UfU-UIG lawsuit

On November 3, 2016, the hearing on the lawsuit filed by the Independent Institute for Environmental Issues against the Federal Ministry of Economics (BMWi) took place. The case concerns the assertion of an environmental information claim to the documents held by the BMWi in the “Vattenfall v. Germany” proceedings before the International Center for Settlement of Investment Disputes (ICSID) in Washington. The case between Vattenfall and the Federal Republic of Germany has been heard there since 2012. In February 2015, UfU had already submitted an application to the Federal Ministry for Economic Affairs and Energy for access to files in accordance with Section 3 of the Environmental Information Act (UIG). The aim of the application was and is to obtain access to the documents relating to these proceedings before the International Investment Court of Arbitration. Following the rejection notice of March 19, 2015 and the objection procedure in spring 2015, UfU filed an appeal with the Berlin Administrative Court on June 19, 2015. UfU wants to bring transparency to these international arbitration proceedings and have it established in court that the principles of the Aarhus Convention must also be taken into account as binding law before international arbitration tribunals and cannot be circumvented by agreements on the confidentiality of negotiations. It therefore demands access to files in accordance with Section 3 UIG: Questions of public interest, which must be guaranteed, are for example: How does Vattenfall justify its claim amount? What is Vattenfall’s understanding of “expropriation”? Or on what legal basis is the claim for compensation based? There is a legal right to disclosure of this information under the UIG. The assertion of this claim cannot depend on the consent of a private investor – as is the case with the transfer of the oral proceedings before the ICSID. The latter cannot decide on the applicability of existing legal provisions vis-à-vis the German public. The Federal Government is also bound by the applicable international and national laws within the framework of the party agreements governing the arbitration tribunal. The transparency principles of the Aarhus Convention on the disclosure of information are not disposable. After all, how are politicians and the public supposed to exercise their control functions if both the members of the German Bundestag and the German public are denied any information about these proceedings? After all, German taxpayers’ money is also being used in proceedings before an arbitration tribunal based in Washington. Back in May 2012, the energy supplier sued the Federal Republic of Germany for damages due to lost profits resulting from the statutory nuclear phase-out. The claims amount to 4.7 billion euros due to the decommissioning of the two nuclear power plants Krümmel and Brunsbüttel in Schleswig-Holstein. The fact that Vattenfall has not brought the action for damages before an ordinary German court, as would have been possible, is presumably primarily due to the prospects of success. A final judgment will be handed down in Washington without the possibility of appeal and is expected by May 2017.

The UfU’s complaint thus also points to the incompatibility between ordinary court proceedings and arbitration proceedings. After all, what use are international treaties on comprehensive transparency in environmental matters, such as the Aarhus Convention, or comprehensive laws and entitlements, such as the Environmental Information Act, if important areas of the economy are excluded in cases of conflict? However, it is not only the type of procedure that has far-reaching consequences for environmentally relevant decisions, but also the outcome: the prospect of having to pay several billion euros in damages if far-reaching decisions are made in the interests of the environment will tend to paralyze any politically responsible person from making decisions in this sense in future. And there is already evidence that arbitration proceedings directly affect official measures with an environmental impact: for example, the Hamburg environmental administration withdrew its environmental regulations in order to avoid having to pay 1.4 billion euros that had been imposed on it following an arbitration ruling (Moorburg case, case number ARB/09/6).