On 12th May 2011 the European Court of Justice (“ECJ”) issued its Judgment in Bund für Umwelt und Naturschutz Deutschland & anr v Bezierksregierung Arnsberg. This case was stayed and referred on to the ECJ from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen for a preliminary ruling. The case related to an objection that had been made against a planning permit for a coal-fired power station made by an environmental protection organization (Friends of the Earth). The German Court had held that the objection could not be sustained by the environmental organisation due to the fact that they could not show that an individual’s rights had been affected, as required by German law, but merely that their objection was in the public interest (see below section on “German law prior to this Judgment”). The German Court was sceptical as to whether this provision of domestic law was in line with EU law and therefore referred the matter to the ECJ.

European Law Framework:

Article 9 of the Aarhus Convention provides that each party to the convention shall ensure, within its own legal system, that members of the public who have sufficient interest shall have access to a review procedure whereby they can challenge those administrative decisions which affect them.

Directive 85/337 and Directive 2003/35 together repeat that those with a sufficient interest in an administrative decision should be entitled to review of that decision within national law. These Directives further stipulate that non-governmental organisations promoting environmental protection (Article 1(2), Directive 85/337) shall be deemed to have sufficient interest to challenge administrative decisions.

Article 10a of Directive 85/337 states that “sufficient interest” ought to be determined by member states consistently with the objective of giving the public concerned “wide access to justice”.

The EU law principle of equivalence states that any procedural rules governing actions for the safeguarding of rights granted by the EU should not be less favourable than domestic rules for other similar domestic actions.

The EU law principle of effectiveness requires that domestic law must not make it practically impossible or excessively difficult for citizens to exercise rights conferred on them by the EU within the domestic legal framework.

Germany, together with the other Member States of the European Union, is obliged to ensure that the above terms are given full effectiveness within its own legal system.

German law prior to this Judgment:

German law sought to ensure that effectiveness was given to the terms of the above EU law provisions. The general principle in German law is governed by the Umwelt-Rechtsbehelfgesetz from 2006 which states that non-governmental organisations shall be entitled to bring claims challenging administrative decisions if they can show that:-

1.) The decision contravenes legislative provisions designed to protect the 
     environment; and

2.) The decision contravenes rights of individual citizens which may be relevant
     to the provisions.

These criteria served as legal preconditions to the bringing of an administrative action. Therefore whilst the German law provided for protection of the environment as required by European law, it also had to be demonstrated that the rights of individuals had been affected by the administrative decision. The insistence that an individual’s rights must also have been affected was considered by the German Court to be potentially non-compliant with the EU law and was referred to the ECJ.

The ECJ Judgment:

The Court considered that, notwithstanding the legal obligations of the Member States as set out above, the EU law principles of equivalence and effectiveness were of importance.

The ECJ ruled that non-governmental organisations seeking to protect the environment had a right to bring administrative actions seeking the annulment of a decision even if an individual’s rights had not been affected and they were acting solely in the public interest. In this respect it was held that the German system of legal protection for the environment infringes EU law. The ECJ considered that, in any event, the EU law provisions were sufficiently clear and precise to be directly relied upon by citizens in the Member States. Further the Court concluded that it would be contrary to the objective of giving the public concerned “wide access to justice” and contrary to the principle of effectiveness if the German law was allowed to stay as it was.

Finally the court concluded that non-governmental organisations could rely on the fact that the planned action would be “likely to have significant effects on the environment” even if they could not demonstrate that an individual’s rights were affected on the basis that they are entitled to bring actions in the public interest.

Effects of this Judgment in Germany:

Whilst the law in Germany had previously allowed for non-governmental organisations to challenge administrative decisions on the basis of environmental concerns, there had always been an inbuilt restriction, namely that the organisation challenging the decision also had to show that the rights of an individual had been affected in some way together with any environmental concerns.

This Judgment effectively broadens the grounds upon which an administrative action may be brought in Germany. It does not seem to be far-fetched to envisage that there will be a great deal more challenges to those businesses and individuals who have been successful in obtaining planning licenses. In essence therefore this Judgment from the ECJ may serve to “open the floodgates” to a series of challenges from environmental organizations.

This is of course a matter for some concern given that administrative laws should always seek to ensure that decisions are made on the basis of relevant considerations in a timely manner in order that there is a minimum amount of disruption to all those concerned.

It remains to be seen whether there will be a proliferation in the amount of challenges from non-governmental organisations against those holding permits to build. It is hoped that the effects of this Judgment will not be so severe as to serve as a deterrent to business in Germany.

 

A guest contribution by Sehar Ali-Noor LL.B.(Hons)(UCL)