Related EEC Directives implemented:
In practice, the federal legislator has increasingly confined the scope of adopting regulations by local authorities. A generalization concerning progressiveness of local government is not possible. A great number of communities have been very active in the environmental sector, for example in the Local Agenda 21 processes. However, all activities in the environmental sector on the local level are increasingly threatened by economic constraints.
There is no specific law on access to information or a provision on access to information in general. The Federal Administrative Procedure Act provides access to administrative information only for persons that take part in administrative procedures or that might be affected by administrative decisions. The Federal Freedom of Access to Environmental Information Act provides access to environmental information. It came into force on July 15, 1994.
Environmental information is defined as being all information available in the form of writing, pictures or other media on the state of the environment, (e.g. state of water, air, soil, fauna and flora), or on activities or measures that might have harmful effects (e.g. noise), and on environmental protection activities or on measures of the administration for the protection of the environment. The act applies to all information about the environment that is available at the public authorities at local, state or federal level as well as all other bodies enforcing public administrative environmental law (Article 2.3).
Conditions for Obtaining Information
The agencies shall provide information within two months, but there is no strict obligation for this. The Federal Administrative Court Act (Article 75) generally provides for the possibility of forcing the administration to take action. The court action is admissible after three months from the date of the first letter of request if a decision has not been made.
Those Having Right to Receive Information
Any person has the right to receive access to information on the environment upon request (Article 4).
The right on access to information is limited:
Rights of Public to Specify the Form in Which Information and/or Environmental Information is Provided
Public authorities have the choice to provide oral information or access to the original files or other means of information (Article 4.I).
The wording of the federal act gives the public no right to specify the form in which information and/or environmental information has to be provided. This applies to both access to information and access to documents. However it is discussed whether the authorities are nevertheless obliged to hand out information in the most effective way in order to fulfill the obligation of the European directive. The federal administrative court ruled in 1996 that the authority is generally obliged to provide information in the form that has been requested by the applicant. It can only choose a different form when significant reasons can be given.2
Refusal to Provide Information
The scope of the right to gain access to information is limited in Article 7 of the Federal Act. The Act generally excludes information
The information is to be refused if the request concerns unprocessed data or documents that are still in the stage of preparation. The possibility of refusal also applies to internal communications of the public authority. Information which has been submitted by third persons without a legal obligation can only be made accessible with the authorization of the person.
Further exemptions are laid down in Article 8:
Information cannot be revealed if
Informal Guidelines for Agencies and the Public
There are no official general guidelines for public authorities on how to provide information, although states have issued guidelines for the internal use of authorities.
Specific Institutions/Officials for Providing Information
There are no general official guidelines issued to the public on how to request information. However, a version of the federal act has been published by a civil servant of the federal ministry of the environment in the Federal Gazette.3 Other authors have published versions as well.4
If an Authority Does Not Possess the Information
If the public authority does not possess the requested information, it is not obliged to collect information. On demand it forwards the request to the responsible authority.
Information Held in Public Registers
Public registers in the sense of Pollutant Release and Transfer Register (PRTR) or Toxins Release Inventory (TRI) do not exist in Germany. For this reason no free access be possible.
Costs of Obtaining Information
Charges are in fact very often an obstacle to the general access to information because a number of authorities charge high administrative fees, ranging up to several thousand marks. For example, the "federal ordinances for fees for the works of federal authorities performed under the Federal Access to Environmental Information Act" of December 7, 1997 allows a range of DEM 50 to 1,000 for a written answer to a request, depending on the effort. If the collection of material causes exceptional effort fees as high as DEM 2,000 and up to DEM 10,000 are allowed.
According to the Federal Access to Environmental Information Act (Article 11) a report on the state of the environment has to be published every four years.
The federal environmental agency is obliged to plan and support scientific studies of the federal ministry of the environment, to measure air pollution, to take care of the documentation of environmental issues and the informing of other authorities and the public. The federal environmental agency publishes regular reports on the state of the environment.
Generally all kinds of information directly affecting environmental quality such as pollution of water, air and soil, and general information of every kind is provided.
Two federal ordinances provide active dissemination of information in cases of emergency:
The measurement of pollution in the air or other medium is conducted by the federal environmental agency and by special authorities or institutes of the single states. Regularly updated brochures containing general information and lists of further literature can be ordered, usually free of charge, at the environmental authorities. Reports about air quality are published as summaries, often including information about water and soil quality as well. The so-called reports on emission control are regularly published.
Reports containing only the results of measurements of the air are published weekly, monthly and annually as a booklet and by videotext. Information is also accessible by mail, audiotext and phone. Information is also accessible via the Internet.
Some sources which provide regularly updated information are:
Electronic Means of Dissemination
There is no obligation to spread information electronically.
Nongovernmental Centers
The public can obtain information from environmental organizations or groups. German nongovernmental organizations provide and process information to the public, but also undertake lobbying and conceptual work and environmental projects on their own.
No specific NGO information center exists. This might be due to a lack of governmental funding. Access to information concerning the quality of the environment is already rather good in Germany (e.g. through the reports of the environmental agency). For this reason there might not be an urgent need for a center that provides information. A need does however seem to exist concerning the assessment and interpretation of the information and concerning specific regional or project related information and expertise.
The possibility of the public to be actively involved in permitting procedures has however decreased during the past years. Government and legislators have attempted to de-regulate and simplify environmental law in order to speed up permitting procedures. The number of permitting procedures for industry that require public notification and public participation has decreased. In most cases changes of existing facilities are not subject to public procedure any more, even though the dimension of the change can be rather big. Notifications without any procedures have replaced permitting procedures in many cases.
The participation rights provided by the transportation planning laws have been cut down as well. A simplified permitting procedure has been introduced that excludes the public as well as the legally recognized environmental organizations from the procedures. The genetic engineering legislation has also faced some changes. The public hearing in permitting procedures has been abolished.
The public procedure in the framework of the Environmental Impact Assessment (EIA) Law has not been changed. However, the federal administrative court has ruled in several cases that non-compliance with EIA laws will — except in very rare exemptions — not have any consequences for the legality of the permitting decision.
Referenda
In principle, referenda are possible in some states and at the local level. There are often three possible instruments. Their distinction varies in the different states.
The first instrument, a kind of request of citizens (Bürgerantrag), is the weakest one. It contains the right to suggest the consultation of a specific affair to the municipal authorities. The second instrument, a kind of citizens demand (Bürgerbegehren), contains the right of the citizens to demand a referendum at their municipal authority. The third instrument is the referendum in its legal meaning, i.e. the municipal authorities submit a specific issue to the decision of the citizens.
A short overview of the different conditions in some states of Germany is shown in Table 1.
| TABLE 1: Conditions for Referenda in Different German States | ||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Bavaria | Baden- WŸrttem- berg | Berlin | Bremen | FNL (5 New States) | Hamburg | Hesse | Lower Saxony | North- Rhine- West phalia | Rhine- land Palatinate | Saar- land | Schleswig- Holstein | |
| Burgerantrag | No | Yes | Yes | Yes | Yes | No | Yes | Yes | Yes | |||
| Signatures | 5% | 10% | 10-20% | 2.5-5% | 4-10% | 15% | 5% | |||||
| Burgerentscheid | No | Yes | Yes | No | No | No | No | No | Yes | |||
| Burgerbegehren | No | Yes | Yes | No | No | No | No | No | Yes | |||
| Signatures | 15% | 10% | 10% | |||||||||
| Quorum | 30% | 25% | 25% | |||||||||
|
||||||||||||
| TABLE 2: Referenda in Bavaria until August 1996 | ||
|---|---|---|
| Scope | Number | % |
| Development planning and unitary development plans | 100 | 31.5 |
| Traffic projects | 82 | 25.9 |
| Public institutions for infrastructure and supply | 71 | 22.4 |
| Disposal projects | 32 | 10.1 |
| Miscellaneous | 19 | 6.0 |
| Charges | 13 | 4.1 |
| Total | 317 | 100.00 |
|
||
Right to Initiative
There is no right to initiate lawmaking or rulemaking on environment and related issues other than that of the government and of the first and second chamber of the legislator. Citizens can only write a petition to the petition committee of parliament which might take up the proposal.
Public participation is regulated (e.g. in the Federal Emissions Control Act, the Atomic Energy Act), in formal public planning procedures, in development planning and in general in the federal and state administrative procedure acts.
However, as stated above, this procedure is very often not applied any more. In non-public procedures it will be possible to participate as well (e.g. have access to the files and to write comments). These procedural rights are then limited to those that might be affected in their own subjective rights.
The procedural rights apply to everybody, the interests of all groups concerned have to be weighed and the decision remains with the authorities. The recognized nature protection groups have to be notified by the authorities prior to some decisions that will have an impact on nature protection. The groups can have themselves recognized by the authorities on request according to Article 29 of the Nature Protection Act.
Total numbers about procedures are not published by the authorities. Probably most procedures are conducted without public participation. An indication is given by a survey that are based on the report on the authorities in the state of North Rhine Westphalia between 1989 and 1992. It showed that of 1,017 permitting procedures for chemical production installations only 82 were conducted in public procedures (8.2 percent). In general 12.7 percent of the permits for all industrial installations were conducted under the participation of the public. After the recent de-regulation approaches less public procedures will be found.
There is no requirement to formally take public input into account in decisionmaking but the authorities have to show that they have considered it.
Public participation is only effective in cases where the citizens want to modify or change a project, but it cannot be successful in case the zero option is wanted. Citizens' groups had in the past very often contributed to an improvement of an authorization decision; we therefore consider it as a very effective environmental protection tool.
Citizens and NGOs will only participate if they have a sufficient political or private interest.
As regards the authorities time pressure is a limitation of the relevant procedure.
Only individuals who are directly affected in their rights by application procedures are normally notified about the decision process directly. In the case of a public procedure the public are informed as well (by advertisements on display, in newspapers and official gazettes). The notification usually contains information about the project, the place where files are on display and the deadline for complaints.
In some procedures a notification of the recognized nature protection groups is necessary. They will receive on request a full set of files in the individual case.
The partnership approach has not been introduced to German law yet. Decisions are taken by the competent authorities. Some procedural laws provide for a right to be heard. For example, the Federal Emissions Control Act provides for a public hearing in the framework of the permitting procedure for certain industrial installations. However, the public is only heard and cannot participate as a partner. On the policy level NGOs are sometimes included in roundtable talks, but the decisions are usually taken by the competent bodies.
Decisionmaking processes usually follow binding procedural rules. They are transparent for this reason. Citizens can only influence any governmental or administrative decisions if these decisions will have an effect on their personal rights (property, health, liberty rights). It is, however, possible to influence decisions informally, through political channels or through public relations work.
Openness of Parliamentary Committees
The sessions of parliament and the environmental committee are accessible to citizens/NGOs according to the standing orders of the house of parliament. According to these orders visitors can get a visitor's license at the gate if they show their passport. With this license they have access to the gallery of the Bundestag, or House of Parliament. Manifestations of approval or displeasure or contributions to the discussion are not possible.
Individuals/NGOs are not allowed to participate actively in the sessions of parliament and parliamentary committees, unless they have been invited to present a view at a committee hearing by a member of parliament. There are only some councils such as the SRU (German Council of Environmental Advisors) or the WBGU (German Advisory Council on Global Change) that consist of experts of some domains (mainly professors) which are neither members of parliament nor of the government. They elaborate experts reports once a year which are discussed publicly.
There is no law regulating the activity of lobbyists.
During the 1990s the German government has not put an emphasis on public participation. It was rather the aim of executive and legislative branches to limit or reduce public participation in decisions that can have an effect on the environment. A number of amendments to environmental laws cut participation rights. There are no mechanisms that provide for expert advice. In court cases or in administrative procedures, experts can be integrated and heard. If NGOs name the expert they will be responsible for the coverage of costs. However, a budget at the environmental agency is earmarked for NGO work. This budget has in fact been used to hold seminars about public participation, particularly in the eastern states.
On the other hand there are limitations concerning which right provides protection to the individual. According to the so-called theory of protective law of the federal constitutional court, it is not sufficient to claim that an environmental law provision has been infringed. Furthermore, the provision in doubt has not only to serve public interests, but has to aim at the protection of single individuals. In other words it has to give a public right to the subject. Only then is a violation of a personal right regarded as legally valid.
Because everybody can demand access to environmental information, everybody has the right to appeal or go to court if his/her request for access to environmental information is denied unlawfully.
Public participation can be challenged at the administrative court, but without much chance of success. The administrative decision will usually not be discounted.
Only under the precondition of a breach of the law and if through this an individual right is harmed, can a court case be successful (annulment or [in most cases] modification of the administrative decision). Recognized nature protection groups have access to court review under some preconditions when Nature Protection Law has been infringed.
Out of the rights set out in the constitution several have been used in cases brought before court, especially the right of general freedom of action (Article 2.I), of life and physical integrity (Article 2.II), the right to choose and practice an occupation (Article 12), the right to possess and use a property (Article 14.I.1) and the right of equality (Article 3).
| TABLE 3: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | -/x | -/x |
NGOs |
||
| everyone | - | - |
| interested/affected | -/x | -/x |
Approved environmental NGOs have an administrative standing according to Article 29.1 Federal Nature Conservation Act (BNatSchG) if nature conservation issues are affected.
If the legal standing exists in the administrative decisionmaking process basically it also exists in the administrative appeal of these decisions (according to Article 69 of the Administrative Court Law, VwGO) and in the judicial appeal of administrative decisions (according to Article 42, VwGO) to the administrative court.
The option to apply to the civil court exists if civil rights of a natural or a legal entity are possibly violated
As concerns environmental information, no data has been collected. According to our experience refusals arrive within the first week, relevant information within three weeks.
Regarding other decisions, no data has been officially collected or published. With respect to the implementation of the Federal Emissions Control Act that regulates permits for industrial installations some figures are known. The majority of permits are granted within three to six months. Complicated projects might take well over a year (See Tables 4 and 5).
| TABLE 4: Average of Formal (Public) and Simplified Procedures of Authorization from 1991-95 in the State of Brandenburg | |||||
|---|---|---|---|---|---|
| 1991 | 1992 | 1993 | 1994 | 1995 | |
| Formal procedures of authorization | 5 | 116 | 145 | 124 | 131 |
| Simplified procedures of authorization | 7 | 90 | 23 | 11 | 0 |
| Less than 3 months | 3 | 56 | 9 | 57 | 51 |
| 4-7 months | 5 | 111 | 86 | 64 | 58 |
| 8-10 months | 2 | 29 | 50 | 5 | 16 |
| More than 10 months | 2 | 13 | 23 | 9 | 6 |
| TABLE 5: Average Duration of Simplified Procedures of Authorization from 1993-95 in the State of Brandenburg* | |||
|---|---|---|---|
| 1993 | 1994 | 1995 | |
| Simplified procedure of authorization | 205 | 299 | 328 |
| Less than 3 months | 44 | 72 | 118 |
| 3-6 months | 103 | 155 | 144 |
| 6-9 months | 39 | 51 | 40 |
| More than 9 months | 19 | 21 | 26 |
| * After reorganization the only competent authority for simplified procedures of authorization | |||
There is a difference in internal control of execution of laws depending which material is concerned.
If laws are applied by the states as matter of charge, which means legislation is constricted to the federal legislator, they are controlled in respect of functional or legal transposition by federal administration.
If laws are applied by the states as a matter of their own, that means the states have the right for legislation of their own, federal control is constricted to legality of transposition.
Internal control of correct transposition is also to be provided by procedures of complaints.
For the citizens, enforcement of a law is only possible if they are concerned with rights of their own. There is no popular court review in German law. There is one exception, the group action in environmental protection according to Article 29 of the Federal Nature Conservation Act. Procedural errors concerning the participation of the groups in authorization procedures give them a right to take court action.
In case of illegal actions of the authorities which cause material loss or harms health there is obligatory liability of the state.
| TABLE 6: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | -/x | -/x | -/x | -/x | -/x |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | -/x | - | - | - | - |
The constitutional rights are the same as mentioned above, e.g. the right on life and physical integrity (Article 2).
| TABLE 7: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | -/x | -/x | -/x | -/x | -/x |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | -/x | - | - | - | - |
| TABLE 8: Court/Litigation Expenses (DEM) | |||
|---|---|---|---|
| Value of matter debatable | Steps of charges raising | Raising amount | Raising of lawyer costs |
| 3,000 | 600 | 20 | 40 |
| 10,000 | 1,000 | 15 | 55 |
| 20,000 | 2,000 | 30 | 70 |
| 50,000 | 5,000 | 45 | 80 |
| 100,000 | 10,000 | 60 | 140 |
| 400,000 | 30,000 | 200 | 160 |
| 1,000,000 | 60,000 | 295 | 250 |
| more than 1,000,000 | 100,000 | 300 | 300 |
| TABLE 9: Administrative Court - with Evidence | ||
|---|---|---|
| Value of claim (DEM) | Charges for adverse lawyer (w/o tax) | Charges total (w/o tax). Court charges incl. |
| 8,000 | 1,455 | 3,096 |
| 10,000 | 1,785 | 3,792 |
| 20,000 | 2,835 | 6,012 |
| TABLE 10: Higher Administrative Court - No Evidence | ||
|---|---|---|
| Value of claim (DEM) | Charges for adverse lawyer (w/o tax) | Charges total (w/o tax). Court charges incl. |
| 8,000 | 1,261 | 2,801 |
| 10,000 | 1,547 | 3,427 |
| 20,000 | 2,457 | 5,427 |
| In the federal administrative court, the charges are about 125% of these charges | ||
| TABLE 11: Federal Administrative Court |
|---|
| Further charges:
There is no possibility to get a waiver of one's own costs. The charges of court normally have to be paid by the losing party, but the judge can set a different partition of costs. |
Other NGOs offer technical or procedural help in the authorization procedures such as KGV (point of coordination of information on procedures of authorization) of the Oeko-Institut, Darmstadt. KGV distributes information about authorization procedures and helps with technical expertise in the assessment of permitting files free of charge.
NOTES:
1. See: Schomerus/Schrader/Wegener: Umweltinformationsgesetz, Baden-Baden 1995, Article 3, No. 7, 8.
2. Bundesverwaltungsgericht (Federal Administrative Court), No. 7 C 64.95.
3. Meyer-Rutz, Eckart, Das neue Umweltinformationsgesetz-UIG, Bonn 1995, Bundesanzeiger 13/a.
4. Schomerus/Schrader/Wegener: Umweltinformationsgesetz, Baden-Baden 1995, Kummer/Schumacher, Umweltinformationsgesetz, Weinheim 1997.