By Remo Klinger
On 13 December 2017 the Administrative Court of Schleswig Holstein handed down judgment in a case on access to justice for NGOs decided under the newly amended Environmental Appeals Act 2017. Following the entry into force of the amendment in August last year, legal discussions on its scope continue. For example, environmental NGOs can take legal action against the permission of a nuclear power plant but it is unclear if they can also take legal action against other acts, such as type approval of passenger cars. The diesel scandal, affecting Volkswagen and other German car manufacturers brought up this question with new relevance. In this judgment, the Administrative Court of Schleswig Holstein decided that German NGO, Deutsche Umwelthilfe e.V (DUH), does not have standing to challenge the decision of a type approval authority. It argued that such an interpretation of the Environmental Appeals Act would go directly against the distinct wording of that law, as this Act limited standing to cases where a ‘project’ (Vorhaben) was in question; and a project was related to an installation or other activity related to land, but not to product-related issues. According to the Court, interpreting the term project (Vorhaben) as including also product-related decisions goes beyond its powers and would require an amendment to the law.
However, Article 9(3) of the Aarhus Convention does not mention “projects” which may be tackled in court, but refers generally to acts and omissions related to the environment. In view of that, this judgment is particularly disappointing, also given the recent history of access to justice in Germany. In 2014 the Aarhus Convention Compliance Committee found Germany to be in breach of Article 9(3) of the Aarhus Convention for not ensuring standing for NGOs to challenge laws relating to the environment. In 2015, the Court of Justice of the European Union (CJEU) also condemned Germany for failing to implement the access to justice provisions in Article 11 of the Environmental Impact Assessment Directive (2011/92/EU) and Article 25 of the Industrial Emissions Directive (2010/75/EU) in case C-137/14. This led to a long awaited amendment to the Environmental Appeals Act which entered into force in August 2017.
DUH will lodge an appeal against this judgment. In this regard, the CJEU’s judgment in the recent case on access to justice in Austria, case C-664/15 (discussed here) will be of great benefit. At paragraph 55 the Court stated that, should an interpretation of national law that complies with Article 9(3) of the Convention not be possible, the national court should disapply the provision of national law in question. This would seem to require the legislator to further amend the Environmental Appeals Act in Germany.