Federal Administrative Court ends legal dispute over S 3 facility near the University of Veterinary Medicine Hannover

The Level 3 genetic engineering facility is to be built in a special "Science and Research" area for the development of animal vaccines, in the immediate vicinity of the Hannover Veterinary School. Residents whose properties are approximately 500 to 600 meters from the site filed a court appeal against this plan. The Higher Administrative Court rejected their petition as unfounded. The Federal Administrative Court (judgment of April 19, 2012 – 4 CN 3/11) has now confirmed this finding.
The highest administrative court also held that when using the negative pressure and filter technology required for safety level 3 work according to Annexes V and III, the proportion of pathogens that can escape airborne is extremely low, with well over 99.99% being captured by the filters. Local residents, however, argued that the facility had been presented as emission-free during the proceedings. The court also rejected the argument that such an S3 facility could not be built in the immediate vicinity of residential buildings, as this would violate the separation principle under Section 50 of the Federal Immission Control Act. The separation principle does not constitute a mandatory requirement. It is a balancing directive that can be overridden by other significant concerns during the planning process. In this regard, the defendant's balancing of interests, which had focused on the associated scientific and economic synergy effect due to the proximity to the Veterinary University, cannot be criticized. Scientific exchange is not limited to communication using modern technical means, but also requires personal exchange, particularly when laboratory work is the subject of research. The fact that the proximity to the Veterinary School promotes scientific exchange is also demonstrated by the comment of an expert that research institutes of this type are frequently located elsewhere on the university campus. Furthermore, the planner has ruled out, through written regulations, work with pathogens of genetic safety level 4, which are dangerous to humans, in the planning area. The requirements, taking into account the safety measures related to the respective safety levels pursuant to Section 2 Paragraph 2 Sentence 2 of the GenTSV, represent the standard case. They can be adjusted both upwards and downwards in accordance with Section 2 Paragraph 2 Sentence 3 of the GenTSV with regard to any safety-relevant peculiarities. The spatial location in which the work is carried out is particularly safety-relevant here. If the planner is permitted to plan the location of such a facility in close proximity to protected residential areas by citing the effectiveness of genetic engineering law, the competent authority must take this circumstance into account when deciding on deviations from the standard case. The last sentence of the decision is a clear indication to the licensing authorities for genetic engineering facilities that they must also consider the interests of local residents when deciding on the approval of the facility.
The decision is also to be welcomed overall because the highest administrative court makes it clear that it trusts in the – literally – “efficiency of genetic engineering law”.

This publication can also be found on the website of the law firm Dr. Kauch .