Meeting Beaulieu-sur-Mer 11-12 March 2005 - Germany

I. Direct access of non profit-making organisations to administrative judge

1. + 2). Which organizations can initiate a procedure ? Which provisions provide for such possibility ?

a) In Germany the key provisions for an access to the administrative court are Art. 19 par. 4 of the Constitution and Art. 42 par. 2 of the Code of Administrative Procedure (Verwaltungsgerichtsordnung). According to these norms the plaintiff – individual or organization – is principally held to allege the violation of own rights, otherwise the legal action is not admissible/lawful. An “extra” right of action for organizations may also not be derived of Art. 9 of the German Constitution (Grundgesetz) which contains the freedom of forming associations/coalitions, as due to the jurisdiction of the German Constitutional Court (Bundesverfassungsgericht) such a right of action does not touch the core of liberty of association. 
Other than constitutional or legal provisions do rarely exist in Germany. Governmental regulations or case law do not contain special procedural rules for the access of organizations to the administrative judge. Individual administrative acts may be the legally foreseen condition under which ecological organizations may initiate a procedure (see item 7).
Within this framework all kinds of organizations (ecological associations, trade unions, political parties and employers syndicates) can initiate a procedure, unless they claim the violation of own rights. F. ex. trade unions have the right of action within the range of collective labour law (see Art. 9 par. 3 of the Constitution and Art. 9 of the Law on collective agreements (Tarifvertragsgesetz)) which is matter of specialized labour courts (see item 8.). 
On the other hand, claims of political parties may often be brought before the administrative courts, f. ex. if the party alleges a violation of the right of using municipal facilities like town halls in pre-electoral periods or the neglection of the rights of its parliamentary group in the municipal council. Moreover, the municipality laws of the federal states (Bundesländer) contain special rights for municipal initiatives of citizens (Bürgerinitative) which may be pursued in an administrative procedure.

b) Exceptions of the necessity to put forward the violation of organizations’ own rights is only foreseen by special legal provisions for which Art. 42 par. 2 Code of Administrative Procedure contains an opening clause (“…as far as there is no other legal provision.”).
In the field of environmental protection most of the state legislators (Landesgesetzgeber) have traditionally implemented special rights of actions for those associations being acknowledged by the federal ministry of environment, nature protection and nuclear security. Due to Art. 12 b of the Code of Landscape of North-Rhine-Westfalia (Landschaftsgesetz NRW) these associations do not have to reason with the violation of own, but collective rights, if the action is aimed against the dispensation of nature-protective prohibitions, and the association claims only the violation or neglection of nature protective rulings. The federal legislator has released similar provisions in 2002 (see Art. 61 of the (federal) Code of Nature Protection (Bundesnaturschutzgesetz)) (see details further under item 7).

Another exception is given in the field of the rights of handicapped persons. According to Art. 13 of the (federal) Law on Equal Access of Handicapped People to Public Facilities (Bundesbehindertengleichstellungsgesetz) of 2001 and Art. 63 Code of Social Law IX (Sozialgesetzbuch Teil IX ) acknowledged organizations have the right to initiate a procedure for its members. Due to Art. 6 of the Law on Equal Access of Handicapped People to Public Facilities of North-Rhine-Westfalia (Behindertengleichstellungsgesetz NRW) the access to court is enlarged in the fields of prejudicial treatment and the violation of building regulations concerning the access of handicapped people to public buildings.

3. What types of procedure can they initiate ?

As far as organizations’ own rights are concerned they have generally the same procedural rights as an individual: Quashing of general statutory rules is principally unlawful, since administrative courts are not authorized to quash or modify abstract regulations. An exception is made by Art. 47 par. 1 Code of Administrative Procedure, according to which individuals – and NGOs – can claim on the one hand for the invalidity of a regulation in the field of building law, especially development plans (Bebauungsplan) and on the other hand for the nullity of regulations subordinate to state law.

Quashing and – as a minus – modification of individual administrative acts is for individuals and NGOs given within the range of Art. 42 par. 2 Code of Administrative Procedure. As far as NGOs might put forward collective interests (see items 1. b) and 7.) they may e.g. – in the field of nature protection - appeal against individually given exceptions from provisions laid down for nature protected areas and against project approval rulings touching upon nature and landscape (Art. 61 par. 1 Code of Nature Protection).

A compensation may not be reached before the administrative judge for moral wrong. This kind of compensation for unlawful acts would not be familiar with German law. The individual – and NGO – is principally held to appeal against the act itself within the frame of Art. 42 par. 2 Code of Administrative Procedure. However basically there is the possibility to reach a compensation for material loss, but this is part of the civil branch of the judiciary.

4. What kinds of interests can they put forward ?

Of course, NGOs have a direct access to administrative court if the own interest of the organisation is concerned (Art. 42 par. 2 Code of Administrative Procedure), i.e. “egoistic” organization plaints – meaning that an organization pursues its own rights or the rights of its members.

In Art. 63 Code of Social Law IX it is laid down that an organisation whose statutes provides the representation of handicapped people has the right of action in cases of the violation of provisions of the mentioned Code provided that the handicapped individual declares his consent and the organisation may not be involved in the case.
On the other hand, “altruistic” claims are provided, where interests of the public or non-members are alleged by the organization. In the field of environmental law an organisation is able to represent a collective interest. The conditions are laid down in Art. 61 (federal) Code of Nature Protection and in the laws of the Bundesländer (e.g. Art. 12 b Landschaftsgesetz NRW) concerning environmental matters.

But apart from these legal exceptions there is no general possibility for NGOs to put forward collective interests.

5. In which fields?

a) In the following fields there is a possibility for an access of NGOs to an administrative court in order to review the correspondence of an executive act with both formal and material regulations:
 Protection of nature (Art. 61 Code of Nature Protection)
 Equality of handicapped people (Art. 13 Law on Equal Access of Handicapped People to Public Facilities; Art. 63 Code of Social Law IX)

Apart from these two major fields there are some less important laws that provide an access of NGOs to the administrative court (e.g. Art. 25, 28 of the Law concerning the Representation of Personnel within Federal Authorities (Bundespersonalvertretungsgesetz)

b) However, in other fields the administrative court does not control, if the administrative act is in correspondence with material regulations, although basically there is a possibility for NGOs to initiate a procedure. In these cases, there exist some formal provisions that make sure, that the public is being informed and can bring forward arguments in favour or against a plan or an administrative act. In these cases an NGO can claim (like any other person), that these provisions have been violated. Such procedures only lead to a quashing of the executive act in question, if the violation of the formal right of participation has had an effect on the outcome of the administrative procedure.

This is in the fields of
 construction
 traffic
 environment

where there are regulations that make sure that the public can take part.

c) Because of the European Community’s Directive on public participation (2003/35/EC) the German federal government proposed on February 21th 2005 the draft of a federal law concerning supplementary regulations about legal remedies in environmental matters. In case this draft becomes law there will be a possibility for NGOs to have revised all executive acts where a participation of the public is mandatory due to the possible effects on the environment. In these cases NGOs will be able to have controlled formal and material regulations without the necessity to claim a violation of individual rights. 
This draft will effect mainly the fields mentioned above under b), such as the planning of traffic routes or the licensing of plants and facilities potentially hazardous to the environment.

6. How are criterias of standing laid down?

a) The criterias of standing for procedures based on the Federal Code of Nature Protection (Bundesnaturschutzgesetz) and the Law on equal Access of handicapped People to public Facilities (Behindertengleichstellungsgesetz) are laid down in these two laws. Both require an authorization of the organization by the federal government or the government of a federal state.

b) In case the draft of a federal law concerning supplementary regulations about legal remedies in environmental matters mentioned above is put into force, it will no longer be necessary for associations to have an authorization by the federal government or a state government. The draft does not require this any more. The reason for this is that the draft aims to enable also organizations from other states to initiate procedures in front of administrative courts. The requirement of previous authorization is seen as an obstacle to that aim.

7. What kind of criterias?

a) In the two fields of nature protection (Art. 58 ff. Federal Code of Nature Protection) and equality of handicapped people (Art. 13 of the Law on equal Access of handicapped People to public Facilities) it is required, that NGOs are authorized by federal authorities or authorities of the states. The criterias for this authorisation are mostly the same.
 The purpose of the organization conforms to the purposes of the respective law
 It furthers this cause not only temporarily and its field of activity is not only limited to one federal state
 The organization exists for already 3 years and has been working on the purpose mentioned above during that time
 It ensures that it will fulfil its purposes regularly in the future
 It pursues purposes of common interest (as recognised by tax law)

Additionally it is necessary in case of the Federal Code of Nature Protection, that every person that wants to enter the organization is allowed to do so.
An organization that has been authorized can only bring a case to court, if it’s concerned within its purpose according to the statutes by the administrative act. Moreover, it must allege that specific norms concerning nature protection or the equality of handicapped people have been violated.
In case of the Code of Nature Protection it must have put forward its arguments during the administrative procedure that led to that act. In case it had the chance to put forward arguments and didn’t do so, it can’t be heard with these any more before the administrative court.
As far as the field of equality of handicapped people is concerned, if the handicapped person could have gone to court himself/herself the association can only do so if the case is of general concern, in particular if there are many similar cases.
In case these requirements are fulfilled it is not necessary in order to initiate a procedure, that there is a violation of the associations own proper rights. Neither is it necessary in order to win: the administrative act is quashed by the administrative court if it’s not in correspondence with the relevant formal and material regulations. In so far it is an exception from the basic principle laid down in Art. 19 par. 4 of the German Constitution (Grundgesetz).

b) Apart from the possibility to initiate a procedure as mentioned above, Art. 13 of the Law on equal Access of handicapped People to public Facilities and Art. 63 Code of Social Law IX allow organizations that represent handicapped people according to their statutes to bring the case of a handicapped person, whose rights based on these laws have been violated, to court. The handicapped person must agree to this. In that case the organization is leading the procedure in its own name and not only as authorized representative of the handicapped person. This is an exceptional case in German procedural law (so-called Prozessstandschaft).

c) The draft of a federal law concerning supplementary regulations about legal remedies in environmental matters of February 21st 2005 provides the following criterias of standing:
 The association furthers mainly and not only temporarily the aim of environmental conservation
 It exists for 3 years and has worked as mentioned above during that time
 It is built up in a way that ensures the pursuit of its statutory aims
 It pursues common interests as recognised by tax law
 Everybody willing to enter the association can do so.

There is no formal authorization by state authorities needed, these requirements are to be checked by the administrative court. However, there is a legal assumption that they are fulfilled if the association has legally brought a case to court according to this law within the last 3 years.

Moreover it must 
 claim that the administrative act is in contradiction with environmental norms 
 be concerned within its purpose according to the statutes by the administrative act 
 have put forward its arguments during the administrative procedure that led to that act. In case it had the chance to put forward arguments and didn’t do so, it can’t be heard with these any more before the administrative court.

8. General comparative survey and statistics

8.1 Comparative access of NGO’s and individuals to administrative justice

There is no difference. NGO’s and individuals have the same right of access to court; as above mentioned the legal requirements are laid down in Art. 42 par. 2 VwGO.

8.2 Comparative access of NGO’s to administrative justice and to other branches of the judiciary

German law provides some other fields of jurisdiction initiated by NGO’s. There is a direct access in the field of consumers’ protection, the law on competition and labour law. E.g. the cases may concern unfair advertising practice and unfair competition [Law against unfair Competition (Gesetz gegen den unlauteren Wettbewerb)], the violations of the Law on General Terms and Condition and the violation of consumer rights [Code of Application for an Injunction (Unterlassungsklagegesetz), the violation of the Law on the Obligation to Maintain Fixed Prices for Books (Buchpreisbindungsgesetz) or the Law on Collective Agreements (Tarifvertragsgesetz).
Like in the Code of Protection Nature and in the Code of Social Law IX every law has laid down its own conditions under which a NGO’s have the right to initiate a procedure. Therefore a comparison in general is not possible.

8.3 Number (percentage) of actions being brought by NGO’s in comparison with the whole number of actions being introduced

Unfortunately there are no statistics; the statistics published by the Minister of Justice (Justiz in Zahlen) do not contain the number of actions being brought by NGO’s.

II. Indirect access in order to support an individual person for a previously action being brought by him/her or against him/her

In the case of indirect access the support given by a NGO depends on the way the NGO is asked to participate; i.e. a NGO can be asked by the individual or directly by court.

1.
In order to Art. 67 par. 2 Code of Administrative Procedure every applicant has the right to be – not only legal – represented and that someone appear for the applicant in a court hearing.
A representative can be every person, e.g. NGO’s, who has the capability to argue the case appropriately.

2.
The other way of an indirect access to court is that a NGO is asked by court to participate. The NGO will be asked as an expert or expert witness. In this case the NGO will not become a party of the lawsuit, but will be formally involved. This procedure happens e.g. in cases of asylum seekers, if the judge has not sufficient information about the native country of the alien. 
The rules are laid down in Art. 98 Code of Administrative Procedure in combination with Art. 358 - 444, 450 - 494 Code of Civil Procedure (Zivilprozeßordnung - ZPO)