1 The claimants challenge the decision of the Detmold Regional Government (Bezirksregierung, hereinafter the approval authority) of 27 September 2016 which, following an application by the road-building state enterprise of the federal state of North Rhine-Westphalia (Landesbetrieb Straßenbau Nordrhein-Westfalen, hereinafter the project developer), approves the plan for the new construction of the A 33/B 61 motorway feeder road at Ummeln (planning approval decision (Planfeststellungsbeschluss)). This road-building project falls under the scope of application of Directive 2011/92/EU (Environmental Impact Assessment Directive, EIA Directive). In addition to providing a connection with the Bielefeld-Zentrum motorway junction on the A 33, which has already been expanded in a manner similar to a motorway intersection, this is also intended to reduce the volume of local traffic passing through the village of Ummeln. The section of road approved in the plan is approximately 3.7 km long. It is intended that the road should in part have four lanes and in part three lanes.

2 Claimant no. 13 has withdrawn her action. The remaining claimants are affected by the project in the following manner:

3 Claimants no. 1 to 6, 10 and 14 are affected by expropriation, i.e. their land is to be used for the project itself to different degrees or for compensatory measures under nature conservation laws; three of the claimants who are affected by expropriation (no. 3, 6 and 10) are to lose their homes, while others claim to be at risk of losing their livelihoods. Some of the claimants who are affected by expropriation also fear that their land will be flooded. Claimants no. 4, 5, 6 to 12 and 14 have domestic wells for their private water supply; they fear contamination of the water. Almost all the claimants assert noise issues.

4 The planning documents were on public display from 30 August to 29 September 2010. The notice issued prior to the public display referred to a number of documents (traffic report, expert paper on species protection and two faunistic studies) but not to the documents regarding noise protection and the planned drainage system. All the claimants raised objections. The public inquiry was held on 10 and 11 April 2013.

5 Following an analysis of the outcome of the public consultation procedure, the project developer decided on various amendments to the plan. On the basis of objections by the water authority, which had drawn attention to the high groundwater level (approximately 0.25 m below the surface) and the topographical features (shallow stream courses with little sloping), these included, inter alia, amending the drainage of the rainwater that collects on the road surfaces in drainage section 4. This (the smallest) drainage section affects the inner surface of the northern junction section, which has an area of approximately 1.1 hectares. What is now planned is that rainwater should no longer be channelled into bodies of surface water but allowed to seep into the groundwater. Drainage section 4 is not within any water protection zone, but is, however, within the water catchment area of an association of water suppliers (Wasserbeschaffungsverband) which disposes over drinking water wells. As for the rest, the road is to be drained by channelling into certain specified bodies of water in three places via rainwater retention basins and light fluid separators with upstream oil and sludge traps.

6 On the basis of these amendments to the plan, the project developer produced a so-called "cover sheet", in which it provided a list of all the planning documents, including those that had not been amended, and marking the amendments. These cover sheet documents were again put on public display from 19 May to 18 June 2014. The notice issued prior to the public display once again referred to various documents (such as a new traffic study and a new document regarding noise), but not to the amended water technology-related study. All of the claimants once again raised objections.

7 Together with the contested planning approval decision, the Regulatory Authority also granted the Project Developer permission - which is revocable at any time - to channel the rainwater that collects on the road surfaces into three bodies of water and/or into the groundwater, as described above, with the location and scope of the channelling being set out - in more precise detail. With regard both to channelling into the surface bodies of water and to seepage into the groundwater, the planning approval decision includes a large number of additional stipulations which are meant to ensure water protection.

8 Prior to the issue of the planning approval decision there was no documented assessment with regard to bodies of water of the requirements set out in article 4 of the Water Framework Directive (WFD) and/or sections 27 and 47 of the Federal Water Act (WHG, Wasserhaushaltsgesetz). The term "quality element" or "environmental quality standard" does not appear either in the documents approved in the plan or in the planning approval decision. The planning approval decision does, however, state in summary that the project was not likely to result either in a deterioration of the status of a body of surface water or in a deterioration of a body of groundwater. The project therefore did not breach article 4 of the WFD in conjunction with sections 27 and 47 WHG.

9 Only in the course of the judicial proceedings did the approval authority issue further details regarding the assessment of the deterioration ban (obligation to prevent deterioration) and the requirement for improvement and submitted a 48-page document in that regard (hereinafter the subsequent expert paper) without, however, formally declaring it part of the contested planning approval decision. In this document, the affected bodies of water are described and the consequences of the project on their quality elements are assessed. In order to justify its approach, the approval authority argued that an assessment of the bodies of water had already been conducted by the Bielefeld Lower Water Authority during the planning approval decision procedure; it was simply that this had not been documented.

10 On the basis of the oral hearing on 17 and 18 April 2018, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) has reached the conclusion that the contested planning approval decision was based on an error in weighing as regards the choice of route, which will lead to a finding of unlawfulness and unenforceability of the planning approval decision. A separate decision of today's date has referred to this error.

11 The legal dispute is to be suspended. In accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision.

12 The following provisions of national law form the legal framework:

13 1. The Federal Water Act (WHG, Wasserhaushaltsgesetz) of 31 July 2009 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2585) in the version applicable to the legal dispute reads:
Section 3 Definitions
6. Body of water
discrete and significant elements of surface water or coastal waters (body of surface water) and distinct volumes of groundwater within one or more aquifers (body of groundwater);
Section 27 Management objectives for bodies of surface water
(1) Except as classified under section 28 as artificially or significantly changed, bodies of surface water must be managed in such a way that
1. a deterioration of their ecological and chemical status is prevented and
2. a good ecological status and a good chemical status are preserved or achieved.
Section 47 Management objectives for the groundwater
(1) The groundwater must be managed in such a way that
1. a deterioration of its quantitative status and of its chemical status is prevented;
2. all significant and sustained trends in rising pollutants concentrations due to the effects of human activity are reversed;
3. a good quantitative status and a good chemical status are preserved or achieved; a good quantitative status shall in particular include a balance between abstraction and recharge of groundwater.

14 2. The Ordinance on the Protection of Groundwater (Groundwater Ordinance, GrwV, Verordnung zum Schutz des Grundwassers, Grundwasserverordnung) of 9 November 2010 (BGBl. I p. 1513) in the relevant version reads:
Section 7 Classification of the chemical status of the groundwater
(1) The competent authority shall classify the chemical status of the groundwater as good or poor.
(2) The chemical status of the groundwater shall be classified as good if
1. the threshold values set forth (…) in Annex 2 are not exceeded at any measurement point in accordance with section 9 in the body of groundwater or (…)
Section 9 Monitoring of the quantitative status and of the chemical status of the groundwater
(1) Measuring points shall be set up and operated in every body of groundwater for a representative monitoring of the quantitative status of the groundwater in accordance with Annex 3 and the chemical status of the groundwater in accordance with Annex 4 no. 1.
Annex 2 to the Groundwater Ordinance contains a threshold value for chloride of 250 mg/l.

15 3. The Environmental Impact Assessment Act (UVPG, Gesetz über die Umweltverträglichkeitsprüfung) in the version applicable here of 24 February 2010 (BGBl. I p. 94) - herein referred to as UVPG old version - reads:
Section 6 Documents of the project developer
(1) The developer shall present to the competent authority the documents which are of significance for a decision on the project's environmental impacts at the beginning of the procedure during which the environmental impacts are assessed. (...)
Section 9 Involvement of the public
(1a) In its notice issued at the beginning of the involvement procedure in accordance with subsection 1 the competent authority shall inform the public of the following:
(...)
5. details of which documents have been presented in accordance with section 6,

16 4. The Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) reads:
Section 46 Consequences of procedural and formal defects
Application for annulment of an administrative act which is not invalid under section 44 cannot be made solely on the ground that the act came into being through the infringement of regulations governing procedure, form or local competence, where it is evident that the infringement has not influenced the decision on the matter.
Section 75 Legal effects of planning approval
(1) Planning approval has the effect of establishing the admissibility of the project, including the necessary measures subsequently to be taken in connection with other installations and facilities, having regard to all public interests affected thereby. No other administrative decisions, in particular consent issued under public law, grants, permissions, authorisations, agreements or planning approvals are required. Planning approval legally regulates all relationships under public law between the project developer and those affected by the project.
(1a) Flaws in the weighing of public and private interests touched by the project shall be deemed to be significant only where they have clearly exerted an influence on the outcome of deliberations. Significant flaws in weighing public and private interests shall result in the annulment of the decision on planning approval or of planning consent only where such flaws cannot be rectified by means of modifications to the plan or by a supplementary procedure. Sections 45 and 46 shall not be affected.

17 5. The Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) reads:
Section 42 Action for annulment and action for the issuance of an administrative act
(1) An action can seek to have an administrative act set aside (action for annulment) or to have the adoption of an administrative act ordered in the event of a refusal or failure to act (action for the issuance of an administrative act).
(2) Except where otherwise provided by law, such an action is admissible only if the claimant asserts that his rights have been infringed by the administrative act or by the refusal or failure to act.
Section 113 Operative part of a judgment
(1) Insofar as the administrative act is unlawful and the claimant's rights have been infringed, the court shall annul the administrative act and any objection notice. (...)

18 6. The Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz) as promulgated on 23 August 2017 (BGBl. I p. 3290) reads:
Section 1 Scope of application
(1) The Act shall be applied to appeals against the following decisions:
1. approval decisions within the meaning of section 2 (6) of the Environmental Impact Assessment Act regarding the admissibility of projects for which, in accordance with
a) the Environmental Impact Assessment Act, (...)
a duty to carry out an environmental impact assessment (EIA) may exist;
(...)
(4) environmental regulations within the meaning of the present Act are provisions relating, for the protection of human beings and the environment, to
1. the status of elements of the environment within the meaning of section 2 (3) no. 1 of the Environmental Information Act (UIG, Umweltinformationsgesetz) or
2. factors within the meaning of section 2 (3) no. 2 of the Environmental Information Act.
Section 2 Appeals by associations
(1) Any domestic or foreign association which is recognised under section 3 may, without having to assert that its own rights have been infringed, appeal in accordance with the Code of Administrative Court Procedure against a decision made under the first sentence of section 1 (1) or the omission thereof if the association
1. asserts that a decision made under the first sentence of section 1 (1) or the omission thereof contravenes provisions of law which may be significant for the decision,
2. asserts that its aims in accordance with its statutes of promoting the protection of the environment are affected by a decision made under the first sentence of section 1 (1) or the omission thereof, and
3. in the case of a procedure in accordance with
a) Section 1 (1) first sentence no. 1 to 2b it was entitled to be involved;
b) Section 1 (1) first sentence no. 4 it was entitled to be involved and made a statement regarding the matter in the course of the procedure in accordance with the applicable provisions or, in contravention of the applicable provisions, it was given no opportunity to make a statement.
(...)
(4) Appeals in accordance with subsection 1 shall be deemed to be well-founded insofar as
1. the decision in accordance with section 1 (1) first sentence no. 1 and 2 or the omission thereof violates provisions which are significant for this decision, or
2. the decision in accordance with section 1 (1) first sentence no. 2a to 6 or the omission thereof violates environmental provisions which are significant for this decision,
and the violation affects interests which are among the aims promoted by the association under its statutes. For decisions in accordance with section 1 (1) first sentence no. 1 or 4, a duty must moreover exist to carry out an environmental impact assessment within the meaning of section 1 no. 1 of the Environmental Impact Assessment Act.
Section 3 Recognition of associations
(1) Upon application, any domestic or foreign association will be granted recognition for the submission of appeals under this Act. Recognition shall be granted if the association
1. promotes under its statutes ideationally and predominantly, and not merely temporarily, the aims of environmental protection,
2. has existed for at least three years at the date of recognition and during this period has been active within the meaning of no. 1 (...)
Section 4 Procedural errors
(1) The annulment of a decision regarding the admissibility of a project under section 1 (1) first sentence no. 1 to 2b may be demanded if
1. as required under the Environmental Impact Assessment Act (...)
a) an environmental impact assessment or
b) a preliminary assessment of the individual case to establish whether an environmental impact assessment is required
has neither been carried out nor implemented at a later date,
2. required public involvement within the meaning of section 18 of the Environmental Impact Assessment Act or within the meaning of section 10 of the Federal Immission Control Act (BImSchG, Bundes-Immissionsschutzgesetz) has neither been carried out nor implemented at a later date, or
3. any other procedural error exists which
a) has not been rectified,
b) is comparable by its nature and seriousness to the cases mentioned in no. 1 and 2 and
c) the public concerned has been denied the opportunity as provided for by law to be involved in the decision-making process; involvement in the decision-making process shall also include access to the documents which are to be displayed for public inspection.
A preliminary assessment of the individual case to establish whether an environmental impact assessment is required which has been carried out but does not meet the standard set out in the second sentence of section 5 (3) of the Environmental Impact Assessment Act shall be deemed to be the equivalent of a preliminary assessment under the first sentence no. 1 (b) which has not been carried out.
(1a) Section 46 of the Administrative Procedure Act shall apply in respect of procedural errors which do not fall under subsection 1. If it cannot be clarified by the court whether a procedural error in accordance with the first sentence has influenced the decision made in the matter, then such influence shall be presumed.
(1b) A violation of procedural rules shall result in the annulment of the decision made under section 1 (1) first sentence no. 1 to 2b or 5 only if it cannot be rectified by means of a supplement to the decision or by a supplementary procedure. The following shall not be affected:
1. section 45 (2) of the Administrative Procedure Act and
2. section 75 (1a) of the Administrative Procedure Act and other relevant provisions regarding preservation of plans.
Upon application, the court may order that the hearing be suspended until procedural errors within the meaning of subsections 1 and 1a have been rectified, insofar as this is pertinent to the concentration of proceedings.
(...)
(3) Subsections 1 to 2 shall apply to appeals by
1. persons pursuant to section 61 no. 1 of the Code of Administrative Court Procedure and associations pursuant to section 61 no. 2 of the Code of Administrative Court Procedure and
2. associations which meet the requirements of section 3 (1) or section 2 (2).
Subsection 1 first sentence no. 3 shall apply to appeals by persons and associations in accordance with the first sentence no. 1 provided that the annulment of a decision may only be demanded if the procedural error has denied the party involved the opportunity as provided for by law to be involved in the decision-making process.
(4) Subsections 1 to 2 shall apply mutatis mutandis to appeals by associations under subsection 3 first sentence no. 2 against decisions made under section 1 (1) first sentence no. 4. (...)

19 The questions referred for a preliminary ruling are relevant for the decision.

20 Certainly, the Senate has reservations as to the lawfulness of the planning approval decision irrespective of the answer to the questions raised with the decision to request a preliminary ruling, because it regards the decision on the choice of route to be erroneous in its weighing of interests. With regard to details, the Senate refers to its indicative decision of today's date. Notwithstanding this, however, the points raised in the questions referred for a preliminary ruling are relevant for the final decision of the legal dispute, as is elucidated in the considerations set forth below.

21 The error mentioned above would not have resulted in the annulment of the planning approval decision but only in the establishment of its unlawfulness and unenforceability, since it would be possible to remedy it in a supplementary procedure (section 75 (1a) VwVfG). By means of this provision, the intention of the German legislature is not that in such cases the entire, very time-consuming administrative procedure must be repeated; its intention is rather that the planning approval authority should be given the opportunity to remedy the error in a supplementary procedure limited to its remedy. The consequence of this particular feature of national administrative law is that the Federal Administrative Court is not able to leave the questions referred for a preliminary ruling to the Court of Justice open, but must comprehensively assess the lawfulness of the planning approval decision and in its judgment establish precisely the extent of the unlawfulness. This is because the final and binding effect of the judgment to be delivered by the Federal Administrative Court means that the claimant will against the administrative decision no longer be able, in a supplementary court procedure, to present the argument that the planning approval decision suffers from further errors beyond those objected to by the court (BVerwG, judgment of 8 January 2014 - 9 A 4.13 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 149, 31 para. 28). Moreover, in the interests of a comprehensive clarification of the points in dispute, the Federal Administrative Court must also set out the legal requirements on the basis of which the planning approval authority must proceed in order to remedy in a supplementary procedure the errors that have been established.

22 The questions referred for a preliminary ruling require clarification by the Court of Justice because they have neither been clarified by its case-law nor are they obvious. With regard to the individual questions referred for a preliminary ruling, the following considerations are of relevance:

23 Question 1:
The Senate considers the announcements prior to public display issued on 21 August 2010 and 10/11 May 2014 to be erroneous because, contrary to the requirement under national law following EU law (see section 9 (1a) in conjunction with section 6 (1) first sentence UVPG old version, respectively article 6 (2) and (3) of the EIA Directive), the public was not sufficiently informed about the documents regarding the environmental effects of the project which are relevant for the decision. The first announcement did not refer to the application documents on the topics of noise and water; the second announcement did not refer to the (amended) water technology-related document. Moreover, the text of the announcement gives the misleading impression that it includes a complete list of all documents.

24 Under national law (here: section 46 VwVfG in conjunction with section 4 (1a) first sentence and section 4 (3) second sentence UmwRG), these procedural errors do not, however, result in the annulment of the planning approval decision or in it being declared unlawful given that, in the view of the court, they have clearly not influenced the decision on the substance of the case. If, as is the case here, an individual claimant is bringing judicial proceedings, it only matters, under section 4 (3) second sentence UmwRG, whether he himself has been denied the opportunity to participate in the decision-making process; such claimant cannot base the proceedings on the impairment of the procedural rights of other members of the public concerned (BVerwG, decision of 21 June 2016 - 9 B 65.15 - (…) with reference to Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/5927 p. 10 et seq.). The mentioned printed paper includes the following:
The new second sentence which has been inserted provides that involved parties under section 61 no. 1 and 2 VwGO may demand the annulment of a decision only if they themselves have been denied the opportunity to participate as provided for by law in the decision-making process. It is not sufficient insofar if only one other member of the concerned public has been denied the opportunity to participate as provided for by law in the decision-making process. Thus, for example, no claim for annulment exists if public display of the documents has been omitted in one of the districts affected by the project but such documents have been displayed in the place where the person concerned lives. The provision does not apply to appeals by recognised associations in accordance with section 2.

25 The legal situation is different, however, for environmental organisations. They may invoke the impairment of the procedural rights of the public concerned. This derives from the fact that section 4 (3) second sentence UmwRG expressly refers only to section 4 (3) first sentence no. 1 UmwRG, i.e. to appeals by persons and associations within the meaning of section 61 no. 1 and 2 VwGO, but not, however, to section 4 (3) first sentence no. 2 UmwRG, which covers appeals by environmental associations within the meaning of sections 2 and 3 UmwRG.

26 With regard to the systematic decision by the German legislature in favour of subjective legal protection, the Federal Administrative Court considers the provision of section 4 (3) second sentence UmwRG to be consistent and, for the following reasons, to be compatible with article 11 (1) (b) of the EIA Directive:

27 In its judgment of 7 November 2013 - C-72/12 [ECLI: EU:C:2013:712], Gemeinde Altrip et al./Land Rheinland-Pfalz - para. 49 - on the provision with the identical wording in the previous Directive (article 10a of Directive 85/337/EEC of the Council of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment <OJ L 175 p. 40> in the version as amended by Directive 2003/35/EC), the Court of Justice set out that it is indisputable that not every procedural error will necessarily have consequences that can possibly affect the content of the contested decision. The objective of the Directive of giving the public concerned wide access to justice would therefore not be compromised if, under the law of a Member State, an appellant relying on an error of that kind had to be regarded as not having had his rights impaired and, consequently, as not having standing to challenge that decision.

28 Where the Court of Justice has pointed out in its judgment, by way of limitation, that the court deciding on the appeal must not in any way make the burden of proof fall on the appellant, that the court must rely on the evidence provided by the competent authorities and on the case-file documents submitted and that lastly the seriousness of the error invoked must be considered (see para. 52 et seqq.), the German legislature has taken this into account by enacting the differentiated provision in section 4 (1) first sentence UmwRG, which makes distinctions on the basis of the seriousness of the error and includes a non liquet provision in section 4 (1b) UmwRG.

29 According to the Federal Administrative Court, the requirement of the Court of Justice to ascertain, in particular, "whether that error has deprived the public concerned of one of the guarantees introduced with a view to allowing it to have access to information and to be empowered to participate in decision-making in accordance with the objectives of Directive 85/337" (judgment of 7 November 2013 - C-72/12 - para. 54; emphasis added), does not preclude the provision of section 4 (3) second sentence UmwRG. Instead, this provision is covered by the option which is expressly granted to the Member State in article 11 (1) (b) of the EIA Directive to require within the framework of its national legislation that a right be impaired. In this context, the "public concerned" for these purposes is therefore only the individual claimant and not the entire potential public.

30 This view is also based on the Court of Justice's judgment of 15 October 2015 - C-137/14 [ECLI:EU:C:2015:683], Commission/Federal Republic of Germany. In this judgment, which also concerns the scope of application of article 11 (1) of the EIA Directive, the Court of Justice found that section 113 (1) VwGO is consistent with the requirements of the aforementioned provision in the Directive (para. 28 et seqq.). It did not follow the dissenting opinion of the Commission and Advocate General Wathelet, finding instead that the Member State is entitled to require that the setting aside of an administrative decision by the competent court requires the violation of a subjective right on the part of the claimant. The national legislature is at liberty to restrict the rights, whose violation may be invoked by an individual within the framework of a judicial appeal, to subjective rights. This restriction, however, must not be applied to environmental organisations. Such organisations must necessarily be able to rely in legal proceedings on the rules of national law transposing EU environmental law and the rules of EU environmental law having direct effect (judgment of 15 October 2015 - C-137/14 - para. 32 et seq. and para. 92).

31 Question 2:
a) By means of its judgment of 1 July 2015 - C-461/13 [ECLI:EU:C:2015:433], Bund für Umwelt und Naturschutz Deutschland e.V./Bundesrepublik, the Court of Justice has clarified that article 4 (1) (a) (i) to (iii) of the WFD must be accorded the character of a binding provision, with the consequence that the approval of a specific project must be refused if it is likely to cause a deterioration of the status of a body of surface water or if it endangers the achieving of good surface water status respectively good ecological potential and good surface water chemical status at the relevant date as specified by the Directive.

32 A crucial feature of the present case is that it was only in the course of the judicial proceedings that the approval authority carried out, in a transparent manner, a documentation of the assessment of the obligation to prevent the deterioration of bodies of water and the requirement for improvement. The question arising in this regard is whether the aforementioned provisions of the directive - comparable to article 6 (3) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (hereinafter Habitats Directive) - include not only substantive criteria for examination but also specifications regarding the regulatory approval procedure. Specifically it raises the question for the Federal Administrative Court as to whether it only depends on whether the statement in the planning approval decision that the project did not violate article 4 of the WFD in conjunction with sections 27 and 47 WHG proves to be ultimately accurate, a fact which could be determined with the aid of documents submitted subsequently in the judicial proceedings and if need be with the aid of expert witnesses, or whether the Water Framework Directive requires that the obligation to prevent the deterioration of bodies of water and the requirement for improvement must be assessed prior to the approval decision in a transparent official procedure, i.e. a procedure that is open to scrutiny on the basis of relevant documentation.

33 In the context of the assessment of the implications for a site under the Habitats Directive, the Federal Administrative Court proceeds - in its consistent jurisprudence - based on the case-law of the Court of Justice (see, e.g., judgment of 7 September 2004, C-127/02 [ECLI:EU:C:2004:482], Waddenzee - para. 53 et seqq.) - from the assumption that article 6 (3) of the Habitats Directive contains certain requirements concerning the approval procedure. According to this jurisprudence, the scientific findings must be documented by the authorities competent for the assessment. Deficits of investigation and evaluation in the assessment of the implications for a site under the Habitats Directive cannot as a rule be compensated for merely by a supplementary submission during the proceedings. Rather, a supplementary procedure is fundamentally required under section 75 (1a) second sentence first half-sentence VwVfG, which will conclude with a new decision by the competent authorities. This new decision may if necessary be included in administrative proceedings which are still ongoing. This does not preclude the planning approval authority from elucidating its decision and the factors on which it is based in a supplementary statement submitted in the course of the judicial proceedings or from responding to the claimant's objections within that framework. Ultimately, this does not affect the possibility that flaws in the impact assessment in application of section 75 (1a) first sentence VwVfG may be considered irrelevant if, within the meaning of that provision, they have had no relevance for the outcome of the administrative decision. What is ruled out, however, is the competent authority leaving the first implementation of the assessment of the implications for a site until the judicial proceedings or documenting its scientific findings for the first time during such proceedings.

34 The Senate tends to the view that these requirements should, at least in principle, apply to the assessment of the obligation to prevent the deterioration of bodies of water, although, unlike article 6 (3) of the Habitats Directive, the Water Framework Directive neither mentions nor provides in detail for such a prior assessment. In the view of the Federal Administrative Court, this is supported by the following considerations: Just as the competent national authorities must satisfy themselves that the plan or the project does not have any adverse effect on the region in question as such, they must decide the question as to whether the project entails a deterioration of the status or potential of quality elements of a body of surface water or a body of groundwater. Since there are at present no recognised standard methods for this, the authorities have a wide range of discretion in developing their own methods. This does not, however, mean that they have a completely free hand. Rather, they must apply a method that is transparent, fit for purpose and consistent. In this regard it is also imperative that the criteria applied are defined and their technical meaning is clearly set out (consistent jurisprudence, see, e.g., BVerwG, decision of 2 October 2014 - 7 A 14.12 - (…) para 6 and judgment of 10 November 2016 - 9 A 18.15 - BVerwGE 156, 215 para. 112). In order to ensure effective judicial protection for those seeking legal protection and at the same time to avoid overloading the judicial proceedings, the principles that have been developed for the law relating to habitat protection should be applied to a ruling regarding the obligation to prevent the deterioration of bodies of water.

35 The view set out in the foregoing is also supported by the Court of Justice's judgment of 1 June 2017 - C-529/15 [ECLI:EU:C:2017:419], Folk - para. 38 et seq.: This reads, "(…) if (…) the competent national authority issued the authorisation without an examination whether the conditions laid down in article 4 (7) (a) to (d) of Directive 2000/60 have been complied with, the national court is not obliged to examine by itself the observance of the conditions laid down in that article and may confine itself to finding that the contested measure is unlawful. Without prejudice to a possible judicial review, the national authorities which are competent to authorise a project are required to review whether the conditions set out in article 4 (7) (a) to (d) of Directive 2000/60 are satisfied before granting such an authorisation. In contrast, EU law in no way obliges the national courts to take the place of the competent authority by itself examining those conditions when that authority has granted the authorisation without having carried out that examination."

36 In summary, the Federal Administrative Court finds with regard to question 2a) that the approval authority must itself carry out an assessment of the obligation to prevent deterioration respectively the requirement for improvement with regard to bodies of water and must document this assessment and its findings. However, in straightforward cases of road drainage this assessment and documentation do not need to be particularly detailed, especially where standardised drainage is planned according to the technical state of the art and if the water is purified prior to being discharged.

37 b) Insofar as question a) is answered in the affirmative, the further question is raised as to whether the involvement of the public under article 6 of the EIA Directive must always mandatorily apply to the documents relating to water testing within the meaning of the foregoing. The Federal Administrative Court considers that a differentiated solution is appropriate in this regard, one which makes a distinction between the time at which the document is drawn up and the complexity of the issues under water law.

38 If the project developer creates a document that includes an assessment of the requirements laid down in the Water Framework Directive (usually referred to as an expert paper on matters of water law (wasserrechtlicher Fachbeitrag) or a water technology-related document (wassertechnische Unterlage), and submits this to the approval authority together with the application for approval, this will usually constitute one of the "main reports" (article 6 (3) (b) of the EIA Directive) to which the involvement of the public applies.

39 In cases where the document on matters of water law has been created only due to the Court of Justice's judgment of 1 July 2015 - C-461/13 - in ongoing approval proceedings and subsequently, moreover, to the involvement of the public, the Federal Administrative Court has differentiated in the following manner:

40 A further involvement of the public is not required if the depth of investigation and the complexity of the examination in relation to the bodies of water only first undertaken on the basis of the Court of Justice's judgment significantly exceed what has already been dealt with in the documents on public display. In this specific case, the expert paper set out, consistently and in part word-for-word with the documents that had already been on public display, that the chosen system of drainage and the precautions taken during construction would ensure that so many pollutants would be retained that there would be no significant deterioration of the surface water or of the groundwater. In this regard, in the view of the Federal Administrative Court, the expert paper confined itself to the solution of the drainage problems normally associated with the construction and use of a motorway and required no further involvement of the public (BVerwG, judgment of 10 November 2016 - 9 A 18.15 - BVerwGE 156, 215 para. 27).

41 By contrast, the Federal Administrative Court required a further involvement of the public for an expert paper on matters of water law which undertook an assessment of environmental impacts which, in its subject-matter, system and depth of investigation, was new and exceeded previous assessments. Unlike the case mentioned in the foregoing, this did not merely involve typical drainage problems normally associated with a motorway, but in particular the question as to the discharge parameters that would be permitted for discharging back into the River Elbe the water required for the construction of a tunnel beneath the Elbe (known as 'process water'; BVerwG, judgment of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 34).

42 In evaluating expert papers on matters of water law in the differentiated manner described in the foregoing, the Federal Administrative Court has followed its own previous jurisprudence. According to this jurisprudence, no new involvement of the public is required when remedying errors in investigation and amending specifically the landscape conservation support planning and its underlying expert papers on habitat and species preservation if the amended documents are confined to amendments of detail and a deeper assessment of concerned interests, without amending the overall concept of the planning as a whole or involving fundamentally different assessment results (consistent jurisprudence, see, e.g., BVerwG, judgment of 28 April 2016 - 9 A 9.15 - BVerwGE 155, 91 para. 33). Otherwise, the approval procedure, which as a rule pursues significant public interests, would be disproportionately held up.

43 Question 3:
The third question relates to the assessment criteria which should be applied to the obligation to prevent deterioration with regard to the groundwater.

44 The Federal Administrative Court proceeds from the assumption that the obligation to prevent the deterioration of bodies of water is also binding in relation to groundwater (article 4 (1) (b) (i) to (ii) of the WFD) and must be assessed in the approval of a project. The remarks made by the Court of Justice in its judgment of 1 July 2015 - C-461/13 - para. 43 et seqq. - regarding the deterioration of the status of a body of surface water are insofar transferable to groundwater. Accordingly, the Federal Administrative Court assumes that the reply by the Court of Justice to the above question 2 also applies to the groundwater. Moreover, the Federal Administrative Court proceeds from the assumption that the point of reference of the assessment of the obligation to prevent the deterioration of bodies of water is the body of groundwater as a whole given that no. 2.4.5 of Annex V to the Water Framework Directive bases the "interpretation and presentation of groundwater chemical status" on this. According to the legal definition under section 3 no. 6 WHG, the groundwater comprises the "distinct volume of groundwater within one or more aquifers". Changes that are limited to certain locations are therefore not relevant provided that they have no effect on the whole body of groundwater (see also BVerwG, judgment of 9 February 2017 - 7 A 2.15 - BVerwGE 158, 1 para. 506 regarding the geographical reference base for the assessment of the obligation to prevent the deterioration of bodies of surface water).

45 The Court of Justice has not yet - at least not expressly - clarified whether the remarks made - in its judgment of 1 July 2015 - C-461/13 - are transferable with regard to the assessment criteria. The Court of Justice held that there is a deterioration of the status of a body of surface water within the meaning of article 4 (1) (a) (i) of the WFD as soon as the status of at least one of the quality elements, within the meaning of Annex V, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. If, however, the quality element concerned, within the meaning of Annex V, is already in the lowest class, any deterioration of that element constitutes a deterioration of the status of a body of surface water (para. 69).

46 These assessment criteria cannot readily be transferred. Contrary to bodies of surface water, for which Directive 2000/60/EC provides an ecological quality ratio scale with five classes (see Annex V no. 1.4.1 (iii) of the WFD), for groundwater it only differentiates between good and poor with regard, respectively, to its quantitative and chemical status (see Annex V no. 2.2.4 and no. 2.4.5).

47 In German administrative practice, the chemical status of a body of groundwater is normally determined by identifying the concentrations of pollutants at measuring points which form a measurement network that is representative of the body of groundwater. Under section 7 (2) no. 1 GrwV, the status of a body of groundwater is deemed good in particular if the threshold values contained in Annex 2 or set under section 5 (1) second sentence or (3) GrwV are not exceeded at any measuring point.

48 By way of explanation, Annex 2 to the Groundwater Ordinance contains threshold values for all substances which are listed in the minimum list in Annex II Part B No. 1 of Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration - the Groundwater Directive - and for which Member States have to consider establishing threshold values in accordance with article 3 of the Groundwater Directive. Accordingly, Annex 2 to the Groundwater Ordinance contains threshold values for arsenic, cadmium, lead, mercury, ammonium, chloride and sulphate. Additionally, it also contains threshold values for further substances and groups of substances including nitrate, orthophosphate and sulphate.

49 On this basis and taking into consideration the objectives of the Water Framework Directive as identified by the Court of Justice in its judgment of 1 July 2015 - C-461/13 - namely to achieve a "good status" of all bodies of water, deterioration of the chemical status of a body of groundwater would exist as soon as at least one environmental quality standard for one parameter is exceeded as a result of a project. By contrast, for pollutants, which already exceed the relevant threshold value in their actual state, any further (measurable) increase in their concentration represents a deterioration (similarly BVerwG, judgment of 9 February 2017 - 7 A 2.15 - BVerwGE 158, 1 para. 578 regarding deterioration of the chemical status of a body of surface water).

50 In the present case, it is anticipated that this will mean that no deterioration will be found to exist. In North Rhine-Westphalia there are in all 275 distinct bodies of groundwater with an average area of 124 km². Their chemical status is monitored at more than 1,400 groundwater quality measurement points throughout the federal state. The body of groundwater affected by this project (3_07 Upper Ems Lowland (- Niederung der Oberen Ems) <Beelen/Harsewinkel>) is classified with regard to its qualitative status as good and with regard to its chemical status as poor. The latter is due to the thresholds of the substances nitrate and ammonium being exceeded as a result of agricultural activity. By contrast, the relevant thresholds for the other substances (sulphate, chloride, plant protection products and pesticides (PBSM, Pflanzenbehandlungs- und Schädlingsbekämpfungsmittel) singly, PBSM in total, trichloroethane and tetrachloroethane in total, arsenic, lead, cadmium and mercury) are met (see Management Plan (Bewirtschaftungsplan) 2016-2021 - Groundwater Body Tables Ems, NRW, p. 11). Due to the use of road salt in winter the project would lead to a minor increase in chloride content without, however, resulting in the threshold value of 250 ml/l for chloride set in Annex 2 to the Groundwater Ordinance being exceeded.

51 Question 4:
In the view of the Federal Administrative Court (...), questions 4 (a) and (b) must be answered in the negative.

52 a) In the view of the Federal Administrative Court, EU law does not require Member States to structure their national law in such a way that all members of the public concerned by a project who claim a violation of their own rights are also entitled to bring judicial proceedings asserting breaches of the obligation to prevent the deterioration of bodies of water and the requirement for improvement.

53 aa) This is based on the following understanding of the provisions of national procedural law:

54 Pursuant to section 42 (2) VwGO, the admissibility of actions brought by individuals depends on the claimant being able to assert that his rights have been infringed by the administrative act (or its refusal). The first sentence of section 113 (1) VwGO, in contrast, concerns the merits of the action brought by an individual. Under this provision, the administrative court shall annul the administrative act (only) insofar as it is unlawful and the claimant's rights have been infringed. Under German law of administrative court procedure, therefore, the prerequisite condition for the success of the action brought by an individual is a violation of subjective rights. Accordingly, individual claimants may rely in judicial proceedings only on the violation of those provisions which are at least also intended to protect their own rights. In an action against a planning decision, they may complain of errors in the weighing of their own protected interests, but they may not demand the implementation of a weighing of interests and a planning that are free of errors in every respect, including objective respects.

55 Insofar as the property of an individual claimant is concerned because he faces the risk of expropriation due to the project, he may, with regard to the constitutionally-protected right to property (article 14 of the Basic Law (GG, Grundgesetz)), as a matter of course demand a comprehensive judicial review of the planning approval decision. Such a claimant may, therefore, in principle support his case on the erroneous application of objective law, such as, for example, environmental law, or the erroneous weighing of public interests. This is not the case, however, if even error-free regard for these interests would not result in any change to the planning as it affects his land, since this would mean that the error would not be deemed to have affected the subjective rights of that claimant (consistent jurisprudence, see, e.g., BVerwG, judgments of 12 August 2009 - 9 A 64.07 - BVerwGE 134, 308 para. 24 and of 16 June 2016 - 9 A 4.15 - (…) para 50).

56 By contrast, the admissibility and merits of actions brought by recognised domestic or foreign environmental associations are assessed according to different legal provisions, namely according to sections 1 and 2 UmwRG. This Act applies inter alia to decisions concerning the admissibility of projects for which, as in the present case, implementation of an environmental impact assessment may be required (section 1 (1) first sentence no. 1 UmwRG). Under section 2 (1) UmwRG, recognised environmental associations may, within the scope of the range of tasks as set out in their statutes, lodge appeals against such decisions or the omission thereof, without having to claim that their own rights have been infringed. Such appeals are well-founded in accordance with section 2 (4) UmwRG if there has been a breach of objective law. The violation of subjective rights is irrelevant in terms of the merits of such actions.

57 Against this background, it is the view of the Federal Administrative Court that, unlike environmental associations, individual claimants (whose property is not affected) are not authorised to take action against breaches of the obligation to prevent the deterioration of bodies of water - and the requirement of improvement. It is true that the obligation to prevent the deterioration of bodies of water and the requirement of improvement must be strictly complied with in any decision (CJEU, judgment of 1 July 2015 - C-461/13 - para. 50); under German law, however, the provisions of sections 27 and 47 WHG concerning management objectives for bodies of water, which transpose article 4 of the WFD into German law, serve exclusively the public interest and grant no subjective rights (thus most recently BVerwG, judgment of 28 November 2017 - 7 A 1.17 - (…) para 42).

58 In the view of the Federal Administrative Court there is much that supports the argument that EU law does not require any deviation from this legal understanding for actions by individuals. This view is based principally on the Court of Justice's judgment of 15 October 2015 - C-137/14 - already cited with regard to question 1 concerning the scope of application of (the present version of) - article 11 (1) of the EIA Directive. According to this judgment, the national legislature is entitled to restrict the rights, whose violation may be invoked by an individual within the framework of a judicial appeal, to subjective rights, while such a limitation cannot be applied, however, to environmental organisations (judgment of 15 October 2015 - C-137/14 - para. 32 et seq. and 92). In view of this, it is the opinion of the Federal Administrative Court that EU law does not, at least in principle, require article 4 of the WFD to be interpreted in such a way that permits individual claimants to rely on breaches of the obligation to prevent the deterioration of bodies of water and the requirement of improvement in judicial proceedings.

59 It is true that in its judgment of 20 December 2017 - C-664/15 [ECLI:EU:C:2017:987], Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation/Bezirkshauptmannschaft Gmünd - para. 34 - regarding the Water Framework Directive, the Court of Justice has stated that it would be incompatible with the binding effect conferred by article 288 TFEU on the Directive to exclude, in principle, the possibility that the obligations which it imposes may be relied on by the persons concerned. The practical effectiveness of this Directive and its aim of protecting the environment require, however, that "individuals or, where appropriate, a duly constituted environmental organisation" be able to rely on it in judicial proceedings; in the view of the Federal Administrative Court the alternative as highlighted by use of the word "or" is evidence for the fact that Member States, as already stated in the judgment of 15 October 2015 - C-137/14 - have a broad scope for action in that regard. Such scope would seem to be exceeded with regard to the effectiveness of EU law only if environmental organisations were (also) to be precluded from appealing against the decision in question (...).

60 Similarly, the Federal Administrative Court understands the remarks made by the Court of Justice regarding the guarantee of effective legal protection provided for in article 19 (1) Treaty on European Union (TEU) and article 47 of the Charter of Fundamental Rights of the European Union (CFR) and also in article 9 (3) of the Aarhus Convention to mean that environmental organisations must not be denied by criteria established in domestic law the opportunity to demand a review of compliance with legal provisions deriving from EU environmental law which protect the public interest (judgment of 20 December 2017, C-664/15 - para. 35 et seqq. and 45 et seqq.). In the same vein, Advocate General Sharpston stated in her Opinion (especially para. 79 et seq., 85 and 90) that individual persons should have the right to take action to defend their property or other interests, while environmental protection organisations may not be denied any right to take action over and above this, because they give expression to the collective and public interest which no one else would otherwise be able to defend.

61 Nor, in the view of the Senate, does the Court of Justice's previous judgment of 8 November 2016 - C-243/15 [ECLI:EU:C:2016:838], Lesoochranárske zoskupenie VLK/Obvodný úrad Trenčín - require any further restriction of the scope for action accorded to Member States under article 11 (1) of the EIA Directive and article 9 (3) of the Aarhus Convention with regard to the rights of individuals to bring actions. It is true that, with regard to Directive 92/43/EC, the Habitats Directive, it sets out in that judgment that this Directive's practical effectiveness and its aim of protecting the environment require that "the citizens" may rely on it in judicial proceedings and may accordingly demand a review. Once again, however, this judgment only concerns the legal position of recognised environmental associations. They, first and foremost, must be able to seek redress for violations of environmental regulations derived from EU law. The Court of Justice's judgment of 8 November 2016 (para. 59) refers insofar to the judgment of 15 October 2015 - C-137/14. As has already been mentioned, however, the Court of Justice had, in this latter judgment, already conferred upon the national legislature the freedom to confine to subjective rights the rights against the violation of which individuals may seek redress in judicial appeal proceedings.

62 bb) In the view of the Federal Administrative Court, no further rights of individuals to bring actions with regard to article 4 of the WFD can be derived merely from the fact that all members of the public concerned - as the population in general - rely on drinking water which poses no risk to health.

63 However, Directive 2000/60/EC does not merely protect water as a component and basis of the ecosystem, but also for ensuring the provision of the population with drinking water (see recitals 24 and 37 and article 1 first indent of the WFD). This means that in all cases where non-implementation of the measures required by a Directive could endanger human health, the persons directly concerned must be in a position to rely on mandatory rules in order to be able to obtain a judicial review with regard to whether the authority which approved the project has complied with its obligations under article 4 of the WFD (CJEU, judgments of 12 December 1996 - C-298/95 - para. 16, of 25 July 2008 - C-237/07 [ECLI:EU:C:2008:447], Janecek/Freistaat Bayern - para. 38, of 8 November 2016 - C-243/15 - para. 44 and of 20 December 2017 - C-664/15 - para. 34). This means that in all cases where non-implementation of the measures required by a Directive could endanger human health, the persons directly concerned must be in a position to rely on mandatory rules in order to be able to obtain a judicial review with regard to whether the authority which approved the project has complied with its obligations under article 4 of the WFD (CJEU, judgments of 12 December 1996 - C-298/95 - para. 16, of 25 July 2008 - C-237/07 [ECLI:EU:C:2008:447], Janecek/Freistaat Bayern - para. 38, of 8 November 2016 - C-243/15 - para. 44 and of 20 December 2017 - C-664/15 - para. 34).

64 The conditions for what constitutes concern and the associated need for recourse to judicial protection have, however, been defined neither in the Water Framework Directive nor in previous case-law of the Court of Justice. Member States have a broad scope for action with regard to specifying in that regard. In particular, the national legislature is entitled to restrict the rights, whose violation may be invoked by an individual within the framework of a judicial appeal, to subjective public-law rights, that is to say, to individual rights which, under national law, can be categorised as subjective public-law rights (CJEU, judgments of 16 April 2015 - C-570/13 [ECLI:EU:C:2015:231], Gruber - para. 40 and of 15 October 2015 - C-137/14 - para. 32 et seq.). The members of the public concerned, who bring legal action against a project, draw their drinking water, insofar as they do not, exceptionally, have domestic wells for their private water supply (see in this regard b) below), from the public water supply. Not least in this regard, they would not be deemed to be "directly" affected by the risk of any overstepping of threshold values (see CJEU, judgment of 25 July 2008 - C-237/07 - para. 39) in the sense that they themselves would, under EU law, mandatorily have to be in a position to seek judicial redress against breaches of the obligation to prevent the deterioration of bodies of water and the requirement for improvement.

65 b) Moreover, in the view of the Federal Administrative Court, there is much to support the argument that national law must not, under article 4 of the WFD, give individual claimants who maintain domestic wells for their private water supply in geographical proximity to the planned road and who fear a deterioration of such wells due to road surface water seepage the mandatory right to base their claims on possible breaches of the obligation to prevent the deterioration of bodies of water or the requirement for improvement. Even bearing in mind the purely objective nature of the requirements in question of the Water Framework Directive, these claimants are sufficiently protected by national law.

66 aa) German law distinguishes between planning approval (the approval of the project) on the one hand and the granting of the permit under water law required for the use of bodies of water on the other hand. The channelling or seepage of road surface water into the groundwater is a use of bodies of water that requires a permit. Notwithstanding this, however, approval hurdles under water law automatically result in the unlawfulness, and therefore the inadmissibility, of the planned project if they are insurmountable and the project cannot be realised without the use of bodies of water. Moreover, in accordance with the consistent jurisprudence of the Federal Administrative Court, third parties may also take legal action against the permit under water law as such, insofar as they are affected by it in a qualified and individualised manner (see most recently judgment of 12 April 2018 - 3 A 16/15 - (...) para. 19 et seqq. with further references).

67 Even if the owners of domestic wells are not directly permitted to rely on breaches of the obligation under EU law to prevent deterioration of bodies of water and the requirement for improvement, they may therefore, irrespective of EU law, assert a claim in judicial proceedings under national law that such a permit would endanger the quality of the drinking water drawn from their domestic wells.

68 bb) If, contrary to the above statements, article 4 of the WFD (if applicable in conjunction with article 288 TFEU, article 19 TEU and article 47 CFR) should require that individual owners of domestic wells in geographical proximity to a road may, without prejudice to the right of recognised environmental associations to bring legal action and also irrespective of their own possibilities for obtaining legal protection under national law, rely in judicial proceedings on a violation of the obligation under EU law to prevent the deterioration of bodies of water and the requirement for improvement, they would only have this right to the extent to which they are affected in each individual case. Accordingly, a claimant would only be able to claim judicial protection in accordance with article 4 of the WFD to the extent not only that he is affected by the project itself but, in addition, specifically by the (alleged) breach of the obligation to prevent the deterioration of bodies of water and the requirement for improvement.

69 The respective claimants would have to be considered to be affected in this way (only) to the extent that their health may be threatened as a result of a failure to comply with the provisions of the Water Framework Directive. Accordingly, the owners of domestic wells, for example, would by virtue of EU law be able to assert a risk to the quality of the drinking water drawn and used by them. They would not, however, independently of the health risk, be able to rely in any other way on compliance with the obligation to prevent the deterioration of bodies of water and the requirement for improvement.