Transcript Umweltrecht Prof. Dr. Sabine Schlacke

The Europeanization of the access to
justice in environmental matters –
the German perspective
Prof. Dr. Sabine Schlacke
Institute for Environmental and Planning Law
Overview
1. Particularities of the German access to justice
system
2. The influence of European Law
3. Reactions to the Slovak Brown Bear and the Altrip
decisions
4. Europeanization and its limits
5. Perspectives
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
1. Particularities of the German access to justice
system
• Individual approach
violation of „individual rights“ required
„Unless otherwise provided by law, the action shall only be
admissible if the plaintiff claims that his/her rights have been violated
by the administrative act or its refusal or omission.“
(s. 42 para. 2 subpara. 2 of the German Code of Administrative Court Procedure)
• Provisions of the German Law on Access to Justice in Environmental
Matters („German Environmental Appeals Act”) as lex specialis (= Unless
otherwise provided by law, …)
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
German Environmental Appeals Act
(Umwelt-Rechtsbehelfsgesetz)
S. 2 : Legal remedies of associations
(1) A national or foreign association recognized pursuant to section 3 of this act can,
without having to claim a violation of own rights, pursue claims under the
Code of Administrative Court Procedure against decisions stated in section 1
paragraph 1 sentence 1 of this act, or their omission, if the association is able to
establish that
1. The decision pursuant to section 1 paragraph 1 sentence 1 of this act or
omission violates provisions aiming at environmental protection
relevance for the decision;
2. The decision pursuant to section 1 paragraph 1 sentence 1 of this act or
omission affects the association in affairs serving the promotion
environmental protection;
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of
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3. It had a right to be consulted in the procedures leading to the decision
pursuant to section 1 paragraph 1 sentence 1 of this act, it raised its concerns
during those procedures, or it was not heard in violation of the laws prevailing.
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
2. The influence of European Law
Altrip
(c) planet-wissen.de
(c) Google maps
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
3. Reactions to the Slovak Brown Bear case
• Courts and scholars split up on impacts of the decision
• Federal Administrative Court, judgments of September /
December 2013:
- Article 9 (3) of the Aarhus Convention is no lex specialis
to s. 42 (2) (2) of the Code of Administrative Court
Procedure
- Interpretation of s. 42 (2) (2) of the Code of Administrative
Court Procedure in conformity with EU law and ECJ
jurisprudence
- S. 3 of the German Environmental Appeals Act (by
analogy)
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
3. Reactions to the Altrip case
• No judicial review of minor procedural errors does not conflict
with EU access to justice provisions in environmental matters
• Reversal of the burden of proof: administration needs to
prove the impact of an error on the final decision
Amendment of the German Environmental Appeals Act
Do EIA provisions confer individual (substantive)
rights?
• no answer
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
4. Europeanization and its limits
• The individual approach to access to justice
• Individual v. objective access to justice ?
• Expanding the scope of application of the German
Environmental Appeals Act ?
• Proper functioning of administration v. legitimate
administrative decisions?
• Do EIA provisions confer individual rights?
• Current prevailing opinion in Germany: no
• But Art. 9 para 2 of the Aarhus Convantion/Art. 11 para 2 of the EIA
directive: „wide access to Justice“
Prof. Dr. Sabine Schlacke, IUP
06.04.2016
5. Perspectives
(c) totalenvironmental.co.uk
Prof. Dr. Sabine Schlacke, IUP
06.04.2016