The limitation of 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 the limits of the current state of knowledge in ecological science and practice and the courts have examined the matter as extensively as possible, Art. 19(4) first sentence of the Basic Law (Grundgesetz – GG) does not require the courts to investigate further. Rather, the courts may then base their decision on the plausible assessment of the responsible administrative authority regarding the specialist question at issue. In such instances, and unlike in the context of specifying legal concepts that are not precisely defined in statutory law, the limitation of judicial review does not result from a prerogative of assessment granted to administrative authorities. Therefore, it does not require express statutory authorisation. This is what the First Senate held in an order published today, dismissing as inadmissible two constitutional complaints lodged by wind energy companies. The Senate also emphasised that in case of a “vacuum of scientific knowledge” in areas that have a bearing on fundamental rights, the legislature may not permanently leave decision-making to administrative authorities or to courts without setting out further standards. Rather, it must ensure, at least in the long term, that standards are established, in delegated legislation at the very least.

Facts of the case:

The complainants sought permits for wind turbines under immission control law. In both cases, the permits were refused because the projects were incompatible with § 44(1) no. 1 of the Federal Nature Conservation Act (Bundesnaturschutzgesetz – BNatSchG). This provision prohibits the killing of specially protected wildlife species, precluding the approval of permits if a project significantly increases the risk that protected animals will be killed. In both cases, the competent authorities assumed that red kites had a significantly increased risk of colliding with the planned wind turbines. 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 regarding ecological issues” that is only subject to limited judicial review, given that the assessment by the authority pertained to non-legal issues. The courts held that as far as these questions are concerned, there are no generally recognised scientific standards or standardised survey methods for assessing the risks that wind turbines pose to red kites. With their constitutional complaints, the complainants challenge these findings, claiming 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. In their constitutional complaints, the complainants claim that the necessary ecological findings regarding the relevant non-legal issue of 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 claim in due time before the regular courts. It cannot be ruled out that, in doing so, they could have prevented the limitation of judicial review, which they argue to be unconstitutional. The courts might then have followed their own approach and decided that the requirements for limiting judicial review were not met.

The approach adopted by the administrative courts to review administrative acts based on § 44(1) no. 1 BNatSchG is not per se incompatible with the Constitution.

Where the application of a law requires factual ecological findings for which neither delegated legislation nor standards and methods generally accepted by experts and scientists exist, this can in principle lead to a limitation of judicial review that is compatible with Art. 19(4) first sentence GG. Judicial review by administrative courts reaches its limits if there is no legislation specifying how to address a legal issue the outcome of which is determined by non-legal ecological criteria and if experts and scientists have not formed a generally recognised opinion regarding the specialist issues and the surveying methods to be used in the individual case. 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. In such a case, judicial review is not limited on the grounds that the administrative authority was granted a prerogative of assessment for specifying legal concepts that are not precisely defined in statutory law (cf. in this respect Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 129, 1 <21 et seq.>), but on the grounds that the question whether the outcome of the administrative decision was correct in ecological terms cannot be definitively determined in an objective manner. Where judicial review reaches the limits of the current state of knowledge in ecological science and practice and the courts have examined the matter as extensively as possible, Art. 19(4) first sentence GG does not require the courts to investigate further. Rather, the courts may then base their decision on the plausible assessment of the responsible administrative authority regarding the specialist question at issue, if the standards and methods used by the authority are tenable and the authority ultimately reached a plausible assessment of the specialist constituent elements of a legal provision. However, in accordance with general legal principles, the following questions will still be subject to judicial review by administrative courts even in that case: whether an authority committed procedural errors when determining and applying the specialist method it chose from the range of tenable options; whether it failed to apply relevant law; whether it based its decisions on facts that were incorrect or insufficiently investigated 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 principles of democracy and the rule of law – even though this was not decisive in the proceedings under review here. In case of a “vacuum of scientific knowledge” that neither the administrative authorities nor the courts can resolve in areas that also have a bearing on fundamental rights, the legislature must not permanently leave decision-making to those bodies that apply the law without setting out further standards. If it did so, it would be evading its own responsibility to make substantive decisions. At least in the long run, it must therefore ensure that standards are established, at least at the level of delegated legislation.