The claimant is challenging the licence for the construction and operation of an asphalt mixing plant, which was issued in a notice of 15 November 2012 and granted to the third party summoned to attend the proceedings as a party whose rights may be affected (hereinafter summoned third party). He is the owner of neighbouring land located in the Habitats Directive site "Obere Schwentine" (FFH DE 1830-391) in the federal state of Schleswig-Holstein. 

Following unsuccessful preliminary administrative proceedings, the claimant filed an action that was dismissed by the Administrative Court (Verwaltungsgericht) in its judgment of 22 September 2016. By judgment of 28 November 2019, the Higher Administrative Court (Oberverwaltungsgericht) dismissed the appeal on points of fact and law against the Administrative Court's judgment. 

The claimant's appeal on points of law was unsuccessful.

7 The appeal on points of law is without merit and is therefore to be dismissed (section 144 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The challenged judgment is not based on a breach of the law that is subject to an appeal on points of law (section 137 (1) VwGO). As the owner of land situated in a Natura 2000 site, the claimant cannot rely on the provisions of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz) enacted to implement 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. Such a right to bring an action results neither from national law (A.), nor EU law or EU law in conjunction with the Aarhus Convention (AC) (B.).

8 A. A violation of the claimant's own rights (section 113 (1) first sentence VwGO) concerning the provisions of sections 32 et seqq. BNatSchG is ruled out.

9 1. According to the jurisprudence of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), the provisions of sections 32 et seqq. BNatSchG enacted for the protection of Natura 2000 sites, which the claimant invokes, are designed solely to protect the natural habitat of animal and plant species of Community interest, including the European bird species; they are not intended to protect private interests (BVerwG, judgment of 26 April 2007 - 4 C 12.05 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 128, 358 para. 31). To the extent that humans also benefit from the legal requirements that have the aim of protecting the said environmental assets, whether it be in the form of the feeling of an improved quality of life, namely when meeting recreational needs, or whether it be in some other way, this is a mere legal reflex. However, these persons are not granted an individual legal position from which they may derive a right to defend themselves (...).

10 2. Contrary to the view of the claimant, nothing else proceeds from the constitutionally-protected right to property. In particular, the basic right to property according to article 14 of the Basic Law (GG, Grundgesetz) does not require that the protective provisions for Natura 2000 sites enacted solely in the public interest should be interpreted in favour of the owner of protected land as having a protective effect for the individual and should grant him or her a right to bring an action based on section 32 et seqq. BNatSchG. Contrary to the view of the claimant, restrictions of the rights of the owner which are associated with the protection of an area and which represent a determination of content and limits of property in the sense of article 14 (1) second sentence GG are not just proportionate once the owner has a right to bring an action against violations of protective provisions under nature conservation law that apply to that area.

11 a) What is instead decisive for the proportionality of the prohibitions and requirements associated with the protection of areas owned by private individuals under nature conservation law as well as the proportionality of the obligations of the owner to tolerate certain measures (see section 65 BNatSchG) is whether, when compared with the protective aims of nature conservation law that are legitimate under constitutional law, the designation of areas of conservation is suitable, necessary, and, in the light of the function of the right to property to ensure freedom (...), appropriate. What is true here is that nature conservation is a task of high priority in the public interest (...) and that there is an increased requirement for the use of the property to serve the common good (see article 14 (2) GG) in a piece of land put under nature conservation, due to the fact that it is tied to the situation, i.e. the location and quality of the respective plot (see on the law concerning the conservation of architectural heritage Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 2 March 1999 - 1 BvL 7/91 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 100, 226 <242>).

12 The Higher Administrative Court has correctly pointed out that not every adverse effect on a Natura 2000 site that is contrary to the conservation regime leads to the respective areas no longer being worthy of protection and therefore losing the reason justifying the restriction of the powers of the owner. Something different should only apply if an area - possibly also as the result of a significant adverse effect caused by a third party involved - has become irretrievably unsuitable to achieve the objectives of the Habitats Directive and of the national implementing provisions (see Court of Justice of the European Union (CJEU, hereinafter Court of Justice), judgment of 3 April 2014 - C-301/12 [ECLI:EU:C:2014:214], Cascina Tre Pini - para. 29 et seq.). In such a case, the owner may defend himself or herself in court against the continuing restriction of property associated with the protection under nature conservation law - including with regard to the requirement of effective legal protection inherent in the right to property (see, in this respect, BVerwG, judgment of 16 March 1989 - 4 C 36.85 - BVerwGE 81, 329 <341> with further references). However, nothing to this end was asserted.

15 B. Nor can a right to bring an action of the claimant be derived from EU law or from EU law in conjunction with the Aarhus Convention.

16 1. The EU provisions of the Habitats Directive do not - in line with the interpretation of the national provisions of section 32 et seqq. BNatSchG - grant the individual subjective rights.

17 a) According to article 2 (1) of the Habitats Directive, its aim shall be to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora. Article 2 (2) of the Habitats Directive states that measures taken pursuant to the Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest. Taking these provisions as a starting point, the Court of Justice states in its judgment of 8 November 2016 - C-243/15 [ECLI:EU:C:2016:838], Slovak Brown Bear II - (para. 43) with regard to article 6 (3) of the Habitats Directive, according to which any plan or project likely to have a significant effect on a Natura 2000 site shall be subject to an assessment of its implications for the site, that the provision plays a part in attainment of the objective pursued by measures taken pursuant to that Directive. The Court of Justice also refers to the additional objective, which is to ensure a high level of environmental protection as regards the sites protected pursuant to the Habitats Directive (CJEU, see above). In this sense, the Advocate General Kokott already referred to the fact in the "Cockle Fisheries" case that no indications existed that the Habitats Directive established rights of the individual. Unlike in the case of rules on the quality of the atmosphere or water, the protection of common natural heritage was of particular interest, but not a right established for the benefit of individuals (opinion of Advocate General Kokott of 29 January 2004 - C-127/02 [ECLI:EU:C:2004:60], Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels - para. 143).

18 Also the latest case-law of the Court of Justice does not contain any indications that the Court of Justice could attribute the character of a norm protecting individual interests to the provisions of the Habitats Directive. Subject to the condition that natural or legal persons are directly concerned by an infringement of provisions of a directive, the Court of Justice in general sees the necessity for the protection of individual rights (CJEU, judgment of 3 October 2019 - C-197/18 [ECLI:EU:C:2019:824], Wasserleitungsverband Nördliches Burgenland - para. 32). In order to determine whether this is the case, it is necessary to examine the purpose and the relevant provisions of that directive (CJEU, see above, para. 35; see, in this respect, also BVerwG, judgment of 30 November 2020 - 9 A 5.20 - (...) para. 44 with further references). Applying these principles, the Court of Justice has stated with regard to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ L 375 p. 1) that this Directive, inter alia, protected human health and safeguarded the legitimate use of water. The Court of Justice said that this indicates that a natural or legal person having the option of drawing and using groundwater is directly concerned by an infringement (CJEU, see above, para. 36 et seqq.). Similarly, in its judgment of 28 May 2020 - C-535/18 [ECLI:EU:C:2020:391], Land Nordrhein-Westfalen - (para. 128 et seqq.), the Court of Justice recognised the fact that persons having the option of drawing and using groundwater are directly concerned, given the objective of the Water Framework Directive (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy - Water Framework Directive, OJ L 327 p. 1) of protecting groundwater as a resource for human use.

19 The Habitats Directive lacks a comparable objective geared toward human health or the use of natural resources. In this sense, for the interpretation of article 4 of the Water Framework Directive, the Court of Justice refers to the fact that the rules of EU environmental law are usually in the public interest, rather than simply in the interests of certain individuals (CJEU, judgment of 20 December 2017 - C-664/15 [ECLI:EU:C:2017:987], Protect - para. 47; see also the previous judgment of the Court of Justice of 12 May 2011 - C-115/09 [ECLI:EU:C:2011:289], Trianel - para. 46).

20 b) Contrary to the view of the claimant and the considerations of the Federal Court of Justice (BGH, Bundesgerichtshof) in its judgment of 19 July 2019 - V ZR 177/17 - (...) that tend in the same direction, nothing different results from the fact that in proceedings concerning a representative action (Verbandsklageverfahren) the Court of Justice says that the effectiveness of the Habitats Directive requires that individuals be able to rely on it in legal proceedings, and that the national courts be able to take that Directive into consideration as an element of EU law (CJEU, judgment of 8 November 2016 - C-243/15, Slovak Brown Bear II - para. 44). These statements were taken with express reference to an older decision of the Court of Justice - also issued in the course of proceedings concerning a representative action - on the question of the relevance of a directive's provision, here article 6 (3) of the Habitats Directive, in judicial proceedings as binding law, prior to the determination as to whether a person is directly concerned (CJEU, judgment of 7 September 2004 - C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels - para. 66 and 69). The cited decision on the Nitrates Directive already contains a corresponding differentiation. The Court of Justice also establishes here in a first step, that it would be incompatible with the binding effect of a directive to exclude, in principle, the possibility that the obligations which it imposes on the Member States may be relied on by the persons concerned and that the effectiveness of an obligation imposed on the Member States by a directive would be weakened if individuals were prevented from relying on it before their courts (CJEU, judgment of 3 October 2019 - C-197/18, Wasserleitungsverband Nördliches Burgenland - para. 30 et seq.). In a second step, the Court of Justice then limits this such that, "at least the natural or legal persons directly concerned by an infringement" and therefore specifically not "the individuals" as such, must be in a position to require compliance with such obligations, if necessary by pursuing their claims by judicial proceedings, and continues by examining the conditions under which a situation where persons are directly concerned has to be assumed (CJEU, see above, para. 32 and 35 et seqq.).

21 2. EU law - in conjunction with the Aarhus Convention - also does not require the possibility for the claimant to be able to assert in court the breaches of provisions of the Habitats Directive regardless of an infringement of own rights.

22 a) The Court of Justice does not question the decision of the national legislature in favour of the set of rules of the action by a party whose rights are impaired (Verletztenklage) that is designed to protect the rights of the individual in addition to an action by a party with sufficient interest (Interessentenklage), both explicitly stated in article 9 (2) second subparagraph of the Aarhus Convention (CJEU, judgments of 12 May 2011 - C-115/09, Trianel - para. 38 et seqq., 44 et seqq., of 16 April 2015 - C-570/13 [ECLI:EU:C:2015:231], Gruber - para. 32 et seqq. and of 15 October 2015 - C-137/14 [ECLI:EU:C:2015:683], Commission/Federal Republic of Germany- para. 32 et seq.). The EU law - including in connection with the right to an effective remedy under article 47 of the Charter of Fundamental Rights of the European Union (CFR) - does not require the possibility of a popular action (Popularklage) to which the individual claimant is also entitled. The required effectiveness of legal protection in the event that an infringement of provisions of EU environmental law is claimed must first and foremost be ensured by the design under procedural law of the position of environmental organisations which are assigned a special role already under article 9 (2) third subparagraph second and third sentence of the Aarhus Convention (CJEU, judgment of 8 November 2016 - C-243/15, Slovak Brown Bear II - para. 58 et seqq.; see on the whole issue also BVerwG, judgment of 28 November 2019 - 7 C 2.18 - BVerwGE 167, 147 para. 14).

23 a) A right to bring an action of the claimant can also not be derived from article 9 (3) of the Aarhus Convention. According to this provision, each party to the Aarhus Convention shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. However, this provision does not contain an unconditional and sufficiently specific obligation that could directly regulate the legal situation of individuals. Since only "members of the public" that "meet the criteria, if any, laid down in [their] national law", have the rights provided for in article 9 (3) of the Aarhus Convention, that provision is subject, in its implementation or effects, to the adoption of a subsequent measure. When defining the legal criteria under which members of the public have access to judicial review procedures, as required under this provision, the Member States have some scope for action. Even though this scope for action is limited such that article 9 (3) of the Aarhus Convention in conjunction with article 47 CFR imposes on Member States an obligation to ensure an effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (see CJEU, judgments of 8 March 2011 - C-240/09 [ECLI:EU:C:2011:125], Slovak Brown Bear I - para. 45 et seq. and of 20 December 2017 - C-664/15, Protect - para. 45; see also BVerwG, judgment of 5 September 2013 - 7 C 21.12 - BVerwGE 147, 312 para. 21 and 37). This does not, even in this regulatory context, rule out the decision in favour of an action by a party whose rights are impaired with regard to individual claimants (see BVerwG, judgment of 28 November 2019 - 7 C 2.18 - BVerwGE 167, 147 para. 14 with reference to CJEU, judgments of 12 May 2011 - C-115/09, Trianel - para. 38 et seqq. and 44 et seqq., of 16 April 2015 - C-570/13, Gruber - para. 32 et seqq. and of 15 October 2015 - C-137/14, Commission/Germany - para. 32 et seq.).

24 Based on the case-law of the Court of Justice that has been described, there is no room for reasonable doubt, and so a request for a preliminary ruling under article 267 of the Treaty on the Functioning of the European Union (TFEU), as suggested by the claimant, is not necessary here.