The landmark ruling of the European Court of Justice (ECJ) in Trianel (case C- 115/09) significantly increased the legal standing of environmental NGOs. NGOs are now able to bring claims that relate to environmental regulations that purely protect the public interest in the German courts – before they were limited to bringing claims based on environmental regulations that provide rights to individuals. The German Parliament have now passed amendments to the German Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz) to give effect to the Trianel ruling. As well as implementing the ECJ’s decision, the amendments create new procedural rules for fast-tracking environmental claims.
The new procedural rules seek to prevent unjustified delay to the project approval process as a result of legal challenges brought by individuals or NGOs. The streamlining of administrative court procedure was proposed in the wake of the ECJ’s decision as a way of counterbalancing the strengthened position of environmental NGOs.
Under the new rules:
- Remedies must be justified in principle within a period of six weeks and any late submissions in support of a claim may be rejected.
- There will be limited scope for judicial review of environmental regulations, giving authorities increased independence.
- Courts may only order suspension or termination of a permit when there is serious doubt as to its legality.
The new rules not only govern claims brought by environmental NGOs but also those brought by individuals. This is due to the European law requirement that environmental NGOs are not put on a worse footing than individual claimants. The extent to which the new rules will actually achieve their objective will depend on how the courts interpret the new rules. The new regulations do nonetheless send a clear message to the courts to consider expediting environmental claims where appropriate.
The new legislation also goes beyond the scope of the ECJ decision in one other respect. The ECJ decision confirmed the legal standing of NGOs only in relation to environmental legislation that is derived from European law. Following the principles of the Aarhus Convention, under which there is no distinction between European and national law, the new standing for NGOs applies to all future environmental regulations whether derived from European or national law.
The changes to the German Environmental Appeals Act entered into force at the end of last month. However, due to the direct applicability of the EU Environmental Impact Assessment (EIA) Directive, as confirmed in Trianel, the German courts have already begun to accept an increased standing for environmental NGOs.