NRW: Submission under § 13 VwVfG activates Art. 20a GG – Hambach case — Art. 20a GG in practice

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Part of the Systemic Legal Development research series
– Ongoing resonance and evaluation phase pursuant to § 13 VwVfG in conjunction with Art. 20a GG.
The response of the Arnsberg District Government has been received; Art. 20a GG is confirmed as a review standard.

Updated: — · Coordination: Hans Leo Bader · Contributors: Sabina Rothe · Helmut Scheel
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NRW: Systemic submission activates Art. 20a GG in the Hambach case

On 17 October 2025, a submission pursuant to § 13 VwVfG NRW was filed with the NRW Ministry of the Environment and the Arnsberg District Government. It calls for a constitution-guided review of ongoing earth movements and interventions at the Hambach opencast mine – in particular in the area of the Manheim Bay / “Sündenwäldchen” – for compatibility with the state duty of protection under Art. 20a GG.

From protecting nature to constitutionally bound precaution – preventive, not only after the damage has occurred.

What is new here

The submission does not claim a subjective right of action but activates an objective state duty: Art. 20a GG as a review mandate for the administration. § 13 VwVfG NRW opens the participation window so that ecological integrity is mirrored preventively in administrative practice.

Legal framework

Location / topic: Hambach opencast mine – southern area “Manheim Bay” / “Sündenwäldchen”
Legal basis: § 13 VwVfG NRW · Art. 20a GG · Precautionary principle Art. 191(2) TFEU · § 2(2) BNatSchG
Objective: Constitution-guided self-review and restraint in irreversible interventions – functional protection instead of mere recultivation.

Extensions of the submission

30 October 2025 – First extension (Garzweiler / toxic waste): Applies the EU precautionary principle (Art. 191(2) TFEU) to the case and makes visible the protection gap between investigative confidentiality and preventive hazard control. → DOI 10.5281/zenodo.17569246
1 November 2025 – Second extension (holiday works “Sündenwäldchen”): Documents earthworks on a public holiday and inquires into the legal basis, competence and documentation of supervisory authorities. → DOI 10.5281/zenodo.17569788

Current status – formal resonance

By letter of 24 October 2025, the Arnsberg District Government responded to the submission. It emphasises the importance of protecting the natural foundations of life and points out that the approval of the main operating plan for Hambach (20 December 2024) repeatedly refers to Art. 20a GG and the climate-protection jurisprudence of the Federal Constitutional Court.

At the same time, the authority states that on this basis it sees no legal possibility to suspend the works and that RWE Power AG may rely on the finality of the permit.

Ministerial resonance · Arnsberg District Government

The response of the Arnsberg District Government marks an important methodological resonance point. It confirms the inclusion of Art. 20a GG in administrative review practice – but does not yet understand it as an independent preventive duty to act.

Art. 20a GG and the climate-protection jurisprudence of the Federal Constitutional Court are named as review standards and interpreted in relation to the Federal Climate Change Act.
The authority sees no reason on this basis to reopen the main operating plan or to suspend the works.
Methodologically, the response shows that Art. 20a GG is formally “taken into account”, but functionally does not yet operate as an operative precautionary duty.

The response from Arnsberg is not a failure of the method but its first verifiable resonance point: Art. 20a GG has entered the system – the question now is how deeply it is allowed to take effect.

Note: This summary reflects the essential content of the letter without publishing the document itself. Access can be requested under the Environmental Information Act (UIG).

On 10 November 2025, the NRW Ministry of the Environment forwarded the second extension, for reasons of competence, to the City of Kerpen (CC: Sabina Rothe, Helmut Scheel). This is the first visible transfer of the review impulse into the municipal level of implementation.

Documentation & DOIs

Status: Submission (17 Oct) · Ext. I (30 Oct) · Ext. II (1 Nov) · Response Arnsberg (24 Oct) · Forwarding to Kerpen (10 Nov)

Contributors: Hans Leo Bader · Sabina Rothe · Helmut Scheel

📄 Main submission: 10.5281/zenodo.17465271

📄 First extension: 10.5281/zenodo.17569246

📄 Second extension: 10.5281/zenodo.17569788

Hambach as a teaching case: climate litigation and Systemic Legal Development

The remnant forest at the Hambach opencast mine illustrates how differently strategic climate litigation and Systemic Legal Development operate within the same conflict – and how they can complement each other.

On the one hand, there is the environmental association’s lawsuit (BUND) against the main operating plan of RWE. Using classical tools of environmental association litigation, it seeks to stop further clearing and to establish judicial limits for the company and the State of North Rhine-Westphalia. The Higher Administrative Court Münster rejects the request for interim relief, and the clearing begins a few days later. Juridically important, politically visible – but for the forest, the signal comes too late.

In parallel, Systemic Legal Development takes a different approach at the same site: via submissions under § 13 VwVfG NRW in conjunction with Art. 20a GG to the Arnsberg District Government. These submissions force the authority to address the CO₂-sink function, the functional protection of soil and ecological connectivity, and the proportionality of the planned earth movements. They generate an administrative record, a duty to justify, and a documented learning trace for future decisions.

In short:

The Hambach climate lawsuit aims for a judicial stop signal, creates public attention and fundamental clarification, but proceeds slowly and ends in a binary outcome: won or lost.
Systemic Legal Development activates Art. 20a GG already within ongoing administrative practice, works with resonance cycles (submission, response, extensions) and builds a reference for how functional protection of the living world must be examined in comparable procedures.

The case illustrates what is meant by the implementation gap, i.e. the gap between what constitutional law and court decisions require and what is actually examined and justified in everyday administrative practice. Systemic Legal Development addresses exactly this point. It does not replace climate litigation; instead, in the Hambach case it concretely closes this implementation gap between landmark rulings and day-to-day administration. Climate lawsuits establish legal principles; Systemic Legal Development brings them into the daily work of the administration.

Hambach resonance – “RWE-land” as an internal legal situation

In the region surrounding the Hambach opencast mine, an unwritten rule has applied for decades: “This is RWE-land – what RWE does is law.” Repeated experiences with resettlements, permits and decisions in favour of the company have created an internal legal situation in which the company appears as a de facto norm-setter and constitutional law remains abstract.

Many people on the ground are no longer willing to take action – not out of indifference but out of experience. Where, over decades, politics, administration and company appear as a closed front, engagement eventually seems pointless. Even when it becomes visible that systemic submissions have an impact, the inner expectation remains: In the end, RWE will prevail anyway.

This is precisely where Systemic Legal Development comes in. It does not rely on mobilisation on the ground but on the functionality of the legal system. Observations by citizens are translated into a factual, constitution-guided language with which administration and constitutional law must engage: functional protection of the living world, precautionary duty, ex officio investigation.

In public discourse, this often sounds as if everything were already decided: “All permits are in place – now it has to be accepted.” Systemic Legal Development counters this: a permit is not a law of nature, but an administrative decision. It must at all times be measured against the requirements of applicable law – including the consequences for the living world, climate and fundamental rights. This is exactly what the submissions ask: whether the existing permits are compatible with Art. 20a GG, the precautionary principle and the functional protection of the natural foundations of life.

Status November 2025: Local media report that thousands of pipes for a Rhine-water pipeline are already stored, with which the planned Hambach lake is to be filled from around 2030. The Arnsberg District Government is once again responsible for construction and water-law approval. This shows that the systemic submissions do not only address current clearances, but also the downstream large-scale measures – such as the pipeline and the lake – and draw them into the constitutional review framework of Art. 20a GG.

The decisive point is: trust is not a precondition for this step, but a possible consequence. It is not prior trust that makes the submission possible; rather, the submission creates the very basis on which trust in the law can re-emerge. “RWE-land” describes the starting point – not the outcome.

NRW resonance – Garzweiler buy-back, agreements and the constitution

In the same political space in which the Hambach case is negotiated, further developments are underway: the “future villages by the lake” around Garzweiler II, the 2022 key issues paper between the federal government, the State of NRW and RWE, the framework agreement between the City of Kerpen and RWE (2017), and Art. 27 of the Constitution of the State of North Rhine-Westphalia.

On paper, much of this sounds ambitious: land no longer needed is to be transferred to the state or municipalities “on appropriate terms”, former owners are to have repurchase options, the villages are to become “future villages by the lake”, and the Hambach Forest is to become part of an ecological network. In practice, however, it becomes clear that return and repurchase for many former residents remain primarily a question of price and power.

WDR investigations into the Kerpen–RWE framework agreement additionally reveal how closely municipal politics and corporate interests are sometimes intertwined: the city does not question the further development of the opencast mine; in return, economic cooperation, jobs as well as sponsorship and support are agreed upon. Critics see this as a political constellation in which resistance by the municipality is unlikely from the outset.

In parallel, the NRW Constitution has contained, since 1950, a clear but rarely discussed benchmark: Art. 27 LV NRW provides that large enterprises in the basic materials industry and companies with a quasi-monopolistic position shall be transferred to public ownership and that combinations abusing their economic power shall be prohibited. The norm exists, but has so far hardly been taken seriously in political debate.

For Systemic Legal Development, these examples are above all a resonance backdrop: they reveal the tension between constitutional requirements, political understandings and actual administrative practice. Our work starts where guiding principles turn into concrete duties: in documentation, justification and responsibility under Art. 20a GG, Art. 191(2) TFEU, the Water Framework Directive, EIA law and the Federal Nature Conservation Act. Political agreements remain the framework – what matters in the end is what authorities must examine and justify in a robust way.

⬅ Back to Systemic Legal Development

NRW: Citizens‘ submission on Article 20a of the German Constitution – Hambach (Manheim’s forest of sins)