German environmental law - important recent developments

Gertrude Luebbe-Wolff

1. Codification project

To begin with the bad news: After more than a decade of preparatory work, the German Government has turned down the "Code of environmental law" project, on the assumption advocated by the Federal Ministry of Justice that the federation lacks the necessary competence.

2. Transposition of various EC directives

As a consequence of the failure of the codification, the general part of which was intended to adapt German Law to the requirements of the the IPPC- and the amended EIA-directives, special legislation is necessary for the transposition of these directives. A draft statute has been submitted to the federal parliament (Bundestag) in November 2000 (BT-Drs. 14/4599). This draft statute also contains changes in various federal laws designed to secure compliance with directive 1999/31/EC on the landfill of waste, and with ECJ judgements C-301/95 and C-217/91 concerning access to environmental information.

While the 1998 revision of the Federal Law on Nature Conservation and Protection of Landscapes has effected the necessary legislative transposition of directive 92/43 on the conservation of natural habitats and of wild fauna and flora (after condemnation by the ECJ), Germany has not yet complied with its duty to deliver a complete list of sites according to Art. 4 of the directive.

3. Legislation concerning greenhouse gases

A levy on electricity of 2 Pf/kwh was introduced by law of april 1, 1999 (law introducing the ecological tax reform, BGBl. I p. 378). Producing enterprises consuming more than 50.000 kwh/a enjoy an 80 % reduction. This reduction is politically related to a recently renewed and extended voluntary agreement according to which the German industry will reduce CO2 emissions by 25 % (from a 1990 baseline) until 2005 and other greenhouse gas emissions by 21 %. (It is interesting to compare this "collective" approach with the British model of granting 80 % climate levy reductions to enterprises which enter into individual reduction agreements). The tax is also reduced by 50 % for railway traffic. In addition to the levy on electricity, the mineral oil tax which had not, so far, been defined as an ecological tax, was increased by 6 Pf/l for petrol, 4 Pf/l for light heating oil and 0,32 Pf/l for gas.

On january 1, 2001 the law continuing the ecological tax reform (of december 16, 1999, BGBl. I p. 2432) entered into force. This law has added another 0,5 Pf/kwh to the tax on electricity and another 6 Pf/l to the gasoline tax by january 1, and will increase these taxes twice again by the same sum from january 1, 2002 and 2003 on.

A new law on renewable energies of march 29, 2000, replacing the former law on feeding electricity into the general network, grants producers of electricity from renewable energies the right to feed this electricity into the general network at prices far above the market price for electricity (20 to 14 Pf/kwh depending on the type of energy and the capacity of the installation in which it is produced), to be paid by the operator of the network. According to the attorney General´s pleadings in the ECJ proceedings concerning this piece of legislation, this obligatory private payment is not a subsidy in terms of the EC treaty but might be (no firm opinion was given on that point) regarded as discriminating producers of electricity from renewable energies operating outside Germany.

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