The collecitve action lawsuits and the evolution of the (legal) relationship between heritage protection authorities and the public

Abstract

The (legal) relationship between heritage protection authorities in a broader sense and the public is multi-faceted. On the one hand, some laws on heritage protection emphasise that the legitimation of heritage protection is firmly rooted in the public awareness that an object is of value as a monument. On the other hand, all sovereign power, and thus that of the heritage protection authorities as well, emanates from the people. The more heritage protection encroaches on the proprietary rights protected by the German Constitution, the greater the pressure to legitimise the relevant measures, although the German Federal Administrative Court and the German Federal Constitutional Court have both emphasised that heritage protection and monument preservation are tasks of great significance for the general good and therefore drastic measures must be tolerated by the party affected as a matter of principle. The discussion on the form the legal relationship between heritage protection authorities and the public should take becomes even more heated by the issue of legislation on collective information or even on collective action lawsuits. Several representatives of the heritage protection authorities fear that they could be driven by the public opinion under the legislation on collective action lawsuits. The well-meaning public, however, who are not part of the official archaeology system or the heritage preservation authorities, do indeed envisage that heritage protection and preservation authorities could be positively supported by the legislation on collective action lawsuits, for example in respect of planning projects where the heritage protection aspect is outweighed by economic or other interests. Whatever the case, one positive effect is obvious: if the legislation on collective action lawsuits allowed the public to actively support heritage protection and monument preservation, its willingness to bear the expenditure for heritage protection would increase as well.