Legal Term: Best Available Techniques of the Highest Standard
Definition and Basic Meaning
The term “best available techniques of the highest standard” holds central relevance in the context of environmental law, particularly in European and German environmental regulations. It represents a dynamic legal concept aimed at preventing or minimizing environmental impacts from industrial and commercial installations by applying the most advanced yet practicable technical procedures and operational methods. The formulation covers both technical installations as well as measures implemented in planning, operation, maintenance, and decommissioning. The decisive factor is the use of the most efficient state of the art technology, taking into account economic and practical feasibility as well as existing accessibility.
Origin and Development of the Term
Since the 1970s, the concept of “techniques of the highest standard” has been incorporated into environmental legal frameworks. Its international establishment was primarily achieved through the European Directive 96/61/EC on integrated pollution prevention and control (IPPC Directive), later developed into the Industrial Emissions Directive (Directive 2010/75/EU, IED). These directives have since shaped the implementation into national law, such as in the German Federal Immission Control Act (BImSchG) and its associated regulations.
Legal Basis
European Legal Foundations
The Industrial Emissions Directive (2010/75/EU) defines the term in Article 3, No. 10, and links it to detailed criteria. According to this, “techniques of the highest standard” refers to the ‘most effective and advanced stage in the development of activities and their methods’, that is suitable and economically viable to avoid or minimize emissions to the environment as a whole.
An integral component of European jurisprudence and administrative practice is the so-called BAT conclusions (Best Available Techniques), issued by the European Commission based on BAT reference documents for various industrial sectors. These documents specify the state of the art technology through extensive hearings and reports and are authoritative for granting and monitoring environmental permits.
National Regulation in Germany
The concept is integrated into German law via § 3 para. 6 BImSchG and various regulations (especially the Technical Instructions on Air Quality Control – TA Luft, and the Technical Instructions on Noise Abatement – TA Lärm). Here, “techniques of the highest standard” are described as ‘the development stage of the most advanced procedures, equipment, and working methods’ whose practical benefits are secured under economically reasonable conditions.
Balancing and Adaptation Obligations
The legal obligation to apply these techniques is dynamic, meaning there is a continual duty to adapt to the ongoing development of technology and science. According to established case law of the Federal Administrative Court, the current state of technology must be reviewed regularly; approved installations may need to be retrofitted or adjusted if required (§ 17 BImSchG).
Characteristics and Determining Factors of Techniques of the Highest Standard
Technical Feasibility
It is essential that the technology is generally applicable within the respective industrial sector, proven, and suitable for reducing emissions. Worldwide availability or absolute economic viability is not required; what matters is achievable, established, and implemented practice.
Economic Reasonableness
The legal principle explicitly includes consideration of economic factors. Accordingly, the technology must be economically viable and feasible for plant operators in proportion to the intended environmental protection objective.
Environmental Relevance and Holistic Approach
The regulations aim at ‘environmental protection as a whole’. Therefore, in addition to emissions into air and water, waste generation, energy efficiency, resource conservation and operational environmental protection measures are also assessed.
Significance for Permitting Practice
Reference Standard for New and Existing Installations
In the permitting and monitoring process, techniques of the highest standard serve as the central benchmark for environmental protection requirements. Especially for new installations, compliance with the current state of technology is essential for approval. For existing installations, a review and possible retrofitting obligation occurs within set deadlines should the technology advance.
Binding Effect and Exceptions
The requirements arising from BAT conclusions and technical instructions are generally binding. Exceptions may be permissible in individual cases, for example if local circumstances or disproportionate costs make implementation unreasonable. Such deviation nonetheless requires detailed justification by the permitting authority.
Case Law and Interpretation in Practice and Administration
Dynamic Framework for Interpretation
Courts emphasize the need for continuous adaptation to the evolving state of technology. Interpretation is regularly conducted in light of the relevant sector-specific documents (BAT Reference Documents) and current scientific and technical knowledge and developments.
Typical Disputes
Within the scope of appeals or enforcement actions, there is frequent debate on the appropriate content and scope of the technology to be used, such as technical details, retrofitting deadlines, or the applicability of economic considerations. What matters is always an appropriate, objectively comprehensible balancing of environmental protection interests and reasonableness in the individual case.
International Dissemination and Significance
The technology standard also exists in other countries, such as the USA, Japan or Australia, as a benchmark of modern environmental regulation, sometimes under different designations (‘best available control technology’, ‘best practical means’). Harmonizing the definition of the term at the international level helps raise global environmental protection standards and prevent competitive distortions caused by differing regulatory levels.
Literature and Further References
- Directive 2010/75/EU on Industrial Emissions (IE Directive)
- Federal Immission Control Act (BImSchG)
- Technical Instructions on Air Quality Control (TA Luft)
- Publications of the Federal Environment Agency on Techniques of the Highest Standard
- BAT reference documents and BAT conclusions (europa.eu)
Summary: “Best available techniques of the highest standard” form the central technological minimum requirement level in environmental law. They ensure effective, continuously updated protection of the environment and health in industrial and commercial installations. Their standards arise from a holistic assessment motivated both technically, economically, and environmentally, are continually adjusted to the state of science and technology, and are established as binding by national and European requirements.
Frequently Asked Questions
When is the “Best Available Techniques” legally mandatory?
The use of the “Best Available Techniques” (BAT) is prescribed as mandatory for certain installations under European and national environmental law, particularly under the Industrial Emissions Directive (IED, 2010/75/EU) and its implementation in national law via the Federal Immission Control Act (BImSchG) and the respective regulation on installations requiring approval (4. BImSchV). The legal obligation to comply with BAT primarily concerns operators of industrial and commercial facilities subject to permitting, for which a specific emission reduction mandate applies. This includes requirements relating to emission limit values, monitoring measures, and technical plant management. The competent authorities are required to establish the application of BAT when granting or amending permits. An exemption exists only if technically or economically demonstrable reasons oppose immediate application, and these are substantiated in the permitting process.
Who decides which technology qualifies as “Best Available Techniques”?
The assessment of which technologies qualify as “Best Available Techniques” is carried out primarily within the framework of a Europe-wide coordinated process. For this purpose, so-called BAT reference documents (BREFs) are prepared and regularly updated by the European Commission after consultation with experts, industry representatives, and authorities. In Germany, the Federal Environment Agency (UBA) is actively involved in creating and reviewing these BREFs. BAT reference documents contain concrete requirements for emission limit values and describe recognized technical measures. They serve as legally binding points of reference for both authorities and operators when incorporated into national law via legal acts or administrative regulations. However, the actual decision on mandatory application is made in individual cases by the responsible permitting authority based on legal requirements and the current state of technology.
What role do BAT reference documents play in the permitting process?
BAT reference documents are key points of reference for authorities in the permitting process to stipulate technical requirements for plant operators. They determine which technical measures and limit values in the relevant industrial sector are considered state of the art and therefore must be observed. The authority reviews in each case whether the proposed or existing operation meets these standards and may order additional measures to reduce emissions if necessitated by local or operational conditions. The requirements of the BAT reference documents thus establish the legal minimum standard, which may be tightened by additional national requirements.
To what extent can the application of BAT be deviated from?
Deviation from the application of BAT is legally permitted only in clearly defined exceptional cases. According to the BImSchG and the IED, it is envisaged that in individual cases—such as in the event of disproportionately high expense or significant site-specific features—the competent authority may allow exceptions to the BAT requirements. However, this must be thoroughly and plausibly justified during the permitting procedure. The exception must not cause significant adverse environmental effects and is usually limited in duration or linked with conditions. The European Commission must be informed of such exemptions to ensure a uniform application framework among member states.
What are the legal consequences of non-compliance with BAT?
Failure to comply with BAT-related requirements constitutes a violation of environmental law and may result in severe sanctions. Legally, operators face measures such as retrofitting orders, prohibition of operation, fines, or even criminal liability under § 327 StGB (environmental crimes) if significant environmental harm is caused by the operation. Supervisory authorities are obliged to ensure that companies continuously meet statutory requirements and to pursue violations consistently. In addition, civil liability consequences regularly arise if proven environmental damage to third parties results from non-compliance with BAT.
What rights and obligations do operators have when BAT requirements change?
Operators of installations subject to permitting are obliged to stay continually informed about changes to the relevant BAT reference documents. If BAT reference documents are updated to impose stricter requirements, existing installations usually must be retrofitted accordingly. The authority generally sets transitional periods for this purpose within which the adjustments are to be made. Operators have the right to a reasonable implementation period and may, in exceptional cases, apply for an exemption if technical or economic viability is lacking. At the same time, there is also a duty to voluntarily consider new findings and technical developments where this helps avoid significant environmental burdens.
