AEAJ conference on 12 – 13 November 2009 in Palermo

Access to administrative justice in order to seek fundamental rights

German case study
presented by Werner Heermann

The EC established a scheme for greenhouse gas emission allowance trading by the Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003. This Directive was implemented by the federal law from 8 July 2004 (Treibhausgas-Emissionshandelsgesetz).

An enterprise from the cement industry lodged an appeal with the Administrative Court of Würzburg and wanted a declaration that it has no obligation pursuant the law from 8 July 2004 because of violation of fundamental rights provided in Article 14 and 12 of the German Constitution (Basic Law).

This case raises the following questions:

The scope of judicial review.

concerning a national legal act of parliament

Is a national court empowered or obliged to review a legal act of parliament in the light of national fundamental rights?
If so, is a national court empowered to such a review even if the law is implementing an EC directive?
If so, how broad is the control in the light of national fundamental rights in this case?
Is a national court empowered or obliged to review national legislation in the light of European law?

concerning EC law

Is a national court empowered or obliged to review an European legal act, like a directive?

If so, which rules are relevant?

Must a national court review the case in the light of EC law even if a violation of EC law is not invoked by the plaintiff?

Does the directive 2003/87/EC violate European fundamental rights?

2. The power of the judge

Is a national court empowered to quash a national legal act of parliament,

aa) because of violation of national fundamental rights ?
bb) because of violation of EC law?

b) Is a national court empowered to quash a European legal act?

National legal framework:
Basic Law
Article 12 (Professional freedom)

(1) All Germans have the right freely to choose their trade or profession their place of work and their place of training. The practice of trades and professions may be regulated by law.
…
Article 14 (Property, right of inheritance)
(1) Property and the rights of inheritance are guaranteed. Their content and limits are determined by the laws.
(2) Property imposes duties. Its use should also serve the public weal.
(3) Expropriation is permitted only in the public weal. It may take place only by or pursuant to law which provides for kind and extent of the compensation. The compensation shall be determined upon just consideration of the public interest and of the interests of the persons affected. In case of dispute regarding the amount of compensation, recourse may be had to the ordinary courts.
Article 19 (Restriction of fundamental rights).
(1) Insofar as under this Basic Law a basic right may be restricted by or pursuant to a law, the law must apply generally and not solely to an individual case. Furthermore the law must name the basic right, indicating the Article.
(2) In no case may a basic right be infringed upon in its essential content.
(3) The basic rights apply also to corporations established under German Public law to the extent that the nature of such rights permits.
(4) Should any person’s right be violated by public authority, recourse to the court shall be open to him. If no other court has jurisdiction, recourse shall be to the ordinary courts.

Article 93 (Federal Constitutional Court, jurisdiction)
(1) The Federal Constitutional Court decides:
4a. on complaints of unconstitutionality, which may be entered by any person who claims that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103, or 104 has been violated by public authority;

Article 100 (Unconstitutionality of legislation)

(1) Where a court considers a law unconstitutional, the validity of which is relevant to its decision, the proceedings shall be stayed, and a decision shall be obtained from the Land court competent for constitutional disputes if the matter concerns the violation of the constitution of a Land, or from the Federal Constitutional Court if the matter concerns the violation of the Basic Law. This also applies if the matter concerns the violation of this Basic Law by Land law or the incompatibility of a Land law with a Federal law. (2) If, in the course of litigation doubt exists whether a rule of public international law forms part of the Federal law and whether such rule directly creates rights and duties for the individual (Article 25), the court shall obtain the decision of the Federal Constitutional Court.

Solution

The Administrative Court (Verwaltungsgericht) of Würzburg rejected the recourse by judgement from 9 November 2004 (No W 4 K 04.948) and admitted a leap-frog appeal (Sprungrevision) to the Federal Administrative Court (Bundesverwaltungsgericht). The final revision was rejected by the Federal Administrative Court by judgement from 30 June 2005 (No BVerwG 7 C 26.04). The plaintiff entered a complaint of unconstitutionality which was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) by decision from 14 May 2007 (No 1 BvR 2036/05)

In the context of this case the courts had to deal with the following questions:

The scope of judicial review.

Concerning the national legal act of parliament

Is a national court empowered or obliged to review a legal act of parliament in the light of national fundamental rights?

In Germany each court has to revise the constitutionality of legal acts of parliament concerned. But if it is convinced of unconstitutionality it must submit this question to the Constitutional Court. The Constitutional Court only has the right to quash a legal act of parliament (see Article 100 Basic Law). Fundamental rights are laid down in the first chapter of the German Basic Law. As an administrative court is not empowered to annulment of a legal act of parliament in Germany, the plaintiff wanted a reference for a preliminary ruling to the Federal Constitutional Court.


If so, is a national court empowered to such a review even if the law is implementing an EC directive?

In this case the control in the light of national fundamental rights is limited. Pursuant to the jurisprudence of the German Constitutional Court (Solange-als-Rechtsprechung) it shall not exercise its jurisdiction as long as the European Court of Justice guarantees an equivalent protection of fundamental rights on European level. In its recent judgement from 30 June 2009(Treaty of Lisbon) the Constitutional Court referred to this jurisprudence. In the given case the legal rules, which are mere implementation of the directive 2003/87/EC are not revised in the light of national fundamental rights.

If so, how broad is the control in the light of national fundamental rights in this case?

Pursuant Article 249(3) EC a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
In the given case the review is limited to the legal rules, which are not determined by the directive.

Is a national court empowered or obliged to review national legislation in the light of European law?

Yes it must because of the primacy of European law. See the following annex to the Treaty of Lisbon:

17. Declaration concerning primacy

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

"Opinion of the Council Legal Service
of 22 June 2007

It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641  [1]) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."

concerning Directive 2003/87/EC

Is a national court empowered or obliged to review a European legal act, like a directive?

Yes, it must.

which rules are relevant?

The rules of primary EC law are relevant, in the given case fundamental rights on European level.

See Article 6 EU

1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

See the protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms

Article 1
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

See the Charter of Fundamental Rights of the European Union
Article 17
Right to property
Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.
Intellectual property shall be protected.

Article 15
Freedom to choose an occupation and right to engage in work
Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Article 52
Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognized by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

The right of freedom to pursue trade or professional activities is recognised by the European Court of Justice (ECJ)
Judgment of 13 December 1979. - Liselotte Hauer v Land Rheinland-Pfalz. - Reference for a preliminary ruling: Verwaltungsgericht Neustadt an der Weinstraße - Germany. - Prohibition on new planting of vines. - Case 44/79.
See furthermore the following Annex to the Treaty of Lisbon

1. Declaration concerning the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.

The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.

Must a national court review the case in the light of EC law even if a violation of EC law is not invoked by the plaintiff?

The German law of judicial procedure in administrative matters is ruled by the ex officio investigation. In the given case the Federal Administrative Court criticized that the Verwaltungsgericht did not cite European fundamental rights.

Does the directive 2003/87/EC violate European fundamental rights?

For a reasoned opinion the gas emission allowance trading system must be assessed.
For general guidelines see the ECJ judgment of 13 December 1979, case 44/79.

It is necessary that restrictions should in fact correspond to objectives of general interest pursued by the community and that, with regard to the aim pursued , they should not constitute a disproportionate and intolerable interference with the rights of the owner , such as to impinge upon the very substance of the right to property..
In the same way as the right to property the right of freedom to pursue trade or professional activities, far from constituting an unfettered prerogative, must be viewed in the light of the social function of the activities protected thereunder.
In the given case the Federal Administrative Court denied that the directive 2003/87/EC violates European fundamental rights. The Federal Constitutional Court did not touch this issue, because its scope of review is limited on national fundamental rights.

2. The power of the judge

Is a national court empowered to quash a national legal act of parliament,

aa) because of violation of national fundamental rights ?

Under the German law The Constitutional Court obtains a monopole (see Article 100 Basic Law).

because of violation of EC law?

In this case Article 100 Basic Law is not applicable. The court must decide itself, but of course a reference for a preliminary ruling by the European Court of Justice pursuant Article 234 EC is possible.

Is a national court empowered to quash a European legal act?

No, see the Foto Frost doctrine.

Judgment of the Court of 22 October 1987. - Foto-Frost v Hauptzollamt Lübeck-Ost. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Lack of jurisdiction of national courts to declare acts of Community institutions invalid - Validity of a decision on the post-clearance recovery of import duties. - Case 314/85.