The federal government has decided to reform the collective actions brought by environmental associations. Contrary to what was feared, the draft law does not contain any elimination of collective action law, but rather symbolic tightening. In some cases, the right of collective action, which is regulated in the Environmental Remedies Act (UmwRG), is even being expanded.
The expansion of the right to take collective action is based on EU legal requirements and was already included in the Federal Government’s first draft law in August.
In 2022, the European Court of Justice (ECJ) decided that environmental associations can also sue against vehicle type approvals. This was achieved by German Environmental Aid as part of the diesel scandal. The UmwRG is now being adapted to the requirements of the ECJ and a similar ruling by the Federal Administrative Court.
In addition, environmental organizations that are not democratically organized should also be able to sue in the future. This means that foundations, for example, can also sue. This is what the contracting states to the international law Aarhus Convention, on which German collective action law is essentially based, have demanded of Germany. This also expands the right of collective action.
Since August, however, the wind has increased and the CDU/CSU in particular are increasingly pushing for a restriction on the right to take collective action, especially in order to accelerate infrastructure projects. The CSU state group even made this a key topic at its closed meeting in Seeon. The environmental associations were outraged and pointed out the need for collective action law, as legal violations that harm the environment cannot otherwise be brought to court.
The most important demand of the CDU/CSU was the reintroduction of the so-called preclusion. Anything that has not already been submitted in the approval process should no longer be taken into account in court. This was the law in force in Germany until 2015, but was then objected to by the ECJ and subsequently abolished. The reintroduction would clearly violate EU law. The federal government has now recognized this and wants to work for the introduction of preclusion at EU level in the future.
As a replacement for the preclusion, an abuse clause was introduced in the German UmwRG in 2017. According to this, arguments should remain “disregarded” if the initial presentation in court is “abusive or dishonest”. In practice, the clause played no role. For the sake of the CDU/CSU, it should now be made more concrete using standard examples. However, this does not involve any tightening because the late submission must still be “abusive or dishonest”.
It is also relevant that representative actions against infrastructure projects (initially) have no suspensive effect. However, the suspensive effect can be applied for in each individual case using an expedited procedure. Processes are lengthened rather than accelerated. But the CDU/CSU is obviously more concerned with symbols than with acceleration.