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Michael Bothe
The development of environmental law in the States of Europe and in what is now the European Union has mainly been achieved by legislation. In the international environmental relations between the States of Europe，international treaties have played an essential role. But despite this primary role of the law-making institutions strict ，the judiciary has played an important role in certain respects.
Before addressing this role of the judiciary，a few words on the development of legislation and international treaties in Europe are necessary. The growing awareness of the environmental problems which took place in the 1960s triggered in most West European States in the 1970s a wave of environmental legislation relating to various branches of environmental law（water，air，nature protection etc.）.
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It soon became clear that the European Economic Community（as it then was）had a role to play as differences of the law between various States of Europe would have a number of negative consequences in the common market. The environmental powers of the EEC were clarified in the Single European Act which entered into force 1987.
Today，most of the environmental law in the European Union is shaped by EU legislation，which is either directly applicable or prescribes a precise framework for national legislation.
International relations regarding the protection of the environment in Europe are characterized by regional cooperation. An important sub-group is the Scandinavian States.
But most of regional environmental treaty making takes place in the Economic Commission for Europe，which is a regional UN organ covering，for historic reasons，so to say Europe from Vancouver to Vladivostok，i.e. where both the U.S. and Canada in the West and the entire Soviet Union，now its successor States，in the East participate. It has provided a useful negotiating framework for a series of environmental treaties，beginning with the European Convention on Long-range Trans-border Air Pollution of 1979.
What is the role of the judiciary in this European system of environmental law？Right from the early 1970s there was an important move not to leave environmental protection in the hand of governments and their administrations alone，but to give to the interested citizen a role as promotor of environmental concerns. This means，inter alia，that citizens could go to courts for this purpose. It is the idea of citizens’suit which at the time was already developed in the U.S. and was considered by many actors as a good example for Europe.
The reaction of the law of different European States to this concept，however，varied. The reasons for the difference are in particular different rules on the right of standing. While according to the traditional German concept，a person can only challenge the legality of an administrative act before a court of law if the person can claim to be violated in his or her personal rights，the French law concerning administrative court procedure only requires that the plaintiff has an “interest” in the matter of litigation，an “ intérêtàagir ”，which is of course a much broader concept. In the traditional German concept，a citizen can only promote an environmental cause before a court of law if the environmental interests happen to coincide with a personal right. The French concept gives much better chances to citizens promoting environmental protection in an altruistic way. Under the French concept，actions by environmental associations to defend the interests for which they were created do not pose a legal problem. In Germany，special legislation had to be adopted to give associations a right of legal action in the field of nature protection law-a branch of environmental law where the said coincidence of environmental interests and personal rights will as a rule not exist.
These questions have now to a large extent been solved and clarified by a treaty elaborated in the framework of the ECE，namely the Aarhus Convention on Access to Information，Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998，which has now 47 parties. The convention is based，as the title already explains，on three principles：
- A right of access to environmental information which is in the hands of a public authority；
- Public participation in the process of public decision-making related to certain activities has an impact on the environment；
- Access to justice in relation to such matters，including citizen/association suits.
As to the latter principle，some controversial questions of interpretation remain. The potential of association suits was recently shown in the Netherlands：an environmental association and 900 citizens brought a suit against the Dutch government to remedy what they considered to be insufficient efforts to fight against climate change. A district court ordered the Dutch government to take all measures necessary to meet the 25%greenhouse gas emission reduction goal by 2015.
By unifying procedural requirements，the Convention has also solved a problem which for 30 years had occupied environmentalists in Europe，namely legal remedies in cases of trans-frontier pollution or other trans-frontier environmental impacts. In this respect，courts have been important.
The Austrian Administrative Court，in an early decision concerning an airport permit challenged for reasons of airport noise by an inhabitant of Germany living close by，held that the scope of protection of Austrian public law ended at the Austrian border an did not protect persons living outside. The case law of most European States which had to deal with the problem，however，very soon turned away from that restrictive concept. In 1974，the Scandinavian States concluded a treaty providing for an equal right of participation and judicial review for persons affected in one country by environmentally harmful activities taking place in the other.
The principle of equal right of access was also put forward by the OECD in its guidelines on trans-frontier pollution adopted in 1974.
Finally，the German Federal Administrative Court upheld the right of persons living in the Netherlands close to the proposed construction site of a nuclear power plant situated in Germany to challenge the decision of the competent German authorities before German administrative courts.
Private law，i.e. claims for damages，has also played a major role in cases of trans-frontier pollution and this law is to a large extent judge-made. In an early case，a German court of appeals held that a German farmer being victimized by trans-frontier pollution originating in France could sue the French enterprise in Germany. In the case of trans-frontier tort claims，German courts give the victim the choice to bring an action in the country where the tortfeasor acted or where the result of the tort occurred，which is of course an important advantage for the victim/plaintiff. Under current EU law，such a judgment can be executed in both countries without difficulty. This principle of compensation of transfrontier environmental damage has become very well established. When a major chemical accident occurred in the Suisse city of Basel causing a major downstream pollution of the River Rhine，the government of the downstream States（France and Germany）turned to the Suisse Federal Department of External Affairs to demand compensation. The ministry calmed the claimants：the chemical company will pay the damage. So it did，the problem was satisfactorily solved.
However，things are not always that easy. The inhabitants of some Southern areas of Germany suffer from airport noise produced by planes landing at or taking off from Zurich airport. They sued the Swiss airport，which is a private law corporation，before the German district court having jurisdiction for the area where the noise hit. The court held affirmed its jurisdiction concerning the airport activities producing effects in Germany and issued an injunction against the airport to take measures to reduce the noise. The airport appealed and the case was finally not pursued by the plaintiffs before the court of appeals. But it was then made the object of intergovernmental negotiations between Germany and Switzerland which lead to a modification of the routes of access to and departure from Zurich airport. In this case，the courts did not have the last word，but the very existence of the law suit had a salutary impact.
A much discussed means to protect environmental interests is the application of fundamental rights，of a special environmental right where it exists，or of other fundamental rights which may be interpreted in a way as to promote and protect environmental interests. This approach gives a crucial role to the courts. It is the courts，seized by citizens concerned or victimized，who are called upon remedying deficiencies of legislation by applying fundamental rights. This role of the courts is not uncontroversial. Effective and reasonable environmental regulation often requires complex solutions and public finance，neither of which can be furnished by a court of law. Nevertheless，courts have successfully accomplished the task of improving environmental protection in appropriate cases.
Nearly，all European States now have a guarantee of environmental protection in their constitutions，introduced on the occasion of new constitutions being adopted or by constitutional amendment. There is an environmental guarantee in the relevant EU instrument，namely the Charter of Fundamental Rights of the European Union（first adopted 1 Dec.2000）. But most of these constitutional provisions are not formulated，or at least not interpreted，as granting an individual right. They are rather understood as principles which may guide the interpretation of relevant laws. It is in this sense at least that they are applied by various courts in Europe.
Another important aspect is what has been called the greening of fundamental rights，i.e. giving an environmental content to certain fundamental rights which do not expressly address the protection of the environment. This is possible where，as already stated，a personal right coincides with an environmental interest. By a lawsuit to defend this personal right，the plaintiff also promotes an environmental interest，and the court seized by that lawsuit can defend such interest.
This development has to be distinguished from the question of the inclusion of a right to a decent environment in European national constitutions，and in the European Charter of Fundamental Rights.
The German constitution，the “Basic Law”，contains a provision on environmental protection which is formulated as a guiding principle of State policy，not as an individual right.
Courts have used it as a guideline for interpretation，it is therefore practically relevant for courts.
But even before the introduction of the environmental guarantee by way of a constitutional amendment，the Federal Constitutional Court had “greened”，in the sense just explained，certain constitutional guarantees，in particular the right to health and physical integrity.
A legal construction used for this purpose related to the health and environmental risks was created by nuclear power plant and by airport noise. The Court treats the permission to build a nuclear power plant as creating such risk，which could possibly violate the right to physical integrity. In permit proceedings，the neighbor must have all procedural rights of participation to defend his or her right to health，a right indeed violated in the case before the Court.
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Furthermore，the Federal Constitutional Court has recognized a protective duty of the State derived from the guarantee of physical integrity. This includes a duty to take measures，including legislation，in order to reduce airport noise likely to cause health hazard. [14] As to the use of nuclear energy，the Court held that the Parliament had a duty to intervene by legislation if it appeared that the risk involved in nuclear technology was higher than anticipated at the time when legislation allowing the peaceful use of nuclear energy was adopted. [15] This is a legal construction which the Court could use as an effective tool for environmental protection. Yet the Court has also recognized a broad discretion which the State possesses in fulfilling this protective duty. In both cases related to protective duties just mentioned，the Court did not see a violation. Yet for different reasons，the nuclear installation in question has never gone into operation.
Generally speaking，the essential leverage for environmental protection involved in this concept is the fact that the protection of a personal right may in parallel serve the protection of the environment.
Along lines of reasoning which are similar to those of the German Constitutional Court，the European Court of Human Rights has interpreted the right to life，
the prohibition of inhuman or degrading treatment
and the right to the protection of private and family life
as a protection against certain environmental hazards，such as airport noise and air pollution. The Court also uses the construction of a protective duty. In a first case，the Court has recognized a protective duty of the State to protect the neighbors of Heathrow Airport against noise pollution
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. In a case concerning unbearable smell originating from a waste dump-site，the court has treated the permit for that activity as a violation of the right of private and family life.
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This has remained the jurisprudence of the Court up to now.
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Courts cannot really substitute the legislator or in the international sphere the treaty maker in taking measures for a better protection of the environment，but they have nevertheless had in the past in Europe an important salutary role for environmental protection.
[2] For a comparative overviewsee M.Bothe/L.Gündling，Neuere Tendenzen des Umweltrechts im internationalen Vergleich，Berichte des Umweltbundesamts 2/90，Berlin 1990，at 7 et seq .
[13] Mülheim-Kärlich power plant case ，20 Dec. 1979，BVerfGE（Federal Constitutional Court Reports，vol.）53，30.
[14] Düsseldorf airport noise case ，14 Jan. 1981，BVerfGE 56，54.
[15] Fastbreeder （ Kalkar ） case ，8 Aug. 1978，BVerfGE 49，89.
[19] European Court of Human Rights， Powell and Rayner v.UK ，21 Feb.1990，Appl.9310/81.
[20] Lopez Ostra v.Spain ，9 Dec.1994，Appl.16798/90.
[21] See for example Fadeyeva v.Russia ，Judgment of 9 June 2005，Appl.55723/00； Moreno Gómez v.Spain ，Judgment of 16 Nov.2004，Appl.4143/02.