Zur neuen Diskussion über das Wesen der Abwägung imBauplanungsrecht. Der überfrachtete Regelungsgehalt des§ 2 Abs. 3 BauGB

Abstract

On 24 June 2004, Directive 2001 / 42 / EC (ABl. EG Nr. L 197, S. 30) and Directive 2003 / 35 / EC (ABl. EG Nr. L 156, S. 17) were implemented into German law (BGBl. I, S. 1359). This led to an amendment in the wording of paragraphs 2, 214 and 215 BauGB, which are articles regulating the procedure of the adoption of zonal plans. The new wording gives rise to the question whether the legislator has changed an accepted practice of zonal law. Until now, it was unanimously accepted that the “Abwägungsgebot” (the ‘duty to balance’ is designed to achieve a balance of interests by the adoption of plans) was a required standard regarding the substantive content of the zonal plan. According to the new provisions, the “Abwägungsgebot” could be regarded solely as a procedural formality. Consequently, it is not clear which errors arising from the enactment of the plans are subject to judicial review. While the case law has not yet comprehensively answered these questions, it has started an intense scholarly discussion. The following article will attempt to determine the regulatory content of the newly drafted provisions.