The federal government has decided on a reform of the right of environmental associations to sue. Contrary to fears, the bill does not entail drastic cuts to this right, but rather somewhat symbolic tightening. In parts, the right of environmental associations to sue, which is regulated in the Environmental Remedies Act (UmwRG), is even being expanded.
The expansions of the right of environmental associations to sue are due to EU-law requirements and were already included in the government’s initial bill in August.
For example, in 2022 the European Court of Justice (ECJ) ruled that environmental associations can also sue over vehicle type approvals. This had been won by Deutsche Umwelthilfe in the framework of the diesel scandal. Now the UmwRG is being adjusted to the ECJ’s requirements and to a similar ruling by the Federal Administrative Court.
In addition, in the future environmental organizations that are not democratically organized should also be able to sue. This would allow, for example, foundations to sue. This has been demanded by the contracting states of the Aarhus Convention, on which Germany’s right of association to sue largely rests. This also expands the right to sue.
Since August, however, the wind has shifted and especially the CDU/CSU has been pressing more for restricting the right to sue, in particular to accelerate infrastructure projects. The CSU parliamentary group even made this a central topic of its retreat in Seeon. Environmental associations have expressed outrage and pointed to the necessity of the right to sue, because legal violations to the detriment of the environment otherwise cannot be brought to court.
The main demand of the CDU/CSU was the reintroduction of the so-called preclusion. What was not already raised in the permit procedure should no longer be considered in court. This was German law until 2015, but was challenged by the ECJ and subsequently abolished. Reintroducing it would thus knowingly contravene EU law. The government has now acknowledged this and intends to advocate at EU level for the introduction of preclusion.
As a substitute for preclusion, a misuse clause was introduced in 2017 in the German UmwRG. It states that arguments will be disregarded if the initial submission before the court is “abusive or dishonest.” In practice, the clause has played no role. For the sake of the CDU/CSU, it is now to be clarified with illustrative examples. However, this does not entail a tightening, because late submissions must still be “abusive or dishonest.”
What is still relevant is that association lawsuits against infrastructure projects (initially) do not have a suspensive effect. The suspensive effect can, however, be requested in each case by means of an urgent procedure. Proceedings thus tend to be extended rather than accelerated. But the CDU/CSU apparently cares more about symbolism than about speeding things up.
