The Higher Regional Court of Lüneburg (OVG Lüneburg) delivers a landmark ruling that provides greater clarity on the handling of lead procedures, FFH assessment and compensation measures in offshore and infrastructure projects.

The decision of the Higher Regional Court of Lüneburg (OVG Lüneburg) concerns lead procedures that play a key role at the interface between the energy transition and nature conservation law.

Major projects such as offshore wind farms, gas production platforms or submarine cables regularly find themselves in tension between the energy transition and strict nature conservation law. The central legal challenge is how interventions in nature and landscape can be legally permitted and compensated without violating the provisions of the Federal Nature Conservation Act (BNatSchG) or the Habitats Directive (92/43/EWG).

For such projects, multiple approval procedures in parallel are often required – for example water law permits, nature conservation law exemptions, planning approval decisions. In practice, the following questions have therefore arisen for years:

• Which procedure is the relevant "lead procedure" in which all nature conservation law assessments must be consolidated?
• Is an additional notification under § 34 Abs. 6 BNatSchG or a separate exemption procedure necessary to protect FFH conservation concerns?
• How specifically must compensation and replacement measures be defined at the time of approval to meet the requirement for conflict resolution?

With its decision of 01.08.2025 (Az.: 7 ME 34/25) the Higher Regional Court of Lüneburg (OVG Lüneburg) now provides a landmark answer and strengthens the approval practice for infrastructure and offshore projects.

Lead procedures are not limited to offshore projects

Although the case concerns a submarine cable between an offshore wind farm and a gas production platform, the ruling is of significance for many projects in coastal and inland regions.

• Energy infrastructure: onshore wind farms, high-voltage transmission lines, LNG terminals
• Industrial plants: refineries, chemical works in water protection areas
• Transport projects: bridge and road construction with interventions in FFH areas
• Pipeline and cable installation: submarine and onshore routes

The OVG makes it clear: Specialist legal main approvals (for example under water law, mining law, environmental impact assessment law) are regularly the sole lead procedure for nature conservation law assessments. This creates planning certainty and avoids parallel administrative procedures.

Submarine cable for power supply from offshore wind farm to a gas production platform

The operator of an offshore wind farm planned to supply a Dutch gas production platform with electricity via an 8 km long submarine cable. The Lower Saxony authority granted a water law permit in 2022. Environmental groups saw a danger to the protected FFH habitat type "Reefs" (1170) and brought a lawsuit.

The Administrative Court (VG) Oldenburg initially ordered suspension of enforcement, but then changed this and allowed immediate enforcement. An environmental organisation lodged an appeal against this with the OVG Lüneburg. Points in dispute included:

• Conduct of the FFH compatibility assessment (§ 34 BNatSchG)
• Requirements for compensation measures (§ 15 BNatSchG)
• Question of whether the water law permit alone is sufficient or additional nature conservation law procedures are required

The legal considerations of the Higher Regional Court (OVG)

1. Principal proceedings pursuant to § 17 BNatSchG – specialist legal authorization is sufficient

• When multiple authorizations are required,the nature conservation exemption is not automatically the decisive proceeding.
• What is decisive is which proceeding legalizes the project in its entirety most comprehensively.
• In the dispute at hand, this was clearly the water law authorization, as it affected the cable laying as a whole – nature conservation exemptions only affected partial sections.
• Accordingly, a separate notification procedure pursuant to § 34 Abs. 6 BNatSchG is not required.

2. FFH compatibility assessment in water law proceedings is sufficient

• The water law proceeding is not a "blind spot" for nature conservation concerns – ecological impacts are examined even without an explicit nature conservation main assessment.
• A parallel notification pursuant to § 34 Abs. 6 BNatSchG would cause unnecessary duplicate assessments and would be contrary to the EU law principle of concentration.

3. Compensation measures – search area instead of concrete land is permissible

• The court approved the practice of only designating a search area for replacement measures and determining the concrete land in a subsequent coordination procedure.
• The prerequisite is high nature conservation expertise certainty that the measure can be implemented within the search area.
• This approach also corresponds to the recommendations of the German Federal Agency for Nature Conservation.

4. No legal violations in impact assessment and FFH protection

• The nature conservation assessment (disturbance factors, time-lag factor, monitoring) was not objectionable.
• Even if the area were classified as a potential FFH site, this would result in no significant impairments.

5. Interim legal protection pursuant to UmwRG – no balancing required

• Pursuant to § 2 Abs. 4 UmwRG, a balancing of interests is only required if the prospects of success are open.
• Since the water law authorization is presumably lawful, the interest in enforcement outweighs.

Practical guidance and action recommendations on dealing with principal proceedings

The decision gives rise to the following guidelines for project sponsors, project developers and licensing authorities:

Optimize authorization strategy: During project planning, it should already be examined which specialist legal authorization is suitable as the principal proceeding. This can avoid additional nature conservation procedures.

Early ecological expert opinions: A comprehensive FFH compatibility assessment and impact assessment must be fully integrated into the main authorization in order to minimize later litigation risks.

Design compensation flexibly: The designation of a search area for replacement measures is approved by the courts, provided that its feasibility is professionally secured.

Accelerate procedures: By bundling nature conservation assessments in the main authorization, projects can be realized significantly faster – a decisive factor for the energy transition.

Conclusion:
With this decision, the Higher Regional Court (OVG) Lüneburg strengthens licensing practice for infrastructure and offshore projects. Companies benefit from greater planning certainty, if they pursue a principal authorization with integrated FFH assessment at an early stage and fully incorporate nature conservation requirements.

AVANTCORE Solicitors in Stuttgart specializes in administrative law. We advise project sponsors and authorities throughout Germany on complex licensing procedures, nature conservation conflicts and litigation.