Many legislative changes have affected the authorisation process in recent years. Wind turbines should be able to be erected more quickly and efficiently in order to accelerate the energy transition. An important role is played by the project manager, who is intended to support the approval authority as an administrative assistant at the expense of the project developer. The new provision created in July 2024 in the Ninth Ordinance on the Implementation of the Federal Immission Control Act (Section 2b 9th BImSchV) comprehensively regulates the activities and deployment of project managers.

According to this provision, the approval authority should appoint a third party as project manager at the request or with the consent of the project developer. The intended discretion associated with the word „shall“ means that project sponsors regularly have a right to appoint a project manager. The authority cannot refuse this request. However, the initiative to appoint a project manager can also come from the authority itself.

The project manager's area of responsibility covers all phases of an approval procedure and can be divided into organisational coordination tasks - such as deadline monitoring - and content-related support tasks. The latter range from the quality management of applications, including completeness checks, to the review and evaluation of official statements and the drafting of the actual authorisation decision.

The final decision lies with the authority. It is responsible for guaranteeing the final decision and must monitor the quality of processing by the project manager. An unchecked acceptance of preliminary work is therefore ruled out. On the other hand, a comprehensive double check is also not required. Rather, the approval authority can and may concentrate on recognisable deficiencies when reviewing the project manager's activities.

The statutory catalogue of tasks is accompanied by requirements regarding the position and qualifications of the project manager. As a „third party“, the project manager must initially be independent. This means that a Rechtsanwalt cannot act as a project manager and advise both the developer and the approval authority on the same project. The project manager must also be knowledgeable and capable and have experience and expertise in immission control law and the legal requirements for the approval of wind turbines.

If the project manager's activities include legal services, lawyers must be commissioned. Pursuant to Section 2 (1) of the Legal Services Act, legal services always exist if the activity to be performed requires a legal examination of the individual case. If, in particular, the authorisation decision is drafted by the project manager, this requires legal knowledge in order to prepare the sovereign decision. The project manager must be able to analyse the legal issues arising from the expert opinions of the authorities or otherwise. In doing so, he will (have to) analyse and evaluate legal issues independently, i.e. carry out a legal examination of the individual case.

Opinions differ as to whether the authority must put the appointment of a project manager who provides freelance services out to tender beforehand, particularly if the project sponsor requires the appointment of a named project manager. It is argued that in this case a tendering procedure can be dispensed with, as the authority does not have to make a selection decision. According to another view, a call for tenders is required for freelance services. The now significantly increased value limits for direct contracts in some federal states, for example €100,000 net in Brandenburg and €80,000 in Saxony-Anhalt, mean that there is no obligation to invite tenders.

The question of whether the costs incurred by the project developer for the deployment of the project manager can be offset - at least in part - against the fees for the authorisation procedure has also not been conclusively clarified. In some cases, there are already explicit regulations on this in the federal states; in other cases, a reduction is being considered for reasons of equity. Irrespective of this, the project sponsor will have to decide whether the additional costs for the project manager can be justified by the acceleration effect - in line with the motto that time is money. 

In general, it can be said that the earlier the project manager is involved, the greater the acceleration effect. Project sponsors and approval authorities are therefore well advised to agree on the possible use of a project manager at an early stage.