Comments on access to judicial review in environmental matters in Germany

I. Introduction

Under the Code of Administrative Procedure (Verwaltungsgerichtsordnung - VwGO -) in order to obtain judicial review of an administrative action the plaintiff must have legal standing (Klagebefugnis according to Article 42 (2) VwGO). It is not sufficient to show that a factual or legally protected interest is affected. It must be asserted that the law confers upon the plaintiff an individual/subjective public right and that this right may be violated by the administrative action or inaction (Schutznormtheorie). An individual/subjective public right is the legal power to ask the State to do something or to desist from doing something. The reason for that restricted access to judicial review is the fear of an actio pupularis which is regarded as not suited for the system of administrative jurisdiction. If the plaintiff cannot claim this kind of violation the appeal is rejected as not admissible, except there are special legal provisions.

The focus on individual rights does not only determine the admissibility of the claim but also the scope of the judicial review. Therefore, the court checks the lawfulness of the administrative action or inaction only against that part of the relevant administrative law to which the individual right extends.

In Germany the Law on Nature Protection does not explicitly establish individual/subjective public rights. The Law on Nature Protection is addressed to public agencies and orders them to do this and desist from that. In practice, there is only one exception: If the challenged decision allows for expropriation and the non-governmental association (NGO) dedicated to protect wild life, flaura and fauna acquires the property which is endangered by expropriation, the
NGO can base its claim on the right of property guaranteed in Article 14 of the German Constitution (Grundgesetz). But for example in the field of pollution prevention such a possibility does not exist.

II. The development of the legislation on Access of NGOs to Administrative Justice in Environmental Matters

1.
According to the new Article 74 (1) (29) Grundgesetz the Law on Nature Protection falls within the shared, i.e. “competing”, competence of the federal states (Länder) and the Federation. This means, that the Länder have the right to legislate as long and in so far as the Federal State has not made use of its right to legislate on the matter. Some of the Länder have conferred standing to recognised associations, in their own Nature Protection Acts, others have not. This new competing competence could facilitate the creation of a Federal Code on Environmental Law (Umweltgesetzbuch) and inter alia the introduction of a general standing of non-governmental associations (Vereinsklagerecht). However, at this point, the realisation of a Federal Code on Environmental seems far away.

2.
An early step to an effective right to legal remedies for NGOs has been the amendment of Article 61 of the Federal Nature Protection Act (Bundes¬natur¬schutzgesetz), which entered into force in 2002 and which confers – under certain conditions – standing to NGOs. But there are many limitations. Firstly, the NGO must be officially recognised. Secondly, judicial action may only be logded against
exemptions from particular prohibitions and orders (e.g. Natura 2000 Regulations) or
decisions of plan establishment procedures (Planfeststellungsbeschlüsse) concerning greater projects of infrastructure.

Alltogether, claims can only be based on the violation of legislation related to nature protection in the strictest sense.

3.
The implementation of the Aarhus Convention has been coordinated with the transposition of the Directive 2003/35/EC. The Access to Judicial Review has been dealt with in the Umwelt-Rechtsbehelfsgesetz, which entered into force in December 2006. It grants legal standing to recognised NGOs. However, this is the case only if the action is directed against projects subject to an “environmental impact assessment” and integrated pollution prevention and control authorisations. Furthermore, there is another significant restriction: The claim must be based on provisions establishing rights of individuals. In the German legal literature this restriction has been heavily criticised as not being compatible with the Aarhus Convention. However, in the end that means, that if the action is not covered by Article 61 Federal Nature Protection Act, the NGOs cannot bring an action, even if the principle to take precautionary measures against pollution is at stake (Vorsorgegrundsatz).

III. The judicial procedure


There are no special provisions on legal remedies for NGOs. An administrative action has generally suspensive effect according to Article 80 VwGO. But the public agency can order the immediate execution of its decision. This order can in turn be challenged in a separate judicial procedure where the administrative court can grant interim relief. The Article 68 VwGO provides for a general preliminary administrative appeal, but the Länder have the right to deviate from this rule. For example the Free State of Bavaria nearly completely abolished the right to administrative appeal. In the first instance the plaintiff must not be represented by a lawyer. Legal aid for associations is strictly limited. The losing party pays both the court fees and the expenses of the winning (private) party. The State normally does not demand party expenses.

IV. Conclusions

Under the German law individuals can only bring an action if they base their claim on the violation of individual/subjective public rights. The law on access of NGOs to legal remedies in environmental matters is rather fragmented and difficult to survey. The right to legal remedies for NGOs differs from case to case. To summarise, the legal provisions must be regarded as insufficient. Acting according to the spirit of the Aarhus Convention would mean to abandon this restrictive regulation and provide for general legal standing of NGOs.