EN Official Journal of the European Union C 159/16

Action brought on 21 March 2014 — European Commission v Federal Republic of Germany

(Case C-137/14)

2014/C 159/23

Language of the case: German

Parties

Applicant: European Commission (represented by: C. Hermes, G. Wilms, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (1) and Article 25 of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), (2) by

— regarding the provisions of Directive 2011/92 as not, in principle, conferring any subjective rights, and thereby largely excluding any recourse to legal action by individuals (Paragraph 113(1) of the Verwaltungsgerichtsordnung (Administrative Court Rules));

— limiting the annulment of decisions on the basis of procedural errors to the complete absence of a requisite environmental impact assessment or the absence of a requisite pre-assessment (Paragraph 4(1) of the Umwelt-Rechtsbehelfsgesetz (Law on environmental appeals), ‘UmwRG’) and to cases in which the applicant proves that the procedural error was causative as regards the result of the decision (Paragraph 46 of the Verwaltungsverfahrensgesetz (Law on administrative procedure), ‘VwVfG’) and the applicant’s legal position is affected;

— limiting the right to bring proceedings and the scope of the courts’ review to objections previously raised within the period allowed for raising objections in the administrative procedures that led to the adoption of the decision (Paragraph 2(3), UmwRG and Paragraph 73(6), VwVfG) and

— in proceedings brought after 25 June 2005 and concluded before 12 May 2011, restricting the right of environmental organisations to bring proceedings to legal provisions that confer rights on individuals (Paragraph 2(1), in conjunction with Paragraph 5(1), UmwRG);

— in proceedings brought after 25 June 2005 and concluded before 12 May 2011, restricting the scope of the courts’ review of appeals by environmental organisations to legal provisions that confer rights on individuals (former Paragraph 2(1), in conjunction with Paragraph 5(1), UmwRG);

— excluding generally any administrative proceedings initiated before 25 June 2005 from the scope of application of the UmwRG (Paragraph 5(1), UmwRG).

Pleas in law and main arguments

In essence, the following pleas in law are raised:

The defendant has infringed the obligation of sincere cooperation both in temporal and in substantive terms. Thus, it took more than 18 months to attempt to draw the appropriate conclusions from the judgment of the Court of Justice of 12 May 2011 in Case C-115/09. (3) In substantive terms, the rules adopted by the defendant are inadequate and contradict both the aforementioned case-law and the judgment of the Court of Justice in Altrip. (4).

In relation to the judicial protection afforded to individuals the Federal Republic continues to restrict any review by the courts to compliance with rules conferring subjective rights within the meaning of the ‘Schutznormtheorie’ (protective provision theory). Further restrictions apply to the judicial protection afforded to individuals as well as that afforded to organisations. Thus the UmwRG permits annulment of decisions granting authorisation only if there is no environmental impact assessment, but not if the assessment was carried out incorrectly.

In addition, Germany provides for annulment of a procedurally unlawful environmental impact assessment decision that has been challenged by individuals only if the applicant specifically makes out a case for the proposition that that decision would have been different if there had been no procedural error, and the procedural error affects a substantive legal position to which the applicant is entitled.

Further, objections by organisations in judicial proceedings are precluded in so far as they have not already been raised during the administrative procedure. Lastly the new version of the UmwRG and the relevant German case-law fail, in key respects, to meet the requirements of Directive 2011/92, as determined in more detail by the Court of Justice in Trianel and Altrip.

Furthermore, the UmwRG excludes from its temporal scope proceedings brought before the directive came into force.

These significant restrictions are contrary overall to the objective of Directive 2011/92: to provide broad judicial protection in accordance with Article 9(2) and (3) of the Aarhus Convention.

(1) OJ 2012 L 26, p. 1.

(2) OJ 2010 L 334, p. 17.

(3) BUND, C-115/09, EU:C:2011:289.

(4) Altrip, C-72/12, EU:C:2013:712.