Stand und Entwicklung des Fachplanungsrechts im Spiegel der jüngeren höchstrichterlichen Rechtsprechung

2020 ◽  
Vol 53 (4) ◽  
pp. 535-574
Author(s):  
Boas Kümper
Keyword(s):  
Environmental Law ◽  
Legal Protection ◽  
European Court Of Justice ◽  
Power Lines ◽  
The Public ◽  
General Law ◽  
Court Of Justice ◽  
European Court ◽  
The Law ◽  
Environmental Relevance

The report surveys in two parts the development of the law on project-related planning and thus relates in particular to the planning and approval of space-consuming infrastructure projects such as traffic routes and power lines. For this purpose, German administrative law has long provided for the specific instrument of plan approval (Planfeststellung). In this context, the Federal Administrative Court has extensive first-instance jurisdiction and uses this to shape large parts of German approval law, including beyond the actual area of plan approval law, be it in terms of legal protection and procedure, be it with regard to the requirements of substantive environmental law. On the other hand, the revision of the law on environmental protection induced by the decisions of the Aarhus Compliance Committee and the European Court of Justice has been used by the German legislator to extend procedural specifics of the plan approval to other approval decisions of environmental relevance. This firstly indicates the contours of a general law on project approval and, secondly, the nature of the plan approval as an instrument for the implementation of projects in the public interest is more strongly emphasized.

Stand und Entwicklung des Fachplanungsrechts im Spiegel der jüngeren höchstrichterlichen Rechtsprechung

2020 ◽  
Vol 53 (2) ◽  
pp. 253-286
Author(s):  
Boas Kümper
Keyword(s):  
Environmental Law ◽  
Legal Protection ◽  
European Court Of Justice ◽  
Power Lines ◽  
The Public ◽  
General Law ◽  
Court Of Justice ◽  
European Court ◽  
The Law ◽  
Environmental Relevance

Zusammenfassung Der Bericht informiert in zwei Teilen über den Entwicklungsstand des Rechts der vorhabenbezogenen Fachplanung und betrifft damit namentlich die Planung und Zulassung raumbeanspruchender Infrastrukturvorhaben wie Verkehrswege und Energieleitungen. Hierfür sieht das deutsche Verwaltungsrecht das spezifische Instrument der Planfeststellung vor. Das Bundesverwaltungsgericht verfügt in diesem Zusammenhang über eine weitreichende erstinstanzliche Zuständigkeit und prägt mittels dieser weite Teile des deutschen Zulassungsrechts, auch über den eigentlichen Bereich des Planfeststellungsrechts hinaus, sei es bezüglich des Rechtsschutzes und des Verfahrens, insbesondere der Umweltverträglichkeitsprüfung, sei es bezüglich der Anforderungen des materiellen Umweltrechts. Die durch Entscheidungen des Aarhus Compliance Committee und des Europäischen Gerichtshofs induzierte Überarbeitung des Rechts des Umweltrechtsschutzes hat der deutsche Gesetzgeber andererseits zum Anlass genommen, verfahrensrechtliche Spezifika der Planfeststellung auf andere umweltrelevante Zulassungsentscheidungen zu erstrecken. Hierdurch deuten sich erstens Konturen eines allgemeinen Vorhabenzulassungsrechts an und wird zweitens die Eigenart der Planfeststellung als Instrument zur Durchsetzung von Vorhaben im öffentlichen Interesse stärker akzentuiert. Abstract The report surveys in two parts the development of the law on project-related planning and thus relates in particular to the planning and approval of space-consuming infrastructure projects such as traffic routes and power lines. For this purpose, German administrative law has long provided for the specific instrument of plan approval (Planfeststellung). In this context, the Federal Administrative Court has extensive first-instance jurisdiction and uses this to shape large parts of German approval law, including beyond the actual area of plan approval law, be it in terms of legal protection and procedure, be it with regard to the requirements of substantive environmental law. On the other hand, the revision of the law on environmental protection induced by the decisions of the Aarhus Compliance Committee and the European Court of Justice has been used by the German legislator to extend procedural specifics of the plan approval to other approval decisions of environmental relevance. This firstly indicates the contours of a general law on project approval and, secondly, the nature of the plan approval as an instrument for the implementation of projects in the public interest is more strongly emphasized.

scholarly journals Some changes in the field of civil law

2006 ◽  
Vol 78 (9) ◽  
pp. 395-412
Author(s):  
Dušan Nikolić
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Social Value ◽  
European Court Of Justice ◽  
The Other ◽  
The European Union ◽  
The Public ◽  
Public Benefit ◽  
Court Of Justice ◽  
European Court

In the first part of the paper, the author has outlined some changes that have happened in the field of civil law during the history, and in the second part of the paper, the author has paid attention to the modern trends, produced by the process of globalization. By analyzing certain sectors, the author has come to the conclusion that ownership title and public office are being slightly shifted from state to non-state authorities. On the other hand, this trend of the global (re)privatization has contributed to the change of attitude toward the title. The owner is expected to ewoy his title both for his own and for the public benefit. One of the most recent judgments of the European Court of Justice speaks in favor of this and it has been mentioned in this paper. This judgment supports the view that the property is not absolute and that it has a social value. The special attention is paid to the so called new institutionalism and need to question the concept of separation of powers within the European Union.

Patently Unsatisfactory?: Community Legislative Competence and the ECJ Biotech Decision

2001 ◽  
Vol 2 (18) ◽  
Author(s):  
Malcolm MacLaren
Keyword(s):  
Legal Protection ◽  
Power Sharing ◽  
European Court Of Justice ◽  
Good Opportunity ◽  
Court Of Justice ◽  
European Court ◽  
Wide Range ◽  
Legislative Policy ◽  
Biotechnological Inventions ◽  
Community Directive

On 9 October 2001, the European Court of Justice dismissed (1) a challenge by the Netherlands with the support of Italy and Norway against the Community Directive on the legal protection of biotechnological inventions. (2) Although the Biotech Directive relates to a wide range of public concerns and the Application for its annulment was based on a half-dozen different pleas, the following article will focus on the case as it relates to European Community treaty limitations. It will critically examine the perspectives on the principles of harmonisation and subsidiarity presented in the Application, the Advocate General's Opinion and the Court's Judgment within the broader context of the Community/Union's past and future development. The examination will reveal that in this case the Court has foregone a good opportunity to delimit 'positive integration'. (3) It could have made an important contribution to the on-going discussion about power-sharing between the national and supranational levels. While the judgment does strongly affirm the positive integration paradigm, the margins of the EU's legislative policy competences remain blurred due to its oft-opaque reasoning. The judgment raises, directly and indirectly, as many questions as it answers.

European Court of Justice Upholds German Electricity Pricing Scheme

2001 ◽  
Vol 2 (7) ◽  
Keyword(s):  
Renewable Resources ◽  
German Law ◽  
European Court Of Justice ◽  
Electricity Pricing ◽  
Federal Law ◽  
German Government ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Pricing Scheme

A German law known as the Stromeinspeisungsgesetz (Law on feeding electricity from renewable resources into the public grid) requires producers of electricity to purchase (at a fixed, minimum price) and pass along to electricity distributors energy produced from renewable resources in the producer's area of service. (Bundesgesetzblatt (BGBl. [Register of German Federal Law] 1990 I, p. 2633). As required by Article 88 of the Consolidated EC Treaty, the German government notified the Commission of the European Communities of the law's state aid provisions in 1990, and received authorization for those provisions from the Commission. The Commission concluded that the law was consistent with the energy policy aims of the European Communities and that its impact on the industry would be slight.

Genesis and Development of Legal Protection before Community Courts: A review of Eva Drewes, Entstehen und Entwicklung des Rechtsschutzes vor den Gerichten der Europäischen Gemeinschaften, Duncker & Humblot, Berlin 2000.

2004 ◽  
Vol 5 (6) ◽  
pp. 741-745
Author(s):  
Timo Tohidipur
Keyword(s):  
European Union ◽  
Legal Protection ◽  
European Court Of Justice ◽  
Brute Force ◽  
The European Union ◽  
Community Based ◽  
Court Of Justice ◽  
European Court ◽  
Sectoral Approach ◽  
Community Courts

The emerging of an early idea, – the idea of a united Europe in peace replacing the destructive force of nationalism – could not have been a proper blueprint for the formation of a European Society until the brute force of the two World Wars prepared the ground for the awareness of political, economical, and social necessities. The first chapter in the book of the European Union regarding this founding idea was written back in 1951/52 by establishing the European Coal and Steel Community (ECSC) as a Community based upon law. At first, following Jean Monnet's sectoral approach toward integration in connection with the idea of supranationalism, unifying element should have been the supranational administrative body called “High Authority” (former name of the Commission in the first ESCS-Treaty). Given that the ECSC arose on the basis of law, one of the first and most important questions seemed to be the need of legal protection framing and balancing the power of the nearly almighty High Authority. This need should be satisfied by the establishment of a European Court of Justice (ECJ) as a permanent Court in the ECSC-Treaty. Although the shape of the former European Community has been immensely changed and extended through the years of integrational process, the once established ECJ still remains the judicial core in the institutional structure. But how did the system of legal protection react on the defiances of the integrational process?

Statut ochrony dóbr osobistych w ustawie – Prawo prywatne międzynarodowe – wybrane zagadnienia

2019 ◽  
Vol 78 ◽  
pp. 386-401
Author(s):  
Nikodem Rycko
Keyword(s):  
Legal System ◽  
European Court Of Justice ◽  
Applicable Law ◽  
Personality Rights ◽  
Court Of Justice ◽  
European Court ◽  
Personal Rights ◽  
The Law

Law applicable to the protection of the rights of personality rights is regulated by a method of alternative indication with two equivalent connecting factors. The interpretation of these criteria – the place of the infringement of personal rights and the place where the damage occurred – may cause difficulties. The interpretation given by the European Court of Justice in the cases of Shevill and eDate Martinez seems to be the first to be taken into account, although exceptions should be admitted in justified cases. If the effects of infringement of the rights of personality occur in the territory of many states, it is to be assumed that the damage existing in each of them is governed by its legal system. However, this mosaic principle should only be applied where the person requesting the protection indicates the applicable law of the place of effect. If the law of the place of the infringement of personal rights is indicated, the norms of one legal system should be applied.

The European Community, the European Court of Justice and the Law of the Sea

2008 ◽  
Vol 23 (4) ◽  
pp. 643-713 ◽  
Author(s):  
Sonja Boelaert-Suominen
Keyword(s):  
International Law ◽  
European Community ◽  
Dispute Settlement ◽  
European Court Of Justice ◽  
Law Of The Sea ◽  
Member States ◽  
Court Of Justice ◽  
Fishery Policy ◽  
European Court ◽  
The Law

AbstractThe European Community has gradually increased its focus on marine and maritime affairs, starting with the Community's Fishery Policy in the 1970s and culminating recently in the 2007 Blue Book on an Integrated Maritime Policy of the European Union. The Community's increased clout over marine and maritime matters has been reflected also in the case law of the European Court of Justice. From the outset the Court has given great impetus to the Community's efforts to assert its external competence in matters related to fisheries and conservation of biological resources of the sea. Even so, the Court has thus far only occasionally been confronted with public international law questions pertaining to the law of the sea. However, the few cases in which the Court has addressed such issues are worthy of note. For example, the Court has ruled on whether Member States should be allowed to rely on the international law of the sea in order to derogate from obligations under Community law; whether Member States should be allowed to prefer the dispute settlement provisions set out in the 1982 United Nations Convention on the Law of the Sea over the Community's own dispute settlement system; and on whether private parties may invoke arguments derived from the customary or conventional international law of the sea to challenge the validity of Community legislation pertaining to marine and maritime matters. The resulting judgments of the European Court of Justice have often turned out to be landmark cases, although some of them have tended to divide academic opinion.

scholarly journals European Union citizenship: The acquisition of nationality and the ever-expansive reach of the European Court of Justice

2021 ◽  
Author(s):  
◽  
Bridgette K. McLellan
Keyword(s):  
European Union ◽  
European Court Of Justice ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Union Citizenship ◽  
The Law ◽  
Principle Of Proportionality

<p>European Union citizenship was established by the Treaty of Maastricht in 1992. Intended to fall within the exclusive prerogative of the Member States, it soon became clear that the autonomy of Member States to determine matters relating to nationality would be restricted by the ever-expansive reach of the European Court of Justice. As such, the European Court of Justice transformed the law on citizenship in the 2010 case of Rottmann where measures affecting or depriving the rights conferred and protected by the European Union were held to fall within the scope ratione materiae of European Union law. While Rottmann affirmed the law as to the deprivation of European Union citizenship, it left unanswered the question whether the acquisition of nationality also falls within the scope of European Union law. This paper aims to identify and analyse the law arising post-Rottmann to determine whether the acquisition of nationality could fall within the scope of European Union law. It shall then analyse whether fundamental principles of European Union law, namely the principle of proportionality, could be applied in order to regulate the conditions imposed by Member States in relation to the acquisition of nationality.</p>

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