Judgment of 21 January 2021 -
BVerwG 7 C 9.19ECLI:DE:BVerwG:2021:210121U7C9.19.0


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 21 January 2021 - 7 C 9.19 - para. 16.

Challenging of an extension decision under immission control law

Headnotes

1. The cursory review to be performed within the framework of an extension decision under section 18 (3) BImSchG may also include the assessment of errors contained in the installation licence that has become final and binding if an erroneous method in the original licencing procedure continues to have an impact on the assessment as to whether the purpose of the law will be jeopardised in the event of an extension of a time limit.

2. The term jeopardising the purpose of the law in section 18 (3) BImSchG refers exclusively to the purposes of the Federal Immission Control Act stated in section 1 BImSchG.

3. The possibility of conducting a supplementary procedure in order to remedy errors (section 7 (5) UmwRG) is only excluded in the extension procedure under section 18 (3) BImSchG if it can be ruled out from the outset that the error may be remedied in this procedure.

  • Sources of law
    Federal Immission Control ActBImSchG, Bundes-Immissionsschutzgesetzsections 13, 18 (3)

Summary of the facts

The claimant, a recognised environmental protection association, is challenging an extension notice under immission control law granted in favour of the third party summoned to attend the proceedings as a party whose rights may be affected (hereinafter summoned third party) for the construction and operation of a poultry breeding facility.

By notice of 19 November 2012 the defendant granted the summoned third party the licence to construct and operate eight stable buildings with 380,000 places for short-term fattening. In the decision it was determined, among other things, that the licence expires if the installation is not constructed within twelve months upon notification of the decision and if it is not commissioned within another 24 months. This notice became final and binding.

On 22 May 2013, the summoned third party notified the defendant in accordance with section 15 of the Federal Immission Control Act (BImSchG, Bundes-Immissionsschutzgesetz) that it intended to convert its breeding facility from short-term to long-term fattening while at the same time reducing the number of animal places to 328,000, to shift the stable buildings by eight meters and to build the exhaust air system as central ventilation with a deflection height of 13 m above floor level and an exhaust air velocity of 10 m/s. By notice of 28 August 2013, the defendant declared that this does not represent a material change of an installation under immission control law in this respect. The building permit for the construction of the stable buildings was issued to the summoned third party on 19 December 2013.

By notice of 14 April 2014, the defendant extended the time limit for the construction initially to 31 December 2014 and for commissioning by another two years. The stable buildings have been constructed in the meantime but not yet commissioned. In another notice the defendant extended the time limit for commissioning to 22 November 2017. In response to another extension application the defendant suspended the procedure pending the decision in the present proceedings.

The Administrative Court (Verwaltungsgericht) has upheld the action against the first extension notice. The Higher Administrative Court (Oberverwaltungsgericht) dismissed the appeal on points of fact and law of the defendant and of the summoned third party.

The summoned third party's appeal on points of law contests the dismissal. The Higher Administrative Court had failed to recognise that within the extension procedure only the factual and legal changes since the time the original licence was granted need to be reviewed; the review does not also need to include the licence that became final and binding. The 2012 Guidelines on the Determination and Evaluation of Nitrogen Inputs (LAI-Leitfaden 2012) were binding as an administrative regulation, even it was not issued in line with the strict requirements laid down in sections 48, 51 BImSchG. The mean range value should not have been used without any corresponding review when assessing the nitrogen load caused by the installation. The cut-off criterion (Abschneidekriterium) of 5 kg N/(h*) contained in the Guidelines could be explained by the fact that a lower value cannot be measured. It was also unobjectionable that the area of the habitat type as well as the dynamics and intensity of the threat to its populations were taken into account in assessing whether there was a significant effect on specially protected habitats. In any case the action should not have been upheld in full since any errors could be remedied in a supplementary procedure.

The summoned third party's appeal on points of law was successful.

Reasons (abridged)

12 (...) The Higher Administrative Court's judgment violates federal law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). The case must be referred back to the Higher Administrative Court for a further hearing and decision (section 144 (3) first sentence no. 2 VwGO).

13 A. The Higher Administrative Court rightly considered the action to be admissible. Even though, in the case of the claimant, standing to bring a representative action does not result from the fact that by granting an extension of the time limit the defendant circumvented the licencing procedure that is intended to be performed in principle. Its standing does, however, result from section 2 (1) in conjunction with section 1 (1) first sentence no. 5 of the Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz), as the Senate decided in its judgment of 19 December 2019 - 7 C 28.18 - (Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 167, 250 para. 23 et seqq.). With regard to the obligation incumbent upon the courts of the Member States to interpret national law as far as possible in accordance with the objectives stipulated in article 9 (3) of the Aarhus Convention (AC) as well as the objective of effective legal protection, based on an extending interpretation, section 1 (1) first sentence no. 5 UmwRG has to be understood to also cover extension decisions under section 18 (3) BImSchG that only contain elements of a licencing decision.

14 B. With regard to the result, the Higher Administrative Court held without violating federal law that the extended licence granted to the summoned third party under section 18 (3) BImSchG was unlawful because there were sufficient objective indications that the purpose of the law would be jeopardised by extending the time limit.

15 1. The Higher Administrative Court assumed that the review to be performed under section 18 (3) BImSchG as part of an extension decision was not limited to changes that occurred after the original licence for the installation, which, in the meantime, had become final and binding, was granted, but that the lack of licencing requirements that could have been objected to at that time already, would also need to be assessed. Reinstating the holder of the licence as applicant once the time limit has expired without success, in the interest of making it easier to enforce new requirements under immission control law, is in keeping with the purpose of the constituent elements set out in section 18 (1) no. 1 BImSchG that lead to the licence expiring.

16 a) It is correct that the constituent elements of section 18 (1) BImSchG that lead to the licence expiring are based on the generalising assumption of the legislature that the purpose of the Federal Immission Control Act laid out in section 1 BImSchG would be jeopardised if a construction and operating licence continues to apply above and beyond the reasonable time limit granted for implementing the project and that therefore the licencing question in principle arises again. In this respect, the extension procedure serves as a "corrective measure" whose purpose is to delay the time the licence expires in the individual case and thus to extend the period during which an installation is not constructed and commissioned or is shut-down without this having a negative impact on the licence, provided that there is good cause for the fact that the time limit was not met or the operation was interrupted and the purpose of the law (exceptionally) is not jeopardised (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 28 October 2010 - 7 C 2.10 - (...) para. 4, 15). The Federal Administrative Court has not in its previous jurisprudence derived a comprehensive review obligation concerning all licencing requirements from this. Instead it has stressed that it could be deduced from the very wording of section 18 (3) BImSchG that the authority does not have to assess an application for the extension of a time limit in the same way as the original application for the granting of the licence. The extension of the time limit for the licence expiring requires (only) that the extension does not obviously jeopardise the purpose of the law. An extension decision is not a decision about the approval of an installation. It only modifies an additional stipulation of the approval decision, namely its limitation in time (BVerwG, judgment of 19 December 2019 - 7 C 28.17 - BVerwGE 167, 250 para. 17). As a result, there had to be an assessment within the framework of an extension procedure in accordance with section 18 (3) in conjunction with section 18 (1) BImSchG as to whether the factual or legal circumstances on which the licence was based, might have materially changed in the meantime (BVerwG, judgment of 28 October 2010 - 7 C 2.10 - (...) para. 14, 17).

17 This focus in section 18 (3) BImSchG on reviewing whether changes in factual or legal circumstances have occurred since the time the licence was granted argues against the Higher Administrative Court's assumption that the extension procedure has to extend to all licencing requirements already assessed in the course of the original licencing procedure. A general broadening of the scope of the review would exceed the framework of a mere "cursory review" of the continued existence of the licencing requirements as is required by the Federal Administrative Court and would bring the extension procedure largely in line with the full review procedure. Another review of all licencing requirements would run the risk of largely devaluing the function of the extension procedure, at least if the location, nature and operation of the licenced installation remains unchanged and if at the time of the extension decision there has been no change in the legal and factual circumstances. The extension procedure would no longer be a corrective measure based on a final and binding licence and the time limit included therein for the constituent elements of section 18 (1) BImSchG that lead to the licence expiring based on a generalising assessment by the legislature, but would correspond to a second licencing procedure. Its effect would mainly be limited to procedural simplifications such as the fact that the public participation procedure would not need to be carried out (again) and the possibility of referring to the licencing documentation that is already available and has been checked for its completeness.

18 The judgment of the Court of Justice of the European Union (CJEU) of 9 September 2020 - C-254/19 [ECLI:EU:C:2020:680], Friends of the Irish Environment - also does not require another full review as part of the extension decision under section 18 (3) BImSchG. According to this judgment, a decision that grants an extension to a time limit for the implementation of a project that might have a significant effect on a Habitats Directive site, may be considered to be an agreement within the meaning of article 6 (3) of the Habitats Directive. However, this does not mean that an assessment of the implications for the site has to be performed again in all cases as part of an extension decision under section 18 (3) BImSchG with regard to such a project. The Court of Justice of the European Union rather stresses that it is the task of the competent authority to assess whether a decision that extends the original time limit for the implementation of a project has to be subject to an assessment of the implications for the site and whether such an assessment must relate to the entire project or only part thereof, taking into account previous assessments that may have been carried out and changes in the relevant environmental and scientific data as well as changes to the project and the existence of other plans or projects (CJEU, judgment of 9 September 2020 - C-254/19, Friends of the Irish Environment - para. 56, 59). This corresponds to the assessment criteria developed by the jurisprudence of the Senate with regard to section 18 (3) BImSchG. As part of the cursory review as to whether it must be feared that the purpose of the law might be jeopardised, the question of whether an assessment of the implications for the site performed in the course of the original licencing procedure is still sufficiently up-to-date and meaningful given changes in the project and (material) changes in scientific knowledge or legal requirements has to be considered. If an assessment under the Habitats Directive has not taken place at all in the original licencing procedure, even though it would (obviously) have been necessary, the purpose of the law is jeopardised simply for this reason (see BVerwG, judgment of 19 December 2019 - 7 C 28.18 - BVerwGE 167, 250 para. 28).

19 b) However, there is no need for a final decision concerning the question as to the extent to which the requirements that were already assessed in the original licencing procedure may be - or, as the case may be, have to be - reassessed in the course of the extension decision. In the present case, the summoned third party is planning to implement the project in a manner that differs from the originally licenced installation in terms of location, nature and mode of operation. As part of the notification procedure under section 15 BImSchG, the summoned third party submitted a comparison between the ammoniac emissions and nitrogen deposition of the originally licenced installation with the values of the changed installation, which is based on the analyses performed during the licencing procedure, using the same methodological approaches, in particular with regard to the determination of the critical loads. This comparison is the basis for the review performed by the defendant in the extension procedure. Taking this as the starting point, it is unobjectionable that the Higher Administrative Court reviewed the decision under section 18 (3) BImSchG to see whether in the original licencing procedure for the installation the values that were also used in the comparison were accurately determined. This is because a (methodological) error in the original licencing procedure continues to have an effect in the extension procedure and has an impact there (as well) on the assessment as to whether the purpose of the law is jeopardised by an extension.

20 The exemption declared by the defendant under section 15 (2) second sentence BImSchG with regard to the changes of the installation - shift of the stable buildings, change of the exhaust air system and conversion from short-term to long-term fattening - does not render the review under section 18 (3) BImSchG unnecessary. What is regulated in a binding manner in the exemption declaration is only that the changes do not require a licence under section 16 (1) BImSchG. However, it does not contain any legally binding determination that the notified changes do not have effects that jeopardise the purpose of the Federal Immission Control Act; it therefore does not have any binding effect as part of the review of the extension application under section 18 (3) BImSchG (BVerwG, judgment of 28 October 2010 - 7 C 2.10 - (...) para. 19, 23 et seqq.).

21 2. The Higher Administrative Court rightly assumed that the Guidelines on the Determination and Evaluation of Nitrogen Inputs issued by the joint working group on immission control of the Federal Government and the governments of the federal states in the version of 1 March 2012", which formed the basis for the assessments of the nitrogen impacts of the poultry breeding facility, is not binding in the court proceedings. The 2012 Guidelines are neither administrative regulations specifying a legal provision nor a scientific convention.

22 a) Administrative regulations specifying a legal provision are characterised by the fact that they are issued on the basis of section 48 BImSchG by the Federal Government after hearing the parties involved under section 51 BImSchG and therefore, provided that they specify indefinite legal terms (unbestimmte Rechtsbegriffe) by means of principally binding determinations and requirements, have external legal effect under certain circumstances, and that the question of whether and to what extent the requirements for their application have been met is subject to judicial review (BVerwG, judgments of 20 December 1999 - 7 C 15.98 - BVerwGE 110, 216 <218> and of 21 June 2001 - 7 C 21.00 - BVerwGE 114, 342 <346>). In the present case, the procedural requirements themselves are not met. The Federal Government has neither formally issued the Guidelines as a general administrative regulation with the consent of the Bundesrat nor has the hearing of the parties involved provided for in section 51 BImSchG taken place. Instead, the Guidelines were prepared and published by a joint working group of the Federal Government and the governments of the federal states with the involvement of experts from the different ministries in order to standardise the processing of licencing applications.

23 b) Nor do the Guidelines have the same meaning in the court proceedings as the "2019 Nitrogen Guidelines for Roads". The "Nitrogen Guidelines for Roads", the final version of which has been published in the 2019 edition in the meantime (H PSE 2019), have the status of a technical convention according the jurisprudence of the Federal Administrative Court; they reflect the current best scientific knowledge and the courts may base their decisions on these guidelines since the limits of what courts are able and required to investigate and control are reached in this regard (BVerwG, judgment of 15 May 2019 - 7 C 27.17 - BVerwGE 165, 340 para. 32 with further references and referring to Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 23 October 2018 - 1 BvR 2523/13, 1 BvR 595/14 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 149, 407 para. 28 et seq.). The "Nitrogen Guidelines for Roads" are based on a research and development project and were prepared by a body of expert scientists in a consultation procedure lasting several years with the involvement of relevant groups of experts and the participation of the public in the course of which the nature conservation associations also made their statements and presented their concerns. The public expert committees of the joint working groups of the Federal Government and the governments of the federal states on immission control (Bund/Länder-Arbeitsgemeinschaft Immissionsschutz) and on nature conservation, landscape management and recreation (Bund/Länder-Arbeitsgemeinschaft Naturschutz, Landschaftspflege und Erholung) were involved in the process as well; with these committees the applicability of the Guidelines for projects under immission control law were coordinated. The "notes" summarised in the Guidelines are therefore based on broad scientific consensus. There are no indications that there could currently exist any better scientific knowledge that might substantially call into question or even refute the methodology, basic assumptions or conclusions of the Nitrogen Guidelines for Roads.

24 The 2012 Guidelines on the Determination and Evaluation of Nitrogen Inputs by the joint working group on immission control of the Federal Government and the governments of the federal states are not of a comparable high quality. They were neither preceded by a research project nor has there been a comparably broad discussion by scientific experts with the involvement of recognised environmental associations and the public.

25 3. The Higher Administrative Court has, in a manner to which no objection can be raised in the proceedings on the appeal on points of law, criticised the fact that (a) the mean range of the critical loads was taken as a basis, (b) lump-sum mark-up factors were used for the calculation of the permissible assessment value in the case of protected habitats, and (c) the level of the cut-off value.

26 a) The Higher Administrative Court derives its criticism of the use of the mean range value of the maximum tolerable nitrogen inputs (critical loads) from the fact that chapter 7.2 no. 2 of the 2012 Guidelines on the Determination and Evaluation of Nitrogen Inputs requires an assessment as to whether there are technical reasons that argue against the use of the mean value in order to assume a mean range value. The type of soil, the type of vegetation prevailing and the degree of nitrogen supply had to be assessed based on specific criteria stated in the Guidelines. Such an assessment of the individual case did not take place, but a general reference was made to the fact that the federal state of Brandenburg had average climatic conditions. The expert papers on ecological matters based on inspections in the summer of 2008 and 2009 also contained no statements concerning the relevant criteria. These findings of the Higher Administrative Court do not apply the law but represent establishment and assessment of facts, which was not challenged by the summoned third party by way of procedural complaints and is therefore binding on the Senate (section 137 (2) VwGO).

27 b) The Higher Administrative Court criticised the use of lump-sum mark-up factors for calculating the permissible assessment value with regard to habitats protected in accordance with section 30 (2) of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz) because, according to the 2012 Guidelines on the Determination and Evaluation of Nitrogen Inputs, the determination of the risk situation of a habitat, that is decisive for the mark-up factors, did not have to be based on the actually affected habitat for the protection category "habitat function" but it was considered to be permissible to take the distribution of the habitat type as well as the dynamics and intensity of the threat to its populations into account. The Higher Administrative Court rejects this approach with the consideration that for habitat protection under section 30 (2) BNatSchG the question of whether there is a threat of the destruction of, or significant effect on, an individual (actual) habitat is decisive, and not whether sufficient habitats of the same kind still exist (...). These considerations withstand a legal review.

28 The prohibition, codified in section 30 (2) BNatSchG, against performing any acts that lead to the destruction of or any other significant effect on legally protected parts of nature and landscape is based on the actually existing habitat and aims at preserving it. The prohibition is based on an approach that is related to the individual protected habitat area and not to the conservation status of the habitat in a specific bio-geographical region (...). Whether the type of habitat affected covers a large distribution area and the degree to which it is at risk are therefore in principle irrelevant in assessing whether significant effects from an installation are to be feared. The regulatory system of section 30 (2) BNatSchG does not provide any basis for such a quantitative assessment. The fact that the level of legal protection for habitats under section 30 (2) BNatSchG is lower than that for the protected areas of the European ecological network "Natura 2000" leads to exactly the same result (...). The lower level of protection does not change the fact that the protection also extends under section 30 (2) BNatSchG to an actual area and that significant effects are prohibited in this respect regardless of this type of habitat developing well at another site and its population not being at risk. This does not mean that mark-up factors on critical loads are excluded per se. The Magdeburg Higher Administrative Court correctly refers to the fact that the different degree of certainty that the authority has to reach concerning the probability of loss in the case of the protection of a Habitats Directive site under section 34 BNatSchG/article 6 (3) of the Habitats Directive on the one hand and in the case of habitat protection under section 30 (2) BNatSchG on the other hand, may leave room for differentiation when it comes to the level of critical loads. The basis for differentiating between protected sites of Community importance and habitat areas - possibly also expressed by means of lump-sum mark-up factors - when it comes to the question as to whether a significant effect can be expected, must, however, be the respective different standards for forming a conviction about an imminent effect and not the size of the distribution area, which is independent of this, or the dynamics and intensity of the threat. The 2012 Guidelines on the Determination and Evaluation of Nitrogen Inputs do not fulfil these requirements.

29 c) Ultimately, the Higher Administrative Court in any event rightly considered the cut-off value used for assessing the effects to be too high. However, there are concerns regarding its reasoning that, given the cut-off value of 0.3 kg N/(h*) or 3% of the respective critical load, which is recognised by the established jurisprudence of the Federal Administrative Court, it is incomprehensible that an irrelevance threshold of 17 times the cut-off value of 0.3 kg N/(h*) should be the basis for legally protected habitats. It does not take sufficient account of the different functions of the cut-off criterion on the one hand and the irrelevance/de minimis threshold on the other hand and the different determination of the respective applicable values. The cut-off criterion serves to determine the area of influences of a planned installation and thus the area and scope of the assessment to be carried out. At the same time, it determines the projects to be included in the cumulative assessment. The cut-off value of 0.3 kg N/(h*) is based on the measurement uncertainty. Below this threshold, the additional load from a project can no longer be determined with reasonable accuracy or cannot be clearly distinguished from the background level (Hintergrundbelastung). Systematically, the cut-off criterion precedes the examination of de minimis thresholds and is to be determined independently of these. If the cut-off value for very low critical loads is above the 3% de minimis threshold, priority must be given to the cut-off value because additional loads and detection limits are only theoretical (BVerwG, judgment of 15 May 2019 - 7 C 27.17 - BVerwGE 165, 340 para. 33 with further references). Since, according to this, the de minimis or irrelevance threshold for nitrogen inputs has to be determined as a relative value independent of the absolute cut-off value, there are methodological concerns that the cut-off criterion is equated with the irrelevance/de minimis threshold and that the criticism of the Higher Administrative Court concerning the de minimis threshold of the 2012 Guidelines on the Determination and Evaluation of Nitrogen Inputs is based on the high amount by which the cut-off value of 0.3 kg N/(h*) is exceeded.

30 The Higher Administrative Court also based its criticism of the cut-off value of 5 kg N/(h*) referred to as "de minimis assessment" in the 2012 Guidelines on the fact that this kind of additional load would lead to habitats that are particularly nitrogen-sensitive reaching 50% up to 100% of the range of maximum tolerable nitrogen load. To disregard such a high nitrogen load for a habitat as irrelevant would neither be comprehensible nor justifiable. This consideration does not give rise to any objections within the scope of the appeal on points of law.

31 With this reasoning the Higher Administrative Court builds on the jurisprudence of the Federal Administrative Court according to which a de minimis threshold, unlike a cut-off value, does not need to be determined by an absolute value but as a relative value based on the respective critical load and therefore the nitrogen sensitivity of a habitat. The value of 3% of the respective critical load recognised in this context in the jurisprudence of the Federal Administrative Court corresponds to an additional load of only 0.3 kg N/(h*) in the case of a CL value of 10 kg. Even with a relatively high CL value of 20 kg it is only around 0.6 kg N/(h*) and therefore significantly below the lump-sum approach of the 2012 Guidelines of 5 kg N/(h*). Such a high additional load clearly can no longer be considered to be de minimis. The Federal Administrative Court already denied a de minimis the effects of which were negligible in the case of additional loads in the range of up to 10% of the critical loads (BVerwG, judgment of 14 April 2010 - 9 A 5.08 - BVerwGE 136, 291 para. 92).

32 C. The Higher Administrative Court has wrongly denied the possibility of remedying an error in a supplementary procedure and has held that a new licencing procedure was necessary.

33 1. In its judgment of 19 December 2019 - 7 C 28.19 - (BVerwGE 167, 250 para. 29) the Senate held that section 7 (5) first sentence UmwRG, according to which the violation of substantive legal provisions only leads to a decision being set aside in accordance with section 1 (1) first sentence no. 1 to 2b UmwRG if it cannot be remedied by supplementing the decision or by a supplementary procedure, also applies in case of extension decisions in accordance with section 18 (3) BImSchG. In order to hold that the decision is unlawful, it is necessary that there is the actual possibility of remedying the error by means of a supplement to the plan or in a supplementary procedure. This requires the violation not to be of such a nature and severity that the project in its main features or as a whole is called into question from the outset (see BVerwG, judgments of 21 March 1996 - 4 C 19.94 - BVerwGE 100, 370 <373> and of 27 October 2000 - 4 A 18.99 - BVerwGE 112, 140 <166> and decision of 20 January 2004 - 4 B 112.03 - (...)). Furthermore, a supplementary procedure only comes into question if it does not seem to be ruled out from the outset that the error can be remedied in this procedure. There have to be actual signs that the defect can be remedied in the foreseeable future. If it is certain at the time of the court decision that it will not be possible to remedy the defect in the foreseeable future for factual or legal reasons, the granting of the licence faces an insurmountable obstacle which does not leave any room for the correction of the error in a supplementary procedure (BVerwG, decision of 20 January 2004 - 4 B 112.03 - (...)). Depending on the circumstances of the specific case the question of whether correction of the error seems to be ruled out needs to be assessed (BVerwG, judgment of 17 May 2002 - 4 A 28.01 - BVerwGE 116, 254 <268> and of 14 November 2002 - 4 A 15.02 - (...) - [to this extent in BVerwGE 117, 149 not printed]).

36 2. For the supplementary procedure and the review of the question as to whether the purpose of the law is jeopardised, contrary to the view of the Higher Administrative Court and the claimant, it is not the factual and legal circumstances at the time when the time limit for the construction of the installation in November 2013 expires that are decisive, but the present circumstances. According to the established jurisprudence of the Federal Administrative Court, the point in time for the judicial review of the lawfulness in a supplementary procedure essentially depends on the objective of the procedure. If it is limited to correcting a selective error of the earlier decision, the point in time of the first decision continues to be decisive (BVerwG, judgment of 27 June 2019 - 7 C 22.17 - (...) para. 14). However, the outcome is different if the authority bases its decision in the supplementary procedure on changed factual or legal circumstances and re-evaluates the assessment based on the updated assessment criteria; then the point in time of the update is decisive. The latter applies in particular if the supplementary procedure takes place at a point in time when the project has already been constructed. In this situation, a realistic review of the effects of a installation that is adjusted to the purpose of the extension assessment cannot be based on a situation that possibly became outdated since the factual circumstances have changed in the meantime (see BVerwG, judgment of 15 July 2016 - 9 C 3.16 - (...) para. 42 et seq. with further references and of 27 June 2019 - 7 C 22.17 - (...) para. 14; CJEU, judgment of 26 July 2017 - C-196/16 et al. [ECLI:EU:C:2017:589], Comune di Corridonia - (...) para. 41).

37 3. It is only possible to establish that a decision is unlawful and that it cannot be executed and to remedy the violation of substantive legal provisions in a supplementary procedure if it can already be determined by the court that all other requirements for the decision that was issued have been met (BVerwG, judgment of 29 May 2018 - 7 C 18.17 - (...) para. 30 et seq.). The Higher Administrative Court therefore will also need to clarify the question that it has left open so far, namely whether the conversion from short-term to long-term fattening as a good cause within the meaning of section 18 (3) BImSchG was only alleged as a pretext for extending the time limits when the licence expires and whether a so-called provisioning case (Bevorratungsfall) exists. The Senate cannot perform such a review since the appeal judgment does not contain any factual findings in that regard.

38 The Senate can, however, decide on the question in dispute between the parties that has been left open by the Higher Administrative Court, namely whether the extension assessment needs to include an examination as to whether other public law provisions in accordance with section 6 (1) no. 2 BImSchG prevent the extension. The answer to this question must be no.

39 The very wording of section 18 (3) BImSchG "purpose of the law", which is based on section 1 BImSchG that defines the purposes of the Federal Immission Control Act, already suggests that examining to ensure that the purpose of the law is not jeopardised is limited to the protected interests under immission control law (...). Nor does it seem reasonable to suppose, in light of the systematic connection, that the term jeopardising the purpose of the law in section 18 (3) BImSchG was intended to have a broader substantive connotation despite the fact that its wording matches section 1 BImSchG (...). The fact that the meaning of the terms matches is also suggested by the legislative purpose of section 18 (3) BImSchG that is mainly aimed at ensuring that after a lengthy time during which a provision under immission control law has not been taken full advantage of, the required standard for threat prevention and precautions for the benefit of the protected interests referred to in section 1 BImSchG is not fallen short of due to (material) legal or factual changes (BVerwG, judgment of 28 October 2010 - 7 C 2.10 - (...) para. 17).

40 A broad meaning of the term does also not follow from the fact that all decisions under public law that are part of the licence under immission control law need to be included in the extension assessment under section 18 (3) BImSchG (...). The regulation in section 13 BImSchG according to which the licence under immission control law includes all other administrative decisions relating to the installation (licences, approvals, grantings, permits and authorisations) - apart from those specifically mentioned there - only orders a concentration under procedural law. Instead of several licences in independent procedures, only one single licence (under immission control law) is granted in one procedure (...). However, the respective specialist law remains applicable for the administrative decisions embodied in the licence under immission control law and the specialist authority remains competent for executing the law. Also, questions relating to the expiry of included licences and other decisions are not governed by the Federal Immission Control Act but by the applicable specialist law. It is recognised that the licences included under section 13 BImSchG continue to be effective in the event that the licencing requirement under immission control law ceases to exist (section 18 (2) BImSchG). The legal independence of the included licences which is expressed by this also has to be taken into account when assessing an extension. This means that the legal requirements for the licences included in the licence under immission control law do not need to be reassessed in the extension procedure. In the cursory assessment it may only be relevant whether the included licences continue to be effective. Insofar as the claimant refers to the fact that the isolated continued effectiveness of included licences could lead to the use of an installation being allowed to be continued despite the licence under immission control law temporarily not being made use of even though such use would no longer be eligible for a building permit under building law, the reason for this is that the continued effectiveness of the building permit is protected under building law. This must be tolerated in the extension procedure under immission control law.