Verfahrensfehlerfolgenrecht im Kontext der Energiewende

Abstract

The ‘Act on the Acceleration of Administrative Court Proceedings in the Infrastructure Sector’ of 14 March 2023 introduced, among other things, § 80c of the German Code of Administrative Procedure (VwGO). This led to a change in the consequences of procedural errors in preliminary injunctions in certain areas. The disregard of procedural errors is intended to speed up the implementation of large infrastructure projects. However, this affects the underlying tension between the regime of the consequences of errors in administrative proceedings, according to which, on the one hand, formal errors must be corrected and, on the other hand, procedures must be organised efficiently. It also affects the relationship between the courts and the administration.

The new provision in § 80c VwGO is exemplary for the legislative approach of an administrative procedural solution for the law on the consequences of procedural errors in the energy transition. This approach will be analysed in terms of its effectiveness. To this end, the content and background of the new § 80c VwGO will first be presented (II.). In a second step, it will be examined how the new provision fits into the existing regime of the consequences of procedural errors, including its European and constitutional requirements. In this context, the only decision issued so far by the Federal Administrative Court in application of § 80c VwGO will be discussed (III.). In a third step, the course set by the new regulation will be placed in a broader context and proposals for the further development of the law on the consequences of procedural errors specific to the energy transition will be compared and evaluated (IV.). This leads to an examination of the overarching question of what role the courts should play in the law on the consequences of procedural errors.