Der gesetzliche Biotoptypschutz

Abstract

The German States protect specific biotopes directly by law. Any action which may lead to any impairment of a listed biotope is strictly prohibited. The authorities can grant an exception or exemption to the legal prohibitions only in exceptional cases and normally not for private purposes. Due to the ipso-iure-procedure an administrative act is not necessary to implement the protection. The legal conservation comes into conflict with the municipal legally binding land-use planning. The communities are restrained in their land-use planning. Any realization of its urban regulations is interdicted when it may lead to the destruction of a listed biotope. Any unrealizable legally binding land-use plan is inoperable and void by law. Hence the legal biotope conservation causes an unjustified reduction of the municipal right of self-administration. The blanket and undifferentiated protection of any biotope of the listed types is not necessary. Furthermore the conservation of biotopes causes a serious reduction of the constitutional rights of the freeholders. The legal biotope protections has to be defined as a regulation of the contents and limits of property. As such the biotope protection is incompatible with the constitutional rights of the freeholders. The absolute and undifferentiated protection of any biotope of the listed types is not required. In extreme case the biotope conservation causes the total annulations of the freeholders rights. In these case a compensation would be obligatory, but there are no adequate regulations. Finally the ipso-iure-procedure is incompatible to the constitutional imperative that every law has to be clearly defined and understandable for the addressees. The biotope conservation directly by law violates the German constitution.