Prof. Dr. Sabine SchlackeInstitute for Environmental and Planning Law

The Europeanization of the access to justice in

environmental matters – the German perspective

Prof. Dr. Sabine Schlacke, IUP

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

20.04.23

Prof. Dr. Sabine Schlacke, IUP

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, …)

20.04.23

Prof. Dr. Sabine Schlacke, IUP

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 its omission violates provisions aiming at environmental protection of relevance for the decision;2. The decision pursuant to section 1 paragraph 1 sentence 1 of this act or its omission affects the association in affairs serving the promotion of environmental protection;

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.

20.04.23

Prof. Dr. Sabine Schlacke, IUP

Altrip

2. The influence of European Law

20.04.23

(c) planet-wissen.de

(c) Google maps

Prof. Dr. Sabine Schlacke, IUP

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)

20.04.23

Prof. Dr. Sabine Schlacke, IUP

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

20.04.23

Prof. Dr. Sabine Schlacke, IUP

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“20.04.23

Prof. Dr. Sabine Schlacke, IUP

5. Perspectives

20.04.23

(c) totalenvironmental.co.uk