The Administrative Judge and the Environmental Law

Transcription

1 1 International Association of Supreme Administrative Jurisdictions Association Internationale des Hautes Juridictions Administratives IASAJ Cartagena Congress 2013 The Administrative Judge and the Environmental Law Statement on behalf of the I. The sources of environmental law 1. What are the national sources of environmental law (government, parliament, State governments, agencies)? Which authorities are competent for enacting them? 2. What are the supranational sources concerning environmental law that judges must enforce? Environmental law applicable in Germany is a body of international, supranational (= European Union <EU>) and national legislation aiming at regulating and minimizing the impact of human activities on the natural environment. It has recently developed into one of the most extensive, detailed, and important fields of law nationally as well as internationally. Environmental law is of immense economical and ecological importance and has far-reaching effects on human rights issues. It exists in the form of statutes or regulations specifically dedicated to a special environmental issue (e.g. Federal Immission Control Act, Federal Soil Protection Act, etc.) as well as in the form of single statutory provisions dealing with environmental issues in general statutes (e.g. sec. 4 subsec. 1 no. 3 Public Houses Act on the obligation to refuse the permit for a restaurant or bar issuing harmful environmental effect such as noise or odour; provisions dealing with environmental issues in statutes on land use planning, etc.). German environmental law mostly is federal statutory law or statutory law of the Federal States <Bundesländer>, but can be issued as municipal by-law (e.g. on constituting a conservation area) or executive ordinance or administrative regulation as well. On top of the national normative hierarchy the constitution (Basic Law) states (art. 20a):

2 2 Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order. German national law is by now influenced by European Union Law to a great extent. This is specifically true for the field of environmental law, one of the top priorities of EU policy since many years. The European Union enacts environmental law provisions using different sources of law the most important being the directive. In the field of water policy, for example, has been issued a so called framework directive (2000/60/EC) stating common principles, environmental objectives and procedural rules and thus inducing several rather specialized directives, e.g. on bathing water, water intended for human consumption, ground water, etc. The specialized directives aim at fixing minimum protection standards which the member states are obliged to implement in their national law fully and efficiently. If a member state neglects or fails to do so within the time limit given, the directive s rules may gain direct binding effect if they are sufficiently precise. As a consequence, the administrative judge in Germany, while applying national law on environmental issues has to be aware of the EU basis of national statutes and has to consider relevant directives as a source of interpretation or as a source of law by themselves. National law contradictory to relevant EU law is not to be applied. As to its content, environmental law in Germany consists of provisions on procedure, principles, and subject-specific law. The purpose of the procedural regulations is to ensure that all private and public interests affected by a certain policy or project will be fully taken into consideration by the administration whereas the principles of environmental law are supposed to give guidelines as to balancing the conflicting interests proportionately according to their weight. Even if there is no explicitly written statutory stipulation of the principle of Environmental Justice in German law the entirety of those principles fixed by statute arrives at the same result. There exist and have to be considered by the courts: - the principle of protection against environmental risks and hazardous environmental effects - the principle of preventive action and precaution, - the polluter pays principle

3 3 - the principle of sustainable development (protection of resources) - the principle of cooperation (protection of environment as a task common to public authorities, citizen/consumer, private economic entities etc.) - the principle of environmental integrity (interdependency of environmental media, hazardous effects and the impact of human behaviour on environment), and - the principle of the highest possible level of protection. As to the subject-oriented environmental law it can be stated that meanwhile it covers all fields of environmental issues, namely protection of air, water, soil and biodiversity by means of statutes or regulations on immission control (noise, light, smell, hazardous substances, etc.), water pollution control, waste including soil protection and contaminated sites as well as protection of nature, climate and animals, energy policy including atomic energy and radiation protection, renewable energy, genetic engineering, traffic planning as well as land use planning, etc. 3. Does the administrative judge enforce the general principles of environmental law? Has he / she contributed to developing them? The administrative courts have to grant legal protection against any behaviour of public authorities violating individual rights, e.g. by issuing or denying administrative acts or by any other legal or factual act. To this purpose, it would by no means be sufficient to restrict their jurisdiction on enforcing general principles of environmental law only. Instead, the administrative courts have to review the application of all environmental and other law and are competent to fully investigate and decide all cases by raising evidence, assessing the facts and coming to a final decision on all relevant legal points. As a result, almost all important and politically controversial projects having effects on environmental issues currently are being adjudicated by the administrative courts. The question whether a project will be realized or not thus is often settled in court. Doing so the courts are often obliged to further develop principles or even detailed regulations of environmental law because in this field of law many provisions offer a broad margin of appreciation in interpreting indefinite legal terms. For details see further question II. 3.1 to 3.5.

4 4 II. The Competence of the Administrative Judge in the Environmental Field 1. Do the environmental cases fall totally within the competence of the administrative judge? Are the judiciary courts also competent? Are there specialized courts? 2. What are the criteria of competences between administrative courts, judiciary courts and specialized courts? The German court system is rather differentiated. It consists of five branches i.e. ordinary (= civil and criminal law), administrative, finance, labour, and social courts. Cases involving environmental law problems emerge predominantly in the administrative branch of the judiciary but are not necessarily limited to it. E.g., cases about state liability as well as compensation claims concerning damages caused by private enterprises fall under the cognizance of the civil courts, cases about criminal responsibility as to violations of environmental law rules will be judged by criminal courts. Finally, the jurisdiction on constitutional questions by any court as well as legislative acts such as statutes on environmental law can be revised by the constitutional courts of the Federation or the Federal States (e.g.: limits of the right of property drawn by environmental law rules). On the other hand, there are no specialized courts dealing exclusively with environmental law problems. Generally, the administrative courts are competent for all litigations involving public authorities acting under public law with authoritative power, that is issuing or denying administrative acts, acting in the course of land use planning, or, in a broader sense, acting in a way that might violate the claimant s individual rights. Thus the vast majority of cases concerning environmental law will be judged by administrative courts. However, it is possible that environmental law questions have to be discussed as preliminary questions in any of the other courts. E.g., the lawfulness of an administrative act in the field of environmental law (operating licence for an airport or power plant etc.) can be a legal prerequisite for the fulfilment of a contract in civil or labour law, for acts of taxation etc. In such cases, any court could be obliged to judge on environmental law problems.

5 5 3. In cases of administrative courts competence, which is the competent court in the first instance? And on appeal? There are no specific rules on environmental law-cases in the German Code of Administrative Court Procedure, so the system installed by this statute applies to all cases including those involving environmental law problems. The relevance of such problems for a given litigation does not influence the determination of the competent court. Germany has adopted a three-tiers-system of administrative courts. There are 51 first-instance-courts, 15 higher administrative courts (one each for every Federal State, Berlin and Brandenburg sharing one court) and the Federal Administrative Court. As a general rule, the local administrative courts adjudicate in first instance on all disputes whereas the higher administrative courts revise the first-instance-judgments on points of fact and law. The Federal Administrative Court has to rule on appeals against judgments of the lower courts on points of law only. However, there are multiple procedural rules stating a first-instance-competence for either the Higher Administrative Courts or even the Federal Administrative Court in cases typically related to environmental law problems: The Higher Administrative Courts rule in first instance on most disputes concerning the Atomic Energy Act, the construction of power stations, container terminals etc. Equally, they have to judge on by-laws issued under the Federal Building Code (e.g. land use planning, urban development planning). The Federal Administrative Court is, as a first- (and last-) instance-court, competent to judge on important infrastructural projects such as the construction and operation of federal highways, railways, waterways or airports. These first-instance competences have been assigned to the Higher Administrative Courts and to the Federal Administrative Court in order to strengthen the efficiency of legal protection by shortening the length - and costs - of judicial procedure, the cases typically being of extreme economic und infrastructural importance. For the Federal Administrative Court this leads, however, to the necessity to establish facts in the most complicated field of environmental problems which implies lengthy oral hearings raising and weighing evidence in a way not customary for a court initially designed to review appeals centered on points of law (see further question III. 3).

6 6 III. The proceedings 1. Access to justice 1.1 Which are the admissibility criteria of the proceedings initiated by a natural person (infringement of a subjective right or an own interest, actio popularis)? 1.2 What are the admissibility criteria of the proceedings initiated by legal persons (in particular for associations, the NGO and public persons having competence in the environmental field)? Do presumptions of interest exist for prompting legal action? Should any person s rights be violated by public authority, he may have recourse to the courts. Article 19 para. 4 of the German Fundamental Law thus states the (possibility of a) violation of a person s rights by public authority to be the only requirement for access to the courts. This applies to all natural as well as to all legal persons the latter being restricted by their nature to claim only fundamental rights which may apply to legal entities as well as to humans (e.g. the right to be heard, the liberty of expression etc. but not the right to health, to corporal freedom etc.). Consequently, in the traditional German jurisprudence there has always been a strong reluctance as to the idea of an actio popularis which was considered as inadmissible. However, things have changed a lot recently, mainly influenced by European Union Law. It should be noted beforehand that in German Law a wide-ranging system of participation of natural and legal persons in the decision-making administrative procedures concerning environmental law has been established: Any natural person affected or likely to be affected in their individual rights by a permission (e.g.: neighbours) has the right to take part in the administrative procedure (esp. in the environmental impact assessment <EIA>) to submit their concerns about the project in question. The same goes for legal persons and associations or - in certain areas of the environmental law - even for any member of the public. E.g., in the context of the Federal Immission Control Act (Art. 10 para. 3 sentence 4) no admissibility requirement at all is needed to participate in the administrative procedure. As to the procedure of environmental impact assessment, all associations being committed to work in the environmental field are entitled to take part in the decision-making process. This includes the right to examine all official files. The participation of natural and legal persons in administrative procedures helps the administrative authorities to gather all relevant information and thus

7 7 to avoid unlawful decisions. On the other hand, the right to participate can imply preclusion if not being exerted in time: Within the scope of the Federal Immission Control Act the public may express their concerns about the project in question only within a given period of time. After the expiry of that period the concerns not having been submitted are formally excluded from the decision-making process as well as from a following legal action (Art. 10 para. 3 sentence 5). The access to judicial review of administrative decisions is somewhat more restricted; this is the case for matters concerning environmental law as well as for any other legal issues. A natural person is entitled to file a lawsuit only if an infringement of their individual rights is in question. Such individual rights can be founded in the constitution or any other statute aiming at protecting individuals and not only providing for environmental risks for the public as such. Somebody living too far away from the place an environmentally hazardous project will be realized or not owning property in its neighbourhood will not be entitled to instigate proceedings. An actio popularis still is inadmissible. For associations and NGOs promoting environmental protection the access to justice has widened considerably under European Union Law. Following relevant directives (dating from 1985 and 2011) all members of the public having a sufficient interest have access to a review procedure before a court of law. What constitutes a sufficient interest generally can be determined by national law. NGOs promoting environmental protection, however, are deemed to have a sufficient interest enabling them to go to court. Even though the scope of these regulations does not cover all litigations concerning environmental law problems but is limited to EIA <environmental impact assessment> - cases. The details are complicated, the whole of the legal protection framework being subject to discussion and continuous change. 2. The procedure 2.1 Is there a preliminary administrative appeal procedure (optional or mandatory)? Generally, the lawfulness and expedience of an administrative decision has to be reviewed in mandatory administrative preliminary proceedings ( objection ) prior to lodging a court action. This is not applicable, however, to administrative decisions which have been taken in a particularly formal adminis-

8 8 trative procedure ( Planfeststellungsverfahren ) usually prescribed where projects with environmental impact are at stake. Thus most administrative decisions concerning environmental law issues can be challenged directly in court. 2.2 Within what period after the enactment of the administrative decision does a legal action have to be taken (common law time limits, specific time limits depending on the applicant)? Legal action against administrative decisions has to be taken within one month after the announcement of the decision. There are no specific rules concerning administrative decisions relevant to environmental law as far as the statutory deadline for the filing of an action is concerned. There are, however, in environmental law matters, certain rules to shorten proceedings: See question Does the appeal have a suspensive effect? If not, are there any summary proceedings (suspension, provisional measures, )? Sec. 80 of the Code of Administrative Court Procedure states that in general the objection (preliminary administrative procedure) as well as the legal action have suspensive effect. This can be overruled, however, by statute which is normally the case for matters concerning environmental issues (not for those cases involving environmental law as preliminary question only). Seeking legal protection against potentially harmful projects in the field of environmental issues will therefore not inhibit construction works to realise the project. Nevertheless, claimants can seek interim relief by way of summary court proceedings. These can be instigated in urgent cases where waiting for the outcome of the main proceedings would not meet the requirements of an efficient protection of individual rights. On request, the court competent to adjudicate in the main proceedings may completely or partly deliver a preliminary injunction, giving suspensive effect of the appeal. The court may also issue an interim order if the danger exists that the realisation of the project in question will irreversibly violate rights or interests of the claimant. As an injunction is meant only as a temporary rule to prevent a possible violation of rights for the time necessary to prepare the final decision in the main proceedings, there is in general no possibility to raise evidence or to exercise more than a summary judicial review in interim proceedings. Therefore, it is

9 9 very important that the court, deliberating whether to grant interim relief or not, has to consider very thoroughly the consequences of the interim decision as to all public and private interests affected. The suspension of building work can seriously harm the economic interests of investors and slow down projects of high public importance. On the other hand, denying an interim order and thus authorising the continuation of building work can lead to irreversible consequences for the environment and seriously damage the claimants rights. This means that the court has to apply tests all the more rigorously, the more the consequences of the interim order could turn out to be irreversible. For reasons of constitutional law, proportionality is, once more, the main control mechanism in the course of the court s deliberations. 2.4 Are there any other specific procedural rules in the environmental field? Court proceedings in cases involving environmental law generally follow the same rules as any other court actions. Certain procedural rules, however, have effect on environmental law cases specifically: If the lawfulness of an administrative decision is the subject-matter of more than 20 sets of proceedings - which is typical for far-reaching infrastructural projects in the environmental field -, the court may carry out one or several suitable sets of proceedings as model proceedings while suspending the other sets of proceedings. After the final ruling on the model proceedings it is possible to introduce evidence gathered in the model proceedings into the other trials in order to shorten their duration. The court may refuse motions for the taking of evidence on facts on which evidence has already been taken if there are no particularities of a factual or legal nature (sec. 93a Code of Administrative Court Procedure). Similarly, the first-instance-competences of the Higher Administrative Courts and of the Federal Administrative Court concern to a great extent cases involving environmental law, as well as rules on preclusion of belated objections against the project or of errors in the administrative procedure (see questions II.3 and III.1). The intention of such rules is to shorten administrative and court proceedings in cases important for the exercise of fundamental rights as well as for economical and ecological reasons. This does not imply, however, that the court could be content with a judicial review being less detailed or less thorough than in ordinary cases (see questions III.3.2 and 3.3).

10 10 3. The powers of the judge 3.1 What are the powers of the judge responsible for the investigations / during the preparation stage (assessment, amicus curiae, on-the-spot investigation, communication of data by the State or the economic operators)? The judge has the right - and the obligation - to establish the facts ex officio in order to gain full conviction about what has happened. The court s knowledge has to be detailed and complete even if the factual situation is - as usual in environmental issues - complex. To this end the judge is entitled to make use of all procedural instruments of investigation including full access to all relevant official and private data, on-the-spot investigation and expert assessment on whatever question the court may find relevant. Even classified information may be introduced. If the government refuses to disclose it, a special in camera-procedure takes place to decide whether the refusal is justified or whether the conditions under which the government is compelled to reveal the classified information are met. Additionally, the litigants may contribute pieces of evidence including expert opinions if they wish to do so. There are no rules concerning the amicus curiae in German procedural law, though. So any statement in favour of one of the parties, issued by third persons, will be considered by the court if it is brought forward by the litigants ( party delivered evidence ). Third persons have no right to become a party in the proceedings, if they are neither claimants nor adversary nor, by the court, given the status of a third party concerned because the outcome of the case may directly affect their rights. As a matter of course the judgement may only be based on facts and results of evidence on which those concerned have been able to make a statement. Against this background it has to be underlined that cases involving environmental law often pose difficult technical and economic questions. This does not justify, however, to lower the requirements as to the thoroughness and completeness of establishing the facts of the case. The court has to make itself familiar with the professional areas in question to be at least capable to communicate with experts on a sufficient level of understanding and assess the value of the evidence presented (see questions 3.2, 3.3 and 3.4 for further details).

11 Is the legal control limited to the control of the regularity of the procedure? Does his / her control cover the substance of the decision? 3.3 Is the control exerted by the administrative judge a control of rights? Is it also a control of appropriateness? A general rule in German procedural law states that the courts exercise full control as to the lawfulness of the administrative decision challenged by the claimant. This includes the regularity of the procedure as well as the legality of the decision on points of substantive law. If the administrative authority has been given discretion, the court s judicial review is limited to examining if the statutory limits of discretion have been overstepped or if discretion has been exercised in a way contrary to its legal purpose as defined in the statute conferring discretion. Such a control of the legal limits of discretion is still a review of legality. It is not concerned with the mere appropriateness of a lawful decision. Being limited to the control of lawfulness, the court is not allowed to exercise its own discretion in the place of the discretion conferred to the administrative authority. One of the reasons for empowering the courts to exercise an unrestricted legal control is to ensure the constitutionally guaranteed legal protection and, to this end, to strengthen the role of the administrative courts. Only exceptionally, the intensity of judicial review of administrative decisions can be reduced, e.g. when a building permit or operating licence of an environmentally hazardous project legally depends on a prognosis as to its effects on environment. In such cases the court is restricted to examine whether the administration has complied with the legal requirements for a prognosis: (1) Is it based on an accurate and appropriately detailed factual basis? (2) Have the state-of-the-art methodical and substantive legal requirements for elaborating a prognosis been satisfied? (3) Does the prognosis comply with the principles of precaution and preventive action? If so, the court has to accept the prognosis regardless of its result. If the prognosis falls short of the aforementioned quality criteria the administrative decision will be quashed, and the administration will be obliged to elaborate a new decision on the basis of a renewed prognosis. Likewise, the judicial control of administrative decisions is restricted when there is a (statutory) margin of appreciation in deciding on a given set of

12 12 facts. This is assumed where statutes order that an expert committee or a committee representing certain groups assess whether certain factual conditions are met. Still, even in such cases the (reduced) control of the prognosis or assessment in question is reserved to the courts in order to avoid political influence or effects of corruption on the permission policy concerning environmental issues. The administrative courts are regarded as - and prove to be - a very efficient means of control over tendencies to exercise undue and illegal influence on administrative decision-making procedures. 3.4 Which is the degree of judicial review? The second instance court will exert a control covering all questions of facts as well as of points of law. The Higher Administrative Court will therefore review the first instance s decision within the appeal on points of fact and law to the same degree and with the same intensity as the administrative court of first instance. Furthermore, in general, it has to consider newly-submitted facts and items of evidence because from the relevant statutes it can usually be derived that the decision has to be taken under the rules and the facts given at the time of the last hearing in court. The Federal Administrative Court acting as court of third instance is bound by the factual findings handed down in the second-instance judgment unless admissible, well-founded grounds for the appeal on points of procedural law have been submitted in relation to these findings. Thus its control is generally restricted to points of law only which does not mean, however, that the intensity of control could be attenuated in comparison with first- or secondinstance courts. It has to be called to mind, though, that in numerous cases related to environmental law issues the Federal Administrative Courts acts as a firstinstance court. In such cases, the Federal Administrative Court will exercise a full review on points of fact as of law.

13 What are the measures that the judge can decide? - May the judge cancel only the decision or may he also alter the decision? - Does he have a power of sanction? Can he use it on his own initiative or only if requested by one of the parties? - Can he award damages? How does he calculate the quantum of the damages? - May he order restoration? Is it an obligation for him to order it or is it only a possibility? What form can the restoration take (physical compensation, financial compensation)? Administrative courts in Germany do not have administrative powers themselves. Instead, they are restricted to either quash an unlawful administrative decision or give an interim injunction ordering an administrative decision being issued. In certain cases they may enact a declaration as to the existence or non-existence of a legal relationship or as to the unlawfulness of an administrative decision challenged by the claimant. If the administrative decision is found unlawful and is quashed, it is possible and common, however, to give guidelines in the judgment along which the administration can elaborate a new, lawful decision. The reason for the restrictions concerning the competence of the judiciary is to be found in the constitutional principle of the separation of powers. The courts are limited to control the performance of the executive power as well as of the legislation but are not part of or vested with either of these powers. This limitation of competences can be misunderstood as a certain weakness but is, in effect, the basis of the independence, the acceptance and the authority the German judiciary enjoys. As a rule, even court judgments unfavourable for the government are carried out by the administration concerned without any need for measures of legal enforcement (for further details see below IV.). Administrative courts usually do not have the power of sanctions unless specific statutory regulations on that point exist. Sanctions build on personal fault and culpability so that it would be the task of criminal courts to judge on this basis. Nor is it within the competence of administrative courts to award damages. Claims of state liability are to be handled by the civil courts; it is possible, though, that the preliminary question of the lawfulness or unlawfulness of an administrative behaviour will be decided upon by an administrative court. Claims for restoration can be admissible. E.g., in cases related to environmental law problems a restoration order can be issued as part of an interim order or as a consequence of an order to restore the suspensive effect of an

14 14 action to quash an administrative act. If the administrative act has already been implemented at the time of the court decision, the court may order the rescission of implementation in natura. The restoration as a means of compensation - physical or financial - can be part of a main proceeding. If, for example, an environmental hazardous project which has already been taken into operation is declared unlawful by court judgement a claim to remove the building and to recultivate i.e. to restore the previous state of the construction site can be filed. It will be successful if there is no possibility to use the building in a lawful way. IV. The Enforcement of the Court Decision 1. Are there any specific mechanisms for the execution of judicial decisions (power of injunction, periodic penalty payments, other measures of coercion against the administration ort he economic operators)? 2. What are the courses of legal action available against such decision? Are they appeal of common law? It is possible to enforce the decisions of administrative courts. If the administrative authority fails to comply with the obligations imposed by a judgment, the court may by order including the setting of a deadline, threaten, determine after unsuccessful expiry of the deadline, and execute ex officio a coercive fine of up to ten thousand Euros against the administrative authority. The coercive fine may be repeatedly threatened, determined, and executed (sec. 172 Code of Administrative Court Procedure). However, there are extremely rare cases in which the necessity of enforcing a court decision will come up. As a general rule, administrative authorities fully comply with court decisions, out of a variety of reasons. The most important one is related to the common practice of German administrative courts to give detailed reasoning for their findings and decisions. The administrative authorities, even if having lost a single case, usually receive guidelines for future administrative practice and thus will be on firm ground as to the interpretation of their legal basis by following the courts decisions. Maidowski