Rechtsprechungsbericht zum Umwelt- und Klimarechtsschutz seit 2018

Case law in environmental and climate protection matters in recent years has been characterised by an expansion of access to justice. This can largely be attributed to the relevant legal framework under international and European Union law. In Germany, this development is reflected in the case law on the scope of application of the Umwelt-Rechtsbehelfsgesetz (Environmental Remedies Act), which essentially creates a representative action for environmental associations. The impact of environmental associations is particularly evident in air quality law. In recent years, however, also the protection of individual rights has once again attracted the attention of the courts. The Court of Justice of the European Union has confirmed its broad understanding of natural and legal persons’ enforceable rights that contribute to the realisation of environmental protection. This provides a further example of the different standards of protection at the levels of the Member States and the European Union. While the CJEU promotes the guarantee of effective legal protection by the national courts, it abides by a restrictive understanding of access requirements at the Union level – especially for the action for annulment, as in the Carvalho judgment. By contrast, the climate decision of the German Federal Constitutional Court illustrates the potential of individual (fundamental) rights protection for climate protection. Comparing the CJEU’s and the FCC’s recent case law therefore only reinforces the impression that the CJEU is not a genuine constitutional and fundamental rights court.