Last changed: 15/10/2009
Legal sources on the right to file collective legal actions
Recognised environmental associations
On 15 December 2006 the Act Concerning Supplemental Provisions on Appeals in Environmental Matters Pursuant to EC Directive 2003/35/EC (Environmental Appeals Act, in German Umwelt-Rechtsbehelfsgesetz – UmwRG) came into effect. Germany thereby transformed European law into national legislation, thus improving the rights of the public by extending the associational claim (see also IV. Background information on the development of UmwRG). This law makes it possible for associations that encourage the objectives of environmental protection according to their bylaws (hereinafter referred to as environmental associations) to take action against breaches of environmental law by means of appeal, i.e. opposition or lawsuit. In order to be able to file an appeal environmental associations need to be recognised. The recognition is pronounced by the German Federal Environment Agency (Umweltbundesamt - UBA) in Dessau-Roßlau. This background paper describes the preconditions necessary for recognition and the course of procedure of recognition. It offers helpful information and support to those environmental associations that wish to apply for recognition.
With the recognition, the environmental associations may take legal action against decisions to grant authorisation. This right depends upon the objections having been made during the authorisation procedure. Exactly which decisions can be contested in law by environmental associations has been laid down in UmwRG (Article 1 paragraph 1). This provision includes for example the construction of industrial plants, or plants to be used for waste incineration or energy generation. Permissions concerning the laws pertaining water and waterways and planning approval notices for landfills are also covered. In addition, the provision is made for the judicial review of retrospective rulings on particular industrial plants that require authorisation, inasmuch as these rulings set down new threshold values for emissions.
Environmental associations have the power to contest decisions from purely environmental perspectives, in that they may now assert not only their own rights, but also those of others in their own name. It is therefore not necessary for the purposes of filing a suit to show that the association’s own rights - e.g. of ownership - have been infringed. It is sufficient to be able to substantiate the claim that the decision arrived at by an official body contradicts environmental laws. As a limitation to this the environmental laws thus contravened must constitute the rights of individuals. This passage in the law means that only those rights available to citizens of the Federal Republic of Germany – i.e. such rights as are foreseen in the German legal system – may be asserted. Such rights include for example those to property, health, or self-determination, but not those to biodiversity or the compliance with precautionary regulations. Therefore, for instance, environmental associations may not file an action calling for compliance with previously laid down precautionary threshold values.
In summary: environmental associations may according to UmwRG take legal action against certain breaches of environmental law without having to show that their own rights have been infringed. Should an association wish to avail itself of this right, however, according to the provisions of German law on the rights of environmental associations to file collective legal actions, it must previously have been recognised by the UBA.
The legislator decided to establish a recognition process prior to the option for environmental associations to file legal actions. The intention is to ensure that associations are in a position to call on specialist expertise and knowledge in an appropriate way when it comes to individual legal processes.
The criteria that an environmental association needs to fulfil in order to obtain recognition are laid down in Article 3 paragraph 1 of UmwRG. Should the environmental association meet the requirements enumerated in this paragraph, it then becomes legally entitled to recognition. The association shall be recognised if:
1. According to its bylaws, it predominantly, and not just temporarily, encourages the objectives of environmental protection;
2. It has existed for at least three years at the time of the recognition and has been active as defined in number 1 during that period;
3. It offers guarantees of proper performance of its duties; the type and scope of its previous activity, its membership, and the effectiveness of the association must be taken into account in that regard;
4. It promotes public-benefit purposes as defined in Article 52 of the German Tax Code (Abgabenordnung); and
5. It allows any person who supports the objectives of the association to become a member with full voting rights in its general meeting; associations whose members are exclusively legal entities may be exempted from the requirement in the first half of this sentence if the majority of such legal entities fulfill this requirement.
Foreign environmental associations (European and international) can also apply for recognition. They have to meet the same criteria as national associations, but are entitled to file objections or legal actions before recognition has been awarded. It is necessary only that they comply with the criteria above and have made an application (Article 2 paragraph 2 , second sentence UmwRG). By this means, UmwRG grants such environmental associations access to German courts, making it possible for foreign associations to gain temporary recognition for the purposes of fulfilling one single objective.
In sum, in terms of its preconditions for recognition, UmwRG models itself on the German Federal Nature Conservation Act (Bundesnaturschutzgesetz – BNatSchG). Inasmuch as the same criteria for recognition apply as in Article 59 BNatSchG, the recognising authority of the UBA uses as its template the definitions and interpretations previously worked out under law for the purposes of the Nature Conservation Act.
As is the case in Nature Protection legislation, an association is deemed to be idealistic if the aims of its operation are not economic ones. The preamble to the legislation (BR-Drs. 552/06) states that the above definition applies if an association pursues its objectives without any material interest; in other words, if it is not commercially active. Additionally decisive is the fact that the association’s predominantly activity is to encourage the objectives of environmental protection. As the preconditions in Article 3 paragraph 1 UmwRG are based on those in
Article 59 paragraph 1 second sentence BNatSchG, the recognising authority can fall back on the interpretation thereof in respect of the criterion of “predominance”. “Predominance” means that the aims stated in the bylaws form the main or distinctive purpose of the association. If an association should pursue a number of aims, then the focus of the activity is decisive.
The law deems it necessary for an association to have been in existence for at least three years at the time of application. This is supposed to ensure that experienced environmental associations are able to encourage environmental objectives in a proper and competent manner. In order to demonstrate its actual activities to the recognising authority, the environmental association is obliged to submit appropriate materials. Such materials include above all annual reports, press releases, member periodicals, and circular letters.
The precondition of proper performance of duties is closely related to the above criterion and is intended to ensure that the aims laid down in the bylaws are actually being pursued in reality by the association, rather than mere lip service being paid to them. The preamble (BR-Drs. 552/06) also makes it explicit that the association must be so structured that any and all rights of active member participation, however exacting, are satisfactorily observed qualitatively, quantitatively, and within appropriate time frames. Any association that fulfils this criterion is qualified to act as an advocate for environmental protection.
According to Article 3 paragraph 1 second sentence no 4 UmwRG, the association is obliged to promote public-benefit purposes as defined in Article 52 of the German Tax Code (Abgabenordnung). An association is deemed to promote public-benefit purposes if its activity is oriented towards advancing the general good either materially, spiritually, or ethically in a way that is not self-serving. This requirement of public benefit is fulfilled when the association acts in a non-self-interested way, meaning that it is not pursuing any economic goals of its own.
The association can demonstrate its promotion of public-benefit purposes for instance by submitting the certification of tax exemption issued by the Tax Office. If such proof is not available, then the association can demonstrate the above using such documents that clearly show the non-self-interested pursuit of the public good, be it in a material, spiritual, or ethical sense.
A further criterion states that the association must have a democratic internal structure: in other words, that it fulfils the so-called “Everyman principle”. It must thereby be open to all those wishing to support the aim of the association and must give an equal voice to each member. Differences in status between members are inadmissible. The precondition of equal access to, and votes for all may be waived in the case of umbrella associations. If the membership of such an umbrella association is exclusively comprised of legal entities, this criterion may be waived as long as the majority of them fulfil the requirements of the “Everyman principle”.
For the purposes of verifying the criteria named above, the recognising authority examines the association’s individual bylaws or articles of association and also takes into account its actual activities. To this end the association can submit annual reports, member periodicals, media reports, or similar documents. The verification concludes with an administrative decision. This certificate of recognition, which describes the area of activity of the association as stated in its bylaws, must be submitted in any legal proceedings.
The UmwRG is designed to incorporate into German law that part of the European Public Participation Directive 2003/35/EC of 26 May 2003 which deals with access to the courts of law. The overall aim of the Directive is to preserve, secure, and improve the quality of the environment, as well as safeguarding human health, by facilitating and further extending public participation – in particular that of associations – and legal protection. This Directive in turn has its origin in the Aarhus Convention (PDF / 51 KB), which is an international treaty regulating access to information, public participation in decision-making processes, and access to justice in environmental matters.
By signing this international convention the Federal Republic of Germany obliged itself to transform these aims into its national law. UmwRG paves the way for German ratification of the Aarhus Convention. Upon ratification and deposition of the instrument, Germany became the 40th party to the Aarhus Convention. The European Union ratified the Convention on 17 February 2005. Further information on the Aarhus Convention (PDF / 50 KB).
When preparing their documentation, environmental associations aspiring to recognition according to UmwRG can make use of the following notes:
The following are necessary:
The recognising authority for the Environmental Appeals Act (Anerkennungsstelle Umwelt-Rechtsbehelfsgesetz) is available at UBA to answer questions or give further advice under either anerkennungsstelle@uba.de or telephone number +49 340 2103-2123.
Address:
Umweltbundesamt
I 1.3 Anerkennungsstelle Umwelt-Rechtsbehelfsgesetz
Postfach 1406
06813 Dessau-Roßlau