Polluter pays principle

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The environmental law the polluter pays principle (Engl. Polluter pays principle ) is a principle of environmental protection , according to which costs of environmental law the polluter measures intended to be recovered.

In contrast, when considering cost allocation, such as in controlling , cost accounting or tax law , the " causation principle " is usually used .

With the Single European Act , a new section on the environment was added to the EEC Treaty in 1987 , according to which the Union's environmental policy is based, among other things, on the polluter pays principle. Since the Lisbon Treaty , the polluter pays principle has been mentioned in Article 191 (2) TFEU .

Polluter pays principle in environmental law (Germany)

The polluter pays principle is one of three principles of environmental law; the others are the precautionary principle and the principle of cooperation .

It states that the costs of preventing, eliminating and compensating for environmental pollution are to be attributed to the polluter. In contrast to the precautionary principle, it does not primarily serve to avoid environmental pollution or to use natural resources economically , but to allocate costs.

The polluter pays principle was first considered in environmental protection - on the initiative of the Interparliamentary Working Group of the German Bundestag ( IPA ) - in the waste oil law. The government draft for the waste oil law did not yet provide for this. In the environmental program of the federal government of 1971, the polluter pays principle was also mentioned at the political level. There it was criticized that the general public has to accept environmental damage and raise funds for its elimination. In the years that followed, the polluter pays principle was enshrined in various laws, since in Germany - unlike in Switzerland, for example - there is no comprehensive environmental protection law.

Instruments for implementing the polluter pays principle are legal regulations such as the introduction of the wastewater tax or the 13th BImschV , public and private measures for strategic environmental management such as environmental declarations and environmental information systems, and the promotion of private-sector environmental protection, for example through voluntary commitments within the framework of industry agreements.

Critics complain that the polluter pays principle is empty and unsuitable for adequately assigning the consumption-related environmental impact of the various actors in individual cases to causal factors. The tension between the polluter pays principle as a regulatory instrument and the interests of free (world) trade without market access barriers is also problematic.

For example, according to § 13 BNatSchG, the polluter should primarily avoid significant damage to nature and the landscape. Unavoidable significant impairments are to be compensated by compensatory or substitute measures or, if this is not possible, by a monetary replacement.

Such anchoring is necessary because the polluter pays principle as a legal principle would otherwise not develop any general validity. The determination of a polluter is often difficult in individual cases in view of global environmental impacts. If the individual polluter cannot be identified (e.g. in the case of air pollution), the behavior in question is considered socially appropriate (driving a car, operating a private heating system) or the application of the polluter pays principle would lead to serious economic disruptions, the general public must bear the costs according to the shared burden principle .

Nonetheless, the legislature has specified the polluter pays principle in individual regulations, for example in Section 1 UmweltHG at the expense of the plant owner.

Polluter pays principle in the preservation of monuments (Germany)

The polluter pays principle is applied analogously in the preservation of monuments . Here it describes the obligation to bear the costs for monument conservation measures.

principle

The polluter pays principle imposes the costs incurred for a preceding or accompanying archaeological measure (excavation) on those who remove a ground monument in their own interest, for example to carry out a construction project .

As a signatory to the European Convention for the Protection of Archaeological Heritage (Malta Convention), Germany has committed itself to applying the polluter pays principle to better finance the preservation of monuments. However, it should be standardized by the state legislators in their monument protection laws, at least to some extent.
The monument protection laws of the federal states partly expressly contain the polluter pays principle; in part it can be derived from the monument protection laws in connection with general rules of administrative law.

example

Section 29 (1) DSchG NRW
Anyone who […] changes or removes a registered monument or a registered or suspected ground monument has to ensure the previous scientific investigation, the recovery of finds and the documentation of the findings and the costs incurred within the framework of what is reasonable wear.

application

Ground monuments, for example archaeological sites, are protected by the monument protection laws of all countries.

If someone wants to pursue interests that conflict with the preservation of the monument (e.g. building development), these must be weighed against the public interest in preserving the monument. If the opposing interest outweighs the preservation of the ground monument, its removal or modification can be approved by the responsible monument authority.

The resulting damage to a ground monument can be minimized in its effect if it is archaeologically documented beforehand. This means that the original substance of the monument is (partially) abandoned, because every excavation also destroys the findings. In the course of a professional archaeological excavation, however, a documentation is created that records the findings and thus to a certain extent preserves the value of the monument for science and its testimony character. Documentation work, usually an archaeological excavation, enables a limited “preservation” of the monument in the form of finds and archivable data of the findings.

For this reason, a permit to damage or destroy a ground monument is usually provided with the condition that its undamaged condition be documented before the damage occurs. This requirement is usually expressed as a requirement or condition in the building permit , in a plan approval or plan approval. It is a necessary prerequisite for starting the construction project or being able to carry it out, and thus also a necessary component of the construction costs.

Derivation

As far as the polluter pays principle is not standardized, the monument protection laws are further interpreted and general administrative principles are used to derive it.

  • Preservation obligation under monument law : The preservation obligation states that the owner must maintain, repair, properly treat and protect his monument from danger. This also means that he has to do this using his own assets in connection with any benefits. From this it could be deduced that the owner, if the monument is destroyed or impaired, has to finance security measures.
  • Procedural position of the developer : As the promoter of the measure, it is also the financial responsibility of the developer that his project is eligible for approval. The recognized obligation of the applicant to ensure the completeness of his application documents, also financially, is expanded in this derivation.

In North Rhine-Westphalia, at least, it was shown that the application of the polluter pays principle in the preservation of historical monuments on the basis of general principles and such an interpretation is problematic. In 2011, the Münster Higher Administrative Court declared the application of the polluter-pays principle through ancillary provisions to be inadmissible, as there was no clear legal basis at the time. In the meantime, the NRW Monument Protection Act has been adapted in this regard.

Austria

Similar to the German Environmental Damage Act , the Federal Environmental Liability Act and the regional environmental liability laws in Austria establish strict strict liability based on the polluter pays principle.

Switzerland

The polluter pays principle is expressly named in Art. 2 of the Environmental Protection Act (USG).

See also

literature

  • Almuth Gumprecht: Pecunia nervus rerum, the party responsible for paying the costs for excavations , NJG 2006, p. 13
  • Dieter Martin, Michael Krautzberger (Eds.): Handbook of Monument Protection and Preservation, 3rd Edition, Munich 2010
  • Johanna Monien: Principles as a pioneer of global environmental law ?, The sustainability, precautionary and polluter pays principle in the multi-level system, Baden-Baden 2014
  • Petra Nethövel: The polluter pays principle in monument law - On liability for documenting measures in the case of the destruction of land and architectural monuments, Baden-Baden 2008

Web links

Individual evidence

  1. ^ Carl Creifelds: Legal dictionary . 21st edition 2014. ISBN 978-3-406-63871-8
  2. ↑ Art. 191 TFEU AEUV.de, accessed on March 29, 2016
  3. ↑ The principles of environmental policy in the Federal Republic of Germany TU Berlin , accessed on March 29, 2016
  4. ↑ Thomas Pfeiffer: Brief overview of environmental law , status: 03/03
  5. ↑ Law on Measures to Safeguard the Disposal of Used Oil (Waste Oil Act) of December 23, 1968 ( Federal Law Gazette I p. 1419 )
  6. ↑ Michael Adams : Why the "polluter pays principle" is an empty phrase and should be discarded as an unsuitable criterion by sensitive lawyers when making liability decisions in environmental law ( Memento of the original from February 8, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. University of Hamburg , accessed on March 29, 2016 @1@ 2Template: Webachiv / IABot / www.wiso.uni-hamburg.de
  7. ↑ Environmental Policy: Environmental Use and Polluter Pays Principle Universal Lexicon, 2012
  8. ↑ Umweltbundesamt (Ed.): Polluter pays principle, WTO law and selected instruments of German energy policy research report 201 19 107, December 2003
  9. ^ The polluter pays principle press material of the DGUF , as of June 2013
  10. ↑ OVG NRW, judgment of September 20, 2011 - 10 A 1995/09
  11. ↑ Federal Environmental Liability Act and State Environmental Liability Act website of the Federal Ministry of Agriculture, Forestry, Environment and Water Management, August 6, 2015
  12. ↑ Federal Act on Environmental Protection (Environmental Protection Act, USG) of October 7, 1983
  13. ↑ Pierre Tschannen , Martin Frick: The term “polluter” according to Art. 32d USG . Expert opinion for the attention of the Federal Office for the Environment, Forests and Landscape (SAEFL), 2002