Abstract;Judgment — ECLI:EU:C:2020:533
Date: 2020-07-09
Language of the case: German
Court formation: First Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-297/19 — 1 
Case C-297/19 
Request for a preliminary ruling 
Date lodged: 
11 April 2019 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
26 February 2019 
Applicant: 
Naturschutzbund Deutschland — Landesverband Schleswig-
Holstein e. V. 
Defendant: 
Kreis Nordfriesland 
  
Copy 
Bundesverwaltungsgericht (Federal Constitutional Court) 
ORDER 
[...] 
Delivered on 26 February 2019 
[...] 
In the administrative-law case of 
Naturschutzbund Deutschland 
– Landesverband Schleswig-Holstein e. V. – 
[...], Neumünster, 
applicant, appellant, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 2. 2019 — CASE C-297/19 
 
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respondent to the appeal on a point of law, 
and appellant in a cross-appeal on a point of law, 
– [...] [Or. 2] 
v 
Kreis Nordfriesland 
[...] 
defendant, respondent, 
appellant on a point of law, 
and respondent to a cross-appeal on a point of law, 
[...] 
joined party: 
Deich- und Hauptsielverband Eiderstedt, 
Körperschaft des öffentlichen Rechts, 
[...] 
appellant on a point of law 
and respondent to a cross-appeal on a point of law, 
[...] 
other party: 
Vertreter des Bundesinteresses beim Bundesverwaltungsgericht 
[...] 
the Seventh Chamber of the Bundesverwaltungsgericht 
[...] 
ordered as follows on 26 February 2019: [Or. 3] 
The proceedings before the Federal Administrative Court are stayed. 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
NATURSCHUTZBUND DEUTSCHLAND 
 
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1. a) Does the term ‘management’ within the meaning of the second 
indent of the second paragraph of Annex I to Directive 2004/35/EC of the 
European Parliament and of the Council of 21 April 2004 on environmental 
liability with regard to the prevention and remedying of environmental 
damage (Environmental Liability Directive) include activities inextricably 
bound up with direct use for land yield purposes? 
If so: 
b) Under what conditions is the management of sites, as defined in habitat 
records or target documents, to be considered ‘normal’ within the meaning 
of the Environmental Liability Directive? 
c) What is the time-scale for deciding if management is ‘as carried on 
previously’ by owners or operators within the meaning of the Environmental 
Liability Directive? 
d) Should the question of whether management is as carried on 
previously by owners or operators within the meaning of the Environmental 
Liability Directive be answered independently of the habitat records or 
target documents? 
2. Does an activity exercised in the public interest on the basis of a 
statutory delegation of tasks constitute an ‘occupational activity’ within the 
meaning of Article 2(7) of the Environmental Liability Directive? 
Grounds: 
I 
1 The applicant, which is a recognised environmental association, is seeking an 
environmental remedy order from the defendant against the joined party under the 
Umweltschadensgesetz (Law on environmental damage ‘the USchadG’) [Or. 4] 
transposing Directive 2004/35/EC of the European Parliament and of the Council 
of 21 April 2004 on environmental liability with regard to the prevention and 
remedying of environmental damage. It submits that, by the operation of a 
pumping station, the joined party is liable for environmental damage affecting a 
bird species (black tern) on the Eiderstedt peninsula in Schleswig-Holstein. 
2 A total of around 7 000 hectares on the Eiderstedt peninsula, which measures 
approximately 30 000 hectares, were designated a bird sanctuary (DE 1618-404) 
in 2006 and 2009 inter alia due to the presence of the black tern. According to the 
management plan, the bird sanctuary is predominantly managed even today as a 
grassland area using traditional large-scale methods and, by reason of its size in 
particular, it is still the most important breeding ground for the black tern in 
Schleswig-Holstein. 
REQUEST FOR A PRELIMINARY RULING OF 26. 2. 2019 — CASE C-297/19 
 
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3 The Eiderstedt peninsula has to be drained for the purposes of settlement and 
agricultural use. It is drained via approximately 5 000 km of ‘plot ditches’ which 
flow into a network of 900 km of sluice channels. The plot ditches are maintained 
by the users of the adjacent land, while a total of 17 water and soil associations 
established in Eiderstedt are responsible for maintenance of the sluice channels 
(receiving streams). 
4 The Deich- und Hauptsielverband Eiderstedt (joined party) is a water and soil 
association established as a public-law corporation, and is the umbrella 
association of the 17 water and soil associations established in Eiderstedt. The 
tasks delegated to it by law include the public service obligation of maintaining 
the surface waters. In fulfilment of these obligatory tasks, it operates inter alia the 
Siel- und Schöpfwerk Adamsiel (Adamsiel sluice and pumping station). This 
drains the entire area covered by the association by means of a pump activated 
automatically when a certain water level is reached. The pumping operations set 
in motion then take the water level back down. 
5 The Verwaltungsgericht (Administrative Court) dismissed the action initiated 
following the applicant’s unsuccessful application for a damage limitation and 
remedy order [Or. 5]. On appeal by the applicant, the Oberverwaltungsgericht 
(Higher Administrative Court) quashed the judgment of the Administrative Court 
and ordered the defendant to issue a (new) decision with due regard for the court’s 
legal appraisal. The court found that the black tern, which is a protected species, 
and its natural habitat had been damaged within the meaning of the Law on 
environmental damage by the operation of the joined party’s pumping station. As 
the joined party’s activity could not be categorised as use for land yield purposes, 
the presence of significant effects could not be denied on the grounds of normal 
management. The joined party operated its sluice and pumping station as an 
occupational activity, albeit on the basis of a public law obligation. There was a 
direct causal link between the joined party’s sluice and pumping station, which 
remained unchanged before and after 30 April 2007, and the environmental 
damage. Without the sluice and pumping station, water could not run out of the 
ditch system. The joined party was also at fault for its contribution to the 
environmental damage. However, the matter was not ready for a court ruling 
declaring an obligation. The defendant had a discretion in selecting the person to 
be responsible and the timing and content of the measures to be taken. 
6 By their appeals on a point of law, the defendant and the joined party are seeking 
to have the judgment delivered at first instance reinstated. 
II 
7 The dispute must be stayed. A preliminary ruling must be obtained from the Court 
of Justice of the European Union (‘the Court of Justice’) on the questions 
formulated in the operative part of the decision (Article 267 TFEU). 
NATURSCHUTZBUND DEUTSCHLAND 
 
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8 1. The relevant provisions of EU law are to be found in Article 2(7) of and 
the second indent of the second paragraph of Annex I to Directive 2004/35/EC of 
the European Parliament and of the Council of 21 April 2004 on environmental 
liability with regard to the prevention and remedying of environmental damage 
(OJ 2004 L 143, p. 56) (‘the Environmental Liability Directive’). [Or. 6] 
9 2. The provisions of national law relevant to the first question referred are to 
be found in point 2 of the second sentence of Paragraph 19(5) and, additionally, in 
Paragraph 5(2) of the Gesetz über Naturschutz und Landschaftspflege (Law on 
nature conservation and care of the landscape, ‘the BNatSchG’) of 29 July 2009 
(BGBl. I, p. 2542), last amended by Article 1 of the Law of 15 September 2017 
(BGBl. I, p. 3434) (a). The provisions of national law relevant to the second 
question referred are to be found in point 4 of Paragraph 2 of the Law on 
environmental damage of 10 May 2007 (BGBl. I, p. 666), last amended by 
Article 4 of the Law of 4 August 2016 (BGBl. I, p. 1972), in the first sentence of 
Paragraph 39(1) and in the first sentence of Paragraph 40(1) of the Gesetz zur 
Ordnung des Wasserhaushalts (Law on water, ‘the WHG’) of 31 July 2009 
(BGBl. I, p. 2585), last amended by Article 2 of the Law of 4 December 2018 
(BGBl. I, p. 2254), and in point 1 of the first sentence of Paragraph 38(1) of the 
Wassergesetz des Landes Schleswig Holstein (Law on water of the Land of 
Schleswig-Holstein, ‘the WasG SH’) of 11 February 2008 (GVOBl. SH, p. 91), as 
amended by the Law of 13 December 2018 (GVOBl. SH, p. 773) (b). 
a) Point 2 of the second sentence of Paragraph 19(5) of the BNatSchG 
reads as follows: 
As a rule, significant damage shall not be deemed to have occurred in the 
case of negative variations due to natural causes or resulting from 
intervention relating to the normal management of sites, as defined in habitat 
records or target documents or as carried on previously by owners or 
operators. 
Paragraph 5(2) of the BNatSchG reads as follows: 
In the case of agricultural use, in addition to requirements arising from 
provisions applying to agriculture and from Paragraph 17(2) of the Bundes-
Bodenschutzgesetz (Federal law on soil protection), the following principles 
of good practice shall especially be observed: 
1. cultivation must be appropriate to the relevant location, and the 
sustainable fertility of the soil and long-term usability of the land must be 
ensured; 
2. the natural features of the arable land (soil, water, flora, fauna) must 
not be impaired [Or. 7] beyond the extent required to achieve a sustainable 
yield; 
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3. the landscape components required for the linking of biotopes shall be 
preserved and, where possible, their numbers increased;  
4. animal husbandry must be in a balanced relationship to crop 
cultivation, and harmful environmental impacts are to be avoided; 
5. on slopes at risk from erosion, in flood plains, in locations with a high 
groundwater level and in marshy locations, grassland must not be ploughed 
up; 
6. fertilisers and plant protection products shall be applied in accordance 
with agricultural legislation and the application of fertilisers shall be 
documented in accordance with Paragraph 10 of the Düngeverordnung 
(Regulation on fertilisers) of 26 May 2017 (BGBl. I, p. 1305), as amended, 
and the application of plant protection products shall be documented in 
accordance with the second sentence of Article 67(1) of Regulation (EC) 
No 1107/2009 of the European Parliament and of the Council of 21 October 
2009 concerning the placing of plant protection products on the market and 
repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, 
p. 1). 
b) Point 4 of Paragraph 2 of the USchadG reads as follows: 
‘occupational activity’ means any activity carried out in the course of an 
economic activity, a business or an undertaking, irrespectively of its private 
or public, profit or non-profit character. 
The first sentence of Paragraph 39(1) of the WHG reads as follows: 
Maintenance of surface waters includes the care and development thereof as 
a public-law obligation (maintenance obligation). 
The first sentence of Paragraph 40(1) of the WHG reads as follows: 
Maintenance of surface waters is the responsibility of the owners of the 
waters, unless it is a task delegated under Land law to local authorities, 
water and soil associations, municipal special purpose associations or other 
public law corporations. [Or. 8] 
Point 1 of the first sentence of Paragraph 38(1) of the WasG SH reads as 
follows: 
Maintenance of a body of water includes, in addition to the measures listed 
in the second sentence of Paragraph 39(1) of the WHG, the preservation and 
safeguarding of proper runoff. 
III 
NATURSCHUTZBUND DEUTSCHLAND 
 
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10 The questions referred are material to the decision. Depending on how the 
questions referred are answered, the appeals on a point of law will either be 
successful on legal grounds or the matter will need to be referred back to the 
Higher Administrative Court as judges of fact for a new hearing and judgment. 
11 1. The temporal application of the Law on environmental [damage] or of the 
Environmental Liability Directive in accordance with Paragraph 13(1) of the 
USchadG or Article 17 of the Environmental Liability Directive exists. According 
to the case-law of the Court, it follows from the first and second indents of 
Article 17 of the Environmental Liability Directive, read in conjunction with 
recital 30 of the directive, that the directive applies to damage caused by an 
emission, event or incident which took place on or after 30 April 2007, where the 
damage derives from activities which took place on or after that date or from 
activities which took place but which were not brought to completion before that 
date (Court of Justice, judgment of 1 June 2017, C-529/15, EU:C:2017:419, 
paragraph 22, with reference to Court of Justice, judgment of 4 March 2015, 
C-534/13, EU:C:2015:13, paragraph 44; see also Court of Justice, judgment of 
9 March 2010, Raffinerie Méditerranée, C-378/08, EU:C:2010:126, 
paragraph 41). In the present case, the environmental damage may have been 
caused by the operation of a sluice and pumping station by the joined party, which 
the judge of fact found had remained unchanged before and after 30 April 2007. 
Thus that operation represents an activity which (also) took place after 30 April 
2007. At the same time, the damage in question was caused by events. The 
pumping processes carried out automatically when a certain water level is reached 
may be regarded as such events. 
12 2. According to the first sentence of Paragraph 1 of the Law on 
environmental damage, that law applies even where other national law would 
otherwise take precedence. In particular, [Or. 9] provisions of Land law available 
do not go as far as the Law on environmental damage. 
IV 
13 The questions referred need to be clarified by the Court of Justice, as they have 
not been clarified in its case-law and there are no obvious answers. 
14 The following considerations are relevant to the individual questions referred: 
15 1. Question 1: 
a) The issue is how the term ‘management’ should be understood within the 
meaning of the second indent of paragraph 2 of Annex I to the Environmental 
Liability Directive. Based on the wording of the provision, that term may cover a 
broad range of economic activities. However, the Higher Administrative Court 
relied on a narrow understanding of the term and held that only agricultural 
activity in the sense of use for land yield purposes qualifies as ‘management’. The 
Chamber takes the view that, at the very least, the operation of a sluice and 
pumping station for the purpose, as here, of ensuring the necessary irrigation and 
REQUEST FOR A PRELIMINARY RULING OF 26. 2. 2019 — CASE C-297/19 
 
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drainage of agricultural land is covered by the term ‘management’ as it is 
inextricably bound up with use for land yield purposes. 
16 b) The conditions under which a method of management of sites within the 
meaning of the second indent of paragraph 2 of Annex I to the Environmental 
Liability Directive, as defined in habitat records or target documents, is to be 
considered ‘normal’ within the meaning of the Environmental Liability Directive 
also need clarification. To that end, a criterion specific to the area should be 
established, to be determined primarily from the said sources or based on an 
available management plan. In addition to area-specific documents available, 
general principles established by law could, if necessary, be applied for the 
purpose of establishing the criterion. The principles of good practice laid down in 
German law in Paragraph 5(2) of the BNatSchG are a possibility in connection 
with direct use for land yield purposes. [Or. 10] 
17 c) The meaning of ‘management of sites as carried on previously’ by owners 
or operators within the meaning of the second indent of paragraph 2 of Annex I to 
the Environmental Liability Directive also needs to be clarified from a temporal 
perspective. It seems conceivable to assume that any management of sites 
practised over a period of time before the date stated in Article 19(1) of the 
Environmental Liability Directive, that is, 30 April 2007, is ‘management of sites 
as carried on previously’. However, it also seems conceivable that not every 
instance of management of sites exercised at some time previously should be 
taken into account and that it should necessarily have still been under way in fact 
on 30 April 2007. 
18 d) It does not follow unequivocally from the wording of the second indent of 
paragraph 2 of Annex I to the Environmental Liability Directive that the question 
of whether management of sites is ‘as carried on previously by owners or 
operators’ should be answered independently of the habitat records or target 
documents. However, that would appear to be the obvious answer to the Chamber. 
The provision could then serve as a catch-all rule in the sense that, where the 
habitat records or target documents do not provide adequate points of reference to 
establish a criterion, an actual analysis is carried out. 
19 2. Question 2: 
Nor has the question of whether an activity exercised in the public interest on the 
basis of a statutory delegation of tasks constitutes an ‘occupational activity’ within 
the meaning of Article 2(7) of the Environmental Liability Directive been clarified 
in the case-law of the Court, and there is no obvious answer. It follows from the 
wording of Article 2(7) of the Environmental Liability Directive that qualification 
of an activity as an ‘occupational activity’ does not depend on its form under 
private or public law or whether it is exercised for profit. However, the question of 
whether an activity exercised in the public interest on the basis of a statutory 
delegation of tasks constitutes an ‘economic activity’, a ‘business’ or an 
‘undertaking’ within the meaning of Article 2(7) of the Environmental Liability 
NATURSCHUTZBUND DEUTSCHLAND 
 
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Directive needs to be clarified. In the opinion of the Chamber, it would appear 
plausible that the three terms ‘economic activity’, ‘business’ and ‘undertaking’ 
should be understood to mean that [Or. 11] an activity included therein should 
have a market link or be of a competitive nature. There is no such market link or 
competitive nature in the case of an activity exercised in the public interest on the 
basis of a statutory delegation of tasks, in this case the maintenance of surface 
waters by a water and soil association, including the maintenance and 
safeguarding of proper water runoff (see the first sentence of Paragraph 39(1) and 
the first sentence of Paragraph 40(1) of the WHG and point 1 of the first sentence 
of Paragraph 38(1) of the WasG SH), especially as the entity responsible for the 
task is unable to get out of performing the task delegated to it by law. 
[...]