1 The claimant, a recognised environmental association, is seeking a remedial measures order from the defendant against the third party summoned to attend the proceedings as a party whose rights might be affected (hereinafter summoned third party) under the Environmental Damage Act (USchadG, Umweltschadensgesetz) transposing Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Environmental Liability Directive - ELD). By the operation of a pumping station, the summoned third party was liable for environmental damage affecting the bird species black tern (Trauerseeschwalbe) on the Eiderstedt peninsula in Schleswig-Holstein.

2 A total of around 7,000 hectares on the Eiderstedt peninsula, which measures approximately 30,000 hectares, were designated a bird sanctuary (DE 1618-404) in 2006 and 2009 inter alia due to the presence of the black tern. According to the management plan, the bird sanctuary is predominantly managed even today as a grassland area using traditional large-scale methods and, by reason of its size in particular, it is still the most important breeding ground for the black tern in Schleswig-Holstein.

3 The Eiderstedt peninsula has to be drained for the purposes of settlement and agricultural use. It is drained via approximately 5,000 km of so-called plot ditches which flow into a network of 900 km of sluice channels. The plot ditches are maintained by the users of the adjacent land, while a total of 17 water and soil associations established in Eiderstedt are obliged to maintain the sluice channels as the receiving bodies of water.

4 The Deich- und Hauptsielverband Eiderstedt as the summoned third party is a water and soil association established as a corporation under public law, and is the umbrella association of the 17 water and soil associations established in Eiderstedt. The tasks delegated to it by law include the obligation under public law of maintaining the bodies of surface water. In fulfilment of these obligatory tasks, it operates inter alia the Adamsiel sluice and pumping station (Siel- und Schöpfwerk Adamsiel). This drains the entire area covered by the association by means of a pump activated automatically when a certain water level is reached. The pumping operations set in motion then take the water level back down.

5 The Administrative Court (Verwaltungsgericht) dismissed the action initiated following the claimant's unsuccessful application for a damage limitation and remedial measures order. On appeal on points of fact and law by the applicant, the Higher Administrative Court (Oberverwaltungsgericht) set aside the judgment of the Administrative Court and obliged the defendant to issue a (new) decision taking into consideration the Court's legal opinion. The black tern, which is a protected species, and its natural habitat had been damaged within the meaning of the Environmental Damage Act by the operation of the summoned third party's pumping station. As the summoned third party's activity was not be categorised as use for land yield purposes, the absence of significant effects did not come into consideration on the grounds of normal management. The summoned third party operated its sluice and pumping station as an occupational activity, albeit on the basis of an obligation under public law. There was a direct causal link between the operation of the sluice and pumping station by the summoned third party, which remained unchanged before and after 30 April 2007, and the environmental damage. Without the operation of the sluice and pumping station, water could not run out of the ditch system. The summoned third party was also at fault for its contribution to the environmental damage. However, the matter was not ready for a decision ordering an obligation. The defendant had discretion in selecting the person responsible, the timing, and the content of the measures to be taken.

6 By their appeals on points of law, the defendant and the summoned third party seek to have the judgment at first instance reinstated.

7 The legal dispute is to be suspended. In accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision.

8 1. The relevant provisions of EU law are to be found in article 2 no. 7 of as well as in Annex I (2) second indent of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143 p. 56).

9 2. The provisions of national law relevant to the first question referred are to be found in section 19 (5) second sentence no. 2 and, additionally, in section 5 (2) of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz) of 29 July 2009 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2542), last amended by article 1 of the Act of 15 September 2017 (BGBl. I p. 3434) (a). The provisions of national law relevant to the second question referred are to be found in section 2 no. 4 of the Environmental Damage Act of 10 May 2007 (BGBl. I p. 666), last amended by article 4 of the Act of 4 August 2016 (BGBl. I p. 1972), in section 39 (1) first sentence and in section 40 (1) first sentence of the Federal Water Act (WHG, Wasserhaushaltsgesetz) of 31 July 2009 (BGBl. I p. 2585), last amended by article 2 of the Act of 4 December 2018 (BGBl. I p. 2254), and in section 38 (1) first sentence no. 1 of the Water Act of the Federal State of Schleswig-Holstein (WasG SH, Landeswassergesetz) of 11 February 2008 (Law and Ordinance Gazette of the Federal State of Schleswig-Holstein (GVOBl. SH, Gesetz- und Verordnungsblatt des Landes Schleswig-Holstein) p. 91), in the version of the Act of 13 December 2018 (GVOBl. SH p. 773) (b).
a) Section 19 (5) second sentence no. 2 BNatSchG reads as follows:
As a rule, significant damage shall not be deemed to have occurred in the case of negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators.
Section 5 (2) BNatschG reads as follows:
In the case of agricultural use, in addition to requirements arising from provisions applying to agriculture and from section17 (2) of the Federal Soil Protection Act (BBodSchG, Bundes-Bodenschutzgesetz), the following principles of good practice shall especially be observed:
1. cultivation must be appropriate to the relevant location, and the sustainable fertility of the soil and long-term usability of the land must be ensured;
2. the natural features of the arable land (soil, water, flora, fauna) must not be impaired beyond the extent required to achieve a sustainable yield;
3. the landscape components required for the linking of biotopes shall be preserved and, where possible, their numbers increased;
4. animal farming must be in a balanced relationship to crop cultivation, and harmful environmental impacts are to be avoided;
5. on slopes at risk from erosion, in flood plains, in locations with a high groundwater level and in marshy locations, grassland must not be ploughed up;
6. fertilisers and plant protection products shall be applied in accordance with agricultural legislation and the application of fertilisers shall be documented in accordance with section10 of Fertiliser Application Ordinance (DüV, Düngeverordnung) of 26 May 2017 (BGBl. I p. 1305), as amended, and the application of plant protection products shall be documented in accordance with article 67 (1) second sentence of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ L 309 p. 1).
b) Section 2 no. 4 USchadG reads as follows:
occupational activity means any activity carried out in the course of an economic activity, a business or an undertaking, irrespectively of its private or public, profit or non-profit character.
Section 39 (1) first sentence WHG reads as follows:
Maintenance of bodies of surface water includes the care and development thereof as an obligation under public law (maintenance obligation).
Section 40 (1) first sentence WHG reads as follows:
Maintenance of bodies of surface water is the responsibility of the owners of the bodies of water, unless it is a task delegated under federal state law to local authorities, water and soil associations, municipal special purpose associations or other corporations under public law.
Section 38 (1) first sentence no. 1 WasG SH reads as follows:
Maintenance of a body of water includes, in addition to the measures listed in section 39 (1) second sentence WHG, the preservation and safeguarding of proper water runoff.

10 The questions referred for a preliminary ruling are relevant for the decision. Depending on how the questions referred are answered, the appeals on points of law will either be successful on legal grounds or the matter will need to be referred back to the Higher Administrative Court as the court responsible for finding the facts for a further hearing and decision.

11 1. The temporal application of the Environmental Damage Act and/or of the Environmental Liability Directive in accordance with section 13 (1) USchadG and/or article 17 ELD exists. According to the case-law of the Court of Justice, it follows from article 17 first and second indent ELD in conjunction with recital 30 of the Directive, that the Directive applies to damage caused by an emission, event or incident which took place on or after 30 April 2007, where the damage derives from activities which took place on or after that date or from activities which took place before that date, but which were not brought to completion before that date (CJEU, judgment of 1 June 2017 - C-529/15 [EU:C:2017:419] - para. 22 with reference to CJEU, judgment of 4 March 2015 - C 534/13 [EU:C:2015:13] para. 44; see also CJEU, judgment of 9 March 2010 - C-378/08 [EU:C:2010:126], Raffinerie Méditerranée et al. - para. 41). In the present case, the environmental damage may have been caused by the operation of a sluice and pumping station by the summoned third party, which, according to the court's findings as to the facts, had remained unchanged before and after 30 April 2007. Thus that operation represents an activity which (also) took place after 30 April 2007. At the same time, the damage in question was caused by events. The pumping processes to reduce the water level carried out automatically when a certain water level is reached may be regarded as such events.

12 2. According to section 1 first sentence USchadG, that Act applies even where other national law would otherwise take precedence. In particular, provisions of federal state law available do not go as far as the Environmental Damage Act.

13 The questions referred for a preliminary ruling require clarification by the Court of Justice because they have neither been clarified by its case-law nor are they obvious.

14 With regard to the individual questions referred for a preliminary ruling, the following considerations are of relevance:

15 1. On question 1:
a)The issue is how the term "management" should be understood within the meaning of Annex I (2) second indent ELD. Based on the wording of the provision, that term may cover a broad range of economic activities. However, the Higher Administrative Court relied on a narrow understanding of the term and held that only agricultural activity in the sense of use for land yield purposes qualifies as "management". The Senate takes the view that, at the very least, the operation of a sluice and pumping station for the purpose, as is the case here, of ensuring the necessary irrigation and drainage of agricultural land is covered by the term "management" as it is inextricably bound up with use for land yield purposes.

16 b) The conditions under which a method of management of sites within the meaning of Annex I (2) second indent ELD, as defined in habitat records or target documents, is to be considered "normal" within the meaning of the Environmental Liability Directive also need clarification. To that end, a standard specific to the area should be established, to be determined primarily from the said sources or based on an available management plan. In addition to area-specific documents available, general principles established by law could, if necessary, be applied for the purpose of establishing the standard. The principles of good practice laid down in German law in section 5 (2) BNatSchG are a possibility in connection with direct use for land yield purposes.

17 c) The meaning of "management of sites as carried on previously" by owners or operators within the meaning of Annex I (2) second indent ELD also needs to be clarified from a temporal perspective. It seems conceivable to assume that any management of sites practised over a period of time before the date stated in article 19 (1) ELD, that is, 30 April 2007, is "management of sites as carried on previously". However, it also seems conceivable that not every management of sites exercised at some time previously should be taken into account and that it should necessarily have still been exercised in fact on 30 April 2007.

18 d) It does not follow unequivocally from the wording of Annex I (2) second indent ELD that the question of whether management of sites is "as carried on previously by owners or operators" should be answered independently of the habitat records or target documents. However, that would appear to be the obvious answer to the Senate. The provision could then serve as a catch-all rule in the sense that, where the habitat records or target documents do not provide sufficient evidence to establish a standard, an actual analysis is carried out.

19 2. On question 2:
Also the question of whether an activity exercised in the public interest on the basis of a delegation of tasks by law constitutes an "occupational activity" within the meaning of article 2 (7) ELD has not been clarified in the case-law of the Court of Justice, and there is no obvious answer. It follows from the wording of article 2 (7) ELD that qualification of an activity as an "occupational activity" does not depend on its form under private or public law or whether it is exercised for profit. However, the question of whether an activity exercised in the public interest on the basis of a delegation of tasks by law constitutes an "economic activity", a "business" or an "undertaking" within the meaning of article 2 (7) ELD needs to be clarified. In the opinion of the Senate, it would appear plausible that the three terms "economic activity", "business" and "undertaking" should be understood to mean that an activity included therein should have a market link or be of a competitive nature. There is no such market link or competitive nature in the case of an activity exercised in the public interest on the basis of a delegation of tasks by law, in the present case the maintenance of bodies of surface water by a water and soil association, including the preservation and safeguarding of proper water runoff (see sections 39 (1) first sentence and 40 (1) first sentence WHG as well as section 38 (1) first sentence no. 1 WasG SH), especially as the entity responsible for the task is unable to get out of performing the task delegated to it by law.

The claimant, a recognised environmental association, requests from the defendant, a local authority, to oblige the third party summoned to attend the proceedings as a party whose rights might be affected (hereinafter summoned third party) to take damage limitation and remedial measures under the Environmental Damage Act (USchadG, Umweltschadensgesetz). Due to dredging operations and the operation of a sluice and pumping station on the Eiderstedt peninsula, the summoned third party was liable for environmental damage affecting the bird species black tern (Trauerseeschwalbe).

A total of around 7,000 hectares on the Eiderstedt peninsula (Schleswig-Holstein), which measures approximately 30,000 hectares, were designated a bird sanctuary (DE 1618-404) until 2009 inter alia due to the presence of the black tern. According to the management plan, the bird sanctuary is predominantly managed as a grassland area using traditional large-scale methods and, by reason of its size in particular, it is the most important breeding ground for the black tern in Schleswig-Holstein.

The Deich- und Hauptsielverband Eiderstedt as the summoned third party is a water and soil association established as a corporation under public law. The tasks delegated to it by law include the obligation under public law of maintaining the bodies of surface water. In fulfilment of this task, it operates inter alia the Adamsiel sluice and pumping station (Siel- und Schöpfwerk Adamsiel). This drains the water catchment area by means of a pump activated automatically when a certain water level is reached. The pumping operations set in motion take the water level down.

The Administrative Court (Verwaltungsgericht) dismissed the action initiated after the claimant's application remained unsuccessful. On appeal on points of fact and law by the claimant, the Higher Administrative Court (Oberverwaltungsgericht) set aside the judgment of the Administrative Court and obliged the defendant to issue a (new) decision "on the claimant's application of 4 June 2008 concerning necessary damage limitation and remedial measures" taking into consideration the Court's legal opinion; with regard to all other aspects it dismissed the action. The black tern, which is a protected species, and its natural habitat had been damaged by the operation of the pumping station. 

On the complaint against the refusal to grant leave to appeal on points of law by the defendant and the summoned third party, the Senate granted leave to appeal on points of law against the appeal judgment. The claimant filed a cross-appeal on points of law.

In its decision of 26 February 2019 - 7 C 8.17 [ECLI:DE:BVerwG:2019:2602197C8.17.0] - the Senate suspended the proceedings and asked the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) to clarify several questions on the interpretation of Directive 2004/35/EC. By judgment of 9 July 2020 - C-297/19 [ECLI:EU:C:2020:533] -, the Court of Justice decided on this request for a preliminary ruling.

The defendant's and the summoned third party's appeals on points of law as well as the claimant's cross-appeal on points of law were successful.

12 I. The admissible appeals on points of law brought by the defendant and the summoned third party are well-founded. The judgment of the Higher Administrative Court breaches the law that is subject to an appeal on points of law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)) and does not prove to be correct in its result for other reasons either (section 144 (4) VwGO). On the basis of the factual findings established by the court responsible for finding the facts, the Senate cannot conclusively decide on the action. Therefore, the case must be referred back to the Higher Administrative Court for a further hearing and decision (section 144 (3) first sentence no. 2 VwGO).

13 1. Compatible with federal law, the Higher Administrative Court held that the Environmental Damage Act, in the relevant version promulgated on 5 March 2021 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 346), transposing Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143 p. 56) - ELD, is applicable under temporal and substantive aspects.

14 a) The temporal application of the Environmental Damage Act exists. According to section 13 (1) USchadG, the Act does not apply to damage caused by an emission, event or incident that took place prior to 30 April 2007, or derive from specific activities that finished prior to that date. This provision is compatible with article 17 first and second indent ELD, according to which the Directive applies to damage caused by an emission, event or incident which took place on or after 30 April 2007, where the damage derives from activities which took place on or after that date or from activities which took place before that date, but which were not brought to completion before that date (see CJEU, judgment of 1 June 2017 - C-529/15 [ECLI:EU:C:2017:419] - para. 22 with reference to CJEU, judgment of 4 March 2015 - C 534/13 [ECLI:EU:C:2015:140] - para. 44; see also CJEU, judgment of 9 March 2010 - C-378/08 [ECLI:EU:C:2010:126], Raffinerie Méditerranée et al. - para. 41).

15 In the present case, damage may have been caused by the operation of a sluice and pumping station by the summoned third party, which, as established by the court responsible for finding the facts, had remained unchanged before and after 30 April 2007. Thus, that operation represents an activity which (also) took place after 30 April 2007. At the same time, the damage in question was caused by events. The pumping processes to take down the water level carried out automatically when a certain water level is reached may be regarded as such events. The likewise contested dredging operations were carried out on 20 June 2007.

16 2. The substantive application of the Environmental Damage Act exists. According to section 1 first sentence USchadG, the Act shall govern as far as laws and regulations at federal or federal state level do not cover the prevention and remediation of environmental damage in specific detail or their provisions fall short of this Act. This means that, compatible with article 16 (1) ELD, the Environmental Damage Act provides for a minimum standard for the prevention and remediation of environmental damage (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 16/3806 p. 19). Whether this minimum standard is exceeded by legislation of the Federation or of the federal states must be decided on the basis of a generalising overall evaluation - taking into consideration the facts of the specific case. In this evaluation, both the constituent elements of such legislation as well as legal consequences provided for in the relevant set of provisions may be of decisive significance (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 29 April 2021 - 4 C 2.19 [ECLI:DE:BVerwG:2021:290421U4C2.19.0] - (...) para. 50 et seq.).

17 Provisions that go beyond those of the Environmental Damage Act and are to be considered in the present case are section 2 (4) first and second sentence and section 11 (8) of the Nature Conservation Act of the Federal State of Schleswig Holstein (LNatSchG SH, Landesnaturschutzgesetz) of 24 February 2010 (Law and Ordinance Gazette (GVOBl., Gesetz- und Verordnungsblatt) p. 301), last amended by article 7 of the Act of 13 November 2019 (GVOBl. p. 425), in conjunction with section 3 (2) of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz) of 29 July 2009 (BGBl. I p. 2542), last amended by article 1 of the Act of 18 August 2021 (BGBl. I p. 3908). According to section 3 (2) BNatSchG, the competent authorities in charge of nature conservation and landscape management shall monitor compliance with provisions of this Act, and with regulations issued on the basis of this Act, and shall take the measures necessary, in individual cases, and using discretion in accordance with their legal obligation, to ensure such compliance, except as provided otherwise. Pursuant to section 2 (4) first sentence LNatSchG SH, this rule applies mutatis mutandis to other nature conservation provisions and to measures aimed at preventing other threats to nature and landscape. If parts of nature and landscape have been unlawfully destroyed, damaged or changed, the competent nature conservation authority, pursuant to section 2 (4) second sentence LNatSchG SH, orders the measures provided for in section 11 (7) and (8) first to fifth sentence LNatSchG SH. Section 11 (8) second to fourth sentence LNatSchG SH provides for the restoration of the original condition or, if restoration is impossible or disproportionate, compensation or substitute measures and - if these are not possible either - a substitute payment.

18 Here, the claimant requests to obligate the defendant to order the summoned third party as the person responsible for an occurred environmental damage to take the necessary damage limitation and remedial measures, and is of the opinion that the summoned third party is obligated to take such measures under its own responsibility, and that their nature and extent is first to be determined by the summoned third party itself. This petition is covered exclusively by the provisions of the Environmental Damage Act. Section 6 no. 2 USchadG provides that - when an environmental damage has occurred - the responsible person is obligated to take the necessary remedial measures pursuant to section 8 USchadG. Section 8 (1) USchadG obligates the responsible person to identify the necessary remedial measures and to submit them to the competent authority for approval.. The question as to which remedial measures are be considered in order to remedy damage to bodies of water, protected species or natural habitats is provided for in detail in section 19 (4) BNatSchG in conjunction with Annex II no. 1 to the ELD, which provides for a distinction between primary remediation, complementary remediation and compensatory remediation - all defined specifically there -, and determines in detail the remediation objectives, measures for the identification of remedial measures as well as criteria for the choice of remedial options. The option of substitute payments in cash is not provided for. It is the task of the competent authority to monitor that the necessary remedial measures are taken by the responsible person (section 7 (1) USchadG). Within this framework, the authority has the right to require the responsible person - as requested in this present case - to take these measures (section 7 (2) no. 3 USchadG).

19 By contrast, the regime on legal consequences pursuant to section 11 (8) second to fourth sentence LNatSchG SH does not expressly provide for remedial measures, and consequently does not make any provisions regarding the content of remedial measures. Investigations by the responsible person himself or herself regarding the measures to be taken are not being ordered by the federal state legislature. In addition to this, under certain circumstances, section 11 (8) fourth sentence LNatSchG SH allows a substitute payment to replace measures of restoration, compensation or substitution.

20 Other, further reaching provisions under the law of the Federation or the federal state are not apparent. In particular, the above statements on section 2 (4) first and second sentence, section 11 (8) LNatSchG SH apply mutatis mutandis to the provisions in sections 13 et seqq. BNatSchG (intervention provision). The fact that, according to the decision of the Higher Administrative Court, the operation of the sluice and pumping station constitutes maintenance of a body of water within the meaning of the Water Act of the Federal State of Schleswig-Holstein (LWG SH, Landeswassergesetz), and that maintenance measures on bodies of water are not to be regarded as interventions under section 8 (2) no. 2 LNatSchG SH, is therefore irrelevant, as is the question as to whether this deviation from the definition of the term "intervention" under federal law in section 14 BNatSchG is within the limits of the competence to deviate from federal law granted to the federal state under article 72 (3) first sentence no. 2 of the Basic Law (GG, Grundgesetz).

21 3. Compatible with federal law, the Higher Administrative Court also bases its decision on the liability rule pursuant to section 3 (1) no. 2 USchadG which requires that the responsible person must have acted intentionally or negligently.

22 The constituent elements for no-fault liability under section 3 (1) no. 1 USchadG are not met. This would require that an environmental damage and the imminent threat of such damage caused by any occupational activity listed in Annex 1 to the Environmental Damage Act. Based on the factual findings established by the Higher Administrative Court, the operation of the sluice and pumping station by the summoned third party is not to be classified as such an activity. According to Annex 1 no. 5 to the USchadG, the only activity that may give rise to liability is the abstraction of water from a body of surface water pursuant to section 9 (1) no. 1 of the Federal Water Act (WHG, Wasserhaushaltsgesetz) of 31 July 2009 (BGBl. I p. 2585), last amended by article 2 of the Act of 18 August 2021 (BGBl. I p. 3901), which requires a permit or licence under section 8 (1) WHG. An abstraction of water occurs if water - as in the present case - is pumped or scooped from a body of water (...). However, pursuant to section 9 (3) second sentence WHG, maintenance of a body of water without application of chemical substances does not constitute use of a body of water requiring permission pursuant to section 8 (1) WHG. As has been shown, the operation of the sluice and pumping station by the summoned third party constitutes maintenance of a body of water which, as such, does not require a permit or licence.

23 The exclusion of no-fault liability is also compatible with EU law. The liability rule pursuant to article 3 (1) (a) ELD applies if an environmental damage is caused by any of the occupational activities listed in Annex III to the Directive, which lists the abstraction of water in no. 6, insofar as it is subject to prior authorisation in pursuance of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ L 327 p. 1) - WFD. In article 11 (3) (e), Directive 2000/60/EC provides for a requirement of prior authorisation for the abstraction of fresh surface water as a minimum requirement to be complied with by the Member States, unless Member States exempt from this requirement abstractions or impoundments which have no significant impact on water status. Such an exemption - in conformity with EU law - is provided for in section 9 (3) second sentence WHG insofar as - as in the present case - it relates to the maintenance of a body of water without application of chemical substances.

24 4. It is also compatible with the law that is subject to an appeal on points of law that the Higher Administrative Court assumed that the summoned third party operated the sluice and pumping station as part of an occupational activity within the meaning of section 3 (1) no. 2 USchadG in conjunction with section 2 no. 4 USchadG.

25 According to section 2 no. 4 USchadG - and in compliance with the definition of the term under EU law in article 2 no. 7 ELD - occupational activity means any activity carried out in the course of an economic activity, a business or an undertaking, irrespective of its private or public, profit or non-profit character. In answer to the question formulated by the Senate in this respect, the Court of Justice clarified, that the concept of occupational activity, referred to in article 2 (7) of Directive 2004/35, is not limited solely to activities which are market-related or are competitive in nature, but encompasses all activities carried out in an occupational context, as opposed to a purely personal or domestic context, and, therefore, activities carried out in the public interest pursuant to a delegation of tasks by law (CJEU, judgment of 9 July 2020 - C-297/19 - (...) para. 76 et seq.). On this basis, there is no doubt that the summoned third party, who is acting in the public interest pursuant to a delegation of tasks by law, operates the sluice and pumping station in the course of an occupational activity.

26 5. The Higher Administrative Court held that a reduction in the population of breeding pairs of birds that had already been occurring on the Eiderstedt peninsula for some time and continued even more after 2007, constitutes a damage to species and natural habitats within the meaning of section 3 (1) no. 2 USchadG in conjunction with section 19 (2) and (3) BNatSchG with regard to the black tern, a protected species, and its natural habitat in the Eiderstedt bird sanctuary. Based on the factual findings established by the Higher Administrative Court, there are no indications that the exception rule in section 19 (1) second sentence BNatSchG would stand against the assumption that a damage occurred. Rather, the Higher Administrative Court found that there were no indications whatsoever that an authorisation of the operation of the sluice and pumping station by the summoned third party had been preceded by an investigation into the adverse effect of this activity.

27 6. As the Higher Administrative Court correctly assumed, an obligation to take remedial measures under section 3 (1) no. 2 USchadG also requires that a damage that has occurred has a significant adverse effect on the achievement or maintenance of a favourable conservation status of the affected habitats or species.

28 The condition for liability that the damage must be significant results from section 19 (1) first sentence BNatSchG and applies - compatible with the provisions of the Environmental Liability Directive - both to no-fault liability under section 3 (1) no. 1 USchadG and to fault-based liability under section 3 (1) no. 2 USchadG. The conclusion that the criterion of significance is only applicable in the context of no-fault liability could only be derived from an isolated comparison of the definition of the term environmental damage in article 2 no. 1 ELD, which is a requirement of no-fault liability under article 3 (1) (a) EDL and which expressly comprises the criterion of significance that limits liability, and the definition of the term damage in article 2 no. 2 ELD, which is an element of fault-based liability under article 3 (1) (b) ELD and does not as such include the criterion of significance that limits liability. However, such a differentiation would not be appropriate and would not be compatible with the general scheme of the Environmental Liability Directive. It would - without any indications that the legislature intended this to be the case - result in particularly strict fault-based liability that would, without any discernible objective reason, deviate from the rules on no-fault liability. Furthermore, this would overlook the systematic aspect that the composite term "damage to protected species and natural habitats" as used in article 3 (1) (b) ELD is defined in article 2 no. 1 (a) ELD and that the criterion of significance is expressly included there - through a reference to Annex I of the Directive.

29 The Court of Justice also readily assumes that fault-based liability under the Environmental Liability Directive requires the damage to be significant. It states that the three categories of damage falling within the concept of "environmental damage" that are defined in article 2 (1) ELD include, in article 2 (1) (a), damage to protected species and natural habitats, which is damage that can cause the Directive to apply under both article 3 (1) (a) and article 3 (1) (b) thereof (CJEU, judgment of 9 July 2020 - C-297/19 - (...) para. 32). This refers to both no-fault liability, regulated in article 3 (1) (a) ELD, and fault-based liability as provided for in article 3 (1) (b) ELD.

30 7. However, it is a violation of the law that is subject to an appeal on points of law when the Higher Administrative Court assumes that the facts of the case do not allow the conclusion that the damage was not significant in accordance with section 19 (5) second sentence BNatSchG.

31 (...)

32 b) The exclusion of section 19 (5) second sentence no. 2 BNatSchG with regard to the facts of the case assumed by the Higher Administrative Court breaches the law that is subject to an appeal on points of law. Pursuant to section 19 (5) second sentence no. 2 BNatSchG in the now relevant version amended by article 5 of the Act of 25 February 2021 (BGBl. I p. 306), which entered into force on 1 September 2021, a significant damage shall, as a rule, not be deemed to have occurred in the case of negative variations due to natural causes or resulting from intervention relating to the normal management of the respective areas, as defined in habitat records or target documents or as carried on previously by owners or operators. This recast is in line with the decision by the Court of Justice given upon the reference for a preliminary ruling by the Senate. The previous German language version of the Directive gave the Court of Justice cause to clarify that Annex I (3) second indent of the Environmental Liability Directive must be read as meaning that, as in the other language versions, the word "normal" must relate directly to the word "management" and that the term "normal management" must relate to both alternatives of the second case provided for in the second indent (CJEU, judgment of 9 July 2020 - C-297/19 - (...) para. 49).

33 aa) Contrary to the opinion of the Higher Administrative Court, the operation of the sluice and pumping station by the summoned third party is covered by the term "management" within the meaning of section 19 (5) second sentence no. 2 BNatSchG. The assumption by the Court of Appeal that the term management only comprises the (direct) use for land yield purposes by agriculture, which does not comprise the activities carried out by the summoned third party, is too narrow. In response to the reference by the Senate, the Court of Justice clarified that the concept of normal management within the meaning of Annex I (3) second indent ELD may, in particular, cover agricultural activities taken as a whole, including activities which may be the essential complement thereof, such as irrigation and drainage and, therefore, the operation of a pumping station (CJEU, judgment of 9 July 2020 - C-297/19 - (...) para. 57). There are no indications that the legislature of the Environmental Damage Act intended to provide for a narrower definition of the term management.

34 bb) On this basis, it must be clarified whether the operation of the sluice and pumping station carried out by the summoned third party constitutes management that is to be regarded as normal. In response to the reference by the Senate, the Court of Justice states that the word "normal" corresponds to the words "usual", "ordinary" or "common". However, in order not to negate the effectiveness of the word "normal" in the context of environmental protection, according to the case-law of the Court of Justice, management can be regarded as normal only if it is consistent with good practices such as, inter alia, good agricultural practices (CJEU, judgment of 9 July 2020 - C-297/19 - (...) para. 52). Furthermore, management of a site covered by - as is the case here - the Habitats Directive and the Birds Directive can be regarded as normal only if it complies with the objectives and obligations laid down in those Directives (CJEU, judgment of 9 July 2020 - C-297/19 - (...) para. 55).

35 The question whether management is normal must be determined from the management documents. If those documents do not contain sufficient guidance to carry out that assessment and if the normality of the measure cannot be determined on the basis of management as carried on previously either, those documents may be assessed in the light of the objectives and obligations laid down in the Habitats Directive and the Birds Directive or with the assistance of domestic legal rules that have been adopted to transpose those Directives or, failing this, are compatible with the spirit and purpose of those Directives (CJEU, judgment of 9 July 2020 - C-297/19 - para. 60).

36 Normal management of a site may result from management as carried on previously if management measures are concerned, which may be regarded as usual for the site concerned, because they have been carried out for a certain period of time. Furthermore, normal management resulting from management as carried on previously is subject to the reservation that it must not call into question compliance with the objectives and obligations laid down in the Habitats Directive and the Birds Directive (see CJEU, judgment of 9 July 2020 - C-297/19 - para. 61).

37 cc) Against this legal background, further clarification of facts is necessary. In order to determine whether management is normal, it will above all be necessary to take into consideration the relevant management documents, namely the management plan of the Ministry for Agriculture, Environment and Rural Areas of the Federal State of Schleswig-Holstein (Ministerium für Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein) of 20 September 2010, which deals with the management of bodies of water in the Eiderstedt bird sanctuary.

38 As necessary measures in connection with the drainage and the system of bodies of water, the management plan provides in particular for the safeguarding of minimum water levels and the optimisation of the water balance. No. 6.2.2 of the management plan specifically states (...) that it is not permitted to lower the water level below the level present at the time the bird sanctuary was designated. In addition to this prohibition, an optimisation of the water balance is provided for (...) in a general manner that still requires specification.

39 Based in particular on the above provisions in the management plan, it appears to be of decisive relevance for the assessment of whether management by the operation of the sluice and pumping station by the summoned third party is normal - in addition to other aspects which may have to be determined by the court responsible for finding the facts - whether this operation results in a lowering of the water level below the level present at the time the bird sanctuary was designated. The claimant alleged that the mean water levels in the Eiderstädt trench system fell continuously after 30 April 2007, caused by the operation of the pumping station by the summoned third party. The Higher Administrative Court expressly left the question as to whether this allegation is true unanswered, as, based on its interpretation of the law, it was not relevant for the decision.

40 Should the water level have been lowered by the operation of the sluice and pumping station of the summoned third party below the level present at the time the bird sanctuary was designated, the assumption that the damage to the black tern species is insignificant will - subject to a final assessment by the court responsible for finding the facts which has competence for this assessment - probably not come into consideration under the aspect of management as carried on previously. In the reverse case that operation of the sluice and pumping station has not lowered the water level below the level present at the time the bird sanctuary was designated, it is, in contrast, logical to insofar assume, also under the aspect of management as carried on previously, that management is normal. This may lead to the conclusion that the damage is not significant, unless factual indications exist that - contrary to the provision in section 19 (5) second sentence no. 2 BNatSchG - a special exceptional situation exists with regard to the operation of the sluice and pumping station by the summoned third party.

41 dd) As has been shown, based on the case-law of the Court of Justice, management can be regarded as normal only if it is consistent with good agricultural practices. Insofar, attention is directed to the principles of good professional practice of agricultural use within the meaning of section 5 (2) BNatSchG. The exemplary (action) directives listed in this provision, which, however, do not contain any regulations that relate directly to the regulation of water levels via a pumping station, are open to further - unwritten - principles of good professional practice (see, in this respect, BVerwG, judgment of 1 September 2016 - 4 C 4.15 [ECLI:DE:BVerwG:2016:010916U4C4.15.0] - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 156, 94 para. 17). This also may require additional factual findings should indications be identified suggesting that the operation of the sluice and pumping station is incompatible with good agricultural practice.

42 If an agricultural use of soil complies with the requirements in section 5 (2) to (4) BNatSchG - or the unwritten principles of good professional practice respectively - it, according to section 14 (2) second sentence BNatSchG, does not, as a rule, contradict the purposes of nature conservation and landscape management. However, according to the jurisprudence of the Federal Administrative Court, this rule is not applicable if the particularities of such agricultural use in the specific case are incompatible with the technical conditions of nature conservation. If - as is the case here - a Natura 2000 site is affected, the competent authority must ensure that no changes and disturbances occur that may lead to a significant adverse effect on the site with regard to its components that are relevant for the conservation objectives or the protection purpose (section 33 (1) BNatSchG). In this context, the question as to whether a specific agricultural use threatens to give rise to such an adverse effect is above all a question from a nature conservation perspective which the legislature with responsibility for the designation of areas of conservation has to regulate by designating and maintaining such areas of conservation (BVerwG, judgment of 6 November 2012 - 9 A 17.11 - BVerwGE 145, 40 para. 89 with further references).

43 Against this background and in view of the case-law of the Court of Justice, according to which the achievement of the objectives and obligations provided for in the Habitats Directive and the Birds Directive must not be jeopardised, there may be additional need for clarification should indications from a nature conservation perspective arise that cast doubts in this respect. This relates to the question as to whether the measures in the management documents that are relevant to the operation of the sluice and pumping station by the summoned third party, namely the management plan, are suitable to prevent a significant adverse effect on the area with regard to its components that are relevant for the conservation objectives or the protection purpose, and thus suitable to comply with the objectives and obligations under the Habitats Directive and the Birds Directive.

44 ee) Should it be found after further inquiry into the facts that the operation of the sluice and pumping station by the summoned third party causes a significant damage within the meaning of section 19 (1) and (5) BNatSchG, the unlawfulness of the activity causing the damage - i.e. the operation of the sluice and pumping station - does not, according to the Senate's jurisprudence given in the meantime, constitute a condition for liability under section 3 (1) no. 1 and 2 USchadG. Authorised and lawful activities are also subject to fault-based liability under section 3 (1) no. 2 USchadG, insofar as they cause a significant damage (see BVerwG, judgment of 21 September 2017 - 7 C 29.15 [ECLI:DE:BVerwG:2017:210917U7C29.15.0] - (...) para. 24 et seqq.). The Higher Administrative Court correctly based its decision on this.

45 c) Should the damage caused by the operation of the sluice and pumping station be significant, the question as to whether the summoned third party was at fault also has to be clarified (again) on the basis of the factual findings to be made.

46 With regard to this clarification, the Higher Administrative Court correctly used the provision in section 276 of the German Civil Code (BGB, Bürgerliches Gesetzbuch) as a starting point. According to the Senate's jurisprudence quoted above, the decision as to whether an activity by the person responsible under section 3 (1) no. 2 USchadG was intentional or negligent is determined by the civil-law standards applied by the court responsible for finding the facts (BVerwG, judgment of 21 September 2017, see above, para. 18 et seqq.).

47 Based on this premise, a responsible person is to be considered to have acted intentionally if he or she anticipated and incorporated into his or her intentions the significant adverse effects caused by his or her conduct on the achievement or maintenance of a favourable conservation status of protected habitats or species, or the imminent threat of such significant adverse effects. The responsible person is acting negligently if he or she, applying reasonable diligence, could have anticipated and prevented significant adverse effects caused by his or her conduct on the achievement or maintenance of a favourable conservation status of protected habitats or species, or the imminent threat of such significant adverse effects (BVerwG, judgment of 21 September 2017, see above, para. 23).

48 When assessing whether a responsible person is at fault, the lawfulness of his or her conduct and the scope of the legalising effect of an authorisation are of decisive importance. Namely, a responsible person who relies on an authorisation and thus is worthy of protection will usually not be acting negligently when carrying out an activity that is covered by the legalising effect of an authorisation (BVerwG, judgment of 21 September 2017, see above, para. 27).

49 However, the court responsible for finding the facts has up to now not been able to determine whether an authorisation was granted for the operation of the sluice and pumping station by the summoned third party, and, should this be the case, the scope of the legalising effect which this authorisation had, at least originally. A need for further factual clarification may continue to exist here. With regard to legal aspects, it will be necessary to clarify whether a legalising effect continues to apply or whether it ceased to apply due to a dynamic operator's duty of the summoned third party as the body responsible for the tasks under public law which the Higher Administrative Court assumed to exist - and which may have its foundation in the law of the federal state - and whether, irrespective of this, a legitimate expectation of the summoned third party in the continued existence of the legalising effect of an authorisation granted was worthy of protection

50 Should it not be determined that a legitimate expectation in the legalising effect of a granted authorisation existed and was worthy of protection, it must further be investigated in relation to the issue of whether the activity by the summoned third party that caused the damage could have been prevented, whether the obligation of the summoned third party under federal state law to maintain a body of water, and/or its status as a body responsible for a public law task as a dyke and sluice association, may otherwise result in the conclusion that the Adamsiel sluice and pumping station must be operated in the manner practised previously. The Higher Administrative Court is responsible for the more detailed determination of the obligations that may insofar be incumbent on the summoned third party under the law of the federal state.

51 Finally, as has been shown above, the summoned third party was at fault only if significant adverse effects were foreseeable. Insofar, the damage as such caused by its own conduct as well as the significance of this damage must have been foreseeable. This includes that the summoned third party was able to perceive, apart from the damage to the black tern species as such and the fact that this damage was caused by its conduct, that the operation of the sluice and pumping station - insofar as this is found to be the case under objective-legal aspects - did not comply with normal management within the meaning of section 19 (5) second sentence no. 2 BNatSchG. Insofar, further clarification of facts may also be necessary.

52 (...)

53 II. The claimant's cross-appeal on points of law is admissible and well-founded. Insofar as the judgment obliges the defendant "to decide upon necessary damage limitation and remedial measures [...]", it also breaches federal law. Insofar, the judgment also does not prove to be correct for other reasons (section 144 (4) VwGO). A final decision on the action is not possible on the basis of the factual findings available to the Court. Also with regard to the cross-appeal on points of law by the claimant, the case must be referred back to the Higher Administrative Court for a further hearing and decision (section 144 (3) first sentence no. 2 VwGO).

54 The claimant's cross-appeal on points of law is admissible. (...)

55 The cross-appeal on points of law is well-founded. The claimant's complaints as to substantive law cannot succeed. However, its procedural complaint is well-founded.

56 a) The claimant's complaint that it was encumbered - in breach of federal law - with a substantive burden of proof regarding the occurrence of an environmental damage caused by the dredging activities on 20 June 2007, is unfounded. At least, the question as to the substantive burden of proof for the occurrence of an environmental damage was not decisive for the decision by the Higher Administrative Court. Rather, the Court fundamentally based its decision on the argument that, at the relevant time of the last oral hearing before the court responsible for finding the facts, a continuing damage was not apparent. With this, the Higher Administrative Court, without a breach of the law, bases its decision on the fact that, according to the Environmental Damage Act, the damage limitation and remedial measures requested by the claimant require, substantively and by definition, that a damaging situation continues to exist.

57 b) In the context of the imposition of obligations on the summoned third party by the authority, the Higher Administrative Court, contrary to the claimant's opinion and without a breach of the law, assumed that the defendant had discretion to select among several responsible persons. The decisive aspects in this context are reasons of proportionality and effectiveness of the measures to be taken. The principle of proportionality, also recognised as a general legal principle under EU law, may in particular be an argument against holding liable all contributing persons to take damage limitation and remedial measures under the Environmental Damage Act if the contributions of these persons to causing the damage differ. Should it, for instance, be found with regard to factual aspects that a responsible person only made a subordinate contribution to a significant damage, it would meet with concerns to hold such person liable for a full remediation if several other contributing persons have been identified (...). Reasons of effectiveness of damage prevention and remediation may also be an argument in favour of imposing obligations upon (only) one specific responsible person who has the required material, human and financial resources. Otherwise, the provision in section 9 (2) USchadG on the internal equalisation of costs among several responsible persons requires different means of holding persons liable to carry out damage limitation and remedial measures. Based on this, it is compatible with the law that is subject to an appeal on points of law when the Higher Administrative Court holds that, in view of the identification of several persons causing the damage, the claimant does not have a binding claim for the defendant to take action against the summoned third party.

58 c) However, under procedural aspects, the judgment by the Higher Administrative Court does not comply with the prohibition for the court to go beyond what is requested in the action, provided for in section 88 VwGO. Against the background of the provision in section 7 (2) no. 3 USchadG - and clearly in line with the wording of said provision - the claimant had requested that the defendant be obligated to order the summoned third party to take the necessary damage limitation and remedial measures. However, the Higher Administrative Court ordered the defendant to "decide on the necessary damage limitation and remedial measures [...]." With this, the Higher Administrative Court went beyond what was requested in the action, where the selection of the measures to be taken was intended to (initially) be left to the summoned third party. This petition by the claimant also complies with section 8 (1) USchadG, according to which the responsible person shall be obligated to identify, in accordance with the special regulations, the necessary remedial measures and to submit them to the competent authority for approval, unless the competent authority has taken the necessary remedial measures. Deviating from this, the Higher Administrative Court decided on a claim for a decision by the defendant on necessary damage limitation and remedial measures, i.e. on a claim for determination by the defendant of the measures to be taken by the summoned third party. It is true that the operative part of the contested judgment is inconclusive in this respect. However, the reasons of the decision show that the Higher Administrative Court assumed that the defendant had discretion also with regard to the contents of the specific measures to be taken, and therefore partially dismissed the action.