Section
Seven:
Participation
of Associations
Article
58
Associations Recognized by the Federal Ministry for the Environment, Nature
Conservation and Nuclear Safety
(1)
Incorporated associations recognized by the Federal Ministry for the
Environment, Nature Conservation and Nuclear Safety shall be given the
opportunity to express their views and to have access to the pertinent expert
opinions
1. during the preparation of ordinances (Verordnungen),
and other legal instruments ranking after laws, in the field of nature
conservation and landscape management by the Federal Government or the Federal
Ministry for the Environment, Nature Conservation and Nuclear Safety;
2. during plan establishment procedures (Planfeststellungsverfahren)
conducted by Federal authorities where these relate to projects involving
intervention in nature and landscape and where the association’s scope of
activity covers the territory of the Federal Laender to which the procedure
relates;
3. in the case of plan approvals (Plangenehmigungen)
issued by Federal authorities that substitute any plan establishment procedure
(Planfeststellungsverfahren) referred to in no 2 above, and for which
the involvement of the general public has been provided for,
where the
project relates to the association’s scope of activites as defined in its
Articles of Association.
(2) Article
28 paragraph 2 nos 1 and 2, paragraph 3 and Article 29 paragraph 2 of the
Administrative Procedures Act (Verwaltungsverfahrensgesetz) shall apply
mutatis mutandis. Relevant similar, or more extensive, forms of
participation and involvement prescribed in other legal provisions shall remain
unaffected.
(3)
Paragraph 1 nos 2 and 3 shall also apply to associations recognized by the
Federal Laender in conformity with Article 60 where the issue concerned
relates to their respective scope of activity.
Article
59 Recognition by the Federal Ministry for the Environment, Nature Conservation
and Nuclear Safety
(1)
Recognition is subject to prior application. It shall be granted if the
association concerned meets the following criteria:
1. The main purpose of the association, as
defined in its Articles of Association is to promote, for nonpecuniary
purposes and not merely for a limited period of time, the causes of nature
conservation and landscape management.
2. The scope of activity of the association
extends beyond the territory of one Federal Land.
3. At the time of recognition, it has existed
for at least three years, and has been active within the scope defined in no 1
during this period.
4. There is sufficient evidence confirming
that the association will do appropriate work within the relevant scope; the
assessment shall, inter alia, take into account the type and scope of the
association’s past activities as well as composition and active potential of
its membership community.
5. Because of its non-profit character, the
association is exempt from corporate income tax pursuant to Article 5 paragraph
1 no 9 of the Corporate Income Tax Act (Körperschaftssteuergesetz).
6. Membership associated with full voting
rights in the general assembly of members is open to anyone who supports the
association’s objectives. In the case of associations merely consisting of
juridical persons, the requirement mentioned in the first sentence may be
waived provided that the majority of the juridical persons concerned
meet this requirement.
The
recognition document shall identify the field of activities, as specified in
the Articles of Association, to which the recognition relates.
(2) The
Federal Ministry for the Environment, Nature Conservation and Nuclear Safety
shall be the agency delivering recognition.
Article
60
Associations Recognized by the Federal Laender
(1) The
Federal Laender shall lay down rules and regulations concerning the involvement
and recognition of incorporated associations, in conformity with the provisions
set forth in paragraphs 2 and 3.
(2)
Associations that have been granted recognition by Federal Laender shall be
given the opportunity to express their views and to inspect and examine
pertinent expert opinions
1. during the preparation of ordinances (Verordnungen),
and other legal instruments ranking below laws, by the Laender authorities
responsible for nature conservation and landscape management,
2.
during the preparation of the plans and programmes referred to in Articles 15
and 16,
3.
during the preparation of plans as referred to in Article 35, first sentence no
2,
4. during the preparation of programmes drafted
by government anthorities and other public institutions for the
re-establishment of displaced wild species of fauna and flora in the wild,
5. prior to the granting of exemptions from
prohibitions and orders relating to the protection of Naturschutzgebiete
(‘nature conservation areas’), Nationalparke (‘national parks’), Biosphärenreservate
(‘biosphere reserves’) and other protected areas and parts thereof referred
to in Article 33 paragraph 2,
6. during plan establishment procedures (Planfeststellungsverfahren)
carried out by authorities of the Federal Laender, where these relate to
projects associated with intervention in nature and landscape
7. during plan approvals (Plangenehmigungen)
granted by authorities of the Federal Laender, that substitute any plan
establishment procedure (Planfeststellungsverfahren) as referred to in
no 6 above, where the involvement of the public has been provided for in
accordance with Article 17 paragraph 1 letter b of the Federal Highways Act (Bundesfernstraßengesetz).
The
individual Federal Laender may provide for more extensive forms of involvement.
Furthermore, they may also
1. provide for the involvement of recognized
associations in other procedures where such involvement is based on respective
provisions of Laender legislation, as well as
2. provide that in cases where any impacts on
nature and landscape are either not to be expected at all or only to a minor
degree or scale, the involvement of recognized associations may be deemed not
to be a binding requirement.
(3) With
regard to recognition, Article 59 paragraph 1 second sentence nos 1 and 4 to 6
shall apply mutatis mutandis.
Article
61
Legal Remedies available to Associations
(1) Without
having been subject to any violation of its rights, an association recognized
in accordance with Article 59 or on the basis of respective provisions of
Laender legislation within the framework of Article 60, may lodge a legal
remedy in conformity with the Rules of Administrative Courts (Verwaltungsgerichtsordnung)
against
1. exemptions from prohibitions and orders
relating to the protection of ‘nature conservation areas’ (Naturschutzgebiete),
‘national parks’ (Nationalparke) and other protected areas referred to
in Article 33 paragraph 2 as well as against
2. decisions of ‘plan establishment
procedures’ (Planfeststellungsbeschlüsse) relating to projects involving
intervention in nature and landscape as well as ‘plan approvals’ (Plangenehmigungen)
where the involvement of the general public has been provided for in relevant
provisions.
The first
sentence above shall not apply where the decision on an administrative act
referred to therein has been taken on the basis of an Administrative Court
decision within the framework of corresponding legal proceedings.
(2) Legal
remedies pursuant to paragraph 1 above are only admissible if the associa- tion
concerned
1. asserts that the adoption of an
administrative act referred to in paragraph 1 first sentence is conflicting
with provisions of this Act, legal provisions laid down on the basis of or
within the framework of this Act or which continue to be applicable on the
basis of or within the framework of this Act, or with any other legal provisions
to be complied with/to be taken into consideration when adopting the administrative
act concerned and which are at least also intended to serve the interests of
nature conservation and landscape management,
2. is affected within the scope of activities
set forth in its Articles of Association, to the extent this is covered by the
recognition granted, and
3. was entitled to involvement in accordance
with Article 58 paragraph 1 nos 2 and 3 or in accordance with respective
provisions of Laender legislation within the framework of Article 60 paragraph
2 nos 5 to 6 and has expressed its views on the matter in this context, or,
contrary to Article 58 paragraph 1 or to rules and regulations of the
respective Federal Land laid down in conformity with Article 60 paragraph 2,
was given no opportunity to express its views.
(3) If the
association was given the opportunity to express its views within the framework
of the respective administrative procedure, the procedure based on a legal
remedy lodged by the association shall preclude objections raised which it had
failed to put forward in the respective administrative procedure despite the
fact that it would have been able to do so on the grounds of the documentation
transmitted to it or inspected by it.
(4) If the
association was not notified of the administrative act concerned the objection
to be raised and the action to be filed must be transmitted within one year
from the date the association had knowledge or ought reasonably to have had
knowledge of the respective administrative act.
(5) The
Federal Laender may also admit legal remedies lodged by associations in other
cases where Article 60 paragraph 2 provides for the involvement of relevant
associations concerned. The Federal Laender may provide further detail on
applicable procedure.