Felix Lange

Verbandsklagerechte und das Bundes-Klimaschutzgesetz

Völker- und europarechtliche Implikationen

Jahrgang 147 () / Heft 2, S. 264-296 (33)
Publiziert 23.11.2022

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The article assesses the legality of the exclusion of representative environmental action under the Federal Climate Change Act. The 2021 Act lays down certain annual mitigation targets by stipulating annual emission budgets for different sectors like energy, industry and transport. The Act explicitly states that the annual emission budgets and annual mitigation targets are binding. However, according to Section 4 (1) sentence 10 of the Act, subjective rights and actionable legal positions shall not be established by or on the basis of the Act. This study relates this provision to its European and international legal context and develops the following claim: if one takes the doctrinal interconnections between international, European and domestic law seriously, environmental associations must – within certain limits – be able to take legal action with regards to the annual emission budgets. The argument follows a three-step approach. First, the exclusion of any right of action in the Federal Climate Change Act violates an international treaty, namely Article 9 (3) of the Aarhus Convention on the Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. This provision guarantees environmental associations the right of access to justice in matters of domestic environmental law. Secondly, because the European Court of Justice understands Article 9 (3) to be an integral part of the legal order of the European Union, the provision enjoys primacy over Section 4 (1) sentence 10 of the Act. Thirdly, it follows that associations can take legal action before domestic administrative courts asking for additional measures to comply with the annual emission budgets, but not for the enactment of legislation.

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