The Europeanization of the access to justice in environmental matters – the German perspective

1. The Europeanization of the access to justice in environmental matters – the German perspective

2. Overview • Particularitiesofthe German accesstojusticesystem • The influenceof European Law • ReactionstotheSlovak Brown BearandtheAltripdecisions • Europeanizationanditslimits • Perspectives

3. 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, …)

4. German Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz) S. 2 : Legal remedies of associations • 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.

5. 2. The influence of European Law Altrip (c) planet-wissen.de (c) Google maps

6. 3. Reactions to the Slovak Brown Bear case • Courts andscholarssplitup on impactsofthedecision • Federal Administrative Court, judgmentsof September / December 2013: • Article 9 (3) oftheAarhusConventionisnolexspecialis to s. 42 (2) (2) ofthe Code of Administrative Court Procedure • Interpretation ofs. 42 (2) (2) ofthe Code of Administrative Court Procedure in conformitywith EU lawand ECJ jurisprudence • S. 3 oftheGerman Environmental Appeals Act (by analogy)

7. 3. Reactions to the Altrip case • Nojudicialreviewofminorproceduralerrorsdoes not conflictwith EU accesstojusticeprovisions in environmental matters • Reversaloftheburdenofproof: administrationneedstoprovetheimpactof an error on the final decision Amendment of the German Environmental Appeals Act Do EIA provisionsconfer individual (substantive) rights? • noanswer

8. 4. Europeanization and its limits • The individual approachtoaccesstojustice • Individual v. objectiveaccesstojustice ? • ExpandingthescopeofapplicationoftheGerman Environmental Appeals Act ? • Proper functioning of administration v. legitimate administrative decisions? • Do EIA provisionsconfer individual rights? • Currentprevailingopinion in Germany: no • But Art. 9 para 2 oftheAarhusConvantion/Art. 11 para 2 ofthe EIA directive: „wideaccessto Justice“

9. 5. Perspectives (c) totalenvironmental.co.uk