Individual Rights to Environmental Protection in the German Constitution

Gerd Winter

1. Reasons for the German preoccupation with individual rights

In order to obtain court review of administrative action (or inaction) the plaintiff must have standing. In Germany it is not sufficient to show that a factual or legally protected interest is affected. It must be shown that the law gives the plaintiff an individual right, and that this right may be violated by the administrative action (or inaction).

The focus on individual rights does not only determine the admissibility of the claim but also the scope of the review. This means that the court checks the lawfulness of the administrative action (or inaction) only against that part of the relevant administrative law to which the individual right extends.

For these reasons it is essential in the German legal system to discuss individual rights issues.

2. Individual rights defined

An individual right is the legal power to ask somebody to do something or to desist from doing something. In the administrative environmental law context, e.g., individual rights very often consist of the power of the citizen to demand the administrative agency to protect the citizen against damage for her health or property, be it damage caused by the agency itself or by another private party.

Environmental laws normally do not explicitly establish individual rights. They normally address the agencies and order them to do this and that. Nevertheless, even then subjective rights may be extrapolated from the text by interpretation. A 2 step test is applied (the so-called Schutznormtheorie): (1) Does the law oblige an administrative agency to do or not to do something? (2) If so, shall this obligation protect only the interest of the general public or also the interest of individuals. Obligations protecting individuals are regarded as subjective rights of those same individuals.

The test shows that the German concept of individual rights may in fact be closer to broader concepts of standing than one might expect at first sight.

3. Normal and constitutional rights

Besides rights which are granted by normal laws there are rights established by the constitution, the so-called basic rights. They are of higher dignity because they must be respected and concretised by the legislature, and in case of violation they can make legislative acts invalid (which however can only be determined by the Constitutional Court). In addition, basic rights influence the interpretation by the courts of normal laws, in particular if it must be investigated if a law provides an individual right.

4. Negative and positive basic rights

Basic rights traditionally have a "negative" bearing, i.e. they provide the individual with the power to shield herself against intrusions from the side of the state, but not to force the state to actively do something. However, with the rise of the welfare state "positive" obligations have been read into some of the basic rights, such as a right to demand the provision of public education facilities.

Basic rights, be they negative or positive, concern the "vertical" relationship between the individual and the state. They do traditionally not extend to the "horizontal" relationships between private persons. However, again as an achievement of the interventionist state, they have indirectly been extended to horizontal relationships. The doctrinal vehicle is the so-called protective duties of the state. For instance, the basic right to life and health (Art. 2 para 2) was constructed to also contain a duty of the state to protect the individual against health damage caused by other private individuals. One can also understand this protective duty to be part of the "positive" content of the basic right.

5. Legal protection of basic rights

The individual has access to the Federal Constitutional Court in order to challenge legislative acts for violation of basic rights. However, she must first exhaust the remedies available at the normal courts. For instance, should an administrative court, upon appeal of a neighbour, find that an authorisation for a polluting plant is based on a law which violates a basic right the court must suspend the case and ask the Constitutional Court to assess the constitutionality of the law. If the administrative court deems the law constitutional the plaintiff may file a constitutional appeal to the Constitutional Court after the administrative court has rendered ist judgement.

6. Constitutional environmental rights

The German federal constitution does not provide a basic right to a decent environment. There is only an objective obligation of the state to "protect the natural conditions of life, thereby taking responsibility for the future generations." (Art. 20a).

However, to the extent the quality of the environment is conditional for the health or property of an individual the environment enters into the realm of the basic rights to health (Art. 2 para 2) and property (Art. 14). In many judgements of the Feeral Constitutional Court the basic rights to health and property were invoked in an environmental protection context and can be regarded as providding some "subjectivised" constitutional basis for environmental protection. For instance, in a judgement on the fast breeder reactor (BVerfGE 49, 98, 140-Kalkar-) the court held that the individual has a right to demand health protection against possible damages caused by the nuclear power company. The court specified that this right comprehends not only protection against known and imminent dangers but also precaution against uncertain and unlikely risk. Mere theoretical assumptions beyond "practical reason" (praktische Vernunft) were however not covered by the basic right. Whilst this judgement is important as a constitutional basis for the precautionary principle in the concrete case the court found that the Atomic Act had adopted a sufficiently precautionary approach with regard to the fast breeder technology, and that the remaining risk was beyond "practical reason" and therefore to be accepted by the citizen as "a burden of social life" (sozial-adaequate Lasten).

In another landmark decision (BVerfGE 53, 30, 57 � Muelheim-Kaerlich-) the Constitutional Court has interpreted the basic rights to health and property to contain a procedural dimension besides the substantive content. A citizen had filed a constitutional complaint arguing that the agency when providing an authorisation for a nuclear power plant had not first of all given the public (including herself) an opportunity to comment. The Higher Administrative Court had rejected the appeal on the ground that the public partication procedure provided by the Atomic Act did not provide the public with individual rights to participate. The Constitutional Court said that in cases where the health of an individual can be seriously affected by an administrative decision those possibly affected have a right not only to be substantially protected but also to participate in the decision-making procedure. Therefore the concrete provisions on public participation contained in the Atomic Act had to be constructed to grant individual rights.

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