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Transportudvalget 2014-15 (1. samling)
L 141 Bilag 3
Offentligt

AG-29

Arbeitsgemeinschaft der anerkannten Naturschutzverbånde in Schleswig-Holstein

Landesnaturschutzverband - AG Geobotanik - Landesjagdverband

Landessportfischerverband - Naturschutzgesellschaft Schutzstation Wattenmeer

Schleswig-Holsteinischer Heimatbund - Schutzgemeinschaft Deutscher Wald - Verein Jordsand

Tel : 0431/93027,

Fax: 0431/92047,

eMail: [email protected],

Internet: www.LNV-SH.de

INDKOMMET

- 5 JAN. 2015

TRANSPORTMINISTER1ET

SAGSSTYRINGSENHEDEN

Power of Authority

Herewith we authorize

Mr Dr. Wilhelm Mecklenburg, Lawyer,

Håtschenkamp 7, 25421 Pinneberg, Germany

and

Mr Hendrick Kerlen,

Westermakelsdorf 12A, 23769 F e h m a r n , Germany

to represent us within all, procedures concerning

the construction act for the

Fixed Link of the Fehrman Belt.

Kiel, December 20, 2014

Michael Ott

(for the AG29 Schleswig-Holstein - Working Group of legally recognized nature conservati-

on organizations in Schleswig-Holstein (AG 29) and its associated organizations)

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Dr Wilhelm Mecklenburg

Diplom-Physiker * Rechtsanwalt

Håtschenkamp 7

2 5 4 2 1 Pinneberg

[email protected]

RA Dr W Mecklenburg. Håtschenkamp 7, 25421 Pinneberg

To the Ministry of Transport / Transportministeriet

Kingdom of Denmark

- Dorthe Gravgaard -

Frederiksholms Kanal 27 F

DK -

1220

Copenhagen

(København)

Hand Carried Delivery

Telefax

of Transportministeriet: not avaible upon request

eMail of Transportministeriet: [email protected]

5th January 2015

C-414/13

Høring over udkast til Lov om anlæg af en fast forbindelse over

Femern Bælt med tilhørende landanlæg i Danmark -

Pre-Hearing for the Construction Law concerning the Fehmarn Belt Fixed Link

(FBFL) to be brought before the Danish Folketing

Objections (bemærkninger til lovudkastet)

Objection / Statement

The

Aktionsbiindnis gegen eine feste Fehmarnbeltquerung e.V.,

represented by Mr. Hendrick Kerlen, Westermarkelsdorf 12A, 23769

Fehmarn,

Federation for Environment and Nature Conservation, Germany

(BUND e.V.), East Holstein Group, represented by Mr. Wolfgang

Hielscher, Am Moor 9A, 23611 Bad Schwartau, who also represents

the BUND Schleswig Holstein,

Working Group of legally recognized nature conservation

organizations in Schleswig-Holstein (AG 29) and its associated

Konto 898939 204 BLZ 200 100 20 Postbank Hamburg ** Ust-IdNr: DE 161 282 580

IBAN

DE85 2001 0020 0898 9392 04

B I C (SWIFT)

PBNKDEFF

Telefon 04101 780 325 ** Telefax 04101 780 326 ** Mobil 0175 77 49 978

- In Burogemeinschaft mit Rechtsanwalt und Fachanwalt fur Verwaltungsrecht Ralf Wassermann -

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organizations,

State Association of Nature Conservation (LNV)

AG Geobotany

Regional Hunters Association

State Association of Sport Fishing

Nature Conservation Society Wadden Sea, Conservation Centre,

Schleswig-Holstein Heritage Association,

German Forest Protection Association,

Jordsand Association,

all represented by the CEOs of the State Nature Conservation

Association, Mr. Ragnar Schaefer an Michael Ott, business address:

Burgstrasse 4, 24103 Kiel,

Verein zum Schutz von Umwelt und Wohnqualitåt e.V. (VESUV)

represented by the Chairman Joachim Kuschinske, SandstraBe 25-27,

23552 Liibeck,

Umweltschutzverein Seeretz e.V. (UVS), represented by Chairman

.Dr. Jorn Funck, Hammersberg 24, 23611 Sereetz

in the following to be referred to as

objectors,

have asked me to represent them in the above- mentioned procedure. I declare to

have been properly empowered with powers of attorney as included.

In the name of and on behalf of the objectors I raise

objections

with representations as follows :

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T A B L E OF CONTENTS

Preliminary remarks

Connection to the Espoo-procedure

Split development consent

10.

11.

Necessity for a coherent authorisation

No development consent through a parliamentary law

The Aarhus Convention

T E N - T regulations

State subsidies

Ecology

Tunnel safety

Uninformed preliminary decision of implementing the

immersed tunnel

General remarks

Further major faults in the project plan

Flawed selection of the favoured immersed tunnel

Only cursory appraisal of the null alternative (baseline scenario)

Unfeasible bridge solutions

Methodology of selecting the optimal fixed link solution

Arguments from the Høringsnotat October 2014

Inadequate environmental assessment

The Marine Strategy - Framework Directive; Biodiversity

Some obvious deficiencies in the investigations are presented

in the following sections

Impact of dredging works

Impact on benthos and plankton

11.1

11.2

11.2.1

11.2.2

11.2.3

11.2.4

11.2.5

11.2.6

12.

13.

13.1

13.2

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13.3

13.4

13.5

13.6

14.

15.

15.1

15.2

15.3

16.

Impact on birds

Impact on bats

Impact on fish

Impact on the harbour porpoise

Dynamics of the sea bed

Economics of the Fixed Link Project

Traffic Forecast 2014

Financial Analysis 2014

Mandatory macro-economic project justification

The draft law (lovudkastet) is moot

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Preliminary remarks

1.1

For technical reasons - as no Telefax communication

was made available - M r Kerlen from the

"Aktionsbiindnis" w i l l personally deliver the present

objections to the Transportministeriet. He will sign the latter

and has been authorized to do so for all the objectors.

1.2

The person o f contact, Ms Dorthe Gravgaard wrote to us

on December 19, 2014:

Dear Dr W Mecklenburg

The Ministry of Transport is closed for the public holiday and I wil

therefore not be available until January 5.

Best Regards

Dorthe Gravgaard

Head of Section

Ministry of Transport

Bro- og Metrokontoret

Frederiksholms Kanal 27F

DK-1220 København K

We hold this behavior to be unlawful under the general

requirements of the EIA-Directive (public participlation

clauses), to wit the public participation clauses ("effective

opportunities to participate", Article 6 No 4 of said Directive).

In particular, certain files on the website

www.hoeringsportalen.dk concerning the present procedure

turned out to be corrupt and we had to ask for proper files. This

problem could not have been solved without help from the

Danish Authorities.

Also it will not be possible to send these objections by mail as

the person on the "receiving end" of the mail communication

will not be available to confirm receipt of the objection.

The objectors maintain that, i f the Ministry feels it deserves a

holiday during the Christmas period, it is unfair (in a legal

sense!) that at the same time the public is put under the

obligation to work and left without reliable communication line.

1.3

The objectors are NGOs who, under German Law, fulfil the

necessary requirements to take legal action under Article 11 of

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the EIA-Directive.

1.4

Because German and English material is available only through

the portfolios of the Espoo procedure

'Transboundary public participation

pursuant to § 9b

of UVPG (the German law on environmental impact

assessment) for the Danish section of the Fixed Link

Project between Rodby and the German-Danish border in

the Baltic Sea" -

"Espoo procedure"

for the Fixed Link, the party of

origin: Denmark, notification by the Landesbetrieb fur

StraBenbau und Verkehr, (LBV-SH, State Authority for

Road Construction and Transport) of 2 July 2013.

addressing the environmental effects of the Danish half of the

FBFL on Germany and the German "Planfeststellungsverfahren"

addressing the environmental effects of the German half of the

FBFL on Germany the objectors sometimes refer to material

from these procedures.

1.5

The public hearing procedure on the draft act is marred

by two serious flaws that are completely invalidating

the former and are turning it into a mere farce for the

public.

Firstly,

the recently published financial analysis, which is an

important part for any decision on the Project Act, is still based

on preliminary cost estimates of Femern A/S. It has already been

announced that the financial analysis 2014 will have to be

revised on the basis of the more relevant cost estimates quoted

by the construction consortia in their tender submissions.

Secondly,

the socio-economic analysis for the Project is not yet

available for the hearing.

These two procedural flaws entitle the public to demand that the

Ministry of Transport shall stay the current public hearing until

these two decision-relevant analyses are available for public

review and discussion.

1.6

We also remind the reader that the German public has not been

consulted within the Danish scoping procedure under the EIA-

Directive.

1.7

Furthermore and so far, the draft act raises a number of

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important legal and forensic questions:

Can the building permit for the cross-border tunnel be issued by

an act of Folketing?

Did Denmark comply with the regulations of the Espoo

Convention when convening the transboundary hearings on the

environmental impact of the Belt Tunnel?

Was the Minister for Transport rushed into making a hasty and

uninformed decision on the immersed tunnel solution?

Are the EIA and the various risk assessments (e.g. tunnel safety,

safety of shipping) providing a sound basis for a decision in

favour of an immersed tunnel?

Does the traffic prognosis 2014 provide a sound basis for the

economic evaluations?

We w i l l in the following touch upon these questions in

a concise manner. We refer the Danish Government, in

particular the Ministry o f Transport, to our objection

with the German Planfeststellungsverfahren for the

German half o f the FBFL. This we consider to be part

of the present objection. The material is available to

Femern A/S and thus to the Danish Government.

Connection to the Espoo-procedure

The present hearing is connected to the Espoo-hearing

having taken place in 2013 in Germany, but otherwise

conducted by the Danish authorities. That hearing

contained only a very small portfolio o f material:

a) Fehmarnbelt Fixed Link (coast to coast)-TRANSBOUNDARY-

ENVIRONMENTAL IMPACT ASSESSMENT- Summary Report,

with a German translation (of 62 pages). ("Summary")

b) Fehmarnbelt Fixed Link (coast-coast)- TRANSBOUNDARY-

ENVIRONMENTAL IMPACT ASSESSMENT- Documentation for

the Danish Espoo Procedure, only in English ( 366 pages).

("Environnemental report").

The present hearing contains

no material either in

German or in English

(the latter being, unlike

German or Danish, lingua franca within the EU). As far

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as the Danish authorities are concerned, the German

public will altogether be informed only by the portfolio

of the Espoo-procedure.

Within the Espoo-procedure, only two documents have been

made available to the German public, to wit:

a) Fehmarnbelt Fixed Link (coast to coast)-TRANSBOUNDARY-

ENVIRONMENTAL IMPACT ASSESSMENT- Summary Report,

with a German translation (of 62 pages).

b) Fehmarnbelt Fixed Link (coast-coast)-TRANSBOUNDARY-

ENVIRONMENTAL IMPACT ASSESSMENT- Documentation for

the Danish Espoo Procedure, only in English ( 366 pages).

These two reports are hereinafter sometimes referred to as

"environmental report"

(b) and

"summary"

(a).

The documentation is totally inadequate.

The objectors consider this to be unlawful. The Danish

Espoo-procedure was entirely insufficient as far as the

material provided was concerned and cannot therefore

substitute a participation within the procedure leading

to the Construction Act.

Being a hearing o f the German public o f the effects o f

the

Danish

half o f FBFL on the German public, the

hearing's object was ridiculously formulated.

The construction act therefore can be passed only i f the

objectives o f the EIA-Directive are met, cp Artikel 2

para (2) lit b o f directive 2014/52/EU. The material

leading to the Construction Act must therefore be

available not only in Danish, but also in German (at

least in English, even though this would not be

considered to be sufficient).

However as Ms Dorthe Gravgaard told us expressly by eMail

from December 5, 2014, the material for the construction law is

available

only in Danish.

The objectors consider this to be unlawful.

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Split development consent

3.1

The overall development consent is split into two: On the

German side it will be the result of an administrative procedure,

on the Danish side the Construction Act will be a formal

parliamentary law.

3.2

This splitting is after all agreed upon in the Treaty for the

building of a fixed link across the Fehmarn Belt. See Art. 13,

paragraph 3, which states:

The implementation of the necessary approval procedures

will be, for the part of the Fixed Link on German

sovereign territory, subject to German law, and on Danish

sovereign territory to Danish law.

The German authorities have confirmed that there will be no

proceedings, in which the objections of the public regarding the

entire project will be taken into account. (Answer of the State

(Lander) Government of Schleswig-Holstein, parliamentary

information 18/1119, Question and answer no 3.).

The objectors maintain that the splitting of the building permit

for the Fixed Link is not only inappropriate but also illegal and

the Treaty, therefore, must be altered (if the whole project is not

abandoned).

3.3

In this context, it is to be emphasized that the Espoo procedure

not

a Strategic Environmental Assessment for the entire

project,

cf. the SEA Protocol = Protocol on Strategic Environmental

Assessment of the Agreement about the Environmental Impact

Assessment in a transboundary context, OJEU L 308/35 of 19

November 2008.

DIRECTIVE 2001/42/EC of the EUROPEAN PARLIAMENT and of

the COUNCIL from 27 June 2001 on the assessment o f the effects

of certain plans and programmes, OJEU 197/30 21 July 2001 but

concerns a project - EI A (Directive 2001/92/EU).

The objectors maintain that such a strategic assessment should

have been carried out for the Treaty and before entering into the

procedures for the respective national development consents.

Necessity for a coherent authorisation

4.1

The objectors maintain that it follows from the EIA-Directive

that the development consent for the Fixed Link must be a single

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uniform decision based on coherent material encompassing the

entire project (both halves of the link together). This follows

basically from the fact that building half a tunnel would make no

sense and might also be technically impossible.

4.1.1

Under the Boxus-decision of the ECJ the requirements of the

EIA-directive effectively have to be fulfilled also within the

legislative procedure at hand. This point has now been clarified

within Directive 2014/52. Thus, in particular, the definitions of

the EIA-Directive apply.

4.1.2

The term "development consent" or authorisation" is derived

from

'Development consent'

means the decision of the competent

authority or authorities which entitles the developer

to proceed with

the project",

Article 1, para. 2, lit c) EIA Directive

The term

"project"

is also found in the EIA Directive. There it

is defined as

"project

means the execution of construction works, other

installations schemes

or other interventions in the natural surroundings and

landscape including those involving the extraction of

mineral resources".

Article 1, para.2, lit a) EIA Directive

4.1.3

From the fact that the

'developer',

as a person applying for authorisation for a

private project or as a public authority which initiates a

project",

is given the right to

proceed

with the project, it follows that the

project

must be feasible.

4.1.4

It corresponds to general legal principles that the right to

authorisation of a non-viable project does not exist. The German

courts label this under the term -

"no interest in a decision".

4.1.5

There can be no interest in a development consent for half a

tunnel.

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Only in such a way can the public (concerned) properly

participate in the procedures.

No development consent through a parliamentary law

The objectors maintain that Denmark must not grant a

development consent by parliamentary law, to wit: The

exemption Article 1 No 4 of the EIA-directive is not applicable.

The reason for this is basically that the Espoo-convention

regulation concerning cross-boundary participation does

not

contain such an exemption.

In fact the Espoo-Convention only speaks of "decisions of

competent authorities", see in particular Article 1 (v) of the

Convention,

"Proposed activity" means any activity or any major

change to an activity subject to a decision of a competent

authority in accordance with an applicable national

procedure; ...

and simply does not mention "specific acts of national

legislation".

There are also rules of German constitutional law that would

forbid giving a development consent by parliamentary law.

The reason for this is that the Danish half of the tunnel does

after all have legal and material consequences for the German

public concerned.

Putting together the objectors maintain:

(1)

It is

not

permissible to approve a measure such as

the Fixed Link in separate proceedings for two

tunnel halves without the public having an

opportunity to comment upon the project in a

manner, which, in the framework of a contiguous

approval, would have to be considered with legal

effectiveness.

It ist

not

permissible to restrict participation in the

Danish Espoo Procedure to the above-mentioned

small portfolio in particular since many further

(2)

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relevant documents were also available at the time,

but only in English and Danish.

(3)

It is

not

permissible to base the participation of the

German public concerned on documents that are not

in German.

A Strategic Environmental Assessment had to be

carried out for "Fixed Link and (at least part of)

Hinterland Connections"

(4)

5.5

Indeed, only within a Strategic Environmental Assessment a

parliamentary act would have been possible:

'plans and programmes' shall mean plans and programmes... as well

as any modifications to them: which are subject to preparation and/or

adoption by an authority at national, regional or local level or

which

are prepared by an authority for adoption, through a legislative

procedure by Parliament

or Government,...

Article 2 Nr 5 lit b) SEA-Protocol, see also Article 2 lit a) indent 1

SEA-Directive 2001/42/EG.

In asfar as the second indent of Article 2 lit a) of the SEA-

Directives provides (only) for plans or programmes which are

required by legislative, regulatory or administrative provisions,

the following can be pointed out: A cross-border project always

requires some state treaty which usually is adopted by the

respective national parliaments, mostly in the form of some

formal legislation. These state treaties or the corresponding

national laws then are the "plans or programs" which are to be

subjected to a Strategic Environmental Assessment.

That there has to be an environmental assessment for the entire

tunnel (and not only the respective halves) also follows from the

"principle of integrated permits" as outlined above. While the

rules of SEA provides for unifying procedures for several

projects and a plan or program common to these, the rules of

EIA by the definition "projects" and "permits" make sure that an

non-dividable

project is subject to a

single

EIA.

The Aarhus Convention

6.1

The Aarhus Convention allows the implementation of

environmental impact assessments only through authorities

(Article 6) and specifically excludes from the term "authority'

those bodies and institutions acting in a legislative capacity

(Article 2, No.2, in fine).

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However, in the Boxus Decision the ECJ (C-128/09) holds that

the Aarhus Convention excludes parliamentary legislative acts

from its application.

The Court infers this from the formulation of Article 1 of the

Convention,

This definition (of a public authority, undersigned) does

not include bodies or institutions acting in a judicial or

legislative capacity.

The objectors maintain that the Court is wrong in concluding

that the Aarhus Convention excludes legislative acts from the

application of the Convention. They hold this to be true only in

an inverse sense namely that the relevant decision making

processes must be non-legislative in nature.

The objectors maintain that, similarly to the situation with the

Espoo Convention, the Aarhus Convention does not allow to

issue a development consent by parliamentary law.

Independent from which interpretation one chooses: The Court

sets strict standards for the legislative procedure and maintains

effectively that the requirements of the EIA Directive must be

observed.

Furthermore, the objectors point out that the Court holds that the

right to legal action of the public concerned is not diminished by

the fact that the development consent is granted by a law,

and

that frequently no legal redress exist against parliamentary

acts,

as is certainly the case in Germany (with very few

exceptions).

T E N - T regulations

The objectors maintain that the planning of the FBFL violates

the requirements of

REGULATION (EU) No 1315/2013 OF THE

EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 December 2013

on Union guidelines for the development of the trans-

European transport network and repealing Decision No

661/2010/EU, OJEU L 348/1, 20.12.2013

and

REGULATION (EU) No 1315/2013 OF THE

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EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 December 2013

on Union guidelines for the development of the trans-

European transport network and repealing Decision No

661/2010/EU, OJEU L348/129, 20.12.2013,

as well as certain related regulations.

Regulation 1315/2013 spells out certain requirements for the

elements of the trans-European transport network (TEN-T). In

particular a socio-economic cost-benefit analysis -

'socio-economic cost-benefit analysis' means a quantified

ex-ante evaluation, based on a recognised methodology,

of the value of a project, taking into account all the

relevant social, economic, climate-related and environ

mental benefits and costs. The analysis of climate-related

and environmental costs and benefits shall be based on the

environmental impact assessment carried out pursuant to

Directive 2011/92/EU,

Article 3 lit t) of Directive 1315/2013

must be carried out. This is to be the case at least when a project

is to be subsidized under council regulation 1316/2013 (which is

the case for FBFL).

Under Article 7, para 3 lit c) the projects must

economically viable

on the basis of a socio-economic

cost-benefit analysis.

The objectors maintain not only that

(1)

this holds for any project to be an element of TEN-T

and certainly for the FBFL for which EU financing

has already been applied,

said "economic viability" can

not

be achieved for

the FBFL and thus the project is

(2)

materially unlawful

under EU-law.

State subsidies

In particular, compatibility with EU-regulations for state

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subsidies is

not given.

8.2

The Danish model for the financing of the FBFL- state-

guaranteed loans granted to a state-owned company constitutes

an infringement of Articles 107ff TFEU (TREATY ON THE

FUNCTIONING OF THE EUROPEAN UNION) - state

subsidies. The guarantees constitute a state aid incompatible

with the internal market.

8.3

The

Decision COM(2009)5513, finally to N 157/2009 (Denmark), 13

July 2009, (cf. OJEU C 202/2, 27 August 2009)

does not invalidate this argument, to wit:

The Commission bases its decision

firstly

the assumption

that Femern A/S is acting as a public authority in their

participation in the planning process for the infrastructure.

Therefore, the use of government funding, which is granted

solely for the planning of the project is not State Aid within the

meaning of Article 87, (now 107 TFEU), para. 1, EC Treaty.

addition

, the Commission stated that such public support under

Article 87 (now 107 TFEU), para. 3, letter b, is compatible with

the common market anyway, because it serves the execution of

an important project of common European interest.

8.4

The objectors are of the opinion that the

first argument

of the

Commission is no longer compatible with the view of the European

Court on the public financing of infrastructure,

" ECJ C-288/11P, 19 December 2012 (Airport

Leipzig/Halle)".

As to the

second argument,

the objectors point out that the project

is not

and cannot be in the European interest, because it deviates

significantly from the requirements of the TEN Guidelines, in

particular not being economically viable in the sense required by

the TEN-T-guideline (see above).

8.5

From the German perspective, the tunnel therefore can not, for

legal reasons, be financed. Under German jurisdiction a "plan

justification" is therefore missing making a planning consent for

the German half of the tunnel unlawful and therefore, the Danish

half of the tunnel becomes an unfeasible project.

Ecology

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9.1

There are a number of significant objections to the

environmental assessments carried out for the project.

9.2

First of all, the planning documents maintain that there will be

no significant (negative) environmental effects of building

and using the tunnel.

9.3

This is utterly ridiculous.

Millions of tons of seabed material will be displaced and for

several years the surrounding waters will be muddied by the

construction causing fauna to die or otherwise to suffer in a

significant way. This in turn will have strong effects for instance

on birds as well as sea life feeding in the area. Benthic fauna and

flora will terribly suffer. The same applies to sea mammals like

the harbour porpoises living in the area and migrating through it.

They will suffer not only through the deterioration of the water

quality (for which, by the way, the hydrographical simulation

models turn out to be false) but will also be deeply afflicted by

noise through the construction period and probably through

vibrations and electromagnetic effects while the tunnel is

operated.

Some details will be spelt out below.

9.4

As far as compensation measures are concerned, the German

side only offers money claiming - falsely - a compensation

natura

as impossible.

It seems that on the Danish side, coastal landfills are considered

as compensation measures. The objectors strongly disagree with

this point of view.

This distorted view becomes (formally) possible because of the

Danish (and German) policy in designating special protection

sites (birds directive and/or sites of community interest (habitats

directive). There are great and unlawful gaps in the spectra of

designated sites. If for examples, landfills are put into these

gaps, they can for legal reasons not be considered to be

compensation measures.

9.5

That political "keep clear" instruction is well known for German

examples (Lubeck Airpoirt, A20).

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On Fehmarn, the special (bird) protection sites look as follows:

1530-491

(from the official publication of the map, the scale being slightly

distorted for technical reasons), clearly leaving room for the

FBFL.

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9.7

For FFH areas see map:

32-391

1533-301

•* on

(from the official publication of the map, the scale being slightly

distorted for technical reasons)

The objectors maintain that "efforts to keep clear" are definitely

recognisable here.

9.8

The corresponding situation on the Danish side cannot currently

be assessed.

10.

Tunnel safety

10.1

The objectors maintain that the planning process does not fulfil

the requirements of Council Directive 2004/54, to wit:

DIRECTIVE 2004/54/EC of the EUROPEAN

PARLIAMENT and of the COUNCIL, 29th April 2004, on

minimum safety requirements for tunnels in the trans-

European road network, JOEU L 167/39, 30th April 2009

(hereinafter: Tunnel Directive)

10.2

According to Eur-Lex, Germany has implemented the Tunnel

Directive through

(1)

Revision of the "Guidelines for the equipment and

operation of road tunnels" (RABT) and general

circulars concerning road construction

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Administrative act: Circular, number: 10/2006, Official Journal:

Administrative measures, publication date: 27 April 2006:

Reference: (MNE (2006)52992)

(2)

Revision of the "Guidelines for the equipment and

operation of road tunnels'" (RABT) and a general

circular concerning road construction

Administrative Act: Circular, number: 10/2006, Official Journal:

Administrative measures, publication date: 27 April

2006;Reference: (MNE (2006)52991)

(3)

43. Regulation amending road traffic regulations and additional

VwV-StVO, 10 April 2006

Administrative A c t : Regulation, Official Journal : Federal Law

Gazette, part 1 (BGB 1), publication date 30th March

2006,.Coming into force : 1 April 2006, Reference (MNE

(2006)52993)

It should be noted that the only legal act of realisation (number 3)

above) applies only to the introduction of traffic signs. The

RABT has been introduced by means of an administrative

circular.

Denmark has implemented the Tunnel Directive as follows:

(1)

Bekendtgørelse nr. 892 af 18 august 2006 om

minimumssikkerhedskrav for tunneler, der er

offentlige veje, og som indgår i det transeuropaeiske

veynet

Aet: Bekendtgørelse, number 892; Official Journal:

Lovtidende A, date of publication: 18 August 2006,

Reference (MNE (2006) 56288)

(2)

Bekendtgørelse nr. 726 om minimumssikkerhedkrav

for tunneler i det transeuropaeiske vejnet.

Aet: Bekendtgørelse; Official Jounal: Lovtidende A,

date of publication 8 July 2008, come into force 9

July 2008; reference: (MNE (2008)53956)

However, according to the established case-law of the European

Court of Justice, an EU Directive cannot be implemented by

means of administrative circulars. The implementation of the

Tunnel Directive therefore is faulty in both countries.

The Tunnel Directive which should have come into force by 30

April 2006 has been, as yet, insufficiently transposed into

German law and is, therefore, to be applied with immediate

effect.

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The objectors do not, of course, claim that the RABT (number 1

and 2 of the notification by Germany) should not be observed.

The legal character of the RABT (or the accompanying

introduction) is, however, only that of an anticipated expert

report. It is not a general administrative regulation (cp Article

84, para. 2, GG (Basic Law of Germany))

The mandatory regulations of the Tunnel Directive with relevance to

the circumstances of the present case include:

(1)

Compliance with the

minimum requirements

according

to Annex I (see Article 3, para.l of the Directive);

Designation of an

administrative authority

(Article 4)

Appointment of a

tunnel manager

(Article 5)

Appointment of a

safety officer

(Article 6)

Risk analysis

(Article 13)

Exceptions for innovative technology (Article 14)

(2)

(3)

(4)

(5)

(6)

Important aspects to be ascertained relate to the transport of

dangerous goods,

Annex I, number 1.1.2 of the Directive

the extent and importance of which needs to be explored, as well

ventilation systems,

Annex I , number 2.9 of the Directive.

The objectors consider the ventilation system indicated in the

planning,

Environmental Report, Espoo-procedure, page 76,

which is

made up of a

self-ventilating system due to piston

effects

and

impulse fans

at the tunnel exits,

to be

totally inadequate.

This is so specifically in view of the length of the tunnel and

possible operational breakdowns (accidents), in particular large

fires with an intensity in the region of 100 MW or possibly

more.

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The objectors have supplied many more technical details within

their objections in the German participation procedure

(Planfeststellungsverfahren).

According to Article 1, para. 1, 3 of the Tunnel Directive, a single

administrative authority

is to be set up for each tunnel.

Although Member States may, in principle, set up several

administrative authorities (Article 1, para. 1), this only applies to

the Member State as a whole and not the individual tunnel

(Article 1, para.3).

10.5

Article 5, para.l of the tunnel Directive shows that this

administrative authority must be established in the

planning phase.

Also, the tunnel manager (Article 5) is to be

named in the planning phase.

This follows with greater clarity, from Article 4, para. 4, in

conjunction with Annex II of the Tunnel Directive, whereby

"the provisions of the Directive have to be applied from the

beginning of the preliminary planning stage".

This is not a mere (nit-picking) formality.

The safety problems of the tunnel will not only arise with the

opening of the tunnel but, quite definitely, in the construction

phase as well.

In addition, specific elements of infrastructure of the tunnel must

be assessed as to their necessity during the planning phase, so as

to avoid at commissioning the experience that these measures

would be necessary while it is too late for their supplementary

installation.

10.6

It is not apparent that a single administrative authority was set up

for the present planning. This constitutes a breach of the

requirements of the Tunnel Directive.

It is, therefore requested that,

the ongoing process be discontinued and, if necessary, not

reopened until this authority has been set up and a tunnel

manager appointed.

Otherwise this provision of the Tunnel Directive can not been

fulfilled.

10.7

The objectors take this as a further argument to support their

opinion that the planning should be carried out in total by a single

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administrative authority, since, for those affected, it is quite

absurd and a fraudulent exploitation of their legal rights to

authorise a tunnel in two halves.

Article 13, para 2 of the Tunnel Directive orders the Member

States to develop a common methodology, with regard to risk

analysis:

"2. Member States shall ensure that, at national level, a detailed and

well-defined methodology, corresponding to the best available

practices, is used and shall inform the Commission of the methodology

applied; the Commission shall make this information available in

electronic form to other Member States."

Germany and Denmark should have co-operated in this respect to

develop a joint methodology which is accessible to the public.

It cannot be seen that this has been done,

which is being reprimanded as being a major omission.

Summarizing it has to be noted that the safety of the tunnel and

its users has by no means been proven.

From the German perspective, a municipal political aspect is of

particular importance.

Protection against fire

and of public

safety fall, according to German law, (here: Fire Protection Act

of Schleswig-Holstein, BrSchG-SH), under the responsibility of

the local community i.e. presently the town of Fehmarn. This

not only concerns the fighting of fires, but more general rescue

operations.

It can be assumed

with certainty,

the town will not be able to

fulfil its duties in relation to BrSchG-SH regulations.

As experience with the planning of the Elbe tunnel in

connection with the A 20 motorway shows, the Federal State of

Schleswig-Holstein, which may only become active on the

initiative of the competent district authorities (in the case of the

Belt tunnel the District of East Holstein), is not inclined to

become active in a form of a contingent liability.

Should it turn out in this context, that the district and the state

are united in their obstructive attitude, the

tunnel safety

can indeed

not be guaranteed.

Although the Federal Republic of Germany has transferred the

operation of the tunnel to Denmark in Article 4, para. 1 of the

Treaty, this cannot include the duties being subject of the Fire

Protection Act of Schleswig-Holstein, since this is state law

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whilst the Federal Government, so far, is lacking relevant

legislative competence.

Uninformed preliminary decision of implementing the

immersed tunnel

General remarks

As mentioned in the introduction to the second part of the

legislative proposal (Part 2 Explanatory statements on the

Proposal), in February 2011, the immersed tunnel was selected

from among the two technical solutions mentioned in the

proposal for the Planning Act.

For the selection process, the following sets of criteria were

used:

environmental impact,

security of shipping in the Fehmarn Belt,

operational security and hazard control,

technical construction risks,

duration of construction works,

economic efficiency.

Following a public meeting held on 20 January 2011 at

Lalandia/Rødbyhavn, the Minister for Transport instructed

Femern A/S to focus its further planning on the immersed

tunnel.

In this connection, it should be noted that contrary to the

assertion in the explanations to the legislative proposal for the

Construction Act (page 16) a good number of German

participants at the Lalandia meeting brought forward a barrage

of objections against the fixed link project in general and

notably against the immersed tunnel.

Main arguments raised by them at that occasion were:

Absence of proof of the socio-economic and financial

feasibility of the whole venture;

serious concerns about the marine environmental impact

of the immersed tunnel and

the risks to shipping during the construction phase.

Even the issue of a bored tunnel as an environmentally friendly

solution was put forward by the German participants. On that

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occasion, directors of Femern A/S still argued that the Project

would produce a net benefit of 1.2 billion Euro, though they

knew very well that the net benefit of the immersed tunnel

would range near zero.

Therefore, the Ministry is rebuked for alleging that, at said

meeting, no new arguments were raised against the favoured

solution of an immersed tunnel.

Although backed by the majority of Folketing, the 2011

instruction by the Minister in favour of an

immersed tunnel

was based on an un(der)informed and thus incorrect

and premature decision.

The same flawed approach had already been taken in the

proposal for the Project Planning Act of December 2008 in

which the bridge solution was declared the preferred one; the

immersed tunnel was only considered another possible option; a

bored tunnel was not mentioned at all.

At that time, insiders knew already from the pre-feasibility

studies (COWI-Lahmeyer, 1999) that a bridge would result in

intolerable average risks for shipping and thus would not be

feasible.

Likewise, the marginal (and deceiving) results of the earlier

socio-economic project evaluation (COWI—Danmarks

Transportforskning, 2004 - not in compliance with TEN-T

requirements!) on the poor economic efficiency of the immersed

tunnel should have been considered in Folketing's decision on

passing the Planning Act.

However, this important fact was omitted from the legislative

proposal of 2008 in order to leave a loophole, if the bridge

solution failed.

Nevertheless, and against all rational planning, Femern A/S has

included the bridge solution in its German plan approval

documentation as still "feasible" solution.

Irrespective of this, the immersed tunnel is now being presented

as the only and final option for which Folketing shall issue its

development consent. The legislative proposal for the

Construction Act and its related documentation is grossly

inadequate for Folketing to come up with a fully informed

decision as will be shown below.

Further major faults in the project plan

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11.2.1

Flawed selection of the favoured immersed tunnel

The selection of the best technical solution for the Fixed Link

structure proposed for implementation is beset by a number of

deficiencies indicated below.

11.2.2

Only cursory appraisal of the null alternative (baseline

scenario)

Right from the beginning, i.e. already at the pre-feasibility stage,

the Ministry of Transport failed to consider the null alternative

for planning of the Project. The null alternative is marked by

retaining the ferry service while freight trains continue using the

existing Jutland route. This reference case has never been

seriously evaluated. In 2004, COWI-Danmarks

Transportforsknign indicated that assessment of this alternative

might be beneficial. But the Ministry failed to heed this expert

advice.

Due to the clear instruction by the Ministry to further planning

of the immersed tunnel, Femern A/S also failed to evaluate the

do-nothing alternative.

The objectors rebuke Femern A/S for their obvious neglect of a

self-evident obligation in plan preparation and demand that this

fault is made good as precondition for a final decision on project

implementation by an act of Folketing.

11.2.3

Unfeasible bridge solutions

The deceiving and wasteful manner by which the bridge

solutions has been dragged along throughout project preparation

from the pre-feasibility study, via the Planning Act, the

subsequent feasibility studies and the current approval stage of

the Project has been unveiled under Section 11.1 above. A lot of

money has been wasted on studying this nonsense solution. The

unacceptable average risks for shipping were already known by

1998. By cunning editing of the final pre-feasibility report of

COWT-Lahmeyer, this fact was hidden somewhere in the

annexes to the main report in order to ensure that no time

pressed decision maker might stumble across this decisive

technical planning restriction. Later on, the earlier findings from

1998 were corroborated through costly simulation runs on

bridge design and fairway layout.

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Moreover, the additional findings on the negative environmental

impact of bridge piers in terms of the qualitative stratification of

water currents as well as the quantitative impairment of the

water exchange through the Fehmarn Belt should have been

enough for abandoning the bridge solution. Irrespective of such

obvious killer conditions, Femern A/S is still alleging that the

bridge solution is a feasible option while including it in the final

selection exercise for the optimum technical solution.

In Section 12.2.5 of its proposal for the Act (page 46), the

Ministry alleges that all technical solutions have been examined

through diligent and prudent analysis. The above representations

give evidence that this claim is lacking substance.

Therefore, the objectors reprimand the Ministry for its failure to

control the work of Femern A/S in order to avoid wasteful

planning that is obviously deceiving the public. They demand

that the Ministry subjects the plan to thorough scrutiny by

independent international consultants.

11.2.4

Methodology of selecting the optimal fixed link solution

The proposal of the Construction Act only mentions the sets of

criteria applied for the selection of the optimal fixed link

solution (ref. Section 12.2.5). Therefore, the final decision-

makers are assumed to just follow the Ministry's

recommendation for their vote.

Neither the Ministry nor Femern A/S are disclosing how they

established their preference for the immersed tunnel. The

documentation in this respect on the websites of the Ministry

and Femern A/S is exiguous. On 9 September 2013, Femern

A/S just published a memo (2 pages) "The selection of the

immersed tunnel as the preferred solution" without any

indication on the methodology and criteria used. Apparently, the

final choice has mainly been made under consideration of

construction cost.

Since the bridge solutions are obviously unfeasible, decision

makers' final choice will be reduced to the two tunnel options,

i.e. the immersed tunnel and the bored tunnel - or an improved

do-nothing alternative in case the latter is also assessed in depth.

The cost comparisons in Section 12.2.5 of the proposal suggest

that the bored tunnel and the cable stayed bridge were mainly

deselected by taking into account construction and recurrent

cost. Though environmental impacts allegedly had been

carefully assessed, they are not specifically mentioned as having

played a role in the deselection process.

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As mentioned before, any considerations of the bridge solution

was and is absolutely superfluous because it is not feasible.

This leaves the question of whether the deselection of the bored

tunnel can simply be decided through a mere cost comparison.

Taking into account the documentation which Femern A/S

produced in their application for the German development

consent, the question has to be answered in the negative. On the

basis of their multi-criteria comparison, the immersed tunnel

was clearly rated inferior to a bored tunnel in terms of former's

significant environmental impact. Yet, in the course of the

overall assessment, the bored tunnel was excluded by using its

"higher" cost as the final "killer argument".

In this connection it is worth noting that Femern A/S is

essentially still sticking to the outdated design concept of a

tunnel with three single bored tubes as proposed in the pre-

feasibility study of 1999. Since then, technological advance in

tunnel engineering make possible boring of large diameter

tunnels. In consequence, only two bored tubes would be needed.

Thus construction cost could be saved through scale effects.

Moreover, Femern A/S always claims that, in view of the

geology, tunnel boring would involve a number of serious

engineering risks. Such assertions are untenable. In recent years,

a good number of bored tunnels have been implemented under

similar geological conditions and without technical problems.

The headstrong negative approach of Femern A/S to the bored

tunnel solution suggests that they obediently stick to the

Ministry's order of February 2011 to construct an immersed

tunnel. Any other solution is or has to be described as

unacceptable.

Arguments from the Horingsnotat October 2014

The Ministry follows the same approach as can be seen from its

hearing note (Horingsnotat - VVM-redegørelse for en fast

vorbindelse over Femern Bælt, October 2014). Under Section

2.3.4 (p. 48ff) the recommendation of Dr. Silvino Pompeu

Santos in favour of a bored tunnel solution is repudiated by the

following arguments:

Femern A/S and their consultants had very carefully

investigated i. a. the bored tunnel,

this solution offers only small advantages in terms of

the environmental impact,

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the high risks of constructing and operating the

tunnel,

high construction and operation cost,

higher duration of construction time,

risks for shipping.

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The objectors maintain however:

ad a):

The asserted "careful" assessment of the bored

tunnel is questioned because the state of the art had

obviously not been applied (as evidenced by three

tunnel tubes).

adb):

The allegedly "small" environmental advantage of

the solution is the result of an obviously heavily

biased overall assessment of all environmental

impacts: By underweighting of the prevention of

sediment spill related ecological problems while

overweighting respectively exaggerating some

negative environmental impacts (e.g. possibly toxic

tailings, stabilization of tailings) not specified in the

hearing note but in the final EIA report (Hørings-

notat October 2014) for the Danish environmental

public hearing of summer 2013.

ad c) through e):

All these arguments appear artificial and forced

having the sole purpose of imposing the "favoured"

immersed tunnel solution. They are lacking thorough

substantiation on the basis of state of the art

engineering instead of following outdated design

concepts.

adf):

The risks for shipping is not discussed in the

Horingsnotat. That shipping will not be endangered

during construction of the immersed tunnel is still

maintained in Chapter 5 of the final EIA report

prepared for the Danish public hearing.

Most of the tailings accruing on Fehmarn from the bored tunnel

are envisaged to be transported across the Fehmarn Belt for land

reclamation works on Lolland. The tug and tows crossing the

fairway increase the risk of collision which Femern A/S rates a

disadvantage of the bored tunnel (similar to the immersed

tunnel). With respect to the alleged prudent planning of

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alternatives, the question arises of whether any thought had been

given to the obvious option to avoid, in the case of a bored

tunnel, this technical problem by landfilling on Fehmarn.

11.2.6

Inadequate environmental assessment

11.2.6.1

In its Section 2.1 the proposal for the Construction Act

acknowledges the inevitable environmental impact of the

Project. It highlights the legal obligation to analyse the

environmental impact of the Project and to develop mitigating

measures to reduce the potential environmental degradation by

the Project. These requirements have not been adequately

fulfilled.

11.2.6.2

The Planning Act puts the Ministry of Transport in charge of

supervising the EIA and related studies instead of leaving the

competent Ministry of Environment responsible for this task.

Already at this point of project preparation it should have been

clear that this decision resulted in a permanent clash of interest

between environmental concerns and engineering.

11.2.6.3

While the Ministry was and still is pressing ahead with project

implementation, aspects of environmental protection are only

considered as restricting technocrats'/engineers' scope of action

and progress of planning. The two final environmental reports of

the Ministry of Transport give strong evidence to suggest that, in

this clash of interest, environmental considerations were

sacrificed in favour of engineering expedience.

11.2.6.4

The fact that Femern A/S obviously authored the final

environmental report is symptomatic for a deceiving approach

taken to lull the public, and apparently this approach is

supported by the Minister: The driver of the EIA is even enabled

to defend his insufficient studies.

11.2.6.5

This obvious bias could have been avoided by completely

entrusting the EIA to the Ministry of Environment.

11.2.6.6

12.

Else, the environmental studies produced so far, should be

reviewed by independent international experts directly

employed by the Ministry of Environment.

The Marine Strategy - Framework Directive; Biodiversity

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The objectors maintain that neither

the " D I R E C T I V E 2008

1561

E C of the E U R O P E A N P A R L I A M E N T

and of the C O U N C I L ; 17 June 2008, for the establishing of a

framework for measures of the C O M M U N I T Y in the field of the

Marine Environment (Marine Strategy Framework Directive), O J E U

L I 6 4 / 1 9 , 25 June 2008",

nor the

Biodiversity Convention of the U N (Convention on Biological

Diversity

have been properly applied.

The planning process restricts itself to (an inefficient)

application of the Birds Directive and the Habitats directive

(numerus clausus of species etc).

Biological diversity is an object to be protected in its own right,

in which disruptions can be examined according to the

indicator

method

developed by the German Federal Agency for Nature

Conservation.

Such an examination

demanded

by the objectors.

This could apply, in the project at hand, mainly to the Benthic

species and communities, which will be significantly disturbed

not only by the "footprint" and the sediment spill, but also by

the fixation of the seabed along a longitudinal axis.

Such investigations should be furnished prior to the passing of

the Construction Act and should have been already included in

the public participation process.

Some obvious deficiencies in the investigations are presented

in the following sections

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13.1

Impact of dredging works

13.1.1

The Ministry admits in the law proposal (Section 15.1 p. 56f)

that the dredging and landfilling works are likely to result in

material losses. Yet, it plays down this environmental problem

with the argument that natural sediment load of the Fehmarn

Belt is much higher than the material losses caused by the

construction works. Therefore, the impact on the marine flora

and fauna is argued to be low.

The objectors challenge this claim as untenable (see already

above).

13.1.2

On the basis of "in-depth" investigations and simulations by a

set of numerical models, Femern A/S asserts that the settling of

sediments will be mainly limited to the vicinity of the tunnel

trench whilst only part of the sediments will be transported to

more distant areas, e.g. the Arcona Basin or the Kiel Bight. The

assurance of Femern A/S that the project design is based on

reasonable optimizations of project works including a dredging

plan minimizing sediment spills to marine waters has to be

judged with strong reservations.

13.1.3

An expert's review of the various simulation models arrives at

the following observations on the work of Femern A/S:

(1)

The compilation and application of relevant data

easily available from German authorities has been

insufficient, own field investigations have been

inadequate in terms of quantity, duration and spatial

distribution; the source of data related to

morphology and sea bed material is often not

mentioned.

The resolution of 1000 to 3000 m (and above) of the

numerical models for the simulation of hydraulic

and morphological processes in the local and

regional sea areas is too low for arriving at any

meaningful predication about the environmental

effects of the construction works, especially in terms

of sedimentation.

Model data input is partly defective in terms of bed

roughness relative to the local seabed conditions;

fine material has not been considered and samples

were only taken in the Danish part of the Fehmarn

Belt.

The investigations are obscure due to lacking

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(2)

(3)

(4)

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descriptions of the simulation models used.

(5)

The significance of the models cannot be verified

because in many cases the imperative calibrations of

the models are missing.

The results are obtained on the basis of averaged

input data; extreme events have not been duly

considered.

Existing structures of coastal protection are not

indicated.

There is a glaring discrepancy in the assertion that

sediments are mainly settling within the vicinity of

the construction site while a substantial part is also

transported to the Arcona Basin.

The simulations do not adequately consider the

importance of the Fehmarn Belt for the qualitative

and quantitative water exchange especially during

extreme events (change of salinity and oxygen

content of water, current velocities as well as

sediment loads and transport).

(6)

(7)

(8)

(9)

As to the impact on individual functional elements of the

immersed tunnel, the expert states:

For the immersed tunnel, only the change of current velocity in

the upper surface of the Belt and wave heights have been

determined.

(1)

Information on salinity, temperatures, water levels

and stratification is lacking; without this data some

of the results cannot be verified;

No scenarios of extreme events have been taken into

account, i.e. extreme storm floods, design scenarios

for coastal protection, current surges of saline water:

therefore the impact of the fixed link structure

cannot be reliably assessed;

The investigations on the cumulative impact of the

fixed link structure cannot be reproduced because of

the missing basic data and the limited extent of the

map section applied;

It is impossible to comprehend why no serious

functional impairment by the project has been

determined though several hundreds hectares of

coastal areas will be also lost due to the immersed

tunnel.

(2)

(3)

(4)

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Furthermore, the expert deals with the negative effects of the

construction related measures and raises the issues of:

(1)

site reinstatement in order to re-establish the

environment to its original conditions;

the absence of any information on the type and

quantity of material used for backfilling the tunnel

trench; this information is important for assessing

the long term consequences of the works;

the respective duration of such recovery; in this

connection, the expert warns against grave

misjudgement of such processes.

(2)

(3)

Trench stability is another issue not properly dealt with in the

studies of Femern A/S. Already the pre-feasibility study by

COWI-Lahmeyer gives evidence that the trench slopes may be

instable and that considerable sea bed erosion has to be

anticipated in the close vicinity of the trench. This expectation is

corroborated by the more detailed geological information

available by now.

In consequence, the quantities of dredge spoils and refill

material will be much higher than indicated in Section 15.5.7 (p.

78) of the legislative proposal at hand.

The above expert opinion on the multitude of critical

environmental issues clearly shows that the studies by Femern

A/S are incomplete and not suited as basis for the legislative

proposal at hand. His observations leave the impression that the

very basic investigations have been presented under the cover of

a highly scientific work approach which in fact has been

debunked a mere deception.

In view of the fundamental importance of the above

observations, especially for the marine ecology, and while taking

into account the principles outlined under Section 6.1 of the

legislative proposal for the handling of environmental issues

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the objectors strongly urge the Ministry to

•

stay the initiated legislative process

order a comprehensive revision of the EIA

resume the legislative process only subject to a new, objective

and altogether sound decision making basis.

13.2

Impact on benthos and plankton

13.2.1

Construction of the immersed tunnel will pose a massif

intervention into the benthic habitat caused by dredging works

(tunnel, extraction of sand), erosion of the sea bed in the vicinity

of the tunnel trench and increased water turbidity as well as

settling of sediments in sea areas the locations and sizes of

which have not yet credibly established.

13.2.2

This environmental problem is briefly mentioned in Section

15.5.7 of the legislative proposal. Potential loss of benthos is

obviously played down as being of low significance, because

affected benthos communities will recover within 1-2 years.

13.2.3

The objectors reject such assertion as not substantiated by the

environmental assessments performed so far.

13.2.4

The assessments are marred i.a. by the following deficiencies:

(1)

(2)

The case studies are quite old (about 5 years)

The location and density of the sampled sea areas is

dubious so that the statistical significance of the

results obtained is insufficient.

The disturbing effects for the benthos habitat are not

made transparent.

Environmental sensitivities of benthos are verbally

described but not quantified.

The ecological impact forecast fails to determine the

severity of the intervention into the habitat.

In conjunction with their "scientific" approach, the

assessments elucidate once again that they are

performed only in order to justify the feasibility of

the immersed tunnel.

(3)

(4)

(5)

(6)

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The objectors challenge this manipulative planning approach

biased in favour of the immersed tunnels and demand a

thorough review of the methodology and approach by

independent experts in order to provide decision makers with

reliable facts.

Impact on birds

In several sections, the legislative proposal at hand stresses the

importance of bird protection in connection with the

construction works. Yet, in view of a still fragmentary baseline

study on the bird populations possibly affected, it is futile to

argue about mitigation measures without knowing the facts.

All in all, the environmental report focusses, from the outset, on

only five out of about 230 known species. This can, by no

means, be sufficient for an environmental assessment.

Apart from the objection to an inadequate collection of data, the

impact assessments are contestable:

"unlikely to cross the alignment area" (Red-necked

Grebes)

is not enough as a reason for irrelevance, crossing

must be excluded.

"areas are assessed to be of minor importance to the

species, since these areas are already highly disturbed"

(White-tailed Eagle)

- a principle of already existing

disturbance levels does not exist; it is rather the other way

round, if the species still appears in the area despite

disturbances, it is highly probable that further disturbances

will be fatal.

"not being sensitive to habitat change" (Gulls)

- cannot

be accepted. The fact that a species suffers a loss of habitat

cannot be conjured away with the comment that the

species could move away. The alternative areas, i f

suitable, are, firstly, likely to be already occupied and,

secondly, it is precisely this "salami slicing"' which lead, in

the end, to no more suitable areas being available.

"The total loss of such shallow water habitat on the

German side would be rather small (approximately 22

ha)" (Terns) -

22 ha are not a small area! It is, in this

case, only necessary to refer to the Santona Decision of

the ECJ.

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13.3.4

The planners' considerations addressed are paradigmatic for

their biased planning approach. By assuming the size of the

chosen area affected, the impact on large sub-areas is belittled,

the - theoretical - avoidance options of species are, in effect,

rated as contribution to nature conservation, and the killing-rates

are verbally and qualitatively downgraded to insignificance.

All this

cannot be tolerated and calls for thorough review

and revision in order to arrive at an fully informed decision

on project feasibility.

13.4

Impact on bats

13.4.1

The legislative proposal mentions only mitigating measures for

the protection of bats in connection with the land based works

(see for instance Section 15.4.3.1). There is no information on

the impact of the tunnel on bats.

13.4.2

With regard to the Bat-background studies, in particular to the

impact assessments, it should be noted that this (and this also

applies to other background studies) contain a huge "overhead"

of general statements, i. e. statements which re-appear in every

background paper and are not directly related to the problem

concerned. In view of the abundance of material to be

scrutinised, this is to be criticized.

That said in advance, the objectors note:

13.4.3

The studies focus on migrating bats,

Environmental Report for the Espoo process, page 283.

The approach is contested, as in coastal areas and especially in

the area of the tunnel portals, also bats on the hunt, which are

not migrating, have to be expected.

13.4.4

The planners must admit that "average" collision risks exist, but

they regard them as being insignificant.

In view of the significant migration perpendicular to the route of

the FBFL (on land: motorways and railway, power lines) this is

contested.

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13.4.5

Nevertheless, the assessments come to the conclusion; for

instance on page 284 of the Environmental Report of the Espoo

hearings:

"Most of the potential pressures in the operational phase were

assessed to cause no impacts on the relevant bat species during their

migration phase. Only the pressure 'Traffic-related collision risk' was

assessed to have an impact on migrating bats.

The degree of impairment regarding traffic-related collision risk is

assessed to be minor for Noctule and medium for Nathusius'

Pipistrelle and Soprano Pipistrelle in the area of the tunnel entrances.

The impact assessment therefore concludes that any predicted impacts

are insignificant at local (the Fehmarn Belt) and population level.

Furthermore, the investigation on bat migration predicts that only a

few bats on a local scale will be impacted. Therefore, no trans-

boundary impacts are expected."

The objectors maintain that this conclusion is false.

13.4.6

Once again, the above statement is symptomatic for the

structural deficiencies of the environmental studies and

planners' approach of playing down environmental problems:

(1)

Limitation of the approach used in the investigations

"migrating bats").

Exclusion of significant risks ("only the pressure

'traffic-related collision risk' was assessed to have

an impact on migrating bats")

Conclusion of not inconsiderable impact ("the

degree of impairment is ... medium . . . " ) .

Conclusion that these are insignificant in the Espoo

Procedure (- "only a few bats on a local scale will be

affected" - "no trans-boundary impacts"), whereas

the method used is questionable because the basic

investigations do not just restrict themselves to

trans-boundary impacts. The problem lies in "only a

few", since the assessments, according to the laws

on species protection, on the one hand, must be

quantitative, on the other hand "only a few"

casualties should be sufficient in some cases for

invoking the regulations governing exceptions.

(2)

(3)

(4)

13.5

Impact on fish

13.5.1

Stock taking of fish species for the baseline survey was

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restricted mainly to the Danish territorial waters. As German

fisherman from Fehmarn noted, a number of endangered species

were not listed in the records, though their presence is known

from by-catch. Likewise, fisherman from Fehmarn reported that

they have obviously not been considered as resource persons on

the local fish fauna.

Turbidity and sediment spill as well as landfills in coastal waters

will have a massively effect on the local fish fauna as in

particular spawning and spawning grounds will be either

completely lost or at least greatly affected.

This will also have indirect effects on birds and direct effects on

commercial fishery.

The objectors maintain that the planning process does not assess

these damages properly.

Impact on the harbour porpoise

In the legislative proposal the species harbour porpoise is

casually mentioned in Section 15.5.3.1 (p. 69) but only with

respect that these mammals will leave the Fehmarn Belt i f

exposed to excessive noise or in response to deliberately applied

scaring measures.

The objectors note again that the most critical issues for project

feasibility are left unmentioned in the Ministry's explanations:

(1)

Harbour porpoises are a highly endangered species

in the Western Baltic Sea.

Recently published results of continuous surveys

over several years on the species' abundance and

migratory behaviour in the Baltic Sea west of the

island of Riigen confirm the high importance of the

Fehmarn Belt for the reproduction of the population

(Federal Agency for Nature Conservation, 2014);

this has been evidenced by flight observations and

counts of calves.

Scaring away of harbour porpoises from the

construction site will result in a reduction of their

already confined habitat and respective feeding

grounds.

(2)

(3)

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13.6.3

The environmental assessments carried out so far by Femern

A/S play down potential conflicts between this species and

construction interests resulting in such statements as reflected

above under 5.3.13.1.

13.6.4

In view of the high significance of this environmental problem

for the feasibility of the immersed tunnel solution, the objectors

demand to stay the legislative procedure until this issue has been

thoroughly analysed by independent experts commissioned by

the Ministry of Environment.

14.

Dynamics of the sea bed

14.1

An extremely important dynamic factor is that of sediment spill

(see above). Its relevance (impairment of water composition,

light conditions and feeding grounds) is not disputed. The

objectors, in their in-depth analysis of the German

"Planfeststellungsunterlagen" found that already the

hydrodynamical models were wrong and the overall effects of

sediment spill widely underestimated.

14.2

This said, it appears to be most strange that the question as to

the impact on the seabed by a huge trench, which will be filled

in by the watertight tunnel, has not been dealt with,

cf Environmental Report Espoo, page 75.

The objectors maintain that the sheer presence of this structure

will render transverse movements of the seabed virtually

impossible along the stretch of the Fehmarn Belt. Consequently,

not only the morphological conditions that cannot be perceived

as being static will be significantly affected, but also the Benthic

Flora and Fauna which will no longer be able to migrate across

this barrier.

Hence, the tunnel will result in

a significant barrier effect for the seabed.

Therefore, the conclusion to the contrary of the planners,

Environmental Report Espoo, Section 1.6.7 and 1.6.8,

is refuted.

It is however not so that the planners view the seabed as not

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being dynamic. In the brief summary of the morphology (see

above, 1.5) is stated :

"The impact simulations show that the seabed is dynamic

and that sediment spill is characterised as temporary

impairment."

The objection raised is that the assessments stop here whereas

the disruption of the dynamics as such is not discussed.

15.

Economics of the Fixed Link Project

15.1

Traffic Forecast 2014

15.1.1

In Section 12.3.1 of the legislative proposal, the updated Traffic

Forecast 2014 (published by Femern A/S in November 2014) is

mentioned. In principle, it should a basic building block the

basis for the economic evaluation of the FBFL in terms of the

latter's socio-economic and financial feasibility.

15.1.2

Credible and robust forecasts on traffic volumes by mode are

forming key parameters to this end. The recent traffic forecast

fails to fulfil this requirement in several decisive aspects.

15.1.3

The B Case scenario of the forecast is still basically based on the

assumption that Scandlines will completely abandon its service

across the Fehmarn Belt.

The objectors maintain that the assumption that ferry services

will completely close down with opening of the fixed link is

unrealistic.

Though the impact of a continued ferry service is formally

attempted, this happens in a half-hearted way only. The

respective approach and assumptions are obviously tailored in a

way to play down the significance of such competition.

15.1.4

Definitely not taken into account is the scenario of all ferry

services closing down before the opening of the crossing. The

building of the tunnel will greatly affect traffic across the Belt

and without financial compensation and/or mitigating measures

during the building phase might turn out to be economically

unrealistic.

The objector cannot see that SCL or other ferry services

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providers are under any legal obligation to provide these

services.

15.1.5

According to the material provided, the planners expect a rapid

increase in traffic numbers after opening the tunnel.

A substantiation for this "four years ramp-up effect" is not given

however. A ramp-up of 40% of the traffic at opening of the

tunnel previously forecast was at least drawing on the

experience of the Great Belt and Øresound crossings.

In the Traffic Forecast 2014, the traffic jump (ramp up effect)

for all road vehicles is predicted to reach 54% (66% increase for

passenger vehicles).

It seems these forecasts have been ""adjusted" by inverting the

approach, in which the "needed" traffic demand 2035 became

model input and the traffic jump output. The objectors suspect

that those traffic numbers needed to have the tunnel financed by

toll payments are inserted into the calculation as a starting point

from which the needed ramp up is derived.

The objectors reject such forecasts on the traffic jump as pure

fiction and plucked from the air, because the FBFL can not be

compared with the links across the Great Belt and Øresound

15.1.6

In this context, the exclusion of the phenomenon of tunnel

phobia from the forecasts is another fault symptomatic of how

the traffic volumes have been predicted with a positive bias.

Norwegian studies (SINTEF) suggest that tunnel phobia and

tunnel fear have an impact (of 5% - 30%) on drivers' (and

passengers') decision to use a tunnel. This holds true especially

for long subsea tunnels like the one of the FBFL where road

users have the choice to use a ferry.

The objectors request that the effect of tunnel fear on the traffic

forecast for the tunnel resp. ferry service must also be assessed

15.1.7

The prospects of an important competitor for the FBFL coming

up with the railway tunnel crossing the Baltic to link Trelleborg

and Sassnitz/Stralsund is not assessed in the assessment of

transport in the Scandinavia-Continent Region. Planning of the

COINCO project is steadily progressing and decisions makers

should pay due attention to this project. Failure to address this

project in the making is another indication of planners' sweeping

problems under the carpet, if the latter become relevant for

feasibility decisions.

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In conclusion of the before said, the new Traffic Forecast 2014

does

not

represent a sufficiently robust and reliable basis for

sound decision making on the feasibility of the FBFL.

This will have legal consequences at least on the German side,

where the Supreme Court will minutely dissect the traffic

forecast in the context of "plan justification".

Financial Analysis 2014

The Financial Analyses 2014 - another fundamental component

of the economic analysis - mentioned under Section 12.4 of the

legislative proposal are still speculative guesswork, because they

lack substantiation by robust traffic forecasts (see above) and

cost estimates.

Moreover, the assumption of substantial grant funding from the

TEN-T coffers has also remained mere speculation.

The update of the previous cost estimates by using the price

index of 2014 raises the question of the source of this index

which may be only known in 2015. Irrespective of this

observation, the new index does not materially improve the

previous cost estimates of the FBFL because the latter remain

essentially based on semi-detailed quantity computations as is

usual practice for feasibility studies. The more realistic

assumption of increased contingency costs (30%) was long

overdue. Nevertheless, the current estimates remain shaky.

A construction budget of around 52.7 billion DKK (7.1 billion

Euro) for the tunnel component of the FBFL plus some 9.5

billion DKK (1.3 billion Euro) for the Danish hinterland

infrastructure sums up to the big amount of 62.2 billion DKK

(8.4 billion Euro).

In view of the poor average daily traffic by 2035 of around

13,000 vehicles (possibly substantially lower in view of the

highly questionable traffic jump), decision makers are faced by a

striking imbalance between traffic demand and total cost.

The problem of low road traffic is still aggravated by the project

objective to relocate freight transport from road to rail.

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15.2.6

The financing model proposed envisages the total cost of the

FBFL (construction and operation/major replacements plus the

borrowing cost) to be essentially refinanced through user

charges. While the railway operators are assumed to pay only

the trifle amount of operating cost saved by using the 160 km

shorter rail link of the FBFL (ref. Section 12.3.2 of proposal),

the road users are presumed to shoulder the main burden of

refinancing the FBFL. In view of the poor average daily traffic

demand, it should be obvious that the refinancing model is

doomed to failure; this in turn having the consequence that

compatibility with EU-regulation on state subsidies can not be

achieved.

15.2.7

The Ministry is not free to fix road user charges at levels which

would be needed for enforcing refinancing in a reasonable

period of less than 40 years. Tunnel charges would always have

to remain in balance with the charges of the competing ferries.

Increasing railway operators' charges is also constrained by their

option to revert to the existing Great Belt Link / Jutland route.

15.2.8

As the FBFL is always rated an integral project of the Union's

TEN-T programme, it would, in principle, be entitled to grant

funding from the respective EU budget. For the cross-border

tunnel the maximum rate for grant funding could amount to 40%

of the construction cost - provided the requirements of TEN-T

Regulation 1315/2013 are fulfilled (see Article 7, paragraph 2

The objectors maintain that these requirements are

not

fulfilled.

In particular, conformity not only with environmental standards

but also wit e.g. state subsidy law is required, all depends on the

traffic using the tunnel passing a "break-even point" in terms of

enough vehicles paying a high enough toll.

Even the planners concede that this break-even point can be

reached (and only just be reached) under the assumption of

state-guaranteed (and thus cheap) bank loans.

15.2.9

In the Financial Analysis 2014, the Ministry assumed a

comparatively low EU funding rate of 18% instead of 40%. In

view of the low income basis due to a possibly grossly overrated

traffic forecasts, the Ministry's modesty is difficult to follow, not

only for the public, but even for experts.

15.2.10

On 28 December 2014, more reliable estimates of the

construction cost have been submitted by the contractor

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consortia in response to the tenders performed by Femern A/S.

Accordingly, a revision of the financial analysis was already

announced which shall be ready shortly before the beginning of

Folketing's deliberations on the Construction Act. This approach

suggests once again that the Financial Analysis 2014 has only

been floated to deceive the public in the current "hearings".

15.3

Mandatory macro-economic project justification

15.3.1

According to Article 7 Para 2 lit c) of the TEN Directive

1315/2013 a TEN-T project of common interest "shall...

be economically viable on the basis of a socio-economic

cost-benefit analysis; . . . .

If, as is the case for the FBFL, such an analysis is not even

provided and fundamental socio-economic assessments remain

missing, the legal consequence can only be that

FBFL is not a project of common interest (in the sense of

the TEN-T Guidelines).

15.3.2

The TEN Regulation 1315/2013 (Article 3 lit t)) defines the

"socio-economic analysis" within the framework of the TEN-T

guidelines as follows:

'socio-economic cost-benefit analysis' means a quantified ex-ante

evaluation, based on a recognised methodology, of the value of a

project, taking into account all the relevant social, economic, climate-

related and environmental benefits and costs. The analysis of climate-

related and environmental costs and benefits shall be based on the

environmental impact assessment carried out pursuant to Directive

2011/92/EU;

It thus outlines the essential components resp. project effects to

be taken into account in such analysis. It is thus not only limited

to cost components or direct benefits (various economic

advantages accruing to infrastructure users and operators) but

looks also at social, environmental and induced economic

effects.

15.3.3

For more than ten years the Danish government has been

avoiding to come up with a comprehensive and in-depth

evaluation of the FBFL. The project evaluation of 2004 by

COWI and Danmarks Transportforskning was the last exercise

of this kind.

The analysis was very limited in terms of the socio-economic

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project effects assessed. More importantly however, the

evaluation was seriously blemished by methodological flaws of

double accounting of benefits (objectionable aggregation of

direct benefits with financial revenues).

Already at that stage of the FBFL the project should have been

abandoned because the true/corrected results would have shown

that the project was unfeasible.

5.3.4

The call for a new socio-economic evaluation, voiced by

opponents of the FBFL time and again and since 2007, remained

without response.

At the EIA hearing in Rødbyhavn of 29 August 2013, the issue

of a new socio-economic analysis was raised again by H.

Kerlen.

In their reply, Femern A/S (CDY) denied any need for a new

analysis. It is noteworthy that the Ministry's Horingsnotat of

October 2014 is reproducing the respective reply of CDY in a

contradictory manner - just another example of how Femern

A/S is manipulating facts.

Following an enquiry of the "Aktionsbtindnis gegen eine feste

Fehmarnbeltquerung" to the then-Minister of Transport, Ms Pia

Olsen Dyhr, she replied in a letter dated 16 September 2013

"I can confirm that the Danish Ministry of Transport has no plans to

initiate the preparation of a new socio-economic analysis of the

Fehmarnbelt Fixed Link."

The Ministry's statement in the legislative proposal (see Section

12.5) on a new socio-economic evaluation of FBFL is indicative

of a more active approach and that it has given up its evasive

attitude on this issue.

Nevertheless, in December 2014 the project evaluation report

has not been published as announced in the legislative proposal

and thus was not made available for the public hearing. Possibly,

the study was commissioned much too late for coming up with a

thorough assessment of all the complex macro-economic issues

of the FBFL.

15.3.5

As already mentioned above under 15.2.8, the TEN-T Directive

1315/2013 establishes mandatory preconditions for any grant

funding of TEN-T projects.

Article 7, paragraph 2 (c) reads (see also above)

"A project of common interest shall: . . . .

be economically viable on the basis of a socio-economic cost-benefit

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analysis;

Moreover, Article 7, paragraph 4 reads:

"Member states shall take all necessary measures to ensure that the

projects are carried out in compliance of Union and national law, in

particular with Union legal acts on the environment, climate

protection, safety, security, competition, state aid, public procurement,

public health and accessibility".

Thus the Danish government will have to come up with a

comprehensive and in-depth socio-economic assessment of the

FBFL which provides convincing proof of the project's viability

- and this not only for the national government but especially

for the European Investment Bank that will be in charge of

examining the cost-benefit analysis.

The numerous requirements that must be still fulfilled in

accordance with para 4 of Article 7 are putting a big question

mark behind Denmark's present eligibility for grant funding

under the TEN-T programme.

The objectors maintain that at least presently such grants would

be unlawful.

Moreover they maintain that the requirements of Article 7 of the

TEN-T Guideline

cannot be fulfilled

as the requirement socio-economic feasibility

cannot be obtained.

Therefore, lawful co-funding by the EU

is impossible,

as Article 3 of Council Regulation 1316/2013 (CEF -

Connecting Europe Facility) clearly spells out:

The CEF shall enable projects of common interest to be

prepared and implemented within the framework of the

trans-European networks policy in the sectors of transport,

telecommunications and energy.

This means that those projects which are not of common interest

(which is the case for FBFL) shall not be supported under the

provisions of Regulations 1315/2013 und 1316/2013.

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The draft law (lovudkastet) is moot

Consequently the objectors maintain that the draft law is moot.

There is no way visible that the Folketing could pass a law

based on this legislative proposal that would be either

compatible with European Law, European environmental

standards and German constitutional law.

Certainly a sufficiently informed decision of the Danish

Folketing on building the FBFL is presently not possible.

The material provided to the public is not only

insufficient

(outdated and incomplete assessments of the

environment, no usable material on climate or social

effects and so on)

but also

in vital aspects (traffic under toll conditions, parallel ferry

operations and alternative rail routes through Jutland,

financing in general)

conjectural in nature.

So far, the kingdom's procedures in letting the public participate

(like now, during the Christmas holidays with officialdom's

absenteeism) has been at best evasive in nature and certainly

entirely unfair procedurally.

The objectors

request -

provision of all documentation in all necessary languages,

at least (also) in German,

clear information about competent authorities, the

importance of time frames and other procedural questions

including judicial relief,

availability of Telefax connection in order to make

submissions provable in court,

availability of collateral material in German such as is

available to the Danish public as well as to the Danish

Folketing.

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(Hendrick Kerlen, who has been authorized by Dr W Mecklenburg,

Lawyer, and the objectors themselves, is to sign this letter for all

objectors)