Introductory case 1. facts (1) By Directive 2003/87/EC the European Union established a scheme for greenhouse gas emission allowance trading for the cost-effective reduction of such emissions. Since January 2005, all installations carrying out any of the activities listed in Annex I to this Directive (activities in the energy sector, iron and steel production and processing, the mineral industry and the wood pulp, paper and board industry) and emitting the specific greenhouse gases associated with this activity must be in possession of an appropriate permit issued by the competent authorities. The Directive was transferred into national law in Germany by the Law on Greenhouse Gas Emission Trading in 2004. According to art. 4 of the law any activity which evaporates greenhouse gas needs a permission which includes the necessary amount of permits.

Introductory case 1. facts (2) An enterprise from the cement industry operated several production plants for which permissions were issued before the new law entered into force. During the production a big amount of carbon acid gas is emitted. Under the new law new permissions have to be issued including the acquisition of permits under the greenhouse gas regime. The enterprise filed a case at the competent administrative court of first instance by which it wanted the court to establish that the there is no obligation to apply for new permission under the new law. Due to the unavoidable high amount of greenhouse gas emissions during the production of cement the enterprise would be particularly affected by the new law, although the amount of emissions was permitted by the old and timely unlimited permissions already. The regime under the new law would have the effect of an expropriation. It therefore claimed a violation of the rights under art. 12 and 14 of the Basic Law.

Introductory case 2. applicable legislation (1) National Basic Law (constitution) art. 12 - professional freedom art. 14 - property, right of inheritance art. 19 - restriction of fundamental rights (…) basic rights apply also to corporations, should any person’s right be violated by public authority, recourse to the court shall be open to him (…) art. 93 - Federal Constitutional Court, jurisdiction art. 100 - unconstitutionality of legislation

Introductory case 2. applicable legislation (2) b. European: Fundamental Rights Charter FRC art. 17 – right to property art. 15 – freedom to choose an occupation and right to engage in work art. 52 – scope of guaranteed rights

Introductory case 3. questions (1) a. in relation to national legislation: Is a national court empowered or obliged to review a national legal act (law passed by parliament) in the light of national fundamental rights? Can a national court quash a national legal act of parliament? If so, how broad is the control with regard to national fundamental rights, e.g. is there a right to set asside the national law? Has a national court jurisdiction over the consistency of national legislation with EU legislation?

Introductory case 3. questions (2) b. in relation to EU law Is a national court empowered or obliged to review a European legal act, e.g. a Directive? Can it be quashed? Because of violation of national law? Because of violation of EU-law? Must a national court review a case in the light of EU law, e.g. even if such violation is not invoked by the parties (ex officio principle)?

Introductory case 4. solution (1) a. Decisions of the national courts The Administrative Court (Verwaltungsgericht) of Würzburg rejected the recourse by judgement from 9 November 2004 (W 4 K 04.948) and admitted a leap-frog appeal (Sprungrevision) to the Federal Administrative Court (Bundesverwaltungsgericht). The final revision was rejected by the Federal Administrative Court by judgement from 30 June 2005 (BVerwG 7 C 26.04). The plaintiff entered a complaint of unconstitutionality which was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) by decision from 14 May 2007 (1 BvR 2036/05).

Introductory case 4. solution (2) b. The scope of judicial review. aa. Concerning the national legal act of parliament Is a national court empowered or obliged to review a legal act of parliament in the light of national fundamental rights? In Germany each court has to revise the constitutionality of legal acts of parliament concerned. But if it is convinced of unconstitutionality it must submit this question to the Constitutional Court. The Constitutional Court only has the right to quash a legal act of parliament (see article 100 Basic Law). Fundamental rights are laid down in the first chapter of the German Basic Law. As an administrative court is not empowered to annulment of a legal act of parliament in Germany, the plaintiff wanted a reference for a preliminary ruling to the Federal Constitutional Court.

Introductory case 4. solution (3) If so, is a national court empowered to such a review even if the law is implementing an EC directive? In this case the control in the light of national fundamental rights is limited. Pursuant to the jurisprudence of the German Constitutional Court (Solange-als-Rechtsprechung) it shall not exercise its jurisdiction as long as the European Court of Justice guarantees an equivalent protection of fundamental rights on European level. In its recent judgement from 30 June 2009(Treaty of Lisbon) the Constitutional Court referred to this jurisprudence. In the given case the legal rules, which are mere implementation of the directive 2003/87/EC are not revised in the light of national fundamental rights. If so, how broad is the control in the light of national fundamental rights in this case? Pursuant Article 249(3) EC a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. In the given case the review is limited to the legal rules, which are not determined by the directive.