독일 환경법상의 단체소송에 관한 소고

Although the advocacy of environmental interest as public interest has been entrusted exclusively to administrative authorities, it can not be said that environmental interest has been protected adequately by the hands of administrative authorities due to lack of enforcement in environmental law. Accordingly, the establishment of partnership between environmental NGOs and administrative authorities or cooperation between them has emerged as an important policy issue in the area of environmental law or environmental administration. Therefore, attention has been paid to the introduction of environmental class actions as one of effective measures for alleviating significant lack of enforcement in the area of environmental administration and for protecting environmental interest. In Germany, the Environmental Remedies Act was enacted in December 7, 2006 to transpose Article 9 of the Aarhus Convention and Article 15a of the European Union's Public Participation Directive, both of which provide the access to justice, into domestic law, and the significance of the Act is recognized in the aspect that it allows class actions on environmental law in general. Nevertheless, this Act has been criticized by reason of insufficient consistency with European law because this Act restricted collective access to justice and the scope of review by courts to violations of environmental statutes “which provide for individuals' rights.” In such circumstances, the decision made on the so-called Trianel case by the European Court of Justice on May 11, 2001 made it inevitable to amend the Environmental Remedies Act as it held that the Environmental Remedies Act of Germany contravened the Public Participation Directive of the European Union. Meanwhile, it is still doubtful whether the Environmental Remedies Act as amended in 2013 to rectify the contravention of European law is consistent with European law because it places new restrictions on class actions, while it promotes the expansion of environmental organizations' access to justice. Environmental class actions are no longer limited to some states or some particular areas, and the guarantee of so-called green access to justice has become an international indicator of environmental democracy. In short, the introduction of environmental class actions seems to be unavoidable so as to alleviate the lack of enforcement of environmental law and enforce the rule of law, based on the fundamental idea that environmental interest is not only private interest but also public interest. Therefore, considering that the ordinary administrative litigation system that requires a violation of legal interest of a private individual as an element under environmental law of the Republic of Korea cannot guarantee environmental interest sufficiently, it seems necessary to strengthen judicial control over environmental administration by introducing environmental class actions.