Headnotes

to the Order of the First Senate of 23 October 2018

– 1 BvR 2523/13 –

– 1 BvR 595/14 –

1. 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 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, the limitation of judicial review does not result from a prerogative of assessment granted to administrative authorities and does not require express statutory authorisation.

2. Where there is a “vacuum of scientific knowledge” in areas that have a bearing on fundamental rights, the legislature may not permanently assign decision-making to administrative authorities or to courts without setting out further standards; rather, it must ensure, at least in the longer term, that standards are established, in delegated legislation at the very least.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 2523/13 –

– 1 BvR 595/14 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

– 1 BvR 2523/13 –

– 1 BvR 595/14 –

the Federal Constitutional Court – First Senate –

with the participation of Justices

Vice-President Kirchhof,

Masing,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke

held on 23 October 2018:

1. The constitutional complaints are dismissed as inadmissible.

R e a s o n s:

The constitutional complaints relating to the prohibition to kill specially protected species laid down in § 44(1) no. 1 of the Act on Nature Conservation and Landscaping (Gesetz über Naturschutz und Landschaftspflege , Federal Nature Conservation Act, Bundesnaturschutzgesetz – BNatSchG) raise the issue of the extent of review by administrative courts that is required by Art. 19(4) first sentence of the Basic Law (Grundgesetz – GG).

A.

[Excerpt from press release no. 81/2018 of 23 November 2018 ] 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 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 matters. The courts held that as far as these matters are concerned, there are no generally recognised scientific standards or standardised survey methods for assessing the risks 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.

[End of excerpt ]

[…]

B.

The constitutional complaints are inadmissible. They do not meet the requirements of the principle of the subsidiarity of constitutional complaints (see I below) and they lack sufficient substantiation (see II below).

I.

The constitutional complaints do not meet the requirements of the principle of subsidiarity. According to this principle, it is not sufficient that the complainants formally exhausted the legal remedies. Rather, they would have had to exhaust all procedural possibilities available in the matter to prevent or remedy the asserted violation of the right to effective legal protection (Art. 19(4) first sentence GG; cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 134, 106 <115 para. 27> with further references).

The courts justified the limitation of judicial review challenged in the constitutional complaints by asserting that the current state of knowledge of ecological science and practice does not provide clear answers to the non-legal questions regarding the risk of killing red kites raised by § 44(1) no. 1 BNatSchG. In their constitutional complaints, however, the complainants argue that the necessary ecological findings already exist. Yet due to the subsidiarity of constitutional complaint proceedings, they would have had to substantiate this claim in due time in the proceedings before the regular courts. It cannot be ruled out that, in doing so, they could have prevented the limitation of judicial review that is unconstitutional in their opinion. The courts might then have followed their own approach and decided that the requirements for limiting judicial review were not met (see 1 below). The approach adopted by the administrative courts to review administrative acts based on § 44(1) no. 1 BNatSchG is not per se incompatible with Art. 19(4) first sentence GG (see 2 below).

1. The courts justified the limitation of judicial review by asserting that the current state of knowledge does not provide clear answers. Thus, the complainants might have been able to prevent the limitation of judicial review in the regular court proceedings if they had objected that sufficient ecological knowledge regarding the non-legal questions raised by § 44(1) no. 1 BNatSchG did in fact already exist.

a) […]

In their constitutional complaints, the complainants assert that a certain method or a certain standard for risk assessment had prevailed and that this was the only tenable standard. If the complainants’ assessments to this effect were true, it would have been impermissible to limit judicial review on the basis of the approach adopted by the administrative courts in both initial proceedings.

b) Whether recognised scientific standards and methods exist is a question of fact that the respective scientific discipline must answer and that experts can prove true or false (cf. BVerfGE 88, 40 <58 and 59>; Federal Administrative Court, Bundesverwaltungsgericht , BVerwG, Judgment of 24 February 1993 – 6 C 38.92 –, juris, para. 18). In the constitutional complaint proceedings, the complainants do not demonstrate that they raised this question in the regular court proceedings, at least in the last instance deciding on the facts of the case. It is also not ascertainable from the files consulted that the complainants asserted the existence of generally recognised standards and demanded further investigation of the facts in the regular court proceedings. Likewise, it is not discernible that the complainants, in the regular court proceedings, even called into question in a substantiated manner whether the standards invoked by the authorities were tenable.

c) It was not inadequate to expect the complainants to make submissions to this effect in the appeal proceedings already and to insist on further investigation of the facts. They did not assert, either in the appeal on points of law or in their constitutional complaints, that they were prevented from doing so, nor can this be ascertained otherwise. They do not claim a violation of Art. 103(1) GG in their constitutional complaints either. In particular, they do not assert that the Higher Administrative Court (Oberverwaltungsgericht ) unexpectedly limited its review of the decisions taken by the authorities.

2. The approach adopted by the administrative courts, which limits judicial review of the authorities’ application of § 44(1) no. 1 BNatSchG to the extent that there are no generally recognised standards and methods in ecological science and practice, is not unconstitutional from the outset; thus, the constitutional complaints must meet the requirements of the principle of subsidiarity. If the approach to review, which is precisely what the complainants challenge with their constitutional complaints, had been unconstitutional, they could not simply be required to accept it. However, the approach to review adopted by the administrative courts is essentially compatible with Art. 19(4) first sentence GG.

Where the application of a law requires factual ecological findings for which neither delegated legislation nor standards and methods generally recognised 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 (see a below). This principle can come into play for the application of § 44(1) no. 1 BNatSchG that is at issue here (see b below). Accordingly, the complainants would have had to submit their objections against the assumption that there were no established ecological findings at least to the appeal court as the last instance deciding on the facts of the case.

a) Judicial review by administrative courts reaches its limits if there is no legislation specifying how to address a legal matter that is based on non-legal ecological criteria and if experts and scientist 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 outcome of the authority’s decision was correct. In this case, judicial review is not limited because the administrative authority was granted a prerogative of assessment, but because the question whether the outcome of the administrative decision is correct in ecological terms cannot be definitively determined in an objective manner (see aa below). However, the extent of judicial review in this case does not differ fundamentally from the usual judicial review. The challenged decisions must be reviewed as far as possible and the court must ascertain that the decision taken by the authority is plausible (see bb below).

aa) 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 (see bb below), Art. 19(4) first sentence GG does not require the courts to investigate further. Rather, the courts may then base their decision on the authority’s assessment of the specialist question if the courts consider this assessment plausible.

(1) In principle, the guarantee of effective legal protection gives rise to an obligation of the courts to fully review the challenged administrative acts in legal and factual terms (cf. BVerfGE 129, 1 <20> with further references). Even where the underlying legal provisions require non-legal specialist assessments, the administrative court generally carries out a full review as to the lawfulness of the decision made by the authority. If no delegated legislation exists to specify how such requirements are to be assessed, authorities and courts must directly make use of findings developed by scientists and experts to clarify these specialist elements.

Where experts and scientists do not have generally recognised standards and methods for specialist assessment of the matter, judicial review of the outcome of an administrative decision may reach objective limits for lack of better knowledge by the courts. If a non-legal question has not yet been clearly answered by experts and scientists, it cannot be definitively determined in an objective manner whether the answer the authority provides to this specialist question is correct (cf. BVerwG, Judgment of 9 July 2008 – 9 A 14.07 -, juris, para. 65). Art. 19(4) first sentence GG does not impose an obligation on the courts to resolve this lack of non-legal factual knowledge. Courts are not in a position to close gaps in specialist knowledge themselves, and they are also not obliged to commission research that goes beyond investigations regarding the current state of scientific knowledge (cf. BVerwG, Judgment of 7 April 2016 – 4 C 1.15 –, juris, para. 24; Judgment of 22 September 2016 – 4 C 6.15 –, juris, para. 28; cf. already BVerwG, Judgment of 17 January 2007 – 9 A 20.05 –, juris, para. 66).

Of course, it cannot be ruled out that the court, despite insufficient knowledge regarding the ecological matter at issue, could carry out an independent assessment in a similar manner as the authority. The authority is bound to make a decision if the law so requires, even if its knowledge is insufficient. However, according to the spirit and purpose of the constitutional guarantee of legal protection, no additional assessment by the court is required that is independent of the decision made by the authority and goes beyond the review of whether the assumptions made by the authority are tenable in the framework of existing knowledge. Rather, the court can base its decision on the assessment made by the authority if the court also considers this assessment plausible.

If the court carried out its own assessment, going beyond the review possible in the framework of existing knowledge, the question whether the assessment undertaken by the authority or the one by the court is correct would inevitably remain unanswered, and would also be objectively unanswerable. Irrespective of whether the court reached the same conclusion as the authority, both assessments would be unverified due to the objective lack of established knowledge. Yet regarding non-legal factual questions, it cannot be presumed that the courts have more expertise than the administrative authorities do. Given that there is nothing to suggest that the courts’ assessment of unresolved ecological issues is more likely to be correct than the authorities’ assessment, judicial review cannot contribute to the protection of the rights holders in such instances.

(2) If an administrative court reaches the objective limits of knowledge in ecological science and practice when reviewing decisions regarding nature conservation law, the limited extent of review does not follow from a prerogative of assessment that is specifically granted to the administrative authorities. Rather, it simply follows from the fact that there is no standard for telling apart correct and incorrect assessments with certainty. Thus, this does not amount to a shift of decision-making competence from the court to the administrative authority; rather, the limit to review by the administrative court is of a factual nature and its duration and extent depend on the respective state of ecological knowledge. In this instance, no express statutory authorisation is needed, which would be required to grant administrative authorities margins of assessment to make final decisions specifying legal concepts that are not precisely defined in statutory law (cf. on this BVerfGE 129, 1 <21 et seq .>).

While the limited extent of review is compatible with Art. 19(4) first sentence GG, a law that uses constituent elements referring to such unresolved ecological issues can raise constitutional concerns relating to substantive fundamental rights and the essential matters doctrine (Wesentlichkeitsgrundsatz ) derived from the principles of democracy and the rule of law (cf. BVerfGE 49, 89 <126>; 137, 350 <363 and 364 para. 33>). 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 assign decision-making to law-applying bodies without setting out further standards […]. Depending on which fundamental right is affected to what extent, in the short term the legislature may be able to legitimately expect that gaps in specialist knowledge will be closed by advances in knowledge of experts and scientists. However, in the longer term, the legislature must not stand idly by because in doing so, it would evade its responsibility of taking substantive decisions itself, grant private specialist knowledge far-reaching influence on state decisions without any control and could thus not guarantee a uniform application of the law. To the extent that the specialist issues are still unresolved, the legislature must ensure that standards are established at least at the level of delegated legislation, for example by setting up expert bodies to determine uniform standards and methods or at least to define more precise rules for authorities’ decisions among several tenable opinions. Yet these considerations are irrelevant in the present proceedings.

bb) Even if experts and scientists have not developed generally recognised standards and methods for a specialist assessment of the matter, the extent of judicial review does not differ fundamentally from the usual judicial review. Only after a decision made by the authority has been judicially reviewed as extensively as possible can the administrative court refrain from carrying out further investigations and from forming opinions, on the basis of the objective limits of the state of scientific knowledge, and can rely on the decision made by the authority being plausible in the further course of the proceedings.

(1) The court can be objectively limited in its judicial decision-making by a lack of ecological knowledge only when it applies non-legal criteria. Even in the context of a non-legal assessment, the limits of judicial decision-making can only be reached if the objective lack of specialist knowledge actually concerns the specialist assessment required by law; to the extent that there is no lack of knowledge for individual aspects of the specialist assessment, the court must fully review whether the decision made by the authority is correct.

(2) From the outset, the court can only consider refraining from further review if there is actually a lack of clear scientific knowledge that is relevant to the decision. In the case at hand, limiting judicial review with regard to the prohibition to kill [protected species] set out in § 44(1) no. 1 BNatSchG is no longer permissible if certain standards and methods have prevailed for surveying the population of affected species or for assessing risks, and other approaches can no longer be considered tenable. Whether this is the case is subject to full judicial review (cf. BVerwG, Judgment of 21 November 2013 – 7 C 40.11 –, juris, para. 19; Judgment of 7 April 2016 – 4 C 1.15 –, juris, para. 25).

(3) If no generally recognised specialist opinion exists, the court can, and must, review whether the specialist standards and methods used by the authority are tenable, and whether the authority ultimately reached a plausible assessment of the specialist constituent elements of a provision in this regard (cf., e.g., BVerwG, Judgment of 28 April 2016 – 9 A 9.15 -, juris, para. 128; foundationally on nature conservation law BVerwG, Judgment of 9 July 2008 – 9 A 14.07 –, juris, para. 65; established case-law). To the extent that fact-based objections are raised in the court proceedings against the method used by the authority, the court must review whether these objections substantially call into question the methodology, basic assumptions and conclusions of the authority (cf. BVerwG, Judgment of 7 April 2016 – 4 C 1.15 –, juris, para. 23; see also BVerwG, Judgment of 9 July 2008 – 9 A 14.07 –, juris, para. 71 et seq .; Judgment of 6 November 2012 – 9 A 17.11 –, juris, para. 97 et seq. ; Judgment of 28 April 2016 – 9 A 9.15 –, juris, para. 132 et seq. ). If the authority based its assessment on a method that no longer appears tenable according to the current state of knowledge, its decision is unlawful; in such a case, the factual limits of non-legal knowledge are irrelevant for the decision.

If, however, the court reaches the conclusion that the objections and conflicting expert opinions cannot refute the method used by the authority as untenable, but that they in turn also use a tenable method, the court is ultimately faced with two tenable positions. It then cannot objectively determine which of the two positions is correct, or whether one of them is correct at all, given the lack of clear specialist knowledge. This also applies if the court finds that the opposing positions are untenable. In that case, only the specific method chosen by the authority remains, to the extent that the court has ascertained it is tenable. However, in this situation as well, it cannot be held with certainty that this method is the correct one resulting in correct specialist assessments, given the objectively insufficient state of knowledge. The administrative court is then not in a position to further review whether the assessment undertaken by the authority is correct, it must limit itself to reviewing whether the assessment is plausible.

(4) However, according to general legal principles, it is 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 (cf., e.g., BVerfGE 84, 34 <53 and 54>; BVerfG, Order of the Third Chamber of the First Senate of 10 December 2009 – 1 BvR 3151/07 –, www.bverfg.de, para. 59; Order of the First Chamber of the First Senate of 8 December 2011 – 1 BvR 1932/08 –, www.bverfg.de, para. 40; regarding nature conservation law cf., e.g., BVerwG, Judgment of 9 July 2008 – 9 A 14.07 –, juris, para. 65 et seq. ).

b) The limits of judicial review described above can come into play in the case at hand with regard to the application of § 44(1) no. 1 BNatSchG. The provision requires specialist ecological assessments which have not previously been made in a generalising manner, for instance through specific provisions set out in delegated legislation, and for which no standards and methods exist that are generally recognised by experts and scientists according to the findings of the Higher Administrative Court, which are now disputed by the complainants.

aa) Specialist ecological assessments are required to the extent that, according to established case-law, the prohibition to kill [protected species] set out in § 44(1) no. 1 BNatSchG only takes effect if a project significantly increases the protected animals’ risk of collision (cf. BVerwG, Judgment of 12 March 2008 – 9 A 3.06 –, juris, para. 219; see also § 44(5) second sentence no. 1 BNatSchG). […] To the extent that the existence of a risk is determined on the basis of non-legal criteria, namely specialist ecological criteria, evaluations relating to that risk require a specialist ecological assessment. In particular, the surveying of the population of a protected species and the likelihood that a protected animal will be killed in case of realisation of the project is determined by specialist ecological criteria. If there are no standards and methods that are generally recognised by experts and scientists to determine this risk of animals being killed, as the courts assumed in this case, this can limit review by the administrative courts.

With their constitutional complaints, the complainants now dispute that there are still no standards and methods generally recognised by experts and scientists for determining the risk. This amounts to a potentially substantial objection against the court decisions because the courts may have limited their review without sufficient grounds to do so. However, the question whether there are standards and methods generally recognised by experts and scientists cannot be resolved in the constitutional complaint proceedings. The complainants would have had to submit this objection in due time in the regular court proceedings. They can be required to do so because the approach adopted by the administrative courts is essentially compatible with Art. 19(4) first sentence GG.

bb) The Higher Administrative Court also assumes that the finding of whether protected species have a significantly increased risk of being killed or injured in the specific case also contains elements of normative evaluation not subject to ecological assessments that therefore cannot be proven true or false (Saxony-Anhalt Higher Administrative Court, Judgment of 19 January 2012 – 2 L 124/09 –, juris, para. 46). Such an assumption then requires that the undefined legal criterion of significan t increase be further clarified in normative terms. This is generally incumbent upon the administrative courts (cf. Kahl/Burs, DVBl 2016, S. 1222 <1224>; foundationally BVerfGE 129, 1 <21> with further references). In this respect, margins of assessment granted to administrative authorities require a sufficiently clear statutory basis (cf. BVerfGE 129, 1 <21 and 22> with further references). The constitutional complaints do not merit a decision on this issue.

II.

The constitutional complaints are not sufficiently substantiated (§ 23(1) second sentence, § 92 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG). The complainants do not demonstrate with regard to which material issues the courts specifically limited their review in the case at hand. With their constitutional complaints, they essentially challenge, in abstract terms, the authorisation to limit judicial review when applying § 44(1) no. 1 BNatSchG. This is not sufficient for substantiating the constitutional complaints, in particular because the Higher Administrative Court and the Federal Administrative Court have determined that the limitation of judicial review is dynamic, and that it is only permissible as long as there are no recognised ecological standards and methods (cf., e.g., BVerwG, Judgment of 21 November 2013 – 7 C 40.11 –, juris, para. 19). Accordingly, whether and with regard to which aspects judicial review is limited may change over time in the context of the findings to be established pursuant to § 44(1) no. 1 BNatSchG.

It is true that the courts themselves refer to a prerogative of assessment granted to the authorities, which suggests that judicial review was indeed limited in this case. However, in the constitutional complaint proceedings the complainants are still required to demonstrate regarding which specific questions the extent of review was impermissibly limited in their view. Given the numerous findings of facts and the courts’ comprehensive examination of the facts of the case to be judged here, it is not readily ascertainable to what extent judicial review could indeed have been limited in this case. Yet it is not for the Federal Constitutional Court to examine the challenged decisions for specific violations of the guarantee of legal protection on the basis of general claims that judicial review was insufficient.