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Limits to judicial review due to the current state of scientific knowledge
Press Release No. 81/2018 of 23 November 2018
Order of 23 October 2018
1 BvR 2523/13, 1 BvR 595/14
Where judicial review reaches general limits of knowledge in nature conservation science and practice, after having examined the matter as extensively as possible, Art. 19(4) first sentence of the Basic Law (Grundgesetz – GG) does not oblige courts to investigate further. Instead, courts may then base their decision on the authority’s plausible assessment of the scientific question at issue. In this instance, and unlike in the context of specifications of legal concepts that are not precisely defined in statutory law, the limitation of judicial review does not result from the fact that administrative bodies are granted a prerogative of assessment. Therefore, it does not specifically require statutory authorisation. On this basis, the First Senate dismissed as inadmissible two constitutional complaints lodged by wind energy companies in an order published today. In that respect, the Senate has also emphasised with regard to a “lack of scientific knowledge” that the legislature must not permanently assign decisions to be taken in fields affecting fundamental rights to administrative bodies or courts without providing further guidance. Rather, it must, at least in the long run, ensure the establishment of standards at least on the level of secondary legislation.
Facts of the case:
The complainants sought permits for wind energy plants under immission control law. In both cases, the permissions were refused because the projects were incompatible with § 44(1) no. 1 of the Federal Nature Conservation Act (Bundesnaturschutzgesetz – BNatSchG). This provision bans the killing of wild animals of particularly protected species. This ban precludes the approval of permits if a project significantly increases the risk that protected animals are killed. In both cases, the competent authorities assumed that the risk that red kites may collide with the planned wind energy plants was significantly increased. Legal recourse against the refused permits remained unsuccessful, also in the last instance. With regard to surveying the bird population and assessing the risks associated with the project, the administrative courts granted the competent authority a “prerogative of assessment in nature conservation issues” that is subject to limited judicial review only; this finding was based on the fact that the authority was to assess non-legal questions. As far as these questions are concerned there is a lack of recognised scientific standards and standardised survey methods for assessing the risks that emanate from wind energy plants with respect to red kites. With their constitutional complaints challenging this approach, the complainants claim that granting the authorities a prerogative of assessment had violated their right to effective legal protection under Art. 19(4) first sentence GG.
Key considerations of the Senate:
The constitutional complaints do not satisfy the principle of subsidiarity. With their constitutional complaints, the complainants claim that the necessary nature conservation findings regarding the relevant non-legal questions pertaining to the risk of killing red kites do already exist. However, due to the subsidiarity of constitutional complaint proceedings, they would have had to substantiate this argument in the course of the regular court proceedings. It cannot be ruled out that, in doing so, they could have prevented the limitation of judicial review – that is unconstitutional in their opinion – because, consequently, the courts might have then followed their own approach and decided that the requirements for limiting judicial review were not met.
The review approach which the administrative courts took with regard to § 44(1) no. 1 BNatSchG is not per se incompatible with the Constitution.
In principle, limiting judicial review can be a consequence that is compatible with Art. 19(4) first sentence GG where the application of a law requires factual findings regarding nature conservation expertise, which cannot be based on existing secondary legislation or standards and methods generally accepted by experts and science. With regard to legal questions which depend on non-legal criteria linked to nature conservation, judicial review by administrative courts is limited inasmuch as there is a lack of normative specifications and of a general opinion amongst experts and science on the subject-specific contexts and the assessment methods to be applied in individual cases. Under such circumstances, it is objectively impossible for administrative courts to comprehensively investigate the facts of the case and reach a final conclusion as to whether the result of the authority’s decision was correct. Insofar, the limits to judicial review do not result from the fact that administrative bodies were granted a prerogative of assessment for the specification of indeterminate legal terms (unbestimmte Rechtsbegriffe) (cf. in this respect Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 129, 1 <21 et seq.>), but simply from the fact that it cannot be conclusively determined whether the outcome of the administrative decision was correct under nature conservation standards. Where judicial review reaches the limits of knowledge in ecology science and practice, after having examined the matter as extensively as possible, Art. 19(4) first sentence GG does not oblige courts to investigate further. Instead, courts may then base their decision on the authority’s assessment regarding the scientific question at issue if the standards and methods used by the authority are reasonable and the authority ultimately reached a plausible assessment of the subject-specific constituent elements of a legal provision. However, according to general principles, judicial review by administrative courts will still scrutinise whether an authority made procedural mistakes when determining and applying the technical method it chose from the range of acceptable options, whether it incorrectly applied the relevant law, whether it based its decisions on facts that were incorrect or insufficiently clarified in other respects, whether it violated universally valid assessment criteria, or whether it was guided by irrelevant considerations.
In this context, the legislature is also limited under constitutional law with regard to substantive fundamental rights and the essential matters doctrine (Wesentlichkeitsgrundsatz) derived from the principle of democracy and the rule of law – even though this was not decisive in the case at hand. In a “lack of scientific knowledge”, the legislature must not permanently assign decisions to be taken in fields affecting fundamental rights to administrative bodies or courts without providing further guidance needed to fill this vacuum. In doing so, it would evade its responsibility of making substantive decisions itself. At least in the long run, it must thus ensure the establishment of standards at least on the level of secondary legislation.