Representative action

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Class action is a form of popular action , in clubs or organizations the legal standing get awarded, not to make the violation of their own rights, but the rights of the public.

In Switzerland, the right to bring such a lawsuit is known as the right of association complaints . In Austria one speaks of party status .

development

The representative action arose out of judicial training in the USA, when in 1978 the Supreme Court stopped the construction of a dam on an action by a nature conservation association because it would have led to the extinction of a fish species. Before that, the legal scholar Christopher D. Stone had asked in a book in 1973: "Should Trees have Standing?", Whereupon several nature conservation associations filed lawsuits and the courts initially decided differently. The social-liberal coalition in Bonn then planned a right of class action for nature conservation associations in the Federal Republic of Germany, but the project ended with the turn of 1981.

In 1988, a coalition of all major German nature conservation associations filed a lawsuit against the Federal Transport Minister Jürgen Warnke , because the German Hydrographic Institute under his authority had allowed chemical and disposal companies to dispose of titanium dioxide , thin acid and waste containing PCBs on the high seas in the German Bight . This was the population of harbor seals in the German and Dutch waters collapsed and been reduced by about 80%. The lawyers of the associations pointed out that according to previous German law, neither they nor the seals are entitled to sue and that there are no residents entitled to sue in the disposal area on the high seas. They asked the court to grant them legal standing anyway in order to make a court decision possible. As expected, the action was dismissed as inadmissible .

Germany

In German law, there are now different ways of bringing collective actions in the various areas of law.

Representative actions in administrative law

Representative actions are of particular importance in environmental law . In principle, German administrative procedural law is based on the system of individual legal protection. According to Section 42 (2) VwGO , only those who claim that their own rights ( subjective public law ) have been violated by the administrative act are entitled to take legal action . An environmental protection association cannot take action against larger projects that affect the environment. If environmental associations wanted to take action against the construction of a motorway, for example, they could only sue if they themselves had properties in the area of ​​the construction project that were affected by it. As a result, some environmental associations had acquired so-called blocked properties there at short notice in order to gain legal standing. However, if the land does not serve the purpose of the association in any other way, a lawsuit in the planning process can be classified as illegal.

Conservation law

The right to class action in nature conservation law has been bindingly regulated in the Federal Nature Conservation Act (BNatSchG) since 2002 . Section 8 of the BNatSchG regulates the participation of associations, particularly in Section 64 of the BNatSchG “Legal Remedies” for associations. The federal states can extend the class action right to procedures and facts that are their own responsibility.

Lawsuits against federal authorities are only possible at

In addition, the rights of the nature conservation associations to bring legal action basically correspond to those of individuals. For example, they can sue against the rejection of their request for access to information because access to environmental information is one of their rights, or against a construction project if it affects their rights.

The European Court of Justice (ECJ) ruled on May 12, 2011 in the Trianel proceedings that a regulation restricting the right of environmental associations in Section 2 of the Environmental Remedies Act violates EU law. The Federal Republic of Germany must now extend the right of environmental associations to sue. Until a change in the law comes into force, recognized environmental associations can invoke EU law directly to justify their rights of action.

Environmental Appeal Act

With the Environmental Remedies Act , which came into force at the end of 2006 , the position of the environmental associations was decisively strengthened. You now also have the opportunity to take legal action against certain environmental approval decisions for industrial plants (in particular according to the Federal Immission Control Act ) and infrastructure measures. The recognized associations thus have a right of action for certain environmental decisions and permits and can object to the unlawfulness of the permit before the administrative courts. In particular, it can also be criticized that a required environmental impact assessment has not been carried out.

Regarding the effects, reference is made to the Trianel decision of the ECJ.

Disability Equality Act

The law for the equality of disabled people contains in § 15 BGG a collective action right, after a recognized disability protection association can bring an action in accordance with the administrative court order or the social court law to determine a violation of certain disability protection regulations.

Animal welfare

Recognized animal welfare associations have the right to bring an association action in Bremen, Lower Saxony, North Rhine-Westphalia, Hamburg, Rhineland-Palatinate, Schleswig-Holstein, Baden-Württemberg and Saarland (as of September 2019). The introduction is being discussed in other countries. In Bavaria, the collective right of action for animal welfare associations was rejected in December 2014 and again in March 2016.

civil right

In German civil law there is also the possibility for associations to take legal action within the framework of their association purposes.

In particular, the focus here is on the possibility of consumer protection associations taking legal action under the Injunctive Action Act for injunctive relief or revocation in order to enforce consumer protection regulations . Since individual complaints can usually only be inadequate for the enforcement of consumer protection against unfair general terms and conditions, an independent collective action law was created with the Injunction Law, which is otherwise only permitted in German civil proceedings in exceptional cases.

In other laws, too, such as Section 8 (3) No. 2 of the Act against Unfair Competition , associations are given the opportunity to bring actions for the elimination or omission of an unfair act in order to promote commercial or independent professional interests. A similar instrument is the model declaratory action to assert consumer interests .

Austria

Consumer Protection Act

The Austrian Consumer Protection Act also recognizes representative actions to protect consumers. Here, too, we are dealing with a legal position that deviates from the otherwise common principle in Austrian private law that only the person concerned can enforce his / her rights by filing a lawsuit.

Through the representative action in the Consumer Protection Act , it is possible that certain organizations (listed in Section 29 (1) KSchG) such as the Federal Chamber of Labor , the Austrian Chamber of Commerce or the Association for Consumer Information can claim compliance with the Consumer Protection Act without being "personally" affected.

Web links

Individual evidence

  1. a b North Sea - How absurd. Der Spiegel, September 12, 1988 .;
  2. ^ No right of action for seals. taz, September 30, 1988 .;
  3. Judgment of October 27, 2000. Ref. 4 A 10.99, BVerwGE 112, 135th BVerwG ;
  4. a b ECJ, judgment of May 12, 2011. Az. C-115/09, -Trianel-.
  5. Environmental law / collective action: News. (No longer available online.) UBA, June 29, 2011, archived from the original on July 17, 2011 : “The ECJ ruled on May 12 , 2011 in the“ Trianel Proceedings ”that a regulation restricting the right of legal action of environmental associations in § 2 Environment - Appeal Act violates EU law. The Federal Republic of Germany must now extend the right of environmental associations to sue. Until a change in the law comes into force, recognized environmental associations can directly invoke EU law to justify their right of action. ” ;Evaluation of the ECJ ruling of May 12, 2011 on the right of environmental associations to take legal action. (PDF) UBA , June 29, 2011 .
    ;
  6. ^ Law on the right of collective actions for animal welfare associations. Journal of Laws No. 46 of October 5, 2007 p. 455. In: Umwelt-online.de. September 25, 2007 .;
  7. Alfons Deter: Lower Saxony State Parliament resolves collective action for animal rights activists. In: top agrar online. April 10, 2017 .;
  8. Law on the right of collective actions and rights of participation for animal protection associations (TierschutzVMG NRW). of June 25, 2013, GV. NRW. 2013 p. 416. ( expired on December 31, 2018).
  9. Hamburg law on collective action for animal protection associations (Hamburg Animal Protection Association Law - HmbTierSchVKG). HmbGVBl. 2013, p. 247. May 21, 2013 . ;
  10. State law on participation rights and the right to classify recognized animal welfare associations (TierSchLMVG). GVBl. 2014, April 44, 2014 . ;
  11. ^ Law on the right to collective action for animal welfare. GVOBl. Schl.-H. No. 2 from 02.26.2015 p. 44 Gl.-No .: B 7833-3. January 22, 2015 . ;
  12. Law on participation rights and the right to classify recognized animal welfare organizations (TierSchMVG). Printed matter 15/6858. State Parliament of Baden-Wuerttemberg, May 6, 2015 . ;
  13. Act No. 1810 on the right of collective actions for recognized animal welfare associations (Tierschutzverbandsklagegesetz - TSVKG). June 26, 2013 . ;
  14. Further dispute about the right of action for associations. Deutschlandfunk, March 1, 2016, accessed on March 2, 2016 .