Jan Henrik Klement

Die Kumulation von Grundrechtseingriffen im Umweltrecht

Jahrgang 134 () / Heft 1, S. 35-82 (48)

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German Environmental Law has evolved within the last 30 years into a highly complex collection of rules for several reasons. The operation of federalism of the political system and the influence of the European legislation have created a close-meshed net of rules and regulations. Private individuals are not only subject to single actions by public authorities, but are tied in lasting forms of cooperation, engagement and responsibility. Since Environmental statutes have often been passed as a reaction to public demands and to particular legislation put forward by the E. U., the lack of coherence of the legal system is not surprising. Unification and codification were aspired to by the Environmental Code (Umweltgesetzbuch), which has been on the political agenda for decades. Though the recent German government tried to initiate a bill with all its strengths, once again it seems the Environmental Code failed at the pre-legislative stage, and will not be enacted before the election in 2009. Hence it is necessary to acclimatise to a non-codified, non-distinctive, and to some extent incoherent set of rules. Legislative interference with the scope of basic rights (Grundrechte) can no longer be regarded separately. An individual is exposed to various measures of the public authorities acting within the fragments of environmental law, whose impacts can be amplified, impaired or neutralised by one another. This essay tries to work out the basic lines of an approach that is able to reflect the interaction of two or more effects on rights, and provide substantive constraints on legislative and executive action. It argues that for this purpose the specific rationality that distinguishes judicial judgment from political reasoning needs not be abdicated. First of all a classification of different forms of Basic Law interaction is required in order to clarify the several legal problems. In this respect the concept of »vertical accumulation of infringements« (vertikale Eingriffskumulation) defines a concurrence of two or more infringements of constitutional rights assigned to a single person. In contrast the concept of »horizontal accumulation of infringements« (horizontale Eingriffskumulation) means that some state actions affect more than one person at the same time. Both forms of accumulation have to be distinguished from the conflict of constitutional rights (Grundrechtskonkurrenz) resulting from overlapping scopes. This essay shows that one cannot grasp the horizontal accumulation of infringements by taking a view that focuses solely on individual rights. Recent decisions of the German Federal Constitutional Court dealing with cases of horizontal accumulation can be explained by means of the interplay of the defensive rights-dimension and basic rights understood as objective principles. In comparison, rather complex questions are posed by the concept of the vertical accumulation. This essay repudiates a replacement of the conventional examination which considers each infringement separately, with a synoptic survey. Under German Constitutional Law, there is no place for a general right protecting a »minimum of liberty«. Nevertheless, an infringement of constitutional rights can have effect on the justification of other interferences with constitutional rights. This leads inevitably to the question how to apply the principle of proportionality in an adequate structured manner. Furthermore, the theory of the guarantee of »the essence of a basic right« (Theorie des »Wesensgehalts«) needs to be reconsidered.

Jan Henrik Klement Geboren 1975; 2002–05 Wissenschaftlicher Mitarbeiter Justus-Liebig-Universität Gießen; 2006 Promotion; Referendariat am Landgericht Frankfurt am Main; 2007 Zweites Juristisches Staatsexamen; Akademischer Rat an der Universität Bayreuth und der Ruprecht-Karls-Universität Heidelberg; 2011–13 Lehrstuhlvertretungen an den Universitäten Hamburg und Mannheim; 2013 Habilitation; seit November 2013 Universitätsprofessor und Inhaber des Lehrstuhls für Staats- und Verwaltungsrecht an der Universität des Saarlandes, Saarbrücken.