Traube v. Germany

Traube, the applicant is a German national owning and operating a farm located in Salzgitter-Bleckenstedt. In 1991, a plan-approved procedure was opened for the transformation of an iron ore mine near the applicant’s farm to be transformed into a nuclear waste repository for the final disposal of low-level and intermediate-level radioactive waste. The plans were made available to the public from May 16 to July 15, 1991. Representatives of the local municipalities, non-governmental organizations, and individuals, including the applicant, filed around 290,000 objections against the plan.

By a planning decision on May 22, 2002, the Lower Saxony Ministry for the Environment granted a license for the transformation of the mine into a nuclear waste repository. According to the planning decision, only solid or solidified radioactive waste with “negligible heat generation” may be stored in the repository. On the repository’s official website, it is stated that the conversion of the mine into the repository is still underway and expected to become operational in 2019. The plan is for the repository to be operational for around 80 years, at which point the repository is to be sealed and the land will be recultivated.

On June 22, 2002, Traube challenged the license, via written submissions, before the Lower Saxony Administrative Court of Appeal. During a hearing in March 2006, the Lower Saxony Court of Appeal held that there was no evidence to establish that the planning decision violated Traube’s rights. The court further held that the plan-approval procedure had been conducted in accordance with the statutory procedural requirements. On March 26, 2007, the Federal Administrative Court rejected Traube’s request to be granted leave to appeal. On November 10, 2009, the Federal Constitutional Court declined to consider Traube’s complaint lodged against the decisions of the proceeding domestic courts.

The following are the relevant provisions:

Nuclear Power Act: “Pursuant to the relevant provisions of the Nuclear Power Act (Atomgesetz) it is the Federal State’s responsibility to establish facilities for the disposal of radioactive waste, a task that falls within the competence of the Federal Office for Radiation Protection. Section 7 § 2 of the law provides that a licence for a repository for the final disposal of nuclear waste may only be granted if it is ensured that, inter alia, the necessary precautions against hazards arising from the construction and operation of the repository are taken in accordance with the state of science and technology and if the necessary protection of the site against hazardous incidents, accidents or disruptive acts by third parties is guaranteed. According to Section 9 c § 4 of the Act the licence has to be refused in the event it is to be expected that the operation of the facilities would impair the well-being of the public or infringe provisions of public law, in particular environmental law.”

In deciding a case such as the present one, which involves government decisions affecting environmental issues, the Court states that it must make two inquiries: (1) whether the substantive merits of the Government’s decision is compatible with Article 8, and (2) whether procedural aspects of Article 8 were followed during the decision-making process.

With regards to the first inquiry, the Court noted that in cases involving environmental issues, the State must be allowed a wide margin of appreciation. Here, the Court held that the requirements for the repository’s licensing pursuant to the provisions of the Nuclear Power Act were met. The Court found that the license was granted in accordance with the relevant legal provisions and pursued a legitimate aim – i.e. the interest of the general public in the final disposal of nuclear waste in line with scientific and technical safety standards. The Court noted that the domestic authorities and courts thoroughly examined the case and gave due weight to expert opinions in reaching their conclusions that the possible risks for the public in connection with the operating of the repository were negligible.

Furthermore, the Court found that the domestic authorities in this case struck a fair balance between the public interest to have a safe nuclear waste repository and Traube’s interest in being protected from potentially harmful radiation. The domestic courts determined that the repository complied with the statutory thresholds for non-hazardous radiation exposure. As noted by the Court, even Traube does not suggest that the statutorily fixed thresholds fail to provide sufficient protection from harmful radiation.

With regards to the second inquiry, the Court held that there was no violation of the procedural aspect of Article 8. The procedural aspects of Article 8 require transparency and the possibility to participate in the decision-making process, as well as the right to seek judicial review. Here, the public was involved in the plan-approval procedure. The planning permission was publicized and the public’s objections were heard during public hearings held over a total of 75 days.

Moreover, Traube had the benefit of adversarial proceedings before administrative bodies and the domestic courts in three separate instances. Traube was able to submit arguments to the courts that he found relevant to his case. The factual and legal reasons for dismissing his action were set out at length by three court decisions.

“In relation to the substantive aspect, the Court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation.” (Para 29)

“Having regard to the wide margin of appreciation States enjoy in cases involving environmental issues, the Court finds that the domestic authorities in the instant case have struck a fair balance between the public interest to have a safe nuclear waste repository for the final disposal of low-level and intermediate-level radioactive waste and the applicant’s interest to be protected from potentially harmful radiation.” (Para no.31)