European Court of Justice strengthens access to German courts
In a judgment issued today (12 May 2011), the European Court of Justice (ECJ) has given environmental protection organisations wider access to justice. According to the ruling, the German Law on supplementary provisions governing actions in environmental matters under Directive 2003/35/EC (Umwelt-Rechtsbehelfsgesetz - UmwRG) of December 2006, which entitles recognized environmental protection organisations to a right of access to the courts, does not fully implement the provisions of European law. Germany now has to adapt the UmwRG accordingly. Until the amendment enters into force, recognized environmental protection organisations can directly invoke European law to bring an action before the courts.
Federal Environment Minister Norbert Röttgen welcomed the legal clarity that today’s judgment provides: "It is more and more evident that public and NGO participation in large-scale infrastructure projects from an early stage ultimately improves acceptance and chances of implementation. We should keep that in mind when implementing the judgment."
According to the European Court of Justice, Germany unlawfully restricts environmental protection organisations’ access to justice. Up to now, recognized environmental protection organisations may only bring actions against the infringement of environmental law provisions in cases which would also entitle citizens to go to court (so-called "subjective rights"). Hence, no legal remedy is available today when provisions have been infringed that protect the environment itself, as is the case with preventive provisions in clean air legislation and with most water protection legislation. According to the European Court of Justice however, European law calls for a wider access to justice in environmental matters. According to the judgment, environmental protection organisations must have at least the right to rely on all environmental provisions based on European law that are relevant to the authorisation of a project.
The case had been referred to the European Court of Justice by the Oberverwaltungsgericht (Higher Administrative Court) of North Rhine-Westphalia. Proceedings initiated by the North Rhine-Westphalian branch of BUND (Friends of the Earth, Germany) for annulment of the authorisation granted for the construction of a coal-fired power station in Lünen are pending before that court.