Press release no. 66/2016 of 15 July 2016

Planning approval decision for Waldschlösschenbrücke road bridge partially unlawful

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig decided today that the planning approval decision (Planfeststellungsbeschluss) from the Saxon State Directorate (Landesdirektion) dated 25 February 2004 for the construction of the Waldschlösschenbrücke road bridge in Dresden, in the form of various amendment notices, is partially unlawful.


The initial planning approval decision was based on a "risk assessment/preliminary assessment" ("Gefährdungsabschätzung/Vorprüfung") relating to Habitats Directive sites which had not yet been proposed to the EU Commission at the time. Following the issuance of the planning approval decision, the sites were included in the list of sites of Community importance in December 2004. Furthermore, the Elbe valley between Schöna and Mühlberg was declared to be a special protection area under the Birds Directive, with the exception of the part of the meadows of the river Elbe (Elbwiesen) situated in the centre of Dresden.


The claimant is a recognised nature conservation association in the federal state of Saxony. In April 2004, the association brought an action against the planning approval decision before the Dresden Administrative Court (Verwaltungsgericht). A simultaneous application for interim protection was finally dismissed by the Saxon Higher Administrative Court (Oberverwaltungsgericht) in November 2007, subject to conditions regarding the protection of bats. The structure was subsequently completed and opened to traffic between the end of 2007 and 2013. In parallel to the construction work and the ongoing legal proceedings, the Dresden State Directorate re-evaluated the assessment of implications for the site in an amendment notice dated 14 October 2008. At the time, significant effects were identified, which resulted in the authorisation of the project by derogation provided for in article 6 (4) of Directive 92/43/EEC (Habitats Directive).


The Dresden Administrative Court dismissed the action by judgment of 30 October 2008 and granted leave to appeal on points of fact and law. During the appeal proceedings on points of fact and law, the planning approval decision was amended again in 2010, by making use of the derogation procedure provided for in article 6 (4) of the Habitats Directive.


By judgment of 15 December 2011, the Saxon Higher Administrative Court dismissed the claimant's appeal on points of fact and law, but at the same time also admitted the appeal on points of law due to the fundamental significance of the case. With its appeal on points of law, the claimant claims that the Higher Administrative Court made procedural errors and the planning approval decision breaches nature conservation law, in particular provisions implementing the Habitats Directive and provisions on the conservation of birds.


The Federal Administrative Court suspended the proceedings following an oral hearing in March 2014 and referred various questions on the Habitats Directive to the Court of Justice of the European Union (BVerwG, decision of 6 March 2014 - BVerwG 9 C 6.12 - (...)). The Court of Justice decided on the reference for a preliminary ruling by judgment of 14 January 2016 - C-399/14. It made clear that the implementation of a project which - as in the present case - was authorised before the designation of the site in question, is subject to the so-called deterioration ban pursuant to article 6 (2) of the Habitats Directive following the inclusion of the site in the list of sites of Community importance. Projects of this nature may only be pursued on the condition that the deterioration of habitats or disturbance of species is excluded.


The Federal Administrative Court concluded for the present case that the deterioration ban entails an obligation to carry out a subsequent assessment of the implications for the site under the Habitats Directive. Since the project is to be authorised on the basis of an exception clause provided by article 6 (4) of the Habitats Directive, the exception must meet the requirements of article 6 (3) of the Habitats Directive. An assessment of this kind has, however, not been carried out to date. Furthermore, no assessment under species protection law that meets the legal requirements has been completed. The claimant was, however, unsuccessful with further objections.


The Dresden State Directorate must now conduct a supplementary procedure to remedy the established errors. A continued use of the bridge until completion of the assessment was not part of the proceedings on points of law before the Federal Administrative Court.


Footnote:

Article 6 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 - reads as follows:


"1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.


2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.


3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.


4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.


Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."


BVerwG 9 C 3.16 - judgment of 15 July 2016


Judgment of 15 July 2016 -
BVerwG 9 C 3.16ECLI:DE:BVerwG:2016:150716U9C3.16.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 15 July 2016 - 9 C 3.16 - para. 16.

Headnotes

1. Projects authorised before the site on which they are to be implemented was included in the list of sites of Community importance are not subject to the requirements relating to the procedure for prior assessment of the implications for the relevant site according to article 6 (3) of the Habitats Directive. This ensues from article 4 (5) of the Habitats Directive (following CJEU, judgment of 14 January 2016 - C-399/14 -).

2. Nevertheless, the implementation of such projects falls within the scope of article 6 (2) of the Habitats Directive (following CJEU, judgments of 14 January 2016 - C-399/14 and C-141/14 -).

3. Although Member States generally have discretion regarding the "appropriate steps" to be taken pursuant to article 6 (2) of the Habitats Directive, the general obligation of protection defined in article 6 (2) of the Habitats Directive entails an obligation to subsequently assess the implications of a project for the site under article 6 (3) of the Habitats Directive, where there is a probability or risk of deterioration of habitats or disturbance of species because the project has not been subject to a sufficient assessment of its implications for the site. This especially applies if the project is to be authorised by way of the derogation procedure provided for in article 6 (4) of the Habitats Directive.

4. Such a subsequent assessment of the implications for the site under the Habitats Directive must relate to the current date of the review.

  • Sources of law
    Environmental Appeals Act UmwRG, Umwelt-Rechtsbehelfsgesetz sections 1 (1) first sentence, 2 (1) no. 1, sections 3, 5 (1) first sentence
    Administrative Procedure Act VwVfG, Verwaltungsverfahrensgesetz section 75 (1a) second sentence
    Directive 92/43/EEC (Habitats Directive) articles 4 (1) and (5), 6 (2) to (4)
    Dirtective 2009/147/EC (Birds Directive)article 4
    Code of Administrative Court Procedure VwGO, Verwaltungsgerichtsordnung sections 86 (1), 108 (1), 144 (3) first sentence no. 1
    Roads Act of the Federal State of Saxony SächsStrG, Sächsisches Straßengesetz section 3 (1) no. 1, section 39
    Act on Environmental Impact Assessment in the Federal State of SaxonySächsUVPG, Gesetz über die Umweltverträglichkeitsprüfung im Freistaat Sachsen section 3 (1) no. 2, no. 2 (c) of annex 1 of section 3 (1) no. 2
    Federal Nature Conservation Act, old version BNatSchG a.F., Bundesnaturschutzgesetz alte Fassung sections 22 first sentence, 42, 43 (4)

Summary of the facts

The claimant, a nature conservation association recognised to take recourse to legal remedies, challenges the planning approval decision dated 25 February 2004 for the new construction of the Waldschlösschenbrücke road bridge, spanning the meadows along the banks of the river Elbe (Elbauen) and the Elbe itself, in the form of various amendment notices. The bridge was constructed between 2007 and 2013 and opened to traffic on 26 August 2013.

The planning approval decision of 25 February 2004 was based on a "Habitats Directive impact study" ("FFH-Verträglichkeitsuntersuchung") completed in January 2003 aiming at assessing possible implications of the construction project for the protection and conservation objectives of the Habitats Directive sites DE4545-301 "Elbe valley between Schöna and Mühlberg" (Elbtal zwischen Schöna und Mühlberg), DE4949-301 "Elbe valley slopes between Loschwitz and Bonnewitz" (Elbtalhänge zwischen Loschwitz und Bonnewitz), DE4848-304 "Prießnitz Valley" (Prießnitzgrund) and DE4645-302 "Separate bat roosts in the greater Dresden area" (Separate Fledermausquartiere im Großraum Dresden), which at the time had been reported to the federal state of Saxony, but not proposed to the European Commission, in the form of a "risk assessment/preliminary assessment" ("Gefährdungsabschätzung/Vorprüfung"). In the event of significant adverse effects, an "in-depth assessment of the implications for the sites under article 6 of Directive 92/43/EEC (Habitats Directive)" must then be carried out. Based on a five-tier significance scale, the report concludes that the construction project would have no permanent or significant adverse effects on the conservation objectives of the Habitats Directive sites. Referring to the report, the planning approval decision states that an "extended assessment of the implications for the sites under the Habitats Directive" (FFH‑ Verträglichkeitsprüfung) was not required.

In December 2004, the European Commission included the aforementioned Habitats Directive sites in the list of sites of Community importance. By ordinance of 19 October 2006, the Dresden Regional Commissioner's Office (Regierungspräsidium) declared the Elbe valley between Schöna and Mühlberg, with the exception of a part of the meadows along the banks of the river Elbe situated in the centre of Dresden, to be a special protection area under the Birds Directive (EU notification number DE4545-452).

The claimant lodged an application for interim protection in order to prevent commencement of the construction work. The Higher Administrative Court (Oberverwaltungsgericht) finally dismissed the application, and construction work began at the end of 2007.

The planning approval decision was then supplemented and amended several times.

The Administrative Court had dismissed the action in its judgment of 30 October 2008.

By judgment of 15 December 2011, the Higher Administrative Court dismissed the claimant's appeal on points of fact and law.

With its appeal on points of law lodged in due time, the claimant claims that the contested judgment and the underlying planning approval decision breach nature conservation law, in particular the provisions implementing the Habitats Directive and the provisions on the conservation of birds.

By decision of 6 March 2014 ‑ 9 C 6.12 -, the Senate suspended the proceedings and asked the Court of Justice of the European Union to clarify various questions on the interpretation of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (Habitats Directive). By judgment of 14 January 2016 - C-399/14 [ECLI:EU:C:2016:10], Grüne Liga Sachsen -, the Court of Justice decided on the reference for a preliminary ruling.

Reasons (abridged)

15 The appeal on points of law is admissible and predominantly well-founded. (…)

16 (…) The contested planning approval decision is unlawful.

31 b) The legal opinion of the Higher Administrative Court that the defendant adhered to the requirements of European and national laws on the conservation of habitats with respect to the Habitats Directive site "Elbe valley between Schöna and Mühlberg" is (...) incompatible with federal law. Although the Higher Administrative Court - whilst assuming an excessively strict protection status of the Habitats Directive site prior to its designation (aa) - correctly holds that the 2003 "Habitats Directive impact study" constitutes a mere risk assessment which does not meet the requirements of article 6 (3) of the Habitats Directive (cc), errors have, contrary to the assumption of the Higher Administrative Court, not been remedied by the additional assessment conducted in 2008 (dd), in the light of the requirements of the deterioration ban pursuant to article 6 (2) of the Habitats Directive (bb).

32 aa) Neither European nor national law prescribed an obligation to carry out an assessment of the implications for the site in accordance with the requirements of article 6 (3) of the Habitats Directive prior to the designation of the site, meaning that the Higher Administrative Court insofar assumes an excessively strict standard of review.

33 Projects authorised before the site on which they are to be implemented was included in the list of sites of Community importance are not subject to the requirements relating to the procedure for prior assessment of the implications for the relevant site according to article 6 (3) of the Habitats Directive. This ensues from article 4 (5) of the Habitats Directive (established jurisprudence, see CJEU, judgment of 14 January 2016 - C-399/14 - para. 32 with further references). (…)

36 bb) Notwithstanding the fact that a comprehensive assessment of the implications for the site under the Habitats Directive was therefore not required prior to the designation of the site, the defendant, after the inclusion of the site in the list of sites of Community importance, was however obliged under article 6 (2) of the Habitats Directive (so-called deterioration ban) to take appropriate protective measures prior to commencement of the construction works in order to avoid a deterioration of the site as described in the Habitats Directive.

37 In this respect, in its decision to request a preliminary ruling of 6 March 2014 (para. 26 et seqq.), the Senate has already stated that: According to the case-law of the Court of Justice, the implementation of a project falls within the scope of article 6 (2) of the Habitats Directive if the system of protection provided by this Directive has meanwhile become applicable due to the designation of the site as a site of Community importance. Consequently, it must be guaranteed that the implementation of the project does not cause disturbance which could have significant effects in the light of the Habitats Directive's objectives. The Member State is obliged to take appropriate measures to avoid the deterioration of natural habitats and the habitats of species for which the areas have been designated due to a plan or project (CJEU, judgments of 14 January 2010 - C-226/08 [ECLI:EU:C:2010:10], Stadt Papenburg - para. 49 and of 24 November 2011 - C-404/09 [ECLI:EU:C:2011:768], Alto Sil - para. 126, 128). According to the case-law of the Court of Justice, a subsequent review of an existing building permit can be considered as such a measure (CJEU, judgment of 20 October 2005 - C-6/04 [ECLI:EU:C:2005:626] - para. 57 et seq.). Furthermore, the Court of Justice emphasises in its established case-law that article 6 (2) and (3) of the Habitats Directive provide the same level of protection (CJEU, judgment of 13 December 2007, C-418/04 [ECLI:EU:C:2016:8], Commission/Ireland - para. 250). Therefore, in its judgment of 24 November 2011 (see above para. 156 et seq.) the Court of Justice also considers it possible that a Member State may, in a subsequent review procedure provided for in article 6 (2) of the Habitats Directive, invoke a reason of public interest by analogy with the procedure in derogation provided for in article 6 (4) of the Habitats Directive. In light of this case-law, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) takes the view that there are many reasons indicating that the planning approval authority was obliged to review the planning approval decision of 25 February 2004 (once again) with regard to its compatibility with the conservation objectives of the site following its designation or to take other appropriate measures to ensure that construction of the bridge structure and its opening to traffic does not result in a deterioration of natural habitats and the habitats of species and in a significant disturbance of the species for which the site has been designated.

38 The Court of Justice has since confirmed this view and specified the requirements of article 6 (2) of the Habitats Directive: The implementation of a project which was authorised prior to the designation of a site and, accordingly, was not subject to the requirements relating to the procedure for a prior assessment according to article 6 (3) of the Habitats Directive, nevertheless falls within the scope of article 6 (2) of that Directive (CJEU, judgments of 14 January 2016 - C-399/14 - para. 33 and - C-141/14 [ECLI:EU:C:2016:8], Commission/Bulgaria - para. 51). Although Member States generally enjoy discretion with respect to the "appropriate steps" to be taken pursuant to article 6 (2) of the Habitats Directive (CJEU, judgment of 14 January 2016 - C-399/14 - para. 40), the implementation of such project may be commenced or pursued only on the condition that the probability or risk of deterioration of habitats or disturbance of species has been excluded (CJEU, see above para. 43). If this is not the case, i.e., where such probability or risk might appear because a subsequent assessment of the implications of a plan or project for the site concerned on the basis of the best scientific knowledge was not carried out, the general obligation of protection pursuant to article 6 (2) of the Habitats Directive entails an obligation to carry out that assessment (CJEU, see above para. 43 et seq.). In particular, if the project is to be authorised by the derogation procedure provided for in article 6 (4) of the Habitats Directive, which may also be effected by way of a subsequent assessment (CJEU, see above para. 55), the requirements of article 6 (3) of the Habitats Directive must be strictly observed due to the tiered review programme provided by article 6 (3) and (4) of the Habitats Directive (CJEU, see above para. 56 et seq.).

39 cc) In the present case, the deterioration ban pursuant to article 6 (2) of the Habitats Directive could only be guaranteed by a subsequent assessment of the implications for the site which meets the requirements of article 6 (3) and (4) of the Habitats Directive (1), whereby the review must have had to relate to the current date of the subsequent review (2).

40 (1) The Senate may leave open the question of which other "appropriate steps" would come into consideration for guaranteeing the deterioration ban under article 6 (2) of the Habitats Directive (see on this opinion of Advocate General Sharpston of 24 September 2015 in the proceedings C-399/14 para. 49), since in the present case, the obligation of protection pursuant to article 6 (2) of the Habitats Directive entails a duty to subsequently assess the implications of a project under article 6 (3) of the Habitats Directive: According to the defendant's own later conclusions, a derogating decision pursuant to article 6 (4) of the Habitats Directive was required for the project. In addition, at the time of the designation of the site, no subsequent assessment of implications had been carried out on the basis of the best scientific knowledge with respect to the project. In this regard, in its decision to request a preliminary ruling (para. 23), the Senate had already explained that: (...) The latter, despite its designation as a "Habitats Directive impact study", did not meet (...) the requirements that must be applied to an assessment of the implications for a site pursuant to article 6 (3) and (4) of the Habitats Directive, it rather constituted, according to the perception of the environmental office conducting the assessment, a preliminary assessment or risk assessment. Also, the five-tier evaluation scale underlying the assessment, according to which an intervention is only deemed to be significant if it either leads to the loss of a considerable part of the area of a habitat or to negative qualitative and structural alterations of such habitat, fails to meet the assessment criterion of "significant effect" derived by the Federal Administrative Court from article 6 (3) of the Habitats Directive and from the case-law of the Court of Justice (see most recently CJEU, judgment of 11 April 2013 - C-258/11 [ECLI:EU:C:2013:220], Lough Corrib - para. 40 with further references), according to which generally every (permanent) adverse effect on the conservation objectives, in particular every loss of area exceeding a de minimis limit is significant and is considered an adverse effect on the site as such (BVerwG, judgments of 17 January 2007 - 9 A 20.05 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 128, 1 para. 41, 50 and of 12 March 2008 - 9 A 3.06 - BVerwGE 130, 299 para. 124 et seq.).

41 The Senate adheres to this jurisprudence.

42 (2) The subsequent assessment of the implications for the site under the Habitats Directive to be conducted prior to the execution of construction work had to relate to the current date of the review and could not refer back to the date of the original approval granted prior to the date on which the site concerned was included in the list of sites of Community importance. In this respect, in its decision to request a preliminary ruling (para. 38 et seqq.), the Senate had already explained that: The Federal Administrative Court examined the issue of which date a subsequent assessment of the implications for the site (pursuant to article 6 (3) of the Habitats Directive) should relate to in the context of a supplementary procedure seeking to remedy an error. Pursuant to the findings, the applicable date is primarily defined by the objectives of the supplementary procedure. If the procedure is confined to remedying an individual error from a previous decision, the date of the (first) planning approval decision is to remain the applicable date. However, the outcome is different if the planning approval authority bases its decision in the supplementary procedure on changed factual or legal circumstances and re-evaluates the assessment of the implications for the site based on the updated assessment criteria. Under such circumstances, the date of the update is decisive (BVerwG, judgments of 12 March 2008 - 9 A 3.06 - BVerwGE 130, 299 para. 31, 131 and of 14 April 2010 ‑ 9 A 5.08 - BVerwGE 136, 291 para. 29). (...) According to the Senate, the same should hold true under EU law. The assessment procedure to be conducted pursuant to article 6 (2) of the Habitats Directive primarily seeks to guarantee that the implementation of a project, which has previously been approved but was not subject to a (comprehensive) assessment of the implications for the site, does not have significant effects on the site of Community importance. This objective would be attained only incompletely if the review relied upon the status of habitats and species at the time of the approval (which may have been issued several years ago) rather than upon the current conservation status of such habitats and species, which may well have changed following the partial or total implementation of the project. Therefore, the principle of effectiveness under EU law also supports a review based on latest findings. Furthermore, it follows from the Papenburg judgment of the Court of Justice of 14 January 2010 (C-226/08 para. 41 et seqq.) that the fact that a project was definitively authorised prior to the designation of a site does not prevent the project from being reviewed with regard to the current date.

43 The Court of Justice of the European Union has since confirmed this view as well. The objective of the deterioration ban would be attained only incompletely if a subsequent review relied upon the conservation status of habitats and species disregarding or obscuring factors that have caused or that are likely to continue to cause significant deterioration or disturbance after the date on which the site concerned was included in the list in question (CJEU, judgment of 14 January 2016 - C-399/14 - para. 60). All factors existing at the date of the inclusion of that site in the list of sites of Community importance and all implications arising or likely to arise following the partial or total implementation of the plan or project on the site in question after that date must be taken into account (CJEU, see above para. 61 et seq.).

44 dd) No such subsequent assessment of the implications for the site that meets the requirements of article 6 (3) and (4) of the Habitats Directive was conducted prior to commencing the construction works. Also, contrary to the assumption of the Higher Administrative Court (printed judgment para. 190 et seqq.), no such assessment was conducted at a later point in time. The planning revision procedure of 2008 was unsuitable for remedying errors, simply because the new assessment of implications was limited to two topics, namely to two habitat types and one butterfly species, and was also explicitly based on the prevalent factual and legal situation in 2004, meaning that the issue of commenced construction works was deliberately ignored. The Higher Administrative Court correctly concluded that the assessment of the implications for the site conducted in 2010 in the context of the floating assembly was unsuitable for remedying errors due to its limitation of the subject matter (printed judgment para. 193 et seq.).

45 c) The relevant authority committed further errors in respect of species protection.

46 The planning approval decision of 25 February 2004 lacks an assessment of the prohibitions under species protection law as required by article 12 et seqq. of the Habitats Directive. (…)

51 5. The defendant must now conduct a supplementary procedure to remedy the established errors.

52 In this context, the Senate provides the following indications:

53 a) (...) In any case, the public participation procedure must be carried out once again, since the assessment of the implications for the site and the assessment under the provisions of species protection law constitute, under the specific circumstances of the case at issue - subsequent re-evaluation following the completion and opening to traffic of the project which has meanwhile become subject to EIA -, essential documents within the meaning of section 6 (1) Environmental Impact Assessment Act (UVPG, Gesetz über die Umweltverträglichkeitsprüfung).

54 b) The object and date of the subsequent assessment of the implications for the site under the Habitats Directive are to be deduced from the foregoing statements regarding no. 3 (b) (cc).Now that the project is completed and opened to traffic, the subsequent review serves primarily to determine whether the continued existence of the project has significant effects on the Habitats Directive site "Elbe valley between Schöna and Mühlberg". This requires an assessment of whether any risks of deterioration or disturbance, which could have significant effects as defined in article 6 (2) of the Habitats Directive, have already materialised due to the completion of the structure in question. In addition, the review must establish whether such risks might arise due to the continued use of the structure (see CJEU, judgment of 14 January 2016 - C-399/14 - para. 70).

55 With respect to the issue of the applicable date, the review must initially focus on the time immediately after the date on which the site was included in the list of sites of Community importance. Only in this way, it is possible to determine the significance of the adverse effects caused by the fully completed project. Aside from this specific point in time, the date of the subsequent review to be conducted is crucial in the context of the assessment of the implications for the site under the Habitats Directive. All changes caused by the project individually or in combination with other projects must be considered, meaning that all deteriorations and any improvements regarding the status of the site which have materialised at the time of the review must be included. Other projects, which have since, similar to the bridge, been completed are hence to be considered as pre-existing in the review.

56 c) It follows from the above that the assessment of whether the project (in this context: its continued existence or use), "in combination with other plans and projects", is likely to have a significant effect on the Habitats Directive site (see article 6 (3) of the Habitats Directive), requires a cumulative assessment that relates to the date of the subsequent review. In this respect, the assessment of the implications for the site must consider other projects only if the implications of such projects and thus the extent of the summation effect, can be reliably foreseen. However, this is only generally possible after the authorisation decision has been issued (BVerwG, judgments of 21 May 2008 ‑ 9 A 68.07 - (...) and of 24 November 2011 - 9 A 23.10 ‑ BVerwGE 141, 171 para. 40; decision of 28 November 2013 ‑ 9 B 14.13 - (...)). Furthermore, it must at least be possible to review whether activities are compatible with the conservation objectives of an area of conservation, for example, based on plans, concepts or established practices (BVerwG, judgment of 8 January 2014 - 9 A 4.13 - BVerwGE 149, 31 para. 55).

57 d) The subsequent review must also consider the other nearby Habitats Directive sites which were included in the Commission's list of sites at the same time as the "Elbe valley between Schöna and Mühlberg", as well as the special protection area under the Birds Directive (EU notification number DE4545-452). In this respect, it must be determined whether simple Habitats Directive impact studies, which must be comprehensively documented, are sufficient or whether a more detailed assessment of the implications for the site is required.

58 e) The species protection assessment must also refer to the current date, since the bridge has already been completed and is open to traffic.

59 f) In the event of a negative outcome of the assessment of the implications for the site under the Habitats Directive, a derogation procedure as defined in article 6 (4) of the Habitats Directive must be carried out. This provision applies mutatis mutandis to subsequent reviews, as is pursuant to article 6 (2) of the Habitats Directive being carried out with the present case seeking to remedy errors; as an exception, the provision must principally be strictly interpreted (CJEU, judgment of 14 January - C-399/14 para. 55 et seqq. and 71 et seqq.). Under the current circumstances of the present case, the question is whether the continued existence of the completed bridge structure and maintaining traffic operations are justified by imperative reasons of overriding public interest. The weight of public interest is primarily determined by the extent of traffic infrastructure improvements and other improvements which have been and are to be achieved through the existence of the bridge. The weight to be attributed to the protection of the site under the Habitats Directive (interest to preserve its integrity) depends on the extent of adverse effects that are yet to be determined. The assessment of the implications for the site under the Habitats Directive and the species protection assessment to be newly carried out with respect to the current date of the review form the basis for the above determination.

60 Alternative solutions, in particular the controversial weighing of bridge against tunnel, must be examined once again, although this must take into account the fact that the bridge has already been completed and could only be removed at the price of a further intervention. Therefore, as part of a subsequent derogation procedure, demolition of the bridge can only be the ultima ratio. A main consideration would be to restrict use of the structure or to close it. While the economic costs of closing or demolition measures may be considered when examining alternative solutions, they are, however, not of equal importance to the objective of conserving natural habitats and wild fauna and flora pursued by the Habitats Directive (see CJEU, judgment of 14 January 2016 - C-399/14 - para. 74, 77).