Vienna- In early September the German Federal Administrative Court (Federal Administrative Court) decided that, as it is now directly affected citizens, also recognized environmental organizations can make the following rules on clean air plans in court. Well written copy of the judgment is available (BVerwG 7 C 21:12). Specifically, the city of Darmstadt is obliged to implement the measures necessary to comply with the emission limit value for NO2. One of the possible measures is the introduction of an environmental zone.
According to the Federal Administrative Court plaintive German Environmental Aid is injured in their rights if the result prescribed by EU law and German law NO2 limit value for the protection of health in Darmstadt is not respected, and therefore entitled to bring proceedings. Decisive for this are two decisions of the EU Court of Justice: First, the decision Janecek ( 25 7, 2008 , C-237/07 ) , the directly affected individuals and legal entities conceded the right to the competent authorities - possibly with recourse to the responsible courts - to obtain appropriate action plans. Secondly, the decision "Slovak Brown Bear" (of 8 3, 2011 , C-240/09) , according to which the European legal protection of individual rights in the light of the ratified by the EU Aarhus Convention should be interpreted broadly and environmental organizations must be accessible. ( Art. 9 para 3 of the Aarhus Convention is the public concerned, among which in any case environmental organizations are to be understood, the right to bring environmental law violations in court) . According to the Federal Administrative Court alone bear such a broader understanding of the subjective right of the development of European Union law bill. "It has been marked by the beginning of the trend to mobilize through a generous recognition of individual rights to citizens for decentralized enforcement of EU law."
Movement in Austria
In Austria as citizens began to move. In March 2005 brought a Grazer citizens because of the massive violations of statutory fine limits a lawsuit against the Republic and the Province of Styria and coveted the finding that those would have in the case of future occurrence of health to bear the costs. The lawsuit was indeed allowed, but ultimately the proof requirements (health risk to the plaintiff and lack of actions by the Authority) insurmountable overstated (OGH 1 Ob 151/06x of 12 9, 2006 and OGH 1 Ob 68/09w of 6 7, 2009). Another attempt was made in 2008 on an administrative level: A Lower Austrian requested the Governor Regulation of fine dust -reducing measures. She received a negative decision, the Minister of the Environment confirmed. The Administrative Court held that an immediate concern within the meaning of the Janecek judgment of the ECJ could be, if only for the place of permanent residence, or about the place of residence and place of work. The citizen can not therefore successfully apply measures for the whole province (Administrative Court of 26 2010/07/0161 6.2012).
This decision, however, gave rise to hope. Especially considering the ongoing infringement proceedings brought now a family Graz in March 2013 when Governor application to add the Styrian Clean Air Act to traffic-related measures such as an environment zone. The Governor responded within the six-month decision period, provided, however - as has always been the Minister of the Environment - a right to clean air in dispute. The Janecek Court of Justice ruling was delivered to the old air quality directive and not transferable to the new Directive 2008. This makes short-term measures are no longer mandatory, but rather put them to the discretion of Member States. Therefore, such measures could not be enforced by citizens. The is countered by the fact that the new policy a long-term air quality plan requires absolutely still and the requested action should be part of this long-term plan. In addition, subject to a discretionary decision and the judicial review. It is to be hoped that pending appeal decision of the Ministry of the Environment not again pass six months.
Rhetoric and reality
The Austrian legislator has so far ignored the requirements of the Aarhus Convention and the Court's requirements for the enforcement of environmental law by individuals and organizations. The European Commission hatches again on a proposal to transpose Article 9 para 3 of the Aarhus Convention. For now, citizens and environmental organizations have hope for the enforcement by the courts. The German example is encouraging. The gap between delivered up and in speeches like zugesagtem environmental and health and the reality probably not be otherwise close.
Dr. Marlies Meyer's environmental and constitutional law expert in the green Parliamentary Club and a board member of the Green Alternatives Association in support of citizens' initiatives, which supports the three mentioned methods in Austria (has).
