AS TO THE ADMISSIBILITY OF
by GREENPEACE E.V. and others
The European Court of Human Rights (Fifth Section), sitting on 12 May 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 5 May 2006,
Having deliberated, decides as follows:
The application was lodged by the association Greenpeace e.V., represented by Ms Behrens, and four other applicants. The applicants Ms Löhden, Ms Franzenburg, Mr Teske, and Mr Smid are German nationals who were born in 1961, 1969, 1966 and 1958 respectively and live in Hamburg. They were represented before the Court by Mr M. Günther, Mr H.-G. Heidel, Dr U. Wollenteit and Mr M. Hack, all lawyers practising in Hamburg.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicant association has its business office, and the other four applicants live or lived, close to busy roads and intersections in Hamburg.
On 20 August 2001 the applicants requested the German Federal Bureau of Motor Vehicles and Drivers (Kraftfahrtbundesamt) to take specific measures designed to curb respirable car dust emissions of diesel vehicles. The applicants requested the Federal Bureau of Motor Vehicles and Drivers to:
threaten the car manufacturers with withdrawal of the general operating licence (Allgemeine Betriebserlaubnis) for certain diesel vehicles unless they recalled the cars in question and equipped them with particulate filters within a reasonable time-limit;
revoke the general operating licence after the time-limit for the retrofitting had expired; and
refuse to issue the general operating licence for diesel vehicles if the cars exceeded a certain critical limit of particles.
On 3 September 2001 the Federal Bureau of Motor Vehicles and Drivers rejected the request. It held that the general operating licenses were issued in accordance with German and European legislation. On 8 November 2001 the Federal Bureau of Motor Vehicles and Drivers dismissed an administrative objection by the applicant, holding that there was no legal basis for an obligation to install particulate filters.
On 7 September 2001 the applicants lodged an action with the administrative courts.
On 1 April 2003 the Schleswig-Holstein Administrative Court dismissed the applicants’ action in its entirety. It held that the applicant association’s action was inadmissible since Greenpeace e.V. lacked the right to sue in the present case. The applicant association could not claim any right; in particular, it could not rely on a right to be protected from a health impairment. With respect to the other four applicants, the Administrative Court declared the action admissible, holding that they could rely on a positive obligation of the State emanating from their constitutional right to life and physical integrity. On the merits it found that the State authorities enjoyed a wide latitude and were only under an obligation to take measures of a kind that could not be said to be wholly inappropriate or insufficient for the protection of individuals’ rights. Referring to environmental reports submitted by the applicants, the court accepted that the particles were dangerous for the human organism but held that the German legislature was cognisant of the problem of respirable dust particles and, in accordance with European Union (EU) legislation, had taken measures to curb such emissions. It added that the authorities were constantly monitoring the situation and had already announced further plans to tighten emission limits. The State had a general interest in the limitation of car emissions being harmonised at EU level. The Administrative Court accepted that particulate filters were a very effective measure to curb emissions, but noted that other possible means included, for example, tax incentives for low-emission cars or road-traffic related measures. It concluded that the wide latitude available to the State to comply with its positive obligation had in the present case not been narrowed down to such an extent that the State authorities were under an obligation to take the specific measures requested by the applicants.
On 19 December 2003 the Schleswig-Holstein Administrative Court of Appeal confirmed that Greenpeace e.V. lacked the right to sue. It rejected, in particular, the applicant association’s argument that the right to sue could be deduced from the fact that Greenpeace, as an employer, was responsible for the health of its employees. On the merits the Court of Appeal upheld the reasoning of the Administrative Court. It held that the State’s positive obligation did not compel State authorities to take the measures the applicants had requested; it was for the legislature and not the judiciary to decide on the appropriate ceiling on respirable dust emissions. The German legislature had met the requirements emanating from its positive obligation when implementing the critical values required under the European directives.
On 7 November 2005 the Federal Constitutional Court, without giving any reasons, refused to admit the constitutional complaint lodged by the applicants.
“1. Everyone has the right to respect for his private ... life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or the economic well-being of the country, ... for the protection of health ..., or for the protection of the rights and freedoms of others.”
Court considers, at the outset, that it is not prima facie persuaded
that the applicant Greenpeace e.V., in the specific circumstances of
the case, can claim to be a victim of a violation of Article 8
of the Convention.
The applicants allege in essence a violation of Article 8 on the grounds that the State authorities failed to protect their health sufficiently. An association is in principle not in a position to rely on health considerations to allege a violation of Article 8. The Court considers, however, that it need not decide this issue as the application is, in any event, inadmissible for the following reason.
Court has previously held that there is no explicit right in the
Convention to a clean and quiet environment, but where an individual
is directly and seriously affected by noise or other pollution, an
issue may arise under Article 8 of the Convention (see Hatton and
v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 VIII with further references). Article 8 is applicable in case of severe environmental pollution, since such a problem might “affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health” (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 C). In the light of the conclusions of the domestic courts and the expert reports provided by the applicants, the Court accepts that soot and respirable dust particles can have a serious detrimental effect on health, in particular in densely populated areas with heavy traffic. It also accepts, for the purposes of the present case and in line with the findings of the domestic courts, that the applicants (except for the applicant Greenpeace e.V.) were all sufficiently affected by soot and dust to be able to claim to be victims of the alleged violation. The Court concludes that Article 8 is applicable in the present case.
The Court reiterates that whether a case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others [GC], cited above, § 98).
Court also reiterates that the Convention has a fundamentally
subsidiary role and the national authorities are in principle better
placed than an international court to evaluate local needs and
conditions (ibid., § 97). The complexity of
issues regarding environmental protection renders the Court’s
role primarily a subsidiary one and its power of review is
necessarily limited (see Fadeyeva v. Russia,
no. 55723/00, § 105,
ECHR 2005 IV, where the Court noted that it remained open for it to conclude that there had been a “manifest error” of appreciation by the national authorities).
Court notes that it is uncontested in the present case that the
Contracting State has taken measures to curb diesel-vehicle
The applicants indeed acknowledged that the German authorities had attended to the problem of soot particles and respirable dust emissions but, in their view, the measures taken were not effective enough, particularly for persons living close to busy streets or intersections. The applicants submitted that the most effective measure to reduce the number of lung cancer related deaths would be the compulsory installation of particulate filters in diesel vehicles.
The choice of means as to how to deal with environmental issues is a matter falling within the Contracting State’s margin of appreciation in environmental matters. On this point it is noted that the Administrative Court held, addressing the circumstances of the present case expressly from the standpoint of the positive obligation of the State, that other means were available to curb emissions, such as tax incentives for low-emission cars, and that the latitude available to the State’s authorities was not narrowed down to taking the specific measures requested by the applicants.
Bearing in mind its fundamentally subsidiary role with respect to issues of environmental policies, the Court finds that the applicants have not shown – and the documents submitted do not demonstrate – that the Contracting State, when it refused to take the specific measures requested by the applicants, exceeded its discretionary power by failing to strike a fair balance between the interests of the individual and of the community as a whole. Assessing all the material in its possession, the Court finds that the case does not disclose any appearance of a violation of Article 8.
It follows that, even assuming that the applicants may claim to be victims within the meaning of Article 34 of the Convention, the complaint under Article 8 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In the present case, the Federal Constitutional Court referred to sections 93(a) and 93(b) of the Federal Constitutional Court Act, which provide that a chamber of three judges may refuse to admit a constitutional complaint. The Court observes that the Federal Constitutional Court did not refer to section 93(d) of the Federal Constitutional Court Act, which dispenses the chamber from the requirement to provide reasons for its decision not to admit a constitutional complaint. However, the Court considers that sections 93(a) to 93(d) are interlinked and govern the admissibility of a constitutional complaint as a whole. The mere fact that the Federal Constitutional Court did not cite section 93(d), but only sections 93(a) and 93(b) of the Federal Constitutional Court Act, does not as such violate Article 6 § 1 of the Convention.
It follows that this part of the application must likewise be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen