Der rechtliche Schutz vor Feinstaub - subjektive öffentliche Rechte zu Lasten Vierter?

At present a »paradigm shift« in German environmental law is described. The air quality law changed from the »emission principle« to the »immission principle«. The emission principle addresses state provisions to a specific polluter, such as a factory to protect the neighbours at risk. In contrast the immission principle intends to protect the general public from dangers which are caused by everyone. The significant negative impacts on human health, particualte matter (PM10) is responsible for, are caused by the general public and jeopardise everyone. Therefore, in this field of air quality law on which the legal discussion as well as this article concentrates a change from the emission principle towards the immission principle is necessary. Consequently, PM10 limit values became part of the law. The classical triangle »polluter - state - neighbour« which was the preferred orientation of the law based on the emission principle expands to two wide circles: the general public causes the danger and is jeopardised by it.The »paradigm change« modifies the individual rights. It is the main reason for the controversial legal argument, which has been discussed by many lawyers and courts, in particular the European Court of Justice, the Federal Administrative Court, and the Higher Administrative Court in Munich. The legal question to be decided was the following: In the event of exceedances the PM10 limit values is a resident of the concerned area - within the classical triangle 'the third' - entitled to enforce a claim by legal action, so that the state has to establish an air quality plan to ensure conformity with the values? Or is the state bound to take all necessary measures to rapidly comply the prescriptive limits? The paper examines that the German and European environmental law only guarantee an individual right to enforce a state drawn plan. Thereby, the law in force is considered as well as the new Directive on air quality (2008/50/EG).Currently, the PM10 limit values are exceeded especially within traffic arteries as the car traffic, especially diesel Lorries, mainly cause the transgression. If here the limit values are to be complied as fast as possible the lorry traffic has to be closed or - as, regularly, this might not be possible - be rerouted in other streets. As a consequence, the air pollution in these streets increases at the expense of the people who live there. One may compare it with a flood. If the water line in one part of the inundated area is not to be raised the water must be bypassed in other areas. But is it appropriate to entitle 'a third' at the expense of somebody else, 'a fourth'? Generally, the answer is no. Exceptions are permitted if the actions reduce the general or a specific and significant health hazard. The struggle against the danger, caused by particulate matter, can only be successful if a general plan is pursued which takes all polluters and people in danger into account. Thus, the legal discussion about possible violations of basic liberties in protecting human health has also to rely on an equality-thinking. Only then the appropriate actions can be found and examined. Special measures to protect certain individuals who claim a legal action are likely to fragment the concerted and balanced strategy which is needed. The danger for human health increases tremendously, for example if particulate matter reaches little children, sick and older people. As a consequence these persons are to be carefully protected and not to be put in danger by rerouting traffic to enforce a judgement brought up by 'a third'. Only if individual rights and the concerted strategy work hand in hand the fight against dangers, which are caused by the general public and jeopardise everyone, can be successful.