Preconditions for Recognition

To make use of the special NGO litigation rights pursuant to Article 2 of the Environmental Appeals Act (UmwRG) environmental associations must be recognized at the time the action is brought.

The requirements that must be met to obtain recognition as an environmental association are laid down in Article 3 (1) UmwRG. An association which meets these requirements is legally entitled to recognition. The association shall be recognized 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 recognition and has been active as defined in number 1 during that period;
3. It offers guarantees of proper performance of its duties;
4. It promotes public-benefit purposes 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 of the association; if at least three quarters of its members are legal persons, the association may be exempted from the requirement in the first half of this sentence provided the majority of such legal persons fulfill this requirement.

As its predominant activity according to its bylaws the association must promote the objectives of environmental protection. “Predominance” means that the objectives of environmental protection stated in the bylaws form the main or distinctive purpose of the association. Additionally the criterion requires that an association acts in an idealistic manner. An association is deemed to be idealistic  if the aims of its operations are not economic ones. The Environmental Appeals Act’s explanatory memorandum (Bundesrats-Drucksache 552/06) states that the above definition is met if an association pursues its objectives without any material interest, in other words, if it is not commercially active.

The environmental association must have been established for at least three years at the time of application and must have been actively promoting the objectives of environmental protection stated in its bylaws during that time. The environmental association should present the recognizing authority with proof of its activities such as annual reports, press releases, member periodicals, and circular letters.

The requirement of proper performance of duties is intended to ensure that the aims laid down in the bylaws are being pursued in reality by the association, rather than mere lip service being paid to them. In this regard, the Environmental Appeals Act’s explanatory memorandum (Bundesrats-Drucksache 552/06) also makes it explicit that the association must be structured in a way that it can exercise the participation rights granted environmental associations by the law satisfactorily.

Article 3 (1) no. 4 UmwRG requires that the association must promote public-benefit purposes as defined in Article 52 of the German Fiscal Code (Abgabenordnung). This means that its activity must be dedicated to the altruistic advancement of the general public in material, spiritual or moral respects.

The association can demonstrate that it promotes public-benefit purposes by submitting, for example, the notice of tax exemption issued by the tax office. 

A further criterion states that associations seeking recognition must have a democratic internal structure. This means that the association must be open to all persons wishing to support its aims and must give full voting rights to each member in its general meeting (the so-called everybody principle). Conditions of admission which can be met only by a limited group of people, are in conflict with that requirement. A special provision applies to so called umbrella organizations: If at least three quarters of the members of such an organization are legal persons and if the majority of these members fulfil the requirements of the everybody principle, the umbrella organization itself does not need to fulfil them.

If the requirements listed in Article 3 (1) sentence 2 numbers 1 to 5 UmwRG are met, the competent authority establishes additionally, pursuant to Article 3 (1) sentence 3 clause 2, whether the association has a main emphasis on encouraging the objectives of nature conservation and landscape preservation. A corresponding statement in the recognition decision confers to associations additional participation and litigation rights in the field of nature conservation und landscape preservation (Articles 63 and 64 of the Federal Nature Conservation Act).

Foreign environmental associations can also obtain recognition. They must meet the same requirements as domestic associations. They may, however, file an appeal or bring legal action before a decision on recognition has been taken. To do so, they must meet the requirements for recognition and have applied for recognition (Article 2 (2) sentence 2 UmwRG). Through this provision, the Environmental Appeals Act facilitates access by foreign environmental associations to courts in Germany.