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Further ECJ Ruling concerning NGO’s right of action under German environmental law

For the second time within a short period of time, the non-governmental organisations right to challenge administrative decisions under German law is going to be subject to the jurisdiction of the European Court of Justice (ECJ). In January 2012, the German Supreme Administrative Court (Bundesverwaltungsgericht) referred a case to the ECJ for a preliminary ruling concerning the NGO’s right of action.

The case is related to an objection brought forward against the planning permit for the retention of water in the region of Oberrhein. It was only in May 2011, when the ECJ ruled that the legal framework in Germany for legal action of NGOs against administrative decisions infringed European law.

Review of EIA-Violations

One of the key issues in the currently referred case is the violation of provisions concerning the Environmental Impact Assessment (EIA). As to the German legal basis for actions brought forward by NGOs (Umweltrechtsbehelfsgesetz), such violations may not be challenged. The Umweltrechtsbehelfsgesetz rather stipulates that only the complete absence of an EIA may be rebuked by NGOs in court. In its referring decision, the German Supreme Administrative Court doubts that this restriction is in line with EU-Law.

Umweltrechtsbehelfsgesetz rejected by ECJ before

In its judgement of 12 May 2011, the ECJ ruled that NGOs had a right to bring administrative actions before an admissible court seeking the annulment of a decision even if an individual´s rights had not been affected - notwithstanding the restriction in German law in this regard. In this respect, it was held that the German system of legal protection infringes EU-Law.

The current preliminary procedure, once more, could broaden the reasons on which an administrative action may be taken in Germany. As a consequence, the applicants as well as the authorities involved in planning and permit procedures will have to pay increasing attention to the requirements under environmental law.

avocado rechtsanwälte

Christoph Anger, Rechtsanwalt, Cologne

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