Abstract
The principle of proportionality in the German Administrative law is part of the rule of law. It applies to all laws, administrative acts, statutes and ordinances. It consists of four points. A state measure is proportionate if it 1.has a legitimate purpose, 2. is suitable, 3.is necessary, and 4. is appropriate. In the first part of the paper we will find an analysis of the elements of the proportionality test and specifically compare the seriousness of infringements against the importance and urgency of the factors that justify it in order to understand if the value protected by the law weighs more than the fundamental right. In the second part of the paper we will find a legal analysis of the case from the Federal Administrative Court BVerwG 7 C 10.13 that deals with the proportionality of an order in an emission control permit procedure. Specifically we will see how precautionary measures are proportional even if economically they do not fit the state-of-art requirement of §3 (6) BImSchG for the operator. In the third part we will analyze the decision of the court in the light of the principle of proportionality.
I. Introduction
The principle of proportionality is subject to every state action, from the law to the administrative act. This principle forces state agent to balance individual goods with public goods protected by public law or the interests of private third parties and requires a graduated approach according to the infringement and the severity of the interference. Proportionality is not generally regulated by law in the sphere of public law but in administrative law we find it for example in the Administrative Enforcement Acts §58 VwVfG, NRW, §19 LVwVG (Ossenbühl, 1997). In particular, the proportionality principle can be used to assess if the administrative authority has exceeded the limits of discretion granted to it (Ermessensfehler). IF the principle of proportionality is infringed, the state action which took place is unlawful and it can be successfully challenged by the available remedies.
In the German legal system, courts refer to the notion of proportionality, which holds that state power may only encroach upon individual freedom to the extent that it is indispensable for the protection of the public interest. After the opening of the administrative procedure has been established and the admissibility of the application has been confirmed, the second part of the examination of the substance (die Begründetheit) begins. A basis of authorization (die Ermächtigungsgrundlage) is to be found based on which the administrative decision must have its legality. In a second step the administrative decision must be examined for its formal legality. Lastly, we can find the substantive legality test. In this step we can find the principle of proportionality. The principle requires that if there is an intervention from the legislator, this intervention must serve a legitimate aim, it must be suitable, necessary and proportionate to reach this aim (Johnston, 1996).
II. The Principle of Proportionality (Der Verhältnismäßigkeitsgrundsatz / Übermaßverbot)
Legitimate Purpose
The legitimacy of the purpose of an administrative measure arises from its legal basis. It is based on the requirement to protect the basic rights of the citizens as one of the highest values given in the constitution (Grundgesetz). By legitimate, the court understands an action not prohibited by the constitution (Grimm, 2007, p.388). The legitimacy of the principle of proportionality is derived from the principle of the rule of the constitutional state (Rechtsstaatprinzip) (Ress, 1984). In other words, the Rechtsstaatsprinzip is used for when we want to protect the rights of the citizens against state intervention. In Art.1 (1) GG and Art.2 (1) GG that deal with the right to dignity and the right to free development of the person we find the basis to not having any restrictions allowed IF they are not appropriate or strictly necessary for protecting the interests of the public of the rights of third people guaranteed under the Basic Law (Bleckmann, 1994, p.181). New laws such as §1 BImSchG have the purpose written in the law itself.
Suitability (Geeignetheit)
This element of proportionality suggests that public action needs to be regarded at least as suitable for reaching the aim. The resources used by the administration must be suitable for the fulfillment of the purpose. The intended means will also have to achieve the intended purpose or be conducive to it. A non-suitable measure cannot reach the legitimate aim of the legislator. It is not required for the legislator to choose the most optional mean (Manssen, 2012). In this step problems arise in environmental issues, in which the causation of certain environmental phenomena is scientifically controversial and at the same time the suitability of the proposed instruments is as well uncertain.
Necessity (Erforderlichkeit)
If the mean chosen by the legislator is suitable to reach the aim, the next step is to prove whether it is also necessary. The administrative authority must choose the least restrictive among equally effective means (Takahashi, 2012). The mean is necessary to reach the aim if the legislator could not choose another one that would have the same weight of intervention. It determines whether there are less restrictive and less stressful alternatives to the measure envisaged. The first question would be if there is at least one alternative mean that can interfere less in the basic rights from the side of the legislator. The degree of intervention is dependent on the nature of the rights to be protected and the effects of the interference on the individual. Hereby the courts do an ex ante examination to prove if the least burdensome measure was taken at the time of the decision.
Proportionality in the Strict Sense (Angemessenheit)
In this step we need to analyze two positions: on one side we will have the position in which it has been interfered and on the other the position after the justification. In other words, we can find how purpose and means are related. In this step we put the interests in a balance and we measure the abstract balance (abstrakte Gerechtigkeit.BverfGE 39, 1 (42.f): 113, 63 (80); 120, 274 (327); 121, 317 (357f.)). This creates a balance between the injury to an individual and the public interest in the course of the administrative measure. The Basic German Law remains silent when it comes to how conflicting interests are evaluated and put in a balance. In the last step is the concrete intensity of risk for the protected good to be measured. With this test we prove whether a specific action is necessary and proportionate (Grabitz, 1973). The comparison in this step is between the loss for the fundamental right on the one hand and the gain for the good protected by the law. The court weights the seriousness of the infringement against the importance and urgency of the factors that justify it in order to analyze if the value protected by the law prevails the fundamental right (Grimm, 2007). For the test of the appropriateness we can have a division in steps. First, the affected legal interests are to be named as well as to evaluate abstractly. Hereby the court answers various questions like: Which fundamental right is affected by the measure? Which public interest does the public authority want to pursue with the measure? Secondly, the concrete benefits arising from the measure taken as well as the concrete disadvantages for the person concerned have to be identified (Reuter, 2009). In the third step we find the balancing. The principle of proportionality is subject to limitations as on the ground of the separation of powers (Emiliou, 1996, pp.36-37).
There is no guideline given from the Basic Law on how equally important constitutional values and interests are balanced when competing and if some constitutional rules override others (Kluckert, 2015, p.116). However, the legislator is authorized to balance conflicting interests in order to achieve a result. The rules of the proportionality test, the appropriateness and necessity are found when there is a shortening of freedoms in favor of the interests of other parties. This is based on the idea “Es darf eben nicht dem einen etwas an Freiheit genommen werden, was gar keinem anderen Freiheitsträger zugute kommt“. In English: nothing should be taken from the liberty of a person IF this brings no benefit to others. Proportionality in the strict sense, as the last step in the traditional proportionality test follows also from the principle of freedom (Ekardt, 2015).
Administrative Discretion and Proportionality (Ermessensspielraum)
The administration is not completely free in the exercise of discretion, but has to exercise its discretion lawfully as in §40 VwVfG. Section 40 of the administrative procedure act says: Where an authority is empowered to act at its discretion, it shall do so in accordance with the purpose of such empowerment and shall respect the legal limits to such discretionary powers. The citizen is entitled to error-free discretion. The German administrative courts play an essential role in the achievement of tasks in the administrative state. It is recognized that the public authorities should be given a degree of discretion in weighing special circumstances in individual cases (Pakuschert, 1994m p.107). It is in the hands of the administration, IF they would like to act (Entschließungsermessen). If they do take action, it is in the hands of the administration to decide HOW TO act (Auswahlermessen). In order to avoid legal uncertainty in the result, the legislator has granted the individual the possibility of a judicial review of the discretionary decision as given in §114 VwGO (Erbguth, 2014). We find an extensive ability of the courts in finding facts which enables them to rationalize the impact of public decisions on individuals (Thomas, 2000, p.78). The administrative agent is allowed discretion only when the law explicitly provides so. It should be made clear if the legal consequence (Rechtsfolge) of the underlying authorization (Ermächtigungsgrundlage) is a binding decision or a discretionary rule. In some case, nevertheless, the discretion is limited. In this sense we can find the discretionary reduction to zero. In these cases, only a single decision is possible without errors.
The type of discretion we can understand from the wording of the law. If it is written in the law that the administrative authority “must” act, and then the authority cannot decide freely on the legal consequence. On the other hand, if the law says “may” or “can” act, the authority has various alternative courses of action. Here we can find the free and due discretion (Freies und pflichtmäßiges Ermessen). The margin of discretion given to the authority has the role of choosing one out of many lawful decisions suitable for achieving the same legal consequence. Moreover, there is also the “intended” discretion (intendierte Ermessen). This is the form of a tied decision from which the authority may deviate in atypical cases. Based on §39 Abs.1 S.3 VwVfG, the authority has to justify the reason for its deviation. These cases are often recognized by the wording of the law “should” in the standard text. The principle of proportionality serves for making sure whether the result of discretion is lawful or not (Detterbeck, 2015). A failure to conform to the principle of proportionality constitutes a wrongful use of discretion that nullifies the administrative act. In the case of a discretionary decision, we recognize that if a misjudgment has been made and the discretion is not reduced to zero, then the decision is unlawful. In such a case, the legal consequences have been disregarded and the decision is materially unlawful (materiell rechtswidrig). However, it is possible that the decision was proportionate despite the misjudgment. The decision can remain materially unlawful for not complying with the legal consequences, it is still proportionate.
III. The Decision of the Administrative Court of Oldenburg VG Oldenburg- 06.02.2013- AZ: VG 5 A 4052/12
The district of Oldenburg granted the applicant an emission control permit for the construction and operation of two chicken barns with a total of 84.900 places. 250m away from the chicken plant is located the house of the neighbor A. For reasons of precaution, the district has given the plaintiff the order to install an air treatment facility in order to prevent a bio-aerosol (airborne particles of biological origin such as fungi, bacteria, viruses, and their metabolites and cell wall components such as endotoxines) additional burden for the 250m distant residential land. The obligation to install an air treatment plant is disproportionate. The court has obliged the defendant to grant the plaintiff the permission without the specific order. It was not clear whether the plant would even lead to an additional bio-aerosol load on the residential property. The defendant assumes that due to the lack of standardized measuring and detection methods for bio-aerosols from farms, the additional burden cannot be predicted with approximate certainty. For this reason, the additional air contamination is uncertain. To add on, air purification systems do not yet correspond to the state of the art “nach dem Stand der Technik” in poultry production. Pursuant to §3 (6) sentence 1 BImSchG, a measure to limit emissions may only be in line with the state-of-the-art if its practical suitability appears to be ensured. §3 (6) BImSchG defines the State of the art: State of the art as used herein shall mean the state of development of advanced processes, facilities or modes of operation which is deemed to indicate the practical suitability of a particular technique for restricting emission levels. When determining the state of the art, special consideration shall be given to comparable processes, facilities or modes of operation that have been successfully proven in practical operation. The court explained that it is not economically reasonable for the plant operators to have air treatments facilities irrespective of their plant location.
The Decision of the Federal Administrative Court BVerwG 7 C 10.13:
The reasoning of the administrative tribunal of Oldenburg does not justify denying the proportionality of the order. The decision, that the uses of waste air treatment plants in poultry production for economic reasons does not yet correspond to the state-of-the-art, is not objectionable in the court of appeal. According to §3 (6) BImSchG, when determining the state of the art, the proportionality between the costs and benefits of possible measures and the principle of precaution and prevention must be taken into account. Here is decisive whether the economic suitability of the operator is given. Decisive for the so-called economic suitability is whether the economic outlay for an emission-limiting measure can be expected of an average operator of a plant of the particular type under economically and technically acceptable conditions in the relevant industrial sector. The operator must take precautionary measures to prevent a risk. Precaution must be proportionate to the extent of the risk potential of the emissions it is designed to prevent.
The principle of risk proportionality must put a de minimis limit below which emission-limiting measures must not be ordered. This limit will be called the trivial or the irrelevance threshold. If the plant-related bio-aerosol additional burden exceeds the threshold, the potential for concern (Besorgnispotential) must be assessed. For this purpose, it is necessary to make an appropriate estimate of the extent to which the operation of the plant leads to additional bio-aerosol emissions in the neighborhood. To add on, it may be necessary as well to determine the total pollution by bio-aerosols for the chicken plant as a sum of pre- and additional pollution. The potential for concern with regard to the emissions to be avoided must be contrasted with the effects of the required emission-reduction on the specific operator. The expenses for avoiding the additional bio-aerosol burden must not be disproportionate to the effects that they can bring.
From the submissions of the Administrative Tribunal it is to be assumed that there are sufficient reasons for the assumption that bio-aerosol emissions may lead to harmful environmental effects (Umwelteinwirkungen). Whether, and, if so, to what extent the plant of the plaintiff leads to a relevant increase in bio-aerosol emissions concentrations on residential properties near the plant has not been clarified. The Administrative Court has expressly described an additional burden of bio-aerosols as possible. On the other side, the effort of the operator must be in proportion to the achievable air treatment beneficial effects for the neighborhood. When weighting the impact on the operator, it should also be kept in mind that the profitability of the plant operation also depends on the respective location and market conditions. If the level of effort (Höhe des Aufwands) is justified by the effects of the air treatment facility, other operators must also provide them too and pass the additional costs on the consumers.
Precaution is not aimed at warding off recognized dangers. It aims a suspicion of danger to ensure a safety zone below the danger threshold. Air treatment facilities can be a precautionary measure that is necessary and economically reasonable in individual cases. This is the case when poultry houses are to be built in the neighborhood to residential buildings. It has to be ascertained whether, and if so to what extent, there is a relevant additional burden due to the bio-aerosol on the residential properties as a result of the plant.
IV. Interpretation in Light of Proportionality
A measure to limit emissions can be a suitable and necessary precautionary measure even if for economic reasons it does not yet correspond to the state of the art according to §3 (6) BImSchG. The decision of the Federal Administrative Court BVerwG shows how two conflicting interests, on the one side residential protection and on the other side the economical interests of the operator are balanced in the light of the principle of proportionality. The administrative measure must follow a legitimate purpose. In this sense, with the installation of the air facilities the measure would have to pursue the goal of protecting human health against bio-aerosol pollution caused by the operation of the plant. § 1 of the Federal Emission Control Act (Bundes-Immissionschutzgesetz BImSchG) has as a purpose to protect human beings, animals and plants, the soil, the water, the atmosphere as well as cultural assets and other material goods against harmful effects on the environment to the extent that this concerns installations subject to licensing, also from hazards, considerable disadvantages and considerable nuisance caused in any other way, and to take precautions against the emergence of any such harmful effects on the environment. ”The risk potential of bio-aerosol emissions to be set in the proportionality test according to current scientific knowledge and general life experience puts the ground for believing that the bio-aerosol emissions may lead as
well to harmful environmental effects (Jarass, 2013). Even if there is a gap in knowledge for the risk potential, precautionary measure should be taken just at a mere suspicion of danger to ensure a safety zone below the danger threshold. Is this precautionary measure suitable? The obligation to take precautionary measure according to the state-of-art is an efficient mean of ensuring a high level of environmental protection (Jarass, 2013). Under the Industrial Emissions Directive Art.11 (a) and (b) IE-RL, the operation of an installation requires not only the best available techniques to be used, but also all appropriate precautionary measures against environmental pollution. According to §3 (6) sentence 2, when determining the state of art, the proportionality between the costs and benefits of possible measures and the principle of precaution and prevention must be taken into account. The state of art is a general standard for which the circumstances of the individual case play no role (Dietlein, 2015). The same applies to the examination of the proportionality of effort and benefits. Decisive for the so-called economic suitability is whether the economic expenditure for an emission-limiting measure is reasonable for an average operator of a given type of installation under economically and technically acceptable conditions as given in the Directive 2010/75/EU European Parliament and of the council on industrial emissions 24th of November 2010. The economic situation of the operator concerned and the circumstances surrounding it are irrelevant.
The German Federal Administrative Court did not consider the defendant’s consideration between human health and the additional financial cost to the applicant to be viable. When weighting the impact on the operator, it must be also taken into account that the cost-effectiveness of the plant operation depends on the respective location and on the market conditions. As mentioned before, this would mean that other operators must provide as well air treatment facilities and pass the additional cost on the consumers. IF the operator concerned is unable to pass the additional costs because other operators maintain a sufficient distance from residential houses and therefore do not need air treatments, it may be proportionate to either direct the operator to seek a more suitable location or to purchase the air treatment (Storost, 2015). The court adds on, that for the protection of the health, when constructing a new plant, the arrangement of an exhaust air treatment must be taken into consideration even if only a single house is affected. The decision BVerwG 7 C 10.13 shows how emission-limiting measures can be proportionate even if they are not economically reasonable for an operator. The good of human health and environmental protection shall be given priority over the economical impact of the facility for the operator of the plant.
V. Conclusion
According to Art.20a of the Basic Law, the state has responsibility towards future generations. It shall protect the natural foundations of life and animals by legislation and in accordance with law and justice, by executive and judicial action. The principle of proportionality shows the impact of administrative measures on sustainable development. In cases such as BVerwG 7 C 10.13 there is environmental controversy because environmental damage cannot be measured specifically and the certainty of the environmental instruments is of discussion. There is no specific guideline given from the Basic Law on how constitutional values and interests are put in a balance when competing in the test of proportionality. For this reason, we find the balance between the success and the effort of the measure in the third step of the proportionality. On the one side, we find the protected good and how urgent its protection is and on the other side there are the costs and the economical consequences. Precautionary measures are proportional as based in 7 C 10.13 BVerwG, even if they are not economically reasonable for an average operator. Costs and benefits, as well as the principle of precaution and prevention must be taken into account in the test of proportionality. The impact of this specific necessary and suitable measure shows how environment and human health are prioritized as constitutional values from the basic law, even if the risk potential of the plant is not scientifically asserted.
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