Locus standi for environmental NGOs in Germany: The (non)implementation of the Aarhus Convention by the ‘Umweltrechtsbehelfsgesetz’ - Some critical remarks

Abstract

Access to justice for environmental NGOs in Germany is a long and troublesome story. Since the appearance of a widespread movement of environmental associations in the 1970s, there has been a struggle for the introduction of an association lawsuit in German environmental law. The campaign to open the courtrooms’ doors had been observed with scepticism by politicians and traditional lawyers, sometimes accompanied by hostility. There was deep concern that fanatic members of NGOs would bring ‘a spate of querulous actions, and the courts would be inundated by environmental litigation.’ It is therefore not surprising that the German government was not too enthusiastic about the Aarhus Convention. This of course did not hinder German representatives actively influencing the wording of the Convention in a restrictive sense during the negotiations. But even then we had to wait until a Red-Green coalition came into effect in 1998 before the Convention was signed. With the coming into force of the Aarhus Convention and the related EC directives transposing this Convention into community law, the Member States are obliged to transpose the Convention into national law. As a consequence, the traditional German concepts which confer only very limited access to the courts on NGOs have to undergo fundamental revision. However, it seems that the German legislator is not yet ready for this change. For the present, the Environmental Appeal Act that entered into force on 15 December 2006 is the latest chapter in this story – but certainly not the last.