Comparative Law in a Changing World

In times of rapidly changing social worlds and an ever more fragile controllability of the law, international legal comparison obtains increasing relevance. Frequently, similar or even identical questions and problems must be answered and solved in different legal communities


I. Introduction
Environmental protection is one of the most important topics on the political agenda and, since 1994, a constitutional obligation (Art.20a Basic Law).Meanwhile, a differentiated system of legal rules deals with environmental protection.Those rules primarily cover substantive and procedural questions.The choice of the instruments is left to the discretion of the administration.This gives rise to the question what instruments are useful to ensure environmental protection by law.Hereinafter, the public-law contract will be examined for its suitability.

II. Public-law contract
A public-law contract, also known as an administrative contract, is an enforceable agreement ruled by public law.In particular, instead of issuing an administrative act, the authority may conclude an agreement under public law with the person to whom it would otherwise direct the administrative act ( § 54 cl. 1 Administrative Procedure Act).Compared to the administrative act, the public-law contract and the relationship between the contracting parties are characterised by cooperation.1At the same time, it is legally binding for both parties 2 -an advantage over other instruments characterised by cooperation. 3 legal relationship under public law may be constituted, amended or annulled by agreement (public-law) contract as far as this is not contrary to legal provision ( § 54 cl. 1 Administrative Procedure Act).Unless prohibited by law, the decision for the contractual form is at the discretion of the authority.4 The consent of the other party is always required to conclude the contract.5 Furthermore, a public authority cannot lawfully rescind its contract without the contractor's consent.6 So, the parties meet on equal levels.
If the agreement under public law infringes upon the rights of a third party, it shall become valid only when the third party gives their agreement in writing ( § 58 para 1 Administrative Procedure Act).That way, the third party is adequately protected although there is no possibility to bring an appeal against the contract before the courts. 7here is a distinction between compromise agreements and exchange agreements.Both can be suitable for environmental law, depending on the particular purpose.The compromise agreement is a contract which eliminates uncertainty existing even after due consideration of the facts of the case or of the legal situation by mutual yielding (compromise), if the authority considers the conclusion of such a compromise agreement advisable to eliminate the uncertainty ( § 55 Administrative Act).An exchange agreements binds himself to give the authority a consideration may be concluded when the consideration is agreed in the contract as being for a certain purpose and serves the authority in the fulfilment of its public tasks ( § 56 Administrative Act).

III. Selection of instruments in environmental law
The selection of instruments in environmental law is defined by its characteristics.First, it should be noted that environmental law is geared to one purpose: the protection of the environment, defined as the natural foundations of life, 8 e.g.soil, water, air, animals, plants and their relation to one another. 9The selection of instruments depends on their suitability for that purpose.In many cases, protection measures cannot be enforced. 10In those cases, the aim is to motivate the addressees to be ecologically aware and to contribute to protecting the environment by personal choice. 11Consequently, administrative instruments must be suitable to achieve a change in attitude and behaviour with regard to the environment.
Furthermore, the environmental law relates to a variety of areas of life and areas of law. 12Accordingly, environmental law is ruled by different legal regulations which are independent from one another.As a logical consequence, there is no specific instrument for environmental law.The spectrum of instruments includes unilateral measures of regulatory law, planning instruments, information, instruments relating to the business organisation and cooperative instruments including the public-law contract. 13n Art.20a, the German Basic law contains an obligation of the state for environmental protection, defined as the protection of the natural foundations of life and animals, but it only provides the aim without prescribing specific measures. 14he selection of instruments depends on the respective matter, the aim, and the pursued objectives.So, it is reasonable to ask for the advantages of different instruments, in particular the public-law contract.
In principle, the public-law contract is legally permissible in environmental law. 15here is neither a prohibition to conclude a contract nor conflicting higher-ranking law.According to environmental law the public-law contract is even explicitly mentioned in § 3 para 3 Federal Act on Nature Conservation and Landscape Management.Amicable agreements are further provided in § 13 para 4 Federal Soil Protection Act.Nevertheless, the legal admissibility of the public-law contract is subject to a case-by-case decision.
The public-law contract is primarily characterised by the idea of cooperation. 16he advantage of the public-law contract over the administrative act is that it is the result of negotiations between the parties.Both the citizen and the authorities can bring in their ideas, hold a debate and discuss all aspects. 17So, the agreement reached in the contract is usually more balanced than a unilateral administrative measure.This has several benefits: The balanced weight of the arguments, the strengthening of the citizens' position and the dialogue with the authorities.All this promotes the acceptance of the administrative measure. 18This helps to achieve a change in attitude and behaviour with regard to the environment and motivate the addressees to contribute to protecting the environment by personal choice.
At the same time, the public-law contract is legally binding and thereby a real alternative to the administrative act as well as to other comparative instruments, which are just a declaration of intent. 19Consequently, the public-law contract is permitted and certainly suitable to be used in environmental law.

IV. Meaning of the environmental law principles
Specifying application areas requires the consideration of the principles of environmental law.The public-law contract fits into the traditional principles of environmental law which are the cooperation principle, the precautionary principle and the polluter pays principle. 20

Cooperation principle
The idea behind the principle of cooperation is that the protection of the environment is the responsibility of the society and the public authorities. 21For the selection of instruments, it follows a preference of cooperative measures including the publiclaw contract. 22Cooperation is particularly important, if a change in attitude and behaviour with regard to the environment shall be achieved.In contrast to other cooperative instruments, the public-law contract can be used if a legally binding regulation is pursued, rather than just a declaration of intend.
One possibility is to provide incentives for supplementary environmental protection, for example, an agreement subsidies. 23In way, protection measures which go beyond the legal obligations can be agreed on.The adequate instrument is the exchange agreement.
Furthermore, if a legal obligation shall be substantiated and enforced, a third party can be included in the contract and the previous negotiation process. 24This not only increases acceptance of the agreement but also prejudices the likelihood of complaints.Compromise agreements as well as exchange agreements are conceivable.But the public-law contract reaches its limits if numerous people are affected.
On the other hand, the admissibility of the contractual form is limited by the interests of third parties including the interests of the public.If the public-law contract infringes upon the rights of a third party, the agreement in writing is necessary ( § 58 para 1 Administrative Act).Above all, the planning instruments and the environmental impact assessment require a public participation in procedural matters.The choice of the contractual form is still possible, but the public participation must be performed beforehand. 25n general, the mandatory public participation is based on the idea that environmental protection is a matter of the society as a whole.The European Union supports this idea.Therefore, the European law determines procedural rules which are legally binding for the member states and influence the choice of instruments.As an agreement between at least two or more parties, the public-law contract is not unrestrictedly suitable to deal with this much integrated approach.So it will depend on whether, in this specific case, the contractual form can take into account all the affected interests and groups of persons.

Precautionary principle
The precautionary principle generally defines actions on issues considered being uncertain.It can be used by the law maker or the administration to justify discretionary decisions in situations where there is the possibility of harm from making a certain decision when extensive scientific knowledge on the matter is lacking.The environmental law is one field where the law has to deal with uncertain facts.In those cases, the compromise agreement is an appropriate measure because its function is to eliminate any uncertainty existing even after due consideration of the facts of the case or of the legal situation.
Intervention is only justifiable if there is a relevant probability of danger.On the other hand, there is an obligation to protect the environment and the public from potential dangers.Therefore, the administration must perform a risk assessment. 26n cases where forecasts proved wrong, an adjustment is required. 27The public-law contract has the potential to provide a large variety of adaptation options right from the start.The advantage over other instruments is the possibility to create individual adaption options.Moreover, the addressee can better assume that applicable legal measures will be taken.Even though the administrative act can be withdrawn, supplemented, extended or otherwise adjusted, the contract offers more flexible options.
In light of the far-reaching effects on third-party rights and interests, the competent authority must consider the relevant facts and circumstances. 28Where, having exhausted all possible options, there is still a lack of knowledge, the public-law contract offers design possibilities which make sense in ecological and in economic terms.

Polluter pays principle
According to the polluter pays principle, the party responsible for producing pollution must compensate the damage done to the natural environment. 29One difficulty is that in many cases the responsible persons are not identified.In case of uncertainty about the responsibility,30 a contractual agreement can help to justify the payment obligation. 31For this purpose, the proven causal contributions can be used as a starting point.If both parties agree, a further obligation can be included in the contract.
In addition, a third party who has an interest in measures for the restoration and clean-up of the environment can become involved in the agreement which justifies the payment obligation.Such an inclusion would not be possible without a contractual basis or without permission.

V. Conclusion
As a conclusion it can be noted that there is no general priority for the contractual form in environmental law but there are interfaces between the principles of the public-law contract and the principles of environmental law.Used in a targeted fashion, the public-law contract may serve as a useful instrument as regards environmental protection.So, the administration has to decide upon the suitability of the publiclaw contract on a case-by-case basis.Thereby, consideration must be given to the limits set by national and European law.In particular, if third parties or the public are affected by the public-law contract, frequently their rights cannot be sufficiently ensured.