Administrative Court of Aachen (VG Aachen) refers questions to the Court of Justice of the European Union (EuGH) on claim preclusion (preclusion under § 6 UmwRG) and environmental law protection – disruptive realignment for legal remedies in construction matters?

The preliminary ruling request of the Administrative Court of Aachen (VG Aachen) concerning the examination of preclusion under § 6 UmwRG and the environmental impact assessment pre-screening can be of major significance for legal remedies in construction matters.

Why this decision can be of major significance

The Administrative Court of Aachen (VG Aachen) (Order of 28.07.2025 – 3 K 2522/20 and 3 K 2523/20) has suspended the legal dispute concerning the building permit for a large-scale supermarket and has referred several crucial questions for preliminary ruling to the Court of Justice of the European Union (EuGH).

At its core, it concerns two highly relevant issues:

Preclusion under § 6 UmwRG (Environmental Remedies Act):

Claimants must substantiate their claim within ten weeks – otherwise they are barred from filing new submissions. This provision is suspected of unduly restricting the effective legal protection in environmental matters required under union law (Art. 47 EU Charter of Fundamental Rights, Aarhus Convention, Directive 2011/92/EU) disproportionately.

Right to bring proceedings against environmental impact assessment pre-screening:

Under German law, neighbours cannot isolately challenge the (subsequently conducted) pre-screening for environmental impact assessment (EIA). However, the Administrative Court of Aachen considers it possible that union law requires such a right to bring proceedings, in order to ensure the broad access to courts in environmental matters.

The preliminary ruling of the EuGH is of far-reaching significance for German administrative and environmental procedural law: it could substantially strengthen legal remedies for neighbours, citizen initiatives and environmental organisations and intensify the procedural obligations of courts (duties to inform).

What was the dispute about? Dispute concerning large-scale supermarket

• A neighbour objects to the permit for a supermarket with 1,749 m² of retail floor space in his immediate neighbourhood.
• The underlying development plan had previously been declared invalid.
• The city nevertheless issued a building permit, against which the neighbour filed a claim.
• The substantiation of the claim was filed late, whereby under German law a preclusion under § 6 UmwRG takes effect.
• During the proceedings, the city conducted an environmental impact assessment pre-screening and concluded that no full environmental impact assessment was required.

The central question: May the claimant continue to make submissions without preclusion despite the late substantiation and/or separately proceed against the environmental impact assessment pre-screening?

Legal considerations of the Administrative Court of Aachen (VG Aachen)

1. Preclusion under § 6 UmwRG – compliant with union law?

• The preclusion serves to accelerate proceedings and to create legal certainty for builders.
• According to current case law, preclusion under § 6 UmwRG takes effect independently of judicial extensions of time limits.
• Problem: Individual claimants without legal representation are not informed of this time limit and its consequences, which leads to disproportionate disadvantages.
• Possible infringement of:
• • Art. 47 EU Charter of Fundamental Rights (right to an effective remedy)
  • Art. 9 Aarhus Convention (broad access to courts)
  • Principle of effectiveness and equivalence (Rewe case law of the EuGH)

2. Duty to inform of preclusion

• The Administrative Court of Aachen (VG Aachen) considers it required by union law that claimants be explicitly and demonstrably informed of the consequences of preclusion under § 6 UmwRG.
• Without such information, the provision would be disproportionate and would infringe the fair trial principle.
• A more leniently designed preclusion provision with a duty to inform would be equally effective and less intrusive.

3. Estoppel protection in case of court-ordered extensions of time limits

• The court had granted the claimant multiple extensions of time for the substantiation of the claim on several occasions.
• Under current applicable law, this does not protect against preclusion.
• The Administrative Court of Aachen (VG Aachen) questions whether this is consistent with the principle of fair procedure under Union law.Principle of fair procedureis consistent with.
• From the claimant's perspective, it appears "artificial" andundermines confidencein the court proceedings if extended time limits are factually worthless.

4. Right to bring an action in the case of isolated challenge to the EIA preliminary examination

• German courts have so far rejected such a right to bring an action because the EIA preliminary examinationdoes not confer a right that protects neighbours.
• In the view of the Administrative Court of Aachen (VG Aachen), however, Union law could grant an independent right to bring an action in order to:Union lawcould grant an independent right to bring an action in order to:
• • ensure the enforcement of environmental law and
  • ensurebroad access to courts in environmental matters(Art. 11 RL 2011/92/EU, Art. 9 Aarhus Convention) to be ensured.
• The Court of Justice of the European Union (EuGH) could therefore clarify for the first time thatindividual claimantsare permitted to challenge a defective EIA preliminary examination in isolation.

Practical implications

The preliminary ruling questions posed by the Administrative Court of Aachen (VG Aachen) have considerableexplosive potentialfor future construction and environmental proceedings:

• Neighbours and citizens:
• • Could in futureno longer be excluded as easily through preclusion; and
  • May possibly obtaina new right to bring an actionagainst defective EIA preliminary examinations.
• Developers and project sponsors:
• • Would have to reckon withlonger and more complex legal disputes.
  • Building permits couldbe quashed more frequentlyif EIA preliminary examinations are defective.
• Municipalities and authorities:
• • Would have to adjust their licensing procedures and notification obligationsfundamentallyin order to act in compliance with Union law.

Our recommendation

For those affected by construction projects or environmental licensing:

Absolutely observe time limits:Until a decision to the contrary is handed down, the10-week periodfor the substantiation of claims should currently stillbe strictly observedin order to avoid preclusion under § 6 UmwRG.

Early legal advice:In order to avoid preclusion traps and procedural risks,immediate legal assistancefollowing receipt of a licence is crucial.

Explore new opportunities:Following the Court of Justice of the European Union (EuGH) decision, there could benew possibilities, to challenge defective environmental impact assessment pre-screenings or other environmental procedural errors.

AVANTCORE Rechtsanwälte in Stuttgart advises and represents neighbours, citizens' initiatives, environmental associations, but also project proponents in administrative law nationwide in complex construction and environmental disputes – from lodging an objection to enforcement in administrative court proceedings.