cuss

Measures on access to justice in environmental
matters(Article 9(3))

Country report for Germany..
This Report has been prepared by Milieu Ltd., under contract to the European Commission, DG
Environment (Study Contract No 07-010401/2006/450607/MAR/A1). Mrs Christine Federlin,
COWI A/S undertook the work on this Task and drafted this report. The views expressed herein
are those of the consultants alone and do not represent the official views of the European
Commission. The report is based on literature research and information gathered from theGerman Federal Environment Ministry and NGOs (UfU e.V., BUND e.V.).
Milieu Ltd (Belgium), 29 rue des Pierres, B-1000 Brussels, tel: 32 2 514 3601; fax 32 2 514
3603; e-mail: e.pozo@milieu.beTable of contents
Executive Summary
1.

Introduction ........................................................................................................... 7

1.1.

Overview of the administrative and judicial structures in Germany ................... 7
1.1.1.Legislative competences in the areas relevant for the study ......................... 7
1.1.2.Administrative system ........................................................................................... 7
1.1.3.Judicial system....................................................................................................... 8
1.2.
Environmental protection within that context ....................................................... 92.

Access to justice in environmental matters .................................................... 11

3.

Assessment of the legal measures for implementing Article 9(3)requirements on access to justice.................................................................... 17

4.

Conclusions......................................................................................................... 18

2.1.
Administrative procedure....................................................................................... 11
2.2.
Judicial procedure .................................................................................................. 122.2.1.
General aspects.............................................................................................. 122.2.2.
Legal standing and participatory status ...................................................... 13
2.2.3.
Possibilities for appeal..................................................................................... 15
2.2.4.
Costs and length of the procedure.............................................................. 16

Bibliography
Annex:

List of compiled national measures implementing the requirementsof Article 9(3) of the Aarhus Convention

Country report for Germany on access to justice in environmental matters

Executive summary
German law does not provide for extensive access to justice in environmental matters.
A priori, German administrative law follows the principle that access to justice is limited tomatters wherein the plaintiff can claim an infringement of his subjective rights. An action
claiming a violation of environmental protection rights in the public interest is therefore notadmissible.
The only exception is for actions that may be brought by acknowledged nature protection
associations (Verbandsklage), as foreseen in the federal Nature Protection Act, and in the nature
protection legislation of the Länder.
These actions are only possible against certain administrative decisions enumerated in the law,however, and subject to certain conditions.
Nevertheless, the German goverment considers Article 9(3) as fully implemented by existing
EU and national legislation.

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Country report for Germany on access to justice in environmental matters

1. Introduction
1.1. Overview of the administrative and judicial structures in Germany
Germany consists of a central federal government and 16 federal states, the Länder, with theirown governmental and administrative structures. The German Constitution, the Basic Law(Grundgesetz), determines which issues fall within federal jurisdiction and which within thejurisdiction of the Länder.
1.1.1. Legislative competences in the areas relevant for the study

In terms of legislative competences, there are areas of exclusive legislative powers at the federal
level and areas of concurrent powers.
The areas relevant for the current study are areas of concurrent powers. In those areas, as a rule,
the Länder may not legislate after the federal government has passed legislation. However, insome areas, the German Basic Law foresees framework competence at the federal level only
and allows the Länder to pass their own legislation.
This is the case, for example, in the nature protection area, but also in the water sector. It is why
there is federal nature protection legislation, the federal Nature Protection Act(Bundesnaturschutzgesetz), and also nature protection legislation at the Länder level.
Outside these areas, environmental legislation is federal legislation and the Länder may notlegislate anymore if and to the extent that the federal level has passed legislation.
Also, all legislation relating to the establishment of the judicial system and legal proceedings isunder the concurrent competence of the federal level and the Länder. The federal level has
passed the Administrative Court Act (Verwaltungsgerichtsordnung) which regulates access tojustice against acts of the administration.
1.1.2. Administrative system

The main role of implementing and enforcing legislation falls upon the Länder, irrespective ofwhether the legislation is federal or Länder legislation.
Different Länder have a different administrative set-up, resulting in variations as to theadministrative level competent for the implementation and enforcement of environmental
legislation.
Typically, the Länder have a three-tiered structure, but in some Länder1 and in two of the three
German “city states” (Berlin, Hamburg) a two-tiered structure prevails. Bremen, the third
German city state, has a one-tiered structure only.
In the three-tiered structure, the upper administrative level consists of the Länder ministries, themedium administrative level of the regional authorities (Regierungspräsidien/,
Bezirksregierungen) and the lower administrative level of county/city administrations

1

Brandenburg, Mecklenburg-Vorpommern, Saarland, Schleswig-Holstein, and Thüringen.

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Country report for Germany on access to justice in environmental matters(Landkreise/kreisfreie Städte). In the two-tiered structure, there is an upper and a lower
administrative level only2.
1.1.3. Judicial system3

The Basic Law gives anyone violated in his or her rights a guarantee of access to justice against
acts of the public administration. It also protects a number of procedural rights at theconsitutional level, such as independence of judges, prohibtion of ad hoc courts, the right to beheard, etc.
Germany has five different branches of jurisdiction which act completely independent of eachother. One of those branches comprises the general administrative courts. The other four
branches are the so-called "ordinary courts" comprising civil and criminal jurisdiction, thelabour courts, the fiscal courts and the social courts. Each branch has its own Federal Court assupreme instance.
Furthermore, the Federal Constitutional Court adjudicates upon constitutional issues and thevalidity of parliamentary laws only.
The general administrative jurisdiction is competent for all kinds of non-constitutional publiclaw matters, including protection of the environment. The administrative courts are strictly
independent from any executive branch of the government.
Administrative court organisation
Regarding the institutional structure for judicial proceedings in administrative matters, thepresent system of administrative jurisdiction in Germany consists of three levels, with 52
administrative tribunals of first instance at the bottom, 16 High Administrative Courts in the
middle and the Federal Administrative Court at the top of the hierarchy.
The tribunals of first instance and the High Administrative Courts are financed, administeredand staffed by the constituent state (Land)) to which they belong. Every Land maintains one
High Court. The number of tribunals of first instance varies according to the size of therespective Land.
A lawsuit normally begins in the administrative tribunals of first instance, unless the respective
legal matter is assigned by law to the High Administrative Courts or to the Federal
Administrative Court.
The High Administrative Courts are mainly courts of appeal ("Berufung"). They re-examine
decisions of the tribunals of first instance as to the facts and to the law.
In contrast to that, the Federal Administrative Court reviews the decisions of the lower courts
only on points of law. The respective proceedings are called “revisions” (“Revision”).
Generally, the actions brought before the Federal Administrative Court are directed against
decisions of the courts of appeal. With the consent of both parties, however, it is also admissible
to bypass the remedy of appeal and to challenge the ruling of a tribunal of first instance directly
before the Federal Administrative Court.

2

E.g.ministries and Landkreise/kreifreie Städte (in the case of the city states) or senate administrations
and burrough administrations (Bezirksämter) in the case of Berlin and Hamburg. In the case of the Land
Bremen, the single structured administrative level consists of the senate administration.
3
The following section consists largely of excerpts from the website of the German Federal
Administrative Court , at
http://bundesverwaltungsgericht.de/enid/0,dc08b5092d09093a09616e73696368747765636873656c092d0
96b6f6e74726173747265696368/Information_in_English/The_Federal_Administrative_Court_g3.html
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Country report for Germany on access to justice in environmental matters

Procedural principles
The administrative court procedure is inquisitorial, which means that administrative courts are
obliged to investigate the truth without being bound by the evidence presented by the parties.
However, “the procedure is always at the disposal of the litigants”, e.g., the plaintiff is “masterof the proceedings”, meaning that the court is prohibited from going beyond the claims of theplaintiff and the plaintiff always has the right to terminate proceedings by amicable settlement
or withdrawal of his action at any time.
The procedure is oral, direct and open. As a rule, the court is obliged to conduct an oral hearingthat is open to the public. During the hearing the parties have full opportunity to make theirpresentations and to discuss all factual and legal points. All evidence is produced, recorded anddiscussed during the oral proceedings as well.
The court decides according to its free conviction formed from the overall result of theproceedings. There are no statutory rules that give superiority to one kind of evidence overanother.
Actions brought before an administrative court have suspensive effect unless the contested
administrative act has been declared provisionally enforceable by the issuing public authority,or where so prescribed by law. In those cases the suspensive effect may be restored by way ofinterim relief granted by the administrative court. Restoration of the suspensive effect may belinked to the obligation to provide a security or other conditions being imposed.
Upon application, the administrative courts may also issue interim injunctions, even before
commencement of the main proceedings. This presupposes that there is otherwise a danger thatthe legal relief sought by the plaintiff may be pre-empted or substantially impeded.
Decisions are issued in writing. They are pronounced orally in public session if there has been
an oral hearing open to the public, and are subsequently notified in writing to the parties.
In the courts of first instance no specific form of filing an action is prescribed. Any person canfile his action personally on an ordinary piece of paper or get it recorded with the help of a court
clerk. In the Higher Administrative Courts and before the Federal Administrative Court,
however, the parties need to be represented by a professional attorney or a university professorof law.
1.2. Environmental protection within that context
Environmental protection procedure
Besides an exception in the nature protection area, which will be described in detail in thefollowing section, there is no specific procedure foreseen in Germany neither underadministrative nor judicial structures, for challenging violations of environmental law as such,i.e., as so-called “altruistic” actions without individual rights of the plaintiff being affected4.
However, an individual or an NGO can always bring a case before the administrative courts inenvironmental matters, if they have standing, i.e., if they can claim that legally proctectedinterests, “subjective rights”, e.g., their private property, have been infringed upon by an
4

As will be seen below, even in the nature protection area, the procedure allowing nature protection
associations to file legal proceedings challenging the violation of nature protection law, is not so much a
specific procedure as provided for specific standing of nature protection associations. Procedurally, thegeneral rules of the Verwaltungsgerichtsordnung apply.
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Country report for Germany on access to justice in environmental mattersadministrative decision ("egoistic" action); for example, where the expropriation of a property
in the interest of an infrastructure project, such as a highway, can be challenged by the properyowner on the basis of the right to property. Another example of a relevant administrative act that
may also have environmental implications could be an administrative decision to grant a
construction permit, which may be challenged by neighbouring property owners, e.g. on the
grounds of emissions from the project for which the permit has been granted.
Developments in the context of the ratification of the Aarhus Convention
Germany passed the Act on ratification of the Aarhus Convention on 9 December 2006 andratified the Convention on 15 January 2007.
The implementation of the Aarhus Convention in Germany was coordinated with thetransposition of the EU Directives implementing the Aarhus Convention. Thus Directive
2003/4/EC on public access to environmental information, Directive 2003/35/EC providing for
public participation in environmental plans and programmes and amending with regard to
public participation and access to justice, Directive 85/337/EEC and Directive 96/61/EC weretransposed in Germany through the following legal measures:•Gesetzzur
Neugestaltung
desUmweltinformationsgesetzes(Umweltinformationsgesetz), i.e., Act on the Revision of the Environmental Information
Act (initially of 1994), adopted on 22 December 2004, and entered into force on 14
February 2005;•

Gesetz über die Öffentlichkeitsbeteiligung in Umweltangelegenheiten nach der EGRichtlinie 2003/35/EC (Öffentlichkeitsbeteiligungsgesetz), i.e., Act on public
participation in environmental matters according to EU Directive 2003/35/EC, adopted
on 9 December 2006, and entered into force on 15 December 2006. The Act amends
several pre-existing pieces of legislation to bring them fully in line with the Directive,in particular the German EIA legislation;•

Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in Umweltangelegenheiten
nach der EG-Richtlinie 2003/35/EG (Umwelt-Rechtsbehelfsgesetz), i.e., the Act on
additional provisions regarding access to justice in environmental matters according to
EU Directive 2003/35/EC, adopted on 7 December and entered into force on 15
December 2006.

The last Act introduced legal standing of environmental protection associations in transpositionof Article 3 No. 7 and Article 4 No. 4 of Directive 2003/35/EC and thus Article 9 (2) of the
Aarhus Convention. It is limited to judicial actions against projects subject to EIA or IPPC
authorisations.
The current study is concerned with the implementation of Article 9 (3) rather than Article 9(2)of the Aarhus Convention, and the possibilities under this Act are thus not further explored indetail.
It may be noted, however, that recognised environmental protection associations may bringclaims only with regard to the breach of provisions protecting the environment, and establishingrights for individuals. At the same time, the association has to be affected in its environmental
protection aims laid down in its own articles of association. Claims are limited to those made in
the prior administrative proceedings. They may be considered founded in case of the breach of
substantial provisions affecting environmental protection aims reflected in the aims of theMilieuJuly 2007

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Country report for Germany on access to justice in environmental mattersassociation according to its statutes. Claims against procedural failings are limited to very
substantial issues (e.g., the EIA has not been carried out)5.
No further legislation has been adopted to date that would otherwise implement the Aarhus
Convention, in particular its Article 9(3).
The German government has stated in its submission to the German Parliament, the Bundestag,of the draft Act for ratification of the Aarhus Convention6 that Article 9(3) is considered fully
implemented by way of existing European and national law. The wording of that Article leaves
broad discretion to Aarhus parties based on the understanding during negotiations that countries
wished to maintain their respective legal traditions, ranging from civil law-dominated systems
to administrative systems focusing on subjective rights to ombudsman-proceedings.
Thus, in Germany, the existing possibilities for citizens to bring claims before the courts bothand administrative are considered sufficient for the purposes of Article 9(3) of the Aarhus
Convention. In particular, it has been emphasised in the German understanding that Article 9(3)does not require a specific instrument granting NGOs access to justice, nor does it require an
instrument based on the violation of public interest rights, such as in the field of environmental
protection.

2. Access to justice in environmental matters
As mentioned above, access to justice in environmental matters in a broad sense may be realizedby citizens or NGOs outside any specific procedure for access to justice in environmental
matters on the basis of an infringement of their individual rights by the administration, such as
the right to property.
Such cases are governed by the general procedures foreseen by the above-mentioned
Administrative Court Act regulating access to justice against acts of the administration.
As also mentioned above, under the Nature Protection Act, in specific cases, standing isafforded to nature protection associations, claiming the violation of nature protection legislation.
Also in those cases, the general procedures established by the Administrative Court Act apply.
In the following, the procedure established is described.
2.1. Administrative procedure
There is no specific administrative appeals procedure foreseen in environmental matters, but thegenerally applicable administrative appeals procedure, which forms part of the judicial
procedure, applies: under German administrative law7, before a case can be brought before thecourts, all possibilities for administrative appeals have to have been exhausted. In turn, as is thecase with subsequent judicial claims, the instrument of the administrative appeal(Widerspruchsverfahren) presupposes that the claimant is directly affected in his/her own rights
by the administrative act challenged.

5

Two German associations, BUND (Bund Naturschutz Deutschland e.V.) and UfU e.V. (Unabhängiges
Institut für Umweltfragen e.V.) have lodged complaints against Germany with the EU Commission for
non-conform transposition of Directive 2003/35/EC, insofar access to justice is concerned.
6
Accessible at http://dip.bundestag.de/btd/16/024/1602497.pdf.
7
There are exceptions, see below for more detail.
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Country report for Germany on access to justice in environmental mattersThus, in the German legal systematic, the administrative appeals procedure is a preliminary
procedure, and prerequisite to the court appeal procedure. It is regulated in the German
Administrative Court Act.
It does not only apply in cases where the violation of individual rights is claimed but also in thearea of nature protection, where German law provides for standing of nature protection
associations claiming a violation of nature protection law. Also here, prior to bringing an action
before a judicial court the association must go through the administrative appeal procedure.
The main traits of the generally applicable administrative appeals procedure may briefly besummarised as follows:•

The administrative appeal has to be submitted within one month of notification in cases
where the claimant has been the addressee of the administrative act challenged, and inother cases within one month of the claimant’s first learning about the act. As a
specificity, the Nature Protection Act establishing access to justice for nature protection
associations foresees that, unless the nature protection association is itself addressee ofthe administrative act challenged, the time period of one month begins to run from thetime from which it first learned either about the act, or could have had knowledge about
the act, e.g., from newspaper reports.

•

The administrative appeal has to be raised with the authority that has adopted the act atissue, or with the authority responsible for deciding on the appeal. This is typically thenext higher authority, unless the initial authority is an authority at the upper federal or
Länder level, in which case it is at the same time the appeals authority. In the latter
case, the appeals authority makes the appeal available to the authority that has adopted
the act.

•

The authority that has adopted the act may annul the act if it considers the appeal
substantiated.

•

Where the adopting authority does not annul the act, the appeals authority decides on
the appeal. The decision, which has to be issued in writing, is subsequently subject tojudicial review. Such review has to be initiated within four weeks of notification of theDecision in the appeals procedure.

•

The appeal regularly has suspensive effect, except in certain cases enumerated in the
Administrative Court Act. In certain cases where the appeal concerns an administrativeact favouring a third party, the appeals authority may order the immediate execution of
the act. Such decisions may be independently appealed before the administrative courts.

2.2. Judicial procedure
2.2.1. General aspects

As noted above, in principle8, any judicial proceeding against an administrative act has to bepreceded by an administrative appeals proceeding.
Once this possibility is exhausted, a legal claim can be raised before an administrative court.
8

In some cases the Administrative Court Act prescribes that no prior administrative proceeding isnecessary, i.e. where the act was issued by an uppermost federal or uppermost Länder authority and noother legal act prescribes the administrative appeals procedure
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Country report for Germany on access to justice in environmental matters

Administrative court proceedings against an act of the administration, claiming either theviolation of individual rights or the violation of nature protection rights as afforded by the
Nature Protection Act, follow the principles described below9.
2.2.2. Legal standing and participatory status

An “actio popularis” or an action to enforce rights of third parties is, as a rule, not permissible
before German administrative courts. The petitioner must always establish that his individual
rights have been infringed. Unless the plaintiff can claim to be affected in individual rights
afforded to him by the legislation, he will not be heard by the courts, i.e., the action will beconsidered inadmissible.
Thus, access to justice in environmental matters in Germany regularly presupposes aninfringement of own rights of the claimant, e.g. the right to property, otherwise the action will
be inadmissible. If the plaintiff is affected in own rights by an administrative act, according to
the Administrative Court Act, the action must be brought within one month of the notificationof the act, where it was addressed to the plaintiff, otherwise within one month of knowledge ofthe act by the plaintiff.
However, there is an exception to the above for actions brought by acknowledged nature
protection associations in the nature protection area as afforded under the Nature Protection Act(“Verbandsklage”).
At Länder level, in the nature protection area, the possibility of nature protection associations togain access to justice against administrative acts of Länder authorities had been recognised sincethe 1980's, through introduction in the state legislation on nature protection of access to justicein favour of nature protection associations (“Verbandsklage”).
In 2002, such right was recognised at the federal level, through amendment of the Federal
Nature Protection Act. This meant that all Länder which had not already done so at that time
(namely Bayern and Baden-Württemberg) had to introduce the possibility for acknowledged
nature protection associations to bring actions based on an infringement of nature protection
legislation. The Federal Nature Protection Act also foresees explicitly the possibility of the
Länder to maintain their own legislation on standing in favour of nature protection associations.
Indeed, in some cases, certain Länder had provided for access to justice going beyond thepossibilities now afforded by the amendment of the federal Nature Protection Act10.
The text of the relevant provisions is reproduced in the Annex to this Country Report.
Legal standing and rights of participation under the federal Nature Protection Act arecharacterised by the following:•

Members of the public or citizens, are not entitled to initiate a judicial proceeding
alleging violation of nature protection law. Only recognised nature protection
associations have such standing to claim violations of nature protection law.

9

The same procedure, based on the principles of the Administrative Court Act also applies in those cases
where the Administrative Court Act, exceptionally, does not require a prior administrative proceedings see previous footnote.
10
However, the German Council of Experts for Environmental Issues ("Rat von Sachverständigen in
Umweltfragen") noted in its 2004 report, that the Länder were in the process of adapting their legislation
to the requirements of the Federal Nature Protection Act, repealing previously existing wider access tojustice regulations.
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Country report for Germany on access to justice in environmental matters•

Nature protection associations have to be recognised as such and the nature protection
legislation provides for a recognition procedure in § 59 Federal Nature Protection Act.
The recognition is granted by the federal Environment Ministry. The main conditions
for the recognition are:o

Submission of an application;o

The association must, according to its articles of association, support nature
protection and landscape conservation aims in a durable manner;o

The association must be active beyond the area of a single Land;oIt has to have actively existed for at least three years at the time of the application;o

It must be safeguarded that the association pursues its tasks in a proper manner;when evaluating this condition, the past activities of the association, its membershipand capacities are considered;o

The association must be based on open membership.

Those Länder who have separate access to justice provisions in favour of nature protection
associations in their Länder legislation also provide for recognition procedures. Associations
recognised at the Länder level are also recognised for the purposes of the Federal Nature
Protection Act.
A list of recognised associations is published on the Federal Environment Ministry’s website11.
The website lists only 24 associations. However, according to a 2003 publication,12 around 120
associations were acknowledged as having access to justice under the Federal Nature Protection
Act. The difference is presumably owing to the fact that the Ministry’s website lists only those
associations recognised under the federal act, whereas the higher number includes those
associations recognised by the Länder.
The entitlement of recognised nature protection associations to lodge a complaint is outlined in
the Nature Protection Act. Judicial action may be lodged against the following acts:•

Exemptions from prohibitions and orders relating to the protection of nature
conservation areas (Naturschutzgebiete), national parks (Nationalparke) and otherprotected areas•

Decisions of plan establishment procedures (Planfeststellungsbeschlüsse) relating toprojects involving intervention in nature and landscape as well as plan approvals(Plangenehmigungen) where the general public’s involvement has been provided for in
relevant provisions.

Admissibility of actions is subject to the following conditions. The association concerned must:•

Assert that the adoption of the administrative act in question conflicts with provisions of
the Nature Protection Act, legal provisions laid down on the basis of or within theframework of that Act, or with any other legal provisions to be complied with/taken into

11

www.bmu.de/naturschutz_biologische_vielfalt/bundesnaturschutzgesetzt/gesetzestext/doc/37890.php
M.Zschiesche, M.Rosenbaum, A.Schmidt ;Naturschutzrechtliche Verbandsklagen in Dtl. im Zeitraum
1996-2001.
12

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Country report for Germany on access to justice in environmental mattersconsideration when adopting the administrative act concerned and which are also atleast intended to serve the interests of nature conservation and landscape management;•

Be affected within the scope of activities set forth in its articles of association, to theextent this is covered by the recognition granted;•

Have been entitled to involvement in accordance with the Nature Protection Act or on
the basis of Länder legislation and has expressed its views on the matter in this context
or was given no opportunity to express its views.

As is the case for lodging an administrative appeal as preliminary to the proceedings before
the administrative court, the court case has to be brought within one month of notification of thedecision issued from the appeals proceeding13
The following may be concluded from the above, with respect to the possibility of access tojustice in environmental matters in favour of nature protection associations:•

The nature protection association must be recognised, implying inter alia a durable
activity, thus excluding the possibility of individual citizens convening in an ad hoc
citizens initiative in order to challenge administrative action;•

Only specified acts of the administration may be challenged, thus, for example, thefailure to name an area as a nature protection area cannot be challenged;•

Claims can only be based on the violation of nature protection related legislation, but
not environmental legislation in the wider sense.
2.2.3. Possibilities for appeal

Possibilities for appeal in both scenarios, i.e., where an individual or an NGO claims violationof own rights, or in the framework of the Nature Protection Act, follow the general rules
applicable to administrative court proceedings according to the Administrative Court Act. Thoseparties to the court case in the first instance may raise an appeal in the competent High
Administrative Court (see above, “Berufung”), and, subsequently for breach of points of law
only before the Federal Administrative Court (see above, “Revision”).
An appeal presupposes admissibility. Admissibility presupposes either serious doubts on thecorrectness of the first instance judgment; that the matter is factually or legally complicated; thatthe matter is of principal interest; that the judgment deviates from the jurisprudence of thehigher administrative courts, including the Constitutional Court and is based on this deviation;or that a procedureal fault is claimed which may have been instrumental for the judgment.
Depending on which admissibility claim the appeal is based, the appeal must be raised within
one or two months from the first instance judgment.
The subsequent revision (“third instance”) again presupposes admissibility, which in turnrequires that the matter is of principal interest; that he judgment deviates from the jurisprudenceof the higher administrative courts, including the Constitutional Court and is based on this13
In cases, where, exceptionally, no such administrative appeals proceeding was required, the action has
to be raised within within one month after notification of the initial administrative act, where that wasaddressed to the Nature Protection Association, or within one month after knowledge of the act, or within
one month after the nature protection association could have had knowledge of the act (e.g. newspaper
articles). Regarding the latter, see above: this is regulated specifically in the Nature Protection Act.
Otherwise, the general rules, as above apply.

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Country report for Germany on access to justice in environmental mattersdeviation; or that a procedureal fault is claimed which may have been instrumental for the
judgment.
2.2.4. Costs and length of the procedure

Generally speaking, the costs are determined by the rules applicable to general administrative
proceedings, as articulated in the Administrative Court Act.As a rule, the Act foresees all costs
borne by the defeated party. The costs vary in relation to the amount in dispute, which is set by
the court.
For proceedings with legal standing of nature protection associsations on the basis of the Nature
Protection Act, only indicative estimates are possible.
According to information from the Naturschutzbund Deutschland e.V.,14 a typical amount in
dispute in nature protection claims is EUR 25,000 (but it can be lower; the lower the amount,the lower the court fees).
According to the Naturschutzbund Deutschland e.V., the following court fees arise:•••

In the first instance: between EUR 4,200 and EUR 5,800 (depending on whether
evidence discovery is ordered by the court, e.g., in the form of expert evaluation);In the second instance (“appeal”): between EUR 5,600 and EUR 7,700 (again
depending on the costs arising from evidence discovery);In the third instance (“revision”): approx. EUR 5,600 (see above, no evidence discovery
at this stage, as the revision is limited to a re-examination of the legal aspects only, notof factual circumstances).

Costs for legal representation are only reimbursed to the party that has won the case up to thelimits set by law. These limits are also determined by the amount in dispute set by the Court andare estimated by the Naturschutzbund Deutschland e.V. as follows:•••in the first instance: between EUR 700 and EUR 2,500;
in the second instance (“appeal”): between EUR 900 and EUR 3,000;
in the third instance (“revision”): between EUR 900 and EUR 2,000.

In practise, costs for legal representation will be negotiated between the party and its lawyer andis estimated by the Naturschutzbund Deutschland e.V. at a five-figure amount. Expert reports
and evaluations submitted by the parties have to be fully borne by the parties themselves, andthe above rule of reimbursement by the defeated party does not apply.
In principle legal aid is available, also to associations, provided they do not have the necessary
funds to bring the case, where not bringing the case would be contrary to the public interest.
This possibility does not appear to play any role in practise.
In terms of length of proceedings of administrative legal proceedings in general, the average
first instance proceeding before an administrative court lasts 15.3 months, but with large
deviations between the Länder (shortest average duration 3.9 months, longest average duration
25.7 months). 12% of proceedings last more than 2 years, 10 % more than 3 years15.

14

http://www.nabu.de/m06/m06_02/01281.html.
According to a press release of the German Ministry of Justice of 26 August 2005, accessible at:
http://www.bmj.bund.de/enid/1d0302e03c6b0037a8d2380fdbc05ef8,57d5ab706d635f6964092d09323233
34093a095f7472636964092d0933303334/Pressemitteilungen_und_Reden/Pressemitteilungen_58.html
15

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According to information from the Naturschutzbund Deutschland e.V., the following estimates
may be given; for proceedings; based on legal standing of nature protection associations under
the Nature Protection Act:••••First instance proceedings: between 1.5 and 5 years
Second instance (“appeal”) proceedings: 2 years
Third instance (“revision”) proceedings: 2 years,
In the case of a claim going through all instances up to 9 years.

Interim injunctions16are regularly delivered within more narrow time frames, between 3 and 12
months.
As noted above, in principle both the administrative appeals procedure and the appeal to an
administrative court have suspensive effect.
According to a 2003 publication17, on average 30 cases are ruled upon per year in the nature
protection area before administrative courts at all levels. This compares to a yearly number ofsome 200,000 administrative court proceedings18.

3. Assessment of the legal measures for implementing Article 9(3)requirements on access to justice
In Germany, access to justice is limited to those cases in which the plaintiff can claim to beaffected in his or her own rights, e.g., the right to property but there is no possibility for theindividual citizen or an NGO to act as an advocate for the environment and claim the violationof environmental protection legislation in the public interest.
However, in the nature protection area, exceptionally, standing is provided to regognised nature
protection associations for challenging certain administrative decisions claiming a violation ofnature protection legislation. Legally, the panel of decisions against which claims are possible
are limited. Also, costs present a considerable risk for NGOs.
The German Federal Ministry of the Environment notes on its website19 that in terms of the
Aarhus Convention's third pillar, the intention of the Convention is to grant broad access tojustice in environmental matters. At the same time, the Ministry website states, as in thesubmission to the Bundestag in connection with the proposal for ratification of the Aarhus
Convention, that the Convention leaves a certain discretion to the national legislator in terms of
the scope and content of such access to justice. Germany has recently ratified the Aarhus
Convention. From the perspective of the German government all implementation measurestaken so far are considered sufficient to guarantee the full implementation of the Aarhus
Convention, including its Article 9(3) in Germany.

16

See above: upon application, the administrative courts may issue interim injunctions. This presupposesthat there is otherwise a danger that the legal relief sought by the plaintiff may be pre-empted or
substantially empeded.
17
M.Zschiesche, M.Rosenbaum, A.Schmidt, Naturschutzrechtliche Verbandsklagen in Dtl. im Zeitraum
1996-2001.
18
According to other information, at Länder level, only around 50 court cases have been brought in theLand of Hesse since 1980 on the basis of nature protection legislation. In Lower-Saxony 10 cases werebrought
in10years.
Source:WebsiteNaturschutzbund
Deutschlande.V.
http://www.nabu.de/m06/m06_02/01281.html
19
http://www.bmu.de/buergerbeteiligungsrechte/die_aarhus-konvention/doc/2608.php, last paragraph.
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From the perspective of NGOs, efforts currently concentrate on challenging the Germantransposition of Directive 2003/35/EC insofar as provisions on access to justice are concerned.

4. Conclusions
In summary, it may be concluded that access to justice in environmental matters in Germany is••

Limited to those cases where the plaintiff can claim an infringement of his own
individual rights, e.g. the right to property;
in the nature protection area, exceptionally, nature protection associations are afforded
standing in cases directed against certain, enumerated administrative acts, claiming theinfringement of nature protection legislation.

In practice, claims in such cases present a considerable cost risk to nature protection
associations.
The German Government is of the view that no further action is necessary to implement Article
9(3): existing measures at EU and national levels, are considered sufficient.

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BIBLIOGRAPHY•

Website of the German Federal Administrative Court, at
http://bundesverwaltungsgericht.de/enid/0,dc08b5092d09093a09616e73696368747765
636873656c092d096b6f6e74726173747265696368/Information_in_English/The_Feder
al_Administrative_Court_g3.html.

•

Gesetzesentwurf der Bundesregierung, Entwurf eines Gesetzes zu dem Übereinkommen
vom 25. Juni 1998 über den Zugang zu Informationen, die Öffentlichkeitsbeteiligung an
Enscheidungsverfahren und den Zugang zu Gerichten in Umweltangelegenheiten(Aarhus-Übereinkommen), at http://dip.bundestag.de/btd/16/024/1602497.pdf•

UfU e.V. (Hrsg.), M. Zschiesche, M. Rosenbaum, A. Schmidt, Naturschutzrechtliche
Verbandsklagen in Dtl. im Zeitraum 1996-2001, 2003.

•

Website Naturschutzbund Deutschland e.V. at
http://www.nabu.de/m06/m06_02/01281.html.

•

Website Federal Ministry of Environment on public participation at
http://www.bmu.de/buergerbeteiligungsrechte/die_aarhus-konvention/doc/2608.php.

•

P. Heinz, Verbandsklage und Verbandsbeteiligung - Effizientes Umweltrecht oder
Beruhigungspille, ForumRecht, Heft 3/2003, S. 87-89, at http://forum-rechtonline.de/2003/303/303heinz.htm.

•

B. Philipp, Die Entwicklung der Verbandsklage in Deutschland, in UfU Themen undInformationen, Ausgabe 2/2002•

Rat von Sachverständigen für Umweltfragen, Umweltgutachten 2004, BT-Drucksache
15/3600, 2.7.2004

Persons contacted for information

The following persons were contacted for information:•Federal Ministry of Environment – MinR Mr. Peter Hart, Tel. 00 49 (0)1888 305-2234.

•

BUND e.V. – Ms. Schütte, Tel. 0049 (0)30 275 86573.

•

UfU e.V.–– - Ms. Mischek, Tel. 0049 (0)30 428 4993-33.

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Annex:

List of compiled national measures implementing the requirementsof Article 9(3) of the Aarhus Convention§§ 58-61 of the Federal Nature Protection Act(accessible in German at http://bundesrecht.juris.de/bnatschg_2002/ , and in English at
http://www.bmu.de/files/pdfs/allgemein/application/pdf/bundnatschugesetz_neu060204.pdf)
Section Seven:
Participation of Associations
Article 58
Associations Recognized by the Federal Ministry for the Environment,
Nature Conservation and Nuclear Safety(1) Incorporated associations recognized by the Federal Ministry for the Environment,
Nature Conservation and Nuclear Safety shall be given the opportunity to express their views
and to have access to the pertinent expert opinions
1. during the preparation of ordinances (Verordnungen), and other legal instruments ranking
after laws, in the field of nature conservation and landscape management by the Federal
Government or the Federal Ministry for the Environment, Nature Conservation and Nuclear
Safety;2. during plan establishment procedures (Planfeststellungsverfahren) conducted by Federal
authorities where these relate to projects involving intervention in nature and landscape andwhere the association’s scope of activity covers the territory of the Federal Laender to which theprocedure relates;
3. in the case of plan approvals (Plangenehmigungen) issued by Federal authorities that
substitute any plan establishment procedure (Planfeststellungsverfahren) referred to in no 2
above, and for which the involvement of the general public has been provided for, where theproject relates to the association’s scope of activites as defined in its Articles of Association.
(2) Article 28 paragraph 2 nos 1 and 2, paragraph 3 and Article 29 paragraph 2 of the
Administrative Procedures Act (Verwaltungsverfahrensgesetz) shall apply mutatis mutandis.
Relevant similar, or more extensive, forms of participation and involvement prescribed in otherlegal provisions shall remain unaffected.
(3) Paragraph 1 nos 2 and 3 shall also apply to associations recognized by the Federal Laenderin conformity with Article 60 where the issue concerned relates to their respective scope ofactivity.
Article 59
Recognition by the Federal Ministry for the Environment,
Nature Conservation and Nuclear Safety(1) Recognition is subject to prior application. It shall be granted if the association concerned
meets the following criteria:
1. The main purpose of the association, as defined in its Articles of Association is to promote,for non-pecuniary purposes and not merely for a limited period of time, the causes of nature
conservation and landscape management.
2. The scope of activity of the association extends beyond the territory of one Federal Land.
3. At the time of recognition, it has existed for at least three years, and has been active within
the scope defined in no 1 during this period.
4. There is sufficient evidence confirming that the association will do appropriate work within
the relevant scope; the assessment shall, inter alia, take into account the type and scope of theassociation’s past activities as well as composition and active potential of its membershipcommunity.
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5. Because of its non-profit character, the association is exempt from corporate income tax
pursuant to Article 5 paragraph 1 no 9 of the Corporate Income
Tax Act (Körperschaftssteuergesetz).
6. Membership associated with full voting rights in the general assembly of members is open toanyone who supports the association’s objectives. In the case of associations merely consistingof juridical persons, the requirement mentioned in the first sentence may be waived provided
that the majority of the juridical persons concerned meet this requirement.
The recognition document shall identify the field of activities, as specified in the Articles of
Association, to which the recognition relates.
(2) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall be
the agency delivering recognition.
Article 60
Associations Recognized by the Federal Laender(1) The Federal Laender shall lay down rules and regulations concerning the involvement andrecognition of incorporated associations, in conformity with the provisions set forth inparagraphs 2 and 3.
(2) Associations that have been granted recognition by Federal Laender shall be given theopportunity to express their views and to inspect and examine pertinent expert opinions:
1. during the preparation of ordinances (Verordnungen), and other legal instruments ranking
below laws, by the Laender authorities responsible for nature conservation and landscapemanagement,
2. during the preparation of the plans and programmes referred to in Articles 15 and 16,
3. during the preparation of plans as referred to in Article 35, first sentence no 2, during the
preparation of programmes drafted by government anthorities and other public institutions forthe re-establishment of displaced wild species of fauna and flora in the wild,
5. prior to the granting of exemptions from prohibitions and orders relating to the protection of
Naturschutzgebiete (‘nature conservation areas’), Nationalparke (‘national parks’),
Biosphärenreservate (‘biosphere reserves’) and other protected areas and parts thereof referred
to in Article 33 paragraph 2,
6. during plan establishment procedures (Planfeststellungsverfahren) carried out by authoritiesof the Federal Laender, where these relate to projects associated with intervention in nature andlandscape7. during plan approvals (Plangenehmigungen) granted by authorities of theFederal Laender, that substitute any plan establishment procedure (Planfeststellungsverfahren)
as referred to in no 6 above, where the involvement of the public has been provided for inaccordance with Article 17 paragraph 1 letter b of the Federal Highways Act(Bundesfernstraßengesetz).
The individual Federal Laender may provide for more extensive forms of involvement.
Furthermore, they may also
1. provide for the involvement of recognized associations in other procedures where such
involvement is based on respective provisions of Laender legislation, as well as
2. provide that in cases where any impacts on nature and landscape are either not to be expected
at all or only to a minor degree or scale, the involvement of recognized associations may bedeemed not to be a binding requirement.
With regard to recognition, Article 59 paragraph 1 second sentence nos 1 and 4 to 6 shall apply
mutatis mutandis.
Article 61
Legal Remedies available to Associations

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Country report for Germany on access to justice in environmental matters(1) Without having been subject to any violation of its rights, an association recognized inaccordance with Article 59 or on the basis of respective provisions of Laender legislation within
the framework of Article 60, may lodge a legal remedy in conformity with the Rules of
Administrative Courts (Verwaltungsgerichtsordnung) against
1. exemptions from prohibitions and orders relating to the protection of ‘nature conservation
areas’ (Naturschutzgebiete), ‘national parks’ (Nationalparke) and other protected areas referred
to in Article 33 paragraph 2 as well as against
2. decisions of ‘plan establishment procedures’ (Planfeststellungsbeschlüsse) relating to projects
involving intervention in nature and landscape as well as ‘plan approvals’ (Plangenehmigungen)where the involvement of the general public has been provided for in relevant provisions.
The first sentence above shall not apply where the decision on an administrative act referred totherein has been taken on the basis of an Administrative Court decision within the framework ofcorresponding legal proceedings.
(2) Legal remedies pursuant to paragraph 1 above are only admissible if the association
concerned
1. asserts that the adoption of an administrative act referred to in paragraph 1 first sentence is
conflicting with provisions of this Act, legal provisions laid down on the basis of or within theframework of this Act or which continue to be applicable on the basis of or within theframework of this Act, or with any other legal provisions to be complied with/to be taken into
consideration when adopting the administrative act concerned and which are at least also
intended to serve the interests of nature conservation and landscape management,
2. is affected within the scope of activities set forth in its Articles of Association, to the extent
this is covered by the recognition granted, and3. was entitled to involvement in accordance with Article 58 paragraph 1 nos 2 and 3 or inaccordance with respective provisions of Laender legislation within the framework of Article 60
paragraph 2 nos 5 to 6 and has expressed its views on the matter in this context, or, contrary to
Article 58 paragraph 1 or to rules and regulations of the respective Federal Land laid down in
conformity with Article 60 paragraph 2, was given no opportunity to express its views.
(3) If the association was given the opportunity to express its views within the framework of therespective administrative procedure, the procedure based on a legal remedy lodged by the
association shall preclude objections raised which it had failed to put forward in the respective
administrative procedure despite the fact that it would have been able to do so on the grounds ofthe documentation transmitted to it or inspected by it.
(4) If the association was not notified of the administrative act concerned the objection to beraised and the action to be filed must be transmitted within one year from the date theassociation had knowledge or ought reasonably to have had knowledge of the respective
administrative act. The Federal Laender may also admit legal remedies lodged by associationsin other cases where Article 60 paragraph 2 provides for the involvement of relevant
associations concerned. The Federal Laender may provide further detail on applicable
procedure.

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