.e., railway operating facilities, section 2 (6) AEG - (railway infrastructure undertakings; section 2 (1) AEG). The term "operating facilities" within the meaning of section 18 first sentence AEG is in turn synonymous with the term "railway facilities" within the meaning of former section 36 (1) first sentence of the Federal Railway Act (BBahnG, Bundesbahngesetz) and the Construction and Operation of Railways Ordinance (BVerwG, decision of 16 July 2008 - 9 A 21.08 - (...) para. 7). Pursuant to section 4 EBO, the operating facilities include not only the track but also the tunnel structure, the construction and operation of which are the responsibility of the summoned third party pursuant to articles 6 (1), 11 (1) of the State Treaty.

239 aa) The fact that the summoned third party is a Danish undertaking organised under private law does not prevent expropriation which is permissible in principle.

240 The constitution does not preclude expropriation in favour of private parties. In this case, however, in order to ensure that the purpose of serving the common good required under article 14 (3) first sentence GG is achieved, legal rules are needed to ensure that private beneficiaries use the expropriated property permanently to achieve the objective that legitimises expropriation. This requires all legal requirements to be all the more precise, the less the business purpose of the private undertaking is already geared towards serving the general interest. If, however, this is to be allocated to the generally recognised area of services of general interest, as may be the case with transport or utility companies, it is sufficient if adequate precautions are taken in order to duly fulfil the self-imposed "public" task (see BVerfG, judgment of 24 March 1987 - 1 BvR 1046/85 - BVerfGE 74, 264 <285 et seq.> and of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 178 et seqq.; decisions of 20 March 1984 - 1 BvL 28/82 - BVerfGE 66, 248 <257>, of 21 December 2016 - 1 BvL 10/14 - (...) para. 24 et seqq., 36 et seq., and of 25 January 2017 - 1 BvR 2297/10 - (...) para. 37).

241 It can be left open whether safeguarding adherence to the common good must also be required if - as in the present case - a foreign state is behind the private undertaking benefiting from expropriation (see BVerwG, judgment of 24 October 2002 - 4 C 7.01 - BVerwGE 117, 138 <144>). The summoned third party is an undertaking through which the Danish state performs services of general interest under private law. It is sufficient, but also necessary, that adequate precautions be taken in order to duly fulfil the "public" task. This is adequately taken into account by the provisions of the State Treaty as well as by the regulations of railway law that apply additionally. They guarantee long-term operation of the tunnel and the summoned third party's obligation to grant permanent access to it. This ensures that expropriation continues to serve the common good.

242 The operator of the tunnel will initially not be the summoned third party, but the Kingdom of Denmark (article 1 (1) second sentence of the State Treaty). The summoned third party merely assumes the task of operation; it is to gain ownership of the crossing, including the necessary land (article 6 (1) first and second sentences of the State Treaty). The Kingdom of Denmark will continue to ensure and guarantee that the summoned third party fulfils the tasks assigned to it under the State Treaty. Pursuant to article 11 (1) of the State Treaty, the summoned third party is obliged to operate the crossing and on German territory it is subject to German law in this respect. It is hence subject to railway supervision pursuant to section 5 AEG and, among other things, has the operation and maintenance obligation pursuant to section 11 (1) AEG. Therefore, it cannot close the line of its own accord, but requires approval by the railway supervisory authority (see BVerwG, judgment of 25 October 2007 - 3 C 51.06 - BVerwGE 129, 381 para. 21 et seqq.). Also in view of the high Danish interest in the construction of the FBFL, there are no indications that permanent operation is not guaranteed. The summoned third party must also grant railways access to its railway infrastructure under both Danish and EU law (articles 10, 13 (1) in conjunction with Annex II no. 1 of Directive 2012/34/EU). In as far as article 10 (2) first sentence of the State Treaty stipulates that the approval regulations of Danish railway law apply in this respect, the Danish regulatory authority will monitor compliance with these regulations following consultation with the German regulatory authority in accordance with the second sentence of the regulation. The regulation is also consistent with section 10a first sentence no. 2 EIGV, new version, pursuant to which components of the railway infrastructure on border operating lines, i.e., on line sections between stations on both sides of a state border (section 2 no. 11 EIGV, new version), can be operated according to the regulations of the neighbouring state. Further sanctions or submission to immediate enforcement as in the decision of the Mannheim Higher Administrative Court (VGH, Verwaltungsgerichtshof) referred to by the claimants (VGH Mannheim, decision of 23 August 2010 - 1 S 975/10 - (...)) were therefore not necessary.

243 It is hence irrelevant whether the summoned third party is a public railway infrastructure undertaking within the meaning of section 3 (1) no. 2 AEG and whether the provision requires - as the claimants hold - that the summoned third party is obliged under German law to grant access to its infrastructure. Moreover, the latter assumption is incorrect. As far as the explanatory memorandum refers in brackets to the provision regulating access in section 14 AEG, old version (BT-Drs. 15/2743 p. 10, 12), it only refers to the then standard case of the obligation to grant access. This did not limit the obligation to grant non-discriminatory access to the railway infrastructure to German undertakings only, but extended it - and thus the status as a public railway infrastructure undertaking - to all infrastructure operators in Germany. The only exceptions to this were railway infrastructure companies for exclusive use for company-internal freight transport (so-called works railways; see OVG Münster, decision of 4 January 2012 - 8 A 281/10 - (...) para. 31).

244 bb) Profit, if any, made by the summoned third party does not mean that the measure does not serve the common good. The organisation of railway infrastructure undertakings under private law and thus their intention to make a profit is the standard case. If this excluded expropriation, no railway facilities could be constructed or expanded.

245 b) Expropriation in favour of the LBV as the authority responsible for road construction and maintenance of the part of the FBFL that is subject to road law is also permissible in principle.

246 Pursuant to section 19 (1) first sentence FStrG, the authorities responsible for road construction and maintenance of federal trunk roads have the right of expropriation in order to fulfil their tasks. In as far as the claimants dispute the LBV's position as the authority responsible for road construction and maintenance, this objection is unfounded. Pursuant to section 5 (1) first sentence FStrG, the Federation is the authority responsible for road construction and maintenance of federal trunk roads. Pursuant to section 20 (1) second sentence FStrG in the version applicable until 31 December 2020, this is exercised by the federal states on federal commission (Auftragsverwaltung) - in Schleswig-Holstein by the LBV pursuant to section 4 of the Ordinance on the Determination of Responsibilities in Road Construction and Transport (StrVZustVO, Landesverordnung zur Bestimmung von Zuständigkeiten im Straßenbau und Verkehr).

247 aa) The claimants' objection that the road construction and maintenance obligation was transferred in the State Treaty, or at least de facto, to the Kingdom of Denmark or the summoned third party is contradicted by the express provision in article 4 (1) second sentence of the State Treaty, pursuant to which the Federal Republic of Germany is, according to German law, the authority responsible for road construction and maintenance of the section of the FBFL located on German territory. Contrary to the claimants' assumption, the normative content of the regulation is not called into question by the use of the word "is" ("ist") (instead of "shall"). Instead, the use of the indicative form for statements with normative content corresponds to customary legal diction. Furthermore, road law permits parts of the tasks associated with the road construction and maintenance obligation to be transferred to third parties, without the road construction and maintenance obligation thereby ceasing to exist. Instead, comparable to the cases of so-called functional privatisation (PPP, operator/concession model, A/F model), it is only modified from a performance function to a supervisory and/or guarantee function (...). This is the only reason for a need for exemption in the internal relationship in article 3 para. 5 of the State Treaty, which the claimants refer to as evidence of a transfer or erosion.

248 With this, the objections raised by the claimants against the LBV's function as the project developer also prove to be unfounded.

249 bb) The further objection that the State Treaty precludes expropriation in favour of the LBV because it provides for the summoned third party's acquisition of property is unfounded because article 6 (1) second sentence of the State Treaty makes the acquisition of property by the summoned third party subject to national law. Moreover, this does not exclude expropriation in favour of the LBV for the purpose of subsequent transfer to the summoned third party. In this respect, it is a so-called transit expropriation justified by the pursued common good purpose of the construction of a Fehmarn Belt crossing (see, in this respect, BVerwG, decision of 3 July 1998 - 4 CN 5.97 - (...); BGH, judgment of 28 November 2002 - III ZR 167/02 - (...)). The acquisition of property is provided for by law in article 6 (1) second sentence of the State Treaty in conjunction with the Approval Act. By retaining the responsibility for road construction and maintenance with the Federal Republic of Germany in accordance with article 4 (1) second sentence of the State Treaty in conjunction with the Approval Act, the legislature has created adequate precautions to lastingly serve the common good. This is because - as explained above - the LBV retains a supervisory and guarantee function in the sense of a guarantor position and also its responsibility in relation to third parties.

250 c) The objections raised with regard to the specificity and allocability of the expropriated properties are also unfounded.

251 The degree of specificity of planning drawings and explanations must be measured according to their function in the planning approval procedure. According to this, the interests to be weighed must emerge from them with a level of clarity that allows their relevance for planning and the degree to which third parties are affected to be adequately recognised. Furthermore, it must be ensured that expropriation, which is already permissible on the basis of the planning approval decision pursuant to section 19 (1) and (2) FStrG, is clearly spatially defined (BVerwG, judgment of 25 March 1988 - 4 C 1.85 - (...) para. 8). The present property acquisition plan shows the areas to be acquired, the areas to be permanently restricted and the areas temporarily used on a scale of 1:1,000, which is basically sufficient (see BVerwG, judgment of 25 March 1988, see above).

252 Regardless of the fact that section 78 VwVfG only leads to a concentration of procedures, there is no need for a separate allocation to the parts of the project subject to road and railway law. The expropriation provisions under railway and road law are identical in terms of their requirements, standards and expropriation effects. In the present case, expropriation is permissible according to both regulations. Separate allocation of the partial areas used to one part of the project is ruled out from the outset in as far these are areas that are equally needed for both parts of the project - as is the case, for example, with the service road running through plot 45/16. In all other respects, the technical implementation of expropriation will be reserved for the expropriation procedure.

253 7. The actions are also unfounded in as far as the claimants challenge the assumptions underlying the assessment of the effects of the project on the environment with regard to the amount and duration of sediment release.

258 a) Standard of judicial review is the plausibility of the assumptions on sediment release and drift on which the planning approval decision is based.

259 There are no normative specifications, expert conventions or other given standards for determining the amount of sediment released and its distribution as a result of the project. If the assessment under nature conservation law hence depends on extrajudicial, in particular, ecological assessments, including technical and scientific forecasts, for which neither standards concretising the relevant norms nor standards and methods exist that are generally recognised in relevant expert and scientific communities, their correctness is not guaranteed, but judicial review is instead limited to whether the evaluations by the planning approval authority are justifiable in the specific case from a nature conservation perspective and, specifically, whether they are not based on an inadequate or even unsuitable assessment procedure, and whether the authority's evaluation is plausible. Furthermore, it is incumbent on the administrative court to review whether the authority committed procedural errors when determining and applying the - justifiable - method chosen by it, whether it based its decision on incorrect or insufficiently investigated facts, whether it violated generally applicable assessment standards or whether it was guided by irrelevant considerations (see BVerfG, decision of 23 October 2018 - 1 BvR 2523/13 et al. - BVerfGE 149, 407 para. 17 et seqq.; BVerwG, judgments of 9 July 2008 - 9 A 14.07 - BVerwGE 131, 274 para. 54 et seqq., of 12 August 2009 - 9 A 64.07 - BVerwGE 134, 308 para. 37, and of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 128).

260 Uncertainties about cause-effect relationships that cannot be eliminated at present, even if the relevant means of knowledge are exhausted, do not constitute an insurmountable obstacle to approval. Instead, it is permissible to use forecasting probabilities and estimates which must be identified and justified. Remaining prognostic risks can be addressed by appropriate risk management (see BVerwG, judgments of 21 January 2016 - 4 A 5.14 - BVerwGE 154, 73 para. 70, of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 161, of 28 November 2017 - 7 A 17.12 - BVerwGE 161, 17 para. 54, of 15 February 2018 - 9 C 1.17 - BVerwGE 161, 180 para. 13, and of 12 June 2019 - 9 A 2.18 - (...) para. 115; decision of 28 November 2013 - 9 B 14.13 - (...) para. 7). If the forecasts also serve as the basis for the assessment of the implications for the site under the Habitats Directive, they must contain sufficiently robust statements for the questions that specifically arise there. It must be taken into account that different methodological approaches are often available for risk assessment, without one or the other method being accused of being unscientific from the outset. If the planning approval authority decides in this situation to give preference to one of these methods, it is part of the scientific standard to provide a comprehensible justification of the choice of method. If this succeeds, the choice of method as such is not subject to further judicial review (see BVerwG, judgments of 11 August 2016 - 7 A 1.15 - (...) para. 77, and of 9 February 2017 - 7 A 2.15 - BVerwGE 158, 1 para. 40).

261 b) The calculation of the seaward excavation volume of 19.338 million cubic metres - including 15.5 million cubic metres from dredging operations in the tunnel trench - does not raise any concerns.

362 9. The project does not violate the requirements of site protection.

363 Claimant no. 3, whose property is not affected, lacks the overall right to complain about deficiencies under site protection law (see BVerwG, decision of 27 November 2018 - 9 A 10.17 - (...) para. 51). The submissions of claimants no. 1 and no. 2 in this regard, instead, are not irrelevant simply because they had no right to complain from the outset. The right of the person affected by expropriation to complain about issues of habitat protection law essentially extends to such errors in the application of objective law and in the consideration of public interests where - given they exist - it cannot be ruled out that, without these errors, the project could not have been realised at this location or could have been realised with a change in routing relevant to the claimants' properties (see BVerwG, judgment of 12 June 2019 - 9 A 2.18 - BVerwGE 166, 1 para. 42, 44). It is true that the right to complain does not apply even if presumed adverse effects on a site under the Habitats Directive could be addressed through protective measures and, if necessary, by way of an exception pursuant to section 34 (3) BNatSchG without the use of the claimant's property being less severe. However, this assumption cannot be made across the board, but only in view of the individual points of criticism. For example, the absence of a necessary exception is only irrelevant if the requirements for granting the exception are met and if rejection by the planning approval authority can be ruled out according to the documentation in the files. Likewise, there must be concrete evidence that the planning approval authority would have taken the same decision had it weighed the matter properly; because the court may not replace the authority's failure to perform the weighing by its own weighing (on section 45 (7) BNatSchG, see BVerwG, decision of 8 March 2018 - 9 B 25.17 - (...) para. 23). Also in the case of a derogating decision pursuant to section 34 (3) BNatSchG, the weight to be attributed to the integrity interest in weighing depends decisively on the extent of the adverse effects and their qualitative and quantitative assessment is required (see BVerwG, judgment of 28 March 2013 - 9 A 22.11 - BVerwGE 146, 145 para. 99). In view of the large number of objections raised, it is therefore not possible to assume without further examination that the planning approval decision would also have been issued had the claimants' criticism been correct.

364 Pursuant to section 34 (1) first sentence, (2) BNatSchG, a project must be assessed for its compatibility with the conservation objectives of a Natura 2000 site before the project is approved; it may only be approved if it cannot lead to significant adverse effects of such a site in its components relevant to the conservation objectives or the protective purpose (see BVerwG, judgment of 6 November 2013 - 9 A 14.12 - BVerwGE 148, 373 para. 39). The decisive assessment criterion is the favourable conservation status of the protected habitats and species within the meaning of the legal definitions of article 1 (e) and (i) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206 p. 7 - Habitats Directive); this status must remain stable despite implementation of the project; in any case, an existing poor conservation status may not be further deteriorated. However, the impact assessment is not to be orientated towards a - scientifically unverifiable - "zero risk". Instead, a project is permissible if, after completion of the impact assessment and taking into account the best relevant scientific knowledge, i.e., after exhausting all scientific means and sources, no reasonable doubt remains that significant adverse effects will be avoided. The assessment may not have lacunae and must contain complete, precise and definitive findings. In as far as uncertainties regarding cause-effect relationships cannot be eliminated even when the relevant means of knowledge have been exhausted, it is permissible to work with forecast probabilities and estimates, which must be identified and justified. The protective and compensatory measures planned by the project developer or ordered by the planning approval authority may be taken into account in favour of the project, provided that they ensure that significant adverse effects are prevented (see CJEU, judgments of 14 January 2016 - C-399/14 [ECLI:EU:C:2016:10] - (...) para. 49 et seq. and of 26 April 2017 - C-142/16 [ECLI:EU:C:2017:301] - (...) para. 57; BVerwG, judgments of 28 March 2013 - 9 A 22.11 - BVerwGE 146, 145 para. 41, of 3 May 2013 - 9 A 16.12 - BVerwGE 146, 254 para. 28, and of 23 April 2014 - 9 A 25.12 - BVerwGE 149, 289 para. 48).

365 Based on this, both the claimants' criticism that reaches beyond the individual sites (a) and their objections with regard to the omitted (b) and conducted impact assessments (c to j) do not lead to any unlawfulness of the contested planning approval decision. The question of a possible remedy of any errors and their lack of causality for the property being affected can therefore be left undecided.

367 a) The claimants' criticism that reaches beyond the individual sites is unfounded. Neither the project developers nor the planning approval authority committed any methodological errors (aa), nor were impact factors impermissibly disregarded or singled out too early (bb).

368 aa) The assessment of the compatibility of the project with the site (Gebietsverträglichkeit) does not suffer from any methodological errors.

369 (1) The objection that the planning approval decision considers temporary adverse effects without a definition of "temporary" and without further examination of the conservation objectives or the protective purpose to be basically irrelevant, but that the technical assessment of the specific case should not be replaced by a blanket reference to the temporary effect, is unfounded. The section (...) complained about by the claimants makes it clear that the assessment is not based on an exclusively temporal consideration, but that it is linked to the habitat type and the (non-)lasting weakening of the regeneration potential, for which not only the duration, but also the sensitivity of the habitat and the intensity of the impact are decisive. The fact that the natural regeneration capacity of the affected habitat type is also of significance for the relevance of temporary disturbances under site protection law is also in line with established jurisprudence of the Federal Administrative Court (BVerwG, judgment of 17 January 2007 - 9 A 20.05 - BVerwGE 128.1, para. 48) as well as the recommendations of the Lambrecht/Trautner expert convention (Expert Information System and Expert Conventions for the Determination of Significance within the Habitats Directive Assessment, Final Report on the Expert Conventions Part, final version as of June 2007 (Fachinformationssystem und Fachkonventionen zur Bestimmung der Erheblichkeit im Rahmen der FFH-VP, Endbericht zum Teil Fachkonventionen, Schlussstand Juni 2007), p. 27, 67). In this respect, linking the thresholds for reactions and burdens (Reaktions- und Belastungsschwellen) to the natural suspended sediment concentration and sedimentation in principle ensures sufficient consideration of the conservation objectives and protective purposes.

370 (2) Furthermore, the claimants' objections to the thresholds for reactions and burdens (hereinafter threshold values) on which the impact assessment is based are unfounded.

371 The application of technically justified threshold values and de minimis limits that are not based on a weighing of interests but - as in the present case - relate to the practical measurability and/or verifiability of impacts is legally permissible (see BVerwG, judgment of 12 June 2019 - 9 A 2.18 - BVerwGE 166, 1 para. 144). However, in order to assess the significance of possible impacts, the impact assessment, including the preliminary assessment, does not refer to the recognised Lambrecht/Trautner expert convention, but uses its own assessment methodology with a detailed justification. This is based on several years of time series from the Fehmarn Belt and Öresund, on data from literature and expert knowledge, and specifies thresholds for reactions and burdens dependent on the duration and quantity of the suspended sediment load/sedimentation. Based, in particular, on natural biomass variability and sedimentation, the lower threshold for reactions and burdens regarding adverse effects on the benthic flora by suspended sediments is a biomass reduction of up to 10% and by sedimentation a sedimentation layer of up to 2 mm with a residence time of nine days, and for adverse effects on the benthic fauna by suspended sediments an exposure time of up to six days or a concentration of up to 10 mg/l and by sedimentation a height of 3 mm.

372 (a) The claimants wrongly complain that the impact assessment was not based on the Lambrecht/Trautner expert convention, but on the project developers' own threshold values.

373 Within the framework of judicial review, which is limited to a plausibility check, the method chosen in the present case does not raise any legal concerns. The orientation values proposed in the Lambrecht/Trautner convention were developed with broad participation of the expert community. Therefore, the convention, although it cannot claim normative validity, must be applied as a rule (see BVerwG, judgment of 23 April 2014 - 9 A 25.12 - BVerwGE 149, 289 para. 66 with further references). In the present case, however, a deviation from this is justified by the fact that the convention specifically deals with adverse effects caused by direct land deprivation (...), whereas this case centres around temporary adverse effects caused by the swirling up of sediments. It is true that their proposals can also be applied to other impact factors associated with areal impacts on habitat types or species. However, a prerequisite for this is that the respective intensity of the impact factor can be scaled, i.e., converted into (proportional) area losses (...).

374 The claimants' objection that the impacts due to suspended sediments and sedimentation could be scaled does not compel the application of the expert convention. As an example of scalable impact factors, the expert convention names regular dredging operations that lead to gradual functional losses in the area of a habitat type that can be converted into area shares (...). However, dredging operations do not take place regularly in this case; their impact on the area is therefore only temporary. The technical information system of the Federal Agency for Nature Conservation (BfN, Bundesamt für Naturschutz) on the assessment of the implications for a site under the Habitats Directive (FFH-VP-Info, Fachinformationssystem des Bundesamtes für Naturschutz zur FFH-Verträglichkeitsprüfung) also points out that the orientation values were designed for complete and/or permanent habitat losses; for gradual reductions in function, either independent assessment approaches must be developed or the losses in function must be balanced as a (possible percentage) reduction in function and set in relation to the orientation values of the convention proposals (see BfN, FFH-VP-Info, LRT 3110, 6410, chapter 5 in each case). The fact that the statements refer to other habitat types does not prevent them from being taken into account since they are formulated in general terms. Accordingly, if in fact no typical case exists, the derivation of independent assessment approaches is well justifiable (see BVerwG, judgment of 28 March 2013 - 9 A 22.11 - BVerwGE 146, 145 para. 84).

375 Consequently, if the decision not to apply the expert convention does not contradict the requirement to use the best relevant scientific knowledge as the basis for the impact assessment, the claimants' further objection that the defendant used an incorrect standard as the basis for its approval and, in particular, did not obtain the certainty that the plan would not have a lasting adverse effect, is also unfounded.

376 (b) The complaints raised against the thresholds for reactions and burdens also fail.

393 (5) The objections raised against the examination of characteristic species are also unfounded.

394 The conservation objectives relevant to the assessment of the compatibility of the project with the site pursuant to section 34 (1) BNatSchG must be determined by evaluating the standard data sheets describing the features of the site which, from a national perspective, have significant ecological importance for the objective of conserving natural habitats and species. According to this, the impact assessment must include the species expressly named in the site notification as well as the species characteristically occurring in the habitat types identified as conservation objectives. Characteristic species are those flora and fauna species that characterise the specific features of a habitat and its favourable conservation status in a given area rather than just a habitat type in general. However, not all species characteristic of the biotic community of a habitat can be examined within the framework of the impact assessment. Instead, only those species should be selected whose occurrence clearly focuses on the respective habitat type or whose population conservation is directly linked to the conservation of the respective habitat type. The species must also be relevant for the identification and assessment of adverse effects, i.e., species must be selected that have an indicator function for potential impacts of the project on the habitat type and whose degree of being affected is not adequately covered by the assessment of the habitat as a whole (see BVerwG, judgments of 6 November 2012 - 9 A 17.11 - BVerwGE 145, 40 para. 52 et seq., of 6 November 2013 - 9 A 14.12 - BVerwGE 148, 373 para. 54, and of 10 November 2016 - 9 A 18.15 - (...) para. 64 et seq.).

395 As preconditions for this, the characteristic species (1.) must have a meaningful sensitivity to the impacts caused by the plan/project, they (2.) provide additional information that cannot be obtained from the assessment of the vegetation structures and site parameters to be carried out anyway, and (3.) the species-related state of knowledge of ecological requirements and the range of reactions of the species in relation to the impact factor is sufficiently scientifically secured for a corresponding assessment of adverse effects (...). According to this, the characteristic species to be considered in the impact assessment are reduced to a low level (...).

396 Based on these scientifically recognised standards, the planning approval decision rightly came to the conclusion that there are no reasons for objection to the assessment of the characteristic species (...). The objection that the defendant had failed to recognise the connection between the adverse effects on the species concerned and the adverse effects on the habitat and hence uses an incorrect standard as the basis for its assessment is rooted in an abbreviated reproduction of the above statements and is therefore unfounded. Furthermore, the claimants wrongly complain that the standards for deriving the characteristic species are erroneous because, contrary to the assumption of the planning approval authority, these do not have to have a "specific sensitivity" for the project-related impact processes that go beyond the sensitivity of the affected species community, and because the assumption that knowledge of the ecological requirements of the characteristic species must be sufficiently scientifically secured leads to the fact that remaining uncertainties are not to the detriment of the project but of the environment. In this respect, the planning approval decision is based on standards and methods that are generally accepted in the relevant expert circles and the relevant scientific community, which are reflected in the guidelines cited above and are therefore also of particular importance for the legal assessment (see BVerfG, decision of 23 October 2018 - 1 BvR 2523/13 et al. - BVerfGE 149, 407, para. 17 et seqq.) For example, the assessment of the implications for the "Fehmarn Belt" (Fehmarnbelt) area under the Habitats Directive shows in detail which characteristic species occur there and why these, due to their lack of indicator function, were not to be included in the assessment of project-related adverse effects on the habitat (...). With regard to further species named by the claimants, the summoned third party's experts also explained why these further species, based on the aforementioned criteria, do not have an indicator function (...).

397 In as far as relevance for assessment is denied in accordance with the guidelines on the grounds that there is no reliable scientific knowledge of the species-related consequences of project-related impacts, this does not, contrary to the general legal standards, lead to uncertainties to the detriment of the environment instead of the project. The impact assessment is not to be based on "zero risk", but on the question as to whether, based on the best relevant scientific knowledge obtained by using all scientific means and sources, there is no reasonable doubt from a scientific point of view that significant adverse effects will be avoided (see CJEU, judgment of 7 September 2004 - C-127/02 [ECLI:EU:C:2004:482] - para. 54 et seqq.; BVerwG, judgment of 12 March 2008 - 9 A 3.06 - BVerwGE 130, 299 para. 94). It is true that proof of the harmlessness of a project fails if the scientific knowledge is not sufficient to rule out any reasonable doubt (BVerwG, judgment of 17 January 2007 - 9 A 20.05 - BVerwGE 128, 1 para. 64). However, such doubts or uncertainties do not exist solely because, in the absence of sufficient scientific knowledge, it cannot be determined whether certain characteristic species have an indicator function. This is because purely theoretical concerns do not constitute a basis for the assumption of significant adverse effects (BVerwG, judgment of 17 January 2007 - 9 A 20.05 - BVerwGE 128, 1 para. 60). In this respect, it must be considered here that knowledge is already available that allows an assessment of the impacts on the protected habitat types. It is therefore only questionable whether further sources of knowledge exist in the form of characteristic species that might lead to a different assessment. Investigations into the blue are not required (see BVerwG, decision of 13 March 2008 - 9 VR 9.07 - (...) para. 31; (...)). Where insufficient scientific knowledge exists with regard to ecological requirements and the range of reactions of individual species in relation to the impact factor for an assessment of adverse effects, project developers are therefore not required to determine these by means of a research project.

398 (6) Also unfounded are the claimants' objections that impacts on Annex II species, characteristic species of the habitat types and bird species outside the area of conservation were wrongly disregarded.

399 The protection regime of section 34 BNatSchG, article 6 of the Habitats Directive is basically limited in size to the area of conservation that is located within its administrative boundaries. Section 34 (2) BNatSchG prohibits significant adverse effects on the area of conservation in its components relevant to the conservation objectives or the protective purpose, irrespective of whether the project is located within the area or at a distance from it; the applicability of the requirements of article 6 (3) of the Habitats Directive does not depend on this either. However, the prohibition only applies if the project adversely effects the protected area as such. This can be the case if impacts of the project, in particular, emissions, extend directly into the area. However, a legally relevant causal link may also exist if the accessibility of the area for species that are protected components of a site under the Habitats Directive is disturbed, for example, by impacts on migration corridors, if ecological relationship structures between the site's boundary and buffer zones and the areas adjacent to the site or the flora and fauna species found there, and if functional relationships between areas of conservation are adversely affected. A complete barrier effect is not a prerequisite in this respect. Adverse effects on characteristic species therefore also have a role to play if they are exposed to such adverse effects outside a site under the Habitats Directive in as far as such impacts are likely to adversely affect the site's conservation objectives. However, the protective purpose does not include areas outside the site which are used by the resident populations of protected animal species to search for food; if they are absolutely dependent on the feeding habitats in question in order to remain in a favourable conservation status, the site is typically incorrectly delimited and must be extended to include the feeding habitats (see CJEU, judgments of 26 April 2017 - C-142/16 - (...) para. 29, 33 et seq. and of 7 November 2018 - C-461/17 [ECLI:EU:C:2018:883] - para. 35 et seq.; Advocate General Kokott, opinion of 7 August 2018 - C-461/17 [ECLI:EU:C:2018:649] - para. 45 et seqq.; BVerwG, judgments of 17 January 2007 - 9 A 20.05 - BVerwGE 128, 1 para. 36, 77, of 14 April 2010 - 9 A 5.08 - BVerwGE 136, 291 para. 32 et seq., of 21 January 2016 - 4 A 5.14 - BVerwGE 154, 73 para. 132, and of 29 May 2018 - 7 C 18.17 - (...) para. 37 et seqq.).

400 However, as will be explained later, such adverse effects are not discernible, neither with regard to bird migration nor with regard to porpoises or seals. (...)

401 bb) The impact assessment did not wrongly disregard or prematurely single out any impact factors.

407 (2) Also unfounded is the objection that the operational environmental effects of the additional traffic induced by the FBFL in the southern subsequent sections should have been examined in this case and should not have been referred to the procedures for the hinterland connection. The complaint that construction-related impacts of a new construction of the Fehmarn Sound crossing should have been taken into account is also unsuccessful.

408 Pursuant to section 34 (1) first sentence BNatSchG, projects shall also be assessed, if they, either individually or in combination with other projects or plans, have the potential to adversely affect the protected areas significantly. In this respect, the claimants do not complain that direct, but rather indirect adverse effects on the section for which planning approval has been granted were not examined. The need for conflict management in planning is not limited to the immediate vicinity of the project, but can also cover its indirect (long-distance) impacts that can be adequately attributed to it, whereby the determination of such a causal connection is generally limited to a narrower area in the case of the road network than in the case of the rail network. However, the planning authority is not necessarily obliged to already solve within the framework of the planning approval procedure for the construction section in dispute any problems that will not arise until completion of further construction sections or the entire hinterland connection. There is no legal principle according to which conflicts that arise outside the direct sphere of action of the project at another location due to interaction of several projects must always already be assigned to the first project and already be managed in this context (BVerwG, judgment of 11 July 2019 - 9 A 13.18 - BVerwGE 166, 132 para. 127).

409 In the case of an overall project subdivided into several planning sections, it should rather be assumed that the (long-distance) impacts of the expansion on the subsequent planning section merge with the direct impacts arising from the expansion there and only have to be addressed in the related planning approval. In this (standard) case, the authority is only obliged to account, in the manner of a preliminary positive overall decision, for whether the adverse effects on a site under the Habitats Directive that is located outside, which the transport route planned in sections as such causes in its entirety, can probably be overcome during the implementation of further sections (BVerwG, judgments of 17 March 2005 - 4 A 18.04 - BVerwGE 123, 152 <157>, of 21 November 2013 - 7 A 28.12 - (...) para. 20 et seqq., and of 11 July 2019 - 9 A 13.18 - BVerwGE 166, 132 para. 127 et seq.; decision of 8 March 2018 - 9 B 25.17 - (...) para. 8 et seq.).

410 The situation would only be different if conflict management cannot be postponed to the decision on the following section. On the one hand, this can be the case if the overall project ends with the section now planned and there is no subsequent planning at all. On the other hand, irrespective of planned follow-up planning, reference to the then arising possibility of conflict management may be insufficient due to the temporal circumstances (see BVerwG, judgment of 21 November 2013 - 7 A 28.12 - (...) para. 26).

411 The planning approval decision has taken this into account. It initially denied significant additional traffic on the Fehmarn Sound bridge on the grounds - contradictory to the planning justification - that a significant share of traffic on the FBFL was accounted for by Danish shopping traffic and holidaymakers who did not leave the island of Fehmarn. Then, however, irrespective of this and with reference to the environmental reports of the planning approval procedure for the expansion of the B 207, it states that even taking into account future additional traffic, the areas of conservation will not be adversely affected by nitrogen or noise emissions (...). This satisfies the requirements for a preliminary positive overall decision.

412 Furthermore, the defendant was not obliged to take into account, as a precautionary measure, the case of no expansion of the subsequent sections - for example, because no planning approval will be issued or because it will be annulled in court proceedings - and the additional traffic caused by the FBFL will be directed via the existing network without any examination of its impacts on areas of conservation located further south. Apart from the fact that this possibility can never be ruled out in the case of sectional planning and that the aforementioned principles would therefore never be applied if this objection were well-founded, a planning approval decision - albeit not yet legally binding - already exists for the expansion of the B 207, which has examined the environmental effects there on the basis of the increased traffic caused by the FBFL. Furthermore, the so-called hinterland connection is not only included in the expansion plans under railway and road law, but the Federal Republic of Germany is obliged to expand it on the basis of the State Treaty with Denmark. Moreover, with condition 2.1 no. 1 (...), the defendant limited the use of the railway line for long-distance freight transport until complete implementation of the rail hinterland connection to the extent that was permissible until discontinuation of freight transport via the ferry route in 1998.

413 Finally, the contested planning approval decision did not have to take into account any cumulative effects of a new construction of the Fehmarn Sound crossing. Other plans and projects are only to be integrated into the impact assessment under section 34 (1) first sentence BNatSchG if their impact can be predicted reliably. As a matter of principle, this is only the case when the necessary approval decisions have been issued (established jurisprudence, see BVerwG, judgment of 15 May 2019 - 7 C 27.17 - BVerwGE 165, 340 LS 1 and para. 19 et seqq.). When the contested planning approval decision was issued, no approval existed for the construction of a new Fehmarn Sound crossing. The fact that this is an inevitable consequence of the construction of the FBFL does not lead to a different assessment. Instead, in the case of sectional planning, the individual sections are as a rule interdependent. In the present case, it should be added that a large number of variants with a wide range of environmental effects could be considered for the renewal of the Fehmarn Sound crossing, so that a cumulative assessment was also impossible in substance.

471 d) The impact assessment of the site under the Habitats Directive DE 1631-392 "Marine area of the eastern Bay of Kiel" (Meeresgebiet der östlichen Kieler Bucht) shows no errors.

472 aa) In particular, the site did not have to be extended in an easterly direction to include the marine area between the above-mentioned site and the site under the Habitats Directive DE 1533-301 "Staberhuk", which is crossed by the tunnel route, because of the reefs and porpoise stocks to be protected there. The prerequisites for a mandatory designation of a site do not exist in this respect, so that it can be left open whether - with regard to which the claimants in the present case and the claimants in the BVerwG 9 A 7.19 and 9 A 9.19 proceedings have not conclusively and/or concurrently expressed their opinion - an extension of the "Staberhuk" site or designation as an independent site could be considered as an alternative option.

473 The standards for site delimitation are derived from article 4 (1) in conjunction with Annex III Stage 1 of the Habitats Directive. This regulation is to be applied not only for the identification of sites under the Habitats Directive, but also for their specific delimitation. Only the nature conservation criteria listed in Annex III Stage 1 are relevant; considerations based on social or economic interests are not permissible. With regard to the application of the criteria, the competent authorities are granted a margin of appreciation in terms of nature conservation. A site notification is only mandatory if and in as far as the areas in question undoubtedly feature the ecological quality required by the Habitats Directive. Such parts of a site may not be left out, not even with regard to a specific project. Should need for adjustment arise, this must then be taken into account in the planning approval decision. After the EU Commission's decision on site listing, however, there is a factual presumption in favour of the correctness of the site delimitation. Objections to this require particular substantiation; they must be suitable to refute the presumption (established jurisprudence, see BVerwG, judgments of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 99, and of 27 November 2018 - 9 A 8.17 - BVerwGE 163, 380 para. 67).

474 The route area off Puttgarden did not have to be designated as an area of conservation and thus considered to be a potential site under the Habitats Directive, even taking into account the reef occurrences mapped there after completion of the planning approval procedure as part of a research project by Kiel University (hereinafter CAU). It can be left open whether there is a general deficiency in the designation of areas of conservation for the German Baltic Sea. Even if this were the case, this would not imply a need to designate the area in dispute as a site under the Habitats Directive. Not every suitable site must be notified as a site under the Habitats Directive. Current mapping shows large reef occurrences south and west of Fehmarn as well as in the western Baltic Sea (...). The habitat types located west of Fehmarn are largely, but not entirely, within the site under the Habitats Directive DE 1631-392 "Marine area of the eastern Bay of Kiel" (see Landtag printed paper (LT-Drs., Landtagsdrucksache) 18/3033 p. 34). Only individual reef occurrences are mapped to the east of this. Although their extent increases off the east coast, they lag behind the reefs south of Fehmarn, which are only covered to a much lesser extent by the sites under the Habitats Directive DE 1533-301 "Staberhuk" and DE 1733-301 "Sagas bank" (Sagas-Bank). As far as the northern extension of the "Staberhuk" site is concerned, the defendant and the summoned third party have comprehensibly explained its delimitation in the oral hearing. According to this, the site was designated as an area of conservation not only because of reef and porpoise occurrences, but also, in particular, because of habitat type 1220 "Perennial vegetation of stony banks" (Mehrjährige Vegetation der Kiesstrände) and 1230 "Vegetated sea cliffs of the Atlantic and Baltic coasts" (Atlantik-Felsküsten und Ostsee-Fels- und -Steilküsten mit Vegetation) which do not continue north of the area.

475 In view of this and the prior pollution of the marine area off Puttgarden by the claimants' ferry service, there are no sufficient indications that the federal state exceeded its margin of appreciation in terms of nature conservation by refraining from designating the aforementioned marine area, for example, because of deliberately keeping the FBFL route corridor free. The factual presumption for the correctness of the site delimitation is not refuted thereby.

476 bb) The claimants' further points of criticism are unfounded.

490 i) The impact assessment for the special protection area under the Birds Directive DE 1530-491 "Eastern Bay of Kiel" (Östliche Kieler Bucht) is also lawful.

493 cc) The planning approval decision (...) legitimately based its assessment of significance on the criterion of whether more than 1% of the population of the respective valuable bird species would be adversely affected by the project (1). The use of space and the stock figures were also taken into account without error (2).

494 (1) The favourable conservation status of an animal or plant species covered by the conservation objective of the site under the Habitats Directive reflects its range and population size; a decline in quality of either of these parameters must be avoided in the long term. Stress factors emanating from a project may under no circumstances disturb the species-specific population dynamics to such an extent that the species no longer forms, and in the long term will continue to form, a viable element of the natural range to which it belongs (article 1 (i) Habitats Directive). The threshold for reactions and burdens thus described may, however, allow certain impacts, taking into account the specific circumstances of the individual case, for instance, if animal species can be shown not to be disturbed by the stress factors in question, if not every loss of a local occurrence or territory necessarily leads to deterioration of the conservation status due to their site dynamics, or if it can be safely assumed that the population will only decline for a short period of time (see BVerwG, judgment of 17 January 2007 - 9 A 20.05 - BVerwGE 128, 1 para. 45).

495 The application of technically justified thresholds and de minimis limits, i.e., not based on a weighing of interests, does not raise any fundamental objections in this respect (see BVerwG, judgment of 11 July 2019 - 9 A 13.18 - (...) para. 144). A starting point for this can be the species-specific determination of the extent of impacts up to which the individual species shows no reaction at all or is able to compensate for adverse effects on its occurrence in the area in a timely manner within the framework of its natural regenerative capacity. Generalisation is also permissible, both with regard to immissions (for example, through the cut-off criterion and the de minimis threshold for nitrogen inputs) and their impacts on the conservation objective. For example, the Lambrecht/Trautner expert convention specifies an orientation value of 1% of the area as a de minimis threshold for a significant loss of area. Based on this, the present impact assessment assumes that a temporary displacement of 1% of the population present in the area does not exceed the threshold of significance.

496 The lack of applicability of the Lambrecht/Trautner expert convention does not preclude this. The 1% value is a generally accepted reference value in nature conservation practice (...). For example, it defines the Ramsar value for determining sites of European importance for waterbird species or determines the threshold value of impermissible adverse effects for losses from a population biology perspective (...). Based on this, it marks the limit in legal terms when bird species are (only) affected in small numbers for the purposes of a permissible derogation from the hunting restrictions under article 7 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ L 103 p. 1 - Birds Directive) in accordance with its article 9 (1) (see CJEU, judgment of 15 December 2005 - C-344/03 [ECLI:EU:C:2005:770] - para. 53 et seq.). Therefore, it can in principle also be used as a basis for assessing significance (see BVerwG, judgment of 9 February 2017 - 7 A 2.15 - (...) para. 295, 298). This applies all the more in the present case as it is only a question of a temporary displacement of the affected species.

503 10. The claimants cannot successfully claim the breach of provisions of species protection law.

504 Claimant no. 3, whose property is not affected, lacks the right to complain in this respect. Claimants no. 1 and no. 2, who are affected by expropriation, are entitled to a judicial review of the application of the species protection law provisions in as far as the asserted error is causal for the use of their properties (see BVerwG, decision of 27 November 2018 - 9 A 10.17 - (...) para. 60).

531 cc) The planning approval decision does not breach the prohibition of disturbance under species protection law pursuant to section 44 (1) no. 2 BNatSchG.

532 (1) The examinations in this regard are not based on erroneous standards.

533 (a) The objection that the planning approval authority wrongly measured the risk of starvation for resting birds due to food deprivation only against the prohibition of disturbance instead of the prohibition of killing does not lead to an error because there is no risk of starvation for resting birds in the present case. Furthermore, in view of the actions listed therein (catching, injuring, killing), the provision of section 44 (1) no. 1 BNatSchG only prohibits direct access to specially protected wild animal species by directly attacking their physical integrity. In contrast, mere changes to the habitat, such as a loss of feeding habitats, are not covered due to the lack of direct access (see OVG Koblenz, judgment of 14 October 2014 - 8 C 10233/14 - (...) para. 66; (...)). The fact that the act of killing is also fulfilled if the killing proves to be an inevitable consequence of otherwise lawful administrative action (see BVerwG, judgment of 9 July 2008 - 9 A 14.07 - BVerwGE 131, 274 para. 91 with further references) does not contradict this. The passage in the grounds of the judgment referred to by the claimants concerned the question as to whether lawful action precluded a violation of the prohibition of killing. The Federal Administrative Court answered this question in the negative in relation to collisions with motor vehicles and thus also direct acts of killing.

584 Planning thus takes into account current scientific knowledge on direct and indirect adverse effects on bats by artificial lighting, according to which UV and/or cold light with components from the blue part of the light spectrum and broad radiation has a particularly negative effect. Although it is almost impossible to completely eliminate undesirable light effects, LEDs do not typically emit UV light, warm light reduces both the attraction effect on insects and the deterrent effect on light-shy bat species, and shielded luminaires take into account both safety requirements and bat protection (see to the aforementioned EUROBATS, Guidelines for consideration of bats in lighting projects (Leitfaden für die Berücksichtigung von Fledermäusen bei Beleuchtungsprojekten), 2019, p. 41 et seqq.). The claimants' experts also point out that the attraction effect can be reduced by up to 85% through appropriate lighting design (Guidelines, see above; Annex K 116 p. 54). LEDs with 3,000 K have been shown in studies to be the most ecologically compatible artificial lighting (see Huemer et al., Attracting Effect of Modern Artificial Lighting on Nocturnal Insects (Anlockwirkung moderner Leuchtmittel auf nachtaktive Insekten), 2011, 111; Eisenbeis et al., Nature and Landscape (Natur und Landschaft) 2011, 298).

594 11. The claimants wrongly complain that the rules on the authorisation of interventions and consequences of interventions were not adequately considered.

595 a) In this respect, not only claimant no. 3, but also quite predominantly claimants no. 1 and no. 2 have no right to complain since a large part of the errors asserted do not affect the use of the claimants' properties. This is because the triad of "avoidance - compensation/replacement - monetary compensation" (section 15 BNatSchG) under the law on the authorisation of interventions does not in principle lead to impermissibility of the measure, but instead determines its (framework) conditions in the sense of a sequence of stages: If intervention is unavoidable, it must be compensated for and/or replacement must be provided; if adverse effects cannot be compensated for or replacement cannot be provided, monetary compensation must be paid. Objections to compensation and replacement measures as well as the amount or the recipient of the compensation money do not lead to the impossibility of the project since adverse effects must either be compensated for or replaced by other measures or a (correspondingly higher) compensation sum must be paid for them and/or another recipient must be determined for it. Also with regard to deficiencies in investigations by the authorities that are complained about in relation to these points, the right to complain is typically not applicable due to a lack of causality since such deficiencies do not affect the routing (see BVerwG, decision of 27 November 2018 - 9 A 10.17 - (...) para. 62).

597 However, the right to complain is not ruled out from the outset for the objection that, with regard to adverse effects which cannot be avoided or which cannot be compensated for or for which replacement cannot be provided, the interests of nature conservation and landscape management take precedence over other interests in the weighing of all the requirements for nature and landscape (section 15 (5) BNatSchG). This is because they are capable of bringing down planning as a whole (see BVerwG, judgment of 28 February 1996 - 4 A 27.95 - (...)).

598 Furthermore, a person affected by expropriation may have the right to complain that adverse effects are avoidable (section 15 (1) first and second sentence BNatSchG), if such effect - and hence also its avoidance - directly affects such person's property. However, the avoidance requirement does not demand any measures that necessitate another project, but is directed solely at the on-site design of the project submitted for approval. The version of the Federal Nature Conservation Act in effect since 1 March 2010 already expresses this in its wording ("at the same place") in section 15 (1) second sentence (BT-Drs. 16/12274 p. 57). Contrary to the claimants' assumption, the legislative concern is not solely related to the location. Instead, the legislature has sufficiently stated that another project is not an alternative within the meaning of section 15 (1) second sentence BNatSchG. However, the different nature of a project may result not only from its spatial location, but also from its technical design. Accordingly, the bored tunnel, which the claimants consider to be preferable, is not an alternative to the immersed tunnel at the same site for which planning approval has been granted in the sense of a mere technical design variant with minor spatial deviations, but a different project. However, avoidance measures that wholly or only partially require another project must be examined exclusively within the framework of weighing under general sectoral planning law. Accordingly, the avoidance requirement does not force the planning approval authority to choose the ecologically most favourable planning alternative (see BVerwG, judgments of 14 July 2011 - 9 A 12.10 - BVerwGE 140, 149 para. 154, of 16 December 2004 - 4 A 11.04 - (...), of 19 March 2003 - 9 A 33.02 - (...) and of 7 March 1997 - 4 C 10.96 - BVerwGE 104, 144 <150 et seq.>; BT-Drs. 16/12274 p. 57; (...)).

599 b) In as far as the claimants complain about the dimensioning of the investigation area of the accompanying plan for landscape management, they neither explain nor is it evident how its enlargement could have had a favourable effect on their being affected by expropriation. Their main objection that the investigation area should not be delimited in advance on the basis of the significance of potentially adverse effects since these would first have to be determined in the investigation under the law on the authorisation of interventions ignores the fact that a very detailed environmental impact study was already available here, on the basis of which it was possible to determine the impacts of the project and hence the investigation area. This procedure corresponds to common practice (see, for instance, the Joint Decree of the Ministry of Economic Affairs, Employment and Transport of the Federal State of Schleswig-Holstein and the Ministry of the Environment, Nature Conservation and Forestry of the Federal State of Schleswig-Holstein, Orientation Framework for Stocktaking, Assessment and Determination of Compensation Measures within the Context of Accompanying Planning for Landscape Management concerning Road Construction Measures (Gemeinsamer Erlass des Ministeriums für Wirtschaft, Arbeit und Verkehr des Landes Schleswig-Holstein und des Ministeriums für Umwelt, Naturschutz und Forsten des Landes Schleswig-Holstein, Orientierungsrahmen zur Bestandserfassung, -bewertung und Ermittlung der Kompensationsmaßnahmen im Rahmen landschaftspflegerischer Begleitplanung für Straßenbauvorhaben), 2004, p. 2). In as far as the claimants complain in this context that the investigation area did not sufficiently encompass the affected biotopes, the existence of further reefs would not render the project impermissible, but would at most entail further compensation/replacement measures within the framework of subsequent balancing (...) and thus leave the use of the claimants' properties unaffected.

600 c) The claimants further complain that the impacts of the project beyond the German state border were not taken into account.

601 Even if, in principle, a conflict which the planning authority finds or causes or exacerbates through its planning may not remain unresolved (see BVerwG, judgment of 10 November 2016 - 9 A 18.15 - BVerwGE 156, 215, para. 120 et seq.), the claimants' objection proves to be incorrect in substance. It can therefore be left open whether the assumption of the defendant and the summoned third party can be followed that, due to the restriction of the scope of application of the Federal Nature Conservation Act and hence also of the rules on the authorisation of interferences to German territory and the German EEZ, such consequences do not have to be taken into account from the outset.

602 The impacts of the construction of both halves of the tunnel were also considered in part on a cross-border basis. This applies, for example, to marine mammals, bird migration, breeding waterbirds, resting birds and fish fauna; with regard to the determination of interventions, however, the aim was to relate the statements to German territory and the EEZ (...). This is unproblematic because in articles 3 (2), 13 (3), (4) of the State Treaty Denmark and Germany have agreed that approval of each tunnel half is determined solely by the respective national law. If interventions on the German and Danish side are processed regardless of where they were caused (...), the Contracting States not only take into account the fact that an exact distribution of causation contributions is extremely difficult, if not impossible. Instead, this concordant practice affects the interpretation of the Treaty when it is applied (see BVerwG, judgment of 29 April 2009 - 6 C 16.08 - BVerwGE 134, 1 para. 47). The aforementioned provisions must hence be interpreted in a way that each Contracting State is responsible for the consequences of the joint project affecting its area of responsibility, irrespective of whether they were caused by the construction of such state's half of the tunnel. This ensures that all project-related conflicts are managed.

608 12. The planning approval decision also does not contradict nature conservation law from a biotope protection perspective.

609 Pursuant to section 30 (1) BNatSchG, certain nature and landscape parts that have special significance as biotopes are protected by law. Actions that may lead to destruction or other significant adverse effects on biotopes listed in detail are prohibited under section 30 (2) first sentence BNatSchG. The term "biotope" is defined in section 7 (2) no. 4 BNatSchG as the habitat of a biotic community of wild animals and plants. If a biotope is subject to legal protection under section 30 (1) and (2) BNatSchG, on application an exception from the prohibitions in subsection (2) may be granted under section 30 (3) BNatSchG if compensation for the adverse effects is possible.

610 Under 2.3.2.2 (...), the planning approval decision grants an exemption from the prohibition of destruction with regard to certain biotope types, but not for reefs. In this respect, the planning approval decision assumes that these are subject to national biotope protection in addition to site protection pursuant to section 30 (2) no. 6 BNatSchG (...), but denies their significant adverse effect (...); in particular, there would be no permanent loss of biotopes (...). In this respect, the project developers and the defendant neither failed to recognise that biotopes within sites under the Habitats Directive are protected irrespective of whether they represent a habitat type under the Habitats Directive, nor that their protection also exists outside sites under the Habitats Directive. Instead, the accompanying plan for landscape management (...) identifies them as biotopes protected under section 30 BNatSchG, irrespective of their location and whether they correspond to a habitat type under the Habitats Directive. In as far as the planning approval decision (...) gives the impression that only habitat type areas were considered to be protected biotopes, this wording is misleading. What was meant was that habitat type and biotope mapping were based on identical definitions of the terms "reefs", "sandbanks", etc. (...). Biotopes have also not been disregarded because they do not represent habitat types under the Habitats Directive; for example, the macrophyte stocks as well as gravel, coarse sand and coquina beds mentioned by the claimants were also taken into account (...).

611 In other respects too, the planning approval decision stands up to judicial review in terms of biotope protection law. This is particularly true with regard to the reefs present in the Fehmarn Belt. On the basis of comprehensive, correct stocktaking (a), the planning approval decision correctly denies significant adverse effects and proves to be lawful even taking into account subsequent mapping (b). Nevertheless, the newly discovered biotopes must be taken into account within the framework of a supplementary procedure (c). Further objections by the claimants also remain unsuccessful (d).

612 a) Both the definition on which the biotope protection assessment is based (aa) and the methodology (bb) and scope (cc) of reef stocktaking prove to be correct.

613 aa) The project developers legitimately based reef mapping on a biotope concept that is not limited to (abiotic) physical habitats but includes biological communities.

614 (1) Neither the Federal Nature Conservation Act nor the Habitats Directive define the term "reef". However, in the Annex to the explanatory memorandum to the draft act on the reorganisation of the law on nature conservation and landscape management and on the adjustment of other legal provisions (BT-Drs. 14/6378 p. 70), the legislature described reefs as hard compact substrata of the sublittoral and littoral zone rising from the sea floor, which are often covered with large algae and mussels - and also with higher plants especially in the Baltic Sea. Included are both the rocky mud flats, reefs along the rocky coasts and reefs rising in the open sea. Reefs can then be built up from rocks, boulders or moraine weathering material, as well as being of biogenic origin (for instance, sabellaria reefs, natural mussel beds).

615 Another definition of habitat type 1170 (reefs), which for reasons of practicability can also be used for the concept of reefs in the context of biotope protection, is contained in the "Interpretation Manual of European Union Habitats" (hereinafter EU Interpretation Manual). According to this, reefs either consist of biogenic concretions or are of geogenic origin. These are hard compact substrata on solid and soft bottoms, which arise from the sea floor in the sublittoral and littoral zone. They may show zonations of benthic communities of algae and animal species as well as corallogenic and other aggregations. In this context, it is clarified among other explanations that the hard compact substrata must consist of boulders and cobbles typically measuring > 64 mm in diameter (...).

616 The experts of the summoned third party pointed out that the wording in the EU Interpretation Manual leaves open whether the word "may" refers merely to the fact of zonation or to the "freedom of choice" of a settlement as a whole; from the long list of characteristic species there and the emergence of the habitat types under the Habitats Directive in Annex I of the Habitats Directive from the biotopes described by the so-called CORINE project and defined there decisively via the biological communities (...) they conclude, however, that the biological benthic communities are decisive in the case of reefs and that not every accumulation of hard compact substrate counts as a reef.

617 (2) Accordingly, the definition of reefs requires nature conservation assessments to a large extent. Mapping carried out in 2009 and 2010 was based on the guidelines published by the Schleswig-Holstein Federal State Office for Agriculture, Environment and Rural Areas (LLUR, Schleswig-holsteinisches Landesamt für Landwirtschaft, Umwelt und ländliche Räume) titled "Mapping Guidance and Biotope Type Code for Biotope Mapping in Schleswig-Holstein" (Kartieranleitung und Biotoptypenschlüssel für die Biotopkartierung Schleswig-Holstein), on the information in the EU Interpretation Manual and, in particular, on the monitoring sheet for habitat types under the Habitats Directive jointly developed by the Federal Government and the governments of the coastal federal states (Joint Measuring Programme Marine Protection by the Federal Government and the governments of the federal states (Bund/Länder-Messprogramm Meeresschutz), 2012; see LT-Drs. 18/3033 Annex 2). The latter describes three classification levels: Level 1 (suspected areas; only rough information is available), level 2 (potential habitats under the Habitats Directive validated from a geological and hydrological perspective; high-resolution data sets from marine remote sensing are available; however, biological validation is still pending) and level 3 (habitats under the Habitats Directive validated geologically, hydrologically and biologically). The monitoring sheet also requires a core area of 0.05 ha populated with habitat-typical species growing there.

618 Accordingly, and based on the principles for the selection of methods and their judicial review described in more detail above, it is not objectionable if stocktaking was carried out within the scope of the nature conservation assessment and in accordance with the aforementioned guidelines according to level 3, i.e., including benthic habitats. The aforementioned guidelines represented the current and best standard. There are no indications for new, "better" ways of obtaining knowledge; in particular, there was no expert convention for mapping reefs that deviated from this and was recognised by all experts (with regard to such expert conventions, see BVerwG, judgment of 12 June 2019 - 9 A 2.18 - BVerwGE 166, 1 para. 64).

619 (3) It is true that the Federal Agency for Nature Conservation published a new mapping guidance on reefs in 2018 - and thus before the planning approval decision was issued - which refers to both habitat types under Annex I of the Habitats Directive and protected biotopes pursuant to section 30 (2) first sentence no. 6 BNatSchG and which, with regard to the specific requirements, differs significantly from the mapping guidance of the federal states so far available (...). According to the experts' statements during the oral hearing, this new guidance attaches greater importance to the hard compact substrata than to the benthic habitats. However, it did not have to be considered for the present project. Apart from the fact that its scope, which is limited to the EEZ, covers only part of the areas to be mapped here, it is based on an approval procedure in which "the investigation area to be mapped is relatively small" (...). This was not the case here, given the widespread sedimentation impacts and an investigation area measuring 300,000 ha. In this respect, the mapping guidance states that the mapping scale and effort specified therein are greater than for an area-wide stocktaking. Moreover, it explicitly does not question mapping completed on another basis (...). Even without such a "transitional provision", the Senate would also have reservations, for reasons of proportionality, as to whether a project developer can be required to continue a mapping, once started, using a completely different methodology. This is because comparability with data already collected would be called into question by such a change, thus leading to the risk of having to repeat the entire mapping. Furthermore, the publication of a new mapping guidance does not automatically mean that earlier guidances are not (or no longer) methodologically adequate.

620 In view of the fact that section 30 BNatSchG only covers actually existing biotopes, whereas site protection covers not only the conservation but also the restoration of a favourable conservation status of habitat types, it is also justified in substance that within the framework of the latter, greater importance is attached to the hard compact substrata, whereas mapping under biotope protection law includes its colonisation by benthic habitats.

621 bb) The stocktaking methodology also stands up to judicial review.

622 (1) Baseline stocktaking was conducted at classification level 3. The abiotic data of the area-spanning stocktaking (including side-scan sonar and multi beam echosounder scans as well as sediment soil samples) and the mapping results of the benthic flora and fauna communities were used for this purpose. The results of these biological mappings were available as point (sampling stations) or linear data (video transects). As it was not possible to sample the entire sea floor of the investigation area, the areal distribution of the biological communities was determined from the biological data with the help of modelling. The modelled distributions of the flora and fauna communities were used in a further step for the biological validation of the abiotic data in order to identify on this basis the benthic habitats, i.e., the biotopes. If allocation problems existed in overlaying the (abiotic) physical habitats with the (biological) benthic communities, the experts assigned greater priority to "the biological community prediction". They justified this with the above-mentioned definition of biotopes as the connection of biological communities with their abiotic environment; according to this definition, reefs require not only the abiotic hard compact substrata but also an associated reef-typical colonisation in order to be considered biotopes (...).

623 The findings obtained during this investigation were compared with an aerial mapping covering an area of 528 km2 (including 146 km2 in Germany), as well as with existing data (historical data, results from other projects, aerial photographs), as far as this seemed reasonable because of the different methodology in each case (...). As a result, the experts assigned - in relation to the entire investigation area, including Denmark - approximately 138 km2 to habitat type 1110 "Sandbanks" (Sandbänke), approximately 20 km2 to habitat type 1140 "Mudflats and sandflats not covered by seawater at low tide" (Sand-, Schlick- und Mischwatt), approximately 413 km2 to habitat type 1160 "Large shallow inlets and bays" (flache große Meeresarme und -buchten) and approximately 778 km2 to habitat type 1170 "Reefs" (Riffe), in each case under the Habitats Directive. Compared to the previously identified reef areas, the current mapping on the German side revealed a somewhat larger area for both the EEZ and the territorial sea, with some areas appearing to be larger and some smaller than previously mapped. As a result, five legally protected biotopes were identified, but none in the immediate project area. Reefs accounted for the largest share of this, at around 40 % (...).

624 The project developers closely coordinated their procedures with the competent authorities (...). Furthermore, the 2015 mapping was subjected to an update and plausibility check, with no need for change being identified (...). At the end of the same year, the mapping results of the baseline study were also adjusted to the current results from the monitoring programmes of the federal state of Schleswig-Holstein. The result of this adjustment was a slight increase in reef areas; conversely, there were also changes to the federal state's maps when the data basis of the project developers was considered to be better (...).

625 (2) The claimants' criticism of the described procedure fails.

626 According to the monitoring sheet, the project developers were allowed to base their mapping on the fact that validated habitat types under the Habitats Directive and hence the presence of legally protected biotopes can only be assumed at classification level 3. This is not contradicted by the fact that CAU's scientific mapping, which will be discussed later, referred to level 2 occurrences for precautionary reasons. This was related to their different mapping assignment, which did not aim to obtain the same information as the project-related mapping under consideration here.

627 In case of doubt regarding the classification of reefs, the mappers did not have to follow BfN's mapping guidance, which tend to focus more on the hard compact substrata and less on "vegetation". Instead, they comprehensibly justified the priority decision in favour of vegetation - most recently during the oral hearing - by stating that stone blocks alone do not constitute a protected reef; rather, it is the reef-typical settlement that is decisive. Their approach of classifying marine benthic habitats using the abiotic descriptors "depth zone" and "substrate" as well as the biological descriptors "benthic flora and fauna communities", combining the abiotic descriptors into physical habitats and the biological descriptors into benthic communities, the combination of which creates the benthic habitats, is also consistent with the classification of habitats provided by EUNIS (European Nature Information System of the European Environment Agency) (...).

628 cc) The scope of stocktaking was also sufficient.

629 Due to the sedimentation impact of the project, the mapping covered an investigation area that extended far beyond the actual tunnel trench. For benthic fauna, the investigation area extended in the northwest to the southeast coast of Langeland and included the Flügger Sand in the southwest; in the northeast, it extended to the southern tip of the island of Falster and in the southeast to north of Dahme. For benthic flora, the investigation area was defined even larger in order to have a sufficiently large data base (...). The area involved totals approximately 300,000 ha (...). Given an investigation area of this size, it is not possible to investigate or even sample the entire sea floor. This is why representative sampling and modelling were combined. This does not give rise to any objections. Furthermore, the project developers comprehensibly explained during the oral hearing that they performed a more detailed analysis specifically in areas where there were no or only few findings. Given the exceptionally large investigation area and the associated mapping effort, this was an appropriate approach.

630 However, something different would apply if indications of possible classification-level 3 reef occurrences at more precisely designated locations had already been submitted in a substantiated form during the administrative procedure; the planning approval authority would have been obliged to investigate such indications (see BVerwG, judgment of 27 November 2018 - 9 A 8.17 - (...) para. 118). However, according to the documentation in the files, there were no such concrete indications. During the oral hearing, too, the various claimants did not elaborate on this point when asked by the Senate. Only general reference was made to the public inquiry; however, the minutes of these inquiries do not contain any information in this regard. The map material referred to by the claimants in their written statement of 6 September 2020 relating to the minor interpellation at the Schleswig-Holstein Parliament (Landtag) (LT-Drs. 18/3033 of 8 June 2015) was available to the project developers and - as explained above - was precisely the reason why an update was considered.

631 It was also not necessary to investigate the area of intervention, i.e., the immediate vicinity of the tunnel trench, more intensively than had been carried out. The claimants' assertion that precisely this area was deliberately omitted from the investigation was not confirmed. (...) The fact that the project developers and the federal state furthermore - as described above - compared and, if necessary, adjusted different mapping results is in line with the requirement to take all relevant findings into account. In view of the need for nature conservation assessments in reef mapping, which has also been described, this includes not merely a reciprocal "adding up" of different mappings, but considering them discursively and - if technically required - bringing them into agreement in the sense of both an increase and a decrease.

632 Moreover, the size of the area of intervention - the trench is approximately 18 km long and up to 196.9 m wide (...) - precluded an even more detailed investigation. In this respect too, it is no longer a "relatively small" investigation area like the one on which the BfN mapping is based. In view of the far-reaching potential impacts of sedimentation, such a detailed study could not have been limited to the area of intervention, but would have had to include other areas to the east and west of it. However, this would go beyond the requirements of biotope protection law.

633 This is because an even more detailed mapping would amount to a scientific investigation of the area, which, however, is not required in the context of an approval procedure even with regard to the site protection - despite exhaustion of all scientific means and sources as required there (see BVerwG, judgment of 6 November 2013 - 9 A 14.12 - BVerwGE 148, 373 para. 51; decision of 27 November 2018 - 9 A 10.17 - (...) para. 38). Irrespective of this, the requirements under habitat protection law can also otherwise not be transferred unseen and indiscriminately either to the protection of species (see BVerwG, judgment of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 132) or to the (...) protection of biotopes, which is closely connected to this.

634 Adverse effects on legally protected biotopes can (only) be assessed accurately if sufficiently meaningful data material is available. This requires adequate, but not complete, determination and stocktaking of the nature and landscape parts present in the area of impact. It is neither actually possible nor legally required to compile a complete inventory of species, i.e., to depict the "true" fauna and flora of an area of unspoilt nature (see BVerwG, judgment of 12 August 2009 - 9 A 64.07 - (...) para. 48). The depth of investigation depends rather on the conditions of the area of unspoilt nature in the specific case (regarding species protection, see BVerwG, judgment of 9 July 2008 - 9 A 14.07 - BVerwGE 131, 274 para. 54, and decision of 18 June 2007 - 9 VR 13.06 - (...) para. 20; regarding interventions in nature and landscape, see BVerwG, judgment of 31 January 2002 - 4 A 15.01 - (...)). These are characterised on the one hand by their location under water and the size of the investigation area, and on the other hand by the fact that hard compact substrate - assuming sufficient density and benthic colonisation - can form a reef with a grain size of just 64 mm and an area of 0.05 ha. Accordingly, the BfN mapping guidance (...) also describes the geogenic reefs of the Baltic Sea as "frequently small-structured mosaics of blocks, stones, cobbles, sands (partly silt), particularly pronounced in the form of residual sediments and till ridges". In view of this, the comprehensive study of the structure of the sea floor, the modelling of the distribution of benthic habitats based on sampling, the inclusion of existing investigations and close coordination with the competent environmental authorities satisfied the requirements of an assessment based on the standard of practical reasonableness (see, in this respect, BVerwG, judgments of 9 July 2017 - 9 A 14.07 - BVerwGE 131, 274 para. 56 et seq., and of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 132).

635 b) On the basis of this proper investigation, the planning approval decision rightly denies a significant adverse effect on the protected biotopes.

636 The claimants wrongly assert that the defendant assumed that section 30 (2) BNatSchG only covers the complete loss of biotopes and not also significant adverse effects. However, it is not correct to equate both prohibitions in the wording "The [...] adverse effects do not lead to a complete loss of protected benthic habitats and thus also not to significant adverse effects within the meaning of section 30 BNatSchG" (...). While destruction describes irreparable damage resulting in the complete loss of a biotope, the term other significant adverse effects covers changes that reduce a biotope's value and suitability as a habitat. However, it follows from the wording "other significant adverse effects" that the degree of effect does not have to correspond to that of destruction, but is approximated thereto. Besides the type, extent and severity of the impact, it is therefore also a question of its duration; a significant adverse effect is consequently not given if the biotope recovers from the consequences of the impact in the foreseeable future (...).

637 The planning approval decision used this as its basis and denied a significant adverse effect on the grounds that the benthic habitats will be able to revitalise and fully develop the adversely affected vital functions again after completion of the dredging operations (...). For this assumption to be correct, reference can be made to the above statements regarding sediment release. In its opinion of 30 July 2014 (...), BfN also denied a significant adverse effect within the meaning of section 30 (2) BNatSchG.

638 The knowledge gained now - following issuance of the planning approval decision - regarding the presence of further reefs does not lead to a different assessment. Correct mapping is not called into question neither by the results of the Nature and Biodiversity Conservation Union's (NABU, Naturschutzbund Deutschland) diving study published after the issuance of the planning approval decision and submitted in July 2019 as an annex to the statement of reasons for the action in the parallel proceedings BVerwG 9 A 9.19, nor by the results of CAU's final report on further reef occurrences published in July 2020 or the mapping GE submitted by the claimants in September 2020 (aa); these also do not render the planning approval decision unlawful in retrospect (bb).

639 aa) In as far as the above-mentioned documents reveal further reefs, some of which are located in the project area, this does not result in a methodological error in the mapping carried out.

640 (1) Since 2007, CAU has been carrying out mapping on behalf of LLUR in order to identify habitat types 1110 "Sandbanks", 1160 "Large shallow inlets and bays" and 1170 "Reefs", which serve to fulfil the reporting obligations under the Marine Strategy Framework Directive and the Water Framework Directive. The contract for the "Fehmarn East" ("Fehmarn-Ost") mapping, whose investigation area extended to the area before Puttgarden and was extended to the west and south by the contractor for technical reasons (...), was awarded at the end of September 2017. The result of the investigation was not available at the time the planning approval decision was issued; it was only published during the course of the court proceedings (...).

641 LLUR took the results of the NABU diving study (...), which was attached to the statement of reasons for the action in the proceedings BVerwG 9 A 9.19, as an opportunity to map the area before Marienleuchte as part of an already planned departure of a research vessel and, in particular, to investigate NABU suspect area 2 (north-east of Puttgarden/Marienleuchte, nordöstlich Puttgarden/Marienleuchte); suspect area 1 (north-west of Puttgarden, nordwestlich Puttgarden) was already covered by the aforementioned "Fehmarn East" investigation contract, so that no separate examination was necessary (...).

642 As a result of the final report, the claimants commissioned a further technical investigation into the occurrence of reefs in the area of the tunnel route and its surroundings; the result was submitted in a written statement dated 6 September 2020 (...). According to this further technical investigation, it could be assumed that some of the reef areas discovered by CAU had a larger expansion; however, further investigations would be required for a final assessment at classification level 3.

643 The newly discovered reef occurrences, some of which were only validated in the follow-up to the investigations at classification level 3, are now recognised in principle by the summoned third party and the defendant as legally protected biotopes within the meaning of section 30 BNatSchG (...). Since reef area 3 is located partly in the area of the tunnel route and reef areas 1 and 2 are partly located in the area of the intervention zone (anchor zone), they unanimously - most recently during the oral hearing - announced a supplementary planning procedure. In this context, the intervention boundary is to be adjusted, the possibility to grant an exemption examined and the compensation balance updated; the obligation to re-balance is already prescribed in obligation 2.2.4 no. 8 (...).

644 (2) The aforementioned circumstances do not call into question the methodological correctness of the mapping.

645 Studies carried out in an area of unspoilt nature after the issuance of the planning approval decision are generally not suitable for challenging a stocktaking that was previously performed under biotope protection law on which the planning is based and which is correct in terms of methodology and scope (regarding species protection, see BVerwG, judgment of 12 August 2009 - 9 A 64.07 - BVerwGE 134, 308 para. 50). These principles developed for species protection law apply in the present case to the mapping of biotopes not only because of the described legal proximity of the protection regulations. The difficulty of completely recording mobile species under species protection law corresponds to the general - albeit typically medium or long-term - variability of the benthic colonisation of hard compact substrate and, in particular, the complexity of submarine mapping. Furthermore, the latter - as already explained - could only be carried out with the help of modelling. Although this modelling must be as close to nature as possible, no complete and perfect match with natural processes and conditions can be achieved. Modelling therefore inevitably entails a certain degrees of vagueness and uncertainty (see BVerwG, judgment of 9 February 2017 - 7 A 2.15 - BVerwGE 158, 1 para. 59, 73, 75). The standard for judicial review of modelling is hence whether the models were developed in a methodologically sound manner and whether they reflect the current state of scientific knowledge in other respects too. If this is the case, the realisation of the aforementioned imponderables as a result of subsequent findings does not lead to the stocktaking being erroneous.

646 CAU's "Fehmarn East" mapping in question is also part of a more than ten year long data collection and evaluation process and is based on a multi-year research plan (...). However, a project developer is not required to conduct such a study with the depth of a scientific research project (see BVerwG, judgment of 6 November 2013 - 9 A 14.12 - BVerwGE 148, 373 para. 51), which is why its mappings do not have to be subsequently measured against this. Furthermore, the final report is based on the new BfN mapping guidance and hence - as explained above - on a different methodology that focuses more on abiotic and less on biological elements for the assessment of a reef. Moreover, CAU's studies - in accordance with its commission - were only carried out up to classification level 2 and were not validated at level 3 (...). This may make sense for a research project that serves to fulfil various reporting obligations, so that sufficient baseline data is available for further validation steps. However, the information sought by the project developers was different since they had to consider legally protected biotopes within the meaning of section 30 BNatSchG, but not mere suspect areas.

647 As the methodology applied was hence correct, the application to take evidence that the methodology applied by the project developers to find benthic habitats (...) was not state of the art with regard to a linear infrastructure project and that the approach chosen was not technically sound had to be rejected. This does not constitute anticipated assessment of evidence, because the Senate - as the Federal Constitutional Court most recently stated with regard to the scope of the right to effective legal protection in conjunction with nature conservation assessments - examined whether the claimants' objections substantially call into question the methodology, basic assumptions and conclusions of the authority (see BVerfG, decision of 23 October 2018 - 1 BvR 2523/13 et al. - BVerfGE 149, 407 para. 28), but denied this. For a successful application to take evidence, the claimants would have had to substantiate that other recognised standards and methods exist in expert circles and science that would have had to be applied (BVerfG, ibid., para. 33); this is lacking.

649 bb) Just like mapping, the planning approval decision is not retroactively rendered unlawful by the fact that the uncertainties inherent in stocktaking are realised. The point in time of issuing the planning approval decision, which is decisive for judicial review, also constitutes the caesura in this respect: Had the reefs become known beforehand, the planning approval decision would have had to take them as a basis in order not to violate section 30 BNatSchG. However, circumstances which only become known during the course of court proceedings - like in the present case - can at most be taken into account at a later point in time. The function of biotope protection law as a requirement for approval ends with the approval decision. After that, the effect of this function is limited to that of a repressive regulatory instrument (...).

651 c) If the newly discovered biotopes do not affect the lawfulness of the planning approval decision, they must nevertheless be taken into account within the framework of a supplementary procedure.

652 In this respect, the situation is similar to that of "newly immigrated species", for which a subsequent procedure, for instance, in the form of an exemption or the issuance of an additional stipulation as a minus to withdrawal and revocation, is also discussed (see VGH Mannheim, judgment of 4 July 2018 - 5 S 2117/16 - (...) para. 75). The questions disputed there, such as whether the declaratory effect of the approval decision also includes the subsequent immigration of species or their overlooking despite proper stocktaking, whether both cases are to be treated equally in law and whether the protection of species - in particular in view of its references to EU law - enjoys priority over the protection of existing species (...), do not require a decision in the present case. It can also be left open whether the protection of biotopes is of lesser importance due to the lack of a foundation in EU law or the protection of existing biotopes due to the special legal obligation of public-law project developers (...). This is because the defendant and the project developers have acknowledged the existence of the reefs in question and the need to take them into account in terms of nature conservation and have promised to carry out a supplementary procedure. They must abide by this regardless of the aforementioned issues. At the same time, it follows from the above statements that the announced procedure is not a procedure to remedy an error within the meaning of section 75 (1a) VwVfG, but a procedure which, according to section 76 VwVfG, must be initiated ex officio prior to completion of the project and before the completion of which the project may not be carried out in the area of the biotopes concerned.

655 13. The planning approval decision does not suffer from any relevant error in weighing.

656 Pursuant to section 18 (1) second sentence AEG and section 17 (1) third sentence FStrG, which are applicable here, the public and private interests affected by the project, including the environmental impact, must be considered for the purpose of weighing in the context of planning approval. The weighing requirement demands that - firstly - weighing takes place at all, that - secondly - weighing takes into account the interests which must be included under the given circumstances, and that - thirdly - neither the importance of public and private interests is ignored nor is their balancing carried out in a way that is disproportionate to the objective weight of individual interests. Within the framework thus defined, the weighing requirement is not violated if the authority authorised to plan decides in favour of one and thus necessarily for the deferral of another in the collision between different interests (established jurisprudence, see BVerwG, judgment of 14 March 2018 - 4 A 5.17 - BVerwGE 161, 263 para. 73 with further references).

657 On this basis, there are no errors of weighing with regard to the assessment of alternatives (a), the definition of sections (b), conflict management (c), the temporary working harbour (d), the ferry port connection (e) or the threat to the claimants' existence (f).

658 a) The assessment of alternatives is not objectionable with regard to the determination of the routing (aa); a waiver of the project or its limitation to the construction of a rail tunnel was not required (bb). The choice of the construction variant also does not reveal any errors (cc).

659 aa) With regard to the determination of the routing, the planning approval authority decided free from legal errors in favour of the landing point east of Puttgarden ferry port.

660 The choice between different project design variants is a decision of weighing under sectoral planning law, irrespective of requirements under jus cogens that must be observed. When compiling the material underlying the required weighing, all realistic alternative solutions must be taken into account and included with their respective relevance in the comparative examination of the public and private interests affected in each case. In this context, the authority needs to investigate the facts of the case only to the extent necessary for an appropriate decision and a suitable organisation of the procedure; alternatives which it considers to be less suitable on the basis of a rough analysis may be eliminated by the authority at an early stage of the procedure. The alternative routes which then remain realistic must be examined and compared in more detail during the next steps of the planning procedure. The limits of the planning authority's scope for action in the choice of route are only exceeded if the authority has committed a legally relevant error in the selection procedure as a result of incorrect determination, assessment or weighting of individual interests or if, taking into account all interests relevant to the weighing, a routing other than the one chosen should have been clearly identified as the better one because it would have had a less adverse effect on public and private interests as a whole (established jurisprudence, see BVerwG, judgments of 9 November 2017 - 3 A 4.15 - BVerwGE 160, 263 para. 98, and of 2 July 2020 - 9 A 19.19 - BVerwGE 169, 94 para. 75).

661 Measured against these principles, the selection decision made by the project developers and confirmed by the planning approval authority is not conclusively questioned by the claimants (2), who have only limited rights to complain (1).

662 (1) Referring to the results of a spatial resistance analysis (Raumwiderstandsanalyse), the project developers developed corridors involving as little conflict as possible and assessed these from the point of view of the developed and undeveloped environment. Four corridors were identified as starting points on Fehmarn, of which the two western corridors and the corridor running directly through the ferry port were already excluded during the course of the rough analysis due to their high spatial resistance.

663 The right to complain of claimants no. 1 and no. 2 whose property is affected extends to the examination steps up to the conclusion of the rough analysis because the result of this analysis suggests that only one landing point on Fehmarn remained as a candidate for closer examination. The routing for the section subject to German planning approval and hence the extent to which property is used were thus determined on a plot-specific basis. Claimant no. 3, in contrast, whose property is not affected, has no right to complain, since the routing does not affect any of its protected private interests.

664 (2) The claimants' criticism of the routing fails.

675 bb) A waiver of the project or its limitation to the construction of a rail tunnel was not required.

676 Even in the case of a legal determination of need for the project, the planning approval authority is not released from the duty to examine, as part of the required weighing of all aspects speaking for and against the project, whether nevertheless preference must be given to a routing deviating from the legal determination or even to a waiver of project implementation (see BVerwG, judgment of 15 January 2004 - 4 A 11.02 - BVerwGE 120, 1 <4>).

677 The objective of the FBFL is - as explained - to improve the infrastructure between Germany and Denmark and/or Scandinavia and continental Europe. This transport objective cannot be achieved without the project. It serves to shorten travel and transport times, to ensure adequate transport quality and to secure sufficient infrastructure capacities (...). The claimants cannot counter this by pointing out that the ferry service is a highly efficient infrastructure service that has been proven for decades and is fit for the future. Whether there is a need for an expansion is first and foremost a transport policy decision that the legislature has made here with the State Treaty. Apart from this, the FBFL offers obvious benefits in terms of time and also independence from weather conditions.

678 The aforementioned planning objectives apply to both rail and road transport. If only a rail tunnel were built, the transport objective of improving Scandinavia's connection to continental Europe could only be partially achieved. Interruption of road transport by the need to use the ferry service would remain, loading of road vehicles onto rail vehicles would take even longer than the ferry service. In addition to this, there would be the disadvantages of a fixed timetable and waiting times at the ferry ports.

679 Therefore, it was also not necessary to implement only the railway part of the project. In as far as the planning approval decision contains the statement that the rail and road routes, when considered separately, are each a traffic construction measure with its own benefit, which could also be implemented independently of each other (...), this only has procedural significance with regard to section 78 VwVfG. The consideration of the planning approval authority is limited to the procedural statement that the two sub-projects are each independently useful; however, it does not contain any - self-imposed - requirement to assess the two projects independently.

680 Such a requirement also does not result from Regulation No 1315/2013 of the European Parliament and of the Council of 11 December 2013 (TEN-T Regulation). The argument that the core network of the trans-European transport network places the emphasis on rail transport, whereas road transport should be pushed back throughout Europe, has no basis in the recitals or in the normative text of the Regulation. Instead, the road part of the project is also part of the core network of the trans-European transport network according to article 38 (1) TEN-T Regulation in conjunction with no. 5.4 (Road) of its Annex I (regarding the significance of the project for the TEN-T concept, see the opinion of the European Coordinator for the Scandinavian-Mediterranean Core Network Corridor of the European Commission of 27 September 2018; (...)).

681 Nor can the argument be used against the equal expansion of road and rail that the currently forecast rail traffic falls short of earlier forecasts, so that the actual aim of European transport policy - the promotion of rail transport (from road to rail) - cannot be achieved if a new road link is created at the same time. This is contrasted by the equally plausible assessment that the creation of a new rail link, especially for freight transport, could change the modal split between road and rail transport in favour of rail transport.

682 cc) Irrespective of the question regarding the claimants' right to complain (1), the Senate could not identify any weighing error in the decision in favour of an immersed tunnel and against a bored tunnel (2); the claimants did not substantively challenge the planning decision to the detriment of the cable-stayed bridge.

683

723 b) The claimants unsuccessfully assert that the definition of sections was erroneous.

724 The permissibility of defining sections under planning law is generally recognised in established jurisprudence of the Federal Administrative Court. This is based on the consideration that an overall planning concept can often only be implemented in sections in view of the many difficulties associated with detailed route planning. The substantive justification for the definition of sections that is required according to this does not become obsolete simply because planning approval could have been carried out without it. Instead, the planning approval authority has planning discretion in which it can include, among other things, aspects of a suitable organisation of the procedure. However, this discretion is limited by substantive planning law, in particular, the objectives of the respective sectoral planning law and the weighing requirement. The significance of the weighing of interests may not be impaired by splitting up the project. In particular, partial planning cannot be made independent to such an extent that problems created by overall planning remain unaddressed. Appropriate weighing is also required between the advantages of implementing a sub-section as soon as possible and any associated disadvantages, such as higher costs or the implementation of construction measures that later turn out to be superfluous. In the case of projects that are subject to road law, the sub-section must also generally have an independent traffic function and there may be no insurmountable obstacles to the implementation of the overall project (established jurisprudence, see BVerwG, judgment of 11 October 2017 - 9 A 14.16 - BVerwGE 160, 78 para. 164).

725 aa) In as far as the claimants complain that the planning approval decision wrongly assumes that the FBFL is a section of a larger overall project that includes the hinterland connections, whereas pursuant to article 2 (1) first sentence of the State Treaty the hinterland connection is not part of the FBFL, but instead they are independent projects, it is not apparent what the legal consequences of the question are and how it affects the claimants' properties. Moreover, the State Treaty also contains provisions regarding the hinterland connection and thus makes it clear that it is ultimately (also) an "overall project".

726 bb) The objections raised with regard to the independence of the traffic function are also unfounded.

727 The fundamental requirement of an independent traffic function of the respective individual section in the case of sectional road planning corresponds to established jurisprudence. However, this does not apply in railway law; because of the wide-meshed nature of the rail network, which often only allows a connection to existing railway lines over long distances, new lines in particular could otherwise only be planned "in one piece" on the basis of an unmanageable planning approval procedure (established jurisprudence, see BVerwG, judgment of 27 August 1997 - 11 A 18.96 - (...) and decision of 29 April 2001 - 9 VR 2.01 - (...) para. 13). Furthermore, the principle that the respective section of a road for which planning approval has been granted must have an independent traffic function does not apply in the case of a section defined solely on the basis of a different authority's responsibility (see BVerwG, decision of 12 February 1993 - 4 ER 404.92 - (...)).

728 Notwithstanding this, the project for which planning approval has been granted fulfils an independent traffic function.

729 (1) In as far as the construction of the second half of the tunnel is concerned, the Danish Construction Act determines and approves (only) the main features of the project and approves the construction costs. In addition to this, further and more detailed planning requires additional approvals to be obtained separately, i.e., the Construction Act - unlike a planning approval decision under German law - does not have a comprehensive concentration effect (...). However, additional stipulation 2.1 no. 2 (...) sufficiently takes this into account and there are no objections to its effectiveness. The objection that the wording of the additional stipulation, "that the tunnel section in the Danish EEZ and the Danish sovereign territory will be implemented immediately afterwards", implied the existence of a condition providing for a chronological order according to which the German half of the tunnel must be constructed first and only then the Danish half and which can no longer be complied with after commencement of construction work on the Danish side, is - as already explained - erroneous irrespective of the question regarding the right to complain.

730 (2) Since the project on the German side can be connected to the existing road and rail network until completion of the hinterland connection, there are no concerns regarding the independent traffic function in this respect either. It is irrelevant whether rail traffic can use the FBFL without expanding the hinterland connection due to a lack of electrification and/or sufficient capacities of the existing single-track line, because no independent traffic function is required for rail traffic and, moreover, the tunnel can also be used by diesel vehicles when the ventilation system is activated (...).

731 (3) The objection that a coupling with the Danish half of the tunnel alone was not sufficient, but that this also had to include the Danish hinterland connection, could be taken into account by a corresponding supplement to additional stipulation 2.1 no. 2, without this reducing the extent to which the property of claimants no. 1 and no. 2 was affected. Their actions therefore already lack the right to complain in this respect.

732 The Danish Construction Act also includes the hinterland connection there, even though this does not yet convey any building rights. Nevertheless, the planning approval decision did not have to make the start of construction of the project dependent on proof of complete legal feasibility of the Danish hinterland connection ((...) additional stipulation 2.1 no. 2; (...)). The requirement of an independent traffic function is intended to counteract arbitrary parcelling of planning and to prevent the risk of a planning torso (BVerwG, judgment of 7 March 1997 - 4 C 10.96 - BVerwGE 104, 144 <153>). In this respect, the characteristics of the individual case are always decisive. Provided that the existence of the connection planning or the possibility of the connection to the existing road network is ensured, planning ending on a "greenfield" can also be lawful without legal coupling to a subsequent section (see BVerwG, judgments of 7 March 1997 - 4 C 10.96 - BVerwGE 104, 144, of 28 January 1999 - 4 CN 5.98 - BVerwGE 108, 248 <251 et seq.> and of 19 September 2002 - 4 CN 1.02 - BVerwGE 117, 58 <66 et seq.>; decision of 14 October 1996 - 4 VR 14.96 et al. - (...)). The assumption that Denmark would build a tunnel costing several billion euros without subsequently connecting it at least to the existing road and rail network is so erroneous that this cannot be used to justify the risk of a planning torso.

733 cc) The objection of impermissible over-planning of the B 207 is likewise incorrect. In this respect, causality for the claimants' properties being affected is already not recognisable since their properties are not located in the area of over-planning that is complained of as erroneous. The same applies to the further complaint that the definition of sections contradicts the requirements of the State Treaty.

734 dd) Finally, equally unfounded are the objections that, with regard to the hinterland connection, the problem of additional traffic triggered by overall planning is impermissibly shifted to the still outstanding planning approval procedures and that the problem of the Fehmarn Sound crossing remains unsolved.

735 (1) The requirement of conflict management in planning - as already explained above in the context of the assessment under site protection law (...) - only exceptionally requires that the impacts of the project that are caused by other sections of the route are already taken into account in the upcoming decision on the planned project. In as far as the permissibility of the definition of sections requires foresight into subsequent sections in the manner of a preliminary positive overall decision, the planning approval decision - as also stated with regard to site protection - also satisfies this requirement.

736 (2) Furthermore, there is no such close connection between the FBFL and the crossing of the Fehmarn Sound that it could justify the need for joint planning approval.

737 (a) In the case of the Leverkusen Rhine bridge, the Senate saw such a connection in terms of construction and traffic engineering in the dependence of the gradient and routing of part of the section for which planning approval has been granted on the further expansion of the subsequent section (see BVerwG, judgment of 11 October 2017 - 9 A 14.16 - BVerwGE 160, 78 para. 165 et seq.). A comparable connection obviously does not exist in the present case. The routing and gradient of the FBFL is independent of the location and design of the Fehmarn Sound crossing. The fact that Deutsche Bahn and the Federal Ministry of Transport consider reinforcement of the Fehmarn Sound bridge, which is particularly necessary for rail traffic, to be no longer worthwhile and instead are looking to a new structure (...) does not lead to a different assessment. The Senate did not consider the mere need for renewal of a bridge structure in the subsequent section to be sufficient to justify the need for uniform planning in the aforementioned proceedings either. In addition, article 5 (2) third and seventh sentences of the State Treaty does not foresee expansion of the road and rail connection on the Fehmarn Sound bridge that goes beyond the electrification of the railway line. The relationship between the two sections is thus no different from that of other sections in section-by-section planning, the (overall) implementation of which always depends on the implementation of the subsequent sections as well.

738 (b) In order to avoid a planning torso, there was also no need to extend the section for which planning approval has been granted to include the route to the German mainland. This applies irrespective of whether a possible replacement structure of the Fehmarn Sound crossing is completed by the time the FBFL is commissioned. Apart from the fact that the requirement of an independent traffic function does not apply to planning approval of rail-bound projects, the limited load-bearing capacity of the existing structure is also taken into account by the restriction of rail traffic - albeit serving the purpose of noise protection - pursuant to additional stipulation 2.1 no. 1 (...). Road traffic, however, requires only minor reinforcement of the Fehmarn Sound bridge; it is not to be expected that this will be dispensed with and that Fehmarn will be cut off from the mainland.

739 (c) Finally, section 78 (1) VwVfG does not imply a need for uniform planning approval for the FBFL and the Fehmarn Sound crossing. This applies irrespective of the fact that the projects do not coincide in time. Instead, the requirement of need for a uniform decision is also not met.

740 Section 78 VwVfG must be interpreted in such a way that uniform planning approval procedures should be the exception (see BVerwG, judgments of 19 February 2015 - 7 C 11.12 - BVerwGE 151, 213 para. 40, and of 14 March 2018 - 4 A 5.17 - BVerwGE 161, 263 para. 31; decision of 4 August 2004 - 9 VR 13.04 - (...)). What is required is a factual connection between the two projects that cannot be sensibly separated; an increased need for planning coordination that clearly goes beyond the standard case must force the decision to be shifted to a single planning approval authority and/or to a single approval procedure (see BVerwG, judgment of 19 February 2015 - 7 C 11.12 - BVerwGE 151, 213 para. 40). If, however, relevant interests for planning in one procedure can be adequately covered in the other procedure by participation in the procedure and by consideration within the framework of weighing under planning law, this connection does not apply (BVerwG, judgment of 9 February 2005 - 9 A 62.03 - (...)). This is because a merely material interest in planning coordination of different interests alone does not justify coordinating the procedure and the responsibility of the authorities (established jurisprudence, see BVerwG, judgment of 14 March 2018 - 4 A 5.17 - BVerwGE 161, 263 para. 31).

741 It ultimately depends on the circumstances of the individual case whether the principle of conflict management expressed in section 78 (1) VwVfG (BVerwG, judgment of 18 April 1996 - 11 A 86.95 - BVerwGE 101, 73 <79>) requires a uniform planning decision for several spatially and temporally coinciding independent projects or whether the necessary coordination by means of procedural and substantive coordination is also possible without formally combining the procedures and thus preserving the legally determined order of competence (BVerwG, decision of 4 August 2004 - 9 VR 13.04 - (...)). Indications for this can be spatial overlapping of the routes and/or planning approval of joint facilities, such as crossing structures, parallel routing of rail and road routes or the same topographical conditions to be managed for both projects by joint construction measures (see BVerwG, judgments of 18 April 1996 - 11 A 86.95 - BVerwGE 101, 73 <79> and of 27 November 1996 - 11 A 99.95 - (...); decisions of 28 November 1995 - 11 VR 38.95 - (...) and of 26 April 1996 - 11 VR 47.95 - (...)).

742 Such connections in the sense of a need for planning coordination do not exist between the crossings mentioned. It is not sufficient for them to constitute individual sections of an overall project. The need for coordination is already lacking because they are not even contiguous. However, even then and/or when including the section in between, it would only be the standard case of sectional planning, which does not fulfil the strict requirements of section 78 (1) VwVfG for exceptionally uniform planning approval. If environmental effects overlap during the construction phase, this can be taken into account in a cumulative assessment, if necessary. Finally, the fact that a new construction of the Fehmarn Sound crossing is mainly required due to the construction of the FBFL and the resulting additional traffic does not justify the need for a uniform decision within the meaning of section 78 (1) VwVfG. Both sections have to handle the traffic volume, which, however, does not require any construction or other planning coordination of the projects.

743 c) There is no case of insufficient conflict management.

744 In principle, all problems caused by the project for which planning approval has been granted must be resolved in the planning approval decision (conflict management requirement). The limits of permissible shifting of conflicts to the level of planning implementation are exceeded if it is already foreseeable at the planning stage that the conflict of interest left unaddressed cannot be properly resolved during subsequent procedures (BVerwG, judgment of 12 September 2013 - 4 C 8.12 - BVerwGE 147, 379 para. 17). However, as already explained, technical execution planning - including technical detailed investigations and protective measures based thereon - can be left aside from planning approval if this is manageable according to the state of the art, the relevant requirements are observed and no interests that are relevant for weighing are affected (BVerwG, judgment of 11 July 2019 - 9 A 13.18 - BVerwGE 166, 132 para. 170). This requires obliging the project developer to submit its execution planning to the planning approval authority for review and approval prior to commencing construction (BVerwG, judgments of 18 March 2009 - 9 A 39.07 - BVerwGE 133, 239 para. 97, and of 3 March 2011 - 9 A 8.10 - BVerwGE 139, 150 para. 50).

745 The planning approval decision meets the latter requirement at least due to the supplements declared in the oral hearing of 1 October 2020 (aa); it also does not violate the conflict management requirement by ignoring issues relevant for weighing (bb) or by wrongly shifting them to execution planning and/or by insufficiently safeguarding them from a planning perspective (cc).

746 aa) In its original version, the planning approval decision stipulated that the project developers, during the construction phase, were obliged to submit execution planning to the planning approval authority for approval in those points that were left open in the planning documents and were merely presented as examples, only to the extent that they wished to deviate from the presentation in the planning documents (obligation 2.2.2 no. 1; (...)). It can be left open whether this additional stipulation met the legal requirements for conflict management.

747 In order to justify the restrictions contained in the additional stipulation, the defendant pointed to the unreasonable workload for the planning approval authority if it had to control the entire execution planning for complex projects like the present one. In order to counteract the risk of "rubber-stamping" plan amendments that would otherwise emerge, it would make more sense to require submission of only certain points of execution planning. Furthermore, the defendant referred to the Senate's judgment of 11 October 2017 (- 9 A 14.16 - BVerwGE 160, 78 para. 118). However, one specific element of this case was that the claimant there - unlike the claimants in the present proceedings - was satisfied with a comparable wording. Another argument against the defendant's opinion could be that the planning approval authority - irrespective of the necessary participation of the specialist authorities having special expertise in their respective matters - bears ultimate responsibility for all regulations of the decision as a result of the concentration effect (section 75 (1) first sentence second half-sentence VwVfG) (see BVerwG, judgment of 24 November 1994 - 7 C 25.93 - BVerwGE 97, 143 <148>).

748 The Senate does not have to decide the aforementioned legal question after the defendant added a new no. 7 (...) to obligation 2.2.1 during the oral hearing. According to this, the entire construction execution planning must now be submitted to the planning approval authority for review and approval. As a result of this amendment, further obligations on individual subject areas were adjusted. For example, approval of detailed concepts and execution plans is no longer required by the specialist authority - as previously envisaged - but also by the planning approval authority (...).

749 bb) In as far as the claimants complain that the planning approval decision overlooked interests that were relevant for weighing in as far as it failed to deal in more detail with questions of anticipatory measures for future dismantling and the threats posed by terrorist attacks and electromagnetic fields, it is already not recognisable that these are interests of their own that can be complained about or interests that can have an effect on the use of their properties. The claimants therefore lack a right to complain. Apart from this, there is also no failure to weigh (Abwägungsausfall).

750 (1) The planning approval decision did not have to make any provision for the case of a cessation of operations.

751 Neither sectoral planning laws nor the Environmental Impact Assessment Act contain a general obligation to order or envisage dismantling of the project already at the time of project approval. The latter only provides for consideration of the impacts of dismantling operations since the entry into force of the Act on the Modernisation of the Law on Environmental Impact Assessment of 20 July 2017 (BGBl. I p. 2808), which transposes Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ L 124 p. 1) into national law, but does not apply to the present procedure pursuant to section 74 (2) UVPG. Apart from the foregoing, dismantling operations must be taken into account thereunder only "in as far as they are relevant". The project was granted planning approval for an indefinite period, so that the possible impacts of its removal did not have to be considered. Furthermore, the planning approval decision does not indicate that it is intended to dismantle the tunnel after 120 years; instead, it is based on the assumption that the FBFL, as a central component of the trans-European transport network, will be permanently operated as a public transport route (...). In as far as the planning approval decision refers to a 120-year lifespan of the tunnel, this only concerns flood protection, for which the decision assumes that, taking climate change into account, it must be dimensioned in such a way that it will also be sufficient in 120 years' time, given the rise in sea level that is to be assumed by then. In as far as special regulations on dismantling obligations in exceptional cases exist (for instance, section 35 (5) second sentence of the Federal Building Code (BauGB, Baugesetzbuch), section 5 (3) no. 3 of the Federal Immission Control Act (BImSchG, Bundes-Immissionsschutzgesetz) or section 15 SeeAnlG), these are not applicable to the FBFL (regarding the Offshore Installations Act (SeeAnlG), see above B.II.1). A possible dismantling would instead require a separate approval procedure in which its environmental effects would have to be assessed.

752 (2) There is also no failure to weigh with regard to the threats posed by terrorist attacks and by electromagnetic fields caused by the traction current line for which planning approval has been granted. The planning approval decision addressed both threats - albeit briefly (...). In this respect, it correctly pointed out that there are no legal provisions or subordinate legislation demanding consideration of terrorist attack scenarios for a transport project of the type under review here. With regard to electromagnetic fields, the planning approval decision referred to the expected electric field strength which was clearly below the relevant limit value.

776 e) No error in weighing was committed with regard to the ferry port connection.

777 Whereas up to now the B 207/E 47 leads directly and without interruption to the ferry port of Puttgarden, the ferry port will in future be accessible via three or two signal-controlled crossings for northbound and southbound traffic, respectively. The fact that the planned ferry connection is not equivalent to the current situation is also acknowledged by the planning approval decision (...). The application to take evidence that the road connection of the ferry port to the B 207/E 47, for which planning approval has been granted, does not qualitatively correspond to the status quo (direct connection to the B 207/E 47) must hence be rejected for lack of relevance for the decision.

778 The objections raised against the planning fail. The claimants have no right to claim maintenance of the status quo, but only to an appropriate connection (aa); this claim is met by planning (bb).

779 aa) A right to maintain the status quo arises neither from an assurance nor from other considerations.

780 State Secretary (Staatssekretär) Dr Nägele's letter of 11 February 2014 to the mayor of the city of Fehmarn obviously does not constitute an assurance within the meaning of section 38 (1) VwVfG and section 108a (1) LVwG SH. By declaring its willingness to "ensure an ideal connection" for the future needs of the ferry port and by further stating that "optimisation of the connection" could be carried out when reliable figures on future ferry traffic are available after completion of the tunnel project, the federal-state government clearly did not want to legally bind itself. An authority's declaration can typically only be qualified as a legally binding assurance if the intention to be legally bound is either documented in the operative part of the notice or is otherwise clearly evident to the recipient (BVerwG, judgment of 4 April 2012 - 4 C 8.09 et al. - BVerwGE 142, 234 para. 39 with further references). This is not the case here. This means that the claimants cannot rely on "substantial protection of legitimate expectations" resulting from the letter. The further questions in dispute between the parties (competence of the state secretary to issue a declaration binding on the planning approval authority, notification to the claimants, sufficient specificity) are therefore of no relevance.

781 Finally, a right to maintain the existing traffic situation does not follow from the property rights of claimants no. 1 and no. 2, which are protected by article 14 GG, or from their position as frontagers. The basic right to property does not protect mere sales and profit opportunities and factual circumstances, even if these are of considerable importance for the undertaking (BVerwG, judgment of 27 June 2007 - 4 A 2004.05 - BVerwGE 129, 83 para. 14, and of 28 April 2016 - 9 A 7.15 - (...) para. 14, in each case with further references); a frontager of a road has no right to maintain a previously existing traffic situation (BVerwG, judgments of 28 January 2004 - 9 A 27.03 - (...)). Legitimate expectation, if any, in the continued existence of a certain market or traffic situation is hence not an interest that would be insurmountable for sectoral planning. A person operating a business enterprise must generally tolerate a situation where a change in the actual circumstances and the associated loss of favourable location have a negative impact on its enterprise. However, the interests of frontagers must be taken into account according to their weight within the framework of weighing under sectoral planning law. This applies all the more if - as in the present case - a threat to existence is asserted (BVerwG, judgment of 28 April 2016 - 9 A 7. 15 - (...) para. 14).

782 bb) Planning meets the aforementioned requirements. It ensures a sufficiently efficient alternative connection to the ferry port.

806 f) The objections raised against the examination of the threat to the claimants' continued existence are also unfounded.

807 aa) The planning approval decision is not unlawful because it failed to take the claimants' economic interests into account.

808 A possible threat to the continued existence of a business enterprise must be taken into account within the framework of weighing, irrespective of whether it is based on the use of (real) property or on the fact that traffic planning causes a deterioration of the previous traffic situation for the enterprise. However, weighing relevance is limited to such effects which are recognisable to the planning authority as relevant for weighing when deciding on the plan because they are obvious - within the framework of the ex officio investigation - or because they were presented by the persons concerned during the course of their participation (see BVerwG, decisions of 9 November 1979 - 4 N 1.78 et al. - BVerwGE 59, 87 <102 et seqq.> and of 11 January 2001 - 4 B 37.00 - (...); judgment of 13 September 1985 - 4 C 64.80 - (...)).

809 (1) Accordingly, the lawfulness of the planning approval decision is not precluded by the fact that the defendant obtained an expert opinion on the economic consequences of the construction of the FBFL only for claimant no. 1, however, not also for claimant no. 3.

810 The possibility of the continued existence of a ferry company being threatened by the construction of a bridge or a tunnel running parallel to and in the immediate vicinity of the ferry route is in principle so obvious that the planning approval authority may not ignore this. Unless it assumes a threat to or destruction of existence, it must therefore determine the economic impacts of the project for which planning approval is to be granted even if the person concerned does not expressly point out the threat to its continued existence. The person concerned, for its part, is obliged to inform the planning approval authority about the circumstances of its specific operational situation which it wishes to have considered in the planning approval procedure. Accordingly, it is legitimate for the authority to disregard information that has been wrongfully denied when examining and weighing the threat to the continued existence (see, in this respect, BVerwG, judgment of 12 June 2019 - 9 A 2.18 - BVerwGE 166, 1 para. 27).

811 If the defendant was hence obliged to include both ferry companies - i.e., both claimant no. 1 and claimant no. 3 - in the examination of the threat to the continued existence, this necessity did not apply here due to the submissions of claimant no. 1 in the planning approval procedure. It is true that its counsel argued during the public inquiry on 14 October 2015 that, if planning approval were to be granted for the project as applied for, destruction of their existence would have to be expected; even if the port connection was changed in the claimants' favour, a threat to their continued existence could not be ruled out (...). However, the objection was in contradiction to the continuous submissions of claimant no. 1 both before and after the public inquiry, with which it vehemently opposed the assumption that the ferry service would (have to) be discontinued after the opening of the FBFL. Conversely, it disputed the planning justification and the refinancing of the FBFL precisely by pointing out that the ferry connection continued to be competitive and would be maintained (...). In as far as the claimants assert that the statements on the intended continuation of the ferry service - just like the expert report on threats to the continued existence - were subject to the condition that the ferry port be connected in a way that meets the requirements, the connection for which planning approval has been granted - as explained above - meets this condition. Against this backdrop, obtaining the expert report on threats to the continued existence of claimant no. 1 was a highly precautionary measure.

812 Since the expert report denied a threat to the continued existence, there was no reason to obtain a further expert report on the economic impacts of the project on the ferry service of claimant no. 3. Its business model is the same as that of claimant no. 1. Since - as explained above in the context of the examination of the actions' admissibility - it did not make a statement in the planning approval procedure, and since of the companies of the Sc. Group only claimant no. 1 made a statement, claimant no. 3 must accept the statements by claimant no. 1 regarding the continuation of the ferry service and the defendant legitimately assumed that the statements on the continuation of ferry service applied to both subsidiaries.

813 (2) If one assumes, contrary to the above statements, that the defendant would nevertheless have been obliged to investigate a threat to the continued existence of claimant no. 3, this error would in any case not have been causal for the decision of weighing (section 75 (1a) VwVfG). The same applies with regard to the concerns raised about the correctness of the expert report and the time at which it was obtained.

815 The planning approval decision (...) makes it clear that the defendant would not have taken a more favourable decision for the undertaking even in the case of a threat to its continued existence (regarding a comparable constellation, see BVerwG, judgment of 28 April 2016 - 9 A 7.15 - (...) para. 17). Thus, the errors complained about by the claimants - assuming such errors existed - did not have any effect on the weighing under planning law. These statements only refer to claimant no. 1. However, in view of the fact that the latter pursues the ferry service together with claimant no. 3 and that the defendant, with the above statements, generally gives priority to the project over the ferry connection, there is sufficient concrete evidence within the meaning of the established jurisprudence of the Federal Constitutional Court (BVerfG, chamber decision of 16 December 2015 - 1 BvR 685/12 - (...)) that the defendant would not have taken a different decision of weighing even if it had also investigated the economic consequences for claimant no. 3 and if this investigation had shown that the continued existence of claimant no. 3 would be threatened or destroyed.

816 In this respect, the claimants wrongly assume that a decision of weighing in favour of the implementation of the project, even at the cost of a threat to the continued existence, only has legal significance if it also proves to be lawful in other respects. Contrary to the claimants' view, the Senate did not make such a statement in its judgment of 10 February 2016 (- 9 A 1.15 - BVerwGE 154, 153 para. 31), but merely clarified that the lack of causality of an individual error in weighing does not affect the relevance of further errors in weighing for the decision. In the present case, for example, an error in the choice of routing would not be irrelevant because the planning approval decision accepts the destruction of the claimants' existence. However, the question as to whether the planning approval authority correctly determined the economic impacts on the claimants is (no longer) of relevance if the authority - in the sense of a worst-case scenario - assumes a threat to the claimants' continued existence and maintains approval of the project despite this.

819 (3) It can be left undecided whether claimant no. 2 being affected was recognisable as relevant for weighing and whether the defendant would have been obliged to obtain a separate expert report on threats to the continued existence (a). This is because such an error would not have had a relevant effect on the decision (b).

820 (a) The business model of claimant no. 2, which, with its relatively low alcohol prices compared to prices in Scandinavian countries, specifically addresses Danish and Swedish customers for which, among other things, discounted ferry (day) tickets are offered, is not directly impaired by the FBFL. Both the price difference and accessibility will remain. The claimants themselves argued that the ferry traffic volume generated by shopping at the BorderShop is of great importance and that discounted tickets for shopping trips are used even more by Swedish than by Danish customers. If customers accept such a long journey to their destination, it is far-fetched to assume that they might be deterred from doing so by the need to drive through three sets of traffic lights in future. Notwithstanding this, the claimants are free to continue to retain these customers through the model described during the oral hearing, i.e., by linking discounted tickets and purchases in the BorderShop. Although claimant no. 1 stated in its letter of 25 August 2016 (...) that claimant no. 2 would "permanently lose importance due to the inappropriately complicated new connection", this fear, as explained above, is not directly plausible. In the aforementioned letter, claimant no. 1 did not assert a threat to the continued existence for claimant no. 2, but (only) for itself "as ferry port operator and owner of Sc. Bordershop Puttgarden GmbH, which runs the BorderShop Puttgarden".

821 (b) Even if, on the basis of this, it had been sufficiently recognisable that claimant no. 2 would be affected in a way that would have been relevant for weighing, this would not have led to the action being founded. However, the interests of a person operating a business enterprise which are worthy of protection and which result from the right to an established and operating business enterprise must be considered when granting planning approval, irrespective of the person's lack of entitlement to or legitimate expectations on maintenance of a favourable traffic situation, and must according to their weight be included in the weighing under sectoral planning law. The planning approval authority must therefore either further clarify the question of the threat to the continued existence or assume it to be given (regarding the comparable case of a petrol station whose connection to a federal highway is lost as a result of a bypass, see BVerwG, judgment of 9 June 2004 - 9 A 16.03 - (...) para. 25 et seqq.). Neither happened in the present case, although the Pw. expert report on threats to the continued existence not only denies a threat to and/or destruction of the existence of claimant no. 1, but also states that even without an in-depth analysis, the premises used would lead to the expectation of a comparable result for the other companies of the Sc. Group active in the context of the Puttgarden - Rødby ferry route and for the Sc. Group as a whole. Notwithstanding this, an error in weighing, if any, would not have become causal. The fact that the planning approval decision even accepts destruction of the existence of claimant no. 1, i.e., of a business that is clearly more important than that of claimant no. 2, provides concrete evidence that the planning approval authority would have made the same decision even if it had avoided an error in weighing.

822 bb) In as far as the claimants complain that other parts of the group as well as the parent company should have been included, they already lack the right to complain.

833 C. The decision on costs is based on section 154 (1), section 159 first sentence VwGO in conjunction with section 100 (1) of the Code of Civil Procedure (ZPO, Zivilprozessordnung) and section 162 (3) VwGO.