Concept and Fundamentals of Maritime Spatial Planning
Maritime spatial planning is an important instrument for spatial control and the organization of the use of marine areas. It serves the sustainable and coordinated development, organization, and safeguarding of the marine space, taking into account ecological, economic, and social aspects. The main focus is on the preventive avoidance of conflicts between different uses as well as the protection of the marine environment. Maritime spatial planning has become an independent discipline with comprehensive legal foundations in international, European, and German law.
International Legal Foundations
United Nations Convention on the Law of the Sea (UNCLOS)
The legal basis for marine spatial planning at the international level is the United Nations Convention on the Law of the Sea (UNCLOS). It regulates state sovereignty and usage rights in the territorial sea, in the Exclusive Economic Zone (EEZ), and on the continental shelf. Accordingly, within defined areas, states have the authority and the obligation to regulate uses, set environmental standards, and exercise planning sovereignty.
Other International Commitments
International treaties, such as the Convention on Biological Diversity (CBD) or regional agreements like HELCOM (Helsinki Commission for the Protection of the Baltic Sea), require contracting parties to implement specific measures for the sustainable use and protection of marine ecosystems. This, in conjunction with UNCLOS, leads to the necessity to extend national spatial planning instruments to the marine environment.
European Legal Foundations
Directive on Maritime Spatial Planning (2014/89/EU)
The key European directive is Directive 2014/89/EU establishing a framework for maritime spatial planning. It obliges the Member States to develop spatial plans for their marine areas and to coordinate existing sectoral policies such as fisheries, nature conservation, or energy. The objectives include sustainable use of marine resources and the avoidance of use conflicts.
Important legal requirements of the Directive are:
- Involvement of public and private stakeholders
- Environmental impact assessment and strategic environmental assessment
- Cross-border cooperation, in particular in the case of transboundary impacts
Implementation into National Law
Member States were required to have national regulations for maritime spatial planning in force by 31 March 2021 at the latest. This meant the creation of their own planning mechanisms as well as the adaptation of existing structures.
Maritime Spatial Planning in Germany
National Legislation and Responsibilities
Maritime spatial planning in Germany is determined on the one hand by the Spatial Planning Act (ROG) and on the other hand by specific regulations based on federal law.
- Spatial Planning Act (ROG): Serves as the central legal foundation for the management of marine use in the German sea areas of the EEZ and the continental shelf. Based on this, regulations are enacted that bindingly establish spatial planning plans for these areas.
- Federal spatial plans for the German marine areas: Regulated in §§ 17-19 ROG (as amended since 2021) and the relevant regulations (for example, the regulation for establishing the spatial plan for the German Exclusive Economic Zone in the North and Baltic Sea).
Responsibilities
Responsibility for maritime spatial planning in the German territorial waters (coastal sea up to 12 nautical miles) lies with the respective coastal states, while the federal level (Federal Maritime and Hydrographic Agency, BSH) is responsible for the EEZ and the continental shelf.
Content and Binding Effect of Spatial Plans
Maritime spatial plans have a binding effect on subordinate sectoral planning and permitting procedures. They establish priority areas, reservation areas, and exclusions for certain uses – for example, for shipping, wind energy, mineral extraction, fisheries, and nature conservation. Compliance is reviewed in subsequent administrative procedures.
Some key aspects:
- Priority areas: usages that exclude others
- Reservation areas: uses with special significance, others are possible but require consideration
- Exclusion areas: certain uses are prohibited
Planning procedures are subject to public participation and strategic environmental assessment in accordance with the Environmental Impact Assessment Act and applicable European regulations.
Planning Process and Participation
Public Participation and Hearings
Legal requirements demand comprehensive involvement of authorities, business stakeholders, social groups, and the general public. The obligations for hearings are based on the rules of environmental impact assessment and the Aarhus Convention. Timely and effective participation is a prerequisite for the legal effectiveness of the plans.
Environmental Assessment and Legal Oversight
The plans are subject to a strategic environmental assessment in order to identify and prevent possible adverse environmental impacts at an early stage. The lawfulness of the plans is regularly reviewed by courts, in particular as part of judicial review procedures according to the Administrative Court Procedure Code (VwGO).
Distinction from Other Planning and Licensing Procedures
Maritime spatial planning must be distinguished from individual approvals (for example, planning approval for offshore wind farms) and sectoral permits. It provides the framework and sets guidelines, but does not constitute final approval for specific projects. Individual procedures must observe the requirements of the planning statements.
Legal Status of Maritime Spatial Planning within the Overall Spatial Planning System
Marine spatial planning is part of the overall national spatial development system. On one hand, it interacts with regional and state planning requirements of the coastal states, and on the other hand with international and European directives. Observing this multi-level structure is essential for the legal certainty and coherence of planning.
Special Challenges and Current Developments
With the shift of the energy transition to the sea, new developments in international maritime law, advancing climate change, and increasing pressure on the use of marine areas, legal questions are becoming increasingly complex. The integration of nature conservation objectives, economic uses, and international obligations poses new challenges for maritime spatial planning on a regular basis.
Literature and Further Information
- Act on Spatial Planning (Raumordnungsgesetz – ROG)
- Regulation on Spatial Planning in the German Exclusive Economic Zone
- Directive 2014/89/EU establishing a framework for maritime spatial planning
- United Nations Convention on the Law of the Sea (UNCLOS)
- Accompanying official explanations to the respective provisions
This comprehensive overview allows for an in-depth insight into the legal dimensions of maritime spatial planning and demonstrates its central importance for the orderly and sustainable use of marine areas.
Frequently Asked Questions
What are the legal foundations that govern maritime spatial planning in Germany?
Maritime spatial planning in Germany is essentially governed by the Spatial Planning Act (ROG), which sets out the legal requirements for establishing spatial plans, including those for maritime areas. The actual implementation is carried out through the Regulation on Spatial Planning in the German Exclusive Economic Zone (EEZ) and the Continental Shelf Regulation (FSV). For coastal waters, the federal states are responsible and apply their own state spatial planning laws, whose provisions must be harmonized with federal regulations. In addition, international agreements such as the United Nations Convention on the Law of the Sea (UNCLOS) and European legislation—particularly Directive 2014/89/EU establishing a framework for maritime spatial planning—are binding. This creates a multi-layered system in which national law, EU law, and international law interact. These legal foundations govern both the procedures and the substantive requirements, such as the consideration of public and private interests, the involvement of public interest bodies, and the conduct of environmental assessments.
To what extent is there a legal obligation to carry out an environmental impact assessment when establishing a maritime spatial plan?
When establishing a maritime spatial plan, there is a binding obligation to carry out a Strategic Environmental Assessment (SEA) under § 9(6) Spatial Planning Act (ROG) in conjunction with the Environmental Impact Assessment Act (UVPG). This assessment is required because maritime spatial plans are plans and programs that, within the meaning of § 35 UVPG, set the framework for future approval of projects within the meaning of the UVPG. The SEA procedure requires extensive public and relevant authority participation. This includes early information about planning intentions, public display of documents, and the opportunity to submit comments, which must be considered in the weighing process. The results of the SEA must be documented in the spatial plan and must be transparent and comprehensible in the plan’s justification and in the environmental report. The legal basis for this lies both in national environmental law—as in the aforementioned laws—and in relevant European requirements, in particular Directive 2001/42/EC on the assessment of the effects of certain plans and programs on the environment.
What role does public participation play in the legal process of maritime spatial planning?
Public participation is a mandatory legal requirement in maritime spatial planning, arising from both national and European provisions. According to § 9(2) ROG and Directive 2014/89/EU establishing a framework for maritime spatial planning, the affected public must be involved early and effectively in the development and updating of spatial plans. The procedures provide for display, information, and formal hearings, whereby each public body and private person is entitled to submit comments. In addition, the requirements of the Environmental Information Act (UIG) and the access rights under the Aarhus Convention apply. The responsible authority is obliged to take the submitted comments into account in the subsequent procedure and to carefully implement the weighing of interests. Documentation of the participation is part of the planning act and can be reviewed as part of legal remedies.
What legal conflicts can arise from competing interests in the course of maritime spatial planning?
Maritime spatial planning is primarily aimed at avoiding and resolving conflicts between various spatial claims, such as shipping, energy generation (especially offshore wind energy), fisheries, environmental protection, and military use. The legal task is to bring these competing interests into a proper balance within the framework of the weighing provision under § 7 ROG. In the case of conflicting interests, certain uses may take precedence or coexistence may be regulated by zoning. Each planning step must observe the applicable statutory requirements, especially those relating to nature and environmental protection. Affected owners and users may file objections and, if necessary, bring legal action before the administrative courts if they are significantly impaired. The administrative courts regularly review whether the weighing was carried out properly and in a comprehensible manner. If overriding public interests take precedence, the planning may, in certain cases, even result in compensation according to Article 14(3) of the Basic Law.
How is the relationship between national and European legislation regulated in maritime spatial planning?
The relationship between national and European legislation is characterized by the principles of implementation and the primacy of application. EU Directive 2014/89/EU requires Member States to introduce a legally binding framework for maritime spatial planning, although countries retain some discretion in structuring procedures. Germany has implemented these requirements through the Spatial Planning Act (ROG) and other specific legislative provisions at the national level. However, national regulations must not conflict with EU requirements, as Union law has primacy of application. In addition, other sector-specific European provisions, such as the Water Framework Directive (2000/60/EC) or the Birds and Habitats Directives, may also be binding for the content of spatial plans. Conflicts between national and European law are, in cases of doubt, resolved by the European Court of Justice through a preliminary ruling under Article 267 TFEU.
What legal remedies are available to those affected by maritime spatial plans?
Affected parties basically have the right to seek legal protection against a maritime spatial plan by filing an action for annulment or a so-called judicial review action under § 47 of the Administrative Court Procedure Code (VwGO). Those entitled to bring an action are natural and legal persons whose own rights are affected by the plan as well as recognized environmental organizations that can invoke a violation of environmental law provisions (association action). The action is directed against the planning act concluding the procedure of the planning authority. In court, the administrative court examines, among other things, whether the statutory procedural requirements have been met, whether the weighing of interests was free from legal error, and whether, if applicable, the environmental impact assessment was properly carried out. Errors of form or procedure can lead to the annulment or referral back of the plan. Under European law, there is also the possibility of first reporting infringements of Union law to the Commission, which may initiate infringement proceedings.
Under what conditions can the validity of a maritime spatial plan be limited in time or amended?
The limitation and amendment of maritime spatial plans are legally permissible and may already be provided for within the plan itself, for example, through regulations regarding the period of validity or evaluation intervals. Section 8 of the Spatial Planning Act (ROG) and the relevant ordinances allow for the adaptation of plans if relevant circumstances change, such as due to new scientific findings, technological developments, or political objectives. Any amendment is subject to the same legal requirements as the initial establishment of the plan, particularly with regard to environmental assessment and participation procedures. Amendments may only be made if they comply with higher-ranking law and the principles of spatial planning. The adaptation of a plan may also be subject to external judicial review, particularly if affected parties claim that the amendment entails significant disadvantages for their rights.
