Wind turbines should be authorised more quickly. In order to come closer to this declared goal, the legislator has recently shortened some of the decision deadlines with the implementation of the RED III amendment: Since 15 August 2025, a deadline of six months has applied to the formal procedure for repowering projects under certain conditions. For simplified procedures, a decision period of three months continues to apply and for regular procedures, authorisation should be granted within seven months as soon as the application documents are complete.

So much for the theory. In practice, things often look different. Unfortunately, it happens time and again that approval authorities simply ignore these deadlines or even deliberately delay a decision until the factual and legal situation has changed to such an extent that, for example, the site can no longer be approved because it has been deprivileged in the meantime. Such action by the authorities has no consequences. The Federal Immission Control Act does not provide for any real sanctions. There is no effective enforcement instrument if the deadlines have passed - with one exception, however: For simplified modification authorisations for wind turbines, the law (Section 16b (9) BImSchG) now stipulates that authorisation is deemed to have been granted if the authority does not make a decision in good time. Practical experience to date is clear: decisions are now being made on time.

Relevant assessment date is problematic

It is now obvious that it would not be appropriate to falsify the new authorisation of a wind farm. Project developers who wait in vain for a timely decision from the authorities have so far had no choice but to bring an action for failure to act. According to current case law, this can be filed immediately upon expiry of the decision deadlines.

However, in general procedural law, the relevant point in time for assessing the factual and legal situation in the case of actions to compel is generally the time of the last oral hearing. Due to the long duration of court proceedings, it has so far been the case that the courts also take into account changes in the law that have occurred after the official decision deadline has expired when assessing whether the project can be authorised.

A current example from practice is the de-privileging due to regional planning. Many planning regions are endeavouring and politically driven to draw up plans as quickly as possible in order to bring about de-privileging. Where moratoria have not already been introduced for the transitional period, some planning regions are removing areas that have been planned for a long time shortly before the decision on the statutes, as happened in Mecklenburg-Western Pomerania.

In the worst case scenario, the project can no longer be authorised at the time of the court decision. It remains to be established that the non-granting of the authorisation was unlawful when the decision deadline expired. Project developers must then consider whether they wish to assert claims for damages against the authority before an ordinary court in the context of official liability. The same applies if a project was refused in good time before the deadline but was nevertheless unlawful. Even in the case of an action for (rescission of) an obligation, the relevant time for assessing the factual and legal situation under general procedural law is the time of the last oral hearing.

In these cases, affected project sponsors theoretically still have one option to obtain the desired authorisation after all: urgent legal protection through the courts. However, the courts have so far been reluctant in this respect and - as far as is known - have not yet enforced any authorisations by way of summary proceedings.

The various scenarios point to a structural problem. In order to enforce tight decision deadlines in practice, there must be procedural backing for those affected. Otherwise, the legislative changes to accelerate the expansion of wind energy will miss their target.

Judicial assessment date must be brought forward

However, there is a solution to this problem: in the case of an action for failure to act, the expiry of the decision deadline should be the relevant point in time. As far as can be seen, this question has not yet been clarified or has only been addressed in isolated cases in the literature. The courts have also not yet dealt with this question in any depth. They continue to assume the „regular“ date of the decision, i.e. the date of the last oral hearing, without further examination.

The amended decision deadlines and the intention of the legislator speak in favour of bringing forward the assessment date. The „flight to the regional plan“, as is currently taking place, also shows that the previous application of the law is not appropriate.

This issue should be clarified promptly in court in order to perhaps save deprivileged locations after all.  

Irrespective of this, it would also be desirable if the legislator were to bring forward the relevant time for a complaint to the expiry of the deadline in order to incentivise the authorities. A blueprint can be found in the separate shifting forward of the relevant assessment date for the consideration of urban land-use plans in the German Building Code (Section 214 (3) sentence 1 BauGB).

Conclusion

• The legislative goal of faster authorisation of wind turbines remains ineffective without effective sanctions.
• The energy transition not only needs faster procedures on paper, but above all real investment and planning security in practice.
• Courage to develop the law is needed at all levels.