New Rights of Action for Environmental Organizations?

The ECJ Advocate General has strengthened the position of environmental organizations. In her Opinion regarding the dispute over the question of how far-reaching the rights of action by environmental organization are in large permit procedures, she requests broad public participation. If the European Court of Justice (ECJ) ratifies this advice, more stringent reviews and considerable delays in environmental projects are to be expected.

Starting point of the dispute before the ECJ was the permit for the Trianel power plant in Lünen. An environmental organization had sought an order setting aside the permit and relied on the infringement of European nature protection laws. The Münster Higher Administrative Court, while recognizing that the permit was in fact violating nature protection provisions, could not uphold the appeal by the environmental organization, however, since under German law environmental organizations may only allege violations of such legal provisions, which (also) serve the protection of individuals. All other provisions that do not refer to such substantive individual right cannot be reviewed in court. The Münster Higher Administrative Court, however, had doubts whether the scheme was compatible with European environmental laws and referred the question to the ECJ in March 2009.

The ECJ Advocate General, in her Opinion of December 16, 2010, holds that the German system is contrary to European law. "In accordance with this view, environmental organizations may object to the violation of all provisions, which are relevant for a project affecting the environment," explained Dr. Jan Seidel, lawyer specializing in environmental issues at law firm Heuking Kühn Lüer Wojtek.

If the Court follows the views of the Advocate General, Dr. Seidel foresees major problems for the permit processes of major projects. "We already have permit procedures for power plants or highways often last very long. This time will increase significantly if the rights of action are extended to all relevant legal provisions."

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