Ruling on Environmental Lawsuits Seen Far-Reaching in Germany

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By Jabeen Bhatti

Nov. 17 — A recent ruling by the Court of Justice of the European Union saying German laws governing the timing and type of evidence allowed in environmental lawsuits are too strict could improve environmental protection, say some observers.

Others said they worry the decision could usher in a slew of lawsuits that have the potential to slow Germany's energy transition.

“The outcome of lowering the threshold for suits will ensure the environment is better protected,” attorney Nina Druke of BRANDI Lawyers in Paderborn told Bloomberg BNA. “Mistakes happen, that is clear, but this verdict makes authorities more accountable to the public and makes proceedings more transparent.”

In a decision Oct. 15 (C-137/14), the Second Chamber of the CJEU found that restrictions on when and how German residents and environmental groups are allowed to legally challenge building applications—that plaintiffs must raise objections by a set deadline, can base their appeal only on material procedural errors, have the burden of proof and must be able to prove harm to an individual's subjective rights—are incompatible with European Union law.

“We welcome the ruling very much because in a lot of cases, valid claims have been refused, either totally or in some aspects, due to these restrictions in German law,” Dirk Tessmer, a Frankfurt-based legal adviser and spokesperson for Friends of the Earth Germany, told Bloomberg BNA. “The decision is a big relief.”

Legality of Restrictions

The case centered on an action brought by the European Commission against the Federal Republic of Germany in 2014 over the legality of restrictions on initiating legal proceedings against building applications for projects with environmental implications, like national grid expansion, roads and railways.

The European Commission criticized the placement of burden of proof on plaintiffs, arguing that such restrictions constituted violations of two EU directives: the Environmental Impact Assessment Directive (2011/92/EU) and the Industrial Emissions Directive (2010/75/EU), which both require that members of the affected public who have a vested interest or claim a violation of their rights due to the planned project must have access to judicial review procedures.

Druke said the verdict will have far-reaching consequences in Germany.

“It means that for the first time, plaintiffs have the chance to start legal proceedings with new arguments and are no longer limited to particular procedural errors but can in principle enter the field with any procedural error, regardless how small,” Druke said.

Preclusion Concept

Still, some are concerned the ruling could hinder the progress of Germany's energy transition, or Energiewende—the country's national program for switching its energy use from fossil fuels to renewables and using 80 percent of green power in the mix, a program implemented in 2011.

Specifically, it could threaten the development of infrastructure needed to implement the green transition, said Matthias Lang, an attorney specializing in energy law at Bird & Bird in Dusseldorf.

The German legal concept of “preclusion,” that objections must be raised by a set deadline, was efficient and gave businesses some degree of certainty, he said.

“When you look at major infrastructure and industrial projects, they are already extremely complicated, lengthy procedures. Efficiency in my book requires getting certain pieces of information out early so you can make informed decisions,” Lang told Bloomberg BNA.

“But that no longer works because you cannot rely on people telling you what the problem is by a deadline anymore and they might keep quiet to raise the objection three years down the line to bring down a project. So this means already complicated, lengthy projects are likely to take even longer and become more expensive as the likelihood of lawsuits on unknown grounds will increase significantly.”

To contact the reporter on this story: Jabeen Bhatti in Berlin at correspondents@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com

For More Information

The Court of Justice of the European Union ruling is available at http://goo.gl/HSPG7N.