Top German Court relies upon the Aarhus Convention to confer standing to an NGO

Legal analysis by Francesca Mascha Klein, Lawyer, Emissions Reduction

Federal Administrative Court of Germany (Bundesverwaltungsgericht) judgement of January 26, 2023 - 10 CN 1.23

Germany’s top administrative court has decided that legal protection may not be restricted to those plans and programs for which there may be an obligation to carry out a strategic environmental assessment. According to the court, the relevant provision in German law may not be applied because it conflicts with EU environmental law as well as the Aarhus Convention (AC) and the Charter of Fundamental Rights of the European Union (CFR). For decision-making bodies, this means they must take international and EU environmental law into account and disapply national law that prevents  legal protection in the case of a potential violation.

The judgment

The environmental NGO “BUND Naturschutz” had filed a claim against a Bavarian ordinance designating protected natural areas. With its entry into force, older ordinances which covered a larger area were repealed and the protected area was significantly reduced in size. However, in the first instance the administrative court ruled that the organisation had no legal standing. It based its decision on Section 1 (1) Nr. 4 of the German Environmental Legal Remedies Act (Umweltrechtsbehelfsgesetz – UmwRG) according to which legal standing depends on whether the plan or program must undergo a strategic environmental assessment. The court decided that for the ordinance in question there was no obligation to carry out such an assessment either under EU or German law. Consequently, the court declared the claim inadmissible arguing that the environmental organization lacked legal standing.

Following an appeal by the NGO, this decision was overturned by the Federal Administrative Court in the second instance. It argued that because the ordinance could be in violation of Art. 11 of the Protocol on the Implementation of the Alpine Convention of 1991 relating to Nature Protection and Landscape Conservation, the principle of primacy of EU law comes into play. If a national law is incompatible with EU law, the latter prevails. The Alpine Convention is an agreement concluded by the European Union making it binding for its institutions and Member States and thus part of EU law (Art. 216 TFEU). Furthermore, the court refers to Article 9 (3) AC, whose provisions are part of EU law as well. In conjunction with Article 47 (1) CFR, this obliges the Member States to ensure effective judicial protection of the rights guaranteed by EU law, in particular the provisions of environmental law (see the following judgements Protect, Slovak Bears and DUH).

Section 1 (1) Nr. 4 UmwRG may therefore not be applied because it would otherwise prevent a recognized environmental association from challenging provisions of a landscape protection area ordinance that may violate EU law. The court also stresses that other effective and appropriate legal protection cannot be guaranteed in any other way and the possibility of challenging individual permits issued in accordance with the ordinance in question is not sufficient. The court referred in that regard to the 2017 Aarhus Convention Compliance Committee (ACCC) report to the Meeting of the Parties (para. 39).

Comment

This decision by the Federal Administrative Court is an important milestone in regard to the legal protection of recognized environmental associations under German law. Most importantly, plans and programs that are not subject to a strategic environmental impact assessment can be challenged and claims can be based on violations of international treaties concluded by the EU. The court confirmed that national law restricting the ability of environmental organisation to file legal actions for violations of EU environmental law must be disregarded. This decision finally sets the record straight and removes a major hurdle for legal interventions against ordinances and other plans and programs. Next to landscape ordinances this may also be relevant for plans relating to air quality and climate protection.

This court decision is a wake-up call to Member States to avoid unnecessary restrictions on access to justice and make sure their national provisions align with their EU and international obligations. To ensure legal certainty and the application of legal provision in line with this judgement, Germany must reform the provisions regulating NGO standing (under the Environmental Appeals Act) and remove the current restriction to plans and programs that must undergo a strategic environmental impact assessment. Last year, German ENGOs prepared a shadow law which would remedy this and other issues that follow from narrow scope of this Act.

It is very positive to see that the case law on access to justice for ENGOs is now well enough established for judges to feel confident to set aside national laws without making a preliminary reference to the Court of Justice of the European Union. The judgment is a faithful application of this case law and closely follows the logic of the DUH case (see our analysis in last year’s newsletter). Equally positive is the fact that the court referred to the ACCC’s report on Germany’s compliance. The judgment should serve as an inspiration to judges throughout the EU.