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Contents. Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations PDF

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The German Advisory Council on the Environment 1 Contents Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations The Situation
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The German Advisory Council on the Environment 1 Contents Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations The Situation Legal Standing for NGOs as a Remedy for Enforcement Shortcomings: Outcomes of Empirical Research Shortcomings in the Enforcement of (European) Environmental Law Practical Experience with Legal Standing for NGOs The Relevance of the Judiciary: Equality for Public Interests Legal Standing Under the Aarhus Convention Legal Protection Against Violation of Access to Information Rights Legal Protection Against Violation of Public Participation Rights Legal Protection Against Violations of Other National Environmental Laws The EU s Path to Representative Action in Environmental Law Access to Information and Access to Justice: Directive 2003/4/EC Public Participation and Access to Justice: Directive 2003/35/EC Access to Justice in Environmental Matters: Proposal for a Directive EU Competence to Enact Provisions on Access to Justice in Environmental Matters 14 6 Summary and Recommendations Annex: Extract from the Aarhus Convention Literature 2 Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations The German Advisory Council on the Environment 3 Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations 1 The Situation 1. For some thirty years or more, there have been calls in Germany for non-governmental organisations (NGOs) to be given legal standing at federal level to ensure correct application and enforcement of environmental law. 1 The German Advisory Council on the Environment (SRU) has long advocated such legal standing for NGOs, 2 emphasising in particular that the right to bring a representative action in no way constitutes privileged treatment of environmental interests. Rather, it redresses the inequalities of a legal protection system that places the interests of environment users above those of environment protection. 3 The Council maintains its position and sees representative action as a much-needed form of legal standing for public interests that have up to now been unenforceable before the courts. 2. When the Federal Nature Conservation Act (BNatschG) was drawn up in 1976, calls for the introduction at federal level of legal standing for NGOs were rejected. A range of subsequent legislative initiatives 4 have suffered a similar fate. Germany s Länder (states) with the exception of Baden-Württemberg, Bavaria and Mecklenburg West Pomerania all grant representative action rights to a greater or lesser degree in their respective nature conservation legislation. 5 At federal level, however, it was only in 2002 and with opposition from Baden-Württemberg, Bavaria, Hamburg, Hesse, Saarland, Saxony and Thuringia 6 that para. 61 of the Federal Nature Conservation Act was introduced to provide limited rights to take representative action in environmental matters. To date, there is no further provision for environmental protection and nature conservation interests to be defended before the courts by bringing an altruistic representative action entirely divorced from individual interests. 3. As laid down by the Aarhus Convention (UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters), Germany is now required by international law to make it significantly easier for NGOs to legally challenge environmental decisions. Corresponding provisions under European law will step up the pressure to ensure this requirement is implemented. The first two pillars (Access to Information and Public Participation) of the Aarhus Convention have already been transposed into binding EU law with the enactment of EU Directive (2003/4/EEC) regarding public access to environmental information and EU Directive (2003/35/EEC) regarding public participation. Both directives contain, moreover, provisions on access to justice for violations of access to information law, legal breaches in proceedings involving environmental impact assessments (EIAs) and issuance of permits for industrial installations. This constitutes partial implementation of access to justice in environmental matters, which is the third pillar of the Aarhus Convention. Further implementation of this third pillar is planned 1 Rehbinder et al., 1972; more recently Pernice and Rodenhoff, 2004, p. 150; Calliess, 2003; Schmidt and Zschiesche, 2003, p. 22; Rehbinder, 2001, p. 366; Jarass, 2000, p. 952; Wegener, SRU, 2004, Para. 201; 2002, Para. 181; 1996, Para. 705; 1994, Para. 464; 1978, Para et seq.; 1974, Para. 650 et seq. 3 SRU, 1996, Para For example: Bundestagsdrucksache 10/2653 (SPD), 10/1794, 11/1153, 13/9323 (Die Grünen or Bündnis 90/Grüne). With the demise of the Environmental Code (UGB) in 1999, the introduction of representative action rights into federal legislation in response to a recommendation by the Independent Commission of Experts failed once again (see BMU, 1998). 5 SRU, 2004, Para Bundesratsdrucksache 65/1/02. 4 Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations with the Commission s proposal for a directive on access to justice in environmental matters, which entails expanding judicial review procedures to all provisions contained in European environmental law Some of the main opposition to the Commission s proposed directive comes from Germany, where scepticism towards representative action abounds. 8 While the former Conservative- Liberal coalition government refused to sign the Aarhus Convention even after having applied considerable pressure to influence its wording, the present Red-Green coalition government has at least seen fit to make Germany a signatory state to this international agreement. The introduction under para. 61 of the Federal Nature Conservation Act of limited legal standing for NGOs at federal level signals some willing to follow the international trend. Nevertheless, Germany not just as a member of the former EU- 15, but of the expanded EU-25 9 and when compared to the US 10 lags behind when it comes to the legal standing of public interests in matters of environment protection and nature conservation and their defence before the courts. Furthermore, and in obvious contrast to the trends at European and international level, some of Germany s federal Länder presently restrict the right to take representative action to nature conservation law at Länder level. 11 This is a situation that is no longer acceptable in the light of the enforcement shortcomings in environmental legislation, practical experience with legal standing for NGOs and the need to grant legal standing to allow a level playing field where public interests are concerned. The requirements of both the Aarhus Convention and EU legislation are thus to be welcomed without reserve. 2 Legal Standing for NGOs as a Remedy for Enforcement Shortcomings: Outcomes of Empirical Research 2.1 Shortcomings in the Enforcement of (European) Environmental Law 5. In justifying its proposal for a directive on access to justice in environmental matters, 12 the EU Commission rightly points to the need for judicial controls to reduce shortcomings in the implementation of EU environmental law. Enforcement shortcomings of considerable scope are especially evident in environment protection and nature conservation law. This is confirmed in the EU Commission s annual surveys on implementation and enforcement of EU environmental law, 13 which report on the many environmentrelated treaty violation proceedings initiated by the EU Commission against Member States and which it has successfully taken before the European Court of Justice (ECJ). The reports also contain implementation statistics compiled by the EU Commission, in which Germany ranks in the lower mid-field EU Commission, See Krämer, 2004; Schrader, 2004; SRU, 2002, Para Dross, 2004, p. 155; de Sadeleer et al., 2003, p. 21 et seq.; Jendroska, 2002; SRU, 2002, Para. 155; see also Schoch, 1999, p. 465; Woehrling, 1998, p On extensive public interest and civil action rights in the US, see Blume 1999; Kokott and Lee, 1998, p. 235 et seq. 11 See SRU, 2004, Para EU Commission, See EU Commission, 2002; 2003a, See the respective annexes to the referenced EU Commission annual surveys and also EU Commission, 2003b. The German Advisory Council on the Environment 5 6. One of the main causes of the shortcomings in enforcement is the lack of enforcement controls in environmental law. 15 While under competition law, EU citizens as decreed by the ECJ have had the right since the 1960s to make direct use of Article 28 EC Treaty in matters concerning realisation of the internal market and may take any violations before the ECJ, 16 suspected violations of environment protection provisions do not necessarily give rise to a similar right to file a claim with the court. Although ECJ decisions on EU environmental law would appear to lean towards greater recognition of subjective rights, 17 this does not alter the fact that in environment protection and nature conservation there are often no individual entities who are able to act in their own interests and defend their personal rights and so take action before the courts to demand enforcement. 18, 19 Treaty violation proceedings initiated by the EU Commission and taken before the ECJ under Article 211 and 226 EC Treaty are of course an important resource in enforcing implementation of EU law. But they are not sufficient to effectively combat and ensure sustained remedy of any shortcomings in enforcement in the various Member States. As an instrument of centralised control, they have inherent structural weaknesses. 20 EU law is for this reason based on the concept of decentralised enforcement and control. 21 In competition law, the competitor s right to take legal action has proven to be a sound instrument of such decentralised control. 22 Similar effects can be achieved with legal standing for NGOs in environmental law, as shown by the practical experience gained in a number of countries. 2.2 Practical Experience with Legal Standing for NGOs 7. Where environmental matters are concerned, legal standing for NGOs can serve as a decentralised instrument of control and make a significant contribution to eliminating the shortcomings in enforcement. Practical experience with legal standing for NGOs at international level and at Länder (state) level in Germany has been overwhelmingly positive. Representative actions have proven to be significantly more successful than the average number of cases taken before the judiciary. Thus, the anticipated flood of claims, over-burdening of the courts and disproportionate blocking or delay of important (infrastructure) projects caused by public interest groups making unjustified use of legal protection provisions for the sake of sheer obstructiveness must be seen as empirically disproven. 8. The German Advisory Council on the Environment s Environmental Report 2002 contained the results of a study conducted on representative actions at Länder level during the period 1997 to The study showed that 28.4 per cent of representative actions brought by officially 15 Dette, 2004, p. 5; EU Commission, 2003, p. 3; Krämer, 1996, p. 12 et seq. 16 Krämer, 2004; see also EU Commission, 2003, p See, for example, ECJ Case C-131/88 on groundwater, [1991] ECR I-825, 867; Case C-361/88 on sulphur-dioxide/sulphur particulates, [1991] ECR I-2567, 2601; Case C-59/89 on lead, [1991] ECR I-2607, 2631, see also Sach and Simm, 2003, No. 59; Schoch, 1999, p. 464; Gale, 1997; Wegener, Pernice and Rodenhoff, 2004, p. 150; Krämer, 1996, p. 7 et seq.; Marcrory, 1992, p. 367 et seq. and No Except in the case of noise and air pollution, where individual rights may be enforced where specific thresholds are exceeded. 20 Sach and Simm, 2003, No. 43 et seq.; Epiney and Sollberger, 2002, p. 232; Krämer, 1996, p. 9 et seq.; Winter, 1996, p. 107 et seq. 21 Epiney and Sollberger, 2002, p. 344; Wegener, 1996, p. 150 et seq.; Pernice, 1990, p. 423; see also ECJ Case 26/62 - van Gend & Loos, [1963] ECR Krämer, 2004, 1996, p. 7; Pernice and Rodenhoff, 2004, p SRU, 2002, Para. 156 with reference to Blume et al., 2001. 6 Access to Justice in Environmental Matters: The Crucial Role of Legal Standing for Non-Governmental Organisations recognised environment protection and nature conservation organisations during the period studied were either entirely successful or partially successful. In contrast, statistics for 1998 on the total number of cases brought before the administrative courts showed that only 20 per cent were either fully or partially successful. Omitting the partial successes, only 7.5 per cent of administrative judicial proceedings overall versus some 14.8 per cent of representative actions were successful. Similar findings resulted from a study covering the period 1996 to Cases that were either successful or partially successful at final instance level amounted to 26.4 per cent. 24 Incorporating all decisions alongside those made at final instance level, including those involving injunctive relief, the combined success/partial success rate rises to as much as 30 per cent. 25 The anticipated flood of claims failed to materialise, even in those Länder whose nature conservation legislation contains broad legal standing for NGOs. What the study in fact showed was that if only due to their scarce resources NGOs think very hard before taking legal action Similar results were obtained in a study on Access to Justice in Environmental Matters, 27 a legislative comparison compiled for the EU Commission as part of the consultation process for its proposed directive on access to justice in environmental matters. The study looked at the numbers and outcomes of altruistic representative actions involving environment protection issues over a six-year period ( ) in Belgium, Denmark, England and Wales, France, Germany, Italy and Portugal. Although the types of legal standing for NGOs differed greatly between the various Member States, it is nevertheless possible to draw a number of significant conclusions. 28 In the main, legal standing is granted in all areas of environmental law, with any restriction to specific nature conservation provisions being unique to Germany. Only 115 representative actions were brought before the courts in Germany during the period 1996 to 2001, making up a mere per cent of administrative judicial proceedings overall. 29 Even in cases where the number of representative actions involved a tangible share of environment-related proceedings, such as in France (1197 public interest appeals during the period ) and in the Netherlands (4000 public interest appeals in the same period), there was no evidence of the courts being overburdened. 30 In fact the cost-related risk and the time and effort involved in taking a case to court forced NGOs to demonstrate great caution when exercising their access to justice rights. Once they had decided to take legal action, their decisions were generally well-founded. Although the success rates varied between the eight Member States, environment-related representative actions were extremely successful on the whole. 31 The proportion of (partially) successful representative actions during the period covered by the study amounted to 56.5 per cent in France, between 40 and 50 per cent in the Netherlands, 46 per cent in Portugal, around 39.4 per cent in Belgium, 39 per cent in Great Britain, 34 per cent in Italy and 26.4 per cent in Germany (no reliable statistics were available for Denmark). 10. The situation is similar in Switzerland. In a review published by the Swiss Agency for Envi- 24 Schmidt et al., 2004, p Schmidt et al., 2004, p Schmidt et al., 2004; Blume et al., 2001; see also Seelig and Gündling, 2002, p et seq. 27 De Sadeleer et al., 2003; see also Dross, 2004, p. 154 et seq. 28 Differences exist in particular with regard to the preconditions for access to justice for non-governmental organisations, the degree of judicial control, organisation of the courts and the opportunity for injunctive relief. 29 De Sadeleer et al., 2003, p. 4 et seq. 30 De Sadeleer et al., 2003, p. 3, 5; see also Busson, 2001, p De Sadeleer et al., 2003, p. 6 et seq., 33. The German Advisory Council on the Environment 7 ronment, Forests and Landscape on representative action rights, which Switzerland grants in connection with projects for which an environmental impact assessment is required, the success rate for representative actions taken before the courts covered by the study was 1.5 times higher than the average for administrative judicial proceedings overall and some 3.5 times higher in cases taken before Switzerland s Federal Supreme Court Against this backdrop, it is hardly surprising that the mere existence of the option to exercise (broad) representative action rights has a preventive effect in that it forces public authorities into more consistent enforcement of (national and European) environmental law. 33 The German Advisory Council on the Environment has observed this as being the key impact of legal standing for NGOs, because the potential for environmental interests to be enforced puts pressure on public authorities to give adequate consideration to environmental needs in their decision-making. 34 If (more) appropriate weighting is given to environmental interests when compared with private economic interests and if this allows NGOs the possibility of defending those environmental interests by bringing a representative action before the courts, then the prospect of a judicial review influences administrative decisions right from the outset. A closer look at the causes of the shortcomings in enforcement of environmental law actually highlights a certain imbalance where legal standing is concerned. 3 The Relevance of the Judiciary: Equality for Public Interests 12. In Germany, those who seek to exploit the environment have the right to protect themselves from infringements of their personal liberty, and permit holders, for example, have the right to legally challenge administrative provisions on environment protection. But those who seek to protect the environment are often denied the legal standing to take action based on specific provisions of environmental law. If no impairment of individual rights is established, then under para. 42 (2) of Germany s Federal Code of Administrative Procedure (VwGO) the right to take a claim before the administrative courts is denied. Environment protection standards can only be enforced in the courts if an objective violation of those standards could lead to a legally recognised impairment of individual rights, particularly those involving health and property. Also, while the legislature provides for individual rights to protect people against risk, this does not take in preventive standards contained in environmental law, such as para. 5 (1) No. 2 of the Federal Immissions Control Act (BImSchG). 35 This is also meant to apply in cases where harm to individuals or their property is evident. 36 Environmental law designed to manage the commons thus perpetuates an imbalance in the legal standing of individual users of the commons on the one side and individual protectors of the commons on the other. 37 Essentially, the problem lies in the lack of individual claimants, not just in matters of nature conservation. Though 32 Flückinger et al., 2000, p Dette, 2004, p. 12; European Economic and Social Committee, 2004, Section 3.1; de Sadeleer et al., 2003, p. 12 et seq., 33 et seq.; Schmidt and Zschiesche, 2003; EU Commission, 2002a, p. 6; SRU, 2002, Para. 156; Flückinger et al., 2000, p. 137 et seq., 157 et seq., 165 et seq.; on the preventive effect in promoting enforcement see also Führ et al., 1994; Winkelmann,
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