Germany

• Author: Dr. Bettina Enderle
• Pages: 547-580

CHAPTER 29

Germany

DR. BETTINA ENDERLE

I. Introduction: Structures and Key

Environmental Actors

A. Interrelationship with European Environmental

Laws and National “Domains”

There is no field of public and administrative law in Germany that has been

determined and influenced by European Union (EU) law more than environ-

mental law. More than 65 percent of the German environmental laws are

based on EU prerogatives, a harmonization leaving fewer and fewer national

“domains.” Soil protection is one of the few subjects that has not yet been

comprehensively regulated on the European level. In light of the cross-border

nature of environmental pollution, the associated impacts, and the need to

avoid “environmental dumping” across the EU member states (i.e., the relo-

cation of production and industry to states with less rigid environmental

laws or enforcement for reasons of cost-cutting), the widespread European-

ization of environmental law should come as no surprise.

1. Implementation of Directives and Interpretation

in Line with Directives

In the EU, most legislation is enacted as directives, and is subsequently imple-

mented as national laws at the member state level. Among the most impor-

tant directives are the Industrial Emissions,1 the Waste Framework,2 the Water

Framework,3 the Flora-Fauna-Habitat Directive, and the directive establishing

the European Emissions Trading Scheme (EU ETS). To ensure directives are

timely implemented into national law and contain sufficiently precise obliga-

tions, directives are directly applicable in each EU member state (1) after the

lapse of the due date of implementation, and (2) if they contain precise and

enforceable obligations (effêt utile). For example, the European Court of Justice

(ECJ) recently held that the German action rights for environmental

non-governmental organizations (NGOs) were not in compliance with the

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Environmental Impact Assessment Directive (which is based on the Aarhus

Convention) and, thus, directly applicable until legislation compliant with the

directive was enacted.4

In cases of noncompliance, the national German provisions cannot be

applied, but are not automatically null and void either. To avoid conflicts

with EU law, national laws must be interpreted in conformity with EU law

to the greatest extent possible. This rule of construction is most relevant in

the field of environmental law, which is chiefly driven by EU legislation

and harmonization. Similarly, primary and secondary EU laws prevail over

(noncompliant) national law including constitutional law.5 Due to Germa-

ny’s federal structure, where EU directives are implemented at both, the

federal and state levels, the implementation of EU directives is often a dif-

ficult, time-consuming process, and frequently entails infringement pro-

ceedings before the ECJ.6

A new trend in EU legislation is to adopt regulations (instead of direc-

tives), which automatically apply in all EU member states (direct application)

and only require national provisions on competent authorities, enforcement,

and fines. Recent examples of important pieces of environmental legislation

are the regulation concerning the Registration, Evaluation, Authorisation and

Restriction of Chemicals (REACH)7 and the regulations on cosmetics,8 plant

protection products,9 cross-border shipments of waste, detergents,10 ozone-

depleting substances,11 and emission performance standards for new light

commercial vehicles.12

2. Impact Assessments

An important field of regulation based on EU directives is the assessment of

impacts deriving from certain plans and projects. The requirements of Euro-

pean law set by the Environmental Impact Assessment (EIA) Directive

2011/92/EU,13 the Strategic Environmental Assessment (SEA) Directive

2001/42/EC, and by international law, in particular the Espoo Convention,14

have been integrated into German law mainly through the Environmental

Impact Assessment Act (Gesetz über die Umweltverträglichkeitsprüfung,

UVPG). Additionally, implementation has been accomplished by amend-

ments to the Federal Mining Act (Bundesberggesetz, BBergG), the Building

Code (Baugesetzbuch, BauGB), the Federal Regional Planning Act (Raum-

ordnungsgesetz, ROG), and laws of the federal states. In Germany, the EIA

is integrated into the authorization procedures for specific projects, such as

industrial installations and large-scale infrastructure projects.15 The SEA is

part of the elaboration of specific public plans and programs such as the

Federal Transport Infrastructure Plans for Motorways and Trunk Roads,

Railways or the Federal Grid Development Plan, which are the basis for

individual projects. Taking into account the particular challenges in the

transboundary context, Germany has concluded bilateral agreements with

neighboring countries so as to lay down the details of a transboundary EIA

and ensure a smooth procedure.16

548 INTERNATIONAL ENVIRONMENTAL LAW

3. Procedural Safeguards

German courts are obliged to ensure the primacy of EU law when national

law conflicts with it. In such cases, the courts must generally request a pre-

liminary ruling of the ECJ (Art. 267 AEUV) to ensure a uniform interpreta-

tion and application of EU law. Where a German judge does not submit

questions on the interpretation of EU law to a preliminary ruling of the ECJ,

the claimant can pursue his right of access to the legal judge by way of a

complaint under German constitutional law. The German Constitutional

Court will then decide whether the judge arbitrarily declined to submit

questions to the ECJ. As a consequence, the German Constitutional Court

does generally not review the German laws and ordinances implementing

EU laws in light of German constitutional law, but refers its interpretation to

the ECJ as the guardian of compliance with EU law.17

4. Legislation

Environmental protection has been a governmental objective in Germany

since 1994, as set forth in the German Constitution (Grundgesetz, GG), which

states: “The state and its bodies are obliged to protect natural resources and

animals for future generations.” In the field of environmental law, the fed-

eral government enjoys so-called “concurrent” legislative power. In other

words, the federal states can only enact laws as long as and as far as the

federal government has not made use of its legislative powers. This mecha-

nism has proven to be effective, in particular when implementing EU envi-

ronmental legislation and in view of rapid and homogenous national

lawmaking. The Grundgesetz, however, grants some explicit rights to the 16

federal states to adopt deviating legislation.18

Despite this general provision, the Grundgesetz does not establish a fun-

damental right to environmental protection. Citizens may challenge environ-

mental impacts hazardous to human health based on their fundamental right

to life and physical integrity or, in some cases, on their right to property, but

may do so only where such impacts were caused by the government and its

authorities or agencies, but not by other individuals. Ensuring that environ-

mental law complies with constitutional law is addressed in permits or plan

approvals where the scope of fundamental rights of neighbors or citizens is

spelled out. The citizens do not, however, have a constitutional right to the

adoption of specific law provisions or enforcement. Compliance with laws in

rank below constitutional law is reviewed in the regular legal redress proce-

dure before the administrative courts.

The adoption of a comprehensive and uniform German Environmental

Code has been on German lawmakers’ agenda for several decades. In 1999,

the Federal Department for the Environment (Bundesumweltministerium,

BMU) presented a draft of Part I of an Environmental Code, which failed due

to the lack of constitutional power of the federal government (Bund) to enact

laws for the management of water resources, nature, and landscape. After a

Chapter 29: Germany 549