The claimants are contesting the decision by the defendant of 27 September 2016, granting plan authorisation for the new construction of the A 33/B 61 Ummeln feeder road. The section of road approved in the plan is approximately 3.7 km long. 

The planning approval decision authorised the project developer to discharge rainwater running off the road surfaces into various bodies of surface water and/or into the groundwater, via rainwater retention basins and light liquid separators with upstream oil and sludge traps (discharges E 2 and E 3) and via the inhabited layer of soil (discharge 4), at discharge points defined in more detail. The decision contains a number of additional stipulations intended to ensure that waters are protected, in respect of both the discharge of rainwater and its infiltration.

The claimants are eight individuals directly affected by use of property, and five individuals indirectly affected by the planning. With the exception of claimant no. 2, all claimants maintain an approved drinking water well. The individuals only indirectly affected by the planning - claimants no. 7, no. 8, no. 9, no. 11 and no. 12 - have asserted noise pollution and fear a deterioration of the water quality of their wells.

The claimants brought an action in a timely manner on 13 December 2016.

At the end of December 2017, the defendant submitted an expert paper on matters of water law (wasserrechtlicher Fachbeitrag) as well as a supplementary statement by the Bielefeld Lower Water Authority (Untere Wasserbehörde) dated 12 December 2017 on the infiltration concept in discharge zone 4. 

In its decision of 25 April 2018 - 9 A 16.16 - the Senate suspended the proceedings, and asked the Court of Justice of the European Union (CJEU. hereinafter Court of Justice) to clarify several questions on the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment - hereinafter EIA Directive - and Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, last amended by article 1 of Commission Directive 2014/101/EU of 30 October 2014 (OJ L 311 p. 32) - hereinafter Water Framework Directive (WFD) - (hereinafter decision to request a preliminary ruling). In another decision issued on the same date, the Senate set out its preliminary assessment based on the hearing (hereinafter indicative decision). By judgment of 28 May 2020 - C-535/18 [ECLI:EU:C:2020:391] -, the Court of Justice decided on the reference for a preliminary ruling.

The claimants' action met with success.

17 B. The planning approval decision contains formal and substantive errors the majority of which are also relevant for the decision.

18 1. The announcements prior to public display issued on 21 August 2010 and 10/11 May 2014 are both erroneous (a) and (b); furthermore, the procedural errors are not irrelevant within the meaning of section 4 (1a) first sentence of the Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz) in conjunction with section 46 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz), insofar as water-related documents are concerned (c); such irrelevance in particular does not follow from section 4 (3) second sentence UmwRG (d).

19 a) Both announcements prior to public display were governed by section 9 (1a) no. 5 of the Environmental Impact Assessment Act (UVPG, Gesetz über die Umweltverträglichkeitsprüfung), in the version promulgated on 24 February 2010 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 94). According to this provision, the competent authority has to inform the public at the beginning of the participation procedure, inter alia of the documents submitted pursuant to section 6 UVPG; this includes the documents relevant for the decision on the environmental impact of the project (section 6 (1) first sentence UVPG).

20 Section 9 (1a) no. 5 UVPG does not require a comprehensive list of all documents submitted by the project developer, but merely an informative overview (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 28 April 2016 - 9 A 9.15 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 155, 91 para. 21). However, the text of the announcement of 11 August 2010 does not meet these requirements. The reason for this is that no reference was made to any of the application documents relating to noise and water, the issues with environmental relevance; rather, the announcement was limited to the traffic report, the expert paper on matters of species protection (artenschutzrechtlicher Fachbeitrag) and two faunistic surveys.

21 b) The second announcement of 10/11 May 2014 is also erroneous. It was not imperatively required to once more reference the obligation to conduct an environmental impact assessment, as such a requirement results neither from the UVPG nor from the underlying EU Directive. However, the water technology-related document would have had to be mentioned here as well, as discharge zone 4 had been significantly modified (...).

22 c) The errors in the announcements are not all irrelevant pursuant to section 4 (1a) first sentence UmwRG in conjunction with section 46 VwVfG. The reason for this is that only with regard to the lack of reference to the noise-related document can it be determined to the conviction of the Senate that the error did not influence the decision on the matter.

23 In section 4 (1a) UmwRG, the legislature provided for three aspects (for details see BVerwG, judgment of 21 January 2016 - 4 A 5.14 - BVerwGE 154, 73 para. 41 et seqq. with further references): First, the legislature clarified that section 46 VwVfG continues to apply to - relative - procedural errors not covered by section 4 (1) UmwRG, with the consequence that an annulment of an administrative act cannot be requested solely on the ground of such an error where it is evident that the error has not influenced the decision on the matter. Second, the legislature emphasised the court's duty under section 86 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) to investigate the facts of the case ex officio. Third, the legislature regulated the effects of a non liquet by providing for the presumption that such a procedural error is causative (also see section 4 (1a) second sentence UmwRG).

24 If the court, based on the available information, considers itself to be able to determine that the contested decision would not have been different had the asserted procedural error not occurred, such an error, in accordance with section 46 VwVfG, will result neither in an annulment of the administrative act nor in the determination of its unlawfulness and non-executability. This complies with the requirements established by the Court of Justice of the European Union (CJEU, judgment of 7 November 2013 - C-72/12 [ECLI:EU:C:2013:712] - para. 53) that need to be met so that an infringement of a right within the meaning of article 11 (1) (b) of the EIA Directive can be excluded under national law.

25 The determined errors in the announcements were merely "relative" errors, so that, complying with the above criteria, a causality assessment needs to be made. (...)

26 Based on the above standards, the error in the announcement with regard to the missing noise-related documents in the announcement prior to public display of 21 August 2010 does not result in the determination of unlawfulness of the announcement. Insofar the Senate, based on the available documents, considers itself convinced that the error evidently did not influence the decision on the matter, so that the contested decision would not have been different had the error not occurred. The Senate comes to this conclusion on the basis of the defendant's statements noted in the minutes of the oral hearing on 17 April 2018. According to these statements, almost all of the 311 objections raised, namely 300, made reference (among other things) to noise-protection issues. (...)

27 The situation is different for the water-related documents. As only 80 of the 311 objections related to the issues drinking water/private wells, and as other informative indications were not evident from the files, the Senate is unable to make similar assessment here. (...)

28 d) The irrelevance of the procedural errors does not follow from section 4 (3) second sentence UmwRG.

29 According to this provision, section 4 (1) first sentence no. 3 UmwRG shall apply provided that the annulment of a decision may only be demanded if the procedural error has deprived the party concerned of the opportunity as provided for by law to be involved in the decision-making process. In the decision to request a preliminary ruling, the Senate assumed that the provision is applicable to the present case, and also took the view that the provision complies with EU law (BVerwG, decision to request a preliminary ruling of 25 April 2018 - 9 A 16.16 - (...) para. 24 et seqq., with reference to BVerwG, decision of 21 June 2016 - 9 B 65.15 - (...) para. 5). (...)

30 The question as to whether, under national law standards, the provision is applicable at all to the relative procedural errors in dispute here, remains unanswered (...).

31 Notwithstanding, in view of the answer given by the Court of Justice of the European Union (judgment of 20 May 2020 - C-535/18 -), the Senate no longer adheres to the interpretation of section 4 (1a), (3) second sentence UmwRG with regard to article 11 (1) and (3) of the EIA Directive which it had expressed in the decision to request a preliminary ruling of 25 April 2018 - 9 A 16.16 - (... para. 24) and in the decision of 21 June 2016 - 9 B 65.15 - (...) para. 5. The Court of Justice may not have been fully aware of the purpose of the relevant referred question, as this question related exclusively to the two announcement errors, but not to other procedural errors in connection with the prohibition of deterioration under water law. However, the Court of Justice made it clear that the success of a legal remedy based on a procedural error (only) for the case that this error cannot have had an impact on the contents of the decision may be made subject to the condition that the claimant was prevented from participating in the proceedings precisely because of this error (CJEU, see above, para. 61). This understanding is supported by the reference to the Altrip decision (see para. 58) which requires a "specific examination of causality", as well as by the specific emphasis (see para. 62) on the purpose of the public display of documents, which is to enable the public to participate effectively in the decision-making process. This purpose would not come to full fruition with the interpretation performed by the Senate in the decision to request a preliminary ruling.

33 3. The planning approval decision furthermore suffers from errors with regard to the obligations to prevent deterioration and to enhance the status of bodies of water.

34 a) The obligations to prevent deterioration and to enhance the status of bodies of water pursuant to sections 27 (1) and 47 (1) of the Federal Water Act (WHG, Wasserhaushaltsgesetz) are mandatory requirements for the approval of a project. This is why these obligations have to be complied with strictly during the approval of a project - including during the planning approval of a project relating to the construction of trunk roads under section 17 of the Federal Trunk Roads Act (FStrG, Bundesfernstraßengesetz) (see CJEU, judgment of 1 July 2015 - C-461/13 [ECLI:EU:C:2015:433], BUND/Bundesrepublik - para. 50 et seq.; BVerwG, judgments of 11 August 2016 - 7 A 1.15 - BVerwGE 156, 20 para. 160 and of 10 November 2016 - 9 A 18.15 - BVerwGE 156, 215 para. 96).

35 In its judgment of 28 May 2020 - C-535/18 -, the Court of Justice clarified that article 4 (1) (a) (i) WFD comprises not only a substantive standard of review, but also provides for requirements for the approval procedure conducted by the authorities. Accordingly, during the procedure for approval of a project, and therefore before the decision is taken, the competent authorities are required to examine whether that project may have adverse effects on water which would be contrary to the requirements to prevent deterioration and to enhance the status of bodies of surface water and groundwater.The project developer must submit the relevant information to the planning approval authority; this information must be of a nature that ensures that the effects of the project on water can be assessed in the light of the criteria and requirements laid down in particular in article 4 (1) WFD. The information must then be made available to the public concerned (CJEU, judgment of 28 May 2020 - C-535/18 - para. 76 and 80 et seqq.). Although the information does not necessarily need to be contained in a single document, the public must nevertheless be able to obtain an overview of the impact of the project from the information made available. Incomplete files or data that are scattered, incoherently, across a multitude of documents are not suitable (para. 85 et seqq.).

36 These requirements were not complied with here, as an examination relating to the bodies of water was not carried out prior to the issuance of the planning approval decision; consequently, this examination was not part of the public participation procedure. Therefore, the planning approval decision insofar is erroneous in form and - subject to the outcome of the examination - substance.

37 b) As a matter of precaution, the Senate wishes to point out that the expert paper on matters of water law submitted retroactively during the court proceedings is not free from errors either. Insofar, the Senate once more makes reference to the indicative decision (para. 48 - 51 of that decision).

38 Besides this, the Court of Justice, in its judgment of 28 May 2020 - C-535/18 -, has now defined more precisely the assessment standard for the examination of the deterioration of groundwater. These requirements will also have to be taken into account during the intended procedures to remedy the error. According to said decision, article 4 (1) (b) (i) WFD is to be interpreted to mean that, first, the exceedance of at least one of the quality standards or threshold values referred to in article 3 (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 (OJ 2006 L 372 p. 10 - hereinafter Drinking Water Directive) and, secondly, a foreseeable increase in the concentration of a pollutant when the threshold set for that pollutant has already been exceeded must be regarded as a deterioration of the chemical status of a body of groundwater as a result of a project. The values measured at each monitoring point must be taken into account individually (CJEU, judgment of 28 May 2020 - C-535/18 - para. 119; (...)).

39 4. The planning approval decision furthermore is based on a material error in weighing between variants 3 and 3.1. (...)

41 C. In conclusion, all claimants can invoke the unlawfulness of the planning approval decision, even though both the error in weighing regarding the examination of the variants (1) and the breach of water-law provisions (2) each only infringe on the rights of some of the claimants.

42 1. Only those claimants who may benefit from the error in weighing, in other words only those who would be in a more favourable position if variant 3 were implemented rather than variant 3.1, can invoke the error made in selecting the route. (...)

43 2. Also "members of the public concerned by a project" - as well as environmental associations which, however, were not among the claimants in the present case - can invoke the breach of the obligations to prevent deterioration and to enhance the status of bodies of water. The Court of Justice has meanwhile clarified in two decisions that such persons must be directly concerned by the project (CJEU, judgments of 28 May 2020 - C-535/18 - para. 123 et seq., 135 and of 3 October 2019 - C-197/18, Wasserleitungsverband Nördliches Burgenland - (...) para. 35).

44 In order to determine whether persons are directly concerned by a breach of the obligations provided for in article 4 (1) (b) WFD, account must be taken of the purpose of that Directive and of the content of the provision the proper application of which is in dispute (CJEU, judgments of 28 May 2020 - C-535/18 - para. 125 and of 3 October 2019 - C-197/18 - para. 35). The "good status" of all surface waters and all groundwater intended to be achieved by the Water Framework Directive is meant to contribute to the provision of a sufficient supply of good quality groundwater as needed for "sustainable, balanced and equitable water use"; groundwater is to be protected "as a resource for human use". These objectives result from article 1 (1) (d), article 1 (2) first and second indent as well as article 2 no. 33 WFD (CJEU, judgment of 28 May 2020 - C-535/18 - para. 126 et seqq.).

45 Therefore, the group of persons directly concerned by a breach includes anyone who "has the right to draw and use groundwater, (he) is using that groundwater legitimately". In view of the variety of uses of groundwater, it is irrelevant whether the exceedance of just one of the quality standards or threshold values, within the meaning of article 3 (1) of the Drinking Water Directive, involves a danger to the health of the claimant (CJEU, judgments of 28 May 2020 - C-535/18 - para. 132 et seq. and of 3 October 2019 - C-197/18 - para. 40 and 42).

46 In contrast, anyone merely using the public water supply network without having special groundwater drawing rights, is not directly concerned. Insofar, the Court of Justice did not follow the more extensive view held by Advocate General Hogan in his Opinion of 12 November 2019 (para. 75) (...).

47 Consequently, all claimants - with the exception of claimant no. 2 - can invoke a breach of the obligation under water law to prevent deterioration, as they maintain approved domestic drinking water wells in geographical proximity to the planned road, and thus "have the right to draw and use groundwater".

48 D. The errors found do not result in the annulment of the planning approval decision, but merely in the determination of its unlawfulness. The reason for this is that they do not concern an imperative planning impediment; the concrete possibility exists that the errors can be remedied in a supplementary procedure without jeopardising the overall plan (section 75 (1a) second sentence VwVfG in conjunction with section 4 (1b) second sentence no. 2 UmwRG). In its application to suspend proceedings, the defendant already indicated that such a supplementary procedure is planned to take place. In this context, the defendant will have to take into account that the procedural errors found concern not only the expert paper on matters of water law, but also the water technology-related documents.