Access to justice in environmental matters

If you are the victim of an environmentally damaging activity or if you are just a vigilant citizen who wants to protect the environment, it is useful to know your rights in either addressing a court of law or introducing a complaint to one of the competent national bodies, particularly if you are abroad. In practising these rights you can also ask for help with practical information from national authorities and organisations. In some cases it may be difficult to know what to do and whom to turn to. These fact sheets will provide you with a range of information on what you can expect in every country in the European Union.

The fact sheets on environmental access to justice are aimed at providing easily accessible rules on starting a review procedure before an independent court of law or an administrative body.

If you encounter, for example, an environmentally damaging activity or you are simply not provided with the procedural guarantees during a decision-making process (such as access to environmental information, environmental impact assessment or public participation), you may want to challenge this before a court of law or another independent body of law. In such cases it is useful to know the specific rules in each Member State on the rights for citizens and their groups in a review procedure.

Firstly in order to be able to challenge administrative acts, decisions and also omissions, it is important to know the rules giving access to courts, sometimes referred to as "locus standi" or "standing".

Secondly, if you have successfully filed an appeal before a court, it is also important to know that citizens and their groups are eligible to certain guarantees covering the conditions of access where an entitlement to challenge exists. This means, in particular, that the procedure for appeal should be concluded in a reasonable time-frame without undue delays and that parties to the proceedings cannot face prohibitively expensive procedures.

It is also useful to know that in the environmental sector, non-governmental organisations active in environmental protection also have privileged status in review procedures, playing their role of environmental watchdogs and as agents to defend the environment that cannot protect itself, since "the environment has no voice".

When identifying the best approach to following up an actual or potential environmental harmful action having an impact on, for example, a protected area or on the health of citizens, it is important to know that in certain cases specialized bodies such as prosecutors or ombudsman may be available to citizens who can file a complaint.

The following fact sheets will guide you through the most important steps of environmental proceedings in each Member State, explaining the rights you have and the basic rules you need to follow to exercise them. This information is not a substitute for legal advice and is intended to be for guidance only.

Please select the relevant country's flag to obtain detailed national information.

Last update: 19/02/2019

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Access to justice in environmental matters - Belgium

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I. Constitutional Foundations

Articles 7bis and 23 of the Belgian Constitution enshrine a right to the protection of a healthy environment and are recognizing sustainable development as an objective of public policies at all levels of government. Article 7bis of the Belgian Constitution obliges the Federal State, the Communities and the Regions (Flemish Region, Walloon Region and the Brussels Capital Region) to pursue the aims of sustainable development in its social, economic and environment related aspects, and to take into consideration the solidarity between generations. Article 23 of the Belgian Constitution enshrines a fundamental right of a dignified existence. With a view to this fundamental right of a dignified existence, acts and decrees have to guarantee economic, cultural and social rights and determine the conditions for the execution of these rights. The right to the protection of a healthy environment is one of those constitutional rights. The right to the protection of a healthy environment implies a standstill obligation on behalf of the competent authorities. They are not allowed to reduce the level of protection of the environment obtained by environmental regulations except for compulsory reasons.

Citizens have the right to invoke especially article 23 of the Belgian Constitution directly in administrative and judicial procedures. But its application depends on the discretion that the federal and regional authorities have in achieving the objectives of article 23 of the Belgian Constitution. Parties to an administrative or judicial procedure can rely directly on provisions of international agreements that have been ratified by Belgium if these provisions have direct effect. Before the Constitutional Court, all binding international law provisions can be invoked in combination with a relevant constitutional provision, independently of the question if they have direct effect or not. Administrative bodies and courts are entitled to apply the Aarhus Convention directly. The Aarhus Convention has been approved by the Federal and Regional Parliaments and ratified by Belgium. The Aarhus Convention entered into force in Belgium on 21 April 2003.

II. Judiciary

The Belgian Constitution has set up beside the legislative and executive branches of the government a judicial branch provided by the courts and tribunals. The courts and tribunals constitute an independent authority and work within the framework of constitutional and legal provisions. The court hearings are held in public unless holding them in public is considered prejudicial to public order or morals. The judgments are reasoned and declared publicly in open court. The obligation of reasoned judgments means that the judge must respond to grounds based on fact and on law raised in the submissions of the parties. Courts and tribunals are organized according to a hierarchical pyramid structure. At the bottom of the pyramid structure are the Justices of the Peace (Vrederechters / Justice de Paix).There are 187 Justices of the Peace whose jurisdiction for certain civil matters correspond to that of the sub district (kanton / canton) to which they belong. Magistrates’ Courts (Politierechtbanken / Tribunaux de Police) are competent for minor infringements, certain misdemeanors and breaches of traffic regulations. At the second level of the pyramid structure are the District Courts (Rechtbanken van Eerste Aanleg / Tribunaux de Première Instance), the Commercial Courts (Rechtbanken van Koophandel / Tribunaux de Commerce) and the Labour Courts (Arbeidsrechtbanken / Tribunaux de Travail;) the territorial scope of these courts corresponds to those of judicial district. There are twenty-seven judicial districts in Belgium. At the third level of the pyramid structure are five Courts of Appeal and Labour Courts in Belgium. At the top of the hierarchal structure is the Supreme Court (Hof van Cassatie / Cour de Cassation). The Supreme Court covers the entire territory of Belgium. It examines whether the decisions referred to it contravene the law or the rules of procedure. Beside the abovementioned Courts, there is one Constitutional Court (Grondwettelijk Hof / Cour constitutionnel) and one highest administrative court, the Council of State (Raad van State / Conseil d’Etat) in Belgium.

The Constitutional Court has jurisdiction over conflicts between acts of federal parliament and decrees and ordinances of the parliaments of the Regions and Communities, as well as between one decree and another and one ordinance and another, in cases of infringement of rules laid down by the Constitution or by virtue of the latter, to determine the respective jurisdictions of the federal state, the communities or the regions. It is also competent concerning infringements by an act, decree or ordinance of provisions of Section II of the Constitution (Articles 8 to 32 concerning fundamental rights) and of Articles 170 (legality principle in tax-related matters), 172 (equality in tax-related matters) and 191 (protection of aliens) of the Belgian Constitution.

The highest and most important general administrative court is the Council of State (Raad van State / Conseil d’Etat). It has two divisions, an advisory body and the Division Administrative Jurisprudence with mainly a jurisdictional function. The Division Administrative Jurisprudence has been set up in the first place to remedy the defects in the legal protection of citizens against abuse on the part of the administration (the so-called “direct legality test”). The Division has been given the power to suspend and annul decisions of the administration (both of a regulatory and an individual nature) and of the various judicial bodies and panels that act as administrative judges of first instance.

In the Flemish Region two recently established administrative courts deserve special attention: the Flemish Council for Permit Disputes (‘Raad voor Vergunningsbetwistingen’) and the Environmental Enforcement Court of Flanders (‘Milieuhandhavingscollege’). Since 1 September 2009, the regionally established Council for Permit Disputes has been responsible for dealing with disputes regarding building permits in the Flemish Region, instead of the (federal) Council of State, that continues to act as a cassation judge for those matters. The Council for Permit Disputes is an independent administrative court that hears judicial appeals lodged against administrative decisions (building and allotment permit decisions) in last instance (delivered/refused on administrative appeal) taken by administrative authorities (one must exhaust indeed first the administrative appeal procedure). The decisions of the Council for Permit Disputes can be appealed on points of law before the Council of State (Supreme Administrative Court), acting as a “cassation judge”. The Environmental Enforcement Court of Flanders was created by the Flemish Act of 21 December 2007, published in the Belgian Official Journal of 29 February 2008. It effectively started its work on the 1st of May 2009. This Court has a few specific tasks allocated to in this Act, especially hearing appeals against administrative fines imposed for breaches of environmental law in the Flemish region. Its decisions can be appealed before the Council of State.

In the Brussels Capital Region one can appeal against decisions relating to environmental permits taken in first instance by the Brussels Environmental Agency before the “Milieucollege / Collège de l’environnement” (Environmental Appeal Board) that is a kind of specialized Environmental Administrative Court that is presided by a professional judge and composed of 5 other independent experts (environmental lawyers and scientists). They can review the decision of the Brussels Environmental Agency in all aspects and thus grant a permit when it was refused in first instance or refuse it when it was granted in first instance, modify the conditions of the permit etc. The Environmental Appeal Board can also review decisions to modify, withdraw, suspend or to prolong a permit. Against the decision of the Environmental Appeal Board one can appeal again before the Regional Government that can review on its turn the decision in all its aspects. The decisions of the government can be appealed before the Council of State.

At the top of this system stands the Council of State that serves as an administrative cassation judge for appeals against the decisions of the aforementioned administrative courts, judicial bodies or panels. The Council of State serves as a first and final administrative judge for administrative decisions and regulations for which there are no competent administrative judicial bodies or panels, what is the case with the large majority of administrative acts and regulations.

The Code of Judicial Procedure stipulates which court is competent so there is no relevant possibility for forum shopping (choosing between competent courts in order to present the case before a more favorable judicial body). The distinction has to be made between the full jurisdiction (material jurisdiction) and the territorial jurisdiction. The court of first instance has full jurisdiction and can examine all cases including those that fall within the jurisdiction of other legal forums. The court of first instance shall examine all claims except those directly before the court of appeal and the court of cassation. The full jurisdiction of the court of first instance is therefore conditional, because the defendant may plead lack of jurisdiction on grounds of the special jurisdiction of another court. In addition, the court of first instance also has a number of exclusive powers. A number of disputes should be referred to this court even if the value of the claim is less than a certain amount (e.g. claims concerning personal status of capacity). The other legal forums having each full jurisdiction described by law are the justices of the peace, the police courts, the commercial courts, the employment tribunals and the youth judges. The basic rule of territorial jurisdiction is that the plaintiff has the freedom of choice. Normally the plaintiff brings the case before the judge of the place of residence (place of business) of the defendant or one of the defendants. In a number of cases the plaintiff has a choice of referring the case to another judge. A few exceptions do exist to this basic principle of freedom of choice for e.g. in disputes about contracts of employment.

In Belgium there are ordinary appeals through the court of appeal and special appeals on points of law to the Supreme Court. There are two kinds of ordinary appeals: the opposition against default judgments and the appeal. Any judgment by default - when a defendant is failing to appear - can be subject of an opposition. Notice of this is given by a bailiff serving a summon to appear before the judge who handed down the judgment by default. He will judge the case again. The appeal on points of law before the Supreme Court is lodged against final decisions, in all cases handed down in trails or proceedings at last instance. Decisions are referred to the Supreme Court on grounds of error of law or of a failure to comply with formal procedural requirements. Extraordinary legal remedies are meant to challenge legally binding decisions. The law determines under what special conditions such an extraordinary remedy can be applied.

In procedures against administrative decisions a competent court will annul the decision if the applicant has proven the decision is in breach of the law. In most cases the annulment of the decision will lead to a new decision by the same administrative authority, which should observe the judgment given. Ordinary courts are able to award damages to citizens against the administrative authority that has taken the decision that has been found in breach of the law.

Citizens can introduce an administrative procedure against a decision of an administrative authority in environmental matters. In some cases the federal or regional laws have introduced specific appeal procedures before specialized administrative courts, judicial bodies or panels that decide on certain environmental matters. At the end of the system stands the Council of State that serves as an administrative cassation judge for appeals against the decisions of the aforementioned specialized administrative courts, judicial bodies or panels. The Council of State serves as a first and final administrative judge for administrative decisions and regulations for which there are no competent administrative judicial bodies or panels, what is the case with the large majority of administrative acts and regulations. Citizens are also entitled to act against environmental disturbances by reporting those acts to the competent administrative authority. The administrative authority can take the measures provided by law against the person who infringes the environmental regulations. The Code of Judicial Procedure provides also a procedure in matters of special urgency that the citizens can introduce before the president of the competent court of first instance who can take temporary measures against the person who infringes the environmental regulations.

In criminal procedures citizens are entitled to report criminal acts to the public prosecutor who decides whether or not the case has to be taken to the criminal judge. The citizen can also be a party in the civil matters that are at stake in criminal procedures. He can also directly summon the person who infringes the environmental regulations to appear before the criminal court, but then he will have the whole burden of proof. Citizens who suffered damage caused by environmental disturbance can also submit a claim against the person who infringes the environmental regulations to the civil court. They can claim compensations and in some cases temporary measures if liability can be proven. In accordance with the Act of 12 January 1993 on a right of action for the protection of the environment, the president of the court of first instance can state the existence of acts that are or could be infractions of environmental regulations. The public prosecutor, an administrative authority or a non-profit organization that has as statutory goal and activities the collective environmental protection can introduce such a demand before the president of the court of first instance.

In administrative court procedures the courts do not have the possibility to investigate parts of an administrative decision that have not been attacked by the applicant. Parties have generally and especially in environmental matters the duty to provide evidence out of their own motion. However courts have the authority to investigate the facts of the case by hearing witnesses, asking evidence or appointing an expert as long as it concerns the case that has been brought to the court by the parties.

III. Access to Information Cases

In accordance with the Act of 5 August 2006 concerning the access to environmental information (wet van 5 augustus 2006 betreffende de toegang van het publiek tot milieu-informatie / loi du 5 août 2006 relative à l’accès à l’information en matière d’environnement) those who seek remedies against a refusal of a request for information, an incomplete answer or an insufficient answer for environmental information from a federal environmental authority can introduce an appeal before the Federal Commission of Appeal for access to environmental information (Federale Beroepscommissie voor de toegang tot milieu-informatie / Commission fédérale de recours pour l’accès aux informations environnementales). This Act of 5 August 2006 concerning the access to environmental information is in line with the Act of 11 April 1994 concerning the freedom of information (wet van 11 april 1994 betreffende de openbaarheid van bestuur / loi du 11 avril 1994 relative à la publicité de l’administration) that introduced in Belgian law the general obligation of access to information. According to the Council of State both legislations express the constitutional principle foundd in article 32 of the Belgian Constitution. In case the Federal Commission of Appeal decides that the demand for environmental information has to be granted, the environmental authority will deliver the environmental information to the applicant. In case the environmental authority fails to deliver the environmental information to the applicant within a certain delay, the Federal Commission of Appeal can deliver the environmental information that is in its possession to the applicant (Link opens in new windowhttp://www.bestuursdocumenten.be/Link opens in new windowhttp://www.documentsadministratifs.be). The applicant can go into appeal before the Council of State against a decision of the Federal Commission of Appeal. He also can address Judicial Court and Tribunals.

The three Regions (Walloon, Flemish and Brussels Capital) have regulations quite similar to the abovementioned federal act that are applicable to their respective environmental authorities.

In the Flemish Region the applicant may, in accordance with the Act of 26 March 2004 concerning open government, lodge an appeal against any decision made by a public authority with regard to access to environmental information, or after the expiry of the term within the decision had to be taken, or in the event of the decision being carried out reluctantly. This appeal before an administrative independent appeal body (beroepsinstantie inzake openbaarheid van bestuur en hergebruik van overheidsinformatie, afdeling openbaarheid van bestuur) is free of charge. If the authority has not implemented the decision of the appeal body in due time, the appeal body will carry out the decision itself; the appeal body may instruct an official to proceed on-site and carry out the decision himself. Against the decision of the appeal body, an appeal for annulment can be lodged with the Council of State (Link opens in new windowhttps://overheid.vlaanderen.be/openbaarheid-van-bestuur).

A refusal of the request of information is accompanied by a statement of reasons for the refusal and contains all the relevant information about the remedies available. It especially mentions the competent authority of appeal, the formalities to be fulfilled and the delay of appeal. In Belgian federal and Flemish public law any decision or administrative act of individual significance and intended to have legal consequences for citizens or another public authority, has to mention the possibilities and modalities of appeal. Otherwise, the decision has not brought to notice in a valid way and the term for the submission of the appeal starts 4 months after the citizen has been informed of the administrative decision.

The request for information has in principle to be introduced in written form and it has to mention the matter and if possible the environmental information requested. It also mentions the form or the electronic format in which the information can be preferably put at the disposal of the applicant. The name and the address of the applicant have to be clearly indicated. The applicant does not have to prove any interest. In case the environmental authority, to which the demand is introduced, does not possess the requested information, the environmental authority will send the request to the environmental authority that possesses the requested information. In administrative procedures mandatory counsels are not to be involved. For appeals to the Council of State, one has the choice to act oneself or trough or with the aid of an attorney. When relevant for the dispute the courts are competent to demand information from the administrative authority. In the Flemish Region the appeal body also can examine all administrative documents on site or obtain them from the relevant authority (This is also the case for the Federal Commission).

If the Council of State finds the appeal justified, the decision refusing the information is nullified. The administrative authority is bound by the judgment of the Council of State and in succession obliged to disclose the information in case of confirmation of the decision by the Council of State.

IV. Access to Justice in Public Participation

The administrative procedures in environmental matters are governed by both federal and regional regulations. The general principles of the different administrative procedures in environmental matters in the federal and regional regulations are similar. The environmental permitting decisions that federal or regional regulations consider as to have a possible important environmental impact are submitted to an environmental impact assessment. The demand for a permit will be submitted to a public enquiry during which interested citizens can introduce their written observations and remarks to the competent authorities within a certain period of time. The competent authorities will have to take these observations and remarks into account while taking a well-reasoned decision. The final decision of the competent authorities has to be made public so that interested citizens can introduce an appeal against the decision before specialized administrative courts, judicial bodies or panels that decide on the introduced appeals or, in the absence of such administrative jurisdiction of first instance, directly to the Council of State. The interested citizens can go to the Council of State against the decisions that are taken in last instance by the abovementioned specialized administrative courts, judicial bodies or panels. It should be noted that in case the competent authority has a certain level of policy freedom, it could reconsider its decision on demand of the interested citizens. The interested citizens invoke then the good will of the competent authority. The interested citizens can in certain circumstances also appeal to an Ombudsman. But an Ombudsman can only give a non-binding suggestion to the competent authority.

Most of the federal and regional regulations provide the possibility to interested citizens to administratively appeal a decision of an administrative authority to an administrative body of a higher level (e.g. decisions of a local government can be appealed with the provincial government, decisions taken in first instance by the provincial government can be appealed with the regional or federal government). One must exhaust such an administrative appeal possibility, before lodging an appeal to an administrative judge of first instance or the Council of State. First instance administrative decisions can only be taken to the Court directly if there is no organized administrative appeal procedure that has to be exhausted first. Only after the exhaustion of administrative remedies, interested citizens can challenge decisions before taking a case to court. The courts review both the substantive and procedural legality of administrative decisions. They will verify material and technical findings and calculations that have been used by the administrative authorities. The Council of State as last final administrative appeal judge is entitled to review both the substantive and procedural legality of administrative decisions as long as the interested parties have made that specific part of the decision a part of the dispute that the Council has to decide on. When the public authority has been granted a margin of appreciation by the legislator in making specific decision, the Council will allow for this margin by applying a marginal review and upholding any decisions that it finds it reasonable. The Council will annul an unlawful challenged decision.

The civil courts will look beyond the administrative decision and verify material and technical findings and calculations that have been used by the administrative authorities. The civil court is competent to appoint an independent expert who will give a non-binding report to the civil court. If the civil court has to pronounce on the substantive legality in accordance with article 159 of the Belgian Constitution, it will not be entitled to annul the administrative decision but will set it aside. The courts are eligible to find evidence by asking parties to supply it or by gathering the evidence when the applicant has raised doubts about the way the competent authority has established the facts in relation to its duty of care.

The regional regulations provide the obligation to submit draft land-use plans, zoning plans and other normative type of environmentally relevant decisions defining the use of space to an extensive procedure with a strategic environmental assessment during which any interested citizen can introduce objections and remarks. The Council of State can review in first and last instance environmental relevant decisions defining the use of space like land use plans or zoning plans. Interested citizens can file a case with the Council of State against land use plans, zoning plans or any other normative type of environmental relevant decisions defining the use of space. An interested citizen is anyone whose interest is directly affected by the administrative decision concerning land use plans, zoning plans or any other normative type of environmental relevant decisions defining the use of space. Someone living in or nearby the area concerned will have standing. The scope of review is the same as is the case with individual decisions like permit decisions. The Council of State is entitled to review both the substantive and procedural legality of administrative decisions and will annul an unlawful land use plan.

Projects, that are by the regional or federal legislation considered to have a possible substantial impact on the environment are submitted to an Environmental Impact Assessment (EIA) report that has to be drawn up by the applicant before the public authority is able to decide on an application. The EIA procedure is regulated by the federal legislation or the regulations of one of the three regions in Belgium depending on the nature of the project. The general principles are nearly the same on the federal level and in the three regions. For those projects that are not ex officio subjected to EIA (Annex II of the EIA Directive), in general the competent regional or federal authority has to decide if an EIA is necessary or not at the end of a screening procedure, that start with a notification by the project initiator. Any interested citizen can make observations and remarks on the notification that is made public during a period of public inquiry. Any final decision on EIA screening decisions of an EIA report by the public authority are made public together with the decision that allows or refuses the plan, program or project and can be challenged in specialized administrative courts, judicial bodies and panels by any interested citizen. In general, there are no special rules on standing, forum, hearing, evidence or the extent of the review by those administrative appeal authorities. However, the principles are that the parties are entitled to be heard, that the administrative appeal authorities have the right to gather evidence and that generally they have the right to review both the substantive and procedural legality of administrative decisions as long as the interested parties have made that specific part of the decision a part of the dispute that those administrative appeal authorities have to decide on. At the top of the system stands the Council of State that serves as an administrative cassation judge for appeals against the decisions of the aforementioned judicial bodies or panels. When the public authority has been granted a margin of appreciation by the legislator in making specific decision, the Court of Council will allow for this margin by applying a marginal review and upholding any decisions that it finds it reasonable. The Court of Council will annul the challenged decision if found unlawful.

Any final EIA decision or authorization by the public authority is made public together with the decision that allows or refuses the project and can be challenged in court. In generally there are no special rules on standing, forum, hearing, evidence or the extent of the review by the administrative courts. However, the principles are that the parties are entitled to be heard, that the courts have the right to gather evidence and that generally they have the right to review both the substantive and procedural legality of administrative decisions as long as the interested parties have made that specific part of the decision a part of the dispute that those courts have to decide on. The courts are entitled to review the procedural and substantive legality of EIA decisions and to verify material and technical findings and calculations as well as the EIA documents. However the administrative authorities have a margin of appreciation when establishing what the best available technology for the specific installation is. The courts will restrict themselves to a marginal review. They will also verify if the competent administrative authority has taken its decision in respect of the general principles of good administration.

In order to have standing before the courts it is not necessary to participate in the public consultation phase of the EIA procedure and to make comments during that period. However, administrative appeals, if available, should be exhausted first. Before the Flemish Council for Permit Disputes (as building permits in the Flemish region are concerned) or the Council of State (all other cases) - as final administrative appeal court it is possible to petition for annulment and in urgent cases also for suspension of the final administrative decision including the EIA-decision. Both remedies have the same standing-requirements since a petition for suspension can never stand alone. The interest of the citizen must be personal, present, certain, direct and legitimate. On request by the applicant, the Council of State (or the Flemish Council for Permit Disputes as building permits in the Flemish region are concerned) are empowered to suspend the execution of a final administrative decision including an EIA decision that is disputed by means of an action for annulment insofar a serious plea can be alleged and that the immediate application of the disputed administrative decision threatens to cause a serious damage that is difficult to repair. The requirement of a serious damage that is difficult to repair is not a standing-requirement, but is a separate condition that should be met for the suspension of the act or regulation.

An application for an administrative authorization for an IPPC-installation will be dealt with in an extensive administrative procedure. When the final decision has been taken and made public, any interested party that has exhausted the administrative appeals available, can file a case with the Council of State. The courts are entitled to review the procedural and substantive legality of IPPC decisions and to verify material and technical findings and calculations as well as the IPPC documents. However the administrative authorities have a margin of appreciation when establishing what the best available technology for the specific installation is. The courts will restrict themselves to a marginal review. They will also verify if the competent administrative authority has taken its decision in respect of the general principles of good administration. In order to have standing before the courts it is not necessary to participate in the public consultation phase of IPPC procedure and to make comments during that period. However, the available administrative appeals should have been exhausted. Before the Council of State it is possible to petition for annulment and in urgent cases also for suspension of the final administrative decision on an IPPC permit application. Both remedies have the same standing-requirements since a petition for suspension can never stand alone. The interest of the citizen must be personal, present, certain, direct and legitimate. On request by the applicant, the Council of State is empowered to suspend the execution of a final administrative decision that is disputed by means of an action for annulment insofar a serious plea can be alleged and that the immediate application of the disputed administrative decision threatens to cause a serious damage that is difficult to repair. The requirement of a serious damage that is difficult to repair is not a standing-requirement, but is a separate condition that should be met for the suspension of the act or regulation.

V. Access to Justice against Acts or Omissions

Citizens can introduce different procedures against private individuals or legal entities in environmental matters before the civil court. These proceedings are not specific to environmental matters. They are brought to civil courts based on tort law that is regulated in articles 1382 and 1384 of the Civil Code. Citizens who suffered damage caused by environmental disturbance can submit a claim against private individuals who or legal entities that infringe the environmental regulations to the civil court in accordance to with the civil liability rules. The citizens have to prove the fault on part of the private individual or legal entity, the caused damage and that the act or omission is causal with regard to the produced damage. They can claim restoration in kind and/or financial compensations and in some cases temporary measures. The Civil Code provides also the possibility to sue the person who infringes the environmental law without having to prove the fault on behalf of the person on basis of good neighborhood (“nuisances”). There is no injunctive relief provided and a favorable judgment will not be obtained if the disturbance is the result of an installation approved by the administrative authority. In that case the neighbor has to tolerate the impact, but he can be (partially) compensated. The Code of Judicial Procedure provides a procedure in matters of special urgency that the citizens can introduce before the president of the competent court of first instance who can take temporary measures against the person who infringes the environmental regulations.

In accordance with the Act of 12 January 1993 on a right of action for the protection of the environment, the president of the court of first instance can state the existence of acts that are or could be infractions of environmental regulations and order to cease them. The public prosecutor, an administrative authority or a non-profit organization that has as statutory goal and activities the collective environmental protection can introduce a demand before the president of the court of first instance. The liability provisions within environmental laws are specific and therefore applied preferably in relation to the abovementioned civil liability regime. Citizens are also entitled to act against environmental disturbances by reporting those acts to the competent administrative authority. The administrative authority can take the measures provided by environmental law against the person who infringes the environmental regulations. In criminal procedures citizens are entitled to report criminal acts to the public prosecutor who decides whether or not the case has to be taken to the criminal judge. The citizen can also be a party in civil matters connected to the criminal procedure. He can also directly summon the person who infringes the environmental regulations to appear before the criminal court but in that case he will bear the whole burden of proof.

Citizens can submit claims directly to the civil court against states bodies in environmental matters to obtain damages and if the civil court has to pronounce on the substantive legality of an administrative decision in accordance with article 159 of the Belgian Constitution, it will be entitled to set aside the unlawful administrative decision. The same rules apply as in the case of private persons causing damages or nuisances. Some public bodies are criminally liable, where others are not, and criminal liability will rest in that case on the natural persons through which the public authority has acted or failed to act. The same procedural rules apply as in the case the offender is a private person.

The competent federal authority for the prevention and limitation of environmental damage caused by ships and operators in the Belgian part of the North Sea is the Federal Public Service Health, Food Chain Safety and Environment (Federale Overheidsdienst Volksgezondheid, Veiligheid van de Voedselketen en Leefmilieu / Service Public federal Santé Publique, Sécurité de la Chaine alimentaire et Environnement). For the prevention and limitation of the environmental damage caused by the introduction on the Belgian market of Genetically Modified Organisms or products containing Genetically Modified Organisms the competent federal authority is also the Federal Public Service Health, Food Chain Safety and Environment. The competent authority for damage caused to the environment in the Walloon Region is the Administration of the Environment of the Directorate-General of Environmental Resources and the Environment (Administration de l’environnement de la Direction Générale des Ressources naturelles et de l’environnement). In the Brussels Capital Region it is the Brussels Institute of Environment (Institut bruxelloise pour la gestion de l’environnement / Brussels Instituut voor Milieubeheer). The competent authority in the Flemish Region is the Department of Environmental Preservation, Environmental Damage and Crisis Management of the Department Environment, Nature and Energy (Afdeling Milieuhandhaving, Milieuschade en Crisisbeheer van het Departement Leefmilieu, Natuur en Energie).

In the three regions of Belgium natural or legal persons affected by or likely to be affected by environmental damage or having a sufficient interest in environmental decision-making relating to the damage are entitled to submit to the competent authority any observations relating to instances of environmental damage or an imminent threat of such damage of which they are aware and shall be entitled to request the competent authority to take measures. Environmental associations can also submit the aforementioned observations or introduce the aforementioned request to the competent authority under certain conditions to be fulfilled. The request has to be accompanied by all relevant information and data supporting the observations in relation to the environmental damage. In the Flemish Region and the Walloon Region the decision of the competent authority can be directly challenged at the Flemish respectively the Walloon Government. In the Region of Brussels Capital the decision has first to be introduced for review by the environmental college (Milieucollege / Collège d’environnement). The decision of this environmental college can be challenged at the Brussels Government. The Council of State is entitled to suspend and annul the abovementioned decisions taken in last instance.

In the three Regions the person must have been party at the foregoing procedure with the administrative competent authority to enforce environmental liability. Final decisions to act or not to act can be challenged before the Council of State according to the general procedural rules as set out before. Civil courts can on demand of interested parties oblige the authorities to act if non-action could be considered as a fault in the context of civil liability.

VI. Other Means of Access to Justice

An ombudsperson can be related to an administrative authority, a sector or a certain public company. There are ombudspersons designated by federal and regional law. The federal or regional offices of ombudsmen have concluded general cooperation protocols with especially certain administrative authorities and public companies competent in environmental matters. On the website Link opens in new windowhttps://www.ombudsman.be/ can be found which ombudsman is competent for which problem to be handled. The competent federal or regional ombudsman investigates individual complaints brought to him by citizens concerning the decisions and the behavior of certain administrative authorities or public companies. He analyses the complaint and acts as a mediator between the parties. He proposes solutions to the parties and when appropriate can formulate proposals to ameliorate the functioning of the administrative authority, sector or public authority. He also provides annual reports to the competent federal or regional authorities (e.g. to the federal or regional parliaments). In general the citizen can only complain by the ombudsman after having introduced a complaint to the administrative authority or public company that did not sufficiently deal with the complaint. The federal and regional regulations introduce procedural rules to be followed by the citizens when introducing a complaint to the federal or regional ombudsmen. Therefore it is indicated to investigate which ombudsman is competent and which regulations have to be followed. The procedure introduced before the ombudsman will however not suspend the term of appeal against the decision before the appeal authority or the Council of State.

The public prosecution (Openbaar Ministerie / Ministère public) – a part of the judiciary – is responsible for prosecuting criminal acts against the environment that are determined by the Belgian Criminal Code or by Environmental Acts, Decrees or Ordinances. Federal and regional laws include specific provisions concerning the prosecuting of criminal acts against environmental regulations. The public prosecutor, attached to a district court, leads the investigation in those proceedings. In some larger districts there are prosecutors specialized in environmental crime. According to Belgian Criminal Procedure Law interested parties can sue themselves perpetrators before the criminal courts. This possibility is however seldom used because the interested parties have to bear in such case the burden of proof. However citizens who suspects that criminal offenses have been or are committed are entitled to report this to the respective law enforcement agencies (environmental inspectorates and police forces), to the public prosecutor or, as a civil party, to the investigating judge (onderzoeksrechter / juge d’instruction). In the latter case a deposit can be asked, but there is an obligation to investigate the case. The administrative authorities are under the direction and supervision of the supreme administrative organs and bound to their instructions. The Council of State is the highest administrative court that executes the final judicial control. The ombudspersons are competent to act on inappropriate administrative actions or omissions. The prosecutor on corruption issues is competent in the field of corruption.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

There are no common rules applicable for all specialized administrative courts, judicial bodies or panels. Therefore the standing requirement is regulated on a case-by-case basis and is different before every appeal court or appeal body. However the rationale of standing stays the same: the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered.

As the Belgian standing requirement is interested-based, the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered. The requirements are the same in the first instance (Council of State or administrative courts or judicial bodies of first instance) and – as the case maybe – in the cassation phase (Council of State acting as cassation judge to courts and judicial bodies of first instance).

It should be noted that the Council of State is empowered to suspend the execution of an administrative act or regulation that is disputed by means of an action for annulment insofar a serious plea can be alleged and that the immediate application of the disputed act or regulation threatens to cause a serious damage that is difficult to repair.

NGOs

There are no common rules applicable for all administrative courts. Therefore the standing requirement is regulated on a case-by-case basis and is different before every appeal court or appeal body. However the rationale of standing stays the same: the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered. The NGO especially has to show a “capacity” or “quality” that is interpreted in that sense that there should be a clear match between the statutory objective of the NGO and the contested project.

Before the Council of State a NGO has to show “capacity” or “quality” that is interpreted in that sense that there should be a clear match between the statutory objective of the NGO and the contested project. In environmental matters it is interpreted as a regional organization can in that view only challenge projects of regional interest not smaller projects that are of local relevance. Bigger projects are the projects that are of supra regional interest. The Act of 12 January 1993 establishing a right of action for the protection of the environment allows environmental organizations that satisfy certain requirements to bring an action for cessation of acts that are evident infringements of environmental law or serious threats of such infringements before the President of the Court of first instance (District Court).

Other legal entities

There are no common rules applicable for all administrative courts. Therefore the standing requirement is regulated on a case-by-case basis and is different before every appeal court or appeal body. However the rationale of standing stays the same: the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered.

Any natural or legal person concerned, whether of private or public law, may petition the Council of State for an annulment. Local authorities can also bring proceedings before the Council of State to annul decisions passed by the supervisory authority that they consider to be illegal. The abovementioned Act of 12 January 1993 establishing a right of action for the protection of the environment allows administrative and municipal authorities to bring actions for cessation of violation of environmental acts.

Ad hoc groups

There are no common rules applicable for all administrative courts. Therefore the standing requirement is regulated on a case-by-case basis and is different before every appeal court or appeal body. However the rationale of standing stays the same: the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered.

Associations or groupings without legal personality, such as trade unions and political parties in Belgium, may take action before the Council of State for an annulment, when they act in defense of a prerogative recognized by laws or regulations (for the defense of a functional interest). The Regional Municipal Decrees allow one or several residents of a municipality to act on behalf of the municipality if the mayor and aldermen fail to do so. It is accepted in the case law that this provision could be combined with the abovementioned Act of 12 January 1993 so that individual citizens are able to bring such an action themselves on behalf of a defaulting municipal authority by taking the place of the municipality that refuses to bring such an action. No interest needs to be demonstrated because the municipality is presumed to have an interest.

foreign NGOs

See the judicial procedure for the NGOs.

Any other

There are no common rules applicable for all administrative courts. Therefore the standing requirement is regulated on a case-by-case basis and is different before every appeal court or appeal body. However the rationale of standing stays the same: the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered.

Local authorities can bring proceedings before the Council of State to annul decisions passed by the supervisory authority that they consider to be illegal.

There are no common rules applicable for all administrative courts regarding standing. Standing requirements are regulated on a case-by-case basis and there are different rules applicable in sectoral or procedural legislation. However the rationale of standing stays the same: the petitioner must prove a sufficient interest, i.e. a direct, personal, clear and lawful interest in the relief sought. The requirement to establish a sufficient interest must be at all stages of the proceedings from the filing of the petition until the decision has been rendered. In Belgium an actio popularis is possible when it is provided by a specific regulation. The Act of 12 January 1993 establishing a right of action for the protection of the environment allows environmental organizations that satisfy certain requirements to bring an action for cessation of acts that are evident infringements of environmental law or serious threats of such infringements before the President of the Court of first instance (District Court). The regional Municipal Acts or Decrees allows one or several residents of a municipality to act on behalf of the municipality if the mayor and aldermen fail to do so. It is accepted in the case law that this provision could be combined with the abovementioned Act of 12 January 1993 so that individual citizens are able to bring such an action themselves on behalf of a defaulting municipal authority by taking the place of the municipality that refuses to bring such an action. No interest needs to be demonstrated because the municipality is presumed to have an interest.

The federal or regional ombudspersons do not have legal standing in any procedure before any administrative or civil court. Public prosecutors have legal standing within criminal proceedings. The federal and regional regulations have given legal standing to certain administrative bodies in first instance that can go into appeal against decisions taken by a higher administrative body that annuls partly or totally the decision of the administrative bodies in first instance. There are no different rules for standing of individuals and NGOs and for access to justice applicable to EIA and IPPC.

Lawyers play an important role in judicial procedures in environmental matters because environmental law in Belgium is more and more complex. There are four different environmental law systems in Belgium, i.e. federal, Flemish, Walloon and Brussels environmental regulations, what makes it even more complex. Lawyers give legal advice and represent their clients in judicial or administrative proceedings. Legal counsel is not compulsory in civil procedures before the civil courts and in administrative environmental procedures before the Council of State and the Constitutional Court. In proceedings before the Supreme Court (Hof van Cassatie / Cour de cassation) legal counsel is compulsory in civil matters. The Flemish speaking and French and German speaking bar associations provide information on registered lawyers by region and field of activity (Link opens in new windowhttp://www.advocaat.be/ for the Bar Council of the Flemish Lawyers; Link opens in new windowhttps://avocats.be/fr for the Bar Council of the Francophone and German speaking Lawyers).

IX. Evidence

The federal and regional environmental regulations do not have specific rules of evidence that apply in environmental matters. In civil procedures the parties have to propose all of the evidence for their statements and facts to the civil court in accordance with the dispositions of the code of judicial procedure. The civil court can order to each of the parties to produce evidence that they possess. The parties can ask that witnesses are to be heard and that the civil court designates an expert. The procedures before the Council of State are inquisitorial, i.e. the Council of State can order an expertise even if the parties do not ask the designation of an expert, correspond directly with the administrative authorities and demand any information and acts from the administrative authorities. In civil and administrative procedures the civil courts and the Council of State will evaluate all the evidence presented and will conclude which evidence is most probably in line with the truth. The civil courts and the Council of State have solely a limited judicial review concerning the scientific evaluation undertaken by the administrative authority. The civil courts and the Council of State have to evaluate whether the decision of the administrative authority is a decision that is not contrary to the principles of good government, i.e. the principle of carefulness, proportionality principle, the principle of reasonableness.

Parties can introduce new evidence before the civil courts and the Council of State. The civil courts and the Council of State can request evidence on their own. Parties can ask the civil courts and the Council of State to get expert opinions in the procedures. The Council of State however can decide to appoint an expert without to be asked by the parties. The civil courts can designate an expert to establish findings or to give technical advises. The expert opinion is not binding on the judges of the civil courts and the Council of State in case it is against their conviction. The judges can ask a complementary expertise by the same expert or designate another expert in case the resume of the expert does not give them clarification.

X. Injunctive Relief

The appeal to administrative courts has in general not a suspensive effect. However, specific federal or regional regulations sometimes diverge from this general rule. The petitioner can ask the Council of State or the Flemish Council for Permit Disputes (for building permits in the Flemish region) to suspend the execution of an administrative act or regulation that is disputed by means of an action for annulment insofar a serious plea can be alleged and that the immediate application of the disputed act or regulation threatens to cause a serious damage that is difficult to repair. The requirement “a serious damage that is difficult to repair” is not a standing-requirement but is a separate condition that should be met for the suspension of the act or regulation. In general administrative decisions can be immediately executed when they have been notified to the petitioner in accordance with the federal, regional or local regulations. However specific federal, regional or local regulations sometimes diverge from this general rule. The execution of an administrative decision can for example depend on the obtaining of other administrative decisions. The execution of an administrative decision can also depend upon specific conditions to be fulfilled before the general administrative decision can be executed. However it is indicated to wait with the execution of administrative decisions till the end of the appeal period so to be sure that the administrative decision cannot be subject of an appeal procedure anymore. Any execution of a decision that is annulled by an administrative court or the Council of State may lead to liability.

The Code of Judicial Procedure provides a procedure in matters of special urgency that the citizens can introduce before the president of the competent court of first instance who can take temporary measures against the person who infringes the environmental regulations. The president of the competent court sits in chambers to deal provisionally with matters of special urgency. The judge needs to conduct a balancing of interests (the interest of the petitioner on legal protection versus other public or private interests) in order to take a decision on the exclusion of the suspensive effect. The Council of State (and the Council for Permit Disputes concerning building permits in the Flemish region) is empowered to suspend the execution of an administrative act or regulation that is disputed by means of an action for annulment insofar a serious plea can be alleged and that the immediate application of the disputed act or regulation threatens to cause a serious damage that is difficult to repair. The requirement “a serious damage that is difficult to repair” is not a standing-requirement but is a separate condition that should be met for the suspension of the act or regulation. The request to take temporary measures against the person who infringes the environmental regulations based on article 584 of the Code of Judicial Procedure can solely be introduced in matters of special urgency. The judge decides case by case whether there is a matter of special urgency. It is indicated to introduce the request to take temporary measures within a short period of time starting from the date the petitioner has knowledge of the existence of the fact that could cause an irreversible environmental damage. The judge can only pronounce temporary measures that are compulsory to avoid a threat or an urgent matter of environmental damage. The judge can order that some activities are temporarily stopped or even forbid some activities. However, in general the judge will appoint an expert who will investigate the situation in the light of an eventual indemnity procedure. The request to take temporary measures against the person who infringes the environmental regulations can also be introduced to the president of the court of first instance that can state the existence of acts that are or could be infractions of environmental regulations in accordance with the abovementioned Act of 12 January 1993 on a right of action for the protection of the environment. This procedure can only be introduced by a public prosecutor, an administrative authority, a non-profit organization that has as statutory goal and activities the collective environmental protection or an inhabitant of the concerned municipality if local government refuses to act. Such demand can be introduced before the president of the court of first instance. This procedure does not request that the matter is of special urgency.

The judge can order that the activities are stopped or impose measures to prevent further environmental damages. He can also appoint an expert who will investigate the situation in the light of an eventual indemnity procedure. There is an appeal against the decision of the court regarding injunction that has to be introduced within a period of thirty days starting from the notification of the judgment.

XI. Costs

The fee to introduce an appeal procedure before the Council of State or the Flemish Council for Permit Disputes for suspension and annulment of an administrative decision is 175 EUR. This amount has to be paid by the party that has lost the case when the decision has been notified to this party. The fees before the civil court depend on the value of the litigation:

Value in litigation

Court fee

Less than 500 €

+/- 125 €

Between 500 € and 2.500 €

+/- 200 €

More than 70.000 €

+/- 250 €

The party that loses the case will pay the court fee. The fee to introduce an appeal procedure before the Council of State for suspension and annulment of an administrative decision is 175 €. The fee to introduce an appeal before the higher court is 210 € for affairs that are not of special urgency. The fee to introduce an appeal in affairs that are of special urgency is 160 €. The fee to introduce an appeal to the Court of Cassation is 375 €. The fees of lawyers are not regulated and therefore they are free in setting their fees. But lawyers must still set them within suitably restrained limits because the lawyers’ associations may check that lawyers do not exceed these limits. The fees of lawyers specialized in environmental matters can be estimated above 125 € an hour. The lawyer can also ask a percentage on the value in litigation. A survey done by the Bar of Lawyers of the Flemish Region indicates the use of following rates:

Value in litigation

Lawyers’ fees

0 € - 6.200 €

15 %

6.200 € - 49.500 €

10 %

49.500 € -124.000 €

8%

124.000 € - 248.000 €

6%

More than 248.000 €

4%

The Judicial Code prohibits agreements between the client and the lawyer solely linked to the outcome of the action. The lawyer is obliged to inform the client in advance of their fee calculation method. The code of judicial procedure does not regulate the expert fees. Experts therefore set freely the amount of their fees case by case. However the judge monitors these fees in a marginal way or may intervene in the event of disagreement between the parties and the expert. The costs for interim measures in civil proceedings are calculated according the abovementioned court fees. On 21 April 2007 the legislator introduced a cost shifting system by amending article 1022 of the Code of Judicial Procedure. The basic, minimum, and maximum amounts of the procedural allowance before the ordinary courts (contribution to the honorarium and costs of the lawyer of the winning party) are determined by the Royal Decree of 26 October 2007 (Moniteur belge, 9 November 2007). These allowances apply per instance (first instance, appeal, cassation). When the claim is or can be expressed in money the allowance will vary according the value of the claim. E.g. for a claim of less than 250 €, the basic allowance is 150 €, with a minimum of 75 € and a maximum of 300 €. For a claim between 10.000 and 20.000 €, the basic allowance will be of 1.100 €, with a minimum of 625 € and a maximum of 2.500 €. For a claim of more than 1.000.000 € the basic allowance is 15.000 €, with a minimum of 1.000 € and a maximum of 30.000 €. For claims that cannot be expressed in money the basic amount is 1.200 €, with a minimum of 75 € and a maximum of 10.000 €. The “loser pays principle” is not applicable in administrative cases before special administrative tribunals or the Council of State, nor for the Constitutional Court.

XII. Financial Assistance Mechanisms

The Code of Judicial Procedure does not provide exemptions from procedural costs, duties, filing fees, taxation of costs, etc. in especially environmental matters. The code of judicial procedure however provides two systems of legal assistance applicable in both civil and criminal matters. There is the ‘primary and secondary legal assistance’ and the ‘legal aid’. The ‘primary legal assistance means legal assistance in the form of practical and legal information, an initial legal opinion or referral to a specialized body or organisation. This form of assistance is available for individuals and corporations. The ‘secondary legal assistance’ means legal assistance to an individual in the form of a detailed legal opinion or legal assistance, whether or not in the context of formal proceedings and assistance with a court action including legal representation. ‘Legal aid’ consists of full or part exemption from stamp duties and registration charges and other costs of proceedings and is available to petitioners who do not have adequate income to cover the cost of judicial or extra judicial proceedings. The petitioner shall have to prove that he/she fulfills certain conditions, amongst others that his/her income is inadequate, in accordance with the dispositions of the Code of Judicial Procedure. There are no other financial mechanisms available to provide financial assistance to applicants. In Belgium there is no legal aid available particularly in environmental matters. Natural persons and NGO’s can apply for the primary and secondary legal assistance and the legal aid as mentioned above. There are no legal clinics dealing with environmental cases in Belgium. There are no public interest environmental law organizations or lawyers in Belgium.

XIII. Timeliness

The federal and regional regulations impose in general a time limit to deliver a decision. These time limits vary with the administrative authority and the type of decision to be taken. If the applicable regulation by rare exception does not mention a time limit the administrative authority will have to provide a decision within a reasonable time period. Some federal and regional environmental regulations stipulate that if an administrative authority does not provide a decision within the imposed time limit or within a reasonable time limit, the decision of the authority is considered to be negative (e.g. the petitioner introduced a demand for an environmental permit). The petitioner then can go into appeal before the higher administrative authority. If the regulations do not include such a disposition, the only appeal possible against the absence of a decision of an administrative authority, is the Council of State. The petitioner will notify to the administrative authority a demand to make a decision. If within four months, starting from the day of notification of this demand, the administrative authority did not notify a decision to the petitioner, it is considered to be a negative decision against which the petitioner can go into appeal before the Council of State. There are no sanctions against administrative authorities delivering decisions in delay beside the abovementioned procedure that the petitioner can introduce before the Council of State. The petitioner can introduce a procedure before the civil court for damage occurred because of inadequate management on behalf of the administrative authority. The Code of Judicial Procedure does not set time limits especially for procedures in environmental matters. In procedures before the civil courts the parties have to introduce their conclusions within a time frame submitted to the court. The major time limit set by the code of judicial procedure for civil procedures is the period of one month after the debates have been closed within which the judge has to deliver a judgment. In procedures before the Council of State the parties have to introduce their written statements within a time frame established by law. The Council of State delivers its judgment within six months starting from the deposition of the report of the auditor. Generally the Council of State does not respect this period of six months. The typical duration of an environmental court case is 9 to 12 months according to practical experience. The Code of Judicial Procedure provides that the judges have to deliver their judgment within one month after the debates have been closed. In case the judge cannot deliver the judgment within this period of one month, the reason for this delay has to be mentioned in the minute book of the clerk. The judge has to be able to justify the delay in an objective way before the higher court authorities that are in charge of the control on the delays of consideration. If a judge cannot deliver a judgment within a period of three months he must inform the higher court authorities who will consider with him a solution that has to lead to a reduction of the delay. The judge will be evaluated periodically on his performances and in case his evaluation is negative the judge can be submitted to a disciplinary punishment.

XIV. Other Issues

The public can challenge environmental decisions that are final, after exhaustion of the administrative appeal procedure that is available. Appeal to the Council of State must be introduced within 60 days after one has knowledge of the decision taken (45 days as the Flemish Council for Permit Disputes is concerned). The information on access to justice in environmental matters is provided to the public in a structured and accessible manner: Please consult the following websites:

(i) The Federal State: Link opens in new windowhttps://www.health.belgium.be/en

(ii) The Walloon Region: Link opens in new windowhttp://environnement.wallonie.be/

(iii) The Flemish Region: Link opens in new windowhttps://www.lne.be/environment-and-health

(iv) The Region of Brussels Capital: Link opens in new windowhttp://environnement.brussels/thematiques/air-climat-0.

In Belgium the authorities are more and more convinced that alternative dispute resolution can be a valid alternative to court proceedings. In Belgium mediation is often used in environmental matters to solve conflicts proactively to avoid court proceedings.

XV. Being a Foreigner

Discrimination regarding language or country of origin is forbidden by article 11 of the Belgian Constitution. The use of languages in court procedures in Belgium is organized by the Act of 15 June 1935 concerning the use of languages in court cases. The use of languages is based on the division of Belgium in four language territories: the Flemish, the French, the German and the bilingual territory of the Region of Brussels Capital (French and Flemish) as established by the Belgian Constitution. In general the language, in which the court procedure is held, is the language of the district in which the competent court is established. The rules that are applicable in the Brussels district are complex because it contains Flemish speaking communities as well as Flemish and French speaking communities. However parties can introduce a demand of the application of exceptions on the abovementioned general rules. The general rule is that all documents used in a court procedure should be translated in the language in which the court procedure is held. The government can in certain court procedures provide translation or the designation of translators who are officially credited and listed. The cost of a translator is to be paid by, the respective party and ultimately by the losing party unless the party was entitled to legal aid.

XVI. Transboundary Cases

The federal and regional environmental regulations contain transboundary EIA procedures to be followed when an activity in Belgium could have an environmental impact in another country. According to the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) the definition of ‘the public’ is to be understood in federal and regional regulations as ‘one or more natural or legal persons and their associations, organizations or groups’. NGOs, neighbors and neighboring municipalities of the affected country do have standing in federal and regional EIA procedures. The abovementioned parties will have the same rights as NGOs or neighbors have in Belgium. However, in the context of the Act of 12 January 1993, only Belgian NGO’s can act, because only NGO’s that satisfy certain requirements (namely, being set up in the form of a non-profit association according the Act of 27 June 1921 on nonprofit organizations, having the protection of the environment as its purpose, having existed for at least 3 years and actually being active) can bring such an action. No legal aid or pro bono legal advice is granted in administrative procedures for public or foreign NGOs. Individuals or NGOs cannot choose between courts of different countries in environmental matters. However, in cases of transboundary pollution, it seems possible to sue before civil courts in the country of origin or in the country were the environmental harm occurs.

Related Links

  • National legislation on access to justice in environmental matters:
  • Bar associations:
  • Ombudsman offices, prosecutor offices
Last update: 28/05/2018

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Bulgaria

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I. Constitutional Foundations

The Bulgarian Constitution provides for a right to a healthy and favorable environment corresponding to the established standards and norms (Article 55). Protection of the environment is also a citizen’s duty. Enforcement of the right to a healthy and favorable environment is possible in conjunction with other constitutional rights:

  • of information - Article41(2)
  • of expression - Article39
  • of free assembly - Article43
  • of association – Article44(1)

Citizens are guaranteed access to court for appealing administrative acts (Article120 of the Constitution), unless otherwise provided for by law. No such legal exception exists in environmental law. Legal interest is required for bringing administrative acts before justice.

The direct implementation of all constitutional provisions is possible. As to the right to a healthy and favorable environment it is usually invoked together with an existing standard, either procedural or substantive.

International agreements which are ratified by the Parliament and are in force for BULGARIA become part of the internal legal order after their publication in the State Gazette. Such agreements are given priority over national laws in case of contradiction between them.

Both administrative bodies and courts apply the Aarhus Convention directly. A small number of court decisions express doubts over the possibility for direct implementation of Article 9 (3) of the Aarhus Convention.

II. Judiciary

The court system consists of the Supreme Cassation Court (SCC), the Supreme Administrative Court (SAC), appellate courts, regional courts, military courts and district (local) courts.

Justice in civil matters is provided by:

  • District courts as first instance courts for disputes of relatively small economic (less than 12,500 EUR) interest;
  • Regional courts acting as first instance courts for more important disputes and as appellate instance for district court’s decisions;
  • The SCC performing the function of cassation instance for all appellate decisions (with small exceptions);

The administrative judicial system consists of:

  • 28 administrative courts, that deal with appeals against administrative decisions;
  • The SAC can act either as first instance court, or as a cassation instance;
  • District courts that hear appeals against administrative acts for sanctioning misdemeanors. A cassation appeal against a district court’s decision in such a case will be dealt with by a three judges chamber of the respective administrative court.

Judges are independent. Those of them who have served for more than five years cannot be removed from their position, unless exceptional circumstances occur.

The Supreme Judicial Council (SJC) is the authority that appoints, promotes and dismisses the judges. No specialized courts or tribunals to deal with environmental cases exist. However, at some administrative courts judges are organized in chambers to the effect that environmental cases are decided by limited number of the judges to the respective court.

Forum shopping practically does not exist in BULGARIA. In administrative cases rules to define the competent court are strict and no choice is left to the claimant as to which court to address. A kind of choice with regard to the level of the competent court is given to the high administration in access to environmental information cases. A request for such information addressed to a minister could be answered either by the minister himself or by his deputy/the ministry’s secretary – an appeal against the answer would be heard by the SAC in the first and by the City of Sofia Administrative Court in the second case. In civil liability cases (environmental liability included) the person who suffered damages could address either the court of the defendant’s seat/residence or the court of the site where the damages occurred.

In administrative matters a two instance procedure before court is in place.

- A complainant has the right to appeal an administrative decision before the administrative court and then the first instance court decision

before the SAC via a cassation appeal. In civil procedure a claimant has a procedural right to address two instances, namely, a trial instance and an appellate instance.

Since 2007 when a new Civil Procedure Code was adopted, access to the cassation instance (SCC) was limited. A cassation appeal shall be lodged when the judgment is null; the judgment is inadmissible; the judgment is incorrect by reason of violation of the substantive law, a material breach of the rules of court procedure, or lack of justification.

In both administrative and civil court procedure an extraordinary remedy for reversal of court’s decisions exist.

Theoretically after quashing an administrative decision, the court can issue an administrative act only if there are no topics left to the discretion of the administration. If there are such topics, the file has to be sent back to the administration and the court provides the administration with mandatory instructions how to implement the law. In practice courts never proceed to issuing environmental permits. As to access to information appeals, after a refusal is overturned, the court can not release the requested information directly to the applicant - firstly because usually the court is not in possession of the information and secondly because courts are not allowed to release the information directly to the applicant.

Environmental cases are handled under the common administrative procedure – i.e. there are no specific court rules applicable to environmental matters. It is to be stressed that access to justice for appealing environmental permits is a relatively recent phenomenon – back till the end of 1990-ies most permitting procedures did not even exist. Even the most general notions such as the notion of legal standing are still shaping up(1) . Interest in addressing the administrative courts has grown a lot in the last 5-6 years and there is a variety of new situations that administrative courts are facing.

Specificities of judicial procedures in environmental matters could be divided into three groups with respect to:

  • Standing;
  • Evidence collection;
  • Scope of review;

As to evidence collection courts usually prefer to hear expert opinions and witnesses are allowed to give evidence in court. The judicial authorities cannot seize themselves – this is valid in both administrative and civil matters. However, if somebody else starts a procedure, and especially if the procedure is an administrative one, courts can proceed ex officio in a number of situations. In administrative procedures courts can initiate collection of evidence. The scope of review of administrative decision and of first instance decisions is not limited by what parties have claimed. In civil procedure law courts are given less prerogatives to act ex officio.

III. Access to Information Cases

There are two categories of cases where a request for environmental information was refused or wrongfully/inadequately answered:

  • The first category are the common refusals where there is no specific purpose of the request.
    • The refusal is appealable directly before a court - either before the SAC (if the refusal was issued by a minister) or before the administrative court (in the rest of the cases).
  • The second category are refusals to release environmental information which was asked for the needs of participation in any of the procedures, regulated in the Environment Protection Law (EPL).
    • In such situation the applicant can first address the appeal to the higher administrative authority, and at a later stage to the court (the idea being to provide such applicants with a quicker tool for getting the necessary information)..

Refusals in common cases have to include information on the rules for appealing – this is explicitly required by the Access to Public Information Act (APIA). As to the refusals of the second category, they should contain the same kind of information because for them a general provision about the content of any administrative decision is applicable.

Appeals against refusals of request for information should minimally contain:

  • Name and address of the complainant;
  • The court before which the refusal is appealed;
  • Identification of the administrative act that is appealed;
  • The request of the complainant;
  • Indication of why the complainant considers the refusal unlawful;

Appeals should be filed no later than 14 days after receipt of refusal. Tacit refusals could be appealed in a month period after expiry of the deadline for issuing the administrative act (the response to the request for information). Appeals are addressed to the court via the competent authority – i.e. the appeal is filed at the authority that has issued the refusal.

Courts usually are not in possession of the requested information. As they have the right to consider the lawfulness of the grounds for refusal, courts may theoretically ask to get the information in question from the authority. This does not happen often in access to environmental information cases.

When courts find a refusal of request for information unlawful, they quash the refusal (the administrative act) and order the administrative authority to release the requested information. The court’s decision contains indications about how the law should be implemented.

IV. Access to Justice in Public Participation

Any administrative procedure has two subsequent stages – administrative and before court. As for the first stage procedures may vary in accordance to the requirements of the specific regulation – water, waste, or another type of environmental regulation. The procedure before court is applicable to all kind of administrative decisions and is regulated in the Administrative Procedure Code (APC). The APC distinguishes three types of administrative decisions – individual, of general nature and normative. Procedures for appealing may slightly differ in accordance of what type of decision is brought to court.

The APC provides for an appeal before the superior administrative body. As some authorities (Council of Ministers, ministers) do not have superior administrative authority, their decisions only could be appealed before court. Superior administrative body can check whether the subordinated administration has applied correctly its discretionary power. First instance decisions can be taken directly to court. Administrative remedies do not have to be exhausted before bringing the case before court.

Courts can review the lawfulness of administrative decisions. Courts cannot deal with issues related to the discretionary power of the administration. Both procedural legality and substantive legality are subject to the court’s control. Controlling procedural legality in environmental decision-making does not differ from doing this in any other administrative process. In environmental matters substantive legal issues are often closely related to technical findings and even calculations. The lawful implementation of notions like “best available techniques” or of requirements such as “to identify, describe and assess in an appropriate manner the direct and indirect effect of a project on fauna and flora, soil, water, air, landscape…” presupposes an in depth understanding of many technical aspects of the permitted activity. The judges are supposed to apply the law and experts are heard for answers to technical questions. Sometimes, e.g. in urban planning and permitting legislation normative acts regulate in small details technical issues. In such situations courts appoint experts to answer technical questions despite the fact that “technical” assessment might touch on some legal issues. There is common understanding that technical and/or calculation errors could be checked by the court.

There are two types of land use plans (LUPs) – general LUPs and detailed LUPs. General LUPs cannot be appealed before court. Detailed LUPs can be appealed but standing is very much limited and sometimes even neighbours cannot take a DLUP to court. NGOs are denied standing with respect to LUPs. General LUPs are subject to a mandatory strategic environmental assessment (SEA), detailed LUPs - to an assessment of the necessity for an SEA. Jurisprudence is not unequivocal with regards to the reviewability of the SEA opinion – some decisions admit SEA opinions could be appealed separately from the LUP. Other decisions find that SEA opinions can not be appealed separately from a LUP and thus recognize standing to NGOs to appeal LUPs only on the basis of the standing to bring to court the SEA opinion. The decisions of the first group seem to prevail and the problem for access to justice with the LUPs exist. Review of LUPs by courts do not differ from other review procedures as to forums, rules of evidence and rules on hearing. When hearing appeals against LUPs courts tend to tackle mainly the technical spatial planning aspects – environmental issues are not considered to be substantively related to LUP.

EIA(Environmental impact assessment) screening decisions are subject to court review. NGOs have standing. Few decisions denied standing to non environmental NGOs to appeal EIA screening decisions. EIA screening decisions review shows no specificities with regard to forum, rules of evidence, rules on hearing and extent of review by the court. Screening decisions are heard by administrative courts at first instance.

EIA scoping is a part of the EIA procedure which does not end with a separate decision. That is why scoping decisions are not reviewable separately from the final EIA decisions. The EIA procedure provides for detailed rules about how scoping should be carried out. Attempts have been made to appeal final EIA decisions only on the basis of procedural errors with regard to scoping. Courts usually do not accept such allegations – the administrative jurisprudence requires the appellant to prove a causal link between the procedural error and the lawfulness of the final decision – only on that condition procedural violations are held by courts.

The most abundant jurisprudence is with EIA final decisions. Other authorizations (water permits, waste management permits) can also be appealed before court, but fewer court decisions have been taken in these matters. Environmental NGOs of public interest have never been denied standing to appeal final EIA decisions. This is not the case with NGOs of private interest – some courts dismiss their appeals on the ground that protecting the environment is a public cause and not a private one and therefore art,9 paragraph 2 of the Aarhus Convention is not applicable to NGOs of private interest. In EIA final decisions appeal procedures courts are most inclined to enter into a review of the technical findings and calculations of the EIA report. Procedural legality is carefully looked at. Over the time investors and authorities improved their performance as regards the procedural requirements and at present cases of procedural negligence on their part are rare. In most cases substantive issues are put forward as reasons for appealing. In BULGARIA the EIA procedure usually encompasses another procedure for assessment of the impact on Natura 2000 zones. A quick overview shows that nature protection issues were mostly discussed substantive topics by EIA court decisions. In all such cases the possible impact on habitats was explored by expert hearing – i.e. the court subjected to a review technical findings and even calculations of the EIA report.

In order to have standing neither NGOs nor physical persons are required to have taken part in the public consultation or public hearing phase of the EIA procedure. Environmental NGOs of private interest have tried to stress their participation at the consultation and the EIA report public discussion phase as evidence for existing interest to appeal the final EIA decision, but the courts never held that argument. NGOs of public interest can appeal a final EIA decision without having shown up at earlier stages.

In BULGARIA the EIA permit is considered to be an individual administrative act and an appeal against such decision(permit) has a suspensive effect – i.e. the investor can not proceed further with obtaining subsequent permits - either IPPC (Integrated pollution prevention and control) or building permit. In case of an urgent need to proceed with getting other permits or to start construction works authorities or courts can remedy such a situation by ordering a preliminary execution of the EIA decision. Authorities proceeded this way in a number of infrastructure building (waste landfills, highroads, ski run ) proposals. Legal requirements for administering preliminary execution are drafted in a general way and are not meant to cover only environmental or EIA decisions. Usually decisions for ordering preliminary execution are shortly motivated (several sentences to no more than a page).

The IPPC permit procedure in BULGARIA is separate from the EIA. The final IPPC authorization can be reviewed by courts. In most cases the minister of environment and water (MOEW) is the competent authority to issue an IPPC permit – appeals against decisions of MOEW are heard by the SAC. Rules of evidence and rules on hearing as well as extent of review by the court in IPPC court procedures do not differ from other appeal procedures. There have been few (no more than 7-8) cases of IPPC authorizations brought to court. At least half of them were initiated by investors who were denied issuance of IPPC permit. Environmental NGOs have standing to appeal IPPC decisions.

The approach of courts in IPPC matters is the same as in EIA. Both substantive and procedural legality are reviewed. There is not enough jurisprudence to enable a conclusion about criteria with respect to matters beyond the IPPC decision such as material and technical findings, calculations and IPPC documentation.

Similar to other environmental permitting procedures, in IPPC participation at earlier phases of the same procedure is not required for having standing to appeal the final IPPC decision.

Like the EIA decision, the IPPC permit is an individual administrative act and absolutely the same rules with respect to injunctive relief are applicable. No special rules applicable to IPPC procedures exist as to injunctive relief.

V. Access to Justice against Acts or Omissions

Civil court procedures can be started against private individuals or legal entities in case their unlawful activities have caused damages to any person – private or public. Such lawsuits are explicitly provided in the framework Environment Protection Law (EPL) and in the Water Act (WA).

The requisites for the abovementioned lawsuits are as follows:

a) an unlawful activity;

b) environmental (or water) pollution or damage;

c) damages caused to a person;

d) guilt;

e) a causal link between the unlawful activity and the damages.

The lawsuit can be started either by the person who suffered the damages or by the state authority that is responsible for (manages) the damaged property. The claimant can ask the court to order a stop to the polluting activity or to pay compensation for the caused damages. In practice this lawsuit is not often used. While the unlawfulness of the activity can easily be proved in case the activity in question is carried out without the required permit, the other components of the claim could occur to be more difficult to be established. In most cases it is difficult, even impossible to differentiate between past and recent pollution. In addition it can take two-three years for the procedure to come to an end.

Claims against state bodies in environmental matters could be divided into three groups:

  • Claims against unlawful activities of authorities.
  • Claims against unlawful omissions to act, committed by the authorities.
  • Lawsuits by affected persons against executive power bodies for damages caused by unlawful acts/omissions.

While all three groups of claims should be brought before the administrative court, the latter group of claims are in reality civil lawsuits. The first and the second group of claims are based on a wide range of prerogatives, given to the environmental authorities to stop ongoing unlawful activities, committed by private persons or to prevent imminent danger of pollution – such prerogatives are provided for by several environmental laws. They are called “coercive administrative measures” (CAM). The CAM could be either preventive, or aiming a stop or recovery from a pollution. A CAM could be appealed before a court by any person having interest to do so. In case of appeal the common rules for appealing administrative act apply. An appeal against a CAM however does not have suspending effect.

In environmental liability matters there is a separate Law on the Responsibility for Prevention and Removal of Environmental Damages (LRPRED). There are two types of measures imposed by the authorities if a situation of environmental damages or of a threat of such damages exists – preventive and for remedying the pollution. Competent authorities under this law are the minister for environment and water, the directors of the RIEWs, the River Basin directors and the National Park directors. The law provides for several requirements to the public for filing a request for action in environmental liability matters, but they are not heavy to implement (the most important being the requirement for supplying the authority with evidence about legal interest if the request is filed by a physical person). NGOs do not have to prove their legal interest. Operators of facilities, contrary to what is expected from the public, have to provide the authorities with explicit and specific information related to the environmental threat/damage/measures. Rules for exchange of information between different environmental authorities are also provided. In general there are no special conditions for court review of either the administrative act for ordering a measure or the refusal to do so. The common rules for court review of any administrative act apply. The appeal against a preventive measure ordered under the LRPED does not have suspending effect. The subject of review is specific, because the procedure for imposing a measure provides for special requirements – e.g. consultations, publications, steps in case the operator is either unknown or not in condition to implement the necessary measures. The enforcement of the environmental liability regime under the LRPRED is carried out under a threat of fines/sanctions for those who do not act according to the legal requirements or to the ordered measures. The competent authorities who sanction the committed misdemeanors are the same as those who impose the measures. Apart from that LRPRED provides for 3 CAMs – the CA can either order a stop of the operator’s activity, or seal off a territory or prohibit/limit the use of a water body. For bringing a CAM, issued under the LRPRED before court the common regime applies. It is to be mentioned that breaking a seal put to keep people off a premise or an object is a crime punishable under the Penal Code.

VI. Other Means of Access to Justice

The Bulgarian legislation grants standing to interested persons (environmental NGOs and physical persons) to bring to court both measures of general nature such as protected areas management plans and normative acts – secondary legislation issued by the executive authorities.

The Role of the Ombudsperson (Link opens in new windowNational Ombudsman ):

  • Suggests solutions to problems in relations between the administration and persons, but he can not overturn an administrative decision.
  • Has the right to start an administrative procedure for issuing an administrative act.
  • Cannot bring a case before the Constitutional Court –
    • instead he can suggest to those who can do that an issue to be considered by the Constitutional Court.

The Role of the Public (State) prosecutors:

  • considered to be part of the judiciary, not of the executive power.
  • Given discretion to determine whether or not may participate in administrative measures.
  • Can also start an administrative procedure
  • In penal matters public prosecutors are the only authority that can charge someone with a crime (environmental crime included)
  • No private prosecution exists in Bulgarian environmental penal law.

Earlier a description of the administrative review procedure the prosecutor’s role the ombudsperson’s prerogatives and the CAM was provided. It could be added that the common administrative procedure gives the affected persons a right to appeal before the administrative court any act or inaction/omission of an administrative body. In case of an unlawful act the court considers whether or not the act in question is law-founded. If it is not the case the court orders the unlawful behavior of the administration to stop. In case of unlawful omission the court considers whether or not there is an obligation to act. If the court finds the appeal well founded, it stipulates that the administrative authority should implement the law not later than a précised date.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

X

X

NGOs

X

X

Other legal entities

X

X

Ad hoc groups

X

No

foreign NGOs

X

X

Any other[5]

Local authorities with respect

to some central power decisions

X

The accession to the EU (2007) and the transposition of EU law multiplied the number of administrative procedures in environmental law. The legal doctrine and case-law are still in process of defining criteria for standing in different environmental administrative procedures. Environmental cases brought to court are not numerous and some situations have not been tested yet. In Bulgarian legal doctrine there is no differentiation between the concepts of impairment of right and sufficient interest. The interest to participate in an administrative procedure and to appeal an administrative decision is considered according to the concrete facts. When considering the interest, the case-law implies impairment of rights, not always linking the affected right with ownership or use. With respect to NGOs, the same approach applies. However in EIA and SEA all environmental NGOs, except those of private purpose are granted standing. In EIA and in SEA procedures anybody can participate. Foreign environmental NGOs are recognized to have the same rights as local NGOs – exactly as the Aarhus Convention requires.

In general criteria for standing in horizontal procedures (EIA and SEA(Strategic environmental impact assessment)) are more liberal than in sectoral procedures – e.g. water or waste related.

There is no actio popularis in BULGARIA.

The public prosecutor can participate in any environmental administrative procedure, including in its second phase – the court phase. The public prosecutor is supposed to protect the public interest and the range of his rights for participation in administrative procedures is broad. As for the Ombudsman, he can start procedures for issuing administrative decisions, but he does not have the right to appeal an administrative decision before court – he is not meant to act in judicial procedures.

VIII. Legal Representation

There is no legal requirement for lawyers’ assistance at court – either in administrative, or in civil court procedures. However, filing a lawsuit, and especially defense in the civil court without legal counsel might cause a lot of trouble to a party. A recently adopted (2007) Civil Procedure Code (CPC) provides for very strict rules with respect to evidence collection and appearance in court. The spirit of the new CPC is very much different from the spirit of the former CPC – it requires much more procedural discipline. Under administrative court procedure rules, unlike CPC, the judge is supposed to have a leading role in examining a case. Firstly, with respect to the scope of the legal review the court is not bound by the factual and legal grounds stated by the complainant. Secondly, the court has a legal obligation to assist the parties to a procedure to remove formal mistakes in their statements. The judge should indicate for which factual allegations no evidence is provided. Failing to do so, amounts to a procedural error and a court’s decision might be overturned by the superior instance only on that ground. In environmental administrative court procedures another situation seems to happen – the facts are numerous,of different nature and often contradictory technical interpretations of the facts exist, the line between legal and technical requirements might be blurred. That is why in more and more cases courts suggest the parties that it might be better to hire a lawyer.

Usually public interest environmental lawyers combine their current practice in other legal fields such as corporate, civil or administrative law with environmental counseling and litigation. Five-six years ago most environmental cases were heard by courts in Sofia. Since recently this trend has changed, mainly because a lot of EIA, SEA or nature protection related appeals are considered by local administrative courts. Environmental NGOs with experience in a given field usually know public interest environmental lawyers whom one can contact – it is advisable to ask such NGOs.

IX. Evidence

The main evidence in the administrative court procedure is the “administrative file” – i.e. the evidence collected by the administrative authority with respect to the facts and circumstances relevant to the administrative act. The administrative authority has a wide variety of prerogatives for evidence collecting before issuing the act. In addition to the evidence collected by the administrative authority the court can, on demand of the parties to the procedure or ex officio, collect additional evidence. Thus, the court can summon witnesses to give evidence. Any documents could be required and/or presented before the court. Expert opinions are also collected at this phase of the procedure.

The court has freedom in evaluating the evidence collected. The Civil Procedure Code (CPC), which is also applicable for procedures for appealing administrative acts explicitly states that the expert opinion is not binding for the court, which means that the court can reject part or the whole of it. Official documents, i.e. the documents issued by public authorities in performance of their duties, have binding force with respect to the facts certified therein. As for the documents issued by private persons they are taken into account only if they contain evidence which might be used against the claims of the person that issued the document. As a rule in public interest environmental cases the disputes are decided on the basis of expert opinions. In many cases the courts consider the completeness of the administrative file and if there are not documents evidencing that some legal requirements were fulfilled, the courts hold that these requirements were not met.

Parties can introduce new evidence at the court procedure stage. In all cases parties should explain to the court what new evidence is asked and in relation to what facts and circumstances. The facts and circumstances should be relevant to the allegations of unlawfulness of the administrative decision. Usually the court is not inclined to revisit all or a big part of the facts established by the administrative authority. This means that the plaintiff should focus on some key, major issues when asking new evidence to be collected. The court can request evidence on its own motion and this is related to the prerogative of the court to check the legality of a decision, regardless of the parties’ claims.

Evidence, including expert opinions can be asked either when the appeal is filed, or by an additional demand filed at the court or at the hearing. The court appreciates it if the evidence is requested beforehand so that the other parties can take position and the court itself has enough time to consider the demand. The party that seeks the expert opinion should formulate the questions to be answered. The expert opinion should be ready and filed at the court at least seven days before the court hearing so that the parties have enough time to have a look at it. The expert opinion as evidence has to be collected at a court hearing and the parties are invited to ask questions. The court only tolerates questions related to the subject matter of the requested expert opinion. The court refuses to accept expert opinions that were not collected in the way described above.

In general, the same rules apply for evidence collecting in environmental civil lawsuits. However, in civil litigation there are peculiarities. The parties to a process are supposed to provide the court with their allegations with respect to the relevant facts and to the evidence supporting the facts. The court is not allowed to interfere and to guide the procedural behavior of the parties. It only can state on the admissibility of the requested evidence. Terms for evidence requesting are shorter and in many cases preclusive.

X. Injunctive Relief

In administrative court procedure the appeal against an individual administrative act has a suspensive effect, unless the opposite is provided by a law. In environmental law there are no cases where the appeal is denied a suspensive effect, except in some cases provided in the Territorial Management Law. Challenging administrative acts of general nature (plans, programs) and normative nature does not stop the implementation of the respective acts. As most part of the administrative court litigation consists of challenging individual administrative acts usually appeals stop enforcement of the administrative decisions.

If the appeal has a suspensive effect, investors can request preliminary execution of the decision and the administrative authorities can grant it.

The APC enumerates five conditions for doing so:

1) where this is required in order to ensure the citizens’ life or health;

2) to protect particularly important State or public interests;

3) to prevent a risk of impediment or of failure to enforce the administrative act;

4) or where a delay in enforcement may lead to a significant or irreparable harm;

5) or at the request of some of the parties as a protection of their particularly important interest.

In the latter case a cross-undertaking in damages is required. The order that grants preliminary execution can be appealed before court. The deadline for doing so is three days from the date of publishing of the decision. Independently from what has happened during the administrative phase of the procedure the court before which the appeal procedure is pending can order a preliminary execution of the administrative decision under the same five conditions. Unlike the administrative authority the court can require an undertaking, regardless of the reason for granting preliminary execution, if there is a risk of significant or irreparable detriment to any person.

In administrative court procedure the court, either the first instance or the cassation court, on demand by the plaintiff, can stop the preliminary execution granted by the administrative authority – i.e. the court can order injunctive relief. There are two conditions for doing so. Firstly, there should be a risk that the preliminary execution could inflict significant or irreparable harm to the plaintiff. Secondly the demand should be founded on new circumstances – i.e. on circumstances that occurred after the preliminary execution had been granted.

In civil court procedure the aim of an injunction is to make sure that the execution of a court decision will take place. Civil environmental lawsuits – lawsuits for compensation for inflicted damages or for stopping a polluting activity - could hardly present a situation where injunction is needed. Theoretically, the first instance court can order a preliminary execution of its decision, for instance in a lawsuit for stopping a polluting activity. But the law states that preliminary execution is inadmissible if the execution can inflict irreparable harm or harm that could not be assessed. The latter condition could be a hindrance for obtaining preliminary execution in civil environmental litigation.

Thus in general due to the small number of civil lawsuits, to the suspensive effect of the appeal against individual administrative decisions and to the specific conditions for ordering injunctive relief, the jurisprudence has dealt mostly with appeals against granted preliminary execution of administrative acts. With respect to the latter category of litigation it is to be noted that usually the court’s motives, like the motives of the administrative authority are succinct. Finally, when courts have to state on demands for preliminary execution, they usually avoid considering issues related to the legality of the administrative decision as a whole.

All court decisions – either with respect to preliminary execution or to injunctive relief in administrative court procedure, or to injunction and preliminary execution in civil procedure can be appealed before a higher instance court.

XI. Costs

An applicant faces three categories of costs.

  • Court fees.
    • Court fees are fixed by a tariff, adopted by the executive power.
    • The second category are the attorney’s fees.
      • Attorney’s fees are not fixed – every attorney can negotiate the amount of his/her fee. A regulation, issued by the Supreme Bar Association Council sets the minimum fee for each type of attorney’s service.
      • Fee of experts (potential fee) appointed by the court to give expert opinions.
      • A small fee for publishing an announcement about a pending case might be asked in cases of challenging administrative acts of general nature and normative administrative acts.

Court fees in administrative litigation are low. Citizens and NGO’s pay a 5 EURO fee for a first instance court process. For trade companies the same fee amounts to 25 EURO. In civil litigation, fees depend on the type of lawsuit. If a claim is pecuniary, e.g. lawsuit for compensation for damages the court fee would be 4 per cent of the amount claimed. If the claim can not be assessed – e.g. a lawsuit for stopping a polluting activity, the judge sets the fee in each individual case. In civil litigation there is no differentiation of fees between NGOs/citizens and trade companies. Fees for appealing decisions – both in administrative and civil litigation amount to the half of the first instance court fees.

Expert fees can vary depending on the number of experts, the questions that are asked and the personal judgment of the magistrate. Expert fees are fixed by the judge. Environmental litigation often requires specific expertise that is provided by more than one expert and the amount of expert fees may vary from 500 to 1200 EURO. Some judges may fix the fee for a single expert opinion below 500 EURO. An additional spending, though not officially recognized by the court as such may be needed if the NGO wants to check or to oppose the expert opinion evidence collected by the court. In such a case usually another expert is approached with the task to check the correctness of the expert opinion. Lawyers’ fees may vary a lot. In administrative litigation the attorney’s fees is unlikely to be higher than 1500 EURO. In civil litigation the estimate with regards to attorney’s fees is difficult.

The court fee cost for considering an injunction relief/injunction measure is insignificant – no higher than 15 EURO. Theoretically a deposit or cross-undertaking could be asked but in environmental matters such situation never happened. In trade marks/industrial property litigation an analysis made in 2004-2007 showed that for similar cases the amount of the undertaking may vary a lot depending on the estimation of different judges.

The “loser pays principle” is strictly implemented by the courts. In administrative litigation the plaintiff, if losing the case, is bound to pay the minimum fee of no more than one attorney, hired by it’s adversary. However this rule has not always been respected, including in public interest environmental cases and plaintiffs were obliged by the court to pay the winning party attorneys’ fees which were much higher than the minimum fee. There is no way for shifting the costs or for making the implementation of the “loser pays principle” milder for claimants/plaintiffs in environmental public interest litigation. The only ground for a possible reduction of the attorney’s fees is provided in the CPC, applicable also in administrative litigation. The CPC states that the court can reduce the attorney fee to be paid if its amount does not correspond to the legal and factual complexity of the case.

XII. Financial Assistance Mechanisms

No exemptions from procedural costs, duties, filing fees, or taxation of costs exist in environmental matters, regardless of the public interest involved. In administrative litigation, plaintiffs are not bound to pay costs for evidence collecting initiated by the court, even though the evidence relates to the plaintiff’s claim.

There is a legal mechanism for exemption from court fees of claimants who “do not have enough means to pay the fees”. The situation might be caused by different circumstances – illness, low income, age, etc. which should be proved by the person asking for exemption. The court decides whether to exempt or not the claimant from paying court fees. The Legal Aid Law (LAL) provides for a help to a litigant by covering his/her expenses for attorney. The litigant should be in a poor financial condition. The decision for granting legal aid is taken either by the court or by an administrative body called National Bureau for Legal Aid. The LAL mechanism is a general one and plaintiffs/claimants in environmental litigation are unlikely to profit. A special legal aid mechanism apart from the abovementioned ones does not exist in environmental matters.

The law does not regulate pro bono assistance provided either by individual professionals or by legal firms. So it is up to the law firm to decide under what conditions it would offer pro bono assistance. The availability of such services depends very much on the individual case and the motivation of the law firm management body to be involved in a given case.

There are no legal clinics dealing with environmental cases.

NGOs and citizens identify individual law professionals sharing the same objectives ofpursuing public interest law activities. Some of them have been providing public interest legal services for many years. In regions which are rich in natural habitats, local lawyers help experienced NGOs like Bulgarian Society for Link opens in new windowBird Protection , Link opens in new windowGreen Balkans , Link opens in new windowBulgarian Biodiversity Foundation or Link opens in new windowBalkani Wildife Society in doing environmental litigation. The Link opens in new windowAccess to Information Programme does a lot of access to environmental information litigation. An informal group of lawyers, Link opens in new windowGreen Lawyers, address for e-mails: zeleniteadvokati@gmail.com, advocates for more transparency and better protection of the public interest, especially in nature protection.

XIII. Timeliness

The general rule states that an individual administrative act should be issued no later than 14 days to one month after the start of the procedure. In environmental matters, however, procedures are usually more complicated and may last from several months to more than a year. Many environmental procedures provide for specific time limits to deliver a decision – e.g. the EIA decision should be taken in 45 days after the meeting for public discussion of the EIA report.

Low standing administrative authorities could be fined for not respecting the deadlines for delivering administrative decisions. Theoretically a person can sue the government for the delay.

There are no time limits set by the law for judicial procedures in environmental matters. There are a lot of deadlines provided in general for the various steps of the administrative court procedure. There is a three-day deadline after receipt of the appeal, in which the administrative organ should send the file to the court. If a party cannot appear in court because there is an obstacle it can not overcome, the next hearing should be scheduled to take place in three months period from the last session. Time limits for different activities for the parties to a procedure can be set either by the law or by the court. They usually vary, but are never longer than 14 days. One of the principles of the administrative court process says that the procedure should be expeditious.

The duration of an environmental court procedure can vary depending on the number of hearings, its stages and the schedule of hearings of the court. The need for a publication in the State Gazette could add several months to the process. If there are numerous parties to a procedure it can take longer time to inform all parties for one or several hearings. Usually the duration of a first instance court procedure with two or three hearings is approximately 6-7 months. If there are more than three hearings the procedure can take 8-12 months. An appeal before the second instance might prolong the procedure by additional 6-8 months. A worst-case scenario would be a long lasting first instance process combined with gross procedural errors whereby the second instance sends back the file to be decided again by another judge – i.e. the procedure in this case would restart from the beginning. In such a case it might take 2-3 years before the final court decision enters into force. An additional factor for a delay might be the fact that some courts/chambers are overburdened and the date of the first hearing is fixed for not earlier than 6-9 months after arrival of the appeal at the court. A medium duration of an environmental administrative court procedure with none of the abovementioned complications would be 12-18 months.

The court has a deadline of 30 days from the last hearing to deliver its decision. In most cases this deadline is respected.

There are no sanctions provided against a court that has delivered a decision in delay. The 30 days deadline is considered not to be binding and not respecting it is not related to any legal consequences. If a judge repeatedly delivers his/her decisions in delay, the judge’s behavior could be brought before the Inspectorate to the Supreme Judicial Council of the Republic of Bulgaria.

XIV. Other Issues

Usually environmental decisions are challenged directly before court. This is partly due to the fact that some authorities’, e.g. ministerial decisions cannot be brought before a higher administrative instance because there is not any such instance. Recently, especially in EIA and SEA cases, NGOs started appealing decisions, first, before the Minister for Environment and Water, the higher authority of the Regional Inspectorates for Environment and Water and, second, before courts.

There are a wide variety of sources of information on access to justice in environmental matters. On the websites of almost all administrative courts there is information about the administrative court procedure, implemented in any environmental permitting process as well. On some websites one can find texts of laws . On other websites short explanations about access to justice is provided . On the websites of the Ministry for Link opens in new windowEnvironment and Water and the Regional Inspectorates for Environment and Water there is information about individual decisions that have been taken and the authorities before which these decisions can be appealed. On the website of the Link opens in new windowSupreme Administrative Court one can find an electronic version of all decisions taken by the SAC in the last 10-12 years.

Alternative Dispute Resolution (ADR) exists in BULGARIA and is regulated by the Law on Mediation. However environmental administrative court disputes cannot be subject to an ADR procedure. Since 2007 the APC has introduced the settlement of a dispute before the court as a way to make the administrative court procedure more efficient. No such settlements in environmental matters were publicly announced.

Mediation is not frequently used in environmental matters. In some cases of public interest the Minister for Environment and Water initiated meetings for clarifying the parties’ positions.

XV. Being a Foreigner

The official language of procedure in Bulgaria is the Bulgarian language. Persons who do not speak and/or understand Bulgarian language are supposed to organize their defense in a manner so that their interests are not hampered. If a person wants to use another language, different from Bulgarian in the court procedure the court appoints a translator. This is valid for both the administrative and the civil court procedures. Translation is paid for by the party who needs it except when national law or international treaty provide otherwise, such as the Law on Asylum and Refugees. The State budget does not cover for translation in Environmental legislation.

The country of origin of a person does not influence in any way it’s rights, granted by national legislation or international treaties. Once a person is accepted as a party to a procedure the law guarantees that it can enjoy the same rights as the other parties to the same procedure.

XVI. Transboundary Cases

Bulgaria is a party to the Espoo Convention on EIA in a Transboundary Context. The national secondary legislation provides for rules for the implementation of the obligations of Bulgarian authorities that flow from the Espoo convention. When the Party of origin is another country, the Minister for Environment and Water (MOEW) is responsible authority for performing the tasks related to the Convention. The MOEW is the organ that declares the intention of Bulgaria as affected Party to participate or not to participate in an EIA procedure, carried out by the competent authority of the Party of origin. The MOEW is responsible for the flow of information from the Party of origin to the public concerned in Bulgaria so that the public can participate in the process of decision-making.

The notion of “public concerned” in transboundary context does not differ from the same notion in national context. The legal definition of “public concerned” was transposed into the national Bulgarian legislation from the Aarhus Convention on Access to Environmental Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (The Aarhus Convention for short). All neighbouring countries to BULGARIA, except Turkey are Parties to the Aarhus Convention. This ensures to a large extent an equal treatment of foreign citizens and NGOs before Bulgarian courts and vice versa.

When BULGARIA is country of origin it applies the same standard for granting standing to it’s nationals as to nationals from the other neighboring countries that are Parties to the Aarhus Convention as well. This stems from Article 3, paragraph 9 of the Aarhus Convention. The question whether NGOs and citizens from the affected country can request injunctive relief and interim measures is very interesting because it presupposes that the Bulgarian jurisprudence has a clear answer to the question whether Article 9, paragraph 4 of the Aarhus Convention can be directly implemented or not. This discussion has not taken place in Bulgariayet. In general the Bulgarian public does not have a choice regarding the competent courts of different countries in environmental matters. In administrative matters the rule is clear – the Bulgarian judiciary checks the legality of decisions taken by the Bulgaria authorities. In civil matters and especially in environmental liability there might be a choice with respect to the competent court, because usually in civil liability both the court where the damages occurred and the court of the seat of the defendant are competent to hear the case.

(1) For instance different judges/chambers of the Administrative Court are taking different stances as to the interest of an NGO of private interest to appeal an EIA decision.

Last update: 13/09/2016

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Access to justice in environmental matters - Czech Republic

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I. Constitutional Foundations

The Charter of Fundamental Rights, which forms a part of the Czech Constitution (hereinafter “Charter”), enshrines a right to live in a favorable environment and a right to timely and complete information about the environment in its Article 35. The Charter also grants a related right to protection of health. Further, it prescribes that by exercising his or her rights no one may endanger or cause damage to the environment, natural resources, biodiversity and cultural monuments “beyond the limits set by law”. Article 7 of the Czech Constitution states that the government shall be responsible for “thoughtful utilization of natural resources and for the protection of the environment”. According to Article 36 of the Charter, each person is entitled to enforce his or her rights at an independent court or, if the law determines so, at another public body. Anyone claiming that his or her rights have been infringed by a decision of an administrative authority is entitled to ask a court to review the legality of such a decision, unless the law states otherwise. Decisions relating to fundamental rights and freedoms, as defined by the Charter, cannot be excluded from the jurisdiction of the courts. People can invoke the constitutional right to live in a favorable environment in the administrative or judicial procedures. However, according to Article 41 of the Charter, this right can be claimed only within the scope of the laws implementing such rights. According to Article 10 of the Czech Constitution, the international agreements, approved by the Parliament and binding for the Czech Republic, shall constitute a part of the Czech legal order and shall be applied prior to national laws. The jurisprudence of the Czech courts added two more requirements for direct application of the international agreements: They must be “sufficiently specific” and “grant specific rights” to private persons. In most of their decisions, the Czech Courts came to the conclusion that the provisions of the Aarhus Convention are not “directly applicable”, as they are not “sufficiently specific”. On the other hand, in some of the decisions, the courts emphasized that national laws must be interpreted consistently with the international obligations arising out of the Convention.

II. Judiciary

Czech law belongs to the continental (civil law) legal system, which is based on codified laws adopted by the Parliament. The court decisions are not considered to be a formal source of law. However, case-law of the highest courts (namely the Constitutional Court) is often used for interpretation purposes and is respected by lower courts. The structure of civil and criminal courts consists of 4 levels in the Czech Republic. It contains

  • the District courts,
  • the Regional courts (including the City Court of Prague),
  • the High courts and
  • the Supreme Court.

The civil courts protect the private rights and decide civil matters regulated by Civil Procedure Code. The criminal courts decide on the guilt and punishment for the criminal offences, defined and procedurally regulated by the Criminal Code. The prosecutor has an exclusive right to start the procedure at the criminal court. The structure of administrative courts consists of 2 levels in the Czech Republic. It contains

  • the Regional courts (including the City Court of Prague) and
  • the Supreme Administrative Court.

The administrative courts protect the public individual rights in the procedure regulated by the Code of Administrative Justice. They review the decisions of the administrative authorities, including the decisions on administrative offences (torts).

The Constitutional Court of the Czech Republic is responsible for the protection of constitutionality, including protection of fundamental rights and freedoms granted by the Constitution and the Charter. The Constitutional Court has jurisdiction to annul laws if they are in conflict with the constitutional order. It also decides constitutional complaints against final decisions of public authorities in all branches of law that allegedly infringe the fundamental rights and basic freedoms. There are special administrative authorities which decide in environmental matters on the administrative level in the Czech Republic, e.g. the Czech Environmental Inspectorate. On the judicial level, there are no organs specialized for environmental protection. The ordinary civil and criminal courts deal with the disputes and crimes related to the environment. The decisions of the administrative authorities, concerning environment, are reviewed in the first instance by the departments of the Regional courts, specialized on administrative judiciary in general. The judgments of administrative courts can be re-examined by the Supreme Administrative Court, which is a specialized judicial authority in the area of administrative judiciary.

There is little space for so called “forum shopping” in the Czech Republic, as the subject-matter jurisdiction and the local jurisdiction of the individual courts are determined by law. In the administrative jurisdiction, any kind of “forum shopping” is impossible. In the civil cases, the plaintiff can sometimes try to influence which court will be dealing with the case at the first instance (and subsequently as the appeal court) by the means how the lawsuit is designated and the arguments presented. For example, the same case can be sued as a “neighbors action” (where a District court would decide at the first instance) or as an “action to protect the personality” (the Regional court would be the first instance court). It is, however, always up to the courts to decide which specific court has the jurisdiction, regardless of the title of the lawsuit. In the civil and criminal judicial procedures, the ordinary remedy to challenge the decision of the court of the first instance is an appeal. Regional courts deal with appeals against first-instance decisions of the District courts, while the High courts review the first-instance decisions of the Regional courts upon an appeal. The most important extraordinary remedy in both civil and criminal procedure is an “appellate review”, which is solely decided by the Supreme Court. Other extraordinary remedies are lawsuits asking for a new trial (in both civil and criminal judicial procedures), lawsuit asking to declare the decision to be void (in civil law cases) and the complaint, which can be filed in criminal cases by the minister of justice or the chief prosecutor at the Supreme Court. The remedy to challenge the decision of the courts of the first instance in administrative matters is filling the “cassation complaint” at the Supreme Administrative Court. The cassation complaint is considered to be an extraordinary remedy, as it does not postpone the legal force of the first instance decision. However, as for the frequency of using it and taking into account that the Supreme Administrative Court can change the contested decision, the cassation complaint has a character of an ordinary remedy. Another extraordinary remedy in some kinds of administrative judicial procedures is a lawsuit asking for a new trial.

The administrative courts generally only have jurisdiction to cancel the administrative decisions (power of cassation). There are however exemptions from this rule. When reviewing the decisions imposing administrative penalties (fines), the courts may, next to canceling the decision, also moderate the penalty. If the court is canceling the decision on refusing the information, it can also order the administrative authority to disclose the information. From the legal (legislative) point of view, there are no specificities of judicial procedures in environmental matters, except for the participatory and standing rights of the environmental organizations. From the factual point of view, a significant proportion of lawsuits filed by these organizations represent a specificity of the administrative judicial procedures in environmental matters. The civil judicial procedures, in which the plaintiff is asking the court to protect his or her rights infringed by interventions to the environment, are mostly difficult from the evidence point of view. It is similar for the criminal offences related to damaging of the environment. Next to that, the “environmental crimes” are described in the Criminal Code in a way, which causes a difficulty for the prosecutors to prove that all the required conditions for penalizing the offender were met.

There are no judicial procedures concerning environmental matters which the courts could start from their own motion (motu proprio). In administrative and criminal judicial procedures, the courts can act solely on the base of the lawsuit or other appropriate motion, never from their own initiative. The civil judicial procedure can be initiated by the court from its own motion under the occasions and in the cases expressly defined by law. The courts can start motu proprio e.g. procedures concerning care for children, detention of person in the medical facility, legal capacity of a person, declaration of a person to be dead, inheritance, existence or non-existence of marriage, etc.

III. Access to Information Cases

If a request for environmental information is refused (or partly refused), the person requesting the information can appeal against the decision to the superior administrative body. The same applies in case that the request for information remains without any answer or only a part of requested information is provided without any explanation. In such case, the law presumes that the decision on refusing the information was issued. If a superior administrative authority confirms the decision on refusing the information, it is possible to file a lawsuit against such decision to the administrative court. For a case where the answer is considered to be wrongful or inadequate, the only possibilities are to address the chief of the respective authority with a general complaint for maladministration or to repeat (specify) the request. The decision on refusing the information shall include information on the possibility of appeal to the superior administrative body. The decision of the superior authority, however, does not have to include information about the possibility to challenge it at the administrative court.

The request for environmental information can be made orally, in writing or in any technically available form. The request must not be anonymous and the information requested must be apparent. There are not any other specific formal requirements concerning the request. If the request is incomprehensible or too general, the requestor shall provide supplemental material and the request of the authority. The information shall be provided within the 30 days from its receipt or supplementing. This deadline can be extended, for serious reasons, on 60 days as maximum. The appeal against the decision on refusing the information must be submitted in writing within 15 days from receipt of the decision. If the decision does not include the information on appeal, the deadline for appeal is 90 days. The deadline for the lawsuit against the decision of the superior body is 2 months. There is no mandatory counsel in any stage of the procedure of requesting information and of seeking remedies against refusals

The courts shall have access to information the accessibility of which is disputed before them upon a lawsuit. If the respective authority does not provide the court such information on its own accord, the court can order the authority to do so.

According to the “general” Freedom of the Information Act, the courts can order the authority to disclose the information required. Such provision is, however, not contained in the Act on the Right to Access to Environmental Information, which shall apply preferentially with respect to requests for environmental information. It is therefore not clear if the courts can order also the environmental information to be disclosed. In practice, they have done so in some cases.

IV. Access to Justice in Public Participation

For most investments with environmental impacts, the investor needs to receive a number of separate permits. The Czech system of administrative procedures in environmental matters (of environmental permitting) is therefore considerably fragmented. The most frequent permits are issued according to

  • Act Number 183/2006 Coll. Building Act (land use permit being mostly the “main” or “principal” decision on the possibility to carry on the project),
  • Act Number 114/1992 Coll., Nature Protection Act,
  • Act Number 254/2001 Coll., Water Protection Act,
  • Act Number 86/2002 Coll., Air Protection Act,
  • Act Number 76/2002 Coll., IPPC Act,
  • Act Number 44/1988 Coll., Mining Act,
  • Act Number 258/2001 Coll., Public Health Protection Act,
  • Act Number 18/1997 Nuclear Act.

Even in cases where the “integrated permit“ is issued according to the 76/2002 Coll., IPPC Act, it integrates only part of the specific permits, required by the above mentioned acts, and the other are still issued separately.

The EIA procedure (regulated by Act Number 100/2001 Coll., on Environmental Impact Assessment) is not an integral part of environmental development consent (permitting) procedures in the Czech legal system. It represents a separate process finalized by issuing an “EIA statement”. This “EIA statement” does not have the character of a binding permit (development consent). It is an obligatory base for subsequent decisions (permits), which must be reflected (but not necessarily respected) in such decisions. These characteristics of the system of administrative procedures in environmental matters also influence the rules regulating the possibility of public participation. In the individual procedures

  • either the general definition of the party according to the Administrative Procedure Code (based on the principle of “affected legal interests”)applies, or
  • there is a specific definition of parties (e.g. the affected landowners in the procedures according to the Building Code).

Next to that, there are a number of special provisions allowing environmental organizations to participate in the administrative procedures concerning the environment. From these provisions, the most frequently used is article 70 of the Act Number 114/1992 Coll., Nature Protection Act. The provision of the EIA Act (Article 23 paragraph 9), according to which the environmental organizations who actively participated in the EIA procedure are entitled to act as parties of the subsequent permitting procedures, is used less often in practice.

As a general principle of Czech administrative law, it is possible to file an appeal against administrative decisions to a superior administrative body. This principle always applies except in rare cases of acts that are not issued in the regular form of an administrative decision (e.g. the “certificates of the authorized inspectors, which, under some conditions, can substitute the building permits). There is also no appeal against so called “measures of general nature”. As a regular principle, the appeal to a superior administrative body must be exhausted before the administrative decision can be reviewed by the court. First instance administrative decisions cannot be taken to court directly. “Irregular” acts against which there is no possibility of administrative appeal, but which must be subject to judicial review if they can infringe someone’s rights or duties are one exception. Second, the “measures of general nature” can be taken to the court directly after they are issued. Last, a specific exception is a possibility to file a “lawsuit in the public interest” against the first instance administrative decision under specific conditions defined by law. Similarly, the ordinary administrative remedies, if available, must be exhausted before taking a case to administrative court also in cases of omissions (illegal inaction) of the administrative authorities or in cases of other “illegal interventions” of the administrative authorities. The extraordinary administrative remedies do not have to be exhausted before taking a case to court.

Generally, the administrative courts shall review both the substantive and procedural legality of administrative decisions subject to an administrative lawsuit. Infringement of the procedural provisions concerning the administrative procedure is a reason for canceling the contested decision, if it is likely that it could cause the substantive illegality of the decision in question. The decision of the court shall be based on the facts as they were in time when the administrative decision was issued. Normally, the courts take the materials gathered in the administrative procedure as a basis of their decisions. They are however entitled, if the parties to the court procedure suggest so, review the accuracy of such materials, repeat or amend the evidence considered in the administrative procedure. The court shall always review if the administrative authorities did not misuse exceed the scope of their discretionary powers. The scope of the court review of the administrative decisions is in practice limited by the doctrine of infringement of rights, which forms a basis for regulation of legal standing in administrative judicial procedures and influences also which arguments of individual plaintiffs are considered as admissible. This especially concerns the lawsuits of the environmental organizations. These organizations, according to the prevailing case law of the Czech courts, can claim only infringement of their procedural rights in the administrative procedures, not the substantive legality of the administrative decisions as such.

According to the Building Code, the land use plans and zoning plans are issued in the form of so called “measures of a general nature” and there is a special way in which they may be challenged. Measure of a general nature” is defined by law as binding act, which is not a piece of low neither the decision. Also some acts according to other environmental laws, e.g. rules for visiting of the national parks according to the Nature Protection Act or plans for river basins according to the Water Protection Act are issued in this form and therefore subject to judicial review. According to the law, persons who assert that their rights have been infringed by issuing of the measure of a general nature have standing to sue the measure at court. The Supreme Administrative Court has, however, developed a restrictive jurisprudence, according to which only the right in rem, i.e. the rights related to the ownership of real estate, can be infringed by issuing a measure of a general nature (namely the land use plan). Accordingly, only the affected landowners are considered to have standing to sue the measures of a general nature. The Supreme Administrative Court also repeatedly ruled that the environmental organizations do not have standing to sue the land use plans (despite they were granted standing to sue rules for visiting of the national parks. Until the end of 2011, the Supreme Administrative Court had the sole jurisdiction to review measures of a general nature without any further remedy. Since 2012, the Regional courts have this jurisdiction and it is possible to file a cassation complaint against their decision. The main rules of evidence are similar to the administrative judiciary in general:

  • the courts shall review both the substantive and procedural legality of the measures of a general nature,
  • in the scope of the arguments presented in the lawsuit and of the infringement of the affected rights of the plaintiff,
  • the courts are entitled, upon the suggestion of parties, to review or amend the evidence considered in the procedure of issuing the measure.

Hearings take place more often in this kind of administrative judicial procedure than in other ones.

EIA Procedures:

The EIA procedure is not an integral part of development consent (permitting) procedures in the Czech legal system; the permitting relies on a separate process, which has following main characteristics:

  • the EIA procedure as such is fully open to the public,
  • the EIA report (documentation) is accessible and everyone is entitled to make comments to it in the given time limits,
  • the “EIA statement” must exist before further decisions (permits) are issued, but does not have to be respected (it must only be “taken into account)”,
  • the process is finalized by issuing an “EIA statement”, which does not have the character of a binding permit (development consent), but is considered to be an “expert opinion” (though it is issued by the Ministry of Environment or the regional administrative authority).

Consequently, according to the jurisprudence of the Czech courts, neither the EIA screening and scoping decisions (which are united in one according to the Czech EIA Act) nor the final “EIA statement” can be reviewed by courts “independently” or “directly”. As the Supreme Administrative Courts has ruled, they shall be subject to judicial review only together with (or in the scope of) the subsequent permit or permits, e.g. with the land use permit, permits issued according to the Nature Protection Act, Water Protection Act, Mining act etc. Following this approach, it is necessary to consider the permits issued according to the specific laws for project which was subject to EIA as the “EIA decisions” (“development consents” in the sense of the EIA directive). These decisions can be reviewed by courts under the general conditions of reviewing the administrative decisions. Standing to sue is granted to:

a) persons who assert that their rights have been infringed by the decision which “creates, changes, nullifies or authoritatively determines their rights or duties” and

b) other parties to administrative proceedings for issuing the administrative decision, who assert that their rights have been infringed in these proceedings and this could cause illegality of the decision (standing to sue for the environmental organizations is derived from this provision)

Next to that, according to a recent amendment of the EIA Act (adopted in December 2009) environmental organizations which submitted comments in the EIA process, have standing to sue the development consent decision approving a project, for which the EIA statement had been issued before. Environmental organizations also have standing in cases that they did not participate in the administrative procedure for the development consent. This special provision, however, does not make it possible to sue under the EIA screening and scoping decision or the EIA statement directly. It has also not been used in practice so far, as the participating environmental organizations may use the general standing rules. It follows that there are more “ways” namely for the environmental organizations, to get standing to sue the development consents for the project subject to EIA before the court:

a) If an environmental organization makes comments to the EIA report (documentation) within the time limits for the public consultation in the EIA procedure, it can either get status of the party to the subsequent development consent procedure (and then, as such party, file a lawsuit against the final development consent), or, theoretically, file the lawsuit against such decision also without acting as a party of the administrative procedure.

b) However, environmental organizations can get status of the party to the development consent procedure (regardless if the project is subject to EIA or not) also according to provisions of some other laws; from which article 70 of the Nature Protection Act is the most frequently used.

For an individual, participating in the EIA procedure is neither necessary, nor does it grant any special rights with respect to participating in the subsequent administrative procedures nor the access to courts. For both of these possibilities, it is necessary to be directly affected by the development consent in ones rights (if the special law does not require even stricter conditions).

The Regional courts are the forum to challenge all administrative decisions, including the development consents issued subsequent to the EIA procedure (with the possibility to file a cassation complaint against their decision to the Supreme Administrative Court. Hearings do not take place if the courts refuse the lawsuit as inadmissible, or if they cancel the development consents for procedural mistakes or for being insufficiently justified (unverifiable). Next to that, the court usually asks the parties if they agree with deciding the case without a hearing, and in many (probably majority) of cases, the parties agree with it. The courts shall review both the substantive and procedural legality of the development consents. The rules of evidence are the same as in the administrative judiciary in general. The courts are entitled, upon the suggestion of parties, to review or amend the evidence considered in the administrative procedure. Together with the final development consent, also the substantive and procedural legality of the EIA statement and/or EIA screening and scoping decision shall be reviewed. Theoretically, the court shall, upon suggestion of the plaintiff, also verify materials and technical findings, on which the EIA statement and subsequently the development consent is based, to ensure there is not a clear conflict between these findings and the conclusions and reasoning of the administrative authorities. In practice, however, the courts are often reluctant to do so, namely in case of the lawsuits of the environmental organizations. In cases of the court review of the development consents for the projects that are subject to EIA, general conditions for injunctive relief apply. For example, the plaintiff asking for injunctive relief must prove that

  • executing the decision would cause him/her a harm “incomparably more serious” that which could be caused to other persons by granting the injunctive relief (compared with the condition that the plaintiff must show “irreparable harm,” in place until the end of 2011) and
  • issuing injunctive relief would not be contrary to an important public interest.

The only special rule is applicable for the lawsuit of the environmental organization, which would be filed against the development consent according to the special provision of the EIA Act (without previous participation of the organization in the administrative procedure). For this kind of lawsuit, the injunctive relief (in the form of suspensive effect with respect to the development consent) is not available.

IPPC Procedures:

Courts can review final IPPC decisions (integrated permits), issued according to the Act Number 76/2002 Coll. IPPC Act, under the general conditions for judicial review of the administrative acts. Standing to sue the IPPC decisions (“integrated permits”) is therefore granted to

a) persons who assert that their rights have been infringed by the IPPC decision which “creates, changes, nullifies or authoritatively determines their rights or duties” and

b) other parties to administrative proceedings for issuing the IPPC decision, who assert that their rights have been infringed in these proceedings and this could cause illegality of the decision (standing to sue for the environmental organizations is derived from this provision)

The environmental organizations have standing to sue the IPPC decision if meeting the conditions sub b), i.e. if it was a party of the IPPC administrative proceedings (finished by issuing the IPPC permit). To get the position of a party of such proceeding, the organization has to announce to the competent administrative body that it wants to participate in the proceeding in the time limit of 8 days from publishing the information about the request for the IPPC decision at the public notice. Also, an environmental organization that submitted comments in the EIA process, preceding the IPPC proceedings could probably sue the IPPC decision even if the organization would not participate in such proceeding. There is, however, no case law proving this. From the formal point of view, it is not necessary to participate actively in the public consultation phase of the IPPC procedure, in order to have standing to sue the IPPC decision before the courts. If an individual or an environmental organization meets the criteria for being a party of the IPPC administrative proceedings, it can file an administrative appeal against the IPPC decision and consequently have standing to sue the final decision, even if not being active in the IPPC administrative procedure. However, if the party is not active, it has lower chances to be successful with the appeal and/or the lawsuit, as it is harder for the party to claim that its rights were infringed in the procedure and in the issuance of the IPPC decision.

The Regional courts are the fora to challenge the IPPC decisions (with the possibility to file a cassation complaint against their decision to the Supreme Administrative Court. Hearings do not take place if the courts refuse the lawsuit as inadmissible, or if they cancel the development consents for procedural mistakes or for being insufficiently justified (unverifiable). Next to that, the court usually asks the parties if they agree with deciding the case without a hearing, and in many cases, the parties agree. The courts shall review both the substantive and procedural legality of the IPPC decisions. The rules of evidence are the same as in the administrative judiciary in general. The courts are entitled, upon the suggestion of parties, to review or amend the evidence considered in the IPPC administrative procedure. Theoretically, the court shall, upon suggestion of the plaintiff, also verify materials and technical findings, on which the IPPC decision is based, at least to the extent if there is not a clear conflict between these findings and the conclusions and reasoning of the IPPC decision. In practice, however, the courts are often reluctant to do so, namely in case of the lawsuits of the environmental organizations. In cases where the court reviews IPPC decisions, general conditions for injunctive relief apply. The plaintiff asking for injunctive relief must prove that

  • executing the decision would cause him/her a harm “incomparably more serious” that which could be caused to other persons by granting the injunctive relief (till the end of 2011, there was a condition of “irreparable harm”) and
  • issuing injunctive relief would not be contrary to and important public interest.

V. Access to Justice against Acts or Omissions

Claims against private individuals or legal entities can be submitted directly to the civil courts (within the scope of civil judiciary) in all matters concerning private rights and duties, including those which relate to the protection of the constitutional right for favorable environment. People can invoke this constitutional right only within the scope of the laws implementing such rights. It means that also in the claims submitted to the civil courts against private individuals or legal entities, the plaintiff has to claim and prove that a specific duty determined by law was breached by the defendant and that the rights of the plaintiff were infringed by that means. The typical claims against private individuals or legal entities, concerning environmental matters (a right for favorable environment) include

  • “neighbors’ actions”, by which the plaintiff is asking the court to order the defendant to stop annoying the neighbors “beyond proportionate degree” or “seriously threaten their rights” (e.g. by noise, emissions, etc.). The court can only order the defendant to stop the illegal activity in such cases, without further specifications how to meet this goal.
  • “actions for protection of the personality and/or privacy”, by which the plaintiff asks for protection against illegal interference into his or her private sphere (personality), which includes also the body, health and quality of the environment. The claim can aim for termination of the illegal interventions into the private sphere, removing of the results of such interventions, of for appropriate satisfaction
  • action asking for monetary compensations for the damage of the environment, which caused also a monetary loss for the plaintiff
  • “preventive action”, by which the plaintiff is asking the court to order the defendant to take measures for preventing a damage on (e.g.) the natural environment.

It is generally not possible to submit claims against private individuals or legal entities directly to the administrative court. An exception is a situation when an individual or legal entity acts as an administrative body (e.g. if an authorized inspector issues the certificate, which, under some conditions, can substitute the building permit). It is also not possible to submit claims against private individuals or legal entities directly to the criminal courts.

If a state body acts as a representative of the state in the private law area (commercial activities etc.), the same kind of claims can be submitted to the civil courts against the state, as against private individuals or legal entities. In the area of administrative judiciary, the lawsuits against the decisions of the state bodies (administrative authorities) in environmental matters can be filed under certain conditions. As a general rule, it is only possible to ask the court to cancel the decision, with a few exceptions (moderation of administrative penalties, order to disclose the information). Further, a person who has exhausted the administrative measures for the protection against illegal omission (inaction) of an administrative authority, which infringes his or her rights, can ask the court to order the administrative authority “to issue a decision on the merits of the matter.” There is, however, a significant “gap” in this regulation (as interpreted by the Czech administrative courts), which leads to the conclusion that it is not possible to ask court to order the authority to start the procedure itself (ex officio), when it is obliged by law to do so (for example, if there is a project built or operated without the necessary permits). The courts repeatedly refused the lawsuits of affected neighbors in such cases. There is also no regulation concerning standing of the environmental organizations to sue administrative authorities in case of illegal omissions. It could be possible to use another kind of administrative action – so called “action against other illegal interventions of the administrative authorities” – in such cases. The legislative regulation of this kind of action has changed since 2012. According to the current wording, anyone asserting that his or her rights were infringed by “illegal intervention, instruction or enforcement” by the administrative authority can ask the court to prohibit the authority from continuing with the intervention, to order the authority to remove the results of such intervention, or just to declare that it was illegal.

There are two principal competent authorities in the field of ecological liability: The Czech Environmental Inspectorate and the Ministry of the Environment. The Ministry of the Environment exercises the competencies of the central administrative body in the whole segment of environmental protection, including environmental damage; the Inspectorate accepts the submissions and request for actions and is empowered to impose preventive or remedial measures relating to environmental damage and penalties. The procedure on imposing preventive or remedial measures relating to environmental damage may be initiated ex officio by the Inspectorate or upon request. Such request may, however, only be filed by persons affected or likely to be affected by environmental damage (such as landowners); environmental organizations are generally not regarded as affected even if protecting the environment. Environmental organizations and the general public may only file a written submission asking the Inspectorate to initiate the procedure ex officio; nevertheless, it is up to the Inspectorate to decide whether to start the procedure or not.

Parties to the proceedings concerning environmental liability matters may file the lawsuit to the administrative courts once the administrative decision is final. That means that the ordinary administrative remedy, an appeal to the Ministry of Environment, must be exhausted first. Environmental organizations, though they may not initiate the proceedings themselves, may become the party to the procedure initiated by the Inspectorate on the grounds of the Nature Protection Act. In such cases, they may also file the lawsuit against the decision of the Inspectorate. Persons whose rights have been infringed as a result of the administrative decision may also file a lawsuit. In cases where there would be no request for action and the Inspectorate would fail even to start the procedure ex officio, the environmental organizations or anybody from the general public may ask the Ministry for a remedy. However, if the Ministry itself fails to do so, the courts cannot order the passive authority to act (to start the procedure) and it is not possible to enforce environmental liability through the administrative procedure. It is nevertheless possible to enforce environmental liability through private claims. There may be yet another type of the enforcement of environmental liability which is the situation where the decision on preventive or remedial measures is issued but not respected. Pursuant to the Czech legislation, it is generally up to the administrative body that made a decision imposing non-financial duties (such as the decision imposing preventive or remedial measures concerning the environmental damage) to enforce it. To ensure that such decision is respected and the duties imposed are fulfilled. In case the decision is not respected, the competent authority may either impose fines upon the person obliged or ensure that another fulfills the duties imposed at the expense of the person obliged. Besides, a person empowered by the decision may enforce the decision imposing non-financial duties (i.e. the person obliged should act or refrain from action on behalf of the person empowered). The latter would be applicable in situations where the environmental damage would affect the estate of somebody else than the person liable.

VI. Other Means of Access to Justice

Apart from participation in administrative procedures and challenging the decisions at administrative courts, there are several other remedies that may be used by both the parties to administrative procedures and general public. Namely:

  • submissions to competent authorities to initiate procedure ex officio, including submissions to take measures against inaction of subordinated authority,
  • extraordinary administrative remedies (i.e. administrative review of decisions in force, new procedure (retrial)),
  • submissions to the ombudsperson, criminal notification to police or public prosecution, and submissions to the public prosecutor and ombudsperson to file actio popularis.

However, these remedies are – in general – rather weak. They do not formally initiate any procedures. It is up to the competent authorities to decide whether to start the procedure or not while the submitter has only the right to be informed of the follow-up of his submission.

There is one general ombudsperson in the Czech Republic who deals with all cases where administrative bodies act or omit to act in breach of law, principles of democratic state of law or principles of good administration; this also covers environmental cases. The ombudsperson may initiate its inquiry ex officio. Further, everybody may approach the ombudsperson with the submission (specific conditions are set forth as to when the ombudsperson may decide not to deal with the submission, e.g. the violation is older than 1 year). However, even If the ombudsperson concludes that the administrative authority has violated the law, he/she may only recommend to the authority to take corrective measures, not impose it. If not respected, ombudsperson may contact superior authority or government and inform the general public.

It is not possible for anyone to bring a private criminal lawsuit. All crimes are prosecuted by the state (represented by the public prosecutors), Anybody may, however, notify the prosecuting authorities (police or the public prosecution) if he or she has suspicion of committing a crime; afterwards, he or she may be only informed about the follow-up of such notification. Aggrieved persons (persons who have suffered injury, property loss, or moral or other damage as a result of the committed crime) have procedural rights and may have influence on the criminal procedure (e.g. may file a complaint against cessation of criminal prosecuting).

Both the ombudsperson and the Chief public prosecutor may file the “lawsuit in the public interest” against any administrative decision, if they “find” (the Chief public prosecutor) or “prove” (the ombudsperson) an important public interest to do so.

The main complaint-handling mechanisms, concerning inappropriate administrative actions, administrative inactions or omissions, can be summarized as follows:

  • a submission to the ombudsperson
  • a lawsuit against inaction (it is available only in cases where the administrative procedure is running but the authority refuses to issue a decision)
  • complaint about inappropriate behavior of officer or course of actions of the administrative body (however, such complaint is handled primarily by the same authority which is complained about – only in case it was not dealt with properly, it is possible to approach the superior administrative body),
  • in the most serious cases, notifying the prosecuting authorities (police or the public prosecution)
There are no other institutions or bodies that have competence in providing access to justice in environmental matters, apart from those described above. i.e.:
  • the administrative authorities which are responsible for the public administration concerning specific environmental or environmentally related areas,
  • courts,
  • the ombudsperson and
  • public prosecution.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

“rights possibly directly affected”

impairment of right

NGOs

protection of public interests

impairment of right / protection of public interests (special lawsuit according to the EIA Act)

Other legal entities (including municipalities)

“rights possibly directly affected”

impairment of right

Ad hoc groups

only EIA consultation procedure and land use plans adoption – open for anyone to make comments

no possibility

foreign NGOs

impairment of right

Any other (organizations of employers and business chambers – IPPC procedure, Chief public prosecutor and ombudsperson – public interest lawsuit)

“rights possibly directly affected”

impairment of right / protection of public interests (Chief public prosecutor and ombudsperson)

In the administrative proceedings, the basic rule for “standing” (right to have a position of the party), is the concept of one’s “rights or duties being possibly directly affected” by the decision. This concept is generally expressed in the Article 27 of the Act Number 500/2004 Coll., Administrative Code, according to which, persons “whose rights or duties can be directly affected by the administrative decision” are considered as parties to the administrative procedures (next to the persons who submitted request for a permit (applicants), persons whom the decision shall create, abolish or alter their rights and duties and persons to whom a position of party is stipulated by a special act). This general rule is modified by some sectoral acts:

a) For the environmental protection, the most important one is the Act Number 183/2006 Coll., Building Act. This act includes autonomous definitions of parties of the administrative proceedings for issuing the land use and building permits. According to these definitions, only the individuals and legal entities whose property rights or another rights in rem to can be directly affected by the permit have a status of party of the proceedings.

b) Similar is the regulation of parties of the administrative procedures according to the Act Number 44/1988 Coll. Mining Act.

c) In some other procedures, related to the environment, the applicant is the only person with the rights of party. Such situation exists for example with regard to the “noise exceptions” – decisions which authorize an operator of a source of noise which is exceeding the maximum limits to continue with the operations for a limited period of time (with possibility of repeated prolongation). Other examples are the permits issued according to the Act Number 18/1997 Coll., Nuclear Act.

d) On the other hand, the EIA consultation procedures (which are not finished by a binding permit) and procedures of adopting land use plans are open for anyone to make comments; these are also the only procedures in which the ad hoc groups can participate.

The environmental organizations can get a status of the party to the environmental administrative proceedings according to a number of specific acts; including the Nature Protection Act, EIA Act, IPPC Act, Water Protection Act, and some others. The environmental organizations meeting the requirements of these acts shall have right to be parties to all proceedings in which interests protected by these acts are influenced (namely in the proceedings according to the Building Act). It is confirmed by the jurisprudence, that the reason for this possibility is that it should be made possible for the organizations to promote public interest on the protection of the environment and its specific components in the position of party. However, neither the environmental organizations can become parties in cases that the law explicitly states that the applicant is the only party to the proceedings.

The municipalities have right to be parties of administrative proceedings according to the same principles as other legal entities (upon the concept of “rights possibly directly affected”). In the IPPC procedure, the organizations of employers and business chambers can get a status of party under similar conditions as environmental organizations; they are however considered to defend their interests and interests of their members. At the level of the judicial procedures, the utterly prevailing concept for standing for all categories of subjects is the concept of impairment of right. The general standing provision for administrative judiciary (Article 65 of Act Number 150/2002 Coll., Code of the Administrative Judiciary), states that standing to sue the administrative decisions is granted to

a) persons who assert that their rights have been infringed by the decision which “creates, changes, nullifies or authoritatively determines their rights or duties” and

b) other parties to administrative proceedings for issuing the administrative decision, who assert that their rights have been infringed in these proceedings and this could cause illegality of the decision (standing to sue for the environmental organizations is derived from this provision).

In most cases, standing to sue in judicial procedure is closely related to the status of a party to the relevant administrative procedure. Therefore, except the few possibilities of so called “public interest lawsuits”, there is no special regulation for standing rights for a specific legal area or actors. At the same time, the scope of subjects with standing in the given area is strongly influenced by the scope of parties of the relevant administrative procedures. For example, as only the “neighbors” (persons whose property rights are affected) are parties to administrative procedures according to the Building Act (next to the investor, municipality and possibly the NGOs), only these persons can also have standing to sue a final decision issued according to the Building Act. In cases where the applicant is the only party to the administrative proceedings, it is also only the applicant who has standing to sue the decision at court. The environmental organizations, according to the prevailing case law of the Czech courts, can claim only infringement of their procedural rights in the administrative procedures, not the substantive legality of the administrative decisions as such. It is the consequence of strict application of the concept of impairment of right on their lawsuit; despite the reason for their participation in the administrative proceedings is protection of the public interest, it means that the organizations can ask the court to review the following:

  • if they could see all the documents related to the environmental permit,
  • if they had enough time to study them and express their opinion,
  • if they were invited to the public hearing, etc.

However, if the doctrine is interpreted strictly, they cannot claim that the decision breaches the requirements of environmental laws (e.g. limits of emissions or provisions prohibiting some activities in protected areas), as this is not related to any of their “personal rights”. This approach is further supported by the case law of the Constitutional Court, according to which legal entities, including environmental organizations, cannot claim a right for a favorable environment, as it can “self-evidently” belong only to the individuals. On the other hand, there are also decisions in which the courts have, de facto, dealt with the “substantive” objections of the NGOs.

There is no actio popularis (in the sense of standing of anyone to sue some kind of decisions) in any area of law in the Czech Republic. The Code of Administrative Judiciary contains a provision according to which a “lawsuit in the public interest” can be filed by

  • the Chief public prosecutor
  • the ombudsperson
  • other public authority entitled to do so by a special law
  • a person explicitly entitled to do so by a special law

The Chief public prosecutor and the ombudsperson can file the “lawsuit in the public interest” against any administrative decision, if they “find” (the Chief public prosecutor) or “prove” (the ombudsperson) an important public interest to do so. There is no piece of legislation giving the right to file a lawsuit in the public interest, or any other kind of administrative lawsuit, to any other public authority. As for other persons, the only specific kind of standing for a “lawsuit in the public interest”, existing in the Czech law (since December 2009) is contained in the EIA Act. According to Article 23 paragraph 10 of this act, environmental organizations or municipalities, which submitted comments in the EIA process, have standing to sue the development consent approving a project, for which the relevant EIA statement had been issued. If they choose to file a lawsuit according to this provision, it is not necessary for them to participate in the administrative procedure for the development consent as parties. Theoretically, the concept of impairment of right shall not apply also in this case and the environmental organizations should with no doubt have a right to challenge also the substantive legality of the contested decision. On the other hand, if this kind of lawsuit would be filed, injunction relief would not be available. In practice, there have still been no attempts to use this opportunity.

So far, environmental organizations have most frequently used the provision of the Nature Protection Act and, only as the second and third respective options, the provisions of EIA and IPPC acts. As already described above, there are more “ways”, namely for the environmental organizations, how to become a party to the administrative proceedings, and by that means (indirectly) also to get standing to sue the administrative decisions in environmental matters at courts. The individuals mostly derive their standing from the position of “directly affected neighbor” (with respect to the decisions issued according to the Building Act) or “person whose rights or duties are possibly directly affected” with respect to most of the other decisions.

VIII. Legal Representation

Legal representation by an attorney is compulsory in the judicial procedures before the Supreme Administrative Court, the Supreme Court and the Constitutional Court, regardless of the nature of the case heard, including environmental cases. Natural persons who themselves have legal education corresponding with the education necessary to become an attorney or legal persons whose employee or member has such education do not have to be legally represented by another counsel except in the Constitutional Court. Before other courts, legal counsel (representation) is not compulsory. Anybody may choose to be legally represented by attorney or any other person capable of legal acts. Therefore, it is possible also for non-governmental environmental organizations to represent parties in environmental cases. However, courts may prohibit the representative from representing in case that he or she represents in different cases repeatedly (this relates only to judicial procedures, not administrative). There are several counseling legal centers run by the non-governmental environmental organizations in the Czech Republic. These centers provide for free legal help to anybody who approach them in environmental matters. They generally offers their clients explanation of legal provisions concerning their query, suggest solutions, comment their submissions or advice legal procedures. The Czech Bar Association publishes and updates the list of all attorneys on the internet, including their specialization. However, there are not many who focus on environmental law.

IX. Evidence

In environmental administrative matters, the vast majority of cases are decided merely on the base of the administrative files and eventually other official documents. Each of the parties may, however, introduce evidence to support the lawsuit. In the civil cases it is absolutely necessary to bring enough evidence to support the lawsuit. Generally, it is the claimant who bears the burden of proof; either s/he proves that his claims are justified or s/he loses the case. Evidence is evaluated by the court in line with the principal of independent assessment of all evidence. The court is not bound by any regulation as to what evidence should be given priority or higher plausibility etc.; it is up to the court to carefully evaluate all the evidence. In the decision on the merits, the court has to thoroughly reason which evidence the decision is based on, which evidence was taken into account, which was given priority and why. If not, the decision is likely to be cancelled by the superior court. All parties may introduce evidence to support their claims. However, the court does not have to reflect all the proposals. In such a case, in the decision on the merits the court has to reason why the evidence was not performed. It is not up to the courts to provide evidence; generally, the courts only request the expert opinions if necessary for to decide on the merits. Nevertheless, it is possible for the court to indicate to one of the parties that as it seems not to be able to bear the burden of proof, it should present some further evidence, or it is likely to lose the case. Further, on the request of one of the parties, the court may request the evidence from the other party or even third persons. The parties themselves may introduce expert opinions that have the same weight and plausibility as the expert opinion requested by the court. The parties may choose the expert from the official list of experts, ask him to make the opinion, and pay for his services. In a case where each party introduces its own expert opinion and they are contradictory, the court shall request another expert opinion. The expert opinions are not formally binding on judges. However, in the vast majority of cases, the court will respect them. If there is a doubt concerning the plausibility or quality of the expert opinion, the court shall ask another expert to review the preceding expert opinion.

X. Injunctive Relief

An appeal to a superior administrative body has a suspensive effect. Only in rare cases, and generally not in the environmental matters, the appeal does not have a suspensive effect and may be preliminarily executed. The submission of a lawsuit against a decision of an administrative authority generally does not have a suspensive effect. The court may, however, grant it in accordance with Article 73 paragraph 2 of the Code of Administrative Judiciary at the request of the claimant, but only under following conditions

  • executing the decision would cause the applicant a harm “incomparably more serious” than that which could be caused to other persons by granting the injunctive relief
  • issuing injunctive relief would not be contrary to an important public interest.

Once the superior administrative body approves the decision, it may be executed regardless the lawsuit filed against it. Only at the time the court grants a suspensive effect to the lawsuit or issues a preliminary injunction, a person empowered by the decision must stop its execution. Apart from granting a suspensive effect to the lawsuit, the administrative courts may further issue a preliminary injunction on the grounds of Article 38 of the Code of Administrative Judiciary in case there is a need of an interim arrangement of the relation between the parties. There must be a threat of a “serious” harm, and it is not necessary that it is the claimant personally who is under this threat. The court may order to the parties of the dispute, or even to third person, to make something, abstain from something or endure something. Nevertheless, it is very rare for administrative courts to issue preliminary injunctions. In civil cases this happens much more often. In civil court procedures, the court may, at the request of a party, impose injunctive relief “if it is necessary to provisionally amend the conditions of the parties, or if there is a risk that the enforcement of the (subsequent) court decision could be threatened” (Article 74 of the Code of Civil Judiciary). The court may apply injunctive relief to forbid the handling of things, laws, or particular transactions.

In administrative cases, there is no time limit in which the request for a suspensive effect or preliminary injunction has to be filed once the deadline for filing the lawsuit is respected. In civil cases, it is possible to ask for the preliminary injunction first and file the lawsuit in some period afterwards. In administrative matters, it is not possible to appeal to the Supreme Administrative Court against interim decisions which are also the decision on suspensive effect or preliminary injunction. The court may reconsider its decision on suspensive effect or preliminary injunction at any time and it is hence possible to file a request for such reconsideration. In civil cases¸ it is always possible to appeal the decision on the preliminary injunction to the superior court; however, the appeal does not have a suspensive effect.

XI. Costs

Generally, no costs are connected with the participation in administrative procedures in environmental matters; only the judicial stage is charged. There are costs connected directly with the applicant’s actions towards the courts, namely:

  • fee to start judicial procedure
  • fee for an appeal or cassation complaint,
  • fee for a request for a suspensive effect or injunction relief.

All of these fees must be paid by the applicant/appellant. Further, there are costs of persons different from the court such as experts, interpreters, witnesses etc., and the cost of parties to the procedure themselves.

The court fees for individual kinds of administrative lawsuits are based on a flat rate regardless of the value of the case. A fee for a lawsuit to review an administrative decision is 3000 CZK (around 125 EUR); the same fee applies for a cassation complaint. Fee for a lawsuit against a land use plan is 5000 CZK (around 200 EUR). If a remedy is requested in the civil court action, such as claims for damages connected to environmental pollution or devastation, the system of calculating the fees is generally based on value of the case. This principle applies when the claim is pecuniary; there are specific rules for calculating fees in disputes involving non-pecuniary claims. Fee for a cassation complaint is 5000 CZK (around 200 EUR). The fee for an appeal in civil cases is the same as for the lawsuit in the same case. Costs of expert opinions may vary; the cost can be from EUR 100 to 4500. However, the vast majority of administrative cases are decided on the basis of the administrative files and, eventually, other official documents. On the other hand, in civil cases it is necessary to bring enough evidence to support the lawsuit, hence, the expert opinions are often necessary. For example, in cases in which the plaintiffs ask courts to order the owners of the roads to take measures to reduce the noise caused by the traffic and exceeding the noise limits, the costs of the expertise (assessment) may vary between EUR 1900 and 4200. Theoretically, in some other cases such as cases dealing with chemical pollution of the land, the costs for the expertise may be much higher.

The fees of attorneys may also vary distinctively. Typically, there is the hourly fee which is agreed with the client and may range from EUR 20 to 200; however, there are also other possibilities of determining fee such as fee for the complete representation or fee calculated on the grounds of the tariff of attorneys (legally binding by-law). Since 1st September 2011, a fee of 1000 CZK (around 40 EUR) has been implemented for a request for injunctive relief in the administrative cases (which had been free of charge before); however, no deposit to cover any compensation is required. On the other hand, in the civil matters anyone requesting a court to impose an injunctive relief is obliged to pay a deposit of 10000 CZK (approximately 360 Euro) to cover any compensation for damage or other loss which could be caused by the injunctive relief; a fee of 1000 CZK (around 40 EUR) is obligatory as well.

The loser pays principle applies as a general rule: the losing party is obliged to pay for the cost of the successful party as well as the cost of expert opinions and testimonies. The latter is, however, rare in the administrative judiciary, as the courts mostly base their decisions on the administrative files and evidence gathered thereto. In addition, there is a fixed case law of administrative courts, that the costs of the legal representation are not eligible costs for the administrative authority, as they shall have their own employees – lawyers, who can represent them at the dispute. Also, under special circumstances (it depends on the consideration of the court) the court may decide that each party has to bear its own costs.

XII. Financial Assistance Mechanisms

The courts, in both civil and administrative judiciary, can mitigate the costs of the proceedings by granting the waiver of the court fees when the applicant proves the need for waiver. This possibility is applicable at all instances of the proceedings, including the appeals. The administrative courts shall grant a partial waiver of the fees if the applicant proves he/she does not have the funds to pay the fee in full; the full waiver of the fee can be granted only under special circumstances. The civil judges can grant full or partial waiver of the court fees if the applicant proves the lack of funds and the action itself is not arbitrary or the action is nearly certainly without a chance of being successful.

Case law in environmental cases further specified this rule in a way that an NGO cannot be awarded with waivers repeatedly; if the NGO wants to protect the environment in court, it must raise basic sources for that and “not transfer them on the state”. The civil judges can grant full or partial waiver of the court fees if the applicant proves the lack of funds and the action itself is not arbitrary or the action is nearly certainly without a chance of being successful. Also, under special circumstances (it depends on the consideration of the court) the court may decide that each party has to bear its own costs. Concerning other possibilities of financial assistance, it is possible for a party to judicial dispute to ask the court to appoint him/her a legal representative and at the same time to liberate this part from the duty to pay for the legal assistance (fully or partially). The conditions are the same for waiver as for the court fees; the financial situation of the applicant is considered. Further, it is also possible to ask the Czech Bar Association for appointment of an attorney to provide a free legal aid (normally only for one act or few acts, not for complete representation). The condition is, apart from the financial situation, that for some reason the above-mentioned possibilities of appointment of the representative by court could not be used. This system of the Czech Bar may theoretically be used already at the stage of administrative procedures. It follows that it is not possible for a party to choose his/her own attorney and then ask the court for waiver of the costs of legal representation. Officially, waiver of these costs is always related to appointment of the representative by the court (or by the Bar Association).

As a rule, only attorneys can provide legal aid as a paid service, and also only an attorney can be appointed as a representative to a party who is asking for free legal aid. On the other hand, it is possible that someone other than an attorney represents a party before court or administrative organ. In practice, the NGOs often provide basic free legal aid (as counseling centers) in the fields of their specialization, and sometimes also represent parties at courts. Legal aid is used relatively frequently in environmental cases and the frequency seems to grow constantly. There are law firms that provide pro bono legal aid; however, not many of them specialize in environmental matters. Around 30 attorneys and law firms are involved in the project of the non-governmental organization called Pro bono alliance called “Pro Bono Centrum” which specializes on ensuring pro bono legal aid. This legal aid is provided to clients of NGOs in environmental matters and to non-for-profit organizations themselves in the areas such as labor law, taxes or other legal problems concerning their non-for-profit functions.

Generally, law faculties have rather disapproving approaches as far as legal clinics are concerned. There is one legal clinic run by the Faculty of Law of the University of Palacky in Olomouc operating as a counseling center for people who not have the funds to pay for the services of an attorney. Further, there has been a project of legal clinic run by the ELSA (European Las Students’ Association) Prague under the similar conditions (lack of funds). However, the majority of their agenda deals with civil, not environmental matters. There are several counseling legal centers run by the non-governmental environmental organizations in the Czech Republic. These centers provide for free legal help to anybody who approach them in environmental matters; they generally offers their clients explanation of legal provisions concerning their query, suggest solutions, comment their submissions or advice legal procedures.

XIII. Timeliness

Generally, administrative authorities are obliged to deliver administrative decisions within the period of 30 days, with the option to extend it up to 60 days. In case the administrative authority does not respect the set out deadlines, it is possible to submit a request to the superior body to take measures against inaction of the subordinated authority. Afterwards, it is possible to file a lawsuit and request that the court obliges the administrative authority to issue a decision on the merits of the matter. However, it is not likely that the administrative body which is in delay is going to be sanctioned in any way. In case that verifiable damage is caused to the party to the procedure as a result of the unlawful inaction of the administrative authority, it is possible to demand the compensation in courts. However, even if awarded to the person aggrieved, in a majority of cases no redress is sought from the persons responsible.

The parties to the administrative procedure must challenge the decision before courts within 2 months from the time they were delivered the final administrative decision (which is the decision of the superior body on the appeal against the ’first-instance decision’). In cases concerning some large infrastructure projects, the deadline is 1 month. The lawsuit against “measures of a general nature” such as the land use plans must be filed within 3 years from the time they became effective. The lawsuit in cases of unlawful inaction of administrative authorities must be filed within the period of 1 year. In civil environmental matters (such as the case of a noise claim, prevention claim etc.), there are generally no deadlines stipulated except for the damage claim which must be filed within 3 years from the time the damage was causes and, at the same time, 2 years from the time the claimant found out about the damage and the person responsible.

Generally, there are no specific deadlines for the courts to issue their judgments. Proceedings in the civil and administrative judiciary (in one level) may last from a few months to several years. In many cases the European Court of Human Rights has already ruled on the Czech Republic’s obligation to pay participants compensation for infringing their rights to a fair trial as a result of the length of the court proceedings. In combination with the difficulty, or in many cases impossibility of obtaining the injunctive relief or suspensive effect of a lawsuit, this fact leads to the conclusion that the protection cannot be considered as “timely” and “effective”. Specific deadline to deliver the final court decision is set forth only in cases of the so-called “measures of a general nature” such as the land use plans or special acts on some aspects of development of the traffic infrastructure projects where the Code of Administrative Judiciary prescribes a deadline of 90 days. The same deadline applies for decisions on administrative lawsuits concerning some large infrastructure projects. Interim decisions on a suspensive effect of the lawsuit or injunctive relief must be delivered within the period of 30 days in administrative cases and 7 days in civil cases (however, this deadline is frequently over-stepped). There are no sanctions set out for the courts that delay the delivery of the decision. It is possible to submit a complaint concerning the delay to the chairman of the court in question, or submit a request to the superior court (or other senate of the supreme courts) to set a deadline in which some action should be taken by the responsible judge. Even if no deadlines are generally set forth by the legislation, it is the duty of the court to deliver the decision in an adequate deadline. If not delivered, it is the case of so-called “improper official procedure”. In such cases, it is possible to demand the compensation or financial satisfaction for the unreasoned delay caused by the courts.

XIV. Other Issues

The typical situation for all kinds of projects with environmental impacts is that investors need to receive a number of separate permits before starting with the operations. The land use permits and building permits can be considered as “principal decisions” for most of the investments and these are also usually challenged by the public. Nevertheless, other administrative decisions such as IPPC decision or exemptions from the protection of nature and landscape are also being challenged in practice. As a principle, it is necessary for the public concerned to participate in the administrative procedure in question to have standing before courts; generally, only final administrative decisions may be challenged. Information on access to justice is provided mainly by the non-governmental organizations providing environmental legal counseling to public. Information concerning possible remedies (such as right to appeal, right to file a lawsuit, deadlines) has to be given in each administrative decision and also in every court decision. Legislation in force is publicly available and it is hence possible for the public to have access to the relevant laws and regulations.

There is no system of Alternative Dispute Resolution available to use in environmental matters. The only alternative to the court procedures is arbitration, which is, however, admissible only in the property disputes. Mediation is practically never used in environmental matters.

XV. Being a Foreigner

It is stated in the procedural laws that all parties to the judicial procedures must have equal rights and be treated equally and the courts are obliged to guarantee that. Similar principles apply in administrative procedures where administrative authorities are obliged to act impartially and treat the parties equally. These clauses relate also to language and country of origin and may be considered as general anti-discrimination clauses. In court procedures, all parties are entitled to act in their mother tongue. Every person who does not speak the Czech language may ask for the interpreter (translator); this right is guaranteed directly by the Charter of fundamental rights and freedoms. It is the state who bears the cost of translation in court procedures, contrary to the administrative procedures where the party who does not speak the language has to bear the cost of translation itself.

XVI. Transboundary Cases

In case that there is a project with possible environmental impacts being assessed in the neighboring country, it is possible for the Czech citizens and NGOs to participate in the EIA procedure. The Ministry of the Environment must publish all information provided by the country of assessment and anybody is entitled to submit comments. These comments are to be sent to the country of assessment together with the opinion of the Ministry and the relevant administrative authorities. Participation in other types of procedures in the neighboring countries is not regulated by the Czech legislation and has to be based on the legislation of the country in question. There is no special provision concerning the possibility of the public or the NGOs of the affected country to participate in the Czech administrative procedures. Only those persons, including foreigners, who prove that they fulfill one of the conditions stated by law can become parties to the administrative procedures in question. Individuals must hence prove that their rights may be infringed by the decision. Foreign NGOs should be able take part in the subsequent administrative procedures on the grounds of their participation in the EIA procedure. There is no special clause concerning foreign NGOs’ participation, however, in line with the “euroconform” interpretation of EIA legislation, they should have the same rights as the Czech NGOs. No procedural assistance such as legal aid, request for injunctive relief, interim measures, and pro bono legal advice is generally available in such cases. On the other hand, special provisions are included in the Czech legislation in relation to the affected states. The EIA Act grants any „affected state” which is the state whose “territory can be affected by significant environmental impacts of a project”, to initiate a transboundary assessment procedure. Similarly, it is obligatory for the administrative authorities to inform the affected states about the relevant IPPC procedures and enable them to submit their statements and discuss the issue with them when required so. Theoretically, it should be also possible for the affected states to participate in the subsequent administrative procedures such as procedure on the land use permit and building permit, on the grounds of the above mentioned general rule saying that anyone whose rights or duties could be directly affected by the outcome of an ongoing administrative procedure is entitled to participate. However, no such case has ever arisen and it is questionable whether the Czech authorities would acknowledge the participation of the affected state or not. In case the decision of the Czech administrative authorities is being challenged, it is always necessary to file a lawsuit at the Czech courts. In civil matters such as claim for damages, however, it is conceivable that the defendant is domiciled abroad. In such cases, Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) is applicable. In accordance with the Regulation, it is e.g. possible to choose whether to sue somebody in the state of his domicile (Article 2) or in the state where the harmful event occurred (Article 5(3)).

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Last update: 13/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Denmark

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I. Constitutional Foundations

The Danish Constitution from 1953 does not enshrine a right to a clean or healthy environment. Regarding access to justice it follows from Article 63 of the Constitution that any question about the limits of public authority can be brought to the courts. The Constitution does not specify who can bring such cases to the courts. This is determined by the standing requirements applied by the courts. International agreements are only considered a part of Danish law if they have been incorporated into statutes or other official statements of national law (the dualist approach). This means that international agreements cannot be relied upon directly before the courts or administrative bodies. They can, however, be called upon as important elements for the interpretation of Danish law. Furthermore, those international agreements to which the EU is a party – such as the Aarhus Convention – may, according to EU law, be directly applicable in the Member States if the provisions are sufficiently clear and precise. Under those circumstances administrative bodies and courts are obliged to apply the Aarhus Convention directly.

II. Judiciary

Denmark has a system of general courts that deals with both criminal and civil cases, including cases challenging administrative decisions. There are no general administrative courts; although, they can be established according to the Danish Constitution. The general court system consists of 24 district courts, two high courts (the Eastern and Western High Court) and one Supreme Court. According to the 2007 court reform all cases will start in the district courts. A district court may, however, refer cases on matters of principle to the relevant high court. The more specific composition of the courts depends upon the type of the case, e.g. a criminal case or a civil case. The Supreme Court consists of one president and 15 Supreme Court judges. Court rulings are normally made by a minimum of five judges. The Eastern High Courts consist of one president and 56 judges, whereas the Western High Court consists of one president and 36 judges. The high court cases are in general decided by three judges. In criminal cases laymen or juries may supplement the court judges. The district court cases are normally decided by one judge. In more complicated or important civil and administrative cases three judges may participate in the case. In criminal cases two laymen or six jury members may supplement the district court judge(s). In administrative matters the role of the courts is to oversee the public authorities. This includes judicial review of the legality of administrative decisions or omissions, i.e. matters regarding legal basis, competence, procedure, and compliance with general principles of law. Review of the merits or discretionary elements of administrative decisions is in principle not excluded, but the courts are generally reluctant to review the discretionary powers of administrative authorities. There are no specialized courts dealing with environmental cases. However, Denmark has a long tradition of specialized administrative appeal bodies or tribunals dealing with appeals of administrative decisions. In environmental matters the Nature and Environmental Appeals Board (Natur- og Miljøklagenævnet – Link opens in new windowhttp://www.nmkn.dk/) deals with administrative appeals. The Appeals Board is organizationally part of the Ministry for the Environment, but it operates independently from instructions from the minister. Administrative decisions made under a broad range of environmental legislation, including the Environmental Protection Act, the Nature Protection Act and the Planning Act can be appealed to the Nature and Environmental Appeals Board. Relevant legislation determines who can appeal and which decisions can be appealed to the Board. In general, there is a broad access to appeal by individuals as well as NGOs.

The Nature and Environmental Protection Appeals Board is a so-called ‘combination board’ in the sense that the composition of the board may differ from one type of case to another. In essence the new board has two distinct configurations:

  1. a lay configuration consisting of a chairman (permanent staff qualified as judges), two Supreme Court judges and seven members appointed by Parliament. and,
  2. an expert configuration consisting of a chairman (permanent staff qualified as judges) and a number of experts - normally two or four.

The lay board mainly deals with appeals related to planning and nature protection, while the expert board mainly deals with appeals related to pollution and chemicals. The board has a fairly wide discretion to delegate decision-making to the chairman. It is possible that in special cases the two board configurations may join into one combined board. It is also possible that an appeal case in special circumstances may be transferred from the lay board to the expert board and vice versa. If you wish to challenge an administrative decision made by the authorities it is in most cases possible to choose between the administrative appeal system, i.e. the Nature and Environmental Appeals Board, or the general courts. Access to the Nature and Environmental Appeals Board is easy and cheap. An appeal shall be submitted in writing to the authority that made the decision within four weeks from when the decision was announced. The authority is obliged to consider whether it will change the decision in view of the appeal. If not, it shall forward the appeal to the Appeals Board together with relevant information. A small fee (2012: 500 DKK) has to be paid. The fee will be reimbursed if the appeal is wholly or partly successful. There are no requirements as to the formulation of the appeal. The Appeals Board shall provide the necessary information for making a decision in the case. Unless explicitly limited by law the Appeals Board can make a full review of the administrative decision, including matters of legality as well as discretionary matters (merits). The Appeals Board may use cassation and return an invalid decision to the authority or in case of full review replace the decision with a new decision on the merits (reformatory). The decision of the Appeals Board can be brought to the courts normally within 6 months.

Bringing a case to the courts is generally more cumbersome than bringing a case to the appeal board. It will normally be necessary to have the assistance of a lawyer and a court case can become much more expensive. The courts will only review the claims and arguments brought forward by the parties to the case. In civil and administrative cases a lawsuit shall be lodged to the relevant (district) court by a written application. Normally, a six-month deadline for challenging an administrative decision before the courts is set in the legislation. The court will announce the application to the defendant who can then submit a written reply. The court is obliged to offer a settlement pursuant to the Act on Administration of Justice Article 268. If there is no settlement the court will set the dates for the oral court meeting(s). It is possible to call in witnesses and to request expert opinions. The ruling of a district court can be appealed to the Eastern or the Western High Court. The courts may annul administrative decisions and return the decision to the authority (cassation). The courts may also replace an administrative decision with a new decision, e.g. grant or deny a permit. However, the courts are generally very reluctant to review the more discretionary powers of the authorities and will normally not make a new decision based on the merits of the case. There are no specificities of judicial procedures in environmental matters. Generally, the courts rely on the presentation of the case by the parties and cannot take initiatives on their own. The courts may, however, decide to initiate a preliminary ruling procedure at the EU Court of Justice without being asked to do so by one of the parties. Greenland and the Faroe Islands that are part of the Danish Kingdom have special courts systems and rules.

III. Access to Information Cases

Decisions regarding access to environmental information can be appealed to the relevant appeal authority; in most cases this is the Nature and Environmental Appeal Board. This is also an option if the decision has been made by a public service company and there is no other appeal instance. It is also possible to bring decisions on access to environmental information to the courts. A refusal of request of information shall include information on the options for appeal. If you request environmental information, a decision shall be made within one month – in more complex matters up to two months. An appeal shall be submitted to the authority that made the decision on access to information within the deadlines specified for appeals in the relevant legislation. The authority is generally obliged to reconsider the decision and shall forward an appeal to the Appeals Board within three weeks if the decision is upheld. There are no format requirements or requirements of mandatory counsel. The appeal authorities or the courts must have access to the disputed information in order to determine whether the request shall be met or not. The appeal authority and the courts may then determine whether the information shall be disclosed or not.

IV. Access to Justice in Public Participation

Public participation is a mandatory requirement in some parts of environmental decision-making in Denmark. This includes, in particular, the Danish land use planning system with a system of prior public consultation before a plan proposal is presented, as well as a public consultation process after the publication of a plan proposal according to the Planning Act. The procedure for environmental impact assessment (EIA) of land-based activities is incorporated into the planning process and thus has a similar double public consultation process. EIA for offshore activities is regulated through sectoral legislation and there is normally no public consultation prior to the drafting of the assessment report, but only public consultation after the drafting of the report and prior to the decision. Public consultation prior to the issuance of permits may vary from one permit system to another. In most cases there is no or only limited prior public consultation. Regarding, environmental permits or licenses, according to the Environmental Protection Act, the mandatory public consultation requirement only applies to those installations that are listed as IPPC-installations. Decisions shall be published together with information on appeal options. In general, decisions adopted under environmental and planning legislation can be appealed to the Nature and Environment Appeals Board. It is stipulated in the relevant legislation which decisions can be appealed to the appeal board. It is also stipulated if a decision cannot be subject to administrative appeal. Administrative decisions can, in accordance with the Danish Constitution, be brought to the courts. There is normally no requirement that administrative appeal or other remedies shall be exhausted before bringing a case to the courts. In principle, the Danish Constitution does not restrict the judicial review of the courts to matters of legality. In practice, however, the Danish courts do normally not review matters involving the discretionary powers of the authority. The courts review the limits of such discretionary power, e.g. as determined by the principle of proportionality. Thus, the courts will review whether a decision is flawed or disproportionate, but not whether a decision is appropriate. The courts may also look into material and technical findings and calculations if such issues are being put forward by one of the parties. The courts may thus accept or reject claims that e.g. an environmental impact assessment was inadequate. They are, however, unlikely to review more technical aspects in detail. The review of the Nature and Environment Appeals Board is stipulated in the relevant legislation. In most cases the appeals board performs a full review including also discretionary matters. The scope of review may, however, be explicitly restricted to matters of legality. For example, reviewing land use plans where the appropriateness of a plan cannot be reviewed by the board according to the Planning Act. Land use plans and zoning decisions can be reviewed both by the Nature and Environment Appeals Board and the courts. While administrative appeal of land use plans to the appeal board is restricted to matters of legality, this is not the case regarding administrative appeal of zoning decisions (in the form of rural zone permits) that can be reviewed in full by the appeal board. Land use plans can be appealed to the Nature and Environment Appeals Board by a very wide group of individuals as well as NGO’s. The group of individuals that can appeal rural zone permits is, in practice, more narrowly defined to those that are individually affected. A wide group of NGOs can appeal such decisions. Although not stipulated by law it is likely that the same group of individuals and NGOs will have standing before the courts in such matters. The courts are most likely to only review the legality of both plans and zoning decisions.

Decisions on whether an EIA is necessary or not, EIA screening decisions can be appealed to the Nature and Environment Appeals Board, according to the Planning Act. A broad group of individuals and NGOs can appeal such decisions. It is not necessary to have participated in public consultation procedures to have access to appeal. An EIA screening decision is considered a matter of legality that can be reviewed by the appeals board. EIA screening decisions can also be brought to the courts. The courts will review the legality of the decisions, but are unlikely to review technical matters in detail. There are no formal EIA scoping decisions in the Danish EIA system and, as a consequence, normally no separate access to administrative appeal on such matters exists. If a developer is requested by the authorities to produce specific information such a decision can be appealed on matters of legality according to the Planning Act. Otherwise issues concerning the scope of an EIA can be reviewed as part of an appeal of the EIA as such. A final EIA decision in Denmark is normally divided into two parts:

  1. adoption of a municipal planning guideline accompanied by an environmental impact report, and
  2. an EIA permit.

Both decisions can be appealed to the Nature and Environmental Appeal Board. The plan document and report can be appealed on matters of legality, whereas the EIA permit can be appealed in full, including matters of discretion or appropriateness pursuant to the Planning Act. The appeal board will to some extent review the material and technical findings and calculations. If an EIA report is considered inadequate (more than insignificant flaws) it will be rejected and returned to the relevant authority. The EIA decisions can also be reviewed by the courts. The courts are likely to be more reluctant to review technical matters and the discretion of the authorities. If EIA decisions are appealed to the Nature and Environment Appeals Board or to the courts the appeal will normally not suspend or stop the project from being carried out. The appeal board may, however, decide that the appeal shall suspend the project permit or plan. There are no formal or procedural requirements for such a decision – it is the Board that considers whether suspensive effect would be appropriate or not. If an EIA decision is reviewed by the court it is also possible for the court to grant suspensive effect. The courts are, however, quite reluctant in granting suspensive effect or injunctive relief and may require a safety deposit from the applicant. Environmental permits or licenses, including IPPC decisions or authorizations, can be appealed to the Nature and Environment Appeals Board according to the Environmental Protection Act. They can be appealed by persons who are individually and significantly affected and by NGOs, in particular NGOs that safeguard nature and environment pursuant to the Environmental Protection Act. It is not a requirement to have participated in the public consultation regarding IPPC-installations. For individuals the key question is whether you have an individual and significant interest or not. The appeal board reviews the decision in full, including procedural matters as well as matters of substance and discretion. The board in its expert configuration will seek to verify material and technical findings and calculations. The courts may also review environmental permits or IPPC decisions. The courts are, however, unlikely to look into technical matters and discretionary issues. If an environmental permit is appealed the appeal will not suspend or stop the permitted activity from being carried out. The Nature and Environment Appeals Board may, however, decide that the appeal suspends the decision. There are no procedural requirements.

V. Access to Justice against Acts or Omissions

Claims against private individuals or legal entities in environmental matters submitted to the courts will normally be based on private law such as a liability or nuisance claim. Claims related to the lack of compliance with public law obligations can normally only be submitted to the courts by the relevant authority. There are a few exceptions to the latter. The Planning Act explicitly provides for a private lawsuit in case of lack of compliance with provisions set in a local plan. When it comes to non-compliance with public obligations by the public authorities themselves, including state bodies, it is generally considered that claims can be submitted to the courts on the basis of the Danish Constitution. A claim must be well founded and sufficiently clear and precise. It is also necessary to demonstrate a sufficient legal interest in the claim. A special set of rules applies to environmental liability in the form of the public law obligations following from the implementation of the EU Environmental Liability Directive. It is normally the local authorities – municipalities – that will determine in the first stage whether there is an environmental damage as defined in the Directive. The case will then be transferred to the Ministry for the Environment (the Environmental Protection Agency). A private individual or NGO may, however, request the Ministry to take action if it considers that there is an environmental damage, according to the Act on Environmental Damage. Such a request can be submitted by the group of persons and/or NGOs that have access to administrative appeal. A request shall be accompanied by relevant information. Decisions made upon such requests can be appealed within four weeks to the Nature and Environment Protection Appeals Board according to the Act on Environmental Damage. Any persons that are individually and significantly affected can appeal alongside with national and local NGOs that safeguard nature and environment. A decision can also be brought to the courts within a 12 month deadline. There are no specific conditions for review of such decisions.

VI. Other Means of Access to Justice

Apart from the option of appeal to the Nature and Environment Appeals Board and the courts it is also possible to bring an administrative decision to the Ombudsman. Furthermore, questions regarding the supervisory powers of local and regional authorities can be brought to the State Supervisory Authority. Finally, if a person or NGO considers that a criminal offense has been made by violation of environmental legislation it is possible to report the matter to the police/public prosecutor. The Ombudsman may raise cases on his own initiative or respond to complaints being brought to him, according to the Ombudsman Act. It is up to the Ombudsman to determine whether a complaint should lead to further investigations. It is a requirement that the options for administrative appeal have been exhausted before bringing a case to the Ombudsman. The Ombudsman cannot make decisions with legally binding effect. He can raise criticism of and make recommendations to the authorities. The State Supervisory Authority may receive complaints regarding municipal and regional authorities – but only if there are no options for administrative appeal according to the Act on Municipal Government. The State Supervisory Authority determines whether a complaint should lead to further investigations. The Supervisory Authority may review the legality of acts or omissions. The Supervisory Authority may issue a guiding opinion on the matter – it cannot replace the decision in question. It may, however, annul or suspend clearly illegal decisions. The public prosecutor determines whether there is a basis for initiating criminal proceedings before the courts. There is no specialized prosecutor in environmental matters in Denmark. In general there are rather few environmental criminal cases in Denmark and the sanction level (fines or imprisonment) is fairly low. There are generally no options for private criminal prosecution in environmental matters. This has to be established specifically by law. Administrative inaction or omissions can, in principle, be subject to complaints to the Ombudsman, the State Supervisory Authority, or be reported to the public prosecutor. Administrative inaction or omissions can presumably also be challenged before the courts. If no administrative decision has been made it is generally not possible to lodge an appeal within the administrative appeal system – unless the inaction can be equated with a decision.

VII. Legal Standing

The general terminology regarding standing or access to justice in Denmark is the concept of “legal interest.” In relation to court procedures the concept of legal interest is not defined in legislation, but it is most often interpreted as having a sufficient individual and significant interest. There is no actio popularis in Denmark giving everybody access to courts. In environmental matters the legislation specifies who has access to administrative appeal to the Nature and Environment Appeals Board. It is to some extent accepted that the group of persons and NGOs that have a right to administrative appeal will normally also be considered to have a sufficient legal interest to bring the case to the courts. This has to be determined on a case by case basis, however. The rules on who has access to administrative appeal differ from one area to another. For individuals it may range from being only the addressee (e.g. the Nature Protection Act), to those individually and significantly affected (e.g. the Environmental Protection Act) and to a broad group of citizens (the Planning Act). For NGOs there is more common ground as a consequence of the implementation of the Aarhus Convention. NGO access to appeal is not limited to EIA and IPPC decisions but applies more widely in environmental legislation. In general, nationwide NGOs having protection of nature and environment or recreational interests as their main purpose have access to administrative appeal in environmental matters. Local organizations generally also have access to administrative appeal, however, with some variations from one area to another. This may include ad-hoc groups. Foreign NGOs are not explicitly referred to in the legislation as having access to administrative appeal. The Nordic Environmental Protection Convention from 1974 explicitly recognizes the principle of non-discrimination and grants persons from the Nordic countries affected by a decision under the Danish Environmental Protection Act access to administrative appeal on equal terms. This non-discrimination principle is likely to apply in other situations as well. Whether foreign NGOs can appeal will most likely depend upon whether the NGO can be said to be affected by the decision. An authority will normally only have access to administrative appeal if this is stipulated by law. In relation to access to courts it will depend upon whether the authority has a sufficient legal interest. The public prosecutor has the power to initiate criminal proceedings and bring criminal cases to the courts.

VIII. Legal Representation

Legal representation is not compulsory in administrative appeal or judicial procedures in environmental matters. In administrative appeals the appeal board (or authority) has an obligation to ensure that the necessary information is available for making a decision. It is not necessary to have the assistance of a lawyer in administrative appeals even though a qualified lawyer may provide valuable assistance. In court cases the courts rely on the claims and arguments brought forward by the parties to the case. In most cases it is recommended to seek qualified legal advice before bringing a case to the courts and also to be represented by a lawyer. A recommended solution regarding court cases is to seek advice from law firms that are either specialized or have specific and documented expertise in environmental matters. There are no NGOs specialized in giving advice to private individuals regarding administrative appeals or court cases in environmental matters. Some NGOs have significant expertise in environmental cases – most often in administrative appeals, e.g. the Danish Society for Nature Conservation. Only few environmental court cases are initiated by NGOs.

IX. Evidence

In civil court cases, the collection and presentation of evidence relies on the initiative of the parties to the case. The parties to the case may call witnesses and request expert opinions. Evidence will normally be presented during the main negotiations, but it may also take place prior to the court negotiations depending upon the acceptance of the court. The court may prior to the court negotiations request the parties to present a statement regarding the evidence that will be presented in the case. Additional evidence may be permitted by the court. There are no restrictions on what kind of evidence may be presented. The court will reject irrelevant evidence, though. If a party requests an expert opinion he/she shall make a suggestion for the questions to be asked. The opposing party shall have the opportunity to comment on the suggestion and the court then approves the questions. The court cannot request evidence on its own. But, the court may ask the parties to elaborate on matters that it finds important to the case or encourage the parties to present evidence. On the basis of the court negotiations and the evidence provided, the court determines the circumstances that are decisive to the case. The court makes a free evaluation of evidence. Expert opinions are not binding on the court.

X. Injunctive Relief

An appeal to the courts does not suspend an administrative decision, as written in the Danish Constitution Article 63. The court may, however, in specific circumstances grant suspensive effect or injunctive relief. The courts are in general very reluctant to grant suspensive effect and may, in some cases, request a safety deposit for the potential costs associated with suspending a decision and, thereby, a project. It is possible to request a court order to prevent action in a civil (private) lawsuit, according to the Act on Administration of Justice Article 641. A court decision regarding suspensive effect or a court order can be appealed to a higher court. The court will balance the public interests of not suspending the decision on the one hand and the nature and scope of harm suffered by the appellants on the other hand. Regarding administrative appeals to the Nature and Environment Appeals Board, it may vary to what extent an administrative appeal may have suspensive effect. In general an appeal regarding a prohibition or an order will suspend the decision, whereas an appeal regarding a permit or a plan will not suspend the decision. The Nature and Environment Appeals Board may, however, decide otherwise when an appeal has been submitted.

XI. Costs

In administrative appeals to the Nature and Environment Appeals Board there is a general fee of 500 DKK as of 1 August 2012. A special fee of 3.000 DKK for NGO’s and other legal entities introduced with effect from 1 January 2011 was withdrawn in 2012. The Aarhus Convention Compliance Committee in March 2012 found that the 3.000 DKK fee was in breach of Article 9(4) of the Convention. The administrative appeals fee will be refunded if the appellant is wholly or partly successful in the appeal. There are no further costs for private parties in administrative appeals – except for possible legal counsel. In court cases the court fees in 2012 include a standard fee of 500 DKK for bringing a case to the first instance court, see www.domstol.dk. If a case has a value of more than 50.000 DKK an additional fee of 1,2 % of the value above 50.000 DKK shall be paid with a maximum fee of 75.000 DKK for bringing the case to the courts. If the case proceeds to the court negotiations an additional fee will be paid for cases with a value of more than 50.000 DKK: 750 DKK + 1,2 % of the value above 50.000 DKK. If a case is appealed a new fee will be calculated on the basis of the value of the case at that point including a standard fee of 750 DKK in the high courts and 1.500 DKK in the Supreme Court. Most court cases that challenge administrative decisions will not have a value that exceeds 50.000 DKK and the court fee will accordingly be low. Apart from the court fees the parties to the case must pay the costs of e.g. expert opinions as well as lawyer fees. Both may be expensive. It is difficult to estimate expert fees and lawyer fees – a minimum fee of 1.500-2.000 DKK per hour might be appropriate (2012). Standard fees may apply for different types of cases. In some situations a safety deposit may be requested by the court to cover the potential costs. If an injunctive relief is granted a safety deposit may be required to cover the potential costs of delaying the project. Safety deposits will be determined by the court on a case by case basis. In general the “loser pays principle” applies in court cases, according to the Act on Administration of Justice Article 312. The court will in each case determine the costs to be paid by the losing party based on an estimate of costs for expert opinions and lawyers. If you lose a case brought against a public authority you may risk paying the court costs of the authority. The court may, however, in special circumstances decide that the losing party shall not pay the costs of the opponent. This could be the case if the opponent is a public authority or a big company. But, it very much depends on the specific circumstances and there are several examples of private applicants being ordered to pay the costs of public authorities (up to several hundred thousand DKK).

XII. Financial Assistance Mechanisms

The courts cannot grant exemptions from the court fees. The court fees do not, however, apply if the applicant is granted “free process” or if he/she has an insurance and fulfills certain criteria for maximum income. It is possible to apply for “free process” (or legal aid), according to the Act on Administration of Justice. Normally, you have to fulfill certain criteria regarding maximum income (as of 1.1.2012: 289.000 for a single income and 368.000 for a couple). In addition your case needs to be reasonably justified. More importantly in environmental matters it is possible that “free process” can be granted on the basis of special circumstances alone. This may be fulfilled in cases dealing with matters of principle or matters of general public importance. Individuals as well as groups or organizations may apply for “free process” on the basis of special circumstances. Pro bono legal assistance can be provided by “legal clinics” or by law firms. However, this does not normally extend to environmental matters. There are no public interest environmental law organizations or lawyers in Denmark that offer legal advice to the public as such.

XIII. Timeliness

In general there are no time limits for public authorities to deliver a decision. The general rule is that a decision shall be made within reasonable time. Fixed time limits apply to requests for access to environmental information as well as to other requests for access to information. There are no formal sanctions against administrative organs for delivering decisions in delay. A complaint may, however, be submitted to the Ombudsman or, if regarding municipal and regional authorities, to the State Supervisory Authorities. In judicial procedures different time limits apply mainly for the parties. After the submission of an application a deadline of normally four weeks will be set for the defendant to submit a reply. The applicant and then the defendant will be given a second option to submit statements – normally within a four week deadline each. After that the main court negotiations may start. There are no formal deadlines at this stage. The ruling of the court shall be given as shortly as possible after the end of the court negotiations – in district courts and in high court appeals normally within four weeks, according to the Act on Administration of Justice Article 219. The duration of a civil district court and high court case can easily be one year or more. In the Supreme Court the average duration is about two years. Criminal cases will normally be decided within a few months from the initiation of the court case. More complex criminal cases, including some environmental cases, may take a longer amount of time. Furthermore, the public prosecutor may spend some time deciding whether to bring a case to the courts and to investigate the case.

XIV. Other Issues

Most administrative environmental decisions are challenged by the public within the administrative appeal system, i.e. by appeal to the Nature and Environment Appeals Board. Almost all administrative decisions are announced publicly together with information on how to appeal the decision. A proposal has been made to establish an easily accessible and comprehensible electronic access point for administrative appeals in environmental matters. Some guidance is already available at Link opens in new windowhttp://www.nmkn.dk/, including a complaints form. Relatively few administrative environmental decisions are challenged before the courts. Most of the civil court cases are cases against the decisions of the Nature and Environment Appeals Board. Alternative dispute resolution is not common in environmental matters in Denmark. In civil cases, first instance courts are normally obliged to seek a settlement between the parties in the case, according to the Act on Administration of Justice Article 268. The parties to a case may, however, also ask the court to appoint a mediator with the purpose of seeking an out of court agreement, according to the Act on Administration of Justice Article 272. The parties will pay the expenses. If an agreement is reached the court case can be lifted. Other types of alternative dispute resolution in environmental matters are not formalized.

XV. Being a Foreigner

Anti-discrimination clauses regarding language or country of origin are not formulated in the procedural laws – except for the Nordic Environmental Protection Convention and the Nordic Language Convention. The court language in Denmark is Danish, according to the Act on Administration of Justice Article 149. Translation of documents into Danish is normally required – unless both parties and the court accept the original language. Documents in the Nordic languages are normally accepted without translation. Translation is normally not provided and paid for by the government in civil court cases. In criminal court cases translation will be provided and paid for by the government, according to Circular 104/1989.

XVI. Transboundary Cases

Projects, plans or programmes that may have transboundary environmental effects in other countries shall be subject to an additional procedure ensuring consultation of countries that may be affected. In such cases the authorities of the relevant countries shall be notified in accordance with the Espoo Convention and the Act on Environmental Assessment of Plans and Programmes. Consultation of the public concerned in the relevant countries is then dependent upon the authorities of the country in question. There are no provisions in Danish legislation for direct consultation of the public in other countries. Members of the public in other countries are, however, not excluded from participating in the public consultation in Denmark. Access to the Nature and Environment Appeals Board or the courts is not restricted to Danish citizens, but is generally dependent upon whether the person has a sufficient legal interest. Foreign NGO’s will normally not have access to administrative appeal or legal standing before the courts unless they represent a sufficient legal interest. The Nordic Environmental Protection Convention in Article 3 prescribes that any person affected by a nuisance from environmental harmful activities in another (Nordic) country shall have the same right to question the permissibility of such activities before the authorities or the courts as the citizens of that country.

Related Links

Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Germany

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I. Constitutional Foundations

Article 20a of the German Constitution, the „Grundgesetz“ states that the state shall protect the natural foundations of life and animals by legislation and by executive law and judicial action.
But a general right to a clean environment, which citizens can invoke directly in administrative or judicial procedures, is not provided for under this Article. Article 19 paragraph 4 gives standing for recourse before ordinary courts for everybody whose rights are impaired by a public authority.

Other important regulations of the Grundgesetz affect the responsibilities of the federation (Bund) and the federal states (Länder). Article 72 defines nature protection and regional planning, where the Länder have legislative power as long as the Bund has not regulated the issue. The legislation of general principles governing the protection of nature, laws on protection of species and on the protection of marine life shall be reserved for the Bund.

General rules of international law are an integral part of federal law. International treaties require implementation by enactment of a federal law. European law is under certain conditions directly applicable, when Bund or Länder fail to transpose it into national law[1]. After about one and a half years, this situation came to an end with the amendment of German legislation on this matter (Umweltrechtsbehelfsgesetz - Environmental Appeals Act) which followed the CJEU´s judgment and finally entered into force on January 29, 2013.

II. Judiciary

Germany´s courts are independent and have their own administration. Law defines the courts’ organization and the reach of jurisdiction. There are courts on the level of the Länder and on the level of the Bund. The Federal constitutional courts and the constitutional courts of the Länder are not part of the regular court system. Their jurisdiction is restricted to matters directly touching questions of the constitution. However, citizens can ask the constitutional courts to check whether their constitutional rights have been violated (so-called Verfassungsbeschwerde, i.e. constitutional complaint) which is an important element of the German legal system as a whole.

The German court system has several branches. The so-called ordinary jurisdiction is dealing with private law cases and criminal cases. Separate and to some extent also following distinct rules are

  • the administrative courts as well as specialized courts in charge of cases concerning
  • labor law,
  • fiscal law and
  • social law.

For cases involving environmental issues generally administrative courts are in charge. Administrative courts have a three-tier system:

  • Administrative courts (usually several in each Land)
  • Higher Administrative courts (usually one responsible for each Land)
  • Federal Administrative Court (in Leipzig).

In general, administrative courts as the lowest level are courts of first instance, with the possibility of appeal to the higher administrative courts and, subsequently, to the Federal Administrative Court. However, in some environmental matters, especially concerning infrastructure, only the Federal Administrative Court is in charge so that there is only one instance and no appeal possible. This concerns court cases on several plan-approval procedures, e.g. in the fields of

  • Train infrastructure,
  • National interurban roads,
  • National waterways.

In Germany there are no separate courts in charge of environmental issues. However, most courts have chambers specialized on environmental law.

Forum shopping is not common practice in Germany. Moreover, jurisdiction is clearly defined by law beforehand. In case of doubt the courts have to verify whether they have jurisdiction, then excluding the jurisdiction of other courts.

When bringing a case to court, plaintiffs must show that they are "impaired in their own right." "Own right" means, first of all, that in general it is not possible to claim that somebody else’s rights (or »the rights of the nature« etc.) were violated. The second aspect of "own right" is the following: it is not enough that a rule of law was not respected, but in order to bring a case to court the plaintiff must show that the rule not respected would also be a rule granting a specific right to him/her.

In environmental matters the concept of "impairment of own rights" may cause high hurdles for plaintiffs. Many legal rules protecting the environment do not grant rights to individuals. So if such a rule of law is violated, there is no individual who could go to court and claim the impairment of his own rights. For a long time this concept meant that nobody could go to court when legislation protecting "just" the environment was disrespected. The situation changed when new legislation created the possibility for formally registered environmental organizations to challenge violations of at least some environmental legislation.

In general, courts have cassatory rights against administrative decisions. The system of separation of powers leaves the decisions in administrative matters to the administration. In some cases, when there is only one possible decision, the court’s verdict will demand the administration to take a specific decision.

III. Access to Information Cases

In case of disputes under Umweltinformationsgesetz (UIG) (and similar Länder acts) recourse under administrative law is open. Every decision on information requests delivered by an administrative body is considere to be an administrative act which firstly has to be appealed in an objection proceeding pursuant Articles 68-73 of the Administrative Court Procedures Code (Verwaltungsgerichtsordnung VwGO), unless this administrative review is excluded by Länder legislation. If the reply is not in favor of the applicant he can appeal it at the Administrative court. In cases where a request for information is not answered at all, proceedings for failure to act (omission) can be started directly at the administrative court. In some Länder the Ombudspersons for Freedom of Information Acts are mediating interests also with regard to Environmental information but there is no legal obligation or assigned duties to these bodies.

Pursuant to Article 5 paragraph 4 of the UIG in case of a partial or complete refusal the person requesting information has to be informed about the remedies against the decision and about the body to which an appeal has to be addressed as well as the time limit in which it can be appealed.

Procedural rules for requesting information are as follows: Requests can be made in oral or written form. Objection proceedings have to be made in written form or for record in the authority, addressing the body denying information in the course of one month after the decision was delivered. The superior administrative body files the decision concerning the objection. The appeal before court has to be made within one month after the decision about the objection was delivered to the applicant.

Courts can order information to be partially or fully disclosed. There are several judgments on the definition of environmental information, reasons for refusal, the definition of the bodies that have duties pursuant to UIG and rights of the applicants of German courts. (See http://www.umweltinformationsrecht.de/urteile.html (German only).

Generally the administrative bodies are obliged to provide all material to courts pursuant to § 99 paragraph 1, sentence 1 VwGO (Verwaltungsgerichtsordnung- Administrative Court Procedures Code). But these materials would also be disclosed to the plaintiff and in procedures concerning the accessibility of documents this is not generally desirable. So the administration can deny providing materials pursuant to § 99 paragraph 1 sentence 2 VwGO. Since 2001 it is possible for German Courts to review contested information in an “In-Camera-Procedure”.

IV. Access to Justice in Public Participation

The law provides for public participation for certain administrative proceedings on plans or projects of major importance.

Permitting procedures

After informal proceedings between the permitting authority and the investor, the investor submits an application. The public participation is opened with a public notice. The law requires notice in the official journal of a community affected and the Internet or a regional daily newspaper. More and more German authorities post the public notice on the Internet. After the notice the documents are accessible for at least one month in the location where the project is likely to have an effect on the environment. The documents are often also accessible in the next bigger town or city. Citizens can bring objections, during the two weeks period after display, against the project while the documents are publicly displayed. All objections after the timeframe of six weeks starting with public notice are precluded, that means that the permitting authority is not bound to consider them in their decision. The objections may be arguments against the project or suggestions for optimization. In most cases it is up to the authorities to decide whether there will be an event where the public is invited to bring their objections and arguments and discuss them in public. In fact authorities often decide in favor of a public discussion. If the parties objecting to a project observe a violation of environmental law in the decision of the authority and personal rights of the party are infringed, they can take legal action against the decision. For several permitting decisions no objection proceeding with a superior administrative body is foreseen – the objecting party can file a lawsuit at the administrative court once the decision is taken.

The administrative court reviews the admissibility of the lawsuit (i.e.infringement of environmental law, in case of an individual’s action also third parties rights, and preclusion). If the case is admissible than all tangible violations of environmental law and procedural rights are reviewed.

Legally binding Urban land use plans (Bebauungspläne) can be reviewed by courts in two ways:

  • If somebody is directly affected by a building permit decision (when demanding a building permit, as a neighbour etc.), the person can have the underlying land use plan reviewed at the same time if this is relevant for the case and if there are signs that the zoning plan may be unlawful. If the court finds that the land use plan suffers from major errors, it is declared invalid, but only as far as the parties of the case are concerned (inter parties), i.e. not in respect of the general public. This procedure does not very often have genuine environmental implications but rather deals with specific imbalances on the spot concerning the neighbours of a project.
  • A review directed against a binding land use plan itself is also possible, but only within one year after the official publication. Not all flaws and irregularities of a land use plan do lead to its invalidity. A binding land use plan will only be declared invalid if the court identifies at least one of the "major" irregularities listed by law or recognized by jurisdiction. If the land use plan is finally declared invalid in this general review, it is legally "invalid with a retrospective effect" (ex tunc) and concerning everybody (inter omnes) which means that the area in question is legally seen as unplanned area and thus the legal rules for unplanned areas apply.

Preparatory land use plans (Flächennutzungspläne) and other more general, normative planning decisions cannot be reviewed directly in the way it is possible for legally binding land use plans. Here only an indirect review is possible, if the land use plan is relevant for a concrete project permit.

Courts review the procedural and substantive legality of EIA [2]-based decisions, but neither EIA procedures as such, nor separate steps of EIA procedures such as screening decisions or scoping decisions. The reason for this is that the EIA was incorporated into a system of existing legal permit procedures and was not established as a separate form of procedure in German law.

As a general rule, the infringement of a procedural rule only results in the setting aside of a decision where that infringement may have affected the decision. Rather, the project planning has to undergo some changes that will remedy the infringements. Only if so-called ‘fundamental errors of procedure’ occurred, that is, errors which regardless of the outcome of the procedure are regarded as substantial by law this will result in the reversal of the decision.

To have standing in court proceedings it is necessary to participate in the consultation phase with the arguments later brought before court (principle of preclusion). That is true for individuals and NGOs – participation is a mandatory precondition for a court procedure.

As the EIA cannot be litigated separately in German courts, see above – injunctive relief against the EIA itself is not possible in Germany.

In theory, courts can review final IPPC[3]-decisions. In practice this is rarely happening, because the investor has a right to a permit, if he fulfils all legally prescribed preconditions, especially those listed by the Bundes-Immissionsschutz-Gesetz (BImSchG - Federal Emissions – Control Act) – he could also take legal action to enforce a decision. Individuals and accredited environmental NGOs can file a suit against IPPC-decisions.

If the plaintiff claims there was a violation of procedural rights, the court reviews the procedure and decides whether the violation is so severe that it leads to an annulment of the decision.

The participation in the public consultation process in the IPPC decision is also a mandatory precondition for a lawsuit (principle of preclusion). Injunctive relief in IPPC procedures is available. If the administrative authority or a court granted immediate execution of the IPPC decision, the action against the decision does not have suspensive effect. In order to put a temporary halt to the IPPC decision´s execution, plaintiffs then must additionally claim restitution of the suspensive effect.

V. Access to Justice against Acts or Omissions

Only indemnity claims can be submitted directly to court against private individuals according to § 1004 in conjunction with § 906 BGB (Bürgerliches Gesetzbuch - civil code). Neighbours can submit claims (owners, tenants or beneficial owners). There is no general definition for the distance to the emitting source – it depends on the impact of the emissions in the individual case. Up to a litigation value of 5000 EUR, the district court is responsible and the land court is responsible for all higher litigation values. All proof in indemnity claims has to be provided by the plaintiff. There are few cases in environmental matters that rely on indemnity claims, because usually the plaintiff seeks termination of the emission or disturbance, seldom only monetary indemnity is requested.

All other claims have to be treated in accordance with criminal law or liability law. Anybody can file a charge according to criminal law in oral or written form to the police, to administrative bodies or the prosecution department. A stronger instrument is the request for prosecution. It has to be dealt with in the public prosecution department.

Against state bodies a writ of mandamus (court order to the administrative body to carry out a specific action) can be issued to courts directly only in rare cases. For example residents of highly polluted streets can force the road traffic department to take action against noise and exhaust gases. But the residents have to prove, that the administrative body contravenes current environmental legislation or did not implement effective legislation. In the case of road traffic § 35 StVO (Straßenverkehrs-Ordnung – Traffic Code) offers a cause of action. The causes for such actions are rare in German legislation.

The liability directive[4] is implemented in the German USchadG (Umweltschadensgesetz – environmental damages Act). In environmental liability issues the federal state level (Länder) competent authorities are responsible . The Länder determine the responsibility in an ordinance. Common standard is that federal state environmental agencies are in charge of environmental damages.

A request to take action can be issued by any affected person and environmental NGOs. Affected persons are those who are harmed in their rights especially their property or their health by the effect of the environmental damage. Environmental NGOs have to be registered according to § 3 of the environmental appeals act (UmwRG - Umweltrechtsbehelfsgesetz). There is no special format required for the request to take action. A request should contain the following parts:

  • Sender
  • Description of the environmental damage

i. What has happened?

ii. Where has it happened?

iii. How did it happen?

iv. Who is probably responsible?

  • Request to take action
  • Explanation

There is no need for full evidence – the plausible description of the damage is sufficient.

If the administration does not take action or takes action with a delay, when environmental damages are detected, they can be sued by environmental NGOs. § 2 of the environmental appeals act is applicable for the requirements that NGOs have to fulfill, when they want to file a lawsuit. If a procedure was carried out to determine the actions for redevelopment of the damaged area, NGOs have to participate and voice their objection.

VI. Other Means of Access to Justice

There are no further means of remedies available in environmental matters.

Ombudspersons are only available in a private context – for instance in daily papers etc. and are not specialized on environmental matters. Some commissioners for data protection are also responsible for access to information under the Freedom of Information Acts (Informationsfreiheitsgesetze - federal and federal state level). Usually they are quite familiar with the Environmental Information Act, because access is much broader in environmental matters. They act as mediators between the holders of the information and the claimants. There are specialized prosecutors for environmental matters. They closely cooperate with police departments for environmental matters. These departments monitor compliance with environmental criminal law as well as environmental norms in general.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

impairment of own rights concept

impairment of own rights concept

NGOs

in general: like individuals

in special environmental cases set by law: additional position of legal standing as advocates of the environmental interest, several requirements must be met

in general: like individuals

in special environmental cases set by law: additional position of legal standing as advocates of the environmental interest, several requirements must be met

Other legal entities

impairment of own rights concept

impairment of own rights concept

Ad hoc groups

impairment of own rights concept

impairment of own rights concept

foreign NGOs

in general: like individuals

in special environmental cases set by law: additional position of legal standing as advocates of the environmental interest, several requirements must be met

in general: like individuals

in special environmental cases set by law: additional position of legal standing as advocates of the environmental interest, several requirements must be met

Any other [5]

impairment of own rights concept

Preclusion, impairment of own rights concept


State institutions other than authorities directly involved in a case do not have standing in environmental cases.

VIII. Legal Representation

In the first instance court it is not mandatory to be represented by a lawyer. In all higher instances representation is compulsory. Nevertheless, nearly all law suits in the first instance are supervised by a lawyer, because environmental procedures are so complex, that laypeople cannot oversee all legal consequences. Specialised environmental lawyers give advice in all stages of the procedure, beginning from the public consultation, to avoid preclusion of the individual or the organization before court. That means that legal representation in Germany plays a crucial role. The service of environmental lawyers often goes far beyond the usual legal counseling. They work very closely with the plaintiffs; often responses are co-authored by environmental lawyers and other experts on the issues concerned.

One way to get in touch with a lawyer is to contact an NGO and ask. Nearly all lawyers have a webpage that provides information about their specialization, references, services and costs. Some lawyers cooperatively operate a Link opens in new windowportal where contact details and links to their respective web pages can be found. Some environmental lawyers are cooperating in the network Link opens in new windowIDUR – Informationsdienst Umweltrecht (information service environmental law). For member organizations they provide a newsletter and seminars about current jurisdiction and new legislation and initial counseling.

IX. Evidence

When administrative courts decide cases in environmental matters, they are not restricted to the information the parties bring. Courts can (and must, if necessary) examine the facts on their own behalf and also introduce evidence themselves (ex officio investigation). However, in practice it is especially up to the plaintiffs to prove that their allegations are justified. To do so, it is often necessary to rely on expert opinions. Thus, environmental organizations cooperate with and pay for experts in the specific fields of nature protection to provide evidence.

New evidence can only be introduced under very restricted circumstances. In general, there are very strict rules demanding that any evidence relevant to the case must be brought forward as soon as possible, i.e. often during the time when the authorities decide whether a project can be permitted. If individuals or organizations do not disclose their concerns at this early stage of the project’s development, they cannot bring these arguments in a later court case. It must be underlined, however, that despite of provisions for lodging objections in the administrative procedure within a time limit, new evidence may be presented at every stage of the proceedings, even in the final court hearing.

The courts are independent and free to review the evidence, to judge whether there is a breach of law and to evaluate how severe the infringement is.

X. Injunctive Relief

As a general rule, an appeal or action submitted to the court against an administrative decision has a suspensive effect. However, there are several exemptions to this rule. There is no suspensive effect in several cases set by law, especially if specific legislation excludes the suspensive effect - which is the case in most environmental matters.

If there is no suspensive effect, the administration’s decision is in force and can be immediately executed, irrespective of an appeal or court action, unless the plaintiff asks the court to expressively grant suspensive effect and the court agrees.

Injunctive relief is possible in judicial procedures in general. In environmental matters it plays an important role, e.g. when irreversible damage to natural resources is at stake. The injunctive relief is directed against the administrative decision.

When requesting an injunctive relief, the plaintiff must show that the claim would also be acceptable as a regular, non-injunctive action. Additional to that the plaintiff must show that the court’s preliminary decision is necessary, i.e. that some element of the case is so urgent that the decision in a regular judicial procedure would come too late, to gain injunctive relief. This urgency can root in different circumstances. For example, urgency can be based on the fact that if a project was not stopped before the court’s decision, irreversible damage would occur (i.e. trees cut down, natural landscape destroyed etc.). As an injunctive relief can only be asked for when the matter is urgent, there is no fixed deadline.

Appeals against injunctive decisions are possible. However, it is up to the court in charge to decide whether they grant the right to appeal and the case must be of extraordinary importance.

XI. Costs

Cost categories

When seeking access to justice in environmental matters, an applicant typically faces costs in the following cost categories:

  • Costs for administrative procedures (Widerspruchsverfahren)

In some environmental matters applicants seeking justice must start an administrative procedure as a first step. For instance, cases where residents try to make municipal authorities take measures against excessive noise caused by traffic or industrial sites. To do so, applicants have to send a written complaint (Widerspruch) to the authority in charge where they explain why the authority’s decision or action is violating their rights. Costs for this procedure are relatively low.

However, in the vast majority of environmental matters, e.g. when an EIA is in question, a complaint via an administrative review procedure is not possible. Instead, applicants have to take the responsible authority to court right away.

  • Court fees

When applicants have to go to court in environmental matters, different court fees apply depending on which level the case is decided finally. There are

  • Fees for the start of a procedure
  • Fees for an appeal
  • Fees for interim measures: If a case is so urgent that the time a regular court case would take would result in major harm, applicants can seek interim measures, also called injunctive relief (Einstweiliger Rechtsschutz). Court fees also apply in these cases.
  • Lawyers´ fees

When lawyers are needed for legal representation in court, lawyers´ fees add a decisive part to a case’s costs. If the case is lost finally, applicants may have to pay not only for their own lawyers´ costs, but can be charged with the defendant’s lawyers costs to a certain extent. Usually, the public authority to avoid lawyers´ fees is represented by its employees, but private parties, such as investors may be represented by lawyers that may result in costs to be covered by the losing party.

  • Cost of evidence, expert fees

In environmental matters many facts that are important for the decision of the case (evidence) need to be analyzed and presented by specialists. The more skills and time that have to be invested in analyzing and presenting the relevant facts, the higher the costs are for scientific analyses and experts.

Calculation of costs according to the system of the amount in dispute (Streitwert)

According to the Court Fees Act (Gerichtskostengesetz/GKG) the court fees depend on the so-called amount in dispute (Streitwert) which is determined by the court. This means that the court is estimating how the interest of the case could be expressed in terms of money. The higher the amount in dispute set by the court, the higher the court fees and also other costs related (like lawyers´ fees) which, to a certain extent, are calculated accordingly.

Between 2002 and 2006, in environmental matters the amount in dispute was set between 2000 EUR and 260.000 (!) EUR in extreme cases. Statistically, the amount ranges between 20.000 and 25.000 EUR, however, the amounts vary significantly. About 8% of nature protection related claims had amounts in dispute of up to 2000 EUR, 24% between 2000 and 10.000 EUR and another 21% between 10.000 and 15.000 EUR. This means that in the majority of these cases, an amount of maximum 15.000 EUR was the basis of the calculation of costs. However, in about 32% of the cases during this period the amount in dispute was set between 15.000 and 40.000 EUR and in about 15% over 75.000 EUR.

Thus, the costs of lawsuits in environmental matters vary considerably. It is very difficult, to have a sound estimation of costs in advance.

Calculating costs for the start of a procedure

Concerning the court of first instance, an amount of about 5000 EUR applies, if there is a value of 25.000 EUR at stake.

This amount consists of 933 EUR of procedural fees plus about 1700 EUR lawyer’s fees for each of the two parties´ lawyers according to reimbursement rates prescribed by law, plus VAT, i.e. 933+(2x1700)+VAT. Costs for the own lawyer can be considerably higher as most experts do not work on the lawyers´ fee scheme set by law, but on individual contracts and charge five figure amounts. This amount does not include any costs for evidence/expert opinions, which may exceed this sum by far.

As seen above, the amount in dispute can be lower, but also considerably higher than 25.000 EUR, which lowers and heightens the costs accordingly: For an amount in dispute of 2000 EUR procedural costs and lawyers´ costs without costs for evidence would be about 1000 EUR, for an amount in dispute set at 15.000 EUR about 4000 EUR have to be calculated. This rises to 6.800 if the amount in dispute is set at 40.000, and to 9.500 EUR, if the amount in dispute is set at 75.000 EUR.

Calculating costs for an appeal

For the second instance (Berufung), if applicable, procedural costs and lawyers´ costs without costs for evidence would be about 5.800 EUR, but may also rise up to 7700 EUR.

For the third instance (Revision), if applicable, about the same amount applies.

These numbers relate to an estimated amount in dispute of 25.000 EUR, the actual costs can be lower or considerably lower or higher if the court in charge sets another amount in dispute.

Calculating costs for injunctive relief (Vorläufiger Rechtsschutz/Einstweilige Verfügung)

The amounts in dispute as well as the court fees are about 50% of the amount to be paid in an ordinary court procedure. However, a case is not decided at that stage, so that the costs for injunctive relief are extra costs, usually followed by the costs of the following instance(s).

Winning or losing a case - who will pay what in the end?

In environmental matters the general rules for administrative court proceedings apply. Part of these rules is the "loser pays principle" in § 154 of the Code of Administrative Procedure (Verwaltungsgerichtsordnung, VwGO). This means that the defeated party has to pay for all the court fees, pay their own lawyer and also reimburse the winning party’s lawyer. However, laws set a cap on the winning party’s amount for reimbursement if the lawyer´s fees go beyond the general rules. It varies in relation to the amount in dispute. Estimations name an amount between 700 EUR and 2500 EUR for the first instance, 900 EUR up to 3000 EUR for the second and between 900 EUR and 2000 EUR for the third instance, if applicable, all figures related to an amount in dispute of 25.000 EUR.

Cost of evidence, expert fees

Costs related to evidence and expert fees are not included in the above estimations. Here, the loser pays principle does not apply: The party bringing an expert report or other evidence must bear the cost. Even if a party is successful, they are not automatically reimbursed. However, the court can decide that the defeated party must bear the costs of evidence of the other party completely or in part. If the court ordered the evidence to be brought, again, the losing party has to bear it.

The cost of evidence in a typical environmental case is difficult to estimate. Cost of evidence in the form of an expert opinion is hardly available under 5.000 EUR and is likely to range up to 25.000 EUR on average. In extensive cases, when several experts are needed for different matters the amounts may be significantly higher.

XII. Financial Assistance Mechanisms

Exemptions from procedural or related costs in environmental matters

There are no exemptions from procedural or related costs in environmental matters, for environmental organizations, or similar cases.

Financial assistance and legal aid in environmental matters

According to § 116 ZPO (Zivilprozessordnung/Code of Civil Procedure) and § 166 VwGO (Verwaltungsgerichtsordnung/Code of Administrative Procedure)

  • individuals
  • as well as legal entities (i.e. also environmental organizations)
  • when they are based in or resident of Germany or in a Member State of the EU or EEA, they can ask for financial assistance when they want to bring a case to court and lack resources to do so.

Individuals must show that that they lack the financial resources to participate in a lawsuit without legal aid and that the case they want to bring to court has sufficient prospects of being successful and is also not abusive.

Additionally to that, legal personalities like environmental organizations must also show that failing to pursue the action would be contrary to the public interest.

However, in practice the possibility that environmental organizations may claim legal aid in environmental matters has no relevance so far, as up to now there seems to be no example where legal aid has ever been granted in a case brought by an environmental organization. One reason for that may be that the courts in charge to define whether a person or association meets the criterion "lack of resources" set up strict standards.

In 2008, the OVG Muenster (Higher Administrative Court of North Rhine-Westphalia) ruled for example that an application for legal aid launched by an environmental organization was undue because the organization had missed to build up a financial reserve for legal purposes in the past and could also try to raise funds especially for the case it wanted to bring to court.

The organization was declared as not lacking funds unless it spent the whole of its present funds on the court case. Moreover, according to the court also the personal wealth of the organization´s members should be taken into consideration before legal aid was to be considered.

Pro bono legal assistance, public interest environmental law organizations or lawyers

Unlike in other fields like migration law, ad hoc or institutionalized charitable legal aid or pro bono actions by lawyers have no tradition in the field of environmental matters, even if some experts in the field do agree on reduced rates in some cases. In general, lawyers specialized on environmental law are rare and therefore expensive.

Most cases in environmental matters are started by environmental organizations. Larger environmental organizations sometimes have staff specialized on the matters relevant in the case. However, it is rare that the organizations´ experts are specialized lawyers at the same time.

Legal clinics dealing with environmental cases

So far, the few existing legal clinics in Germany do not deal with environmental cases. Before 2008, operating legal clinics was even illegal in Germany, as the provision of legal aid was the exclusive privilege of lawyers formally exercising this profession. Anyone else, even active legal professionals such as judges, risked prosecution when providing legal aid outside of this narrow legal framework. Since the reform of 2007/2008 legal clinics can operate, however, no environmental clinic was established yet.

XIII. Timeliness

For administrative permit procedures, time limits exist for the delivery of decisions. In permit procedures for general industrial plants there is a time limit of 7 months for large projects and of 3 months for smaller projects. The administration can prolong the limits if they can claim a just cause. In permit procedures for large-scale projects such as national roads, railways, waterways there are no fixed time limits but the provision that decisions must be taken "in reasonable time" or "efficiently".

In terms of challenging omissions, if authorities do not decide on a project despite the fact that they have been provided with the relevant documents, it is possible to bring the authority to court after three months of inaction.

According to data published by the Federal Ministry of Justice in 2011[6], there is a duration of 10,9 months for proceedings in the first instance on average, with 4,6 months being the shortest on average time in some Länder and 25 months being the longest on average time in other Länder. For proceedings starting at the level of Higher Administrative Courts, there is a duration of 15,7 months for proceedings in the first instance on a national average, with 6,3 months being the shortest on average time in some Länder and 28 months being the longest on average time in other Länder. Thus, even an average trial may take several years when two or more instances are involved.

After Germany has been criticized by the European Court of Human Rights, in November 2011 new legislation was enacted which enables the parties of a court case to warn a court when the procedures are in danger to take excessive time, and to claim special damages if the procedure takes too long.[7]

XIV. Other Issues

The federal ministry has published a Link opens in new windowhandbook that gives an overview about rights under the Aarhus Convention including access to justice. NGOs published several handbooks and manuals for their regional chapters and activists.

As an example: Link opens in new windowGuide: Rights of the environmental groups to participate and to file suit (PDF in German). More detailed information can be found on the webpage of the department Environmental Law and public participation of the Link opens in new windowIndependent Institute for Environmental Issues.

Alternative dispute resolution is used in Germany more frequently in the last years. In environmental matters it depends on whether the judges in the respective courts are trained for this. In Administrative courts in Schleswig (Schleswig-Holstein) and Greifswald (Mecklenburg-Vorpommern) have special programs for court mediation. Between 2007 and 2010 there were only two mediation procedures in courts registered. Some well-known mediation procedures took place in the course of big infrastructure permit procedures (Airport Berlin, Airport Frankfurt and Main Station Stuttgart). But they couldn’t prevent lawsuits after the decision was taken.

XV. Being a Foreigner

One of the main pillars of the German Constitution, the Grundgesetz is the anti-discrimination clause. Since 2006, Germany has also an explicit Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz) that was developed because of the requirements of European anti-discrimination legislation and includes more detailed rules on anti-discrimination, especially in the fields of labor law, civil law, tax law and provides special remedies to fight against discriminatory acts or omissions of the state and also of private persons. However, there are no special anti-discrimination-rules in procedural law so far.

According to the law on court procedures German language has to be used in court and court procedures. There is one exception concerning the areas in the Land of Brandenburg, where the Sorbian-speaking minority has the right to use their language.

Germany so far does not regularly provide and pay for translations in court procedures. In administrative court hearings the costs of interpretation may be regarded as court expenses (Auslagen) and would then have to be born by the losing party.

XVI. Transboundary Cases

The public in the countries affected by projects with likely trans-boundary environmental impact have rights granted by the Espoo Convention, the Espoo-related EU legislation, the Aarhus Convention and the Aarhus-related EU legislation, and by bi-lateral agreements. For NGOs there are no special provisions, they enjoy standing as shown under heading VII.

Related Links

 

[1] After the judgment of the CJEU in case C-115/09 (BUND/Trianel) in May 2011 on the German

implementation of Directive 2003/35/EC, this was the case for Access to Justice matters for

environmental organizations.

[2] Environmental Impact Assessment

[3] Integrated Pollution Prevention and Control

[4] Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental

liability

[5] This category should include all those potential stakeholders that are not covered by the previous lines,

e.g. do competent authorities have standing against decisions of other competent authorities, etc.?

[6] http://www.bmj.de/SharedDocs/Pressemitteilungen/DE/2011/20111014_Durchbruch_beim_Schutz_vor_ueberlangen_Gerichtsverfahren.html (German only)

[7] http://www.bmj.de/SharedDocs/Pressemitteilungen/DE/2011/20111014_Durchbruch_beim_Schutz_vor_ueberlangen_Gerichtsverfahren.html (German only).

Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Estonia

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I. Constitutional Foundations

The Link opens in new windowEstonian Constitution does not provide a right to environment with a certain quality that could be relied on by individuals in courts or in administrative proceedings. It states, however, that everyone is obliged to preserve the environment and compensate damage caused to it (Section 53). Natural resources are considered to be national treasures and, as such, must be used economically according to Section 5. The Constitution states that everyone has the right to be protected by the state and its laws. According to Section 15, everyone has the right to access to justice if their rights and freedoms are being violated. Legislation and different actions may be challenged as unconstitutional and the courts are obliged to review such challenges. Section 24 provides more detailed rules for judicial (court) proceedings. Court hearings are generally open to the public and decisions are made publicly available. Proceedings cannot be transferred to a court other than that prescribed by the law if one of the parties to a dispute does not agree with it. Everyone has the right to attend court proceedings they are a party to as well as the right to appeal to a higher court according to conditions provided by legislation.

Parties to administrative or judicial procedure may rely directly on international agreements, if:

  • these are sufficiently precise (provides all necessary details), and;
  • there is no national legislation on the matter, or;
  • national legislation contradicts the international agreement.

Administrative bodies and courts have also applied the Aarhus Convention and its rules on access to justice directly in the absence of national legislation on a certain issue (e.g. standing). This has been done by the Supreme Court (decision No 3-3-1-43-06) as well. New Code of Administrative Court Proceedings (applicable as of 1 January 2012) contains rules on access to justice (particularly standing) by environmental protection NGOs based on court practice in the matter.

II. Judiciary

Estonian court system has three levels (lower to higher):

  • administrative courts and county courts;
  • district courts (Tallinn and Tartu);
  • Link opens in new windowSupreme Court.

On the lowest level, administrative cases, i.e. cases against activities of public administration (this includes the majority of disputes in environmental matters) are discussed in a specialized court. On the next two levels, the same courts hear administrative, civil, disputes based on private law, and criminal cases. District court and Supreme Court judges, however, specialize in one of the three fields (i.e. administrative, civil or criminal law). On the lowest level of courts (administrative and county courts), the courts are divided into courthouses – there are 4 courthouses for administrative courts and 15 for county courts (one for each county in Estonia). Link opens in new windowConstitutional Review Chamber of the Supreme Court reviews the constitutionality of legislation and the decisions of:

  • the Parliament (Riigikogu);
  • Board of the Parliament;
  • President of Estonia and
  • electoral committee

Review of constitutionality of legislation or above-mentioned decisions can be initiated by:

Individuals do not have the right to directly initiate the constitutional review of legislation. They can, however apply for review in a court case in another court proceeding or individuals can turn to the Chancellor of Justice. Constitutionality of the above-mentioned decisions, on the other hand, may be challenged directly by individuals whose rights are affected by the decisions. Courts are the main independent bodies for dispute resolution; there are only a limited number of arbitral tribunals in addition to them. There are no tribunals or other bodies of dispute resolution in environmental matters other than courts. The Estonian judiciary is independent. Judges of administrative courts, county courts and district courts are appointed by the President of Estonia based on proposals made by the judges of the Supreme Court. Judges of the Supreme Court are appointed by the Parliament. Dispute resolution in Estonian courts is mostly adversarial, i.e. the court will decide that one of the parties is (at least partly) right and the other has (at least partly) done something illegal. In civil and administrative matters, parties can also reach an agreement in the court. Mediation by court is also an option for administrative matters (not available in criminal matters) if all parties to a dispute agree to use it.

There are no special courts, tribunals etc. that would specialize in environmental matters. Mostly, environmental disputes involve an activity of some public administration body and are therefore heard firstly in administrative courts and then by specialized judges in district courts and the Supreme Court. If a person or company has seriously damaged the environment or breached important obligations aimed at protecting the environment (e.g. has illegally handled waste and created a danger to the environment by it), criminal charges can be brought by the Link opens in new windowProsecutor’s Office. Criminal cases are first heard in county courts, then in district courts and finally in the Supreme Court by judges that have specialized in these matters. Forum shopping, i.e. choosing a court most favorable to the person who files an action with a court, is limited in environmental matters in Estonia. An administrative case is heard by the court in whose jurisdiction the administrative body whose activity is challenged (the respondent) is located. If there are two or more respondents located in the jurisdiction of different courts, the person filing the action is allowed to freely choose between these courts, unless rules for exclusive jurisdiction favoring one of the courts are found in the Administrative Court Proceedings Act. Administrative court that receives an action by a person must firstly check whether the action has been filed with the right court. If the action was brought to a wrong court, that court will transfer it to the correct one.

If the person who files an action or the respondent is not satisfied with the judgment (kohtuotsus) of the administrative court (1st instance court) it may appeal to the district court (2nd instance). The right to appeal to district court can also be used by a person who did not file the initial action, but to whose rights the decision of court of first instance has an impact. The same persons have the right to appeal to the Supreme Court (3rd and final instance) if they are not satisfied with the judgment made by the district court. For appealing, the person filing an appeal must reason it by demonstrating that the lower court has:

  • applied (substantive) legislation incorrectly;
  • significantly breached rules of the court procedure, or
  • not made proper use of evidence (this can be used for reasoning an appeal to district court, but not to the Supreme Court).

In some situations a court may end the proceedings with a court ruling (kohtumäärus) instead of a judgment. In such a situation, an appeal on court ruling may be filed by the person affected by the ruling with the court which made it. That court will consider the appeal and may satisfy it; if it finds the appeal to fulfill all requirements, but does not agree with its content, appeal on court ruling will be transferred to the district court for review. In this case, appeals on court rulings of the first instance courts (administrative courts) are resolved by a court ruling of the district court. Appeal on such court ruling as well as other court rulings by district courts (2nd instance courts) may be filed with the Supreme Court by persons affected by the court rulings.

When making a judgment about administrative decisions, Estonian courts are entitled to review the legality of an administrative decision and annul the decision as a whole or a part of it. The courts are not entitled to change the content of administrative decisions; this can be done by the administrative bodies if they decide to make a new decision in the matter. The court may also require the administrative body to undertake a certain activity or make a decision, but cannot prescribe the exact content of such activity or decision if there is room for discretion on behalf of the administrative body. There are a few specificities in environmental matters compared to judicial procedures in other administrative law cases, concerning:

  • access to justice (legal standing) and
  • right to challenge procedural acts (menetlustoimingud) of administrative bodies.

Firstly the Code of Administrative Court Procedure contains a special provision (Section 292) on the standing in environmental matters. According to the rules contained in that provision, legal standing of environmental NGOs is presumed, if the activity of the administrative body challenged is related to the environmental protection goals or previous activity of such NGO. According to the definition, an environmental NGO is:

  • a non-profit organization, for which environmental protection is a statutory goal and whose activities are aimed at promoting environmental protection;
  • an association of persons that is not a separate entity that according to a written contract of association is promoting environmental protection and represents the views of a substantial proportion of local people.

Promotion of environmental protection is used in a wider sense, including protection of elements of nature for the purposes of protection of human health and research and education in the field of natural cultural heritage. Secondly, the opportunity to challenge procedural acts of administrative bodies is wider in environmental matters. Procedural acts (menetlustoimingud) are activities of administrative body carried out in preparation of the final decision – administrative act (haldusakt), e.g. EIA screening decisions. You can challenge procedural acts in two cases according to Section 45(3) of the Code of Administrative Court Procedure:

  • your rights (other than procedural rights) are infringed independently of the final decision;
  • illegality of the procedural act would unavoidably lead to a final decision or other activity infringing your rights

Earlier practice of the Supreme Court recognized that environmental law is an area of law where procedural rules have a significant role in reaching a lawful decision; therefore procedural acts can in principle be challenged. Whether one of the two conditions necessary for challenging procedural acts is fulfilled will be decided on case-by-case basis.

In administrative matters (including environmental matters) courts may take a number of actions from their own motion. Firstly, courts are obliged to ensure that all circumstances relevant to the case shall be investigated. If necessary, the court may gather evidence on own motion. Courts may include third parties to dispute, if they find that the rights of such persons may be impacted by the judgment. Courts may also from their own motion change the due dates for procedural acts that have to be undertaken by parties (e.g. provide a translation of a document, reply to the action etc.), make an additional judgment that specifies or supplements the initial judgment or apply injunctive relief.

III. Access to Information Cases

If an administrative body refuses to disclose information requested by you, it must notify you of its decision and its reasoning within 5 working days. This period can be extended to 15 days if your request must be specified or gathering information is time-consuming. Refusals to disclose information on request are considered to be administrative acts and must contain information on the possibilities, place, time and procedure for challenging the refusal, according to the Administrative Procedure Act Section 57(1). In case you request access to environmental information and are refused of access or you are wrongfully/inadequately answered, you have the right to:

a) file a challenge with the Link opens in new windowEstonian Data Protection Inspectorate or;

b) file an action with the administrative court.

In both proceedings, you have the right to challenge the legality of the refusal or deficient answer and seek the annulment of the decision and/or request to make a new decision. Filing a challenge with the Estonian Data Protection Inspectorate does not prevent you from later filing an application with the court to challenge either the initial refusal or wrongful/inadequate answer or the decision taken by the Inspectorate on your challenge. In order to file a challenge with the Estonian Data Protection Inspectorate, you have to make an oral or a written statement within 30 days of the date you were informed of the refusal etc. Oral challenges will be recorded by the Estonian Data Protection Inspectorate. The challenge must include a number of elements, e.g. name and contact information of the person filing a challenge, reasoning of the challenge, clear claim etc. (full list of elements required is found in Section 76 of the Link opens in new windowAdministrative Procedure Act). You may file an action with the administrative court by mail, by bringing the written action to the courthouse or via electronic means (e-mail or electronic information system (Link opens in new windowE-toimik)). Different deadlines apply depending on the remedy sought:

  • 30 days in case a person seeks annulment of the decision to deny the request;
  • 1 year if the person seeks an answer because of delay by the administrative body;
  • 3 years if the person wants the court to declare the activity of the administrative body illegal (declaration of illegality, however, does not lead to automatic annulment of the decision).

For both challenges with Estonian Data Protection Inspectorate and actions with administrative courts, you may use a legal representative (or counsel) but this is not required. Courts (as well as the Estonian Data Protection Inspectorate) have access to information that is the object of dispute. This is necessary for evaluating the legality of the activities of the administrative body in question. Courts can not disclose such information on their own but they can require the information to be disclosed if no grounds for restrictions (e.g. threat to national security or protected species) exist.

IV. Access to Justice in Public Participation

Administrative procedures in environmental matters are usually held as open proceedings. This means that the general public will be informed of such proceedings and the application for an administrative act and the draft act will be made available to the public. In cases of environmental permits and EIA proceedings, everyone is entitled to make oral or written comments. In other proceedings, you have the right to make comments if you have a legitimate interest in the matter or your rights may be affected by the administrative act. In more important cases, a public hearing will also be organized. General rules of open administrative proceedings are found in Sections 46-50 in the Link opens in new windowAdministrative Procedure Act. Further specifications of administrative procedures in environmental matters are found in many special Acts which concern environmental permits, environmental impact assessment and spatial planning, e.g. Ambient Air Act, Water Act, Environmental Impact Assessment and Environmental Management Systems Act, Spatial Planning Act etc.

If you are not satisfied with an administrative decision, you may either file an action with a court or file an administrative challenge (vaie). Administrative challenges are reviewed by the supervisory administrative body of the initial decision-maker. In some cases, the appeals are reviewed by the same body that made the initial decision, namely if:

  • the administrative body is under direct control of a minister;
  • the law does not provide a supervisor to that administrative body.

Administrative challenges are optional, i.e. you do not need to submit them in order to be allowed to file an action with the court later. You are, however, entitled to still file an action with the court after the administrative challenge has been reviewed and you are not satisfied with the decision made. Courts review both the substantive as well as procedural legality of administrative decisions. Review of procedural legality means that courts will check whether your procedural rights have been infringed. This can in some cases be also the basis for annulment of decisions made in the end of such proceedings (if procedural irregularities may have influenced the decision). Review of substantive legality means that courts check whether laws were correctly applied by the administrative body when making the challenged decision. Courts are also entitled to check whether the data used by the administrative bodies as the basis for their decisions was correct and whether the administrative bodies had gathered all information necessary. Additionally, courts can review whether the decisions are proportional and no evident errors of discretion have been made, e.g. priority is given to economic interests without any or almost no regard to conflicting social or environmental interests. On the other hand, if no evident errors of discretion are made, the court cannot decide whether discretion was used in the best (most purposeful, efficient etc.) way.

You can challenge spatial plans of different levels (national, county, comprehensive and detailed plans) in administrative courts. All members of the public have standing in courts to challenge them; additional criteria usually applicable in administrative court proceedings (most importantly infringement of your rights) are not applied. To challenge a decision you must Link opens in new windowfile an action with an administrative court, where the Link opens in new windowusual administrative court proceedings will be carried out. You may use a representative (or counsel) in the court proceedings, but this is not compulsory. When reviewing a spatial planning decision, the courts will check whether the decision was lawful, i.e. administrative procedure was carried out correctly and all other (substantive) laws were applied correctly. Courts shall also evaluate whether the administrative body had all necessary data and took all relevant considerations into account. As administrative bodies have a wide margin of discretion in spatial planning matters, the courts cannot annul a decision on the grounds of efficiency, purposefulness etc. unless an evident mistake of discretion was made. This would for example be the case when the administrative body gives priority to economic considerations without any or almost no regard to nature protection needs without proper explanation.

Injunctive relief (provisional protection of persons’ rights) can be applied by the court at any stage of the court proceeding. Only general rules on injunctive relief apply to cases concerning spatial plans. Courts may apply injunctive relief based on an application of one of the parties to a dispute but also from own motion. At the same time it is only applied cases where the enforcement of the judgment is threatened, e.g. the activity of the permit holder would change/damage the environment irreversibly. No special rules apply for injunctive relief in cases concerning IPPC permits.

EIA screening decisions (decisions on whether or not to initiate EIA process) are considered to be procedural acts (menetlustoimingud).This means you can only challenge them separately from final decisions (e.g. environmental permits), if:

  • they infringe your rights (other than procedural rights) independently of the final decision;
  • illegality of the procedural act would unavoidably lead to a final decision or other activity infringing your rights.

According to recent case law of the Link opens in new windowSupreme Court (e.g. cases 3-3-1-63-11 and 3-3-1-101-09) EIA screening decisions can be separately challenged only if the administrative body had a legal obligation to initiate the EIA process. If the screening decision was based on discretion (i.e. administrative body had the option to initiate the process) it cannot be challenged separately from the final decision (e.g. ambient air pollution permit or IPPC permit). For challenging an EIA screening separately, you must Link opens in new windowfile an action with an administrative court, where the Link opens in new windowusual administrative court proceedings will be carried out. To have standing in the court, you must demonstrate that your rights are infringed or your legitimate interests are directly concerned. Infringement of the rights of environmental protection NGOs is presumed. Courts will check if the procedure was carried out correctly and the decision was made in accordance with the law. Courts are limited in their review of discretion of administrative bodies to evident misuses only.

EIA scoping decisions (decisions about content and extent of EIA) are considered to be procedural acts (menetlustoimingud). This means you can only challenge them separately from final decisions (e.g. environmental permits), if:

  • they infringe your rights (other than procedural rights) independently of the final decision;
  • illegality of the procedural act would unavoidably lead to a final decision or other activity infringing your rights

For challenging EIA scoping separately, you must file an action with an administrative court, where the usual administrative court proceedings will be carried out. To have a standing in the court, you must demonstrate that your rights are infringed or your legitimate interests directly concerned. Infringement of the rights of environmental protection NGOs is presumed. Courts will check if the procedure was carried out correctly and the decision was made in accordance with the law. Courts are limited in their review of discretion of administrative bodies to evident misuses only.

Final EIA decisions (approval of the EIA statement by administrative body) are considered to be procedural acts (menetlustoimingud). This means you can only challenge them separately from final decisions (e.g. environmental permits), if:

  • they infringe your rights (other than procedural rights) independently of the final decision;
  • illegality of the procedural act would unavoidably lead to a final decision or other activity infringing your rights

Development consents are issued separately from approval of EIA statements and are considered administrative acts that can be challenged in courts if they infringe your rights. To challenge the EIA decisions separately or to challenge the final development consent, you must file an action with an administrative court, where the usual administrative court proceedings will be carried out. To have a standing in the court, you must demonstrate that your rights are infringed or your legitimate interests directly concerned. Infringement of the rights of environmental protection NGOs is presumed. You may use a representative (or counsel) in the court proceedings, but this is not compulsory. You do not need to actively participate in the public consultation, make comments etc. to have a standing, if your rights are being infringed directly. However, in practice, active participation in the proceedings might be important to challenge smaller, less evident deficiencies with the EIA procedures and EIA statement. Therefore, you should participate as early in the decision-making as possible. Infringements of procedural rights do not, however, give you the right to challenge EIA screening, scoping or approval decisions, as these are procedural acts (menetlustoimingud). Courts will check if the procedure was carried out correctly and the decision was made in accordance with the law. Courts are limited in their review of discretion of administrative bodies to evident misuses only. When reviewing EIA decisions separately or with the development consents, courts are also allowed to verify the material and technical findings. However, they cannot replace the content of the administrative act but are only allowed to annul it if these findings are considered to be incorrect.

Injunctive relief (provisional protection of persons’ rights) can be applied by the court at any stage of the court proceedings and, in principle, also in cases concerning EIA according to the general rules. Courts may apply injunctive relief based on an application of one of the parties to a dispute but also from own motion. However, courts apply injunctive relief only in cases where the enforcement of the judgment is threatened, e.g. irreversible harm caused to the environment. As final EIA decisions do not allow a person to start with a development that might harm the environment (for carrying out activities, a permit has to be issued based on the final EIA decision), courts do not usually apply injunctive relief in such proceedings.

You can challenge decisions to issue IPPC permits by the Link opens in new windowEnvironmental Board (Keskkonnaamet) in administrative courts. To have a standing in court, you must show that the decision infringes your rights; for environmental protection NGOs, infringement of rights is presumed. To challenge a decision you must file an action with an administrative court, where the Link opens in new windowusual administrative court proceedings will be carried out. You may use a representative (or counsel) in the court proceedings, but this is not compulsory. You do not need to actively participate in the public consultation, make comments etc. to have a standing, if your rights are being infringed directly by the decision. On the other hand, if you do and your procedural rights are infringed, this would be a separate ground for having a standing in Estonian courts. Also, in practice, participation in administrative proceedings might be important to challenge smaller, less evident breaches of law. Therefore, you should participate as early in the decision-making as possible. Courts will check if the procedure was carried out correctly by the Environmental Board and the decision to issue the IPPC permit was made in accordance with the law. Courts are also allowed to verify the material and technical findings etc. However, they cannot replace the content of the decision to issue permit or the permit itself but are only allowed to annul the decision if they consider it to be unlawful. Annulment of the decision would also make the issued permit invalid. Injunctive relief (provisional protection of persons’ rights) can be applied by the court at any stage of the court proceeding. Only general rules on injunctive relief apply to cases concerning IPPC permits. Courts may apply injunctive relief based on an application of one of the parties to a dispute or from its own motion. At the same time it is only applied in case the enforcement of the judgment is threatened, e.g. the activity of the permit holder would change/damage the environment irreversibly. No special rules apply for injunctive relief in cases concerning IPPC permits.

V. Access to Justice against Acts or Omissions

In environmental matters, you can submit a claim to court directly against private individuals or legal entities only for compensation of damages or to protect your property rights. These claims are regulated by acts of private law, mainly the Link opens in new windowLaw of Obligations Act and Link opens in new windowLaw of Property Act. Claims for damages and protection of property are in the first instance heard by the county courts. If damage is caused to you by environmentally hazardous activities, you can claim compensation for:

  • damages to yourself (health damages etc.);
  • damages to your property;
  • damages caused by deterioration in environmental quality;
  • expenses related to containing the damage;
  • expenses related to mitigation of consequences of damage;
  • damage arising from application of mitigating measures.

You are entitled to non-contractual damage if damage was caused unlawfully and the person is culpable, i.e. damage was caused by negligence or intentionally. In some cases, strict liability is applied, i.e. damages are awarded even if the person did not cause damages negligently or intentionally. To protect your property, you may claim elimination of any breach of your property rights.

If an environmental matter is related to an administrative decision, you may submit a claim (an action) to an administrative court directly against the state body that made the decision (e.g. Environmental Board). In such procedures, you may claim:

  • annulment of the whole or part of the administrative act (final decision);
  • issuing of an administrative act or performance of an activity;
  • prohibition of issuing an administrative act or performance of an activity;
  • damages caused under public law;
  • elimination of unlawful consequences of an administrative act or activity;
  • establishment of nullity of an administrative act, unlawfulness of an administrative act or activity or other factual circumstances related to a public law relationship.

It is important to note that annulment of an administrative act by a court terminates it and therefore it will no longer create rights and obligations. Establishment of unlawfulness of an administrative act by court, on the other hand, does not terminate it automatically – the act must be repealed by the administrative body itself.

In environmental liability matters the authority that identifies the damage and persons responsible and is entitled to take necessary measures, is the Link opens in new windowEnvironmental Board. The Link opens in new windowMinistry of Environment is responsible for notifying authorities of other Member States of the EU in cases where the damage has a cross-border nature. To enforce environmental liability you should first file a request for action to the Environmental Board. Requests for action may be submitted if:

  • you are affected or may be affected by the damage to the environment;
  • you have legitimate interest in the matter; or
  • your rights are infringed by the damage to environment or threat thereof.

For environmental NGOs, infringement of rights and legitimate interests are presumed. If the Environmental Board refuses to take action and you want to enforce environmental liability in courts, you must first exhaust all administrative proceedings. This means that you must submit an administrative challenge (vaie) to the Ministry of Environment within 30 days. The Ministry will give its decision on your challenge within 30 days. After you have exhausted the administrative challenge proceedings you may submit a claim to the administrative court. In order to challenge the decision made on your request for action, the decision must either infringe your rights or concern your legitimate interests. The courts are entitled to demand that the Environmental Board enforces your request for environmental liability.

VI. Other Means of Access to Justice

If a person breaches environmental law, criminal proceedings may be initiated by the state authorities. Penalized acts are divided into two categories:

  • misdemeanors; and
  • criminal offences.

Misdemeanors in environmental matters handled by the Link opens in new windowEnvironmental Inspectorate (Keskkonnainspektsioon) whereas criminal charges are brought to courts by the Link opens in new windowProsecutor’s Office (prokuratuur). If you wish to challenge activity, inactivity or omission of a public authority, you have the right to file an administrative challenge (vaie). Administrative challenges are mostly an optional alternative to actions with courts; they do not have to be exhausted before filing an action. In some cases, however, e.g. in the field of environmental liability, administrative challenges must be used before you may file an action with the court. If you find that a legislative act is unconstitutional or some activity, inactivity or omission of a public authority infringes your constitutional rights, you may also file an application with the Link opens in new windowChancellor of Justice (õiguskantsler). The Chancellor of Justice reviews the constitutionality of the legislative act or activity of a public authority and is entitled to make recommendations and proposals aimed at solving the situation.

The Link opens in new windowChancellor of Justice is an independent official who performs two functions: he is both the general body of petition (against public authorities) and the guardian of constitutionality, reviewing legislative acts. If you find a legislative act (either national or local government’s) to be unconstitutional, you may submit an application to the Chancellor of Justice. The Chancellor is entitled to:

  • propose that the issuer of legislation brings it into conformity with the Constitution;
  • submit a memorandum to the preparer of legislation (if the legislation is still being drafted);
  • submit a report to the Parliament (Riigikogu) to bring out the problems.

If you find that your constitutional rights have been infringed by a public authority, you may also submit an application to the Chancellor of Justice. The Chancellor is entitled to make:

  • a recommendation to act in a legal way and follow the principles of good administration;
  • a suggestion to eliminate the violation.

If the recommendations or suggestions are not taken into account, the Chancellor of Justice may submit a report to the supervisory authority of the agency in question, the Government of the Republic and the Parliament (Riigikogu). Recommendations and suggestions are final and cannot be challenged in courts. Although they are not legally binding to the authority in question, they are usually taken into account by either public authorities addressed or their supervisors.

Link opens in new windowEnvironmental Inspectorate is the main state agency responsible for enforcement of environmental law. This includes investigation of misdemeanors and criminal offences committed by persons or companies in the field of environmental law. In the case of misdemeanors, the Environmental Inspectorate also has the right to impose fines. For misdemeanors, detention (arest) may also be imposed by the courts on the applications by the Environmental Inspectorate. If you detect environmental pollution or incident, you should notify the Environmental Inspectorate, who will then investigate the matter.

Link opens in new windowProsecutor’s Office has the exclusive right to bring charges for criminal offences committed by persons or companies to courts. This is also the case for environmental crimes; the investigation of such crimes is carried out by the Environmental Inspectorate. For criminal offences, financial penalties (rahaline karistus) or imprisonment may be imposed by the courts. Private prosecution is not available in Estonia; criminal charges may only be brought to courts by the Link opens in new windowProsecutor’s Office. This applies also in the field of environmental law.

VII. Legal Standing

According to the Administrative Procedure Act and Code of Administrative Court Procedure, the following general rules are used to determine who is entitled to challenge activities of public authorities. These rules do not apply to challenging spatial planning decisions, which can be challenged by anyone on the grounds of illegality.

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Breach of individual rights or restriction of individual freedoms by activity of public authorities. Rights or freedoms may arise directly from the constitution or other laws.

Breach of individual rights by activity of public authorities. In environmental matters, persons being directly concerned by the administrative activity may also file an application. Direct concern must be related to the legitimate interests of the person; activity of the public authority must have a significant and real impact on such interests.

NGOs

Breach of individual rights or restriction of individual freedoms by activity of public authorities. Rights or freedoms may arise directly from the constitution or other laws.

For NGOs in the field of environmental protection, breach of rights or freedoms should be presumed.

Breach of individual rights by activity of public authorities. In environmental matters, persons being directly concerned by the administrative activity may also file an application. Direct concern must be related to the legitimate interests of the person; activity of the public authority must have a significant and real impact on such interests.

For NGOs in the field of environmental protection, breach of rights or direct concern is presumed.

Other legal entities

Breach of individual rights or restriction of individual freedoms by activity of public authorities. Rights or freedoms may arise directly from the constitution or other laws.

Breach of individual rights by activity of public authorities. In environmental matters, persons being directly concerned by the administrative activity may also file an application. Direct concern must be related to the legitimate interests of the person; activity of the public authority must have a significant and real impact on such interests.

Ad hoc groups

Ad hoc groups are only entitled to challenge administrative activity in environmental matters and if they are active in the field of environmental protection. Breach of rights or freedoms is required, but also presumed for such ad hoc groups to have standing in administrative challenge procedures.

Ad hoc groups are only entitled to file actions with courts in environmental matters and if they are active in the field of environmental protection. Breach of rights or direct concern is required, but also presumed for such ad hoc groups to have standing.

foreign NGOs

Breach of individual rights or restriction of individual freedoms by activity of public authorities. Rights or freedoms may arise directly from the constitution or other laws.

Breach of individual rights by activity of public authorities. In environmental matters, persons being directly concerned by the administrative activity may also file an application. Direct concern must be related to the legitimate interests of the person; activity of the public authority must have a significant and real impact on such interests.

For EU-based NGOs in the field of environmental protection, breach of rights or direct concern is presumed in fields regulated by EU law (e.g. IPPC, EIA) according to the non-discrimination principle.

Any other

State authorities may not challenge the activity of other state authorities, as they are not separate legal entities. At the same time, local municipalities may challenge activity of other public authorities if their rights are breached or freedoms restricted. Same applies for other public legal persons (e.g. universities, public foundations etc.)

State authorities may not challenge the activity of other state authorities, as they are not separate legal entities. At the same time, other public legal persons (e.g. universities, public foundations etc.) may challenge activity of other public authorities if their rights are breached.

Local municipalities may also challenge activity of other public authorities if their rights are breached or the challenged activity hinders of impairs the fulfillment of their functions.

Most of sectoral and procedural legislation in the field of environmental law does not contain special provisions on legal standing. This is also the case in the field of environmental impact assessment and integrated pollution prevention and control. Therefore, you are eligible for filing an action according to general rules found in the Code of Administrative Court Procedure. Special rules are, however, found in the field of spatial planning. In spatial planning matters, legal standing rules are different than in other areas of administrative law, including environmental laws. According to the Spatial Planning Act, you are entitled to file an action with the administrative court to challenge the decision to establish a spatial plan if:

  • your rights have been infringed or your liberties restricted;
  • you consider the decision to be contrary to laws or other legal acts.

This means that you can challenge the final administrative decision regarding a spatial plan on the grounds of legality, without demonstrating concern. The Chancellor of Justice is considered to be a separate legal entity; therefore it has the right to challenge activity of public authorities to protect its own rights by means of both administrative challenges and by filing an action with the court. In addition to it, the Chancellor of Justice has the right to initiate disciplinary proceedings against judges. Disciplinary proceedings may be brought if the judge has unlawfully not fulfilled its professional duties or has fulfilled them inappropriately. Disciplinary proceedings are discussed by a Disciplinary Chamber consisting of judges from different levels of the court system. Public prosecutors have exclusive standing in criminal proceedings, i.e. only they may bring charges for criminal offences (kuriteod). The Environmental Inspectorate has legal standing in courts in case of environmental misdemeanors (väärteod). For misdemeanors, the Inspectorate may impose fines on their own; detention on the other hand can only be imposed by courts on the application of the Inspectorate.

VIII. Legal Representation

In court proceedings on environmental matters you may choose to represent yourself, or use a professional legal representative. You may contract the following persons to represent you in courts:

  • Link opens in new windowadvocates (advokaat) who belong to the Link opens in new windowEstonian Bar Association;
  • persons with higher legal education, i.e. persons who have obtained at least a Masters’ degree in Law or equal qualification.

Only sworn advocates may represent you in the highest court – Supreme Court of Estonia. Legal representatives are entitled to act on your behalf and represent you even in your absence. At the same time you may also restrict the powers of your contractual representative. Restriction of powers is considered by the court only if you notify the court and other parties of it. Courts only take into account restrictions to:

  • end the proceedings with a compromise; or
  • waive an action.

You may also use counsels in court proceedings on environmental matters. Unlike legal representatives, legal counsels are generally not allowed to act on your behalf and without your presence. However, they are entitled to take part of the proceedings with you and also make statements and claims etc. Such statements, claims etc. are attributed to you, unless you immediately correct them. Courts will also explain this right to you if you decide to use a counsel. A list of all law offices associated with the Estonian Bar Association sorted by their location can be found Link opens in new windowhere. Several more prominent law offices also list environmental law as a field in which they offer legal services (including representation), e.g.:

Legal assistance (including representation) in environmental matters is also provided Link opens in new windowby Estonian Environmental Law Centre. The latter is a public interest NGO; therefore they do not provide legal assistance in cases where this would be contrary to public interests.

IX. Evidence

In environmental matters, just like in other administrative matters, you are supposed to provide evidence that supports your claims. You should provide evidence either with your action or in the preliminary proceedings (before hearing of the matter) the latest. If you are unable to provide evidence (e.g. when data is held by a private person who refuses to share it), you should explain why this is not possible and where the evidence could be found. If the courts find that there is not enough evidence, they may either ask you to provide it or gather it on their own. If you do not provide evidence to support a claim and the court is unable to gather evidence on its own, the court may decide that your claim is unsubstantiated. No type of evidence is in principle preferred by the court. Also, parties may not limit the types of evidence admissible or give priority to some type of evidence. All evidence is evaluated from all perspectives, as a whole and objectively, taking also into account the links between different evidence. Judges make the final decision on whether a claim has been proven by the evidence based on their conscience. You should provide evidence during the preliminary proceedings (before the hearing of the matter) at the latest. You may introduce new evidence after court has started the hearing only in the following exceptional cases:

  • the court does not organize a court session (e.g. in written proceedings) and no deadline for providing evidence was set before the hearing started;
  • providing new evidence does not delay the court proceedings; or
  • you can prove you had a good reason for delay.

Courts may request a party to the proceedings or its employee, any public authority, insurance company or credit institution (e.g. bank, investment fund) to provide information that is necessary for solving the dispute and is presumed to be in the hands of that person. Courts will set a deadline and the persons are obliged to provide information within that time. If they breach that obligation, the court may impose a fine. If you want to use an expert opinion in court proceedings as evidence you may contract an expert and provide his/her opinion as evidence. Alternatively, you may also ask the court to organize an expert opinion in the preliminary proceedings (before the court hearing). Courts may ask for an expert opinion to determine an issue that is important for the case and requires expert knowledge. Expert opinions are treated as other types of evidence, i.e. they are evaluated together with other relevant information to determine whether a claim has been proven or not. Therefore they are not directly binding on judges. On the other hand, the courts may not challenge the results of the expert opinion on their own motion.

X. Injunctive Relief

If you challenge an administrative decision either in court or by means of administrative challenge (vaie), it does not automatically affect its legal effect. This means that despite the challenge, the decision may still be executed. For example, if the decision allows a company to emit pollutants in the ambient air, it may do so even if you have filed an action against the decision with a court. Administrative decisions may in principle be executed from the moment they become valid. If the decision does not have to be announced publicly, it will become valid as soon as the person to whom it is addressed is notified. If the decision has to be announced publicly, it usually becomes valid on the 10th day after publication. Challenging the act either by means of administrative challenge (vaie) or in court does not automatically affect the validity of the decision. This means that they can be executed immediately once they have become valid. If you challenge an administrative decision regarding and environmental matter in court you may apply for injunctive relief. At the same time, injunctive relief can at any time be applied by the court on its own motion as well. Injunctive relief can take many forms – you may apply for the court to:

  • suspend the validity or execution of the administrative decision;
  • prohibit the administrative body to make the challenged decision;
  • require the administrative body to make the challenged decision;
  • seize assets;
  • prohibit the person addressed by the decision (e.g. mining company that received a mining permit) to carry out activities regulated in the decision or oblige them to carry them out or set additional obligations to that activity, e.g. provide securities to you.

If you choose to challenge an administrative decision by means of administrative challenge (vaie), you may also apply for injunctive relief to be applied by the court. You can apply for injunctive relief at any time during court or administrative challenge proceedings (vaie), so there is no deadline. You do not have to provide any security for possible damages or economic loss that may result from application of the injunctive relief. At the same time, you have to pay a state fee for the application. In your application for injunctive relief you would have to provide at least the following:

  • object of the dispute;
  • reasons for applying (circumstances that necessitate it);
  • preferred measure of injunctive relief;
  • your personal identification and contact information.

Injunctive relief is only applied by the courts if protection of your rights or achievement of the goal of your challenge would otherwise be impracticable or impossible. Courts will make a decision on injunctive relief by a court ruling. You can challenge this court ruling by filing an appeal within 15 days of its delivery. You should address the appeal to the district court but file it with the administrative court that made the decision you are challenging. The administrative court will consider the admissibility of the appeal and prepare the review of it in the district court or satisfy it on its own.

XI. Costs

If you wish to file an action with the court you should take into account two categories of possible costs: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud). Court expenses are costs that are essential for hearing the matter, i.e. state fee (riigilõiv), security and costs essential to the proceeding (e.g. costs related to witnesses, experts, obtaining evidence etc.). Extrajudicial expenses are costs that are not essential for hearing the matter, e.g. fees for legal advisers and contractual representatives, travel costs of participants of the proceeding, wages not received because of the dispute etc. If you wish to start a case against an administrative decision, you should pay the respective state fee. You should pay another fee for appealing to the district court on a judgment or court ruling of the administrative court. More information can be found here.

XII. Financial Assistance Mechanisms

Administrative courts can exempt you from paying state fees and security as well as costs essential for the proceeding (e.g. costs related to witnesses, experts, obtaining evidence etc.). You can be exempted from these costs as a whole or only partially. Another option is that you do not have to pay them in advance at once (as is the rule), but can pay for them in installments. To receive an exemption you need to apply for it. In the application, you have to provide following information:

  • proceedings for which exemption is applied for;
  • your role in these proceedings as well as your main claims;
  • basis for your claim or objection.

If you apply for the exemption as a natural person (individual), you need to add a statement on your financial situation (as well as your family’s) and other documents proving that statement. Forms for the statement and application for exemption together with additional information can be found on the Link opens in new windowweb page of Ministry of Justice. The application must be written either in Estonian or in English. If you apply for the exemption as a representative of a legal person (organization) you need to add a copy of the statute of that organization and the certified copy of the previous year’s annual report. After receiving the application and additional documents, the court will decide whether to exempt you from costs and to which extent. Exemption is granted only if you cannot pay for the costs due to your economic situation and your participation may be presumed to be successful. Exemptions will not be granted if:

  • you clearly do not have standing;
  • possible benefits to you from the judgment would not be proportional with the costs to the costs, or
  • your aims cannot be achieved with the challenge.

Direct financial assistance is not available for court proceedings. You can only be exempted from the costs that have to be paid in advance (see above) or receive state-funded legal assistance. In addition to being exempted from the costs you can also receive state-funded legal assistance. State legal assistance is provided by lawyers (Bar association members) who are initially paid by the state. This does not mean that the assistance would be unconditionally for free. In some cases, you still have to pay a part of the costs or do so in installments either before or after the judgment. The conditions to applications and review of applications are the same as for exemption of costs by court (see above). Additional forms and information can be found on the Link opens in new windowweb page of Ministry of Justice. Law firms do not generally provide free legal aid, although there might be very exceptional cases. There are two main legal clinics where students of law provide legal assistance to the public for free – in Tallinn and Tartu. Neither of the legal clinics has defined the areas in which they provide assistance. At the same time, as students their knowledge of specific areas like environmental law might be restricted. In addition to students’ legal clinics, “legal pharmacies” operate in Tallinn, Tartu and Jõhvi (currently known to do so until 15 December). Professional lawyers provide free legal assistance in them, but unfortunately none of them is specialized in environmental law. The Estonian Environmental Law Centre is a public interest environmental law organization that operates in Tartu. In the past they have provided free legal aid on a project basis to the public. In addition to it, they provide paid legal assistance in environmental matters to the public on a regular basis. More information on the conditions of the service can be found on their Link opens in new windowhome page.

XIII. Timeliness

In Estonia, there is no generally applicable time limit for all administrative decisions. There are, however, specific deadlines for some types of decisions. For example, the Environmental Board is obliged to make a decision on application for integrated environmental permit within 120 days. If the administrative body sees that it cannot deliver its decision within the time provided in law, it should notify the requestor of the likely timeframe and give reasons for the delay. If your rights are infringed because of the delay, you are entitled to damages caused to you by delay or you may challenge the delay in an administrative court or by means of administrative challenge (vaie). In cases where this is so provided in the law, delay may be regarded as an implicit approval to an application for favorable decision (e.g. some permit). If you wish to file an action against an environmental administrative act, you should normally do this within 30 days. The deadline begins with the date on which you were notified of the decision. Exceptionally, the deadline in which you can file an action is three years, if:

  • you seek compensation for damages caused by an administrative body;
  • you seek elimination of illegal effects of an administrative act;
  • you wish that the administrative act would be declared illegal.

The court will firstly review the action and give you 15 days to amend or complete it if it contains minor shortcomings. When a court session is organized, the period between delivering you action to other parties and the session must be at least 30 days. You may submit new facts or requests after submitting an action only if they can be delivered to the other parties by the court at least 7 days before the court session. In case of written proceedings, they are allowed if they can be delivered to other parties at least 7 days before the due date for providing documents. The court must make and announce its judgment within 30 days of the last court session (of the due date for providing documents in case of written proceedings). In exceptional cases (e.g. when the volume of materials is exceptionally large or the case unusually complex) this deadline can be extended to 60 days. To file an appeal on the judgment made by the administrative court to the district court, you must do so in 30 days of its announcement. Appeals to Supreme Court on judgment of the district court also have to be submitted within 30 days. If you wish to challenge a court ruling, you must file an appeal within 15 days. As environmental matters can be quite different in their complexity, both factually and legally, it is hard to say how long the case will last. Another factor that makes it hard to assess how long environmental matters will take in a court is the limited practice in this field. However, average proceeding time in first instance courts in 2013 was following:

Civil cases – 168 days

Criminal cases – 262 days

Misdemeanour cases – 62 days

Administrative cases – 144 days

As environmental cases are rather complex compared to many other administrative law cases, they might take longer than the average brought out above. There is no particular deadline set for solving a case as such, only a very general requirement to solve it within “reasonable time”. However, there is a deadline for making a judgment after the court has gathered enough information. After the last court session or due date for presenting documents in case of written proceedings, the court is obliged to deliver its judgment within 30 days. Only exceptionally (e.g. when there is a large amount of materials or the case is extremely complex factually or legally), may this deadline be extended to 60 days. You may not appeal against a judgment only because it was delivered in delay. You also cannot apply for damages caused by the delay unless a judge has also committed a criminal offence (e.g. has accepted a bribe for delaying the judgment). However, disciplinary action may be taken against a judge, if it fails to deliver the judgment on time and does so either intentionally or out of negligence. Disciplinary action may be taken against a judge only by chairmen of administrative courts, district courts and Chief Justice of Supreme Court as well as Link opens in new windowChancellor of Justice.

XIV. Other Issues

As a rule, challenging environmental decisions is only possible after the final decision – administrative act (haldusakt), e.g. environmental permit, spatial plan etc. – has been issued. Therefore, environmental decisions are usually challenged after the administrative procedure aimed at making an administrative decision that would affect individuals’ rights is completed. Complete, detailed and easily understandable information on access to justice in environmental matters is not available. Additionally, most of materials available have been compiled before the adoption of the new Code of Administrative Court Procedure and some information might be outdated. There are, however, a few sources of information that might be of some use:

  • Link opens in new windowinformation on filing an action with an administrative court, procedural rules etc. As there are only a very limited number of specifics in the field of environmental law (mainly less strict rules on legal standing), most of it is applicable (in Estonian);
  • Link opens in new windowadvice on access to justice to ad hoc groups in environmental matters (in Estonian)
  • Link opens in new windowsome advice on access to justice in environmental matters (in Estonian)

There are two official methods of alternative dispute resolution you can use in environmental matters. Firstly a court case may be brought to an end by means of a compromise. Secondly, conciliation as a specific type of proceedings is available as of 1 January 2012 (since the entry into force of the new Code of Administrative Procedure). Parties can reach a compromise as a result of extrajudicial negotiations between them. If the compromise would affect rights of third parties, their approval is also needed. In order to bring a case to an end by compromise, the court must approve it. Courts may refuse the approval if it is illegal, impossible to fulfill or infringes rights of third persons that have not been included in the proceedings. Conciliation is a special type of administrative court proceedings in which the parties solve a dispute by means of negotiations under the direction of a judge. Conciliation proceedings are only used if parties and third persons agree with it. You may decide to quit conciliation proceedings at any time; in that case the usual adversary proceedings will be used to resolve the dispute. Conciliation is only available in administrative courts – courts of first instance.

XV. Being a Foreigner

In general, same procedural rules apply to you if you are a foreigner and want to challenge an administrative decision in Estonian administrative courts. If you wish to act as a representative of a foreign legal person (organization), you should additionally provide proof of its legal capacity and authorized representatives. Court proceedings are carried out only in Estonian, this means that all documents and statements must normally be translated or interpreted. Exceptionally, you may make statements in another language without translation or interpretation if you do not speak Estonian and all other parties understand your statements. If you present a written statement or a document in a foreign language, the court will require it to be translated by you or organize its translation. Court will not require you to translate the document if it is unreasonably complicated or impossible. If translation is required and you fail to provide a translation by the due date set by the court, the document or written statement may be disregarded. You may also ask the court to organize the translation (in that case you would still have to pay for the translation). If possible, court translators are used. For their services, you must pay a state fee. If you do not speak Estonian, the court will include a translator in the proceedings on your application or on his own behalf. If this cannot be done immediately, the court will require you to find an interpreter or a representative that speaks Estonian. If you do not do so within the due date set by the court, your action may be disregarded. If this is unreasonably complicated or impossible, the court may look for a translator itself. In any case, you will have to pay for the associated costs. If the court organizes translation, court translators are used, is possible.

XVI. Transboundary Cases

If you as a foreigner wish to challenge an administrative decision that has consequences to the environment in Estonia you may do so according to the same rules as Estonian nationals and companies do. Most importantly:

  • only activities of Estonian administrative bodies may be challenged in Estonian courts;
  • both procedural as well as substantive legality of administrative activities may be challenged;
  • as a rule, you are allowed to challenge an administrative act (haldusakt) if it infringes your rights;
  • in environmental matters, you may also challenge an administrative act that concerns your legitimate interests;
  • for environmental protection NGOs and associations of persons, infringement of rights and concern legitimate interests are presumed;
  • exceptionally you may also challenge administrative procedural acts (menetlustoimingud) of administrative bodies (if these infringe your rights independently of the final act or would definitely lead to an illegal final act);
  • both individuals and organizations (legal persons) may file an action; in environmental matters, an association of persons that is not a legal entity may exceptionally also file an action.

There are no specific rules on cases that involve environmental issues in another country. However, principles of non-discrimination are applied in EU law. This means that if a certain environmental issue is regulated by EU law (e.g. environmental impact assessment, ambient air quality etc.), access to courts of nationals of other EU countries must be equal to that of locals. Therefore, you as a foreigner from another EU country may file an action with an Estonian court in cases where an administrative activity (decision) results in environmental issues in your country. As usual, both the procedural as well as substantial legality of the activity may be challenged. To have a standing, you must prove that either your rights have been infringed or your legitimate interest concerned by the administrative activity. The principle of non-discrimination also applies to other procedural rules besides standing. You have the right to apply for state legal assistance (you may also fill in the application in English, more information available on the Link opens in new windowhome page of the Ministry of Justice. You are also entitled to request for provisional protection of your rights. However, you should note that the court proceedings take place in Estonian; therefore you might need an interpreter if you do not speak the language. Costs for interpreter may also be covered by the state legal assistance. According to the non-discrimination principle, when challenged administrative activity is based on EU legislation, same rules as for locals are applied for determining which foreign persons may challenge it. This means that an activity may be challenged by foreign:

  • individuals (natural persons);
  • organizations (legal persons);
  • contractual associations of persons that are not legal entities (not registered as such),

in case:

  • their rights have been infringed, or
  • their legitimate interests are concerned.

In case of environmental protection NGOs and contractual associations, infringement of rights or concern of legitimate interests is presumed. You may not choose a country for filing your action in an environmental matter according to Estonian Code of Administrative Court Procedure. According to it, you cannot file an action against administrative bodies of other countries with Estonian courts. On the other hand, you may only file an action against an Estonian administrative body with the Estonian administrative court that has jurisdiction in the location of that administrative body.

Related Links

Legislation

Other information

Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Ireland

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

The Constitution and environmental rights

The Constitution of Ireland (Bunreacht na hÉireann), which dates from 1937, does not contain any reference to the environment or to environmental rights. Legislation provides that the European Convention on Human Rights (ECHR), to which Ireland is a Party, has effect in the domestic legal order at a sub-constitutional level: European Convention on Human Rights Act 2003. The European Court of Human Rights has determined that Article 8 ECHR (the right to respect for the home, private and family life) may be engaged in the case of severe environmental pollution that impacts on enjoyment of the home. Article 1 of the First Protocol to the ECHR (the right to property) and Article 6 (the right to a fair hearing) are also potentially relevant in the environmental protection context. Both of these rights also find expression in the Irish Constitution.

The Constitution and access to justice

Article 6 of the Constitution provides for the Separation of Powers between the legislative, executive and judicial branches of government. Article 34 provides for the administration of justice in courts established by law and by judges appointed in accordance with the Constitution.

Right of access to the courts and right to litigate

There is no express (or explicit) right of access to justice in the Irish Constitution, but the courts have recognised an unspecified (or “unenumerated”) constitutional right of “access to the courts”, and a constitutional right to litigate: Macauley v Minister for Posts and Telegraphs [1966] IR 345. The right to litigate is not absolute, however, and the State may place objectively justifiable and proportionate limitations on this right (e.g. by setting reasonable time limits within which proceedings must be brought). Parties to litigation are entitled to fair procedures, often described as “constitutional justice”, which has also been recognised by the courts as an unspecified constitutional right. There is no express constitutional right to legal aid. However, the courts have recognised a constitutional right to legal aid where an accused is facing a serious criminal charge and is unable to fund legal representation from their own resources. As regards legal aid in civil cases, the courts have accepted that a constitutional right to civil legal aid may arise in limited circumstances as an aspect of the constitutional right of access to the courts and the right to fair procedures, where a plaintiff is not in a position to fund legal representation from their own resources. However, the precise parameters of any such rights have yet to be fully determined.

Irish law and international agreements

Article 29.6 of the Constitution provides that no international agreement forms part of the domestic law of the State except as may be determined by the National Parliament (Oireachtas). This provision means that legislation must be put in place in order to give effect to international agreements in the domestic legal system. Ireland ratified the Aarhus Convention on 20 June 2012 and the Convention entered into force on 18 September 2012. As Ireland has a dualist legal system, it was necessary to transpose all provisions of the Convention into national law prior to ratification.

II. Judiciary

Main features of the judicial system

Ireland is a common law jurisdiction with an adversarial legal system. Article 34 of the Constitution provides that justice must be administered in courts established by law and by judges appointed in the manner set down in the Constitution. Article 37 provides that “limited” functions and powers of a judicial nature (in matters other than criminal matters) may be exercised by persons or bodies authorised by law, notwithstanding that the person or body is not a judge or a court. Article 35.2 of the Constitution provides that the judges are independent in the exercise of their judicial functions, subject only to the Constitution and the law. Generally speaking, court proceedings are open to the public, but some exceptions to this rule are provided for by law, for example in family law cases. The structure of the courts system is set down in Article 34 of the Constitution. It provides for a Court of Final Appeal (the Supreme Court) and Courts of First Instance, which include a High Court (with full original jurisdiction in all civil and criminal matters) and courts of local and limited jurisdiction (the Circuit Court and the District Court) which are organised on a regional basis and deal with both criminal and civil matters. The High Court is known as the Central Criminal Court when it is exercising its criminal jurisdiction. Matters concerning the constitutionality of laws may only be determined by the High Court, with an appeal to the Supreme Court. The bulk of civil cases, with some limited exceptions, are determined by a judge sitting without a jury. In criminal cases, minor offences are tried in courts of summary jurisdiction without a jury, but more serious offences, which are tried on indictment, give rise to a jury trial. While there is a limited right of private prosecution, the Director of Public Prosecutions (DPP) institutes most prosecutions on behalf of the State.

Legislation may provide that specified offences may be prosecuted by the relevant public authority. Under the Planning and Development Act 2000, as amended, (PDA) summary proceedings for the bulk of the offences created under the PDA may be brought and prosecuted by a planning authority. Many environmental statutes expressly provide that certain offences may be prosecuted summarily by the competent authority, for example the Environmental Protection Agency Act 1992 (as amended) provides that an offence under that Act may be brought and prosecuted summarily by the Agency. Similarly, the Waste Management Act 1996 (as amended) provides that summary offences under that Act in respect of breach of a condition attached to a waste licence may be brought and prosecuted by the Agency. More serious offences are tried on indictment and prosecuted by the DPP.

The Courts Service of Ireland manages the courts, provides support services to the judiciary and provides information to the public on the courts system. More detailed information on the structure of the courts system and the jurisdiction of the different courts is available on the Courts Service website: Link opens in new windowhttp://www.courts.ie/Judgments.nsf/Webpages/HomePage?OpenDocument.

Courts, Tribunals, Boards and other public authorities with environmental decision-making responsibilities

No specialist administrative or environmental courts

There are no specialist administrative or environmental courts in Ireland. Criminal prosecutions are brought in the ordinary courts, in practice usually in the District Court for the area in which the offence was allegedly committed, with more serious offences being tried on indictment in the Circuit Court. The High Court exercising its criminal jurisdiction is known as the Central Criminal Court. It tries criminal cases which are outside the jurisdiction of the Circuit Court which mainly include murder and rape trials and criminal trials under the Competition Act 2002. All civil planning and environmental litigation is dealt with by the ordinary courts.

Public authorities /State agencies with environmental decision-making responsibilities

There are a number of public authorities and State agencies with specific environmental decision-making responsibilities and the following are the most significant in practice:

Local authorities

Local (planning) authorities determine the bulk of applications for planning permission, subject to a number of important exceptions, and are also charged with planning enforcement. Local authorities are also responsible for determining applications for water pollution and air pollution licences and for issuing waste permits for certain facilities.

An Bord Pleanála

An Bord Pleanála (The Planning Appeals Board) has a wide range of functions vested in it by legislation which include determining appeals from decisions taken at first instance by planning authorities. Further information at: Link opens in new windowhttp://www.pleanala.ie/. The Board is the consent authority for certain categories of development including, for example, strategic infrastructure development (involving applications for permission for development for energy, transport, environmental and health infrastructure) and State development which is subject to environmental impact assessment. It is also responsible for dealing with proposals for the compulsory acquisition of land by local authorities. The Board is charged with determining appeals under water pollution and air pollution legislation. However, legislation is currently being prepared that will transfer responsibility for licencing appeals under the Air Pollution Act 1987 to the EPA, given the Agency’s particular expertise in this area.

Environmental Protection Agency

The Environmental Protection Agency (EPA) is the consent authority for a range of statutory licensing schemes including: Integrated Pollution Control (IPC) and Industrial Emissions; waste; waste water discharges; genetically modified organisms (both contained use and deliberate release); emissions trading, volatile organic compounds (VOCs); and dumping at sea. Further information on the EPA’s licensing functions is available at: Link opens in new windowhttp://www.epa.ie/

Aquaculture Licences Appeals Board

The Aquaculture Licences Appeals Board (ALAB) determines appeals against decisions on applications for aquaculture licences taken by the Department of Agriculture, Food and the Marine (Aquaculture and Foreshore

Management Division). Further information at:

Link opens in new windowhttps://www.agriculture.gov.ie/seafood/aquacultureforeshoremanagement/aquaculturelicensing/ and Link opens in new windowhttp://alab.ie/.

Other consents in specific sectors

Beyond land-use planning, water pollution licences, air pollution licences and the licences and consents falling within the remit of the EPA, there is a wide range of consent systems across various sectors. Government Ministers have a role in certain areas, for example, the Minister for Environment, Community and Local Government is responsible for activities on the foreshore and the Minister for Communications, Energy and Natural Resources is responsible for certain permits under the Gas Act 1976 (as amended) and the Petroleum and Other Minerals Development Act 1960 (as amended).

Review of decisions

Apart from planning decisions taken by local planning authorities, which may, in most cases, be appealed to An Bord Pleanála, the general position is that challenges to decisions taken by public authorities may only be made by way of judicial review proceedings in the High Court.

Forum shopping

Forum shopping (i.e. where a litigant chooses the court that is most likely to give a favourable outcome) is not an issue in the Irish legal system because the options for redress in the planning and environmental law context are very specific. In most cases, the only mechanism by which to challenge the decision of a public authority is by way of judicial review proceedings in the High Court. The general position is that in order to be entitled to bring judicial review proceedings in the High Court, a plaintiff must first have pursued any appropriate administrative appeal that may be available in the particular circumstances.

Judicial Appeals and extraordinary remedies

Judicial appeals

The general position regarding appeals in the courts system is as follows: there is an appeal to the Circuit Court from decisions of the District Court in civil and criminal matters with some exceptions. There is an appeal to the High Court from decisions of the Circuit Court in civil law matters. The main function of the Supreme Court is to hear appeals from cases that are commenced in the High Court. On the criminal side, the Court of Criminal Appeal hears appeals from people convicted on indictment in the Circuit Court and the Central Criminal Court (i.e. the High Court when exercising its criminal jurisdiction). There is no automatic right to appeal to the Court of Criminal Appeal. A certificate is required from the trial judge or, if a certificate is refused, the Court of Criminal Appeal may give leave to appeal. The Director of Public Prosecutions may also appeal to the Court of Criminal Appeal on the grounds of an unduly lenient sentence. There is a limited possibility of appeal to the Supreme Court from decisions of the Court of Criminal Appeal and the Central Criminal Court.

Case Stated

Legislation provides for the District Court to obtain the opinion of the High Court on a question of law that arises in the course of proceedings: Summary Jurisdiction Act 1857, section 2, as extended by Courts (Supplemental Provisions) Act 1961, section 51(1) (appeal by way of case stated) and Courts Supplemental Provisions Act 1961, section 52 (consultative case stated). The Circuit Court may state a case to the Supreme Court: Courts of Justice Act 1947, section 16. When hearing an appeal from the Circuit Court, the High Court has power to refer any question of law arising in the appeal to the Supreme Court by way of case stated: Courts of Justice Act 1936, section 38.

Judicial review

Judicial review proceedings in planning and environmental matters must be brought in the High Court. The High Court’s decision is final. However, decisions may be appealed to the Supreme Court where the High Court certifies that its decision “involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court”: Planning and Development Act 2000 (as amended), section 50A(7). The statutory restriction on an appeal to the Supreme Court does not apply where the High Court’s decision involves a question as to the constitutionality of any law.

“Extraordinary remedies”

The general position is that an order of the Supreme Court is final and conclusive. However, where exceptional circumstances are established, the Supreme Court has jurisdiction to intervene and to interfere with its own order: Re Greendale Developments (No 3) [2000] 2 IR 514 and Abbeydrive Developments Ltd v An Bord Pleanála [2010] IESC 8.

Judicial review and remedies

Judicial review is a discretionary remedy and it is for the High Court (or the Supreme Court in the event of an appeal) to determine what remedy is appropriate in the particular circumstances of each case. A wide range of remedies are potentially available in judicial review proceedings including:

  • a declaration;
  • an order quashing or annulling an unlawful decision (an order of “certiorari”);
  • an order directing a public authority to take specified steps (an order of “mandamus”);
  • an order prohibiting a public authority from taking specified steps (an order of “prohibition”);
  • an injunction;
  • and damages.

In practice, if judicial review proceedings are successful, the court will usually make a declaration that the planning or environmental decision in question is unlawful/invalid and will make an order quashing (annulling) that decision and directing that the matter be sent back (remitted) to the public authority in question for a fresh decision to be taken.

Judicial review procedure

Judicial review proceedings are brought in the High Court and a two-stage process applies. The first stage is an application for leave (or permission) from the High Court to bring judicial review proceedings. The second stage involves the substantive hearing of the application for judicial review.

Judicial review of planning decisions

Special statutory rules apply in the specific case of judicial review of planning decisions. These rules are found in the Planning and Development Act 2000 (as amended) (PDA) sections 50, 50A and 50B. The validity of most planning decisions taken by planning authorities and An Bord Pleanála may only be challenged by way of an application for judicial review in the High Court under Order 84 of the Rules of the Superior Courts 1986 to 2011 (RSC) (SI No 15 of 1986 as amended): PDA, sections 50(2) and (3). A person or organisation seeking to challenge a planning decision must first obtain permission (leave) from the High Court to bring judicial review proceedings. This is described in the PDA as “section 50 leave”. The court must not grant permission (leave) unless it is satisfied that the applicant seeking judicial review has a “sufficient interest” in the matter the subject of the application and that there are “substantial grounds” for alleging that the decision is invalid and ought to be quashed (annulled).

Time limits

The application for section 50 leave must be made within a period of eight weeks beginning on the date of the decision in question: PDA, section 50(6). The High Court has a discretion to extend time where it is satisfied: (i) that there is “good and sufficient reason” for extending time; and (ii) that the circumstances that led to the failure to make the application for leave within the statutory time period were outside the control of the person seeking the extension.

Application for leave to be made ex parte

The general position is that an application for section 50 leave is to be made ex parte (i.e. without a requirement for notice to be given to the respondent). However, the High Court has a discretion to direct that the application should proceed on an inter partes basis (i.e. on notice to the respondent and potentially also to other persons (e.g. the developer): PDA, section 50A(2)(b). Where the High Court directs that the matter proceed inter partes, the application for leave must be made by way of motion on notice to the relevant respondent public authority and to any other person specified by the court for that purpose: PDA, section 50A(2)(c). The High Court has a discretion to treat the application for section 50 leave as if it were the application for judicial review, in other words, to “telescope” the two stages of the judicial review application into one hearing: PDA section 50A(2)(d). The High Court may adopt this approach: (i) with the consent of all of the parties; or (ii) where there is “good and sufficient reason” for taking this approach and “it is just and equitable in all the circumstances”.

“Substantial grounds” and “sufficient interest”

The High Court must not grant section 50 leave unless it is satisfied that there are “substantial grounds” for contending that the decision being challenged is invalid or ought to be quashed (annulled): PDA, section 50A(3)(a). The courts have interpreted this requirement to mean that in order to be considered “substantial” a ground of challenge must be “reasonable”, “arguable” or “weighty” and must not be “trivial or tenuous”. As regards standing (locus standi), the court must be satisfied that the applicant has a “sufficient interest” in the matter which is the subject of the application for judicial review: PDA, section 50A(3)(b). There is no definition of what constitutes a “sufficient interest” in the text of the PDA, but section 50A(4) explains that this concept “is not limited to an interest in land or other financial interest”. In the specific case of proposed development that is subject to Environmental Impact Assessment (EIA), special standing rules apply to environmental non-governmental organisations (NGOs) that meet certain conditions: PDA, section 50A(3)(b)(ii).

Undertaking as to damages

As a condition of granting section 50 leave, the High Court may require the applicant to give an undertaking as to damages: PDA, section 50A(6). An undertaking as to damages means that if the applicant is not successful in the judicial review proceedings, there is an obligation to compensate the respondent (or any other party in whose favour the court grants an undertaking, for example, the potential developer) for any loss incurred as a result of being restrained from acting on the planning permission.

Expeditious hearing of planning judicial review

In determining an application for section 50 leave, or an application for judicial review on foot of such leave, the court must “act as expeditiously as possible consistent with the administration of justice”: PDA, section 50A(10).

Challenges to certain decisions of the Environmental Protection Agency

Special statutory rules apply where a challenge is mounted to certain decisions taken by the EPA. An application for judicial review challenging the validity of a decision of the EPA to grant, or refuse to grant, an Integrated Pollution Control (IPC) or Industrial Emissions Directive (IED) licence, must be instituted within the period of eight weeks from the date on which the licence is granted or the date on which the decision to refuse to grant the licence is made: section 87(10) of the Environmental Protection Agency Act 1992. The High Court may, on application to it, extend the eight week period where it considers, in the particular circumstances, that there is “good and sufficient reason” for doing so. A similar provision is found in section 43(5) of the Waste Management Act 1996 which governs challenges by way of judicial review to a decision of the EPA to grant, or to refuse to grant, a waste licence.

Judicial discretion to raise points of law ex officio

The general position in Irish law is that the scope of the proceedings is defined or limited by the arguments put forward to the court by the parties to the litigation. The courts have a discretion to raise points of law of their own motion (usually described as raising a point of law ex officio), but this rarely occurs in practice. In cases where a court decides to raise a point ex officio, the parties will be invited to make submissions on the point.

III. Access to Information Cases

Procedures governing requests for access and remedies where access is denied

The European Communities (Access to Information on the Environment) Regulations 2007 (SI No 133 of 2007) as amended by the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011 (SI No 662 of 2011) (the AIE regulations) transpose Directive 2003/4/EC on public access to environmental information.

Procedural rules governing requests for access to environmental information

Article 6(1) of the AIE regulations provides that a request for environmental information must:

(i)             be made in writing or in electronic form (e.g. email);

(ii)            state that the request is made under the AIE regulations; [1]

(iii)           state the name, address (and any other relevant contact details) of the applicant;

(iv)           state the environmental information that is the subject of the request as specifically as possible; and

(v)            specify the form or manner in which the applicant requires access to the information requested (if

relevant).

Article 7(7) provides that where a request is made to a public authority which could reasonably be regarded as a request for environmental information, but which does not expressly state that it is made under the AIE regulations (or under the Freedom of Information regime), the public authority is required to inform the applicant of their rights under the AIE regulations and offer assistance in exercising those rights.

An applicant is not required to state their interest in making the request: AIE regulations, Article 6(2). Where a public authority refuses a request for access to environmental information, either in whole or in part, it must comply with certain obligations under Article 7(4) of the AIE regulations, including an obligation to specify the reasons for the refusal and to inform the applicant of their rights of internal review and appeal, including the time limits within which such rights may be exercised.

Remedies where a request for access is delayed or denied

Under the AIE regulations, where a request is refused, or where an applicant believes that their request has been wrongfully/inadequately answered, two administrative remedies are available in the first instance: internal review and an appeal to the Commissioner for Environmental Information. Thereafter, there is the possibility of an appeal on a point of law to the High Court from a decision of the Commissioner. Judicial review of the Commissioner’s decision is also an option.

Administrative remedies

Internal review

An applicant may request an internal review of the public authority’s decision on a request for access to environmental information within one month of the decision on the request for access: AIE regulations, Article 11.

There is no charge for requesting an internal review. An internal review must be carried out by a person designated by the public authority who is not connected with the original decision, and whose rank is the same as, or higher than, that of the original decision maker. On internal review, the decision-maker may affirm, vary or annul the original decision and, where appropriate, may direct the public authority to make the environmental information available. Public authorities are required to notify the applicant of its decision within one month of the date of receipt of the request for internal review. Where the decision on internal review affirms the original decision, or varies it in a way that results in the request being refused, either in whole or in part, the public authority must specify the reasons for the decision and must inform the applicant of the right to appeal to the Commissioner for Environmental Information and the time limit within which this right may be exercised.

Appeal to Commissioner for Environmental Information

The Office of Commissioner for Environmental Information (“the Commissioner”) was established under Article 12(1) of the AIE regulations: Link opens in new windowhttp://www.ocei.ie/en/. The holder of this office is the person who currently holds the office of Information Commissioner under the Freedom of Information Acts 1997 and 2003. Article 12(3) of the AIE regulations provides that where a public authority affirms its decision, in whole or in part, following an internal review, the applicant may appeal to the Commissioner. An appeal must be initiated not later than one month after receipt of the internal review decision or, where a public authority fails to notify any decision following a request for internal review, not later than one month from the time when a decision was required to be notified to the applicant: AIE regulations, Article 12(4)(a). The Commissioner has a discretion to extend the time for lodging an appeal where it is reasonable to do so in the circumstances of a particular case: AIE regulations, Article 12(4)(b).

The normal appeal fee is €150, but a reduced fee of €50 applies in the case of an appeal by:

(i)             a medical card holder;

(ii)            a dependent of a medical card holder;

(iii)           or a person other than the applicant who would be affected by the disclosure of the environmental information concerned.

The Commissioner may waive all or part of the appeal fee in certain limited circumstances:

(i)             where the Commissioner deems an appeal to have been withdrawn if the public authority releases the requested information prior to a formal appeal decision;

(ii)            where an appeal is made in circumstances where the public authority failed to notify any decision on the original request for access to the applicant within the time period prescribed in the AIE regulations, and a decision refusing the request is deemed to have been made on the date of expiry of that period; and

(iii)           where an appeal is withdrawn by an appellant.

Under Article 12(6) of the AIE regulations, the Commissioner may require a public authority to make environmental information available and to examine and take copies of any environmental information held by a public authority and retain it for a reasonable period of time. Following an appeal, a public authority is obliged to comply with a decision of the Commissioner within three weeks after its receipt: AIE regulations, Article 12(7). In cases where a public authority fails to comply, the Commissioner may apply to the High Court for an order directing compliance: AIE regulations, Article 12(8). The Commissioner also has jurisdiction to refer any question of law arising in an appeal to the High Court for determination: AIE regulations, Article 12(9)(a).

Judicial remedies

Appeal to High Court on point of law

A party to an appeal to the Commissioner, or any other person affected by the Commissioner’s decision, may appeal that decision to the High Court on a point of law: AIE regulations, Article 13. Any such appeal must be brought not later than two months after the notice of the Commissioner’s decision was given to the party to the appeal. The High Court’s decision on any such appeal may be appealed to the Supreme Court.

Judicial review

The full original jurisdiction of the High Court may be invoked in judicial review proceedings to ensure that the hearing and determination of the appeal by the Commissioner is in accordance with the law.

Court may order release of information

The High Court, and the Supreme Court in the event of any appeal, may order that environmental information must be released.

IV. Access to Justice in Public Participation

Administrative procedures and appeals

The legislative schemes governing applications for planning permission, Integrated Pollution Control (IPC) and Industrial Emissions Directive (IED) licences, waste licences and other statutory consents, generally provide for public participation. This provision generally involves a statutory right for any person or organisation to make written submissions and observations on the application for permission/consent to the relevant decision-maker within a prescribed time period. In certain cases, a fee is payable as a precondition to making a submission, observation or objection (as the case may be). A fee is also payable to lodge an appeal with An Bord Pleanála. An Bord Pleanála or the Environmental Protection Agency (EPA) may decide to hold an oral hearing of objections as part of the decision-making process.

Planning decisions

The majority of planning decisions are taken at first instance at local level by planning authorities, with the possibility of an appeal to An Bord Pleanála. The relevant legislation provides that the applicant for planning permission (the developer), and any third party who made a submission or observation on the planning application (usually described as an “objector”), may lodge an appeal with the Board. Additionally, a neighbouring landowner who did not make a submission or observation on the planning application may seek permission from the Board to lodge an appeal. In the case of a decision that is subject to EIA, environmental NGOs that meet certain conditions may appeal even if they did not participate during the procedure before the planning authority. An appeal involves a full rehearing of the planning application on its merits. In the case of strategic infrastructure development, which involves applications for permission for certain types of energy, transport, environmental and health infrastructure, An Bord Pleanála is the consent authority. The Board is also the consent authority for State development which is subject to EIA. Planning legislation does not provide for an administrative appeal in the case of decisions taken by the Board on applications for strategic infrastructure development or for State development that is subject to EIA. Such decisions may be challenged by way of judicial review proceedings in the High Court.

Water and air pollution licences

Decisions taken in the first instance by local authorities on applications for water pollution and air pollution licences may be the subject of an appeal to An Bord Pleanála. It is expected that the function of determining appeals relating to air pollution licences will transfer from An Bord Pleanála to the EPA in the near future.

Integrated Pollution Control (IPC), Industrial Emissions Directive (IED) Licences and Waste Licences

Decisions on applications for Integrated Pollution Control (IPC) and Industrial Emissions Directive (IED) licences and waste licences are made by the Environmental Protection Agency (EPA). No provision is made in the relevant legislation for an administrative appeal in the case of EPA decisions on such licence applications. However, a person may make an objection to the EPA on its proposed determination of the licence application and may request an oral hearing of the objection. Decisions of the EPA on IPC and IED licences and waste licences may be challenged by way of judicial review.

Aquaculture Licences

The Aquaculture Licences Appeals Board (ALAB) determines appeals against decisions on applications for aquaculture licences taken at first instance by the Department of Agriculture, Food and the Marine (Aquaculture and Foreshore Management Division).

Exhaustion of administrative remedies prior to judicial review

Generally, where legislation provides specifically for an administrative appeal against a planning or environmental decision, any such administrative remedy must usually be exhausted before proceeding to invoke the High Court’s judicial review jurisdiction. So, for example, any right of appeal to An Bord Pleanála must normally be exhausted before proceeding to initiate judicial review proceedings.

Standard of review

In judicial review proceedings, the High Court reviews the legality of the contested decision. Such review will, therefore, involve a consideration of whether all statutory requirements were met and fair procedures observed. Under Irish law, there is limited judicial review of the substance or merits of planning and environmental decisions. The Irish courts recognise the technical expertise of decision-makers such as planning authorities, An Bord Pleanála and the Environmental Protection Agency (EPA), as the courts are not experts on planning and environmental matters. Under legislation, Parliament (Oireachtas) has vested the task of making planning and environmental decisions in these expert administrative bodies. Where the substance (merits) of a planning or environmental decision is challenged in judicial review proceedings, the High Court may quash (annul) such a decision where the decision in question is found to be “unreasonable” or “irrational”.

Judicial review of land use plans and zoning plans

Land use plans and zoning plans (for example Development Plans and Local Area Plans made by planning authorities) may be challenged by way of judicial review proceedings in the High Court. A special statutory scheme governs challenges to planning decisions. The relevant rules are found in sections 50, 50A and 50B of the Planning and Development Act 2000 (as amended) (PDA). A person or organisation seeking to challenge such a decision, including a decision to make a Development Plan or a Local Area Plan, must first obtain permission - “section 50 leave” - from the High Court to bring judicial review proceedings. The court must be satisfied that the applicant seeking judicial review has a “sufficient interest” in the matter the subject of the application and that there are “substantial grounds” for alleging that the decision is invalid and ought to be quashed (annulled) prior to granting leave. The availability of the leave stage is to act as a filtering process to identify unmeritorious claims at an early stage, thereby reducing costs and delay when a judicial review does not proceed. Where leave is granted, the High Court will review the legality of the contested decision.

Judicial Review of EIA decision-making

Challenging EIA screening decision

In planning law, where a planning authority decides at first instance that a proposed development is not likely to have significant effects on the environment, and therefore an Environmental Impact Assessment (EIA) is not required, the planning decision may be appealed to An Bord Pleanála. Where the Board takes the view, on appeal, that the proposed development does require an EIA, then the Board must require the developer to submit an Environmental Impact Statement (EIS) and the Board must carry out an EIA. Therefore a planning authority’s screening decision may be appealed to the Board. EIA screening decisions may be challenged by way of an application for judicial review in the High Court (if an appeal to the Board is available in a particular case, then that potential avenue of redress should usually be exhausted in the first instance before bringing judicial review proceedings). In practice, the High Court tends to recognise the expertise of planning authorities and An Bord Pleanála and their conclusion as to whether or not a proposed development is likely to have significant effects on the environment. However, where an applicant for judicial review can demonstrate that the decision-maker failed to comply with obligations arising under the EIA directive and/or national legislation transposing the requirements of the EIA directive, then the High Court may intervene and quash the contested decision and remit the matter to the relevant public authority for a fresh decision to be taken.

Challenging EIA scoping decision or challenging the adequacy of the EIS

Irish law currently does not provide for public participation in scoping decisions. However, it is possible to challenge the adequacy of the Environmental Impact Statement (EIS). The EIS is the document prepared by the developer and submitted to the decision-maker as part of the application for planning permission/consent. The adequacy of the EIS may be raised in the course of any appeal to An Bord Pleanála. A challenge (by way of judicial review) may be mounted to the legality of a planning decision on the basis that the EIS does not comply with the requirements set down in the Environmental Impact Assessment Directive (Directive 2011/92/EU) and/or the national legislative measures transposing this directive.

Review of final EIA decisions or authorisations

The bulk of planning applications determined at local level by planning authorities, including those involving EIA, may be the subject of an appeal to An Bord Pleanála. Where available, this administrative remedy should usually be exhausted in the first instance. Planning decisions may also be challenged by way of judicial review proceedings on the ground that the EIA conducted by the decision-maker was inadequate. The High Court will review the procedural legality of the contested decision.

Standing in EIA challenges

The usual standing requirement is that an applicant seeking leave to bring judicial review proceedings must demonstrate a “sufficient interest” in the matter which is the subject of the application for judicial review.

Standing and environmental NGOs in EIA challenges

Planning legislation makes special provision for certain environmental non-governmental organisations (NGOs) in the case of judicial review of planning decisions that are subject to EIA. NGOs that meet certain conditions do not have to demonstrate a “sufficient interest”: PDA section 50A(3)(b)(ii). The conditions are that the applicant seeking leave to bring judicial review proceedings:

(i)             is a body or organisation whose aims or objectives relate to the promotion of environmental protection;

(ii)            has pursued those aims or objectives during the period of 12 months preceding the date of the application; and

(iii)           meets any other conditions prescribed by the Minister for Environment, Community and Local Government. (Note: As of January 2014, no such additional conditions have been prescribed).

Injunctive relief in EIA challenges

An applicant seeking leave to bring judicial review proceedings to challenge a planning decision that is subject to EIA may seek interim or interlocutory relief from the High Court. The Rules of the Superior Courts 1986 (RSC) (as amended) provide that where leave is granted, the court, where it considers it just and convenient to do so, may grant interim relief on such terms as it thinks fit: RSC Order 84, rule 20(8). The High Court has discretion under PDA section 50A(6) to require an applicant to give an undertaking as to damages as a condition for granting leave.

Judicial Review of Integrated Pollution Control (IPC) and Industrial Emissions Directive (IED) decision-making

A decision of the EPA to grant, or to refuse to grant, an Integrated Pollution Control (IPC) or an Industrial Emissions Directive (IED) licence may be challenged by way of judicial review proceedings in the High Court. Special statutory rules apply to such challenges. An application for judicial review challenging the validity of a decision of the EPA to grant, or to refuse to grant, an IPC or IED licence, must be instituted within the period of eight weeks from the date on which the licence is granted or the date on which the decision to refuse to grant the licence is made: Environmental Protection Agency Act 1992 (as amended) section 87(10). The High Court may, on application to it, extend the eight week period where it considers, in the particular circumstances, that there is “good and sufficient reason” for extending the time limit.

Standing

As regards standing, the High Court must not grant leave to bring judicial review proceedings unless it is satisfied that the applicant has a “sufficient interest” in the matter to which the application relates: RSC, Order 84, rule 20(5).

Standard of review

The High Court will review the legality of the contested decision.

Injunctive relief in Integrated Pollution Control/Industrial Emissions Directive challenges

An applicant seeking leave to bring judicial review proceedings to challenge a decision of the EPA to grant, or to refuse to grant, an Integrated Pollution Control (IPC) or Industrial Emissions Directive (IED) licence, may seek interim or interlocutory relief from the High Court. The RSC provide that where leave is granted, the court, where it considers it just and convenient to do so, may grant interim relief on such terms as it thinks fit: RSC, Order 84, rule 20(8). RSC Order 84, rule 20(7) provides that if the court grants leave, it may require an undertaking as to damages.

V. Access to Justice against Acts or Omissions

Claims against individuals, legal entities and State bodies in environmental matters

A wide range of statutory remedies and common law (tort) remedies are available and may be invoked against private individuals, legal entities and public authorities.

Statutory remedies

The most significant statutory remedies are noted here. Generally speaking, these remedies may be invoked by “any person”, so there is no formal standing requirement. In each case, there is express provision in the relevant legislation for the court to make orders as to the costs of the proceedings and to make any interim or interlocutory orders it considers appropriate.

Unauthorised development

Planning permission is required for any development of land that is not exempted development and is carried out after 1 October 1964.

Administrative remedy

PDA section 152(1) provides a right for “any person” to complain in writing to a planning authority concerning unauthorised development. Once it is satisfied that the complaint is not frivolous, vexatious or without substance, the authority must issue a warning letter to the person carrying out the development (unless the development is of a trivial or minor nature). The warning letter must be issued, “as soon as may be”, but not later than six weeks after receipt of a complaint. Section 153 provides that “as soon as may be” after issuing a warning letter, the planning authority must undertake an investigation to enable it to decide whether or not to issue an enforcement notice or to apply for an order under PDA section 160 (a planning injunction). This decision is to be taken “as expeditiously as possible”, and there is a statutory objective to ensure that it is taken within 12 weeks of the issue of a warning letter. Where, following its investigation, a planning authority determines that unauthorised development has been or is being carried out, it
must
issue an enforcement notice and/or make an application under section 160, unless there are “compelling reasons” for not doing so.

Judicial remedy

PDA section 160 provides that where an unauthorised development has been, or is being carried out or continued, a planning authority, or “any other person” (whether or not the person has an interest in the land), may make an application to the High Court or the Circuit Court (as appropriate), for an order in relation to the unauthorised development. An application may be made at the Circuit Court level where the market value of the land in question does not exceed €3 million. An order under section 160 may require any person to do anything that the court considers necessary to ensure that:

(i)  the unauthorised development is not carried out or continued;

(ii) any land is restored to the condition it was in prior to the commencement of any unauthorised development (in so far as this is practicable); and

(iii) any development is carried out in accordance with the planning permission relating to that development, or any condition attached to that permission.

To this end, the court may require the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or feature. The remedy available under PDA section 160 is often described in practice as a “planning injunction”.

Integrated Pollution Control (IPC) and Industrial Emissions Directive (IED) Licensing

Part IV of the Environmental Protection Agency Act 1992 (as amended) provides for a system of integrated licensing of Integrated Pollution Control (IPC) and Industrial Emissions Directive (IED) activities included in the First Schedule to the Act of 1992. A person is prohibited from carrying on an activity specified in the First Schedule to the 1992 Act unless an IPC or IED licence is in force in relation to that activity. Section 99H of the Environmental Protection Agency Act 1992 (as amended), provides that “any person” may apply to the High Court, or to the Circuit Court (as appropriate), for an order in relation to activities subject to the provisions of the 1992 Act. Where the court is satisfied that an activity is being carried on that contravenes the requirements of the 1992 Act, it may make an order requiring the person in charge of the activity concerned to refrain from, or stop, any specified act (including stopping any specified emission). Failure to comply with an order made under section 99H is an offence under the 1992 Act.

Waste

Section 57 of the Waste Management Act 1996 (as amended) (WMA), provides that where, on the application by “any person” to the High Court, the court is satisfied that waste is being held, recovered or disposed of in a manner that causes, or is likely to cause, environmental pollution, or waste collection or waste licensing legislation is being contravened, it may require the person holding, recovering or disposing of the waste to take certain action, or to refrain from acting in a specified way. A person who fails to comply with an order made by the High Court under section 57 is guilty of an offence. Section 58 of the WMA set out remedies for unauthorised holding, recovery or disposal of waste or the contravention of waste collection or waste licensing legislation and provides that “any person” may apply to the appropriate court for an order in this regard. Where the court is satisfied that another person is holding, recovering or disposing of, or has held, recovered or disposed of, waste in a manner that is causing (or has caused) environmental pollution or is contravening waste collection or waste licensing legislation, it may make an order requiring that person to take specified action. The types of action that may be required of a person include: to discontinue the holding, recovery or disposal of waste within a specified period; or to mitigate or remedy any effects of the unauthorised waste activity in question within a specified time. Failure to comply with an order made under section 58 is an offence.

Air

Section 28 of the Air Pollution Act 1987 (as amended) provides that the High Court, on the application of a local authority or “any other person” may make an order to prohibit or restrict an emission from any premises where the court is satisfied that:

(i)    the continuance of the emission (which is not an emission in compliance with an air pollution licence) would give rise to a serious risk of air pollution; or

(ii)            the emission is an emission from industrial plant in contravention of an air pollution licence; or

(iii)  the emission is an emission from industrial plant for which an air pollution licence is required but in relation to which no such licence has been granted.

In practice very few air pollution licences are now issued under the Air Pollution Act 1987. The licencing function was largely taken over by the EPA following its establishment in 1992. Most industrial plant emissions are now the subject of IPC/IED licencing. However, a small number of activities remain licensable by local authorities under the Air Pollution Act.

An order under section 28 may include such provisions as the court considers appropriate, and may include provisions requiring specific measures to be taken to eliminate or reduce the risk of air pollution. Section 28A of the Air Pollution Act 1987 (inserted by section 18 of the Environmental Protection Agency Act 1992) provides for remedies in the case of unauthorised emissions. “Any person” may make an application to the appropriate court and the court may make an order requiring the occupier of the premises concerned to take specified action, for example, to terminate the emission within a specified period or to mitigate or remedy any effects of the emission concerned within a specified period.

Civil liability for air pollution

Section 28B of the Air Pollution Act 1987 (inserted by section 18 of the Environmental Protection Agency Act 1992) provides for civil liability for air pollution where an unauthorised emission causes injury, loss or damage to a person or to a person’s property. Under section 28B, a person may recover damages in any court of competent jurisdiction from the occupier of the premises from which the emission originated in respect of such injury, loss or damage. Section 28B does not apply to an emission under, and in compliance with, an air pollution licence or an IPC/IED licence issued by the EPA. Furthermore, liability under section 28B will not arise where the emission was caused by “an act of God” or was caused by the act or omission of a third party that the occupier could not reasonably have foreseen and guarded against.

Water

Section 10 of the Local Government (Water Pollution) Act 1977 (as amended) provides that “any person” (whether or not they have an interest in the waters concerned) may apply to the appropriate court for an order to mitigate or remedy the effects of water pollution. The court may make a wide range of orders under section 10, including an order:

(i)     to terminate the entry or discharge in question within the period specified in the order, or

(ii)    to mitigate or remedy any effects of the entry or discharge within the period specified in the order, or

(iii)   to pay to the applicant, or such other person as may be specified in the order, a specified amount to cover all or part of any costs incurred in investigating, mitigating or remedying the effects of the entry or discharge in question.

In addition to these general powers, section 10(8) sets out a detailed and extensive range of matters that the court may require in any order it makes under section 10(1). Any breach of an order made under section 10 is an offence. Section 11 of the Local Government (Water Pollution) Act 1977 (as amended) provides that “any person” (whether or not that person has an interest in the waters concerned) may apply to the High Court for an order prohibiting any person from causing or permitting, or continuing to cause or permit, water pollution.

Civil liability for water pollution

Section 20 of the Local Government (Water Pollution) Act 1990 provides for civil liability for water pollution where trade effluent, sewage effluent or other polluting matter enters waters and causes injury, loss or damage to a person or to a person’s property. Under section 20, a person may recover damages in any court of competent jurisdiction from the occupier of the premises from which the effluent or matter originated in respect of such injury, loss or damage. Liability will not arise in this particular context if the entry to waters was caused by “an act of God” or was caused by the act or omission of a third party that the occupier could not reasonably have foreseen and guarded against. Section 20 also provides for civil liability to be imposed on any person where the entry into waters was occasioned by an act or omission of that person which, in the opinion of the court, constitutes a contravention of a provision of the water pollution legislation. Section 20 does not apply to an entry to waters under and in compliance with a water pollution licence or an IPC/IED licence or waste licence issued by the EPA.

Common law (Tort) remedies

The torts that may be of potential relevance in the case of alleged environmental damage caused by an individual or a legal entity are: public and private nuisance; the rule in Rylands v Fletcher (i.e. strict liability for the escape of an exceptionally dangerous thing/substance from the defendant’s property which results in damage to the plaintiff’s property); trespass to land; and negligence. The remedies available are an injunction and/or damages depending on the particular circumstances of the case. An occupier of land affected by the alleged tort has standing to sue in tort: Hanrahan v Merck Sharp and Dohme [1988] ILRM 629.

Claims against public authorities

Generally speaking, the State is not immune from suit and may be sued in tort and for alleged breach of constitutional rights. The State may also be potentially liable for loss or damage arising as a result of a breach of EU law (so-called Francovich liability). In the specific context of an invalid administrative decision, there is, in principle, a limited possibility to sue a public authority for damages. This situation would only arise in certain specific circumstances, however, for example:

(i)             where the administrative act in question also amounted to a tort (e.g. negligence);

(ii)   where the public authority acted out of malice, or exercised a power it knew it did not have (tort of misfeasance in public office);

(iii)           where the public authority acted in breach of statutory duty;

(iv)           or where the public authority acted in breach of constitutional rights.

The usual remedy where an administrative decision is found to be unlawful, is for the court to quash (or annul) the invalid decision in judicial review proceedings.

As regards environmental matters specifically, legislation provides an absolute statutory immunity for the Environmental Protection Agency in respect of the failure to discharge its statutory functions under the Environmental Protection Agency Act 1992: Environmental Protection Agency Act 1992, section 15. The EPA and local authorities enjoy a similar immunity when carrying out their functions under the WMA: Waste Management Act 1996, section 67(1).

Environmental Liability Directive

The Environmental Protection Agency (EPA) is the designated competent authority in Ireland for the Environmental Liability Directive (Directive 2004/35/EC). The Directive is transposed in Ireland by the European Communities (Environmental Liability) Regulations 2008 (SI No 547 of 2008) (“ELR”) (as amended).

Procedure to make a request for action

Operators who are responsible for environmental damage or imminent threat of environmental damage are obliged to report this to the EPA. Additionally, requests for action may be submitted to the EPA’s Environmental Liability Unit by persons who are affected or likely to be affected by the instance of environmental damage, or by members of organisations that promote protection of the environment.

An online submission form is available, for this purpose, on the EPA’s website:

Link opens in new windowhttp://www.epa.ie/enforcement/liab/submission/.

VI. Other Means of Access to Justice

The Ombudsman

The Office of the Ombudsman may investigate any action taken by specified public bodies “in the performance of administrative functions” where some person is “adversely affected” by the action: Ombudsman Act 1980, as amended by Ombudsman (Amendment) Act 1984. A person may lodge a complaint with the Ombudsman free of charge. There is no formal standing requirement, as such, but the Ombudsman may decide not to investigate if s/he is of the view that the complainant has an “insufficient interest” in the matter or has not taken reasonable steps to seek redress. Local authorities fall under the Ombudsman’s remit, but An Bord Pleanála and the Environmental Protection Agency do not. The Ombudsman does not have jurisdiction to examine a decision to grant or refuse planning permission (the remedies here are an appeal to An Bord Pleanála and judicial review). The Ombudsman’s jurisdiction relates to the administrative processes applied by local authorities. For example, a person may complain about how a planning authority responded to a complaint about unauthorised development. The Ombudsman is vested with considerable powers of investigation, including the power to require that documents be furnished to his/her office and/or that a person with relevant information attend before him/her. The Ombudsman may make non-binding recommendations. In practice, however, public bodies usually comply with the Ombudsman’s recommendations. The Ombudsman has discretion to recommend a wide range of remedies. Where a person suffers an adverse effect as a result of a local authority’s failure to take appropriate action in relation to unauthorised development, the Ombudsman may, for example, recommend payment of compensation and/or may make recommendations for improvements in an authority’s administrative procedures relating to enforcement. See, by way of example: Office of the Ombudsman, Investigation Report on a complaint made against Meath County Council (July 2010).

Private prosecutions in environmental matters

There is a limited right of private prosecution, but this course of action is very rare in practice. Examples of a right of private prosecution include the Fisheries (Consolidation) Act 1959 (as amended), section 309(1) and the Local Government (Water Pollution) Act 1977 (as amended), section 3(4). Summary prosecutions in planning and environmental matters are usually brought in the District Court by the relevant public authority for example local authorities or the Environmental Protection Agency. Prosecutions on indictment are brought by the Director of Public Prosecutions.

VII. Legal Standing

Planning

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Planning application

Any person may make submissions or observations on an application for planning permission

Appeal to An Bord Pleanála

The following individuals may appeal:

Applicant for planning permission;

Any person who made submissions

or observations to planning authority

in relation to the application for

permission;

A neighbouring landowner who did not make submissions or observations may seek leave to appeal.

Judicial Review

A “sufficient interest”

NGOs

As for “Individuals” above –
plus
, in the case of development subject to EIA, NGOs whose aims and objectives relate to the promotion of environmental protection and who have pursued those objectives during the period of 12 months preceding the date of the appeal

As for ‘Individuals’ above – plus, in the case of development subject to EIA, NGOs whose aims and objectives relate to the promotion of environmental protection and who have pursued those objectives during the period of 12 months preceding the date of the appeal

Other legal entities

As for “Individuals” above

As for “Individuals” above

Ad hoc groups

As for “Individuals” above

As for “Individuals” above

foreign NGOs

As for “Individuals” above

As for “Individuals” above

Any other

As for “Individuals” above – plus a “prescribed body” under planning legislation that was not properly notified of the planning application by the planning authority

As for “Individuals” above

Integrated Pollution Control (IPC), Industrial Emissions Directive (IED) Licences and Waste Licences

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Any person may make submissions to EPA on an application for an IPC or IED licence or a waste licence

Any person may object to the proposed

determination/decision on the licence application issued by EPA

Note: there is no administrative appeal in respect of IPC, IED and waste licences

Judicial Review

A “sufficient interest”

NGOs

As for “Individuals” above

As for “Individuals” above

Other legal entities

As for “Individuals” above

As for “Individuals” above

Ad hoc groups

As for “Individuals” above

As for “Individuals” above

foreign NGOs

As for “Individuals” above

As for “Individuals” above

Any other

As for “Individuals” above

As for “Individuals” above

Planning and environmental law provides for a range of statutory remedies with a view to enforcement by third parties. Generally speaking, these remedies may be invoked by “any person” with the result that standing in this particular context is very generous. “Person” in the context of any enactment is to be read as including a body corporate (e.g. a company) and an unincorporated body of persons, as well as an individual: Interpretation Act 2005, section 18(c). The most significant remedy in practice is the planning injunction under PDA section 160 where “any person” may apply for a court order in the context of unauthorised development. Similarly, the Environmental Protection Agency Act 1992 (as amended) and the Waste Management Act 1996 (as amended), both provide that “any person” may seek judicial enforcement of IPC, IED and waste licences. Water pollution legislation and air pollution legislation contain similar enforcement provisions which may also be invoked by “any person”.

Actio popularis

There is, in effect, actio popularis in the case of judicial enforcement by third parties because the relevant statutory remedies may be invoked by any person.

Standing of State institutions or public bodies

State institutions and public bodies have standing in a wide variety of situations. For example, any public body that can demonstrate a “sufficient interest” may challenge a planning decision or a decision of the EPA by way of judicial review proceedings. As explained previously, “any person”, including a public body, may invoke the various statutory remedies available in the case of alleged breach of environmental law. On the criminal side, planning and environmental legislation empowers planning authorities and the EPA to prosecute certain offences summarily in the District Court. More serious offences are prosecuted on indictment by the DPP.

Attorney General

The Attorney General is a necessary notice party where a challenge is mounted to the constitutional validity of any law: RSC Order 60, rule 1. Where a point of constitutional interpretation arises in proceedings, the court may direct that the Attorney is notified: RSC Order 60, rule 2. In both these situations, the Attorney is entitled to become a party to the proceedings as regards the point which arises. Moreover, the Supreme Court has confirmed that the Attorney may apply to intervene in litigation where proceedings raise issues affecting the public interest: TDI Metro Ltd v District Judge Delap (No 1) [2000] 4 IR 337.

Human Rights Commission

Under section 6 of the European Convention on Human Rights Act 2003, before a court decides whether to make a declaration of incompatibility, the Attorney General and the Human Rights Commission must be given notice of the proceedings. The Attorney is then entitled to appear in the proceedings and to become a party as regards the issue of the declaration of incompatibility.

Applicability of standing rules governing EIA and IPC/IED procedures

The standing test for leave to bring judicial review proceedings in the case of planning and environmental matters requires that the applicant seeking leave must demonstrate a “sufficient interest”. However, in the specific case of development that is subject to EIA, environmental NGOs that meet certain conditions do not have to satisfy the “sufficient interest” test.

VIII. Legal Representation

Role of lawyers

In Ireland, the legal profession is made up of solicitors and barristers (comprising junior and senior counsel). Barristers mainly undertake specialist advisory work and appear as advocates in the higher courts. Barristers are usually “briefed” by solicitors on behalf of a client. The two professional bodies are the Law Society of Ireland (solicitors): Link opens in new windowhttp://www.lawsociety.ie/ and the Bar Council of Ireland (barristers): Link opens in new windowhttps://www.lawlibrary.ie. Lawyers provide advice to their clients in relation to legal matters and represent their clients in court proceedings. It is not compulsory to have legal representation in environmental matters either at the administrative stage or at the judicial stage. In practice, given the complex legal and technical nature of many planning and environmental matters, a party who is not legally represented may be at a considerable disadvantage, particularly when they are involved in proceedings in which the other side is legally represented. At the administrative stage, certain parties such as developers, NGOs and residents associations/community groups will usually engage legal representation for more complex and controversial planning applications (e.g. Strategic Infrastructure Development) and appeals before An Bord Pleanála. Parties will usually engage legal representation for judicial review proceedings, although it is becoming more common for individuals who cannot fund legal representation from their own resources to attempt to represent themselves. Most of the larger solicitors’ firms in Dublin and Cork have specialist planning and environmental law departments. There are a number of solicitors’ firms around the country who specialise in planning and environmental matters. People usually make contact with planning and environmental solicitors through personal recommendations or word of mouth. A number of junior and senior counsel specialise in planning and environmental matters out of the Law Library. The database on the Bar Council website includes a search facility to identify barristers by reference to their areas of specialisation. There are a number of planning and environmental NGOs operating in Ireland, but none of these organisations provide formal legal advice to members of the public.

IX. Evidence

The Irish legal system is adversarial rather than inquisitorial. The onus lies on the parties to present evidence to the court in support of their case. The standard of proof in civil cases is “on the balance of probabilities”. A higher standard of “beyond reasonable doubt” applies in criminal cases. Evidence is provided to the court in accordance with the relevant court rules. The manner in which evidence is provided will vary depending on the nature of the proceedings at issue. In criminal proceedings, the general position is that witnesses present their evidence orally and are subject to cross examination. In the case of the various statutory remedies for alleged breach of planning and environmental law, evidence is usually provided on affidavit (i.e. a sworn written statement) and a deponent (i.e. the person who swore an affidavit) may be cross-examined on their affidavit if there is any dispute as to the facts. In civil claims, e.g. a tort claim in private nuisance, the general position is that the parties present sworn oral evidence to the court and witnesses are subject to cross examination. In judicial review proceedings, evidence is usually provided by way of affidavit, but if the justice of a particular case so requires, the court may order that a deponent attend for cross examination. If there is a conflict of evidence on the affidavits which needs to be resolved, the court will usually direct an oral hearing.

In criminal cases, evidence is evaluated by the judge or by the jury in cases where there is a jury trial. In civil proceedings, evidence is evaluated by the judge, except for cases where there is a jury (jury trials do not arise in civil planning and environmental matters). Parties may present relevant expert evidence. Any expert evidence is not binding on the court. It falls to the judge (or the jury where there is a jury trial) to take account of all the evidence presented by the parties, to determine what weight to assign to the evidence and to adjudicate on the matter as they see fit.

X. Injunctive Relief

Administrative appeal and Judicial Review

The general position is that an administrative appeal (e.g. an appeal to An Bord Pleanála from a decision to grant planning permission), and an application for judicial review, do not have automatic “suspensive effect”; in other words, there is no automatic stay on the implementation of the contested decision. In practice, however, it would be unusual (at least in most cases) for a developer to proceed with the project pending the determination of a planning appeal and/or judicial review proceedings. Opting to proceed with a development in circumstances where leave to bring judicial review proceedings has been granted was described by the High Court as “commercial folly”: Seery v An Bord Pleanála [2001] 2 ILRM 151. It is open to the applicant seeking leave to bring judicial review proceedings to apply to the High Court for an order directing a stay on the contested decision: RSC Order 84, rule 20(8)(b).

Undertaking in damages

In Seery v An Bord Pleanála [2001] 2 ILRM 151, the High Court took the view that the grant of leave had the equivalent impact on the developer as the grant of an interlocutory injunction and the court therefore required the applicant to give an undertaking in damages on the basis of RSC Order 84, rule 20(6). The High Court now has express power to require an applicant seeking leave to give an undertaking in damages as a condition for granting leave to challenge a planning decision: PDA section 50A(6). A court may exercise discretion to dispense with the requirement for an undertaking as to damages: Minister for Justice v Devine [2012] IESC 2. It may also refuse to require such an undertaking where proceedings are of a sufficient public interest nature.

Criteria for interlocutory relief

Where no application for a stay has been made, and it appears that a developer intends to proceed notwithstanding a live judicial challenge, the applicant for judicial review may seek interlocutory relief from the High Court. The criteria governing the grant of interlocutory relief were set down definitively by the Supreme Court in Campus Oil Limited v Minister for Industry and Energy (No 2) [1983] IR 88. First, the applicant must demonstrate that there is a serious issue to be tried; secondly, damages must be an inadequate remedy; and, thirdly, the “balance of convenience” must lie in favour of the grant of an injunction. The Supreme Court has clarified that the criteria governing the grant of a stay and the grant of an interlocutory injunction are the same: Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49. A decision on an application for a stay, or for interlocutory relief, may be the subject of an appeal to the Supreme Court.

Statutory remedies for alleged breach of planning and environmental law

The court has jurisdiction to grant interim or interlocutory relief in the context of the various statutory remedies available for alleged breach of planning and environmental law.

Actions in tort

A court may grant interlocutory relief pending the determination of a tort claim. Once a plaintiff has proved private nuisance, a permanent injunction will usually follow, but the court may award damages instead of an injunction in certain limited cases: Patterson v Murphy [1978] ILRM 85.

XI. Costs

The different types of costs that may arise for an applicant will vary depending on the nature of the proceedings and include: court fees, witness fees and expenses (including any expert witnesses), lawyers’ fees and the costs involved in preparing and copying documentation, postage etc.

Court fees

In Ireland, court fees are relatively modest. The level of fee varies depending on the nature of the proceedings and the court in which the proceedings are brought. For example, the court fee payable to lodge the originating ex parte application to bring judicial review proceedings is €138, in addition to a fee of €19 on filing the grounding affidavit in support of the application. Details of current court fees are available on the Courts Service website: Link opens in new windowhttp://www.courts.ie/Judgments.nsf/Webpages/HomePage?OpenDocument.

Experts’ fees, lawyers’ fees etc.

It is difficult to provide any general indication of experts’ fees and lawyers’ fees. These fees will vary considerably depending on a range of factors including the nature of the proceedings, the complexity of the case and the expertise of the expert(s)/lawyer(s) involved in the case. Special costs rules apply in certain categories of environmental litigation. In cases where the special costs rules apply, the general position is that a litigant will only be liable for their own costs. There is also the possibility of a litigant recovering their costs (or a portion of their costs) from the other side where they are successful in the litigation or if they are unsuccessful and the matter is one of exceptional public importance. The special costs rules are explained below.

Injunctive relief

As explained above, court fees vary depending on the nature of the proceedings and the level of court in which the proceedings are brought. The court may require an undertaking in damages as a condition to the grant of injunctive relief.

The ‘loser pays principle’

The general position in Irish law is that liability for legal costs lies in the court’s discretion and the usual rule is that costs follow the event, or, in other words, the ‘loser pays principle’ applies: RSC Order 99, rule 1. The court may depart from the loser pays principle and make no order as to costs, or may award costs in favour of a losing party, where, for example, proceedings involve public interest litigation. A special costs rule applies in the case of judicial review proceedings involving the EIA, IPPC or SEA directives (PDA, section 50B) and in certain proceedings to enforce planning and environmental law (Environment (Miscellaneous Provisions) Act 2011, Part 2). The court may also depart from the loser pays principle in “test cases”, as noted in Cork County Council v Shackleton [2007] IEHC 334.

Costs in judicial review proceedings involving EIA, IPPC or SEA directives

The default position under PDA section 50B is that each party to the judicial review proceedings (including any notice party) must bear its own costs, subject to certain exceptions. The main thrust of the section 50B costs rule is to remove the risk of an unsuccessful challenger being held liable for the costs of the winning party (or parties).

The court has discretion to allow a successful challenger to recover their costs (or an element of their costs) from the other side: PDA, section 50B(2A). The court also has discretion to make an award of costs in favour of a party “in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so”: PDA, section 50B(4). The court has discretion to award costs against a party in certain specified circumstances, including: where it considers that the claim is “frivolous or vexatious”; or because of the manner in which the party has conducted the proceedings; or where the party is in contempt of the court: PDA, section 50B(3).

Costs in certain proceedings to enforce planning and environmental law

Part 2 of the Environment (Miscellaneous Provisions) Act 2011 establishes a special costs rule for certain proceedings to enforce planning and environmental law. Section 3(1) of the 2011 Act provides that, in certain environmental cases, the general rule is that each party must bear its own costs. Section 4(1) specifies the type of proceedings which fall within the scope of the special costs rule. It applies to “civil proceedings” instituted by a person:

(a)   for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified in [s4(4)], or

(b)   in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent,

and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment. The special costs rule does not apply to proceedings (or any part of proceedings) for which damages, arising from damage to persons or property, are sought. Section 4(4) provides a list of the licences, permits and other consents referred to in section 4(1), and this list includes the most significant types of licences and consents in practice for example: an IPC licence, an air pollution licence, a water pollution licence, a water services licence, a waste permit or licence, a dumping at sea permit, a foreshore lease/licence; and a permission or approval granted under the PDA. Section 7 provides that a party to proceedings falling within the scope of section 3 may apply to the court at any time before, or during, the proceedings, for a determination that section 3 applies to the proceedings. It is also open to the parties to agree that section 3 applies. The special costs rule also applies where court proceedings are brought to ensure compliance with environmental or planning law in a situation where no licence or planning permission (or other relevant consent) has been obtained (e.g. in the case of wholly unauthorised development or unlicensed activity: Hunter v Nurendale Ltd t/a Panda Waste [2013] IEHC 430.

XII. Financial Assistance Mechanisms

Payment of court fees is mandatory and there is no provision for any exemptions for members of the public or NGOs in planning and environmental matters. There is very limited provision for financial assistance mechanisms. One notable exception is the provision in the PDA which allows for the recovery of reasonable costs associated with participating in the planning process before An Bord Pleanála in the case of specified categories of development, including strategic infrastructure development. In these specific cases, the Board has an “absolute discretion” to award a contribution to the reasonable costs incurred by a person during the course of consideration of the planning application by the Board: PDA section 37H(2)(c).

Legal Aid

Access to civil legal aid and advice is governed by the Civil Legal Aid Act 1995 (as amended) and is administered by the Legal Aid Board. In principle, legal aid may be granted in respect of judicial review proceedings. However, certain “designated matters”, are excluded, for example representative actions. Legal aid is not available to a group or to an individual member of a group, where the individual is acting on behalf of the group. Legal aid is not available in respect of proceedings before an administrative tribunal (e.g. An Bord Pleanála). The Legal Aid Board’s resources are limited and an individual who has been granted civil legal aid or advice may be required to wait for a considerable period of time before actually getting access to legal services. Procedures have been put in place to enable the Board to deal with priority cases. Individual applicants for civil legal aid and advice must satisfy the specified criteria governing financial eligibility. As regards legal aid, the legislative framework also prescribes a detailed merits test. Essentially, the applicant must have reasonable grounds for bringing the proceedings and must be reasonably likely to succeed. Furthermore, the proceedings must be the most satisfactory means of achieving the result sought by the applicant. The Board is empowered to employ a form of cost-benefit analysis in determining whether or not it is reasonable to grant legal aid in a particular case. In practice and due to their nature, the majority of the cases in which the Board provides legal aid and advice involve family law matters.

Pro bono legal assistance

It is open to individuals and environmental NGOs to approach lawyers with a view to securing legal representation on a pro bono basis, a reduced fee basis, or a contingency fee basis. A number of pro bono legal advice schemes exist in Ireland. Ultimately, legal fees are a matter for agreement between lawyers and their potential clients. In practice, depending on the strength of a case, lawyers with an interest in planning and environmental law may consider taking on a case on a contingency fee basis. Special costs rules apply in certain categories of planning and environmental litigation. There are no legal clinics that deal with environmental cases. There are a significant number of planning and environmental NGOs operating in Ireland, but none of these organisations provide formal legal advice to members of the public. There are lawyers with environmental and planning law expertise who provide services on such bases.

XIII. Timeliness

Times limits within which public authorities must deliver decisions

Planning and environmental legislation sets down various time limits within which decisions should be taken, but there is a provision for extension of time in certain cases, for example, where the public authority requires further information from the applicant. An Bord Pleanála is obliged “to ensure that appeals are disposed of “as expeditiously as may be” and, to that end, to take all the steps open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the determination of appeals: PDA section 126(1)). The Board has a general statutory objective to determine appeals within a period of 18 weeks beginning on the date on which the appeal was received: PDA section 126(2).

Sanctions in the event of delayed decision-making

Planning authorities are required to make decisions on planning applications within the prescribed period (normally 8 weeks from the date the application is lodged with the authority). Where a planning authority fails to make a decision on an application for permission within the prescribed period, the authority will proceed to make the decision and pay the applicant a sum which is equal to the lesser amount of three times the prescribed planning application fee or €10,000. Where the planning authority fails to make the decision within 12 weeks after the expiry of the prescribed period, the permission is considered to have been granted by default: PDA, section 34(8)(f).

Default permission is not, however, available in the case of development that is subject to EIA or Appropriate Assessment. Where the authority fails to make the decision within 12 weeks after the expiry of the prescribed period, in relation to an application which requires an EIA, a determination of whether an EIA is required, or an Appropriate Assessment, it will pay the applicant a sum which is equal to the lesser amount of three times the prescribed planning application fee or €10,000. Where the authority fails to make the decision after subsequent 12-week periods, it will again pay the appropriate sum at the end of each period; however, no more than five payments of the appropriate sum may be paid to the applicant in respect of failure to make the decision.

Time limits for judicial procedures in environmental matters

The applicable time limits vary considerably depending on the nature of the proceedings, the level of court and, in the case of the Circuit Court and the District Court, the part of the country in which the proceedings are brought.

When deciding on an application for section 50 leave (permission), or the substantive application for judicial review on foot of such leave, the High Court must “act as expeditiously as possible consistent with the administration of justice”: PDA, section 50A(10). Significant changes to RSC Order 84, rules 18 to 29 inclusive, have recently been introduced: Rules of the Superior Courts (Judicial Review) 2011 (SI No 691 of 2011). These new rules aim to streamline the judicial review procedure and eliminate unnecessary delay. For example, Order 84, rule 24(3) provides that the High Court may give various directions, and make a range of orders, for the conduct of the proceedings “as appear convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.”

Typical duration of an environmental court case in different types of procedures

The duration of proceedings may vary considerably depending on the nature of the proceedings and the court in which the proceedings are brought and so it is difficult to estimate the likely duration of proceedings in general   terms. In the case of judicial review proceedings which are entered in the High Court Commercial List, for example, the duration of the proceedings could be within 6 months. It is more difficult to estimate the likely time frame in the case of judicial review proceedings in the regular judicial review list.

Deadlines for the court to deliver judgment and sanctions against delay

Section 46 of the Courts and Court Officers Act 2002 (as amended) provides for the establishment and maintenance of a Register of Reserved Judgments with a view to encouraging timely delivery of judgments and keeping the parties informed of the state of play: Courts and Court Officers Act 2002 (Register of Reserved Judgments) Regulations 2005 (SI No 171 of 2005). The general rule is that if a judgment is not delivered within two months of the date on which it was reserved, the President of the relevant court must list the proceedings before the judge who reserved judgment and must give the parties notice of the date on which the proceedings are listed. Where proceedings are listed in this manner, the judge who reserved judgment must specify the new date on which s/he proposes to deliver judgment in the proceedings. This procedure must be followed on the expiration of each subsequent two month period until judgment is delivered. The date(s) specified by the judge must be entered in the register.

XIV. Other Issues

In practice, planning decisions are usually challenged by way of an administrative appeal to An Bord Pleanála in the first instance (in cases where such an appeal is available). The Board’s decision may be challenged in judicial review proceedings. Decisions of the Environmental Protection Agency may only be challenged by way of judicial review. In practice, judicial challenges are usually brought after the public authority in question has taken its final decision on the application for permission/consent/licence. Information is available to the public on access to justice in environmental matters on the Citizens Information Board website

Link opens in new windowhttp://www.citizensinformation.ie/en/environment/environmental_protection/judicial_review_in_planning_and_environmental_matters.html and on websites of individual relevant bodies (e.g. An Bord Pleanála Judicial Review Notice: Link opens in new windowhttp://www.pleanala.ie/

Alternative Dispute Resolution in environmental matters

Alternative Dispute Resolution (ADR) is reasonably well developed in specific areas, for example family law (family mediation) and in certain categories of high value commercial disputes. ADR is rarely deployed in practice in the context of planning and environmental litigation.

XV. Being a Foreigner

There are no express anti-discrimination clauses regarding language or country of origin in the Rules of the Superior Courts or the Circuit Court and District Court rules. Under the Constitution, An Ghaeilge (Irish), as the national language, is the first official language and English is recognised as a second official language. In practice, the vast majority of court proceedings are in English – except in Gaeltacht areas or where parties opt for proceedings to be conducted in Irish. Where a person requires an interpreter in order to understand criminal proceedings, an interpreter is provided and the costs are borne by the Courts Service.

In respect of the Circuit and District Courts, interpreters are provided in some civil or family law cases. It is a matter for the judge to make a decision as to whether an interpreter should be provided in such cases. If a judge directs that an interpreter be provided in a civil case, then the cost is borne by the Courts Service. However, in respect of the High Court, it is a matter for the parties to the case to engage and bear the cost of an interpreter. The only exception is in respect of extradition cases heard in the High Court, in which case the Court Service is obliged under legislation to bear the cost of interpreters if they are required.

XVI. Transboundary Cases

Ireland is a Party to the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) and is also obliged to give effect to Article 7 of the EIA directive concerning transboundary effects.

The procedures that apply where a project is likely to have significant transboundary effects in another EU Member State and/or a State that is a Party to the Espoo Convention are found in section 174 of the Planning and Development Acts 2000 to 2011 and Part 10, Chapter 5 of the Planning and Development Regulations 2001 to 2013. In outline, a planning authority, or An Bord Pleanála (the Board),as appropriate, must notify the Minister for Environment, Community and Local Government of any planning application/appeal or application for strategic infrastructure which, in its opinion, would be likely to have significant effects on the environment in a transboundary State. The notification must provide certain information regarding the application/appeal including the nature and extent of the proposed development and must be accompanied by any Environmental Impact Statement (EIS).

The Minister has a separate power to require a planning authority/Board to provide him/her with information where s/he is of the opinion that an application is likely to have significant transboundary effects, or where a request has been made by a transboundary State that it be provided with information on a proposed development. The planning authority/the Board must provide specified information to the transboundary State and must enter into consultations with it in relation to the potential transboundary effects of the proposed development. Where the transboundary State wishes to participate in the decision-making procedure, it must be provided with the EIS and other relevant information. The planning authority/the Board must have regard to the views of the transboundary State as regards the potential environmental impact of the proposed development. Notice of the decision must be sent to the transboundary State.

Under Irish planning law, no distinction is drawn between the public concerned in Ireland or in another EU Member State and/or transboundary State. The usual standing rules apply to the public or NGOs in a transboundary State. Any person may make a submission or observation on a planning application. The applicant for permission and any person who made a submission or observation on the application is entitled to lodge an appeal to the Board (in cases where there is a right of appeal). In the case of EIA development, environmental NGOs that meet certain requirements may appeal to the Board even though they did not participate in the process before the planning authority.

The standing test for judicial review is a “sufficient interest” in the matter to which the application relates. In the case of EIA development, environmental NGOs that meet certain requirements are exempt from the “sufficient interest” test. The requirements specified in the PDA do not distinguish between NGOs based in Ireland and non-resident NGOs and there is no formal requirement that an NGO must be active in Ireland in order to qualify for this exemption from the standing test.

A challenge by way of judicial review to any planning decision taken by the Irish competent authorities must be brought in the Irish courts. The Irish Supreme Court has ruled that the Irish courts do not have jurisdiction to determine the lawfulness and validity of administrative procedures and decisions of another Member State authorising development projects to be carried out within the boundaries of that State: Short v Ireland [2006] IESC.

Related links

  • Legislation

Text of primary legislation (Acts of the Oireachtas) and secondary legislation available via the Irish Statute Book: Link opens in new windowhttp://www.irishstatutebook.ie/

Amendments to legislation may be tracked via the Legislation Directory: Link opens in new windowhttp://www.irishstatutebook.ie/

Bills (i.e. draft legislation) are available via the Oireachtas website:

Link opens in new windowhttps://www.oireachtas.ie/

  • Court Judgments

Judgments of the Superior Courts are generally published on the Courts Service of Ireland website:

Link opens in new windowhttp://www.courts.ie/Judgments.nsf/Webpages/HomePage?OpenDocument

Judgments are also available via the Irish Legal Information Institute (IRLII) website hosted by the Faculty of Law, University College Cork: Link opens in new windowhttp://www.irlii.org/

  • Legal Profession

Law Society of Ireland

Link opens in new windowhttp://www.lawsociety.ie/

Bar Council of Ireland

Link opens in new windowhttp://www.lawlibrary.ie/

  • Environmental NGOs

Irish Environmental Network (IEN) – Network of National Environmental Organisations

Link opens in new windowhttp://ien.ie/

Environmental Pillar

Link opens in new windowhttp://environmentalpillar.ie/

An Taisce (National Trust for Ireland)

Link opens in new windowhttp://www.antaisce.org/

Friends of the Irish Environment

Link opens in new windowhttp://www.friendsoftheirishenvironment.org/

  • Selected State Bodies and Public Authorities

Department of Environment, Community and Local Government

Link opens in new windowhttp://www.environ.ie/en/

Department of Agriculture, Food and the Marine

Link opens in new windowhttps://www.agriculture.gov.ie/

Department of Arts, Heritage and the Gaeltacht

Link opens in new windowhttp://www.ahg.gov.ie/

Department of Communications, Energy and Natural Resources

Link opens in new windowhttp://www.dcenr.gov.ie/

An Bord Pleanála

Link opens in new windowhttp://www.pleanala.ie/

Environmental Protection Agency

Link opens in new windowhttp://epa.ie/

Office of the Ombudsman

Link opens in new windowhttps://www.ombudsman.ie/

Office of Commissioner for Environmental Information

Link opens in new windowhttps://www.ocei.ie/

  • Information on access to justice in environmental matters provided to the public

Citizens Information Board – Environment pages

Link opens in new windowhttp://www.citizensinformation.ie/en/environment/environmental_protection/judicial_review_in_planning_and_environmental_matters.html

  • An Bord Pleanála: Judicial Review Notice

Text available at: Link opens in new windowhttp://www.pleanala.ie/

 

[1] Subject to Article 7(7).

Last update: 14/01/2019

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Greece

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I.Constitutional Foundations

Article 24 of the Constitution of Greece underlines that “the protection of natural and cultural environment is an obligation of the State and everyone's right”. The content of the right is to maintain those conditions that will ensure life, health, quality of life and the environment itself as an independent right. For its preservation, the State has an obligation to adopt special preventive or repressive measures under the principle of sustainability. Article 20 of the Constitution stipulates that “Everyone is entitled to receive legal protection by the courts and can develop his views on rights or interests, as provided by law. The right of prior hearing also applies to any administrative action or measure taken against his/her rights or interests”. Citizens can invoke the constitutional right to environment directly in administrative or judicial procedures. The State -directly from the constitutional text- has been responsible for keeping the environment both natural and cultural intact. According to the Article 28 of the Greek Constitution “The generally recognised rules of international law, as well as international conventions become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law”. Consequently, any procedure can rely directly on international agreements. The Supreme Administrative Court recognises the direct application of Conventions and Directives. Administrative bodies or courts can invoke the Aarhus Convention or the domestic law or community law adopted in application of the Convention. The Aarhus Convention has been ratified by law 3422/2005 and constitutes integral part of domestic law.

II. Judiciary

There are administrative, civil and criminal courts, and they are organized by special statutes.
The sittings of all courts shall be public, except when the court decides for instance that special reasons call for the protection of the private or family life of the litigants. Every court judgment must be specifically and thoroughly justified and must be pronounced in a public sitting. Publication of the dissenting opinion is compulsory. Justice is administered by courts composed of regular judges who are independent. The substantive administrative disputes belong to the jurisdiction of existing ordinary administrative courts (first instance and appeal).Civil courts have jurisdiction on all private disputes. The jurisdiction of the Supreme Administrative Court (Council of State) pertains mainly to:
a) The annulment of enforceable acts of administrative authorities for excess of power or violation of the law.
b) The reversal of final judgments of administrative courts for excess of power or violation of the law.
c) The trial of substantive administrative disputes submitted thereto as provided by the Constitution and the statutes.
d) The elaboration of all decrees of a general regulatory nature.

The administration is bound to comply with the annulling judgments of the Supreme Administrative Court. Criminal courts have jurisdiction on criminal offences.The courts are bound not to apply a law whose content is contrary to the Constitution. The Greek law provides the following remedies against the administration before the administrative courts:

  • A request for judicial review against an act or omission of the administration due to abuse of power or violation of the law (Council of State or exceptionally Court of Appeal or First Instance Court).
  • Appeal against an act or omission of the administration before the first instance administrative Court or exceptionally before the Administrative Court of Appeal and the Council of State.
  • A lawsuit against the government for harm caused by illegal administrative organs in the performance of their duties (First Instance Administrative Court) or in case of an administrative contract before the three-member appeal Court at a first and last level.
  • An action for the recognition of the existence or absence of a pecuniary claim.
  • An objection against an administrative execution (First Instance administrative Court).
  • The suspension of the enforcement of an administrative act under the condition that a cancellation request or appeal has been already initiated.
  • An injunctive relief.

An appeal is allowed only against judgments at first instance. If the appellant lives in Greece, the deadline for the appeal is 30 days; if not then it is 60 days. The decision of the court cannot be executed until the expiration date. Extraordinary remedies are determined in special proceedings and granted only where absolutely necessary to protect the legal rights of a party in a particular case. They can also be requested during the trial of the case. The petition for judicial review is brought before the Council of State except for certain categories of cases which the legislature has delegated to the Ordinary Administrative Courts (three-member Administrative Court, first instance Court) while the Council of State retains the competence to second degree. Extraordinary remedies are ordered by first instance courts. If the case is pending in another court, then they can be ordered by that court. The decision for the extraordinary remedies is provisional and does not affect the main case. The administrative courts have only cassation rights against administrative decisions. The court can annul the act and send back the case to the administration in order to obtain its conformity. However, the court has the possibility to interpret the law with binding power.

There are no special judicial procedures for environmental matters.

The civil courts examine and recognize the right to the environment. The recourse to civil courts is intended to safeguard the environment of the affected individual from the harmful effects.In the framework of public law, an annulment request can be submitted before the Council of State or before the administrative courts in order to annul an administrative act. After that, a suspension request can be submitted asking the stay of execution of the offended administrative act. Only the Prosecutor can act ex officio (on its own motion) in case of criminal offense relating to environmental violations, similarly to his competences in general covering also other areas of law. The Greek courts act only upon request, there is no action based on own motion.

III. Access to Information Cases

According to Article 5 of the law 1943/91, public services, public entities, the local government and other public sector bodies are required to definitively answer the demands of citizens (natural or legal persons, domestic or foreign) and to handle their own affairs within a period of sixty days. Information, certificates, documents and certificates are given immediately and in any case not delay more than 10 days. The 11764/2006 sets out a 20 days deadline for disclosing or refusing environmental information and 30 days for a remedy from the day that the claimant took notice of the public service answer. This period starts from the request to the department. If the request is submitted to an incompetent service, that service is required within three days for all kind of information to forward it to the appropriate service and notify the party concerned. In this case the provisions of this paragraph shall begin from the time the request was received by the department. If more public services are responsible for the case, the time shall be extended for another 15 days. In case of failure to meet deadlines set out in the law, full compensation is to be paid to the claimant. If environmental information is refused the refusal has to be reasoned. In case of refusal or an inadequate answer the citizen can proceed to

  • an action for damages before the competent court or
  • an administrative appeal before a Special Committee
  • an appeal before the administrative courts.

The citizen can submit a complaint to the Greek Ombudsman Institutions (Quality of Life Department). A complaint may be submitted by any individual, legal entity, or association that has a dispute with the Greek public sector, whether inside or outside the borders of the state. Refusal of request for information has to be duly reasoned and available remedies have to be mentioned. Information can be given after a prosecutor’s mandate for that refusal. A lawsuit can be based on article 57 of the Civil code (offence against the personality). Urgent measure/injunction can also be issued (civil court procedures) requesting information. Courts do not have access to the disputed information before making a decision. However, Courts may order information to be disclosed.

IV. Access to Justice in Public Participation

11764/2006 on access to environmental information (according to the EU directive 2003/4) and law 4014/2011 provide specific procedures on Public Participation before an Environmental Impact Assessment (EIA) is approved, but they do not provide any special administrative procedure. General administrative rules are applicable in these cases. The Citizens in cases of disputed public administration decisions may appeal before the competent administration under specific terms and conditions. They may appeal competently and ask for remedy in order to restore an injustice or an illegal situation. With this application grounds of legality of the act or substantive grounds can be invoked. If the annulment of an administrative act is requested, the head administrative authority is competent to annul the act. Special administrative appeal is provided by specific provisions. An appeal before the administrative courts is also possible. Individuals who had their legitimate interests harmed by an individual administrative act must file the simple administrative appeal. The appeal may be submitted to the authority of the act or the hierarchically superior authority. The objective is the withdrawal or amendment of the act. For the submission of this kind of appeal there is no specified deadline. The administrative authority receiving the appeal must notify its decision to the person concerned within 30 days unless special provisions are provided for differing deadlines. The simple pursuit of administrative remedies stops the deadline for exercising the cancellation request and the appeal, provided of course that it is done within the deadline. The exercise of the special administrative appeal stops the same deadline, provided however, it was exercised within the period prescribed by the provisions governing each appeal.

The quasi-judicial redress is provided by special provisions which establish certain deadlines and other conditions. The case can be essentially reopened while the special administrative appeal checks only the legality of the contested act in the quasi-judicial redress. Acts adopted on the appeal are always enforceable. If a quasi-judicial appeal is provided, its submission is a prerequisite for the admissibility of the cancellation request or appeal. The appeal may be brought only against the act issued on the appeal directly within the deadline provided or, if there is no time limit, within three months of its submission. After these periods of inactivity a request for cancellation that is brought against the rejection of the quasi-judicial appeal is presumed implied. Types of administrative actions for appeal against administrative decisions:

  • Remedy’s request: submitted to the same administrative body which issued it.
  • Special appeal: provided by a special legal provision setting a deadline within which should be exercised. The competent administrative body examines only the legality of the case and of the dispute.
  • Quasi-judicial action: This action examines not only the legitimacy, but also the substance of the case.
  • Special Administrative appeal: It examines the legitimacy of the decision.

There is also the body of Public Administration Inspectors – Auditors, an institution for the internal control of the entire Public Administration. Its objective is to ensure the smooth and effective functioning of public administration by identifying cases of corruption, maladministration, intransparency, inefficiency or low quality services.

First instance administrative decisions can be taken to court directly. Administrative remedies are not necessary to be exhausted before taking a case to court, except if a quasi-judicial appeal is provided, its submission is a prerequisite for the admissibility of the cancelation request or appeal. Courts examine the legitimacy of the administrative decisions. But courts cannot look beyond the administrative decision, verify and deal with technical findings and calculations of the administration.

Land use plans, zoning plans, and other normative types of environmentally relevant decisions may be reviewed by the court, especially at the Supreme Administrative Court (= Council of State). If it is the case of a Presidential Decree (this is the legal form for land use plans etc.), the Supreme Court will examine it as a draft and then the President of the Republic can sign it. In this very case the Council of State plays an important role. Sometimes, the administration - in order to avoid the Supreme Court’s control - adopts a law instead of a Presidential Decree. However, the Council of State has recently decided that it controls some matters and laws, even if an administrative practice lies behind them. There are no special rules for environmental matters.

The courts can review both EIA screening and scoping decisions but neither can be annulled because these acts are not enforceable administrative acts. Consequently the court annuls only the enforceable administrative acts on which the EIA scoping decisions are based (for instance Ministerial Decisions etc.). There are no special standing rules, forum rules or rules of evidence and hearing etc. General rules are applicable. The same procedure applies to final EIA decisions. Courts do not examine the administration technical assessments. However, courts can find deficiencies of EIA or if EIA decisions are obviously contrary to the law. Courts may also do negative appreciations. Concerning procedural and substantive legality, courts can examine them, but there are no special rules; general provisions are applicable. It is not necessary to participate in the public consultation phase etc. in order to have standing before the courts. Public consultation is a phase of the EIA procedure. Citizens can invoke their constitutional right to environment directly in judicial procedures independently of their participation in consultation etc. Injunctive relief is also available in EIA procedures without any special provisions.

Courts can review final IPPC (Integrated Pollution Prevention and Control) decisions or authorizations, and can annul the enforceable administrative acts on which the final IPPC decisions or authorizations are based (for instance Ministerial Decisions etc.). Courts can also review the procedural and substantive legality of IPPC decisions according to the general provisions. Courts do not look beyond the decisions, however. Material or technical findings, calculations, and technical assessments are outside the court’s competence. It is not necessary to participate in the public consultation phase etc. in order to have standing before the courts. Public consultation is a phase of the IPPC procedure. Citizens can invoke their constitutional right to environment directly in judicial procedures independently of their participation in consultation etc. Injunctive relief is also available in IPPC procedures. There are no special provisions.

V. Access to Justice against Acts or Omissions

Claims may be submitted to the court directly against private individuals or legal entities. In such procedures the claim is the recourse, with which the annulment of an administrative act is pursued. The court judges only the legal aspects of the case and not the true facts. Its decision includes a judgment about legality and not a control upon the merits. There are also legal protection proceedings through the Civil Code. The protection of the personality concerns the breach of the physical and mental objects it comprises. There is also responsibility for remedying environmental damage. Whoever causes pollution or environmental degradation is responsible for damages unless s/he proves that the damage is due to a force majeure or a fraudulent behavior of third persons. The criminal offences relating to an environmental damage can be normally prosecuted ex officio by the competent prosecutor, but also after a private lawsuit. Claims can be submitted to the court directly against State bodies for the following claims:

  • claim for damages before the competent court or
  • appeal before the Special Committee
  • appeal before the administrative courts
  • an offence against the personality according Article 57 of the Civil Code.

The Competent Authority for the implementation of the Environmental Liability Directive (ELD) at national level is the Ministry of the Environment and specifically the Coordination Office for the Remediation of Environmental Damage under the Special Secretary of Environment and Energy Inspectorate, which has been established by a Presidential Decree. At a regional level, the Presidential Decree provides the establishment of Regional Advisory Committees on Environmental Damage. NGOs or physical/legal entities can submit a request for implementing the environmental liability on concrete cases. The request is filed at the Coordination Office for the Remediation of Environmental Damage in the Ministry of Environment or at a regional level at the Regional Advisory Committees. The conditions for court review in case such a request is not followed by an action from the Competent Authority are the same as for any other case. The interested party can challenge the decision of the Competent Authority at the administrative courts. Someone can go to the court to enforce environmental liability only if it concerns a concrete act of an individual or legal entity or an administrative act.

VI. Other Means of Access to Justice

The Greek Ombudsman Institution, the Public Administration Inspectors-Auditors Body, the Environmental Inspectors Body and the Administration Inspector General are other means to remedy environmental matters. The Hellenic Environmental Inspectorate (HEI) founded in 2010 is yet another mean. Its main responsibility is to undertake inspections in order to monitor compliance with the environmental permits for projects of the private and public sectors. Systematic environmental compliance controls are conducted by the Special Inspectorate of Environment which is a national Environmental Inspection Authority covering the entire Greek territory. The Environmental Inspectors may perform on-site investigations on all public or private projects or activities covered by the provisions on environmental protection and carry out measurements. The Inspector General of Public Administration has the mission to ensure the smooth and effective functioning of public administration, monitoring and evaluating the work of Inspector-Auditor of Public Administration and all corps and special inspection and control services of public administration, and identify phenomena of corruption and maladministration. The team of senior investigators of the Greek Ombudsman deals with cases of violations of environmental and urban planning legislation, and more generally with cases of degradation of the natural, cultural and residential environment. The investigators handle cases of illegal interventions in environmentally protected areas, environmental licensing of enterprises and industries, the process of characterising forest land, determination of sea shore and beach line, environmental licensing, installation and operation of infrastructure, illegal constructions, placement and operation of mobile phone antennas, problematic operation of food premises (including clubs, restaurants, cafés etc.), long term liens on private property, protection of cultural heritage, access denial to environmental information. When actions or lack of action by the public administration infringe upon an individual's rights or harm his or her legal interests, the individual may file a complaint with the ombudsman. Before submitting a complaint, however, applicants should first seek redress from the public administration unit involved. On completion of the investigation, if required by the nature of the case, the Ombudsman shall draw up a report on the findings, to be communicated to the relevant Minister and authorities, and shall mediate in every expedient way to resolve the citizen's problem. As a mediator, the Greek Ombudsman makes recommendations and proposals to the public administration. The Ombudsman does not impose sanctions or annul illegal actions by the public administration. The criminal offenses related to attacks on the environment are normally prosecuted ex officio by the competent public prosecutor. Citizens can terminate the commission of such offense before the competent authorities, submitting a complaint to the competent public prosecutor or police. In addition, private criminal prosecution is available in environmental matters. The Prosecutor can act in cases of criminal offences relating to environmental insults based on the general rules of the Penal Code or on special penal laws provisions. A private lawsuit (by citizens) can also be submitted. Another body dealing with inspections, audits and investigations is the Inspectors-Auditors. The body’s main task involves preliminary tests or investigations after public prosecutor's request. The audit process is activated by command of the Special Secretary ex officio, or upon order of the Minister or the General Secretary of the Region. Investigations may also be requested by the General Inspector of Public Administration, the Ombudsman, or the head of an Independent Administrative Authority.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Any individual in case of disagreement with administrative authorities’ decisions may appeal competently and apply remedies’ request or special administrative appeal.

Administrative: any person who has, against the State or other public entity, monetary claim by a legal relationship governed by public law (Article 71 Administrative Procedure Code).

Civil: Whoever has the capacity to be the subject of rights and obligations and has
ability to be a party (Article 62 Civil Procedure Code).

Criminal: The civil action for damages and recovery from the crime and the
compensation for moral damage or mental anguish can be brought to criminal
court by the beneficiaries in accordance with the Civil Code.

NGOs

NGOs may appeal before the administrative authorities.

The Greek Constitution, after its revision in 2001, gives NGOs legal standing right in environmental cases.

In most cases the Greek courts considered that the protection of the environment has to be generally described in the statutory objective of the legal entities without being the sole or predominant.

Other legal entities

Corporations, associations, trade unions and groups and entities affected may also appeal.

Corporations, associations, trade unions and groups and entities affected or which are legally able to defend legitimate collective rights and interests.

Criminal Judicial Procedure:

Any legal person since action is public. Legal persons can intervene as private prosecution in a strict sense.

Ad hoc groups

They may also appeal before the administrative authorities.

Associations seeking a purpose without being unions and companies having no legal personality may be parties (Article 62.2 Civil Procedure Code).

foreign NGOs

According to the law 3422/2005, they can apply for environmental information.

Any other

There are no different rules applicable in sectoral or procedural legislation for any of the above actors. Article 24 of the Constitution (after the 2001 Constitutional revision) underlines that “the protection of natural and cultural environment is an obligation of the State and everyone's right”. That means that everyone or a group of people together have the right to appeal before the courts in order to protect the environment proving a particular legitimate interest regarding their case. This collective/class action has the features of actio popularis.
Collective action is the action that may be filed by a consumers’ association on behalf of all consumers in case of a breach of their statutory rights. All consumers benefit from the measures taken under the judgment. The Greek Ombudsman institution cannot have legal standing. If, during the course of an investigation, the Competent Authority refuses to collaborate with the Ombudsman or if there are sufficient indications of criminal acts, the Ombudsman may initiate disciplinary proceedings or refer the case to the public prosecutor. The Prosecutor can act ex officio in case of a criminal offence.

VIII. Legal Representation

The role of a lawyer hired by an individual or by a company or by the state is to be the trusted advisor and representative of the client, the professional who is appreciated by others and the necessary participant in the fair administration of justice. Bringing together all these elements, the lawyer, who faithfully serves the interests of his client and protects their rights, also responds to the duties of lawyers in society, namely the prevention and avoidance of conflict, to ensure that conflicts are resolved according to the recognized principles of civil, public or criminal law and taking fully into account the rights and interests, development of law and defense of freedom, justice and the rule of law. Lawyers are part of the justice system. In administrative procedures the presence of a lawyer is not obligatory. Lawyers are compulsory for the cases before the Supreme Court, but not in the lower level courts, i.e. in the courts for small scale criminal offences. In the criminal procedure the legal counsel is compulsory for the accused. There are law offices and known lawyers specialized in environmental cases and matters. There are also NGOs dealing with environmental protection, but no NGO has a permanent legal service.

IX. Evidence

In Greece, there are no special rules for provision of evidence in judicial cases in environmental matters. Standard court procedures rules apply. The court acts only on the application of a party and decides on the basis of the factual claims made and demonstrated by parties and of the applications that they submit. Procedural steps are taken at the investigation of the party, unless the law provides otherwise. Each party is required to demonstrate only the facts that have a bearing on the merits of the case and that are necessary to support his independent claim or counter-claim. A claim from a party that is not demonstrated is rejected. In civil procedures, each party must prove the facts required for the support of his application. Subjective burden of proof is the risk of the party to lose its ability of proof if the relevant evidence procedure is not completed within the prescribed deadline. Objective burden of proof is the risk of the party of losing the trial if the judge after exhausting all legitimate evidence still doubts as to whether the facts giving rise to critical legal consequences occurred. Criminal procedures in environmental matters are handled by the state prosecutor, who also has to provide all the evidence. In procedures of the Administrative Court (procedure against a negative administrative decision) the parties can provide evidence. All evidence derived either from the administration or from the private litigants is collected in the file of the case. In the proceedings before the Council of State and before the Administrative Courts the evidence before the issue of the ordinary decision for evidence has entirely a means of evidence: the documents, which are presented in principle with the initiative of the parties. Parties can introduce new evidence. The court can also ask for an expert opinion if it considers that there are issues for the understanding of which an expertise is required. The court can appoint an expert if this is requested by any of the parties and the case requires a specific knowledge (Article 368 Civil Procedure Code). Parties can get expert opinions in the procedures if they find experts addressed to specialized bureaus and pay them. The experts exercise public functions in the framework of their expertise. This has practical importance as to the evidentiary strength of their objective findings (binding strength of evidence of public documents, Articles 438, 440 Civil Procedure Code) in comparison with their appreciative judgments that are estimated freely (Article 387 Civil Procedure Code).

X. Injunctive Relief

When challenging an administrative decision, the appeal has no suspensive effect on the challenged decision. However, a special action for suspension can be submitted jointly with the main action. The president of the court or the president of the special chamber of the Council of State has the right to proceed immediately to the suspension by his own individual act. The execution of an administrative act can be suspended if it has been appealed. However, the suspension is potential and is ordered by the Administration or the Court. The majority of environmental cases that have been discussed by the civil courts have been tried in the context of injunctive relief. The inability to fully restore the ecological damage and the fact that the repaired damage compensation covers only private legal goods makes the injunctive relief the only available means to prevent or at least to limit the environmental damages or charges. According to Article 681 of the Civil Procedure Code “the courts in case of emergency or in order to prevent imminent danger may order an injunction relief for the preservation or extinction of a right or to regulate a situation and to reform or to withdraw it”. The need for an interim relief should be treated as rebuttable evidence and arises in all cases of serious threat of environmental damage. The injunction relief ordered by the court in environmental cases intends to prohibit attacks in the future. It is so even if the injunction has been preceded by an unlawful infringement and the injunction does not intend to satisfy the original claim for cessation of the infringement. Civil courts are competent to hear the relief only if they are competent to hear the main case. During the special procedure of injunctive relief, courts in urgent cases or in order to prevent imminent danger, can order interim measures to secure or preserve a right or to regulate a situation and to reform, or to withdraw. The right may be subject to a condition or deadline. The injunction may also be ordered during the trial concerning the main case. If the provisional measures have been ordered before filing the claim for the main case, the applicant shall, within thirty days from the decision that ordered the provisional measure, sue for the main action, unless the court defined a longer period for filing the claim. If the deadline expires, the interim measure shall be lifted automatically, unless the applicant within this period achieved the summary judgment. If the request for injunctive relief is accepted, the opposing party can ask for its repeal based on data that are not brought to the court. If the request for injunctive relief is rejected the applicant may come back with new arguments.

XI. Costs

Costs depend on the level of the judiciary addressed. For instance in the Council of State the submission of an annulment request costs 150 Euros, while the submission of a suspension request costs 100 Euros. The submission of a statement/memorandum prior the trial costs 100 Euros, while the notification service costs 50 Euros for the Attica region (150 Euros out of Athens). For important environmental problems, decisions are made by several Ministries. That means that the involved citizens, companies etc. are many and consequently notifications are more than one. The representation in the Council of State costs 1300 Euros. Minimum costs vary as follows:

  • The minimum of costs at the lower judiciary is approximately 500 Euros.
  • For the Supreme Administrative Court it is 2000 Euros.

Recently judicial costs have been doubled due to the economic crisis and for the decongestion of the courts. Expert fees depend on the case and the specification one may need. For more complex cases it can be 40000 Euros. For less difficult cases, fees are lower. Lawyer fees depend on the specification of the case. Because fees are high, cases are addressed within cooperation between NGOs and citizens in order to share costs. This is the standard practice for lawyers specialized in environmental protection. The cost of an injunctive relief/interim measure is about 400 Euros. The submission of a request for injunction costs 50 Euros, while the notification costs 50 Euros each within the Attica region. If it is out of the capital region, it will cost approximately 150 Euros. Lastly, the ‘loser pays principle’ prevails and is applied by the courts. The meaning is that the loser pays all court expenses. There is an exception when the loser acted in good faith.

XII. Financial Assistance Mechanisms

There are no specific provisions relating to exemptions from procedural costs in environmental matters. There is a general mechanism of legal aid and not a special one for environmental matters. Legal aid beneficiaries are low-income citizens of any Member State of the European Union. Beneficiaries are also low-income citizens and with a stateless third state, where they are legally domiciled in the European Union. Low-income citizens, beneficiaries of legal aid, are those whose annual family income does not exceed two thirds of the minimum individual annual salaries provided by the National General Collective Labour Agreement. There is another program called "Legal Help for the Young” (Youth Legal Aid). Its purpose is to serve free legal assistance to juveniles and socially vulnerable groups of young people (target groups, beneficiaries), covering their representation at court. Cases of people who can benefit from the Program are normally assumed by young lawyers up to 35 years of age. The objective of this program is twofold. First, it focuses on combating social exclusion often experienced by the target groups. Secondly, it encourages and supports young lawyers to take cases involving vulnerable social groups and young children. There is no special legal aid mechanism available in environmental matters. The conditions are the general ones.

  • The legal assistance is provided at the request of the beneficiary. The application shall indicate briefly the subject of the proceedings or the operation and data certifying that the conditions for aid delivery are present.
  • The application shall be accompanied by the necessary supporting evidence of economic situation (the copy of tax return or a certification that the inspector is not required to submit a statement, a copy of the statement on the financial situation, tax return, certificates of welfare services, affidavits) and proof of domicile or residence, if it is a citizen of a third State.
  • The application and supporting documents should be submitted at least fifteen days before the trial where legal assistance is sought. The deadline may be shortened to a subsequent summons. The proceedings are free and there is no mandatory representation by a lawyer.

There is typically no pro bono legal assistance provided by law firms. The only case of pro bono court representation is provided by certain human rights NGOs in particular cases concerning migrants and refugees. Neither are there legal clinics dealing with environmental cases nor are there public interest environmental law organizations or lawyers available to the public in Greece.

XIII. Timeliness

The appeal is submitted to the competent authority or to the supervising authority and its object is the withdrawal or the amendment of an administrative act. The administration must consider the appeal and notify the person concerned of the decision within 30 days unless there are special provisions. In cases where a Minister exercises control after a submission of a special administrative appeal, the deadline is 60 days. Sanctions against administrative organs delivering actions in delay are applied according to the Public Servants Code (law 3528/2007). For judicial procedures in environmental matters, both for the court and for the parties, there are no time limits provided by law. There is no deadline set for the court to deliver its judgment. There are long delays in judicial decisions. However, there is the means of temporary suspension where the Council of State immediately stops the harmful actions against the environment until the court’s final decision. Until now, Greek citizens were addressed the European Court of Human Rights at Strasbourg .According to Articles 53-60 of the law 4055/2012 on fair trial, any party other than the State and public legal entities, which are governmental agencies within the meaning of Article 34 of the European Convention on Human Rights, who participated in administrative proceedings may apply for equitable relief under the condition that the procedure for the trial was delayed unreasonably namely that lasted beyond the reasonable time required to diagnose the factual and legal issues raised in the trial. The application is directed against the Greek government legally represented by the Minister of Finance.

XIV. Other Issues

It is not necessary to go to the courts, this is only an option. The environmental decisions are usually challenged in the administrative procedure or with legal remedies against the administrative decision. Citizens and NGOs are quite active on environmental protection issues acting either during the administrative procedure or before the courts. The Greek judicial system corresponds sufficiently to the principles of the Aarhus Convention. People are quite aware although information on access to justice is very poor and it is not given in a systematic way. There is the official site of the Ministry of Environment, but it does not provide enough information (Link opens in new windowhttp://www.ypeka.gr/Default.aspx?tabid=467&language=el-GR). There is no specific ADR mechanism in environmental matters; the out-of-court practice is almost unknown in this field. Mediation is used only in the framework of the Greek Ombudsman Institution. The environmental issues submitted for mediation mainly concern illegal construction, compensation for expropriation, urban issues or waste management etc. However, lastly the law 4055/2012 added an Article 214B to the Civil Procedure Code according to which civil law disputes can be resolved by resorting to judicial intervention. Recourse to judicial mediation, which is optional, can be done before filing the claim or during the proceedings.

XV. Being a Foreigner

There are no anti-discrimination clauses regarding language or country of origin in the Greek procedural laws. There is no reason for such rules as according to the law all foreigners are equal before the law. No other languages are allowed in court procedures. Greek is the official language. Foreigners have to have a translator who is not paid by the government except if the accused is beneficiary of legal aid. There is one more case where the translator is paid by the government: when the court appoints ex officio a translator. If a witness, expert or someone from the attending parties or their legal representatives or the accused does not speak the Greek language, an interpreter is hired. If it is a little known language, an interpreter can be hired. Interpreters are appointed by the judge or by the President of the court.

XVI. Transboundary Cases

The notion of the public concerned in the transboundary context is applied according to the generally accepted rules of international law. In a trial conducted in Greece, legal standing of a foreigner person is judged according to the law of his nationality and of the foreign company under the laws of the country where it is located. But if it concerns an association without legal personality standing is based on Article 62.2 Civil Procedure Code (associations seeking a purpose without being unions and companies having no legal personality, may be parties). In environmental cases, there are no special provisions. International conventions’ and treaties’ provisions are applicable. In choosing between courts of different countries, it depends on what is the most favorable for individuals or NGOs from the countries’ laws.

Related Links

Link opens in new windowhttp://www.ypeka.gr/

Link opens in new windowhttp://www.et.gr/

Link opens in new windowhttp://et.diavgeia.gov.gr/f/ypeka

Link opens in new windowhttp://nomosphysis.org.gr/?lang=en

Link opens in new windowhttps://www.synigoros.gr/?i=stp.en

Link opens in new windowhttp://www.hellenicaid.gr/

Last update: 31/05/2018

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - France

  1. Constitutional Foundations
  2. Judiciary
  3. Access to Information Cases
  4. Access to Justice in Public Participation
  5. Access to Justice against Acts or Omissions
  6. Other Means of Access to Justice
  7. Legal Standing
  8. Legal Representation
  9. Evidence
  10. Injunctive Relief
  11. Costs
  12. Financial Assistance Mechanisms
  13. Timeliness
  14. Other Issues
  15. Being a Foreigner
  16. Transboundary Cases

I Constitutional Foundations

An ”Environmental Charter” was introduced into the French Constitution by the Constitutional Law n° 2005-205 of March 1, 2005.

The Constitutional Environmental Charter consists of 10 items. It recognizes the fundamental rights and duties relating to environmental protection in three main principles: the precautionary principle, the prevention principle and the polluter pays principle. This Charter does not state a right of access to justice, but Article 7 provides that "Everyone has the right, under the conditions and limits defined by law, to access to information about the environment held by public authorities and to participate in the development of public decisions affecting the environment. "

Citizens can invoke these constitutional standards in administrative proceedings and before courts of law, since the "Priority application for a preliminary ruling on the issue of constitutionality" entered into force in March 2010, as introduced under the Constitutional Reform of July 23rd 2008.

Article 55 of the Constitution proclaims the supremacy of treaties over the laws. All the Courts must ensure the respect of this principle (Case law for Administrative courts: CE ass., 1989, Mr. Nicolo). Parties can rely directly under certain conditions on international agreements.

The Aarhus Convention was ratified by France on 8 July 2002 (after approval by Law No. 2002-285 of 28 February 2002). Direct effect of provisions of Aarhus Convention is recognized only for some provisions of the Convention.

II Judiciary

The French legal system is organized on the basis of a fundamental distinction between two orders of courts:

  • the judicial order dealing with disputes between private individuals or bodies; and the
  • administrative order dealing with cases involving some form of dispute between citizens and public authorities, a private individual or body (company, association, etc.), and a public body.

Each of them consists of common-law courts and specialized courts.

There are two types of courts: the civil courts and the penal courts.

In first instance, the civil courts are ordinary (regional court) or specialized (district courts, commercial courts, social security courts and the Conseils des prud’hommes for labor relations disputes between employees and employers commercial courts for disputes involving business people or firms, and social security courts, and the court of rural leases).

The organization of criminal courts distinguish three types of offense:

  • contraventions (petty offences), tried by police courts,
  • offences (misdemeanors), tried by criminal courts,
  • crimes (serious indictable offences) tried by the Assize Court (the only court with lay jurors).

There is a specific court for minors, the Youth Court or juvenile courts, for both civil and criminal cases.

All appeals of the civil and penal court judgments are brought before the court of appeal except for the appeals of rulings of the court of Assizes which lies with another court of Assizes. The rulings of the courts of appeal may be subject to appeal before the Court of Cassation, the supreme court of the judicial order. The “Cour de Cassation” is responsible for examining appeals against the judgments of lower judicial courts, which decides appeals on points of law and procedure and can set aside or quash judgments and remit cases for rehearing to one of the 35 courts of appeal for retrial.

The administrative courts are the ordinary administrative court in first instance. The specialized administrative courts are mainly the National Asylum Court, the financial courts (regional account chambers and Court of Accounts), the disciplinary courts (Court of budgetary and financial discipline, Higher Council of magistrate, ordinal courts, university courts…). The appeal of their judgments is, in principle, brought before the administrative courts of appeal, whose rulings lie, in appeal, with the Council of State.

The Council of State is the supreme administrative court and court of final appeal on the legality of administrative acts. Like the Court of Cassation, it only exercises control over the proper application of the rules of procedure and law by the jurisdictional decisions contested before it. In addition, the Council of State also, in certain disputes such as that of the regulatory acts of the ministers, adjudicates in first and second resort. The Council of State advises also the government on draft legislation and on some draft orders.

The conflict of competence between judicial and adminstrative courts is determined by the Jurisdictional Conflict Court, made up of an equal number of members of the Court of Cassation and of the Council of State.

The Constitutional Council, composed of nine members, is responsible for ruling on the constitutionality of organic laws and legislation submitted to it and for overseeing the proper functioning of elections. It does not have any competency regarding the administration’s acts.

There are no special courts in environmental matters. All French courts deal with environmental matters according to their respective competences.

„Forum shopping” does not exist in the French legal system. Competence of Courts is determined by law.

There is no distinction between ordinary appeals and extraordinary remedies in French judicial procedures. There is a distinction between ordinary appeals and referrals (”référés”) that allow for interim measures (suspension of an act, payment of an interim compensation) or the investigation or instruction (appointment of an expert). The first instance decisions can be overturned on appeal, and decisions of courts of appeal may be canceled by the supreme court of cassation (Council of State or Cassation court).

Powers of administrative judges are broad including for first instance judges. The administrative judge may set aside an unlawful administrative decision. Judges may also order the administration to review this annulled decision by specifying the content of this new decision.

There are no specific rules of judicial procedures in environmental matters, there are only two exceptions before administrative courts.

The first, Articles L. 122-2 of the Environmental Code and L. 554-11 of the Code of Administrative Justice, allows the suspension of a license or an approval decision on the implementation of interventions or works if due to their size or impact on the natural environment it should have been subject to an EIA, but this was not carried out.

The second, Articles L. 123-12 of the Environmental Code and L. 554-12 of the Code of Administrative Justice, allows the suspension of a decision authorizing the implementation of interventions, structures, or works subject to a prior public inquiry, if an appication raised a serious doubt as to the legality of the decision: where the findings of thecompetent authority are unfavorable, or when the required public hearing has not taken place.

In both cases, the condition of urgency that is required to order the suspension of an act is as a rule a presumption

Normally, judges, especially administrative judges, do not have the right to bring a case to a Court, only parties including citizens, NGO's, companies, administrations and public authorities may. But there is an exception: legal action may be initiated ex officio in criminal matters by the Prosecutor of the Republic. This is also possible in the field of environmental matters.

III Access to Information Cases

The general legislation on access to administrative documents (Act N° 78-753 of 17 July 1978, as amended by Act N° 79-583 of 11 July 1979 on motivation of administrative acts and improving relations between the administration and the public and by Art. 7 of Act N° 321 of 12 April 2000 on the rights of citizens in their relations with the administrations) established the freedom of access to administrative documents. This law covers all documents held by the administration (whether they emanate from the administration or whether they have a third party origin) and which by their nature, subject matter, or use are connected with the exercise of a public service activity. This law provides that access to administrative documents shall not be granted if consultation or disclosure of these documents would prejudice secrets protected by the law.

The right of access to information about the environment is exercised under the general conditions defined by the Act of July 17, 1978 and the special provisions of the Environmental Code.

The illegal administrative decisions related to this topic can be cancelled by Administrative courts after notice of a national commission.

The article R.421-5 of the Administrative Courts Code provides: "The deadline for appealing against a decision referred to the court are binding only if it has been mentioned, as well as the remedies in the notification of the decision."

In Environmental matters, an implicit refusal to disclose information is necessarily illegal because this decision has not been notified to the applicant by a written reasoned decision specifying the means and periods of claim before an administrative court.

Law No. 78-753 of 17 July 1978 established an independent Commission on Access to Administrative Documents (CADA), which is responsible for ensuring respect for freedom of access to administrative documents. The C.A.D.A. also has jurisdiction in matters concerning access to information about the environment. The case must first be brought to this commission before bringing it to the administrative court. The procedure is provided for in sections 17, 18 and 19 of Decree No. 2005-1755 of 30 December 2005 concerning freedom of access to administrative documents. An applicant who has experienced a refusal to communicate has to bring the question to the CADA within two months from the notification of the refusal. In the period of one month following receipt of such notice, the competent authority shall explain its position to the CADA. If the competent authority confirms its initial denial or does not respond within two months from referral to CADA, the applicant may appeal to the administrative court for annulment.

Courts may order the administration to produce requested information. Courts can also annul the decision to deny access and, therefore, draw the consequences of a refusal.

Courts can order information to be disclosed.

IV Access to Justice in Public Participation

A facility operated or owned by any person or entity, public or private, which may pose hazards or inconveniences to residents, health, safety, public health, agriculture, environmental conservation, protection of sites and monuments, is referred to as a "classified facility for the Protection of the Environment (ICPE)” in France, and is subject to a special legal regime described by the Environmental Code. There are about 500000 of such facilities in France.

The legislation on classified installations for environmental protection organize three different regimes depending on the severity of the dangers and disadvantages: the authorization, the reporting, and a recent intermediate regime simplifying authorization, referred to as "registration" (Order No. 2009-663 of 11 June 2009 and Decree No. 2010-368 of 13 April 2010).

Under the regime of prior authorization, the right to operate is granted after an ”impact study” and a ”public inquiry”.

The appeal to a superior administrative authority against an administrative decision is always possible (it is a general principle of case law). Unless a special rule states it is optional.

The general principle is that administrative decisions can be taken to Court directly if no specific procedural rules are in place (for instance as in the case of access to environmental information). There are no specific rules as regard public participation and related decisions.

In the absence of specific rules provided by law about the necessity of an administrative claim, administrative decisions can be brought to an administrative court directly.

The administrative courts review the procedural legality and the substantive legality of all administrative decisions.

The courts study the material, technical findings and calculations when they are considered belonging to the decision.

The legality of administrative planning is controlled by the administrative courts. The conditions regarding legal standing, rules of evidence, rules on hearing or extent of review by the court are not specific in this field.

About legal standing: any physical person who is empowered to go to court may refer to the administrative judge. This capacity is assessed according to the rules of civil law. Therefore non-emancipated minors, as well as the major persons placed “under the safeguard of justice” due to mental faculties or those under penal convictions leading to their legal judicial interdiction are not able to go to court. However, the administrative jurisprudence admits that certain persons, while they are incapacitated according to the civil code, have the capacity to exercise appeal for excess of power against decisions affecting “the fundamental principle of the right to habeas corpus.”

Legal persons or groups may lodge an appeal against the measures affecting their own interests (existence, estate, activity, operating conditions), as well as, request damages for the material and moral damage they suffer. But they also may go to court to defend the collective interest of those they represent, insofar as the regulation or the disputed measure harms this collective interest.

In administrative litigation, as in private legal proceedings, the plaintiff bears the burden of proof. However, this principle is applied somewhat differently in administrative litigation, notably when the elements of proof are in the hands of the administration or, in the case of liability, based on the principle of presumption the petitioner is exempt from establishing the fault he/she alleges and oblige the administration to prove that it committed no error. Considering the inquisitorial nature of the proceeding, the administrative judge, who has significant investigative powers, actually contributes significantly in establishing the facts. If need be, he/she may order the disclosure documents or proceed him/herself to certain investigations by directly examining acts or documents, by visiting locations, by attending hearings or expert assessments.

Article L. 6 of the code of administrative justice enshrines the principle that "proceedings shall be held in a public hearing".

The rule of legality has varying requirements as it is interpreted and implemented by the administrative court. Notably, the rule does not exclude administrative authorities with the freedom of action illustrating what is called their “full power to act”.

When the administration has a choice between enacting a decision and abstaining from any decision or between two or more decisions of different content but equally compliant with the law, the judge is not always bound to control the appropriateness of the choice made by the administration.

In addition, subject to the rule of legality is more or less rigorous depending on whether the judicial control is introduced as a “normal control” or a ”restricted control.” Control will be restricted to cases where the controversial decision was made in exercising discretionary power, that is, when the legality of the decision has to be assessed. In this case, the administrative judge will control whether the decision is based on a factual error, legal error, or of abuse of power, but the control of the facts’ legal appreciation will only focus on obvious mistakes of assessment. In the usual cases where the administration’s decision is guided by legal criteria and where, therefore, the judge carries out a normal control, all the errors in the legal qualification of the facts will be controled.

In certain cases, normal control and restricted control are exercised according to specific terms. Thus, the restricted control does not include the search for an obvious error of assessment when the decision results from a sovereign administration’s assessment (example of examination juries).

The judge also has power to balance the administrative decision’s advantages and disadvantages; the decision will only be legal if it is appropriately reflecting the facts.

The environmental impact assessment (screening or scoping decision) is a part of the procedure for authorization of an installation classified for environmental protection. It is possible to apply for annulment against this authorization or approval of the project before administrative courts for a lack or insufficiency of the EIA#_ftn1[1]. But it is not possible to act directly before courts against this EIA.

The final authorizations can be reviewed by courts. The conditions regarding legal standing, rules of evidence, rules on hearing or extent of review by the court are not specific in this field.

The administrative courts review the procedural legality and also the substantive legality of all administrative decisions. The courts study the material, technical findings and calculations when they relate to the decision. The environmental impact study is controlled because it is the main aspect of the procedural legality.

Proving an interest in taking legal action is the main condition to be fulfilled for an appeal’s admissibility.

Except for the exceptional case where a public authority is vested with a legal warrant empowering it to act against the measures it considers as illegal (cases of a prefectorial application for judicial review), the interest justifies the exercise of the appeal. This interest, whose existence is assessed at the time of the appeal, may be of a different nature: moral or material, individual or collective.

In all cases, it must be personal, legitimate and pertinent. The first of these requirements prevents a person from acting without warrant on behalf of another, or claim only his quality as a citizen, consumer or elected official to oppose an act’s legality. The necessity of a protective interest opposes the fact that an appeal aims to safeguard an irregular or immoral situation. Finally, the status from which the petitioner acts must be related to the disputed decision. In addition, the interest must be direct and certain, that is directly and certainly wronged by the disputed decision.

The administrative courts review the procedural legality and the substantive legality of IPPC#_ftn2[2] decisions as well as the legality of all administrative decisions. They have also to study the material, technical findings, calculations and the IPPC Documentation if these elements are considered to belong to the decision. The courts study the material, technical findings and calculations when they are considered as belonging to the decision.

The arguments presented in support of an action for annulment of an administrative decision (appeal for abuse of power) are classified into two categories: external and internal legality.

The external means of illegality are related to the implementation of the act: incompetence of the author of the act, procedural illegality, defect or irregularity (including failure to state reasons)

Legality of the means are related to the content, the substance of the act, and error in fact or error in law:

  • error in law: application of a rule of law which is not applicable or misinterpretation of the applicable rule
  • error in fact: error in the characterization of the facts or manifest error of assessment when the judge is exercising limited control,

and abuse of process or power.

It is not necessary to participate in the public consultation phase of the IPPC or EIA procedure or to make comments to have a standing before administrative courts.

The appeal for abuse of power is widely open to litigants, but it is not an "actio popularis." In order to be eligible to have access to justice, the claimant must justify an "interest" connected with the content of the decision, which is understood, however, fairly liberally and broadly by the administrative courts. This interest must be direct, certain and actual.

The power of injunction is available for Administrative Courts in all matters.

For a long time, the administrative judge refused to address injunctions to the administration, including for the execution of his/her decisions. The only recourse for the decision’s beneficiary was to launch another appeal against the administration’s inertia. The law of February 8, 1995, confers to the administrative courts the possibility of addressing to the administration injunctions to take an execution measure in a determined direction or to rule again in a pre-determined timeframe.

In this regard, one must refer to the court with specific request for injunction. Public bodies or private law institutions responsible for management of a public services are subject to this injunction.

The injunction power is matched with a possible penalty. This penalty must be requested, except before the Council of State, which can pronounce it automatically and, in addition, enjoys the support of specialized department responsible for following the execution of its decisions.

About classified installations for the protection of the environment, the administrative judge has a power of injunction against the prefect. It can seek to implement any measures it considers necessary.

V Access to Justice against Acts or Omissions

Claims can be brought directly against private individuals or private companies before ordinary civil courts or criminal courts. The criminal courts may impose a fine on the private person (there is also a possibility for an individual to be sentenced to jail), when s/he caused an environmental damage. But this is only possible if this incrimination has previously been criminalized by law. There is no general incrimination in environmental matters, so the penal judges must refer to the enumerated written list of the Penal Code. The civil judges may sentence individuals or private companies to compensate an environmental damage when three conditions are met:

  • (1) the author is responsible for this damage,
  • (2) this action has caused compensable harm,
  • (3) and there is a causal link between the action and the damage.

Some liability regimes of civil law can result in liability even in the absence of fault (liability for things or for others vicariously, or for defective products). The operator of a facility can also be ordered to clean up a polluted site (rehabilitation).

Claims for the protection of the environment can be submitted directly to the administrative courts against public bodies (the State or local public authorities). These remedies allow the Administrative Courts to cancel illegal administrative decisions (e.g. permissions), to impose new requirements for private operators in order to improve environmental protection, or engage the liability of the State or local public authorities. This responsibility is most often sought in cases of deficiency found in the power of control managed by public bodies. But the examples are rare. The Council of State sometimes shares the responsibility between the State and the municipality (see for example: CE, July 13, 2007, Municipality of Taverny, No. 293210). The law of 1 August 2008 published for transposition of the EU Directive of 21 April 2004 did not create a principle of subsidiary liability of the State in case of impossibility to implement the polluter pays principle.

Article L 165-2 of the Code of the environment, resulting from Law No. 2008-757 of 1 August 2008, provided the intervention of a decree to designate the competent authorities in environmental liability matters. A decree No. 2009-496 published on 30 April 2009 has designated several authorities within the state, according to the types of projects, plans and programs: the Minister for the Environment, the General Council of Environment and Sustainable development, the prefect of the region, another prefect coordinator, or a maritime prefect (for sea areas).

There are no specific rules about requests for action in environmental matters. Responsibility of the State can not be claimed directly before administrative courts. The claim brought to a judge is always an appeal filed against the explicit or implicit rejection of the State or against a positive answer regarded as insufficient.

There are no specific rules concerning conditions of court review in environmental liability matters in French law. Lawyers have to refer to the general principles of the responsibility of the State. Administrative judges may quash the dismissal of the claim and condemn the State if (1) it is the responsible for the damage, (2) if this action (or lack of action more often) has caused compensable harm, and (3) there is a causal link.

When an unlawful administrative decision in environmental matters is canceled, the administrative courts must, on request of the applicant, require the competent public authorities to draw the consequences of this cancellation.

There are several environmental liability regimes. Each of them is based on specific conditions. Before Administrative courts, the responsibility of the polluter may be sought on the basis of "the IPPC regulation" (the operator's liability), the rules about waste management (responsibility of the holder), or the specific regime established by the Law of 1st August 2008. Before Civil courts, environmental damages can be compensated on the basis of the common civil liability regimes (for misconduct, negligence, and sometimes without any fault) or special duties (abnormal neighborhood disturbances, damage caused by certain types of pollution: hydrocarbons and nuclear facilities). The criminal courts may punish for environmental damage that have been previously criminalized (also look at answer number one).

VI Other Means of Access to Justice

All general court proceedings, administrative, civil or criminal are likely to be applied in environmental matters. There are not really other specific rules in this area.

There are not specific public authorities responsible for ensuring access to justice in environmental matters. The Ombudsman, the Public Prosecutors and all jurisdictions can intervene in the field of environmental law.

The Ombudsman was created by the law of 3 January 1973 on the model of the Swedish Ombudsman. This is an "independent administrative authority" responsible for improving relations between citizens and public administrations. The Ombudsman intervenes in disputes between citizens and public authorities. He is responsible for proposing solutions to amicably solve the disputes. This authority has changed its name since March 31, 2011, it is now called "Defender of Rights."

The Prosecutor of the Republic (Procureur de la République) is the magistrate who is responsible for leading "public action" within the jurisdiction of the "Tribunal de Grande Instance (TGI)," the main civil and penal court at the first instance level. The Prosecutors are subject to the authority of the Minister of Justice. The tasks of the Prosecutors shall be exercised mainly in criminal matters. He is responsible in accordance with the principle of prosecutorial discretion to prosecute offenders or not (also in environmental matters).

When a criminal offense relating to the environment occurred, private prosecution is available.

There are two possibilities of claims before the administrative courts in cases of administrative inaction or inappropriate action:

  • the action for annulment against an unlawful administrative decision: called "appeal for abuse of power".
  • the action for damages against a public authority when it is shown that this inaction or inappropriate action caused a prejudice.

VII Legal Standing

Article 31 of the Civil Procedure Code recognizes legal standing to those who have an interest and standing. The claimant must show a legitimate interest protected by law, and a personal and direct interest ("no one argues with attorney"). The law also allows legal persons; including associations; NGOs; and professional, legally created, unions to defend the common interests of their members. The interest to bring a case to a court must be vested and present, but the courts have sometimes recognized the admissibility of actions when the interest is in the future or uncertain.

These civil law concepts are found in the jurisprudence of administrative courts with a pragmatic and extensive interpretation. The "appeal for abuse of power" is wide open against any administrative decision, but the quality of citizen life is not sufficient for acting: it is not an "actio popularis." In order to be eligible to exercise it, the claimants have to justify an "interest conferring locus standi", which is direct, certain, and current (CE, 21 Décembre, 1906, Union des propriétaires et des contribuables du district de la Croix - Seguey - Tivoli, Recueil Lebon, page 962 - CE, December 21, 1906, Union of owners and taxpayers of the district of Cross-Seguey - Tivoli, Recueil Lebon page 962).

These principles apply to all applicants: individuals, legal persons of private law, French or foreign associations, NGO's, etc.

There is no mechanism of “actio popularis” in France.

The Ombudsman cannot intervene in proceedings before courts or question the validity of a judicial decision. However, the Ombudsman may issue injunctions to the public authorities when they refuse to execute a court decision in favor of the applicant.

The Public prosecutors do not have any interest to act before administrative courts. They can act only in criminal matters.

All other public institutions have legal standing to act before administrative courts when they have interest to claim or to defend.

There are no EIA and IPPC specific rules about legal standing of individuals/NGOs and access to justice for environmental matters.

VIII Legal Representation

Before the first instance administrative courts (art. R. 431-2 of the code of administrative justice), representation by legal counsel is imposed in matters of full jurisdiction: essentially monetary or contractual litigation. The other disputes are implicitly excluded from the rule of compulsory representation. Before the administrative courts of appeal (art. R. 811-7 of the code of administrative justice), the obligation of legal counsel is the rule (only exceptions: disputed excess of power in relation to public service and disputed highway traffic violations).

Before the first instance courts as well as before the appeal courts, the State is exempt from having a lawyer.

The rule of compulsory representation is broader before the Council of State: this is the rule in cassation (except for some situations such as the litigation of social aid). With respect to excess of power in first and last instance, counsel is not compulsory.

The absence of a lawyer is sanctioned by the inadmissibility of the request, after a failure of the regularization.

The environmental law is one of the indications of specialization in use in the lawyer profession (Decree of 28 December 2011, Official French Gazette No. 0301 of December 29, 2011, page 22577). The website of each bar includes a list of lawyers specialized in this matter. Any environmental association may act on behalf of individual victims of prejudice, when it received a mandate to do so. It can also act against any administrative decision that may adversely affect the environment.

IX Evidence

In administrative litigation, as in private legal proceedings, the burden of proof is born by the plaintiff. However, this principle sees mitigation in administrative litigation, notably when the elements of proof are in the hands of the administration or, in the case of liability, in the hypothesis of presumptions exempting the petitioner from establishing the fault he/she alleges and oblige the administration to prove that it committed no error.

Considering the inquisitorial nature of the proceeding, the administrative judge, who has significant investigatory powers, actually contributes significantly in establishing the facts. If need be, he/she may impose the communication of documents or proceed him/herself to certain investigations by directly examining acts or documents, by visiting locations, by attending hearings or expert assessments.

The parties can always introduce new evidence. But the procedure applicable to administrative courts is called "inquisitorial": it means that the judge is the master of the procedure. He communicates the arguments presented by the litigants. He also may require parties to produce new documents to establish proof of the facts. He may also order an expertise.

The procedure in administrative courts is different from the one before the ordinary civil courts. Before civil courts the parties conduct the trial by asking the judge to order an investigation, an expertise. The administrative judge is not bound by the request of the parties: it is not compulsory to resort to expertise when it is requested by a party, if the judge considers that the documents of the case are sufficient to form a conviction. However, he may order an expertise even if no such request is expressed by the parties.

The judge is never bound by the result of an expert. He must always evaluate the studies with a critical eye. His solution may be based on other elements of the case which challenge the conclusions of an expert report. This old principle has been expressly stipulated by Article 22 of the Act of July 22, 1889 applicable to administrative courts and is also a case law of the Council of State.

X Injunctive Relief

According to case-law, the principle of the immediate enforceability of administrative decisions is a fundamental rule of public law (CE., Ass., 2 juillet 1982, Huglo et autres). Thus, administrative decisions can be immediately executed, irrespective of a court action. The classical action submitted to the court against such decisions doesn’t have a suspensive effect. There are some exceptions mainly in the field of immigration or taxation law, but not in environmental matters.

There is a possibility for injunctive relief against administrative decisions in administrative judicial procedures in environmental matters, as in all matters. This possibility doesn’t exist before administrative courts against actions or omissions of other private parties. But such procedure can be implemented by ordinary civil courts (“référé civil”).

In emergency cases, the interim stay of execution enables the suspension of the execution of an administrative decision until a judge has ruled on this decision’s legality. The petitioner must demonstrate the urgent nature of the case and that there is serious doubt about the legality of the decision in order for the judge to rule on a provisional measure within a few days.

It is possible to appeal the decision of an administrative court regarding injunction. This appeal must be brought directly to the Council of State.

XI Costs

Legal costs include court fees and attorneys' fees.

  • Court costs are defined by section 695 of the Code of Civil Procedure. Those costs are regulated or tariffed charges:
    • the bailiff's fees (the law provides that acts introducing the trial and also the judgments shall be sent to the opponent by a bailiff);
    • fees known as "postulation and advocacy "(Decree No. 72-784 of August 25, 1972, revised in 1975) which are divided into a "flat fee" depending on the nature of the trial, and a "proportionate interest" calculated on the financial impact of the trial;
    • and the "expert fees".

There are no bailiff's fees nor costs postulation in the administrative courts.

  • Lawyers' fees. These fees are called "unrecoverable" because they can not be refund (returned) since they are not "legally required."

Expenses incurred by the lawyer in connection with the execution of his mission on behalf of his client: tax stamps for registration fees, rights advocacy, publicity rights, fees of expert, bailiff fees, etc.

The stamp duty was suppressed for the requests recorded since January 1, 2004. But since 1 October 2011, any person who seeks justice shall pay a tax stamp of € 35. This amount must be paid at each level of the procedure: first instance, appeal, cassation.

Lawyers' fees are set freely between the parties and their counsel: it is not possible to give an estimate.

The costs of an expert in court are set by the judge. For example in 2009, the Ordinary Court of Appeal and the Administrative Court of Caen suggested applying the following schedule:

  • Fees for the expert: 90 euros for one hour to 180 euros and beyond depending on the complexity of the case.
  • Typing: 7 euros per page.
  • Photocopy: 0,42 euros per page, to 1,5 euro for a color copy.
  • Documents available on CD: 20 euros each.
  • Postage: according to postal rates.
  • Fee-kilometer: 0.60 to 0.80 euro / km.
  • Travel, hotel, meals: according to justifications.

Link opens in new windowhttp://www.upem.org/conditions-generales/

The costs of an injunctive relief/interim measure are the same as for a main action.

Legal costs are usually paid by the losing party. Under Article L 761-1 of the Code of Administrative Justice: "In all instances, the losing party must pay the other party the amount determined by the judge in respect of costs incurred. The judge takes into account the equity or the economical situation of the convicted party. He may even automatically, for reasons based on similar considerations, tell that there is no grounds to condemn.". However, administrative courts usually limit the costs to be paid to a couple of thousands of Euros.

XII Financial Assistance Mechanisms

There are no specific rules concerning litigation costs of proceedings in environmental matters. There is only one tax before administrative courts. A law of 29 July 2011 created a special tax of 35 euros to be paid upon filing of a proceeding before a court (administrative or otherwise). This tax is a condition of admissibility of the application. The beneficiaries of legal aid don't have to pay this tax (look at answer to question number 2).

There is “legal aid” in France. The current legal aid scheme is governed by the Legal Aid Act (No 91-647 of 10 July 1991) and Decree No 91-1266 of 18 December 1991. It covers:

  • Legal aid: financial aid for court proceedings and out-of-court settlement proceedings;
  • Aid towards advocates’ fees in criminal proceedings that are available as an alternative to prosecution (settlement and mediation), for legal assistance for those held by the police for questioning, and for disciplinary proceedings in prisons;
  • Access to the law (information, guidance, free legal consultation). Legal aid entitles the recipient to free assistance from an advocate or other legal practitioner (bailiff, avoué, notary, auctioneer, etc.) and to exemption from court costs.

Legal aid is also available in environmental matters without any specific rules.

Legal aid is subject to requirements as to resources, nationality, residence and admissibility. You may receive legal aid if the average of your combined resources for the preceding calendar year does not exceed a certain threshold set by statute each year. You are entitled to legal aid if you are a French national or a citizen of the European Union or a foreign national habitually, lawfully residing in France. Habitual and lawful residence in France is required as a matter of principle. Legal aid is given if the action is not manifestly inadmissible or devoid of substance. These conditions also apply to NGO’s.

Most Trade Unions and consumer NGO's offer a free legal support given by lawyers to their members. Most lawyers also offer a free initial interview. There are no specific practices in environmental matters.

Legal clinics are quite new organizations in France. There are currently 4 Law Clinics in France, two on civil law and two on human rights (Link opens in new windowLa maison du droit of the University of Paris II ; Link opens in new windowThe Law Clinic of the University of Tours ; Link opens in new windowThe fundamental rights law clinic of the University of Caen ; Link opens in new windowThe Euclid Law Clinic of the University Paris Ouest Nanterre). None of them deal with environmental cases.

There are also more and more specialized lawyers in environmental law and numerous NGO's for the defense of the environment in France. Some of them are recognized as public utilities by the State like France Nature Environment (FNE) which is the French federation of associations for the protection of nature and the environment. It gathers 3,000 NGO's (on a geographical or thematic basis).

XIII Timeliness

There is a principle that an implicite negative decision occurs when the administration does not respond after a period of two months to a request sent by a claimant (Article 21 of the Law of April 12, 2000).

In several fields, the Law established a regime of tacit acceptance. The silence of the administration then causes the appearance of a tacit acceptance within the period fixed by law. Apart from this hypothesis, the responsibility of a public authority may be pronounced by an Administrative court when it is proved that this delay is abnormal and has resulted in a prejudice to the claimant.

There are no special time limits set by law for judicial procedures in environmental matters.

We also have to distinguish the proceedings on the substance and the emergency procedures.

In the case of substantive proceedings, the target set by Parliament to the Administrative courts, at any level (first instance, appeal and cassation), in the annex to the annual law on state budget, is to give a decision within a maximum period of one year.

In the case of emergency proceedings, the court decision comes usually within a week to a month at most, sometimes 2 or 3 days.

There is no legally set time-limit for proceedings on the merits. But there are limits for emergency proceedings: for example, when it is a procedure about a threat to fundamental freedoms the judge shall make his decision within 48 hours.

There is an important principle issued by a case law made in 2002. "Litigants are entitled to have their requests judged within a reasonable time under the principle issued by article 6 of the ECHR. The breach of that obligation does not affect the validity of the judicial decision. But when the right to get a judicial decision within a reasonable time has caused a prejudice, they can obtain a compensation for the damage "due to the improper management of administrative courts". Reference: Conseil d’Etat Assemblée, 28 juin 2002, Garde des Sceaux contre M. MAGIERA, N° 239575.
Link opens in new windowhttp://www.legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin&idTexte=CETATEXT000008099419&fastReqId=109660118&fastPos=7 ... &fastPos=7

XIV Other Issues

An action for annulment against administrative decisions shall be admissible only if it is against an "administrative act adversely affecting" ("acte administratif faisant grief" in French administrative law). An administrative act is considered to be so when it produces legal effects: it changes the legal system or it infringes the rights and obligations of citizens. An act that only occurs in the context of a procedure for developing a subsequent main decision is simply a preparatory act, and can't be challenged before an administrative court. All these general rules are applicable in environmental matters.

The right of access to information on the environment is ruled by general principle issued by the Law No. 78-753 of 17 July 1978 and the implementing Decree No. 2005-1755 of 30 December 2005 on the access to administrative documents, and also by specific norms written in the Environmental Code (Articles L. 124-1 to L. 124-8 and R. 124-1 to R . 124-5). All these texts have been synthesized by a ministerial information circular published on 18 October 2007.

The main website about this topic: French ministry for environment:

Link opens in new windowhttps://www.toutsurlenvironnement.fr/Aarhus/lacces-du-citoyen-a-la-justice

Conciliation, transaction and arbitration are methods to settle disputes that do not have as much room in administrative litigation as in private law disputes. Article L.211-4 of the code of administrative justice provides the administrative tribunals with general jurisdiction for conciliation. But this provision is rarely used, considering the very nature of administrative litigation and the fact that in contractual matters there is already a mechanism for the amicable settlement of disputes with the committees of amicable settlement of the markets. The right to compromise is given to public corporations to settle their disputes. Most of the time, the transactions they sign with private individuals constitute private law contracts and do not fall within the competence of the administrative judge. The public authorities are subject to a ban on principle to appeal arbitration.

Mediation is not often used in the environmental field, but the idea is becoming more and more popular in France. And there are a lot of new studies about this question: how to develop mediation in environmental matters? An interesting conference was organized in April 2012 by „The Institute for Research and Education on Negotiation” with a summary published on „Mediation, method of solving environmental conflict?” (In French).

Link opens in new windowhttp://gcft.fr/wp-content/uploads/2012/05/CR-SIRENE-29.pdf

XV Being a Foreigner

Article 1 of the French Constitution proclaims the principle of "equality before the law for all citizens regardless of origin, race or religion." Many laws have extended this article of the Constitution, prohibiting discrimination, particularly those based on gender, disability, age, or sexual orientation. Article 225-1 of the Penal Code precisely defines the notion of discrimination from a list of many criteria. But there are not anti-discrimination clauses regarding language in the procedural laws in France (look at answer number 2 and 3).

The French language should be used particularly in the courts. This principle is very old. It was proclaimed by a royal ordinance signed in the city of Villers-Cotterets (name of this royal decision) on August 15, 1539. This act is considered to be the "official birth certificate" of the French language. It was incorporated into Article 2 of the Constitution and specified by law n ° 94-665 of August 4, 1994 "about the use of French."

If it is necessary, translation is provided and paid by the government in court procedures, but only in immigration, asylum, and penal cases.

XVI Transboundary Cases

This issue mainly concerns the implementation of environmental responsibility. The environment knows no borders. The only recourse for the victim of a transboundary pollution, is to bring this case before a national court of the State where the infringement is originating from, or the State in whose territory the infringement has its effects. The admissibility of an action before a French court is possible under several conditions related to the jurisdiction of the courts and the principle of territoriality of the law. Non-resident foreigners may invoke the provisions of French law. But to establish cross-border responsibility is difficult under the current rules. There is a difficulty for judges to articulate the common law of civil liability, with the particular environmental liability established by the Act of 1 August 2008 on environmental liability. This transposition of Directive No. 2004/35 of April 21, 2004, is codified within the environmental Code (Title VI "Prevention and repair some damage to the environment"), which remains virtually unimplemented. A major study was published about this issue in January 2012 (70 pages):

Link opens in new windowhttp://dr-petrole-mr-carbone.com/wp-content/uploads/2012/09/CP-1.pdf

The French Environmental Code in English:

Link opens in new windowhttp://www.legifrance.gouv.fr/content/download/1963/13739/version/3/file/Code_40.pdf

This topic can be also studied using a famous case in France after the wreck of the tanker ship Erika from Malta in December 1999 in international waters inside the French Exclusive Economic Zone (EEZ) off the coast of Brittany. This accident polluted 400 km of the coast. The owner and the manager of this vessel charterer, the classification society, were convicted of this pollution by the Civil Court of Appeal of Paris by judgment of 30 March 2010.

The concept of public interest is not specific in a transboundary context. The general rules are applicable (especially about admissibility of requests through the concept of legal interest).

The French administrative law recognizes equal access to administrative courts for persons or NGO's residing abroad, on the same basis that the applicants residing in France. But foreign residents have no access to legal aid. The Administrative Court of Strasbourg decided in 1983, in the case known as "potash mines of Alsace", that legal persons of foreign public law may have an interest to act before a French administrative court. An interesting study about that topic in the field of water management, published in 2007 in French : Jochen Sohnle, « Le dispositif juridique de l’Europe pour appréhender les conflits transfrontaliers sur l’eau », Lex Electronica, vol. 12 n°2, Automne / Fall, 2007, especially pages 17 and 18 :

Link opens in new windowhttp://www.lex-electronica.org/docs/12-2_sohnle.pdf

A jurisdiction clause is possible in civil matters. It takes the form of a contractual provision whereby the parties agree to entrust the settlement of a dispute to a court which does not normally have jurisdiction. This may concern the subject matter jurisdiction or territorial jurisdiction. This clause may relate only to disputes arising from the contract. But this mechanism is forbidden for public contracts and for public litigations before an Administrative Court.

[1] Environmental impact assessment (EIA)

[2] Integrated polluton prevention and control (IPPC)

Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Cyprus

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

The Cyprus Constitution was drafted in the 1950’s before environmental rights became popular. Consequently there is no express provision in the Cyprus Constitution regarding the environment, either as an obligation by the state or as a right towards nature or the individual. There is a right to life (Article 7) which has been interpreted by case law as a right to a healthy environment (Pyrga Community v. the Republic (1991) 4CLR). Given that there is no environmental provision in the Constitution, the main provisions regarding access to justice on environmental matters are those that apply generally, and the Constitution’s main provisions regarding access to justice are delineated in Articles 29 and 146. Article 29 provides that every person (including non-Cypriots and legal persons) has a right individually or jointly with others to address any competent authority, to have their complaint attended to expeditiously and to receive a response within 30 days. (This refers to complaints addressed to civil service departments or other public authorities). Article 146 prescribes who may apply to the Court against a decision, act or omission of a public authority and this would, therefore, apply with respects to environmental issues. For such right to arise the complainant must have an existing personal and legitimate interest which has been directly affected by such decision, act or omission exercised by a public authority in a manner which is contrary to the Constitution, to any law or represents an abuse of power. Citizens can invoke a constitutional right to life and its interpretation. Parties to an administrative or judicial procedure can rely directly on international agreements only if the agreements have been transposed into Cyprus law. The Aarhus Convention was ratified and transposed in 2003 by Law Number 33(III)/2003. No cases have arisen so far involving the principles of the Convention nor is it known to have been quoted in Court.

II. Judiciary

Cyprus follows the principle of separation of powers. Justice is exercised by an independent judiciary in the following courts:

The Supreme Court of the Republic which has the jurisdiction stated below:

Appellate Court

The Supreme Court has jurisdiction to hear and determine all appeals from all inferior courts in civil and criminal matters. The Court can uphold, vary, set aside or order the retrial of a case as it may think fit.

Administrative matters

The Supreme Court as the only administrative court in the country, has exclusive jurisdiction to adjudicate on any recourse filed against a decision, act or omission of any organ, authority or person exercising any executive or administrative authority on the ground that it violates the provisions of the Constitution or any law or it is in excess or in abuse of any power vested in such organ, authority or person.

Constitutional matters

The Supreme Court has jurisdiction to adjudicate as to whether a law is compatible with the provisions of the Constitution or whether any conflict of power or issue of competence arises between any organs or authorities of the Republic. In addition the Supreme Court has jurisdiction to hear recourse by the President of the Republic as to whether a law passed by the House of Representatives is repugnant to or inconsistent with any provision of the Constitution.

Elections

The Supreme Court as the Electoral Court has the power to hear and determine petitions concerning the interpretation and application of the Electoral Laws.

Prerogative orders

The Supreme Court has exclusive jurisdiction to issue the prerogative orders of habeas corpus (to release a person from detention) and other orders instructing a party, to do something or to refrain from doing something, or to correct a decision (mandamus, prohibition, quo warranto and certiorari).

Admiralty

The Supreme Court has jurisdiction to hear and determine admiralty cases. The original jurisdiction is exercised by a single judge and an appeal against his decision lies to the Full Bench of the Supreme Court.

First Instance Courts are: District Courts; The Assize Courts; Family Courts; Industrial Disputes Tribunal; Rent Control Tribunal; Military Court.

The District Courts

Civil and criminal jurisdiction

There are six District Courts, one in each of the six towns of the island. Two of them (the Famagusta and the Kyrenia District Courts) have ceased to be functioning since 1974, and their jurisdiction has been taken over by the Nicosia and Larnaca Courts. Each District Court has jurisdiction to hear and determine all civil actions. Where the cause of action has arisen wholly or in part within the limits of the district where the Court is established, or where the defendant at the time of the filing of the action resides or carries on business within the limits of the Court. A criminal offence may be tried by a President of the District Court, a Senior District Judge or a District Judge sitting alone or by an Assize Court.

The Assize Court

An Assize Court (there are now four Assize Courts) is composed of three Judges and has jurisdiction to try all the criminal offences which are punishable by the Criminal Code or any other law and has the power to impose the maximum sentence provided by the relevant law.

The Family Courts

The Family Court (there are three Family Courts) has jurisdiction to take up petitions concerning the dissolution of marriage as well as matters which relate to parental support, maintenance, adoption and property relations between spouses provided that the parties are residing in the Republic.

The Industrial Dispute Tribunal

The Industrial Tribunal (there are now three Industrial Tribunals) has jurisdiction to entertain applications by employees for unjustified dismissal and redundancy payments. It is composed of a President (who is a judicial officer) and two lay-members representing the employers and employees.

The Rent Control Tribunal

The Rent Control Tribunal (there are now three Rent Control Tribunals) has jurisdiction to try all the disputes which arise from the application of the Rent Control Laws, which include amongst other matters, the payment of rent and recovery of possession. A Rent Control Tribunal is composed of a President (who is a judicial officer) and two lay-members representing the tenants and the landlords.

The Military Court

The Military Court has jurisdiction to try military offences under the Criminal Code and any other crimes committed by members of the armed forces. It is composed of a President (who is a judicial officer) and two assessors who are pointed by the Supreme Council of Judicature from a list of military officers.

Civil and criminal proceedings start in the District and Assize Courts respectively and move to the Supreme Court on appeal. For all administrative issues however, the Supreme Court is the only court, exercising both first instance and appellate jurisdiction. There are no special courts to decide on environmental matters. However, in cases of public environmental liability, the Law on Environmental Liability Number 189(I)/2007 has set up an environmental authority to consider administrative penalties and other measures to restore damage to protected species and habitats, water sources and soil. ‘Forum shopping’ is not normally possible. In some circumstances a party may decide whether to bring an action e.g. in the District Court or in the Industrial Disputes Court depending on the level of damages sought (higher in the District Court but much lengthier process), but normally proceedings should start in the right court and the right city. In relation to damages caused as a result of violation of the environmental law, an action can be filed in the district court where the damage was caused. A criminal case may also be filed by the Attorney General based on a specific/environmental law (e.g. protection of nature) or under the newly enacted law for crimes against the environment. There is no distinction between ordinary and extraordinary remedies before a court. Panels of three Judges decide finally on civil and criminal appeals. They may uphold, vary, set aside or order the retrial of a case as they may think fit. It is nevertheless, possible for the Attorney General to promote an extraordinary remedy such as a nolle prosequi which is an order to arrest proceedings, on grounds of public interests or to make a recommendation for clemency. The Supreme Court sitting as an Administrative Court has no competence to consider the substance. It may review the legality of the challenged act or decision, but does not extend to the merits of the case. In this respect the Supreme Court has similar powers to a Cour de Cassation. It may quash an administrative action in part of in full and remand the case to the authority issuing the decision. The authority is bound by the Court decision. Principally most environmental matters are subject to the procedure for administrative recourses. Nevertheless some environmental issues are decided under criminal or civil jurisdiction, e.g. the Law for Crimes against the environment Number 22(I)/2012 and Law on Environmental Liability, Number 189(1)/2007. In criminal procedures, everyone is entitled to report criminal acts (e.g. misuse of power by certain authorities) to the prosecutor. They can participate and bear witness at the proceedings. Remedies against court decisions are restricted to the prosecutor and the accused. In order to seek a judicial remedy the complainant must have a legitimate interest as defined in Article 146 of the Constitution. This right must be exercised within 75 days of becoming aware of the event complained of. Three new Laws recognize the right of NGOs to complain against certain administrative acts. They are the Law of EIA (Number 140(I)/2005), the Integrated Pollution Prevention and Control (IPPC) Law Number 56(I)/2003 and 15(I)/2006 and the Environmental Liability Law Number 189(I)/2007. The court in administrative proceedings can examine from its own motion matters of general interest such as time limit, executory nature of the act, competence of the organ, legitimate interest. The court cannot examine on its own motion constitutional issues and violation of fundamental rights. These constitutionality issues must be specifically pleaded.

III. Access to Information Cases

Under Article 10(I) of the Access to Environmental Information Law Number 119(I)/2004, a hierarchical appeal maybe made (e.g. letter) within 30 days to the Minister of a department which has failed to respond or responded inadequately. This does not preclude the claimant from exercising his/her rights under the Constitution (Article 146) or from applying to the Ombudsperson for a statement of opinion. Refusal of requests for information must be justified and in writing (Article 8(8) of the law), and must include information regarding the judicial review procedures provided for in Articles 10 and 11. Any person may ask for access to environmental information by written letter and without needing to show any special interest. For those seeking remedy against refusals the procedure is again straight forward. It could involve a hierarchical appeal to the Minister responsible for the department which is refusing the information. If the claimant decides to go to court it should be done within 75 days of the refusal and he/she would need to show that, viz. the procedural rules that would apply are the provisions at Article 10 of the Law. The conditions under Article 146 of the Constitution were would also need to be complied with, i.e. the claimant should show a personal and legitimate interest. The administrative file containing all the information is filed before the court and it is examined by the judge before taking the decision. The Court has the power and responsibility to regulate the production of evidence in accordance with the requirements for the due discharge of its competence under Article the Court has power to summon any person to give evidence or produce documents for the purpose of enabling the court to come to a just decision in the cases.

IV. Access to Justice in Public Participation

There are no special procedures for public participation in environmental matters, but a number of sectoral laws (e.g. zoning, IPPC, ΕΙΑ) provide for public notification, invitation of comments and public participation in an open deliberation. Unless otherwise provided in a specific law there is normally no superior administrative body to which an appeal would be made against administrative decisions. First instance administrative decisions can and are taken directly to court, although it would be usual in practice to appeal first either to the Minister responsible or to the Ombudsperson or both. If so provided in the law, administrative decisions can be subject to review by a higher authority. If the claimant exercises this right, the time within which to file recourse is suspended till the administrative process is completed. If there is no provision in the law the applicant must file its recourse directly to the court. If a hierarchical recourse is provided by the law, the applicant may choose to wait for the outcome and then file the recourse. Applying to the ombudsman will not be considered as a hierarchical recourse and the outcome of it is not subject to review by the court and the time limit will not be suspended pending the outcome of the decision of the ombudsman. The legality of the acts or omissions of any organ, authority or person exercising any executive or administrative authority is reviewed and, they are either annulled (in part or in full) or confirmed. The Supreme Court cannot go into the merits of the decision under review and resolve the matter with a decision, on the substance, of its own. The court cannot go into the scientific merits of a finding of a technical nature, it can only examine whether in adopting such finding the administration has acted in a proper manner from the point of view of constitutionality, legality and excess or abuse of powers.

Plans and other decisions defining the use of space can be reviewed in Court following an appeal from a party with a legitimate interest as per Article 146 of the Constitution, the EIA or the IPPC laws. The Court examines whether the administration has acted in a proper manner and has the power and responsibility to regulate the production of evidence in accordance with the requirements for the due discharge of its competence under Article 146, including the summoning of any person to give evidence or to produce documents for the purpose of enabling the court to come to a just decision in the case. The hearing is conducted in public. Each party submits its case in writing and may, with the leave of the Court, call witnesses or produce evidence (if necessary) in support of its case. The applicant, the respondent and the interested parties are the only ones that have a right to participate in the hearing. Courts review the procedural and the substantive legality.

There are no particular provisions in the EIA law for review of screening decisions. It is open however, to NGOs under Article 25(1)(c) to appeal with reference to Article 146 of the Constitution, if dissatisfied with the environmental permit granted by the Environment Department. There are no particular provisions in the law for judicial or other review of scoping decisions which, in any case, would form part of the process, not a final decision. As preparatory acts they cannot be challenged separately but can be reviewed as part of a final decision. EIA decisions/authorizations can be reviewed in court within the provisions of Article 146 of the Constitution and Article 25(1) of the EIA law. Participation in the public consultation phase is not a prerequisite for acquiring standing before the Courts. Standing is derived from the legitimate interest of the party. There are no special provisions for injunctive relief in EIA procedures. Although available within the standard judicial procedures, it is a remedy very rarely granted to private persons and normally only on payment of a substantial deposit into court. Procedurally the Court, may, at any time, make a provisional order for injunctive relief without judging the case on its merits, if the justice of the case so requires either on the ground of urgency or of other special circumstances, be made without notice and upon such terms as it may be deemed fit in the circumstances: Flagrant illegality and irreparable damage are necessary prerequisites to the grant of a provisional order which is to be decided independently of the merits of the main recourse.

Review of IPPC decisions is possible under with the regular procedures available to persons satisfying Article 146 of the Constitution or NGOs meeting the requirements of Article 9c (1) of the IPPC Law. Standing before the court in IPPC procedures is not dependent on participation in the public consultation phase, but is derived from the existence of a legitimate interest by the party. In other respects, revision of IPPC decisions is the same as was mentioned regarding EIA decisions.

V. Access to Justice against Acts or Omissions

Although the relevant EU directive (on Environmental Liability 2004/35/EC) has been transposed into Cyprus law (Law Number 189(I) of 2007), a general civil liability scheme does not exist so far, nor has this law been tested in court. Actions under this law could impose an ‘administrative penalty’ for ‘restoration of Nature’ of up to € 200.000 and an additional penalty up to €5000 for each day the violation continues. Actions against individuals could also be brought between individuals/legal entities under the general civil liability causes of action such as nuisance or negligence. Both damages and injunctive remedies can be sought. Claims against state bodies can be submitted directly to the Supreme Court under Article 146 of the Constitution provided bodies against which the claim is made are acting in an administrative, and not a regulatory, capacity. Claims would be for annulment of an act and damages or in the case of an omission for an order of mandamus (to perform a certain act) and damages, if suffered. If the case succeeds the party may then apply to the district court for damages. The competent authority under the Environmental Liability Law ( Number 189(I)/2007) is the Environment Department (Article 2) unless the Minister of Agriculture, Natural Resources and Environment issues an order nominating another or an additional competent authority, depending on the situation and the damage that has occurred. A request for action can be filed by any natural or legal person including an environmental NGO (Article 14(I) of the law), if likely to be affected or having a legitimate interest. However, this request cannot be made in the case of future damage. The request is submitted in writing to the Environment Department accompanied by all necessary material to substantiate the complaint. According to Article 17 of the Environmental Liability Law, a court review of the decisions taken by the competent authority would fall within the requirements of Article 146 of the Constitution. One would file recourse under Article 146 either against a failure of the competent authority to take action following a request for action, or against inadequate measures taken to restore a habitat(s) or species.

VI. Other Means of Access to Justice

Other remedies available in environmental matters are applications to either the Ombudsperson or the Environment Commissioner, though neither have executive power, so applying to either, even if they produce a favorable statement, might not always produce a remedy. The office of the Ombudsperson was established in 1992 to protect citizens’ rights when affected by public administration decisions which are contrary to the law or not in accordance with the proper exercise of administrative authority. An investigation or inspection undertaken by the Ombudsperson does not suspend any procedure or deadline applicable within the exercise of a legal action or hierarchical appeal. Any person, including non-Cypriots within the Republic, or an NGO, may apply to the Ombudsperson. However, the decision of the Ombudsperson is not binding on the administrative authorities. Quite often the decision is observed, but this is not always the case, especially when it involves recommendations to demolish an illegality or to withdraw a development license. The Commissioner of the Environment is appointed by and reports to the President. The Commissioner may submit proposals and recommendations to the relevant Ministries for the implementation of environmental policy and legislation. In specific cases of serious effects on the environment or blatant infringements, the Commissioner may initiate investigations and inspections of the alleged infringements and recommend solutions. Additionally he can provide research guidelines to the appropriate service of a Ministry and ask that a report be submitted. All citizens including NGOs, can address the Commissioner for the Environment, even though his/her recommendations are not binding on any authority. Public prosecutors acting under the office of the Attorney-General have the duty of preparing the pleadings and bringing criminal offences to court. Depending on the offence, the Factory Inspectorate of the Ministry of Labor or the Game Wardens of the Game Fund will play an active role in the prosecution. Private criminal prosecution is available under the law (not specifically for environmental offences) but not widely practiced. Complaint handling mechanisms include:

Complaints to the Ombudsperson or the Environment Commissioner

Complaints to the Minister responsible for an offending action/decision either in the mode of a formal hierarchical appeal or less formally.

Complaints to a local authority.

VII. Legal Standing

Legal Standing

Admin. Procedure

(ιεραρχική προσφυγή)

Judicial Procedure

(Διοικητική Προσφυγή)

Complaint to Ombudsman or Environment Commissioner

Individuals

Only against decision addressed to them.

Need to show a legitimate interest as stated in Article 146 of the Constitution or under sectoral laws.

Any person with an interest that has been affected whether a citizen or otherwise.

NGOs

Need to show a public interest

Need to show legal standing which will be recognized only if provided by law, viz. the EIA Law of 2005, the IPPC Law as amended by 15(I) /2006 or the Environmental Liability Law 189(I)/2007

Needs to show either a public service or a local authority mishandling, even if only loosely connected to the NGO.

Other legal entities

Local authorities directly affected or claiming a public interest for their inhabitants.

Under article 146 of the Constitution as interpreted by case law.

-------

Ad hoc groups

E.g. citizens groups. Need to show a justifiable interest.

No standing as a group, but members of the group as individuals would have standing if they satisfied the requirements of article 146 of the constitution.

Need to show either a public service or a local authority mishandling affecting them.

Foreign NGOs

No specific provision. Probably accepted if NGO demonstrates either a global interest in the subject matter or if the impacts go beyond Cyprus.

No standing, not even under the sectoral (EIA, IPPC Laws), as they refer specifically to NGOs registered under the Cypriot law.

No reason why they could not complain against a Cypriot administrative act that affected their subject of interest.

Parties must distinguish between hierarchical and administrative recourses. Hierarchical control is exercised by a supervisor or a director over his subordinates. Legislative provisions specify procedures for administrative review of executive acts by higher administrative authorities (hierarchical recourse). Such procedure however is not final or conclusive and does not bar the filing of recourse to the Supreme Court. The Court has repeatedly stated that there is no actio popularis in the Cyprus legal system. The public prosecutors working under the Attorney-General will initiate action in the case of offences against the Criminal Code and would, on receiving details from the appropriate department initiate proceedings against offenders under the Law for Crimes against the Environment Number 22(I)/2012. Furthermore, in certain circumstances the Attorney General may be allowed to appear as amicus curiae. The Ombudsperson and the Environment Commissioner do not have the power to initiate legal actions. The EIA Law (Article 25(I)) and the IPPC Law (Article 9(c)) and the Environmental Liability Law (Article 17) specifically provide for environmental NGOs the locus standi needed to satisfy the requirements of the Constitution concerning access to the judicial process against specific administrative acts.

VIII. Legal Representation

Representation by legal counsel is not compulsory. An applicant may present his/her case personally, but given that administrative law is complex and dependent on case law this is unlikely. In Cyprus lawyers can deal with any legal matter and we do not have specializations . The list of the registered practicing lawyers is placed on the Cyprus Bar Association and it is updated once a month. There are no law firms specializing in environmental matters (consequently there is no published list). A person wishing to initiate proceedings on an environmental issue would be well advised to seek a lawyer with experience in Constitutional/Administrative law since the proceedings will most likely be conducted on the basis of Article 146 of the Constitution. Given that Cyprus is a small place, information travels by recommendation. There are no NGOs giving public consultation on environmental matters.

IX. Evidence

Environmental issues are considered within the general rules that apply to recourses against Government Departments, so the replies below refer to evidence in all administrative recourses made to the Supreme Court. In the Supreme Court the case is conducted on the basis of written submissions and the administrative department against which the recourse is must provide for examination of the Court the full file(s) relating to the case. The file(s) provide the main evidence. Furthermore under Rule 11 of the Supreme Court Rules, 1962, the Court has power to summon any person to give evidence or produce documents for the purpose of enabling the court to come to a just decision in the case. According to the Supreme Court Rules of 1962, Article 18, the civil procedure rules are applicable in administrative proceedings, but whenever it deems necessary for the proper fulfillment of its mission under the Constitution, the Supreme Court will not hesitate to relax or even depart from such law and rules of evidence. The applicant has to prove his/her case but there is no weight of evidence as in civil or criminal cases. The parties can produce new evidence by leave of the Court and the court may of its own accord ask for further evidence by way of personal appearance or production of documents. The usual process in the Supreme Court is through the submission of written presentations. So an expert report, if required, would normally be attached. Expert opinion is not binding on judges.

X. Injunctive Relief

There is no automatic suspensive effect of an appeal, nor is it possible to simply seek an injunction. An injunction would be part of recourse against the validity of the decision or action. An application for the suspension of the decision may be filed, where the applicant claims irreparable damages and flagrant illegality. In civil cases an interim order may be sought. If the decision is not suspended it will be executed. Unless provided in sectoral laws, there is no general provision for granting injunctions in environmental matters. The normal judicial procedure would need to be followed and satisfied. Requests coming from individuals or groups are very rarely granted and only with considerable financial undertakings as to cross-damages. Such conditions apply so that injunctions are more easily granted to a government department seeking to prevent an illegal act (e.g. to stop an individual from demolishing a building under preservation order). There is an appeal against a decision to refuse an injunction which is made to the Supreme Court either under its civil jurisdiction or in its revisional jurisdiction.

XI. Costs

The main cost in any judicial action would be lawyers’ fees. Additionally stamps would be affixed to the action filed (court fees). In civil cases the court fees depend on the amount of damages claimed. In recourses the average lawyer´s fees granted by the court are € 1400 for first instance cases and the stamp amounts to 100 euros. For revisional appeals the cost for stamps amount to approximately € 120, whereas in civil appeals the stamp depends on the amount claimed. Expert fees for a report could be anything from € 500 upwards depending on the report to be prepared, plus a fee for the number of days spent by the expert in Court. As cases often get postponed, the expert may charge for several days when he has been called to the Court and the case is then adjourned. There is no standard fee for each day in Court. If there is no agreement between the lawyer and the client then the minimum fees apply. The minimum lawyer’s fee according to the scales will be € 1700 for recourse to the Supreme Court sitting as a first instance court, and over € 2200 for an appeal. Most lawyers charge above the minimum fee. Not all costs are recoverable. The main cost is the very high cross-damages undertaking which will be set by the Court and has to be deposited with the Court in the form of cash or bank guarantee. The loser pays principle is prevalent, although the Court has the discretion not to allow all costs or to order each party to bear its own costs, but this will not be known in advance.

XII. Financial Assistance Mechanisms

There is no provision for special treatment in environmental cases. In any case the Courts cannot provide exemptions from procedural costs, duties, filing fees, taxation of costs, etc. in environmental matters. Legal Aid is available in criminal cases for defendants of limited means and is especially made available to asylum seekers and aliens threatened with offences deportation. There is no practice of providing aid to voluntary organizations. There is no practice of pro bono legal assistance. There are no legal clinics dealing either with environmental or other matter. There are no public interest environmental law organizations or lawyers.

XIII. Timeliness

Under Article 29 of the Cyprus Constitution any person addressing a public authority should get a response within 30 days. The response however, often is simply an acknowledgement informing the claimant that further time will be necessary in order to reply fully. In theory a claimant could go to Court, but this would hardly ever be done in practice unless the delay or non-reply had serious financial consequences. Parties initiating an action against any administrative matter under Article 146 of the Constitution (not necessarily an environmental matter), must do so within 75 days of the date when the claimant became aware of the decision, act or omission being complained of. If the law provides that the decision or act must be published in the official gazette the 75 days time limit starts from the publication. No time limits are set for the Court to adjudicate on environmental or other cases. An environmental court case would be treated as any other and the duration is on average 16 months for a first instance liaising. An appeal would last much longer most often several years. According to the Practice Direction of 1986 judgments in District Courts must be delivered within six months of hearing final arguments. There does not appear to be a deadline for the Supreme Court. In practice all types of procedure take a very long time except in rent tribunals and in family courts concerning the interests of minors. If a judgment in the lower courts is not delivered within nine months, explanations will need to be given. There have been instances of recourse to the European Court of Human Rights against the Cyprus Republic because of court delays, and it was found such delays are in themselves a denial of justice.

XIV. Other Issues

Environmental decisions can be challenged under the EIA Law (Number 140(I)/2005), the IPPC Law (Number 56(I)/2003 and Number 15(I)/2006), and the Environmental Liability Law (Number 189(I)/2007) and then only at the end of the process when the decision is published. The public would know about access to justice in environmental matters only from newspaper reports. Alternative Dispute Resolution is available in Cyprus, but normally in civil or family law cases.

XV. Being a Foreigner

XVI.Transboundary Cases

For projects with transboundary impacts, Cyprus has ratified the ESPOO convention on Environmental Impact Assessment in a Transboundary Context and implements the related provisions of the convention regarding environmental justice issues.

Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Latvia

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

According to the Constitution of Latvia (Satversme), the state protects the right of everyone to live in a benevolent environment by providing information about environmental conditions and by promoting the preservation and improvement of the environment. The constitutional right includes:

1) the procedural aspect: a right of the public to access environmental information, to participate in decision-making in environmental matters;

2) the substantial aspect: a right of public to request that the public authorities or private persons terminate such acts or omissions which negatively affect the quality of the environment, cause damage or threat of damage to human health or life, or other legal interests.

The constitutional provisions can be applied directly both in administrative procedures and at the court. Citizens can invoke the provisions at any stage in administrative or judicial procedures.

International law, including the Aarhus Convention, can also be applied directly by administrative bodies and by the court. If a conflict between a legal norm of international law and a norm of Latvian law of the same legal force is determined, the legal norm of international law shall be applied.

II. Judiciary

There is a three level court system in Latvia.

The first level consists of 34 district (city) courts for civil and criminal cases and one administrative district court, consisting of 5 courthouses in different cities and covering entire territory of Latvia, for administrative cases.

The second level consists of 5 regional courts for civil and criminal cases and one regional administrative court for administrative cases. The regional courts are courts of appeal for civil, criminal and administrative cases that have already been heard in district courts. The regional courts have jurisdiction as first-instance courts in certain categories of cases listed in procedural law.

The Supreme Court is the third level court. It is made up of:

1) the Chamber of Civil Cases and the Chamber of Criminal Cases, functioning as the court of appeal for civil and criminal cases which have been adjudicated by regional courts as courts of first instance;

2) the Senate, divided in three departments and functioning as the cassation instance for all civil, criminal and administrative cases.

As a general rule, civil, criminal and administrative cases may be reviewed in all three court instances. However, only two court instances are allowed for certain categories of civil and administrative cases. Those exceptions are set out in Civil Procedure Law for small civil claims, as well as in several special laws determining administrative procedure, for example, concerning citizens’ information requests or public procurement. There are several types of issues dealt in only one instance (for example, cases of asylum seekers).

Under Latvian law, procedures concerning administrative offences (violations) exist. If a person commits a petty offence listed in the Administrative Offences Code, the penalty is imposed by an administrative body. Penalties imposed by administrative bodies can be appealed to the district (city) courts – i.e., common courts for civil and criminal cases. Cases adjudicated by judges of the district (city) courts can be appealed to regional courts. The judgments of regional courts are final and cannot be appealed.

Cases are adjudicated by professional judges, which are independent and subject only to law. The adjudicating of cases is open to the public with exceptions only in interests of the protection of private life or other significant values protected by law. If the court, in accordance with the law, conducts the written proceedings, court decisions are open to the public.

The language of the courts is Latvian. Participants lacking fluency in the official language can participate in proceedings with the aid of an interpreter. The court provides an interpreter on the occasions prescribed by the procedural law.

There are no specialized courts in Latvia.

Cases concerning the compliance of laws with the Constitution or compliance of other normative acts with the norms of higher legal rank are reviewed by the Constitutional court. The constitutional petition is allowed, i.e., the citizens can lodge a petition if they consider that a normative act infringes their fundamental rights protected by the Constitution. The constitutional petition is allowed only after the ordinary remedies (administrative institutions, courts of general jurisdiction) are exhausted.

There is no specialized court or quasi-court dealing with environmental matters.

If a person considers that an administrative decision or action, as well as omission, violates the law protecting environment and nature, or can create threats of damage or damage to environment, he/she can apply to the administrative court. Since environmental issues on most occasions are settled by administrative decisions (building permits, water use permits, pollution permits etc.), those disputes are mostly reviewed by the administrative court. The exercising of the rights to apply to court may not cause, in itself, any unfavourable consequences, including those falling under the private law, to the applicant.

In civil procedure, a citizen can seek damages caused by any person, if this person has infringed, among others, regulations concerning environmental issues and thus caused damage to the claimant. Public authorities, acting on behalf of the State, can claim damage caused to environment.

Citizens possessing information about criminal offences possibly causing damage to environment should inform any official or institution who is authorised to perform criminal proceedings (the police, the prosecutor’s office).

Forum shopping is not allowed in administrative courts. There is a possibility to choose the court in civil cases: generally, an action should be brought in a court in accordance with the place of residence of the defendant (for natural persons) or the legal address of the defendant (for legal persons); however, Civil Procedure Law in specific cases provides alternative jurisdiction in accordance with the choice of the plaintiff or in accordance with the contractual provisions, if such exist (see Link opens in new windowTerritorial jurisdiction).

When appealing administrative decisions to the administrative court, the person can claim:

1) to annul or declare invalid (completely or in part), or to declare unlawful the disputed decision; if the appeal is successful, the court may also, where necessary, obligate the administrative institution to rectify the consequences of the administrative decision;

2) to declare real actions already done, or planned in future, to be unlawful and to rectify their consequences;

3) to obligate the administrative institution to issue a favourable decision;

4) to state as existing or non-existing certain disputable legal relations;

5) to obligate to enter into public contract, to terminate such contract, to fulfil obligations arising from such contract, or to declare obligations thereof fulfilled.

It is possible to appeal against the violation of procedural rules, even when the applicant is satisfied with the final decision, but, in this specific case, person must prove a substantial infringement of his/her rights to have standing in the court.

If a person considers that the administrative decision, action or omission has caused financial loss or personal harm (including moral harm), he/she can claim due compensation in administrative court. The claim can be included in the written appeal against the administrative decision, or, if compensation has not been claimed concurrently with the appeal of the administrative decision, a separate claim for compensation can be submitted after the final judgment on the unlawfulness of the decision (action) has been delivered.

Administrative court can annul the appealed decision (completely or in part), but it has no competence to amend content of the decision on court’s own account, for example, to change the conditions of the building permit. In specific cases the law may authorize the court to amend the appealed decision, but there are no such provisions in environmental regulations.

Environmental cases are examined according to the same procedural rules as other administrative cases. However, some normative acts concerning environment issues prescribe specific rules for appealing particular environmental decisions. For example, citizens can appeal the conditions of the permit for polluting activities during all the period of its validity, which significantly differs from the general rule to appeal any decision within one month from the day of its coming into effect.

The administrative court examines the case strictly within the boundaries set by the applicant. The court may not alter the claim or examine decisions not appealed in written form by the applicant on its own motion. However, within those formal limits, the court is free to examine the decision in full: verifying a factual basis for the issuance of a particular decision and applying the law correctly is, according to the principle of objective investigation, within the competence of the court. Also, the court may, on its own motion, submit an application to the Constitutional court or request the Court of Justice of the European Union to give a preliminary ruling.

A court may take the so-called ancillary decision, if during the adjudicating of the case it finds out facts about a possible violation of the law, which was not directly examined in the given case. Such a decision is then addressed to the responsible institution, or the prosecutor’s office. Occasionally, courts use the ancillary decisions to inform the Parliament or executive branch (ministries, the Cabinet) about the lack of legal regulation or other issues to be resolved by legislation.

III. Access to Information Cases

Every person who has requested environmental information from a state authority and considers the request for information has been ignored or rejected (partially or completely), or an appropriate answer has not been received, or rights to environmental information have been otherwise violated, is entitled to appeal such omission to the administrative court.

If the authority rejects to disclose the requested information, it should give written reasons for this decision and includes the information on the remedies in the given situation, i.e., to which institution and within what time limits the person can submit an appeal.

According to Freedom of Information Law, the answer of the institution or the failure to give any answer may be appealed to a superior administrative institution and, subsequently, to the Administrative district court.

An appeal should be submitted within one month from the issue of the answer, or within one year in cases when the answer has not been given at all or when the procedure of submitting an appeal has not been clarified in the written answer. If there is a superior administrative institution, it is mandatory to appeal to that institution. The appeal should be submitted in writing or orally to the institution that has issued (or had an obligation to issue) the answer. If the application is submitted orally, the institution shall immediately draw it up in writing and the applicant shall sign it. Such application will be forwarded for examination to a superior institution. If there is not such an institution or it is the Cabinet, the answer (or failure to give any answer) may be immediately appealed to the Administrative district court.

The appeal may also be submitted electronically by e-mail, but then it must be signed with electronic signature.

The state fee of 20 LVL (app. 29 EUR) must be paid before submitting an appeal to the Administrative district court. This can be done at a bank. The court, taking into account the financial situation of a natural person, may decrease the amount of the fee or exempt the person from the obligation to pay the fee.

Every person has the right to participate in the proceedings with the assistance of representative or through representative. There are no rules on mandatory counsel for judicial proceedings (including cassation).

In the course of the examination of the case, the court, if necessary, has access to the information the accessibility of which is disputed.

The court will oblige the institution to disclose the requested information to the applicant if it would not find the institution’s reasons for refusal well grounded. If there is a reason to restrict the access to certain part of the requested information, still, the institution will be obligated to disclose those parts of information which can be disclosed.

IV. Access to Justice in Public Participation

The examination of environmental matters in administrative institutions is conducted following the same procedural rules as in other administrative cases. The Administrative Procedure Law regulates the procedure, taking into account exceptions and different rules contained in Environmental Protection Law or special normative acts concerning environmental matters, for example, the Law on Environmental Impact Assessment.

The proceedings in administrative institutions are conducted in Latvian, with possible exceptions for submitting an application in foreign language in emergency situations only.

Administrative procedures are free of charge, with exceptions prescribed by law. If the institution (or the court consequently) finds that the person (addressee of the decision, natural person only) is in a difficult financial situation and that the particular administrative matter is complicated, it may take a decision that remuneration to a representative of this person, within regulated frameworks, shall be paid from the State budget.

The right to take part in administrative procedures is recognized to natural and legal persons (including non-governmental organizations), as well as associations of such persons. A person has the right to participate in the proceedings personally or with the assistance of representative or through representative.

It is an obligation of the competent administrative institution to gather all information relevant to the case. However, a person is required to supply information and evidence which is in his/her possession.

Participants to the administrative procedure have a right to get acquainted with the documents of the file and a right to be properly heard by the decision maker. In environmental matters, these procedural rights are regulated by detailed procedural rules in Environmental Protection Law (for environmental matters in general) and in other normative acts concerning specific environmental law issues, for example, environmental impact assessment procedure.

Generally, administrative institutions must decide cases within a month from the receiving of an application from a person. But it must be noted that several normative acts concerning the environment may set different deadlines. The institution is allowed to extend the deadline if it is necessary for making a correct final decision. In urgent cases, the person may request the institution to issue the decision immediately.

If the person considers the decision of the administrative institution unlawful or otherwise unsatisfactory, the decision may be appealed to a superior administrative institution within one month from the coming into effect of the decision, or within one year from the coming into effect of the decision if an information on the procedures applied to appeals has not been included in the written decision. The appeal should be submitted in writing or orally to the institution that has issued the decision, and it will be forwarded for examination to a superior institution.

An appeal to a superior administrative institution is mandatory, except in cases where there is no superior institution or it is the Cabinet. The court will refuse to accept direct appeals if the person did not prove that he/she has tried to submit an appeal to a superior institution.

In the course of examining the case, the court will review both procedural and substantive legality of the decision.

Under the procedural legality, the court can annul the decision when it comes to the conclusion that the administrative institution has made serious procedural mistakes. Particular attention usually is paid to following issues:

1) whether persons directly affected by the decision as well as persons demonstrating an interest in environmental matters were afforded with opportunity to participate in the decision-making (i.e., whether there was timely information available about the initiating of the decision-making, whether citizens had a possibility to get acquainted with the file, whether citizens had a possibility to be heard by the institution, which also includes a right to provide information to the institution and to express one’s opinion and proposals);

2) whether the institution has acquired all necessary information (whether the institution has established all facts relevant to the case, whether it has considered and balanced interests of different persons and groups);

3) whether the institution has provided sufficient and clear reasons and legal grounds (with a reference to legal norms) for the decision.

Under substantive legality, the court will examine whether, taking into account the facts established, it was lawful to issue the disputed decision. For example, whether in particular circumstances it is allowed to issue a permit to operate a polluting installation characterized by a certain amount of certain emissions.

If the applicants have reasonable doubt about the material and technical findings, the court can verify those facts. Mostly, those issues are assigned to independent experts; expenses thereof are covered by the State budget. The participants to the procedure are, also, allowed to present their own expert opinions.

The court is limited in its review only in two occasions: when the institution has had the so called discretionary power (a power to choose which of more than one legally sound solutions would be the best), or, when the institution has given an evaluation that, by its nature, lies within its own competence and is not possible to be contested in the court.

The administrative court will not review appeals on normative acts, for example, zoning plans and land use plans of local governments. They may be contested in the Constitutional court (see Chapter II).

As of 2012, the administrative court is competent to review detailed plans which, if necessary, detail content of local government’s zoning plans and land use plans (spatial plans and local plans) to the level of particular plots of land, since they are considered to be administrative decisions with a general nature. The detailed plans may be appealed within one month from the official publication on their approval. The detailed plans can be appealed by persons affected by the plan or by persons denied participation in the decision-making guaranteed by the rights of society, as well as persons who believe that the plan does not comply with the requirements of the law regarding the environment, creates environmental damage or threats of environmental damage. A written appeal stating the objections should be submitted to the Administrative district court, with all available evidence attached. The court can also, on its own motion, gather evidence necessary for the deciding of the case, including expert opinions. The cases are adjudicated in written proceeding. But the court will hold oral hearings, when the court decides so or the applicant, the third person involved in process or legal entities having the right to defend the rights and legal interests of private persons has requested oral proceeding. The administrative institution (the defendant) does not have a right to object to written proceeding.

In the environmental impact assessment (EIA) procedure, the administrative court can review EIA screening decisions. A decision declaring EIA necessary can be appealed by the person planning to perform the intended activity. A decision declaring EIA unnecessary cannot be appealed immediately to court, but may be examined during the reviewing of the act authorizing the intended project (for example, the building permit).

EIA scoping decisions and opinions of the competent authority regarding EIA statement (final EIA decision) cannot be reviewed by the court separately. But, the court can review the final authorization of the intended activity, and within this framework, the court is free to examine objections against the EIA procedure and final EIA decision.

The court will revise both procedural and substantive legality of EIA decisions:

1) whether the essential procedural rules are followed in relation to persons affected and persons having an interest in environmental issues, with special emphasis on the access to the environmental information and rights to participate in the decision-making, including the possibility to submit information, to express views and proposals, and sufficiently serious attitude of the institution towards those views and proposals;

2) whether EIA has been conducted in a way which provides a sufficient possibility to gather all the relevant information on the possible impact of the intended activity to the environment,

3) whether the final EIA decision is based on correct findings and whether it lays down sufficient and clear written reasons.

The court cannot decide and declare its own statements about the impact of the intended activity instead of the administrative institution. However, the court can find factual errors and consideration errors which have led, or may have led, to an erroneous final decision.

In order to have standing before the administrative court in final authorization matters, a person should point to the infringement of his/her own rights (for example, allegedly infringed property rights), or to environmental interest. A person submitting an appeal in the interests of environmental protection should explain the reasons why he/she believes that an authorization of the intended activity, possibly because of incorrect EIA procedure, does not comply with environmental law or can create threats of damage or environmental damage.

As a general rule, when an appeal is submitted to a superior administrative institution or to the administrative court, it has a suspensive effect to the appealed decision. I.e., it is forbidden to begin an operation of the intended activity, to begin construction works, or to issue new decisions based on the contested one. The law On Environmental Impact Assessment does not provide any exceptions thereof. A person who wants to begin the intended (now suspended) activity has a right to ask for resuming of the operational force of the decision. The court will decide the provisional protection, considering both the lawfulness of the decision (in a rapid manner, without any prejudice to the final judgment) and possible damage to the interests involved, including environmental.

The administrative courts can review permits for industrial and agricultural activities with a high pollution (IPPC decisions). Any person (natural, legal, non-governmental organization) can appeal such decisions to the court. Inter alia, an appeal can be submitted if a person considers his right to environmental information or his right to participate in a decision-making violated.

The appeal should be submitted to a superior authority (Environment State Bureau). Subsequently, a written appeal stating the objections may be submitted to the Administrative district court, with all available evidence attached. The court can also, on its own motion, gather evidence necessary for the deciding of the case, including expert opinions. The court will adjudicate the case in a written procedure, with the exception of cases where participants to the proceedings (apart from the administrative institution, the defendant) have requested oral procedure.

The court will examine whether the permit has been issued according to the mandatory procedural rules, which includes access for persons having an interest to all relevant and clearly explained information, as well as the possibility of persons having an interest to lodge objections, proposals, as well as a proof that the institution has considered objections and proposals thereof.

The court is free to verify the facts justifying the issuance of the permit, for example, the court may verify data on the planned industrial activity, characteristics of the facilities, and data on existing environmental conditions.

In order to submit the appeal to the administrative court, it is not necessary for an applicant to participate in the public consultation phase of the IPPC procedure or to make comments during the public consultation.

As a general rule, the appeal to a superior administrative institution or to the administrative court has a suspensive effect to the IPPC permit, i.e., it is not allowed to start the operation of the polluting facility, unless the court resumes the operational force of the permit. Such rules apply when the applicant has submitted the appeal within one month of the day the decision comes into effect.

However, there is an exception regarding polluting activities requiring a category A or a category B permit. According to the Law on Pollution, any person can submit an appeal regarding the conditions of the permit at any time while the relevant permit is in effect. This kind of appeal is allowed when polluting activity may substantially negatively affect human health or the environment, or the environmental quality objectives specified in environmental law, or other requirements of normative acts. In this case, the appeal of the decision will not suspend the operation of the permit.

V. Access to Justice against Acts or Omissions

If a person considers that any other private individual or legal person causes threat of damage or damage to environment, she/he is not allowed to bring an action in the civil court or to lodge an appeal on its actions to the administrative court. The person can seek damages for injury caused to herself/himself, but is not allowed to seek damages for injury to the environment as such. Thus, if the person considers that any other person, with his planned or undertaken action, causes threat of damage or damage to environment, she/he can act in the following ways:

1) if the allegedly hazardous activity is carried out in accordance with the decision of an administrative institution, the person can appeal the decision to a superior administrative institution and, consequently, to the administrative court, or,

2) submit an application to the administrative institution competent to protect environment and to enforce appropriate actions to interrupt damage to the environment. If the competent administrative institution refuses to act, its decisions or omissions can be appealed to a superior administrative institution and, consequently, to the administrative court. In this case, the person may require the court to oblige the competent institution to take a decision aimed at the protection of environment. For example, if an individual has unlawfully, without a prior permit, built a road in the protected natural area, the person may require the competent administrative institution to oblige the person responsible to tear down the construction, to restore the previous situation and to compensate material damage caused to environment.

The State Environmental Service is the competent institution carrying out the state control of the environment protection and natural resources use. It realizes its duties through 8 territorially situated regional environmental boards, as well as Marine and Inland Waters Administration, and Radiation Safety Centre.

Generally, the decisions of regional environmental boards can be appealed to a superior administrative institution, which in most cases is Environment State Bureau.

A person can submit his/her complaint to the administrative institution both in written and in oral form. Oral complaints will be immediately written down by the civil servant of the institution. Written complaints and appeals, signed electronically, can be sent also by e-mail.

If the person is not satisfied with the decision or omission of the competent institution, he/she can appeal it to a superior administrative institution. The appeal should be submitted to the institution that has issued (or had an obligation to issue) the decision concerning the original complaint. The appeal will be forwarded for an examination to a superior institution. An appeal to a superior administrative institution is mandatory before going to the administrative court.

If the appeal to the administrative court is justified with environmental interest, it is sufficient to have standing in the court. The written appeal stating the objections should be submitted to the Administrative district court, with all available evidence attached.

VI. Other Means of Access to Justice

Apart from the administrative and judicial review of decisions or omissions of administrative institutions, there are other means of remedies available in environmental matters.

The protection of human rights, including right to live in a benevolent environment, falls under the competence of the Ombudsman (Tiesībsargs). The Ombudsman may:

1) examine complaints and proposals of private individuals, investigate the circumstances;

2) request that institutions clarify the necessary circumstances of the matter and inform the Ombudsman thereof;

3) upon or after the examination, provide the institution with recommendations and opinions regarding the lawfulness and effectiveness of their activities, as well as the compliance with the principle of good administration;

4) within the framework of law, resolve disputes between private individuals and institutions, as well as disputes in respect of human rights between private individuals;

5) facilitate conciliation between the parties to the dispute;

6) in resolving disputes, provide opinions and recommendations to private individuals regarding the prevention of human rights violations;

7) provide the Parliament, the Cabinet, local governments or other institutions with recommendations on the issuance of or amendments to the legislation;

8) provide persons with consultations regarding human rights issues;

9) conduct research and analyse the situation in the field of human rights, as well as provide opinions regarding the topical human rights issues.

The prosecutor’s office is vested with a supervisory power, i.e., a prosecutor has a duty to take measures required for the protection of rights and lawful interests of persons and the State. This may include environmental protection interests, too. The measures taken by the prosecutor may be the initiating criminal investigation, but as well other means of action. The prosecutor may:

1) issue a warning to the persons if their actions show the possibility of a violation of law;

2) issue a protest to the Cabinet, ministries and other administrative institutions, local government institutions, inspections and state services, undertakings, institutions, organisations and officials, if their decisions do not comply with law; the particular institution or official must inform the prosecutor of the result of the protest within a 10-day period. The prosecutor may apply to the court if his protest is denied without basis or no reply to it is provided;

3) to submit a written submission to the relevant undertaking, authority, organisation, official, or person, if it is necessary to discontinue an illegal activity, rectify the consequences of such activity or to prevent a violation; if the requirements expressed in a submission are not complied with or no reply to it is provided, the prosecutor is entitled to submit to a court or any other competent institution an application requiring for respective liability measures.

In Latvia, there is no private criminal prosecution available. A person must submit his/her concerns on a possible criminal offence to the police or the prosecutor’s office.

VII. Legal Standing

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Everyone has a right to lodge a complaint to the responsible administrative institution or an appeal to the administrative court in environmental matters without any other specific conditions, i.e., a complaint may be lodged if a person considers that an administrative decision or a real action, as well as an omission, violates the law protecting environment and nature, or can create threats of damage or damage to environment.

The right to take part in administrative procedures or court procedures is recognized similarly to all persons: to natural and legal persons (including non-governmental organizations, national or foreign, of different kind; political parties, commercial organizations), as well as associations of persons, if such associations demonstrate sufficient organizational unity for achieving certain objectives. Generally, state and municipal institutions are not allowed to lodge appeals against each other to the administrative court. It is allowed only in exceptional circumstances when decisions or omissions of the administrative institution affect the state or municipality like any other (private) person.

This wide approach to the right to lodge complaints and to appeal is recognized similarly to all kind of environmental issues, including environmental impact assessment matters or IPPC permit procedures.

The right to lodge complaints and appeals purely in environmental interests is the only exception where the so-called actio popularis (right to defend common interests) is allowed in administrative institutions or at the court. In any other kind of legal disputes the person must prove the infringement of his/her own subjective rights in order to have a right to lodge a complaint or to appeal to the court.

According to Art.29 of Administrative Procedure Law, in cases provided for by law, public authorities have the right to submit a complaint to an administrative institution or an appeal to a court in order to defend the rights and legal interests of private persons. This may include also right of private person to live in a benevolent environment.

According to Ombudsman Law, the Ombudsman has the right, upon establishment of a violation, to defend the rights and interests of a private individual at the court, if it is necessary in the public interest.

Also, according the Office of the Prosecutor Law, the prosecutors have the right to lodge an appeal to the court if other measures, i.e., the warning or the protest, or the submission (see Chapter VI), has not been successful.

VIII. Legal Representation

As a rule, any person can go to the administrative institution or to the court personally, without a mandatory legal counsel. Taking into account that the administrative court is bound to the principle of objective investigation, the court may also on its own motion clarify any possible ambiguities in the written appeal, or to ask participants and other persons to submit the necessary evidence. This is a great advance for persons defending their rights or environmental interests in the administrative court. Nevertheless, a person may involve other person, lawyer or any other person, as his/her representative and/or legal counsel at the administrative or judicial procedures. There are no rules on mandatory legal counsel for judicial proceedings at the administrative court, not even at the Supreme Court.

The person in need of legal counsel may contact members of the Advocacy (sworn advocates) as well as other lawyers. They can provide legal consultations, prepare legal documents and perform other legal activities.

Link opens in new windowThe list of sworn advocates

Link opens in new windowLatvian branch of the Transparency International Delna provides legal aid for citizens in building and land use matters. Delna will be ready to handle the case in situations when the case is of public importance, i.e., when a substantial damage is caused or may be caused to environment, or when the case can serve as a precedent and contribute to the improvement of law or legal practice.

IX. Evidence

When a person submits his/her appeal on a particular administrative decision to the court, all the evidence available to the applicants and justifying the applicant’s objections should be attached to the written appeal. The administrative institution (the defendant) will, on its turn, attach to its explanations all the evidences necessary for justifying the institution’s decision. Participants to the procedure may ask the court to gather other evidence, including oral testimonies and expert opinions. The court is free to request evidence on its own motion, since the court is bound by the principle of objective investigation and it is a duty of the court to evaluate the legality of the contested administrative decision. Participants to the procedure may also introduce new evidence during the court proceedings at the first instance court or even at the appellate court. The cassation instance court (the Supreme Court) does not accept new evidence since its task is to examine points of law only.

The administrative court may accept and evaluate all kind of evidence:

1) testimonies of witnesses,

2) documentary evidence (including written documents, audio, video and digital material),

3) material evidence,

4) expert opinions (usually produced during the court proceedings by experts selected by the court).

As a specific mean of acquiring information, the court may listen to the opinion of amicus curiae (“the friend of the court”): any association considered as representing the interests in a particular field and able to provide a competent opinion, may ask the court to allow expressing its view on the factual or legal circumstances.

The court may refuse to accept evidence not relevant to the case. Assessing the accepted and lawful evidence, the court will make its conclusions in accordance with its own convictions which shall be based on comprehensively, completely and objectively verified evidence, and in accordance with judicial consciousness based on laws of logic, findings of science and principles of justice.

If the participants to the court procedure have reasonable doubts about the facts on which the disputed administrative decision is based, they may ask the court to order an expert-examination. If the court will be convinced of the necessity of the expert-examination, it will select one or more experts, taking into account the views of the participants to the procedure. The participants have a right to propose questions which, in their opinion, require the opinion of an expert, but questions will be finally determined by the court.

The court will evaluate expert opinions in the same way as other evidence: the court is not bound by the opinion of the expert, but will make its own final conclusions after the evaluating the credibility of the opinion. In the judgment, the court is obliged to set out reasons why preference has been given to certain evidence in comparison with other, and why certain facts have been recognised as proven while other facts as not proven.

X. Injunctive Relief

When an administrative decision is appealed to the administrative court, the action submitted to the court generally has a suspensive effect, i.e., the operation of the administrative act is suspended from the day the application is submitted. For example, if a person submits an action against a building permit, the construction of the disputed building is not allowed.

However, Administrative Procedure Law sets out several exemptions when the contested administrative decision may be executed notwithstanding the appeal to the court. The main exemptions are as follows:

1) the administrative act imposes a duty to pay tax, duties or another payment into the State or a local government budget, except penalties;

2) it is provided for by other laws, for example, if a person has submitted an appeal against the conditions of the permit for polluting activities after the general one month deadline for appealing administrative decisions, the appeal will not suspend the operation of the permit;

3) the institution, setting out grounds for urgency of execution in respect of the specific matter, has specifically provided in the administrative act that it shall be executed without delay; or

4) an administrative act of the police, border guard, national guard, fire-fighting service and other officials authorised by law is issued with the aim of immediate prevention of direct danger to State security, public order, or the life, health or property of persons;

5) the contested administrative act establishes, amends or terminates institution’s legal relations with a civil servant;

6) the contested decision is of general nature, for example, restricts the use of a municipal road;

7) the contested administrative act annuls or suspends licence or other special permit.

The participants to the procedure may ask the court for the provisional protection:

1) if the appeal has had a suspensive effect, the addressee of the contested decision may ask the court to resume the operational effect (the execution) of the decision, for example, to allow to begin the construction works or the operation of the power plant;

2) if the appeal has not had a suspensive effect, the person submitting an action against the decision may ask the court to suspend the operation of the contested decision.

In either of the above-mentioned cases, the court will decide the provisional protection, considering both the lawfulness of the decision (in a rapid manner, without any prejudice to the final judgment) and possible damage to the interests involved.

If there is a reason to believe that the contested administrative act or consequences of the non-issue of an administrative act might cause significant harm or damages, the prevention or compensation of which would be considerably encumbered or would require incommensurate resources, and if examination of information at disposal of the court reveals that the contested act is prima facie illegal, the court may, pursuant to the reasoned request of an applicant, take a decision on injunctive relief. As a means of injunctive relief, the court may issue:

1) a court decision which, pending judgment of the court, substitutes for the requested administrative act or real action of the institution;

2) a court decision which imposes a duty on the relevant institution to carry out a specific action within a specified time period or prohibits a specific action;

3) a court decision which assigns the Land Register to register restrictions on the owner’s right of disposal with real property.

All of the above-mentioned rules are also applied in environmental cases.

The participants to the procedure may request the injunctive relief at any stage of the procedure, also in the appellate court instance and cassation court instance, when they consider the provisional protection urgently needed. No formal deadlines are applied. The exercising of the rights to request a provisional protection may not cause, in itself, any unfavourable consequences, including those falling under the private law. This means that the person will not be liable for financial loss caused to another person by the court’s decision.

The court’s decision regarding injunctive relief can be appealed. Also, the participant to the procedure may request to replace or to revoke the imposed means of injunctive relief.

XI. Costs

Administrative procedures in administrative institutions are free of charge.

If the person submits an appeal to the administrative court, he/she should take account of state fees.

Both in administrative and court procedures the person has to cover his/her own expenses:

1) remuneration to a representative or legal advisor (has the person involved any); if the administrative institution (or the court consequently) finds that the person (addressee of the decision, natural person only) is in a difficult financial situation and that the particular administrative matter is complicated, it may decide that remuneration to a representative of this person, within regulated frameworks, shall be paid from the State budget.

2) payment to experts (has the person involved any on his/her own motion); the State budget will cover the remuneration paid only to experts assigned by the court’s decision.

State fees. When submitting an appeal to the first instance administrative court, the applicant should pay a state fee in the amount of 20 LVL (app. 29 EUR). The state fee for the appeal of the first court instance’s judgement is 40 LVL (app. 57 EUR). A deposit payment for submitting a cassation complaint to the Supreme Court is 50 LVL (71 EUR) (starting from March 1, 2013). The deposit payment for requesting injunctive relief or to ancillary complaints on procedural decisions is 10 LVL (app. 14 EUR). The deposit payment for matters de novo in connection with newly-discovered facts is 10 LVL (app. 14 EUR).

The amount of the state fee is the same for all categories of administrative cases. The exception exists for the asylum seeker cases which are free of charge. The court, taking into account the financial situation of a natural person, may decrease the amount of the fee or exempt the person from the obligation to pay the fee.

Administrative Procedure Law does not prescribe any other fees or deposit payments.

Expenses related to the legal aid or expert-examinations are not regulated and will be dependent mainly on the market situation, the complexity of the case or the factual circumstances examined by experts.

In the judgment, the court will order a reimbursement of the state fee: if the appeal against the administrative decision or omission has been successful fully or in part, the court will order the defendant (the State or municipality thereof) to reimburse the state fee to the claimant; if the appeal has not been successful, the claimant will not recover the state fee paid. The same principle applies to deposit payments: the claimant will get back the deposit payment in case his/her cassation complaint (or request for injunctive relief, ancillary complaint or de novo review) has been successful.

The court’s decision on the reimbursement of expenses does not cover other kinds of expenses. Thus any other expenses, except state fees and deposit payments, incurred to the participants, are not recovered. But, if the appeal against the administrative decision has been successful, the claimant consequently may claim the defendant to recover all damages caused by the unlawful decision, and this may include previous payments to legal advisor or experts.

XII. Financial Assistance Mechanisms

A natural person appealing an administrative decision to the administrative court may ask:

1) for the decrease of the amount of the state fee or exemption from the obligation to pay the fee. The court will take into account this person’s financial situation;

2) for the remuneration to his/her representative. If the court finds that the person (addressee of the decision, natural person only) is in a difficult financial situation and that the particular administrative matter is complicated, it may decide that remuneration to a representative of this person, within regulated frameworks, shall be paid from the State budget.

Law on State Legal Aid guarantees financial support from the State budget for legal aid both in court proceedings and out-of-court settlements. It is a separate legal aid mechanism for civil, criminal and administrative matters, administered by the Legal Aid Administration. However, legal aid is provided only to those administrative matters which concern granting of asylum and no state-financed legal aid can be provided in environmental matters.

It is sometimes possible, on individual basis, to receive pro bono legal assistance in administrative matters. For example, if the outcome of the case or the interpretation of the legal provisions could be significant, the lawyers are sometimes ready to provide legal advice free of charge. Since 2010, four law firms have agreed to participate in a Link opens in new windowSoros Foundation project and to provide pro bono legal advice to NGOs through Pro Bono Legal Advice Center (tel. +371 67294646). Other law firms and lawyers can be contacted individually.

The Link opens in new windowlegal clinic functioning at the University of Latvia is ready to provide legal advice to persons with low income. Usually legal advice provided by law students covers such branches as employment, rent of dwelling premises, or maintenance allowance for children.

Link opens in new windowLatvian branch of the Transparency International Delna provides legal aid for citizens in building and land use matters. Delna are ready to handle the case in situations when the case is of public importance, i.e., when a substantial damage is caused or may be caused to environment, or when the case can serve as a precedent and contribute to the improvement of law or legal practice.

XIII. Timeliness

Administrative institutions must deliver their decisions within one month from the day the person has lodged his/her application or complaint. In urgent cases, the person may request the institution to issue the decision immediately.

Due to objective reasons, the institution may extend the time limit for a period not exceeding four months. If there are objective difficulties in clarifying factual circumstances, the time limits may be extended for up to one year, with a prior permission of a superior administrative institution. The decision of the institution to extend the time limit may be appealed to a superior administrative institution or, consequently, to the court.

If there is a delay in delivering the decision, there are no immediate sanctions possible against the institution. However, the person is then allowed to lodge his/her appeal in the main matter immediately to the administrative court and, besides the main matter, to ask the court to adjudicate on the fair compensation for financial loss or moral damage caused by the delay.

If the person decides to appeal the administrative decision to the administrative court, the appeal should be submitted within one month from the issue of the administrative decision, or within one year in cases when the answer has not been given at all or when the procedure of submitting an appeal has not been clarified in the written decision. The person who is not an addressee of the decision and was not involved in the administrative procedure (for example, an environmental NGO) should submit its appeal to the court within one month from the day when the person become informed of it, but not later than within a one-year period from the day the decision comes into effect. The participants to the court proceedings will be informed of following mandatory procedural rules and time limits during the court proceedings. The time limit for appealing the first instance court judgement and for lodging a cassation complaint to the Supreme Court is one month. More important procedural decisions of the court, for example, the refusal of the court to accept the application, may also be appealed to a higher court, and it should be done within 14 days.

The court must follow time limits when:

1) deciding on the acceptance of the application to the court (7 days; the time limit may be extended till one month);

2) deciding on injunctive relief (in a reasonable time according to the urgency of the matter, but no longer than one month);

3) delivering the judgement after the court hearings (21 day for the first instance court and the appeal court, and 30 days for the Supreme Court; the latter may be extended to two more months).

Otherwise, the court is not bound to strict time limits and is not obliged to review cases in a certain period of time. But, of course, it is obliged to review cases and deliver the final decisions as soon as possible in consecutive order.

Those rules equally apply to all kinds of cases, including environmental.

The typical duration of an environmental court case is about 1 year for the district court, 1,5 year for the regional court and about 9 months for the Supreme Court.

Serious delay in delivering decisions and judgments or delays of other time limits set in law may be a basis for disciplinary measures against judges.

XIV. Other Issues

Only final decisions of certain administrative procedure (administrative acts, clear omissions) are usually allowed to be appealed to the administrative court. Thus the public usually appeals to the court such decisions as building permits, accepting decisions of the intended activities, permits for polluting activities, or water use permits, with a possibility to review previous procedural decisions. Appealing EIA screening decisions is a frequently used technique to enter the courts. It is not possible to ask solely for damages without previous disputing of the decision or omission causing the damages to the environment.

The public can access easy-to-understand information on environmental matters including different fields of government activities, and access to justice on the internet site: Link opens in new windowthe Ministry of Environmental Protection and Regional Development, where one can find link to a Link opens in new windowbrochure about access to justice in environmental matters.

The Internet Link opens in new windowportal to the judiciary provides information on administrative litigation, with templates of procedural documents.

There are no specific legal regulations on alternative dispute regulation (ADR) enacted. A draft law is proposed to the Cabinet of Ministers. Nevertheless, participants to the administrative or court proceedings, also in environmental matters, are free to deliberate and to conclude an administrative contract on the disputed matter and thus to settle the legal dispute before the court decision.

XV. Being a Foreigner

According to Law on Judicial Power all persons are equal before the law and the court. Cases are adjudicated irrespective of, among others, the origin, nationality, language or place of residence of a person.

The language of the courts is Latvian. Participants lacking fluency in the official language can participate in proceedings with the aid of an interpreter. The court provides an interpreter, paid by the government, for natural persons or their representatives in order to get acquainted with documents of the case and for the participation in the hearings. The court, at its own discretion, may provide an interpreter also for a legal person.

XVI. Transboundary Cases

Procedural rules are the same for all cases. Latvian law does not limit standing to the court according to the direct or indirect effects of the decision on individual persons applying to the administrative court. Thus any person, including NGOs, may apply to the administrative court if she/he can show reasonable motivation that the administrative decision or omission violates the law protecting environment and nature, or can create threats of damage or damage to environment. During the court procedure, the participants may ask for the same procedural solutions, including injunctive relief and interim measures.

Financial assistance for legal aid may be provided only to natural persons (addressees of the decision) in a difficult financial situation and only if the particular administrative matter is complicated. Thus, the possibility for the public or NGOs to obtain financial support from the state budget is almost excluded.

Obtaining pro bono legal assistance lies within participants own initiative to negotiate it with lawyers or law firms.

There are no legal provisions or court practice concerning choosing the court in Latvia or other country in case of trans-boundary effect of environmental decisions. Latvian courts have jurisdiction over the decisions of Latvian administrative institutions.

Related Links

Last update: 28/08/2014

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Lithuania

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

There is no right to a clean, healthy, favorable, etc. environment directly enshrined in the Constitution. But this right can be derived from other Articles of the Constitutions. The concept of environmental protection is mentioned in several Articles of the Constitution: "The State and each individual must protect the environment from harmful influence“(Article 53 (3)); "The State shall concern itself with the protection of the natural environment, its fauna and flora, separate objects of nature and particularly valuable districts, and shall supervise the moderate utilization of natural resources, as well as their restoration and augmentation. The exhaustion of land and elements of the earth, water and air pollution, the production of radiation, as well as the impoverishment of fauna and flora, shall be prohibited by law” (Article 54). The Constitution guarantees access to justice: “Any person whose constitutional rights or freedoms are violated shall have the right to appeal to court” (Article 30 (1)). Citizens can initiate administrative or judicial procedures because of the environmental violations. But they cannot directly invoke the constitutional right to environment. The international treaties ratified by the Parliament (Seimas) are a constituent part of the legal system (Article138 (3)). In the case of conflict, international agreements have primacy over national law (Article11 (2) of the Law on International Treaties). Parties can rely directly on international law. The Aarhus Convention is effective without any additional national legislation. Administrative bodies and courts have to implement this treaty.

II. Judiciary

Lithuania has a dual judicial system with ordinary courts of general jurisdiction and administrative courts of special jurisdiction. The courts of general jurisdiction, dealing with civil and criminal matters, are the Supreme Court of Lithuania (1), the Court of Appeal of Lithuania (1), and, at the first instance level, the regional courts (5) and the district courts (54). District courts also hear some cases of administrative offenses from within their jurisdiction by law. The regional courts, the Court of Appeal and the Supreme Court of Lithuania have a civil division and a criminal division. The Supreme Court of Lithuania is the court reviewing judgments, decisions, rulings and orders of the other courts of general jurisdiction. It develops a uniform court practice in the interpretation and application of laws and other legal acts. The Supreme Administrative Court of Lithuania (1) and the regional administrative courts (5) are courts of special jurisdiction hearing disputes arising between citizens and administrative bodies from administrative legal relations. The Supreme Administrative Court is a first and final instance court for administrative cases assigned to its jurisdiction by law. It is an appeal instance court for cases concerning decisions, rulings and orders taken by regional administrative courts, as well as for cases involving administrative offenses decided by district courts. The Supreme Administrative Court is also an instance Court for hearing, in cases specified by law, petitions on the reopening of completed administrative cases, including administrative offences. The Supreme Administrative Court develops a uniform practice of administrative courts in the interpretation and application of laws and other legal acts. There are no specialized courts competent to hear specific types of administrative disputes. Some specialization exists only at the level of pre-trial investigation institutions (e.g. the Commission on Tax Disputes). The special pre-trial investigation institutions are the municipal administrative disputes commissions (savivaldybių visuomeninės administracinių ginčų komisijos) and the Chief administrative disputes commission (Vyriausioji administracinių ginčų komisija). Applications to Administrative dispute commissions or to the Commission on tax disputes prior to bringing a case to an administrative court is not compulsory, save for the matters provided by laws. There are no special courts, tribunals, or environmental boards in Lithuania. Administrative dispute commissions and administrative courts carry out full review of all administrative acts including acts in environmental matters. District courts of general jurisdiction are dealing with environmental damage cases. Some state institutions under the authority of the Ministry of Environment can act as a pre-trial investigation institution in environmental matters in cases foreseen by the law (e.g. the State Inspectorate for Territorial Planning and Construction, and the State Service for Protected Areas). Only administrative courts can hear administrative disputes in environmental matters. There is no possibility to apply to another court. There is only the possibility to apply to an administrative dispute commission prior bringing the case to an administrative court. There is no general rule, that administrative acts must be challenged before a higher administrative authority or an independent dispute body before applying to a court. The internal control of administrative acts/omission is compulsory only in certain kinds of administrative disputes (e.g. in social security disputes, or tax disputes). Applications to Administrative dispute commissions or to the Commission on tax disputes prior bringing a case to an administrative court can be selected on a voluntary basis. Only in the matters provided by laws this special pre-trial procedure is compulsory. Every interested person can apply to a court for the protection of his/her infringed or contested right or interest protected under law (Article 5 of the Law on Administrative Proceedings (LAP)). Every applicant who challenges an administrative act has to demonstrate a particular interest in the annulment of this act. Only an application to an administrative court as an individual in order to protect his/her own infringed or contested right or interest is admissible (Article 5 LAP). It is possible to bring a complaint to protect the State or other public interest laid down for the prosecutor, entities of administration, state control officers, other state institutions, agencies, organizations or natural persons, but only in the cases prescribed by law (Article 56 LAP). A complaint/petition may be filed with the administrative court, within one month from the day of publication of the contested act, the day of delivery of the individual act to the party concerned, the notification of the party concerned of the act (or omission), within two months from the day of expiry of the time limit set by a law, or any other legal act for the compliance with the demand. If the public or internal administration entity delays the consideration of a certain issue and fails to resolve it within the due date, a complaint about the failure to act (in such delay) may be lodged within two months from the day of expiry of the time limit set by a law or any other legal act for the settlement of the issue. No time limits shall be set for the filing of petitions for the review of the lawfulness of administrative legal acts by the administrative courts. The decision taken by an administrative disputes commission or any other institution for preliminary extrajudicial investigation of disputes, adopted after investigating an administrative dispute in accordance with the extrajudicial procedure, may be appealed to an administrative court within 20 days after the receipt of the decision (Article 33 LAP).
If it is recognized that the time limit for filing a complaint has not been observed for a good reason, at the claimant's request, the administrative court may grant restoration of the status quo ante. The petition for the restoration of the status quo ante shall indicate the reasons of failure to observe the time limit and present the evidence confirming the reasons of failure to observe the time limit. There are no special screening procedures before administrative courts. Only the compliance of the complaint with the formal requirements and the time limits for lodging a complaint are verified in order to decide whether a complaint is acceptable. The Article 23 of the LAP sets minimal standards of the complaint to administrative courts. Except for cases provided for by law, complaints/petitions shall be received and heard by the administrative courts only after the payment of the stamp duty. The assistance of a lawyer is not compulsory in administrative courts. The parties to the proceedings can defend their interests in court themselves or through their representatives. The administrative court can quash the contested administrative act (sometimes part thereof). The court can also obligate the appropriate entity of administration to remedy the committed violation or carry out other orders of the court (Article 88 LAP). The administrative court can’t change the administrative act but it can obligate the state institution to elaborate (pass) a new administrative act. The decision of the court may contain this new administrative act. There are no special rules in the Law on Administrative Proceedings about cases in environmental matters. There is a possibility of petition for the protection of the State or other public interests, including environmental matters. The right to bring a case to a court in environmental matters is enshrined by the Aarhus Convention. There is no limitation for natural or legal persons to bring a case before an administrative court. There is a possibility to bring a complaint in order to protect state or another public interest laid down for the prosecutor, entities of administration, state control officers, other state institutions, agencies, organizations or natural persons, but only in the cases prescribed by law (Article 56 LAP). And that is also possible in the field of environmental matters. Administrative courts can also decide cases relating to disputes between public administrations, which are not subordinated to one another, concerning competence or breaches of laws, except for civil litigation cases assigned to the courts of general jurisdiction. Public entities are not entitled to challenge their own administrative acts before administrative courts. If an unlawfulness of an administrative act violates public interest, only the prosecutor or other persons, in the cases prescribed by law, may bring this case before a court. Normally judges do not have the right to initiate a case. But if a judge has information about a criminal action, he has the obligation to inform the prosecutor (Article 109 LAP). Once the case is ongoing, the court can „actively” participate in the proceeding by asking for evidence, appointing witnesses, experts, etc.

III. Access to Information Cases

An applicant who considers that his request for environmental information has been ignored, wrongfully refused or inadequately answered has access to a review procedure before an administrative disputes commission. The commission may be appealed within a month after the receipt of the information or within a month from the date of the information has been made available. The decision of the commission may be appealed to the administrative court within 20 days after the day of the receipt of the decision. In the case of refusal, the public administration entity must adopt an individual administrative act, which must contain, clearly formulated, all rights and duties and the specific appeal procedure (Article 6 and 8 of the Law on Public Administration). The reasons for a refusal should be provided to the applicant within 14 days after the receipt of this demand by the public authority (Article 19 Order on Public Access to Environmental Information, Approved by Government Resolution Number 1175). The request can be written or oral. The information can be given oral if the applicant doesn’t ask for a written answer. The requirements for the written request are:

  • the name,
  • the contact data,
  • the requested information,
  • the form of giving the information.

The applicant doesn’t have to state an interest. When an applicant requests to make information available in a specific form (including in the form of copies), the public authority shall make it so available (there are some exceptions foreseen in the Article 9 of the Order on Public Access to Environmental Information). The information shall be made available to an applicant within 14 calendar days after the receipt by the public authority. This term can be extended to at least 14 calendar days. An Application to an administrative dispute commissions prior to applying to an administrative court is compulsory in this case. All information must be provided to the court if the court requests it. This information can influence the court decision. One of the types of judgments in administrative courts is to meet the complaint (grant the application) and rescind the contested act (or a part thereof), or to obligate the appropriate entity of administration to rectify the committed violation or to comply with any other order of the court (Article 88 (2) LAP). Courts can order information to be disclosed.

IV. Access to Justice in Public Participation

The administrative procedure is regulated by the Law on Public Administration for all matters of administrative law including environmental matters. The main law in environmental matters is the Law on Environmental Protection. Other laws and legislative acts regulating the environmental protection are adopted on the basis of this law. The Law on Environmental Protection foresees the main principal for the economic activities – the permit. There are a lot of kinds of permits (construction permit, EIA permit, IPPC permit and others) which are regulated in special laws and other legislative acts (in these acts are written the requirements for such permit, the institutions who are responsible for that, sometimes specific rules concerning the procedure) but the basic rules for the administrative procedures are written in the Law on Public Administration. The appeal to a superior administrative authority against an administrative decision can be an obligation (only it the cases foreseen in the law) or an alternative (the person can choose between the appeal to an authority or to the court). There is a possibility to apply to an administrative dispute commission prior to bringing the case to an administrative court. First instance administrative decision can be taken by a court directly. Applications to administrative dispute commissions prior to bringing a case to an administrative court is not compulsory, save for the matters provided by laws. In the absence of specific rules provided by law about the necessity of an administrative claim prior to bringing a case to an administrative court, administrative decisions can be brought to an administrative court directly. The administrative courts review the procedural legality and also the substantive legality of all administrative decisions. The courts study the material, technical findings and calculations when they are considered belonging to the decision. The legality of administrative planning is controlled by the administrative courts. The conditions regarding legal standing, rules of evidence, rules on hearing or extent of review by the court are not specific for the cases in environmental matters. Natural or legal persons have the right to lodge a complaint (application) concerning an administrative act when their rights have been infringed upon. In the cases prescribed by law it is possible to bring a complaint in order to protect the state or another public interest (including environmental interest). Agencies, organizations, and groups may lodge an appeal against the measures affecting their own interests (existence, estate, activity, operating conditions) as well as asking for damages for the material and moral damage they suffer. But they also may go to court to defend the public interest of those they represent, insofar as the regulatory or individual disputed measure harms this public interest. In administrative litigation, as in private legal proceedings, the burden of proof bears on the plaintiff. However, this principle sees mitigation in administrative litigation, notably when the elements of proof are in the hands of the administration or, in the case of liability, in the hypothesis of presumptions exempting the petitioner from establishing the fault he/she alleges and obliging the administration to prove that it committed no error. Considering the inquisitorial nature of the proceeding, the administrative judge, who has significant investigatory powers, actually contributes significantly in establishing the facts. If need be, he/she may impose the communication of documents or proceed by him/herself to certain investigations by directly examining acts or documents, by visiting locations, by attending hearings or expert assessments. Judges must actively participate in the collection of evidence. Article 8 (1) of the Law on Administrative Proceedings enshrines the principle that proceedings shall be held in a public hearing.

The administrative judge has full control of an administrative act. An administrative act (part thereof) must be rescinded if it is:

  1. illegal per se, i.e., contradicts by its contents the legal acts of higher order;
  2. illegal by reason of having been adopted by an incompetent entity of administration;
  3. illegal because it was adopted in violation of the principal established procedures, especially in breach of the rules intended to ensure an objective evaluation of all circumstances and the validity of the decision. A contested act (part thereof) may also be rescinded on other grounds recognized as material by the administrative court (Article 89 LAP).

The EIA screening and scoping decisions are administrative decisions and can be reviewed by courts. The conditions regarding legal standing, rules of evidence, rules on hearing or extent of review by the court are not specific for these cases. The EIA final decision is also an administrative decision and can be reviewed by courts. The administrative courts review the procedural legality and also the substantive legality of all administrative decisions. The courts study the material, technical findings and calculations when they are considered as belonging to the decision. The Environmental Impact Study is controlled because it is the main aspect of the procedural legality. The requirement of a necessary interest to have the power to act is at the very head of the conditions for an appeal’s admissibility. It is not necessary to participate in the public consultation phase of the EIA procedure or to make comments to have a standing before administrative courts. The public concerned has the right to lodge a complaint (application) concerning an EIA administrative act in order to protect the public interest (Article 15 of Law on Environmental Impact Assessment of the Proposed Economic Activity). There are no special rules applicable to EIA procedures. The injunction relief is available in administrative cases in all matters. According to the Article 71 of the Law on Administrative Proceedings, the court or the judge may, upon a motivated petition of the participants in the proceedings or upon his/its own initiative, take measures with a view to securing a claim. The claim may be secured at any stage of the proceedings if failure to take provisional measures to secure a claim may impede the enforcement of the court decision or render the decision unenforceable. There are no special rules applicable to EIA procedures. All administrative decisions can be reviewed by administrative courts. IPPC decisions and other decisions concerning authorizations can be reviewed by administrative courts too. The conditions regarding legal standing, rules of evidence, rules on hearing or extent of review by the court are not specific for these cases. The administrative courts review the procedural legality and the substantive legality of IPPC decisions as well as the legality of all administrative decisions. They have also to study the material, technical findings, calculations and the IPPC Documentation if these elements are considered to belong to the decision. It is not necessary to participate in the public consultation phase of the IPPC procedure or to make comments to have a standing before administrative courts. The public concerned has the right to lodge a complaint (application) concerning an IPPC administrative act in order to protect the public interest (Article 87 of Rules on issuance, renewal and cancellation on IPPC permits, Approved by Ministry of Environment of Lithuania Order Number 80 in 2002). According to the Article 71 of the Law on Administrative Proceedings, the court or the judge may take measures with a view to securing a claim. There are no special rules applicable to IPPC procedures.

V. Access to Justice against Acts or Omissions

According to Article 7 (8) of the Law on Environmental Protection the public concerned, one or more natural or legal persons, have the right to bring a claim before courts and:

  1. to insist upon the punishment of persons guilty of endangering the environment, and of officers, whose decisions have infringed their rights or interests;
  2. to take the appropriate action to avoid or minimize environmental damage or to restore the original state of the environment.

Legal and natural persons who cause damage to the environment must compensate all losses, and, if possible, must restore the environmental state (Article 32 Law on Environmental Protection). The right to make claims for damages belongs to:

  1. legal and natural persons whose health, property or interests have been damaged;
  2. officers of the Ministry of Environment or other officers when damage has been done against the interests of the state (Article 33 (1) Law on Environmental Protection).

Legal entities are subject to civil liability, regardless of their guilt, for any environmental damage or actual threat thereof, resulting from their economic activities (Article 34 (2) Law on Environmental Protection). Claims for the protection of the environment can be submitted directly to the administrative courts against decisions or omissions of public bodies (the state or local public authorities). The administrative court can revoke the contested administrative act (part thereof), or obligate the public body to remedy the committed violation, or carry out other orders of the court. The administrative court can satisfy the complaint (the application) and an order for damages caused by illegal actions from public bodies. The state administration of environmental protection shall be carried out by the Government of the Republic, the Ministry of Environment, the Environmental Protection Agency, the Regional Environmental Protection Departments, other special state authorities (e.g. State Territorial Planning and Construction Inspectorate, General Forest Enterprise, State Protected Areas Service, National Parks Directorates) and the local governments. The administrative procedure is regulated by the Law on Public Administration for all matters of administrative law. There are no specific rules for environmental matters. The administrative procedure shall be completed and the decision on the administrative procedure shall be adopted within 20 working days from the beginning of the procedure. This term can be extended for a period not longer than 10 working days (Article 31 Law on Public Administration). A person shall have the right to appeal against a decision on the administrative procedure adopted by an entity of public administration, at his own choice, either to an administrative disputes commission or to an administrative court in accordance with the procedure set forth by laws (Article 36 Law on Public Administration). The administrative court can revoke the decisions made by competent authorities (part thereof) or obligate the competent authority to remedy the committed violation or carry out other orders of the court (Article 88 LAP). There are no specific rules concerning environmental liability matters for the procedure before administrative courts. The ordinary courts are dealing with cases concerning the environmental liability. The possibility to claim for compensation of damage is foreseen in the article 32-34 of the Law on Environmental Protection. There are several possibilities to enforce the environmental liability. Each possibility is based on specific conditions. The person can ask the competent authority to act if the environment is damaged. The decision made by competent authority can be appealed before the administrative court. Legal and natural persons whose health, property or interests have been damaged can make direct claims for damages before ordinary courts. Competent officers can make such claims when damage has been done to the interests of the State.

VI. Other Means of Access to Justice

All general court proceedings, administrative, civil or criminal are likely to be applied in environmental matters. There are no specific rules in this area. The Seimas of the Republic appoints the Seimas Ombudsman, a state official who protects human rights and freedoms, investigates the complainants’ complaints about abuse of office by or bureaucracy of officials and seeks to upgrade public administration. The complainant has the right to file a complaint with the Seimas Ombudsman about the abuse of office by bureaucracy of officials if s/he believes that his rights and freedoms have been violated thereby (Article 5, 13 (1) Law on the Seimas Ombudsman). Having completed the investigation the Seimas Ombudsman shall decide to:

  1. recognize or declare the complaint as justified;
  2. dismiss the complaint;
  3. discontinue the complaint investigation (Article 22 (1) Law on the Seimas Ombudsman).

The institution and agency or official, to whom this proposal (recommendation) is addressed must investigate the proposal (recommendation) of the Seimas Ombudsman and inform the Seimas Ombudsman about the results of the investigation (Article 20 (3) Law on the Seimas Ombudsman). According to the Law on the Prosecutor, the public prosecutor's office is a state institution headed by the Prosecutor General. The public prosecutor's office is comprised of the Prosecutor General's Office and territorial prosecutor's offices (regional prosecutor's offices and district prosecutor's offices). All prosecutors’ offices shall defend the public interest, including environmental matters. Article 19 of the Law on the Prosecutor comprehensively regulates the defense of the public interest. The state institutions responsible for the environmental protection including the Ministry of Environment, the Environmental Protection Agency, the Regional Environmental Protection Departments, and other special state authorities (e.g. State Territorial Planning and Construction Inspectorate, General Forest Enterprise, State Protected Areas Service, National Parks Directorates and the local governments) can initiate the case in the administrative court for the defense of public interest. Some territorial police bodies have special departments for the environmental violations (e.g. in the capital in Vilnius). Other territorial police bodies have police officers responsible for investigating environmental violations. They have competence for criminal matters and administrative violations. The Code of Criminal Procedure provides cases under the Criminal Code of Republic of Lithuania, when criminal proceedings can be initiated, when there is a complaint of the victim or his legitimate representative (Article 407 of the Code of Criminal Procedure). In these cases pre-trial investigation is not conducted. There are no example cases in environmental matters. There are several possibilities of claims before the administrative courts in cases of administrative inaction or inappropriate action:

  • the action for annulment against an unlawful administrative decision;
  • the action to oblige the state institution to pass an administrative decision;
  • the action for damages against a public authority when it is shown that this inaction or inappropriate action caused a damage.

There is a possibility to bring a complaint in order to protect the State or other public interest laid down for the prosecutor, entities of administration, state control officers, other state institutions, agencies, organizations or natural persons, but only in the cases prescribed by law (Article 56 of the Law on Administrative Proceedings).

VII. Legal Standing

According to the Law on Administrative Proceedings every interested person can apply to a court for protection of his/her infringed right, contested right, or interest protected under law. Every applicant who challenges an administrative act has to demonstrate a particular interest in the annulment of this act. Only applications to protect an individual’s infringed or protective right to an administrative court is admissible (Article 5 of the Law on Administrative Proceedings). These main rules are applicable for different types of procedures and different actors. However, it is possible to bring a complaint in order to protect the State or other public interest. The actors for this possibility include the prosecutor, entities of administration, state control officers, other state institutions, agencies, organizations or natural persons. But this possibility can be used only in the cases prescribed by law (Article 56 of the Law on Administrative Proceedings). E.g. according to Article 7 (8) of the Law on Environmental Protection the public concerned, one or more natural or legal persons, have the right to bring a claim before courts. So if there were a complaint in order to protect the public interest connected with the protection of environment this complaint should be admissible because it is prescribed by Law on Environmental Protection. This rule is used for all matters (not only for environmental matters). Sometimes additional rules of law provide whom and in which cases there is access to the court e.g. cases concerning EIA and IPPC. Article 15 of Law on Environmental Impact Assessment of the Proposed Economic Activity provides the possibility for the public concerned to bring a claim before courts in the case of EIA. Article 87 of Rules on issuance, renewal and cancellation on IPPC permits, Approved by Ministry of Environment of Lithuania - Order Number 80 in 2002 provides the possibility for the public concerned to bring a claim before courts in the case of IPPC. There are additional rules regarding the possibility for the public concerned to bring a claim before courts in the case of EIA (Article 15 of Law on Environmental Impact Assessment of the Proposed Economic Activity) and IPPC (Article 87 of Rules on issuance, renewal and cancellation on IPPC permits, Approved by Ministry of Environment of Lithuania - Order Number 80 in 2002). There is no “actio popularis” in Lithuania. The Ombudsman cannot bring a claim before the administrative court against the individual administrative decision. But he can apply to the administrative court with a request to investigate the legality of the legal statutes adopted by the entities of state administration or municipal administration. He can recommend that the prosecutor apply to the court according to the procedure prescribed by law for the protection of public interest. The public prosecutors can defend the public interest before administrative courts. Other state institutions have legal standing to act before administrative courts either when it is in their own interest to claim or to defend, or when they defend the public interest. There are additional rules for legal standing of individuals/NGOs and access to justice for environmental matters in the fields of EIA and IPPC procedures

VIII. Legal Representation

Parties can represent their interests in administrative courts themselves or through representatives. In administrative courts, the participation of lawyer is compulsory in judicial procedures (including in environmental matters). A lawyer is also compulsory before the cassation court (Supreme Court of Lithuania) (e.g. in the cases of environmental damage or in the criminal cases). Parties and/or their representatives must have a degree in law before the Court of Appeal. Generally, compulsory participation is required in criminal proceedings in all courts of general jurisdiction. There are specialized law offices in environmental matters (usually the biggest law offices). It is possible to find the lists of the lawyers in the following websites:

There are several NGOs whose aim is to defend the public interest in environmental matters, such as the Lithuanian Fund For Nature and Lithuanian Green Movement. The Lithuanian Environmental Coalition was established in 2004. There are 9 members in this Coalition at the moment.

IX. Evidence

Parties and other persons present the evidence for the proceedings. The parties must prove the circumstances on which they base their claims and responses. In administrative and civil proceedings the evidence includes: explanations of the parties and third parties (given directly or through representatives), witness evidence, written evidence, real evidence, statements of examination, expert evidence. The parties and other participants submit evidence to the court. If necessary, the court can allow those persons to submit additional evidence on the person's request or, on its own initiative, may demand the necessary documents, or request submissions from the officials. In civil proceedings the court has the right to collect evidence on its own initiative only in exceptional cases prescribed by the law, such as in family cases and labor cases. The court may also demand and obtain evidence from the other party or third parties at another party’s request. No evidence before the Courts has a predetermined value. The court evaluates the evidence according to its own inner conviction based on a thorough, comprehensive, and objective examination of the facts in accordance with the law, as well as justice and reasonableness criteria. In administrative proceeding parties can introduce new evidence until the end of the hearing on merits. Judges must actively participate in the collection of evidence, in the establishment of all significant circumstances of the case, and must make a comprehensive and objective examination thereof. In civil proceedings parties can introduce new evidence until the end of the preparation for hearing on the merits. In civil proceedings the court has the right to collect evidence on its own initiative only in exceptional cases prescribed by the law, such as in family cases or labor cases. Parties can submit expert opinions with other evidence to the court. Specialist explanations, opinions or conclusions gathered by the parties to the proceedings on their own initiative are not admitted as expert evidence. They are regarded as pieces of written evidence. The court decides either on its own initiative or at the request of the parties whether to order an expert examination in the proceedings. Usually an expert is ordered to examine certain issues arising in the case when the Court needs special scientific, medical, artistic, technical or professional knowledge. Expert opinions, as other evidence, do not have a predetermined value for the court. They are not binding on judges.

X. Injunctive Relief

The appeal or the action submitted to the court against the administrative decision does not have a suspensive effect. Only the court might suspend the administrative decision in the way of applying interim measures. Usually administrative decisions can be immediately executed after their adoption (enforcement), irrespective of an appeal. Only the court can apply interim measures. When the administrative decision in the form of the legislative act was adopted by the government or the municipality the enforcement is connected with the publication in the official journal or other date which can be foreseen in the legislative act. There are no specific rules for the injunctive relief in judicial procedures in environmental matters. The claim may be secured at any stage of the proceedings if failure to take provisional measures to secure a claim may:

a) impede the enforcement of the court decision; or

b) render the decision unenforceable.

The request for the interim measures must be filed prior to the commencement of the hearing of the case on the merits. According to the practice of the Supreme Administrative Court of Lithuania, the court, while deciding on the interim measures (in Lithuanian administrative process they are called “measures securing the claim“), must preliminarily take into account the nature of the claim (that is requested to be secured), the indicated factual basis for the claim, the rights, granted by the contested act, and actual realization of these rights. Only then the court can decide whether the requirement for interim measures under the circumstances of the application would be adequate to the purpose and whether the principle of proportionality and the balance of the interests of the parties and the public interest wouldn’t be violated. According to the principle of fairness, when considering the requirement of interim measures, the court has to answer the question whether interim measure would actually help to restore the previous legal position if the main claim would be satisfied. The petition for securing the claim might be accepted only if the main complaint is accepted. There is no possibility of asking for interim measures, without asking for challenging the administrative act or omission. There is no cross-undertaking in damages prior to granting interim relief. There is the appeal against the decision of the court regarding injunction possible. But it has not the suspensive effect and the court can continue the proceeding (Article 71 (5) LAP).

XI. Costs

In administrative courts, the applicant should pay a court fee. There are exemptions, however, in cases about complaints in order to protect the State or other public interests, in cases concerning compensation for material and moral damages inflicted by unlawful acts or omission in the sphere of public administration, for example. Other litigation-related costs include:

  1. costs paid to witnesses, experts, and expert organizations;
  2. costs relating to the publication of hearing time and place in the press;
  3. transport costs;
  4. costs for the rental accommodation in the place of the court;
  5. other necessary and reasonable expenses.

In civil courts applicants have to pay a court fee. There are exemptions in the cases concerning compensation for material and moral damage in relation to a physical personal injury, death, in the cases concerning the defense of the public interest under the claim of the prosecutor, public institutions or other persons. Other litigation-related costs include:

  1. costs paid to witnesses, experts, authorities and expertise of interpreters and the costs associated with on-site inspections;
  2. costs for the searching for the defendant;
  3. costs associated with the service of delivery of documents;
  4. costs related to enforcement of judgments;
  5. costs related to the salary of the curator;
  6. costs for the lawyers or lawyer’s assistants;
  7. costs associated with the application for interim relief;
  8. other necessary and reasonable expenses.

Under the Law on Administrative Proceedings, each complaint (application) in administrative court is subject to a stamp duty in the amount of LTL 100 (excluding the exceptions). An appeal for the review of a court judgment must be subject to a stamp duty at the 50% rate payable upon the lodging of the complaint (application) with the first instance court. Under the Code of Civil Procedure, stamp-duties in pecuniary disputes are as follows:

Amount of the claim

Stamp-duty

for claims up to LTL 100 000

3% of claimed amount + indexation (The minimum stamp-duty - LTL 50)

for claims up to LTL 300,000

LTL 3,000 plus 2% of claimed amount exceeding LTL 100,000 + indexation

for claims over LTL 300,000

LTL 7,000 plus 1% of claimed amount exceeding LTL 30,000 + indexation (The maximum stamp-duty - LTL 30,000)

For appeals, cassation appeal, and applications for renewal of the proceedings shall be paid the same amount of stamp duty. An estimation of expert fees and other litigation-related fees, except from lawyer fees and costs, associated with the application for interim relief are regulated by Government Resolution Number 344 from 2002. There is a recommendation from Minister of Justice and the Chairman of Bar concerning lawyer fees (Ministry of Justice Order Number 1R-85 from 2004). Recommended maximum remuneration sizes are calculated using the coefficients which are based on the Lithuanian Government approved the minimum monthly salary. The minimum monthly salary (MMS) from 1st August 2012 is LTL 850. E.g. the coefficient for one hour for representation in court is 0,15. An estimation of lawyer fees in the case of the legal aid is regulated by Government Resolution Number 60 from 2001. The remuneration for lawyers constantly providing secondary legal aid is 8.18 MMS per month. Working hour salary for lawyers who are not constantly providing secondary legal aid equal to 0,05 MMS. There are differences between administrative and civil proceedings. In the administrative proceedings, in the case of an injunctive relief or interim measure a deposit (cross-undertaking in damages) is not needed (it is not foreseen in the Law on Administrative Proceedings). In the civil proceeding the request for application of interim measure shall be taxable only when it is claimed before filing a lawsuit. In this case the applicant must pay half of the stamp-duty payable for this prospective claim. The Code of Civil Procedure establishes the court’s right to require a deposit for applying the interim measures from the applicant. The deposit is intended to secure the defendant against losses of the interim measures applied to him. The deposit could also be the bank guarantee. The amount of the deposit depends on the case and it is quite difficult to evaluate it generally. The general rule is that the losing party has to bear all costs, including stamp duties and costs related to initial court proceedings. The party shall be also obliged to reward the costs of the winning party. The stamp-duty, expenses for correspondence, expert costs, and other costs usually are paid in full. But the legal costs for legal representation during the court proceeding are reduced as recommended by the Minister of Justice and the Chairman of Bar. However these amounts are only recommended and depend on the complexity of the court proceeding, case material, and other factors. Nevertheless, in the absolute majority of civil and administrative cases, state courts reduce parties’ requested legal expenses for their legal assistance according to the recommended amounts and reasonableness.

XII. Financial Assistance Mechanisms

There are no specific rules concerning litigation costs of proceedings in environmental matters. Complaints/petitions shall be received and heard by the administrative courts only after the payment of the stamp duty prescribed by the law. Several exemptions from the stamp duty are foreseen in Article 40 of Law on Administrative Proceedings:

  • complaints/petitions relating to the delay by the entities of public administration to perform the actions assigned within the remit of their competence,
  • awarding of or refusal to award pensions,
  • violations of election laws and the Law on Referendum,
  • petitions by state servants and municipal employees when they concern legal relations in the Office,
  • compensation for damage inflicted upon a natural person or organization by unlawful acts/omission in the sphere of public administration, and
  • complaints relating to the protection of public interests and some other complaints/petitions.

There is a legal aid available in Lithuania. The current legal aid scheme is governed by the Law on Legal Aid. Legal aid is divided into primary and secondary legal aid. Primary legal aid includes legal information and legal consultations outside the judicial procedure and is accessible to all citizens, EU citizens, and foreigners, irrespective of their financial resources. Secondary legal aid includes preparation of procedural documents, representation in courts, waiver of the stamp duty and other procedural costs. Access to secondary legal aid depends on the level of estate and income and covers 50 or 100 percent of all procedural costs. Some groups of persons (i.e. recipients of social allowance) can receive legal aid independent of their income. Legal aid is granted through special services, which are accountable to the Ministry of Justice. The refusal to grant legal aid is subject to appeal before administrative courts. Legal aid is also available in environmental matters without any specific rules. Legal aid is subject to requirements as to resources, nationality, residence and admissibility. You are entitled to primary or secondary legal aid if you are a Lithuanian national, a citizen of the EU, or a foreigner who is lawfully residing in Lithuania or in another EU state. Legal aid is given if the action is not manifestly inadmissible or devoid of substance. The additional condition for secondary legal aid is that the party’s property value and annual income does not exceed the property value and income levels set by the Government of the Republic of Lithuania. Legal aid for NGOs is not foreseen. Law firms do not provide pro bono legal assistance in Lithuania. All legal clinics deal with environmental cases. There are no specific environmental legal clinics. These legal clinics are:

  • Legal clinic of Vilnius University: http://www.teisesklinika.lt
  • Legal clinic of Mykolas Romeris University: http://www.mruni.eu/lt/universitetas/fakultetai/teises_fakultetas/teisines_pagalbos_centras/apie_centra/

The legal clinics are responsible for primary legal aid. The primary legal aid is also given by the municipalities and by Ministry of Justice Information Bureaus in several cities (Kaunas, Klaipėda, Šiauliai, Druskininkai and other).

The secondary legal aid is granted through 5 special services (in Vilnius, Kaunas, Klaipėda, Panevėžys and Šiauliai), which are accountable to the Ministry of Justice. There are environmental organizations responsible for the defense of the environment in Lithuania. They are available for the public. There are some other organizations that give free legal advice via internet. There are no specific environmental lawyers who would be available for the public for free.

XIII. Timeliness

An administrative organ shall complete the administrative procedure and adopt the decision of the administrative procedure within 20 working days from the beginning of the procedure. The public entity initiating the administrative procedure may extend the period up to 10 extra working days where, due to objective reasons, the administrative procedure cannot be completed within the set time limit. A person shall be notified about the extension of the time limit for the administrative procedure in writing or by e-mail (where the complaint has been received by e-mail) and the reasons for the extension (Article 31 of the Law on Public Administration). An administrative court may initiate responsibility of a public authority when the administrative organ does not adopt the decision during the time limit and it has resulted in damage to the claimant. In several fields, the law established a regime of tacit acceptance. The silence of the administration causes the appearance of a tacit acceptance within the period fixed by law. There are no special time limits set by law for judicial procedures in environmental matters. The general rules apply. Usually, the preparation of administrative cases before the court must be completed no later than one month after the date of the complaint (application). The proceedings before the administrative court must be completed and a decision made in the first instance no later than two months after the order for the case to the court hearing date, if the law doesn’t provide shorter duration.
Where appropriate, the trial period may be extended up to one month. In cases concerning the legality of normative acts of the administration the time period may be extended up to three months. The judgment shall be drawn up and communicated to the public generally on the same day after hearing the case. Judgments relating to the legality of administrative acts and other complex cases may be passed and announced later than but not more than 10 days upon the completion of the hearing of the case (in the practice, it’s used in almost all cases). When the right to a judicial decision within a reasonable time has caused damage, the person can obtain compensation for the damage. This possibility is foreseen in the Law on Compensation of Damage caused by Public Authorities.

XIV. Other Issues

Every applicant who challenges an administrative act must demonstrate a particular interest in the annulment of the act. An action for the annulment of an administrative act shall only be admissible if it produces legal effects – when it infringes the rights and obligations of applicant. A writ that only occurs in the context of a procedure for developing a subsequent main decision or simple information does not create rights or obligations for the person and cannot be challenged before an administrative court. All these general rules are applicable in environmental matters. The right of access to environmental information is ruled by general principle issued by the Law on Environmental Protection and the implementing Order on Public Access to Environmental Information, Approved by Government Resolution Number 1175 from 1999. Alternative Dispute Resolution currently is not prevalent in administrative litigation in Lithuania. But the newest jurisprudence of the administrative courts indicates an intention to use the peace treaty to settle disputes (also in environmental matters). Mediation is not really used in the practice; but, this idea is slowly getting value in Lithuania.

. XV. Being a Foreigner

Article 29 of the Lithuanian Constitution proclaims the principle of equality before the law for all citizens regardless of gender, race, nationality, language, origin, social status, belief, convictions, or views. Many laws have extended this article of the Constitution. Article 6 of Law on Administrative Proceedings provides that justice in administrative cases is implemented only by the courts, according to equality before the law and the court, regardless of gender, race, nationality, language, origin, social status, religion, beliefs or attitudes, activities and nature, residence and other circumstances. Only the Lithuanian language should be used in the courts. Article 9 of Law on Administrative Proceedings provides that in the process of administrative cases, decisions are made and published in the Lithuanian language. All documents submitted to the court must be translated into Lithuanian. Persons who do not speak Lithuanian shall be guaranteed the right to use the services of an interpreter. The interpreter is paid from the state budget (Article 9 of Law on Administrative Proceedings).

XVI. Transboundary Cases

Article 32 Law on Environmental Protection provides that disputes between legal and natural persons of the Republic of Lithuania and foreign states shall be settled in the manner established by law of the Republic of Lithuania, unless international agreements of the Republic of Lithuania provide otherwise. The admissibility of an action before a Lithuanian court is possible under conditions in Law on Administrative Proceedings or in Civil Proceedings Code. The concept of public interest is not specific in a transboundary context. The general rules are applicable (especially about the admissibility of requests through the concept of legal interest). The Lithuanian administrative law recognizes equal access to administrative courts for persons or NGO's residing abroad on the same basis that the applicants residing in Lithuania use. An EU citizen or a foreigner who is lawfully residing in Lithuania or in other state of the EU can get legal aid. A jurisdiction clause is possible in civil matters. It takes the form of a contractual provision whereby the parties agree to entrust the settlement of a dispute to a court which does not normally have jurisdiction. This may concern the subject matter jurisdiction or territorial jurisdiction. This clause may relate only to disputes arising from the contract. But, this mechanism is not used for administrative law litigations before administrative courts. The possibility to choose between courts could be possible in an international agreement.

Related Links

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Link opens in new windowhttp://www.teisescentras.lt/forumas/

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Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Luxembourg

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

In 1999, the Luxembourgish government amended the Constitution by adding the protection of the environment and animals as a new constitutional principle (Article 11bis). The State of Luxembourg guarantees the protection of the human and natural environment, by promoting the establishment of a sustainable balance between nature conservation and the satisfaction of present and future generational needs. The state promotes the protection and well-being of animals. Citizens can invoke the constitutional right directly in administrative and judicial procedures. If the judge believes that the party is rightfully challenging the constitutionality of a law, he will address a preliminary question to the Cour Constitutionnelle (Constitutional Court) . Parties to an administrative or judicial procedure can rely directly on European directives and Convention. They can invoke international agreements when they have been ratified by Luxembourg. Administrative courts refer to and directly apply the Aarhus Convention. In particular, the administrative tribunal refers to the Aarhus Convention directly to determine litigants' legal standing.

II. Judiciary

Luxembourg legislation is based on Roman Law and makes a clear distinction between public Law and private Law. Since there is a clear distinction between public law and private law in Luxembourg, the judicial system in the Grand Duchy of Luxembourg is divided into a civil court system and an administrative court system. The Cour Constitutionnelle in Luxembourg decides on the conformity of Laws with the Constitution. There is no direct recourse for litigants; only national courts can address a preliminary question to the Cour Constitutionnelle. The courts are charged by the constitution to exert judicial power. They are independent in the exercise of their functions. In Luxembourg, there are two orders of jurisdiction: the civil order and the administrative order. At the top of the hierarchy of the civil order is the Cour supérieure de justice, which includes a Cour d’appel, a Cour de cassation and the Parquet général. The cases in cancellation of the judgments delivered by the various chambers of the Cour d’appel are mainly carried before the Cour de cassation, which includes a chamber sitting with five judges.

In Luxembourg, there are no specific courts or tribunals to decide in environmental matters. Environmental cases are judged by administrative or judiciary tribunal according to the matter. There are two legal districts in Luxembourg, the district of Luxembourg and Diekirch, with in each district a Tribunal d’arrondissement. The judges of the courts are directly appointed by the Grand Duke. There are three small claims courts, Justice de paix in Diekirch, Luxembourg and Esch- sur- Alzette. The Cour administrative, administrative court, constitutes the supreme jurisdiction of the administrative order. Forum shopping is only available in judicial cases and does not exist in administrative cases. Parties can include a "choice-of-forum" clause in their contract. If both parties agree to this clause, they are allowed bring their motion before small claim court, the juge de paix, where it is otherwise not competent with respect to the value of the claim and territorial rules. All decisions of first instance ruled by the Tribunal d'Arrondissement of Luxembourg and Diekirch can be appealed before the Cour d’appel. To appeal a judgment, the appellant must bring his appeal within 40 days of the notification of the decision before the clerk of the court. The Cour d’appel will control the application of the law to the facts by the Tribunal d’arrondissement and will confirm or overrule the judgment of the Tribunal d’arrondissement. Judgments of small claim courts can be appealed before district tribunals. Decisions of the court of appeal and decisions of other tribunals ruled in last instance can be challenged before the Cour de cassation. The Cour de cassation will only control the application of the law and the rules of procedure. The deadline to bring an action before the Cour de cassation is two months from the notification of the judgment. The Cour administrative has cassation and reformatory rights. The administrative judge can rule on the legality as well as the proportionality of the administrative decision. The administrative judge can always annul a administrative decision, but can only substitute his decision to the decision of the administration if so provided by the law concerned. In environmental matters, cases can be brought before civil judges in order to obtain compensation from the defendant. Civil judges are competent to rule nuisance cases such as noise or pollution caused by neighbors. Nuisance cases can be brought even in the absence of misdemeanor. The criminal judge is competent to rule cases when a claim is brought either by the police or the general attorney. The judiciary judge is competent to rule on torts cases whether they are civil (i.e. between two individuals), or administrative (between the administration and an individual). Judges can from own motion order expertise or a visit of a site for the purpose of the case. Judges may also order any measures to allow witness' audition. The administrative judge can control the authenticity of the exhibits.

III. Access to Information Cases

In cases where a request for environmental information is refused or wrongfully/inadequately answered, the person can start an emergency interim proceeding before the administrative tribunal. The legal action must be brought before the administrative tribunal within 30 days of the notification of the refusal decision or after the silence of the administration kept for 3 months. If the judge considers the claim as valid, he can order the administration to disclose the information. The judgment may be appealed. Total or partial refusal of request for information must be motivated and sent by registered letter. The refusal shall include information on available remedies and legal recourse. The claim must be brought within 30 days from the notification of the refusal or inadequate decisions. The motion must include:

  • the names and address of the parties,
  • a summary of the facts
  • the conclusions
  • the description of the environmental information that access has been denied.

The motion must be produced in the same number as the parties and brought to the clerk office before the hearing date. The tribunal judgment will be notified to the claimant and the administrative authority. The administrative authority will produce the environmental information to the president of the tribunal through the clerk’s office. The nature of the information will influence the decision-making as it can be excluded from divulgation by law. The tribunal will examine the information and order whether or not the administrative authority must disclose it to the claimant. The Tribunal can order a full or partial disclosure of the information.

IV. Access to Justice in Public Participation

In Luxembourg, there are no specific procedural rules in environmental matters. Regular administrative procedure applies. In principle administrative decisions of administrative bodies are subject to the “Link opens in new windowprocédure administrative non contentieuse (law of administrative procedure). Unless a legal provision foresees shorter time periods and/ or reformation procedures for taking action against an administrative decision, administrative decisions can be challenged before court directly within 3 months of their notification or publication. A case can be brought to court before having exhausted all administrative remedies. However, the appeal to the administrative authority suspends the deadline of appeal before the administrative tribunal. All claims before the administrative tribunal must be introduced and signed by a lawyer, avocat à la Cour,, in the form of a motion. The motion must include the names and address of the claimant, the questioned administrative decision, a summary of the facts, the object of the motion and a list of the exhibits. The original motion must be submitted with four copies to the tribunal's clerk. The judgment of the Tribunal administratif can be appealed before the Cour administrative within 40 days of the judgment. The administrative judge may only review the procedural and substantive legality of the administrative decision. In highly technical cases, administrative courts may have to verify material and technical findings. Judges may also ask for technical expertise and site visits to obtain more technical information and find an appropriate solution to the matter. Hence, they might base their ruling on scientific findings. This is particularly used in EIA (Environmental impact assessment) cases. First the Tribunal administratif judges on the merits of the case and the standing of the claimant, who needs to have a direct and certain interest. NGOs can have standing if they have been recognized of national importance. They are deemed to have a personal interest if the law concerned provides so . Procedural rules are the same as regular administrative procedure. . He will review the substantive legality of the environmental decision and rule the case accordingly. The judge will also review. He than will review the substantive legality of the environmental decision and rule the case accordingly. The legal action must be brought within 3 months of the notification of the administrative decision. In an emergency interim proceeding, the President of the Tribunal administratif might review Environment Impact Assessment scoping decisions. The applicant can bring a case before the administrative Tribunal. The claim must include the names and address of the claimant, the designation of the administrative decision, a summary of the facts and objections and the object of the claim. It must also include the list of the exhibits that the claimant will use in the trial. The Tribunal administratif can review final EIA decisions or authorizations. The applicant, ministers, communes, neighbors to the establishment who have a sufficient and direct interest and associations of national importance – as recognized by the law concerned- can bring a case before the administrative Tribunal. The claim must include the name and address of the claimant, the designation of the administrative decision, a summary of the facts and objections and the object of the claim. It must also include the list of the exhibits that the claimant will use in the trial. The Cour administrative will review the legality of the administrative decision and its validity. The Cour administrative reviews the procedural and the substantive legality of EIA decision. As they judge on the merits of the case, they will review the technical documents and the material evidence submitted. They can order expertise and visit the site. In order to have standing before national courts it is not necessary to participate in the public consultation phase of the EIA procedure, to make comments, or to participate at a hearing. The regular rules on standing before national courts apply to people who want to challenge a decision related to EIA. Injunctive relief is available in EIA procedures in the cases where there is a risk of serious damage. There are no special rules applicable to EIA procedures besides the regular national provision. Administrative Courts can review final IPPC decisions or authorizations. The applicant, ministers, communes, neighbors to the establishment who have a sufficient and direct interest and associations of national importance – as recognized by the law concerned- can bring a case before the Tribunal administratif. The claim must include the names and address of the claimant, the designation of the administrative decision, a summary of the facts and objections and the object of the claim. It must also include the list of the exhibits that the claimant will use in the trial. The Administrative court will review the legality of the administrative decision and its validity. The regular rules of administrative procedure apply as described above. The Tribunal administratif judges the procedural and the substantive legality of IPPC decision as it judges on the merits of the case. The judge will verify factual and technical criteria and all appropriate documents. He can order an expertise and order the administration to submit files and documents. He can also visit the site to collect information related to the situation. In order to have standing before national courts, it is not necessary to participate in the public consultation phase of the IPPC procedure, to make comments, or to participate at hearing. The regular rules on standing before national courts apply to people who want to challenge a decision related to IPPC. Injunctive relief is available in IPPC procedures in cases where there is a risk of serious damage. There are no special rules applicable to IPPC procedures besides the regular national provision.

V. Access to Justice against Acts or Omissions

In environmental matters, claims can be submitted to judicial court directly against private individuals or legal entities. The claimant needs to demonstrate a sufficient interest to the matter. Private individuals can bring action before judicial courts in cases of damages. They can also bring a claim to obtain the cancellation of an administrative decision that may cause damages to themselves or their property. One may claim repair of once damage, the suppression of the action that is damaging the environment or the restoration of the environment. Claims against the decisions of the Ministry or the competent administration may be brought before the Tribunal administratif. NGOs – as recognized by the law concerned- can also submit a claim against the decision of the Minsitry. Claims may be submitted by the person who is directly affected by the environmental damage, suffered a violation of his/her right or by a person who has a sufficient interest with respect to the environmental decision. The Judge will rule on the merits of the case. In environmental liability matters, the Minister who is in charge of the environment, and the Minister who is in charge of the water and their respective administrations are the competent authorities by Luxembourg in environmental liability matters. A request for action may be filed with the Ministers or the competent administration in the event of environmental damage or in the case of imminent danger. The request for action must include all the necessary information on the situation. The competent authority will then examine the request for action and make the appropriate decision. The Tribunal administratif is competent to review the administrative decision made by either the Minister or the competent administration. The legal action must be taken to court within 40 days of the notification of the administrative decision. 30 days of silence of the administration equals a decision of refusal of the administration. Only the person who has a sufficient interest can bring a claim to the administrative tribunal. Actions to enforce environmental liability are brought directly to the competent Minister or administration. NGOs who have received an accreditation from the State can also submit a claim.

VI. Other Means of Access to Justice

In Luxembourg, apart from legal means of remedies, people can file a claim against administrative decision to the Ombudsman who will act as a mediator between the parties. However, the Ombudsman will not rule the case but instead help the parties to reach an agreement. The ombudsman (also called "the Mediator") is the main organ that rules conflicts between the administration and individuals. As an impartial intermediary, the ombudsman will organize inquiries to help solve the conflict. It will provide a proposal to solve the matter that the parties will be free to follow or not. The ombudsman may also address recommendations to the administration in order to remedy to the situation and improve the administration’s functioning. He may also recommend amendments to the legal acts that served as legal base for the decision when a complaint was submitted against an administrative decision. Individuals can inform the police or the public prosecutor in case of a criminal environmental offence who might later decide to prosecute the offender. A complaint against an inappropriate administrative action can be submitted to the Ombudsman who will act as a mediator between the private party and the administration.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Only individuals who have a direct and certain interest to the matter can bring a case before Administrative courts. Their interest must be different from the general interest.

Only individuals who have a direct and certain interest to the matter can bring a case before courts. Their interest must be different from the general interest.

NGOs

NGOs have legal standing if they have received an official approval by the State of Luxembourg based on their national importance. To receive an official approval, the protection of the environment must have been included in their bylaws for 3 years.

NGOs have legal standing if they are authorized by Luxembourg based on their national importance. To receive an official approval, the protection of the environment must have been included in their bylaws for 3 years.

Other legal entities

Municipalities have legal standing to bring an action against a ministerial authorization, as they have to control the implementation of the environmental legislation on their territory. They must have a personal interest.

Public prosecutors, police agents, agents of the water and forests administration and agents of the custom administration can bring actions against offenders in environmental matters.

Ad hoc groups

N/A

N/A

Foreign NGOs

Foreign NGOs have legal standing if the law concerned provides so.

Foreign NGOs have legal standing if the law concerned provides so.

Any other

N/A

N/A

To have legal standing, the claimant must have a personal, direct, actual, certain, effective and legitimate interest. In Luxembourg, actio popularis does not existPublic prosecutors, police agents, agents of the nature and forests administration and agents of the custom administration can pursue breaches to environmental rules. These breaches can lead to actions brought before can be brought before a criminal court under environmental laws.

VIII. Legal Representation

In judicial court, representation by a legal counsel is compulsory when a procedure is written. Hence, when the value of a dispute is under €10,000, the Justice de paix, small claims’ court, is competent to judge the matter. Litigants do not need to be represented by a lawyer and litigants can appear in person. When the value of the dispute is over €10,000, the Tribunal d'arrondissement is competent and litigants must be represented by legal counsel, avocat à la Cour. Legal counsel is also compulsory before the court of appeal. A legal counsel must represent litigants before administrative tribunals and the motion must be signed by a legal counsel, avocat à la Cour. In Luxembourg, only a few lawyers are specialized in environmental law and most of them practice administrative law and planning law. The best way to find a lawyer specialized in environmental law is to contact the Bar of Luxembourg, (Barreau de Luxembourg).

IX. Evidence

The burden of proof belongs to the claimant. He must bring the evidence of the facts and damages. The different kinds of proof are documentary evidence, oral evidence, presumptions, admission and sworn evidence. The form of evidence is discretionary except in the case of a legal document where the proof needs to be written. The decision as to whether a witness should be heard is left to the judge’s discretion. The court can request evidence on its own motion if it considers that it is useful to clarify a case. For instance, the court can request experts' opinion or organize site visits. In order to get expert opinions in the procedure, parties must submit the name of an expert to the court. In administrative matters, experts should be chosen from the expert list published by the Ministry of justice. The judge will determine whether the expert witness should be heard or not. Judges can order other experts if they are not satisfied by the first one. However, judges must consider expert opinion with the highest diligence and only reject it when there are serious grounds proving it has not been prepared properly.

X. Injunctive Relief

In administrative law, the appeal or the action submitted to an administrative court against an administrative decision does not have a suspensive effect. The administrative decision is considered as legal and enforceable even if its legality is challenged. Appeals and court actions do not have a suspensive effect and administrative decisions are immediately executed. Appeals and court actions will only suspend the administrative decision in the case of an emergency or serious doubt on the legality of the decision. In environmental matters, action against an administrative decision may have a suspensive effect if it is based on serious grounds and the execution of the decision may cause serious and irreparable damages. The administrative decision can either be positive or negative. It is possible to obtain an injunctive relief to prevent an imminent damage or to stop a statutory nuisance by the way of an interim emergency procedure. The emergency interim procedure is available in the case of an emergency before the judge of interim procedures, juge des référés. He can order any measures to protect evidence, to order witness to appear or make any decision to prevent imminent damage. The procedure is not written. Parties do not need to be represented by a lawyer. The judge’s decision is only temporary and can be modified by the same judge later on or by the judge ruling on the merits. The court decision can be appealed within 15 days of the notification of the decision. The president of the court of appeal is competent to rule the case. An emergency procedure will be following as in first instance.

XI. Costs

Applicants seeking access to justice in environmental matters face bailiff fees, expert fees and lawyer fees. Bailiff fees are determined by a flat fee and governed by Grand-Ducal regulation. Expert, witness, translator and interpreter fees are also governed by a Grand-Ducal regulation. Lawyers will individually determine their own fees. Their fees may be calculated on an hourly basis or according to the complexity of the case. The Bar of Luxembourg prohibits contingency fees (pacte de quota litis) for the entire lawyer's fee. Lawyers will generally ask for retainers for their fees, costs and disbursement other than the statutory fees. In Luxembourg, no court fees are due for bringing a case to court, nor for bringing an appeal. Bailiff costs and lawyers’ fees are very high in Luxembourg. Bailiff's fees run from €100 to €300. Expert fees can run from €1500 to €6000 according to the complexity of the expertise. Lawyers' fees account for 60 to 95% of the whole procedure cost. Lawyers may charge on a time-spent basis and the hourly rate can range from €100 to €650. Witness fees run from €60 to €300. Professional's fees are subject to Luxembourg VAT at a rate of 15% (also for private clients established within the EU). The cost of an injunctive relief/interim measure may vary according to the complexity and the stake of the case. Although the injunctive relief procedure should be straightforward and inexpensive, lawyers may charge higher fees for this work than for other simple procedures. In Luxembourg, all Parties have to bear their own costs irrespective of the outcome of the case. Procedural indemnities are very rarely allowed to parties. There is no general rule according to which the losing party will have to bear the prevailing party's lawyer's fees. Other costs must usually be borne by the losing party.

XII. Financial Assistance Mechanisms

In Luxembourg, there are no specific exemptions from costs in environmental matters. There are no procedural costs apart from lawyer fees, expert fees, witness fees and bailiff fees. Legal aid is available for people who have financial difficulties. They have to fill in a request to the Bar of Luxembourg or to the Central Social Assistance Services. This financial assistance covers all fees linked to the legal procedure and the lawyer, notary, bailiff and translator's fees. Legal aid is available for civil, commercial and administrative legal cases for both plaintiffs and defendants. It is available in litigation and in extra judicial recourses. Legal aid may also be granted in the case of precautionary measures and procedures to enforce court decisions or any other authority to execute. There is no specific legal aid available in environmental matters. However, regular legal aid rules apply to environmental cases that are to be brought before either a civil or an administrative court. Legal aid is only available to individuals of insufficient means. There is no pro bono legal assistance provided by firms in Luxembourg. The legal information service provides free legal information but is not specialized in environmental law. There are no legal clinics dealing with environmental cases in Luxembourg. There are no public interest environmental law organizations or lawyers in Luxembourg.

XIII. Timeliness

In principle, administrative organs are required to deliver a decision within 3 months of the request sent by an applicant. If the administration does not provide a decision within 3 months or less if provided so by law, its silence equals a negative decision. No sanction is foreseen for disrespect of the timeframe. The administrative tribunal can verify the legality of the refusal decision and rule the cancelation of the decision based on the absence of motive. Prescription rules are set in the Civil Code. Legal actions must be brought before judicial court within 30 years from the date of the damage or from the day the victim was informed of the damage. The legal action of the claimant against his insurance shall be brought before civil courts within 5 years from the date of the damage or from the day the victim was informed of the damage. The prescription delay to bring a public action is 10 years against a crime, 5 years against a misdemeanor and 1 year against smaller offence. There is no typical duration of an environmental court case in Luxembourg. It varies according to the complexity of the case. Once the claimant has submitted his claim, the defendant has to send his brief (defense) within three month. The claimant will be able to submit his reply within 2 month and similarly for any additional replies. Time limits can be extended by the juge de la mise en état The juge de la mise en état controls that both parties comply with the procedure time frame. No deadline has been set for the court to deliver its judgment; judgment deadlines vary significantly among cases. There are no sanctions against courts delivering decisions in delay in Luxembourg.

XIV. Other Issues

In most cases, the public may challenge environmental decisions once they are made aware of the decision. Information on access to justice in environmental matters is provided to the public via several websites.

Information on access to justice in environmental matters is accessible through the government sites: Link opens in new windowhttp://www.emwelt.lu/, Link opens in new windowhttp://www.developpement-durable-infrastructures.public.lu/fr/index.html. ADR exists in the form of arbitration, mediation and conciliation but is rarely used in environmental matters in Luxembourg. Although mediation is available in environmental matters in Luxembourg, it is not frequently used.

XV. Being a Foreigner

In Luxembourg, there are no anti-discrimination clauses regarding language or country of origin found in the procedural laws. Foreigners can bring a claim before a Luxembourgish forum if they have legal standing. They can also benefit from legal aid. In Luxembourg, there are three administrative languages: French, German and Luxembourgish. All procedural documents must be written in French but hearing may be done in these three languages. Translation can be provided to parties in court and will be paid by the government. However, if a party wants to produce a witness who needs a translator, the party will have to pay for the witness as well as for the translator.

XVI. Transboundary Cases

In EIA and IPPC procedure, when the establishment may have an impact on the environment of another country, the request file will be transmitted to the country that will be able to provide its comments. It will then be informed of the final decision. The public concerned in a transboundary context includes individuals that have a direct and sufficient interest whether they are a Luxembourgish resident or not. The notion of interest as described above remains the main condition to have standing. Individuals of the affected country that have a direct interest have standing and can bring an action before a Luxembourgish court. They are eligible to legal aid in the same condition as Luxembourgish residents. They can bring an action and request for injunctive relief or interim measures under the same conditions as Luxembourgish residents. Foreign NGOs have legal standing if the law concerned provides so. Individuals can bring actions against the State of Luxembourg to obtain damages before Luxembourgish court. Foreign individuals can bring actions against Luxembourgish citizens before Luxembourgish or foreign courts even if the damage occurred outside of Luxembourg.

Related Links

Link opens in new windowhttp://www.emwelt.lu/

Link opens in new windowhttp://www.developpement-durable-infrastructures.public.lu/fr/index.html

Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Hungary

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

The Hungarian Constitution 2011 includes a number of environmentally important references. First of all, it includes everyone’s right to a healthy environment as well as an obligation to restore or pay for the restoration of any damage done to the environment (Article XXI). It also includes an obligation for the State and everyone else to protect, maintain and guard natural resources, especially soil, forests, waters, biological diversity and cultural values, all of which form a common heritage of the nation (Article P). Also sustainable development is mentioned in the Constitution as one of the aims of Hungary (Article Q). Access to justice is regulated in a general manner, guaranteeing the right of remedy against any judicial or administrative decision affecting someone’s rights or legitimate interests (Article XXVIII). Citizens, however, cannot directly invoke constitutional rights in administrative or judicial proceedings, because according to the established interpretation of the law, constitutional rights need to be specified in lower level norms in order to be used as legal basis for claims. Parties to an administrative or judicial procedure can rely directly on international agreements to which Hungary is a party, however, there is no real need for this because once Hungary is bound by an agreement, and the latter is made part of the domestic legal system by its proclamation through a Hungarian norm. There are a few examples when administrative bodies and courts apply the Aarhus Convention as part of their reasoning to a decision, however, the awareness of the public administrative and judicial bodies on the Aarhus Convention still remains quite low.

II. Judiciary

The court system in Hungary operates based on the separation of powers and is independent from the legislative as well as the executive branches of government. There are four levels of the judiciary; the hierarchy of the courts from the bottom to the top is the following: the district courts (járásbíróság) (in Budapest these are the capitol district courts (kerületi bíróság)), the county courts (megyei törvényszék) (in Budapest this is the Capitol Court (Fővárosi Törvényszék)), the regional courts (táblabíróság) and the Supreme Court (Kúria). From 1 January 2013 independent administrative and labor courts (közigazgatási és munkaügyi bíróság) have been set up in Hungary. There are 111 district courts, 20 county courts, 5 regional courts and one Supreme Court in Hungary in addition to 20 administrative and labor courts. Courts in Hungary have a constitutional duty to adjudicate legal disputes between private entities (private law, commercial law or labor law disputes) or between the state and private entities (administrative law and criminal law disputes). The judicial system has a civil law background, and mostly operates on an inquisitorial approach with an increasing influence of the contradictorial elements. Civil law disputes in the first instance are mostly decided by single-judge benches (egyesbíró) with the exception of a few cases and labor law cases where the bench includes two laymen (ülnök) besides the judge. Criminal cases are decided by single-judge or one judge + 2 laymen benches based on their gravity. Higher level courts in the second instance sit in three-judge benches or in very exceptional cases in five-judge benches. Evidence is the duty of the plaintiff in civil law and administrative law cases, while in criminal cases it is the duty of the state prosecutor (ügyész) representing the charge. There are no special courts to adjudicate in environmental matters in Hungary. Therefore environmental cases are either decided by administrative and labor courts or by regular private law courts, depending on the nature of the legal dispute. Forum shopping is possible in the Hungarian legal system with certain limitations. While the level of court to approach is set by law, in certain circumstances the plaintiff may choose at which location s/he wants to start the procedure (e.g. instead of turning to the court at the residence of the defendant, s/he turns to the court at the location where damage was suffered in damages cases). In private law matters affecting properties and payments, parties to a contract can even set the court where their legal dispute would belong, again with certain limitations. Ordinary appeals can be submitted in private law disputes against the substantive judgment, challenging both the procedural and substantive legality of the decision. Procedural orders of the court (végzés) can only be appealed with limitations. Deadline for the submission of appeals is 15 days since the delivery of the court decision. In administrative law cases, there is no appeal against the first instance judgment; however, procedural court orders can still be appealed. There is a possibility to file an extraordinary request for review (felülvizsgálati kérelem) against a final judgment of the court to the Supreme Court challenging the procedural legality of the decision. The deadline for this action is 60 days since the delivery of the final judgment. Courts in administrative law cases have only cassation rights (hatályon kívül helyezés), with a very small number of exceptions of reformatory rights (megváltoztatás). These latter cases do not affect environmental matters, therefore in environmental cases courts can only quash administrative decisions and at the same time order the administrative organs to revisit the cases.

Environmental court cases are specific in a number of ways:

  • first of all, most environmental cases are administrative law disputes, involving a private entity as plaintiff and the environmental protection agency as defendant
  • such cases are mostly decided upon the legal evaluation of the case, whether the administrative decision conforms with the prevailing regulations
  • secondly, a few private law cases are environmental in their character, e.g. compensation cases for environmental damage
  • in these cases, the decision in the case is frequently dependent upon expert opinions
  • environmental NGOs can start lawsuits against polluters asking the court to order the stopping of pollution and introduction of preventive measures
  • however, such cases are very rare and are not effective whatsoever, due to the heavy burden of proof on the applicant NGOs
  • there are only a very few number of environmental criminal cases, and almost none of them ends with an effective imprisonment judgment

Courts normally act upon the request of the parties to the legal dispute; however, in a few instances courts may act ex officio. These are the following:

  • decide upon the bearing of the costs by the parties
  • postpone the hearing of a trial
  • initiate a preliminary ruling procedure at the Court of Justice of the EU
  • initiate a procedure at the Constitutional Court for the examination of the constitutionality of a law
  • initiate a procedure at the Supreme Court for the examination of the constitutionality of a local law
  • find evidence and suspend the applicability of an administrative decision in administrative court cases

III. Access to Information Cases

Access to information is regulated in a general manner as well as specifically relating to access to environmental information. Remedies, however, against the refusal of or the wrongful/inadequate answer to a request for environmental information are not specific. Those requesting the information may initiate court proceedings before a regular private law court against the refusal or the lack of provision of information within 30 days, calculated from the delivery of the refusal or the expiry of the statutory deadline for provision of information (15 days). Courts can order the holder of information to disclose the requested data in case of a substantiated claim. There is an autonomous administrative body called National Data Protection and Freedom of Information Authority (Nemzeti Adatvédelmi és Információszabadság Hatóság) to which complaints in freedom of information matters can be submitted. The Authority in case the complaint is substantiated can call the affected organ to correct unlawfulness. In case the latter fails, the Authority can start a lawsuit against the affected organ. Refusals of request for information have to include a warning on the remedies available. Those who claim that their request for information was refused or wrongfully/inadequately answered shall follow the below procedural rules:

  • must make sure that their court claim is submitted (posted) within 30 days of the refusal, etc.
  • or have to submit a complaint to the Authority, however, no deadline is specified for such submissions
  • the court claim has to conform with the general requirements of a court claim, there are no special requirements
  • there is no obligation to be represented by an attorney before the court
  • burden of proof is reversed, i.e. the holder of information must prove that there were grounds for refusal, etc.
  • the court procedure is ex lege expedited
  • there is no court tax to be paid by the plaintiff claiming the information

Courts do not have access to the information the disclosure of which is disputed by the parties; therefore the judge has to decide upon the freedom of information claim practically not knowing the information in question. Therefore courts are dependent in such matters on the arguments provided by the parties to the case. Courts can order the disclosure of information if the applicant’s claim is well founded.

IV. Access to Justice in Public Participation

Environmental administrative procedures do not have a specific procedural regime in Hungary; they are mostly decided applying the general administrative procedures universally applying in almost all types of administrative cases. Some laws however add certain procedural steps or requirements to the general rules of administrative procedures. These laws are either sectoral environmental laws (e.g. on waste management) or horizontal environmental laws (e.g. on environmental impact assessment). There are a number of features and detailed and specific procedural rules characteristic of environmental administrative procedures. These are:

  • almost all cases are decided by the regional environmental, nature conservation and water management inspectorates (környezetvédelmi, természetvédelmi és vízügyi felügyelőség) with only a few exceptions that are decided by municipality clerks (jegyző)
  • there are only 10 regional environmental agencies in Hungary, and their territorial competence aligns not with the regular county division of the country (Hungary has 19 counties and 1 capitol) but with the major river basins and catchment areas
  • environmental agencies have their in-house experts therefore they do not involve external expertise for decision-making
  • some environmental procedures are allowed to last longer than the general 30-day deadline of regular administrative procedures, e.g. the environmental impact assessment procedure may last for 3 months
  • in a number of environmental cases, there are fees (díj) to be paid instead of the regular duties (illeték), and such fees may be quite significant in the highest profile cases (EIA and IPPC)
  • cases that affect the environment but are not decided by the environmental inspectorates fall under the competence of a number of government agencies or specific departments of the country government offices, e.g. forestry department, traffic department, mining agency, etc.
  • environmental administrative cases usually guarantee more public participation and openness than regular administrative cases which may take the form of public announcements on the case, public hearings or even legal standing to NGOs

Administrative decisions can be appealed to the superior authority with the exception of decisions made by the head of a central administrative agency or by a minister on the first instance. In such cases there is a direct remedy to the court against such decisions. Otherwise first instance administrative decisions cannot be taken to the court directly, i.e. the regular appeal has to be exhausted before going to court, except in the aforementioned cases. In environmental cases, courts review both the procedural and the substantive legality of decisions, i.e. not only whether the content of a decision is in line with the regulation but also whether the decision was made in the proper way prescribed by law. Courts also look “beyond” the administrative decisions and check if the supporting materials serving as a substantiation of a decision were done in a proper way. The most prominent example of this is EIA cases where courts do review whether the environmental impact statements were done in a scientifically verifiable manner, and involve external experts into its adjudication. Land use plans are adopted in the form of municipality laws (rendelet) and resolutions (határozat) against which there is a restricted possibility to go to court. Local laws are reviewed by the Constitutional Court for their conformity with the Constitution, by the Supreme Court for their conformity with other higher level norms and local council resolutions are reviewed by regular courts, however, these procedures can only be initiated by the county government offices (megyei kormányhivatal). Procedures of the regular court in such matters are the same as in regular administrative law cases.

EIA screening decisions can be reviewed by courts just as regular administrative decisions. Standing in such cases is provided to the project developer, the entity preparing the EIA, any individual whose rights and legitimate interests are affected (having a real estate or a registered right relating to a real estate in the impact area of the planned development) and any registered environmental NGO active in the impact area. In such cases, the regular courts deciding in administrative cases adjudicate, with no specific procedural rules, and can only quash the screening decision.

EIA scoping decisions are not made in the form of a separate substantive administrative decision; therefore there is no possibility for a court review thereof. Any concern about the correctness of issues assessed in an EIA process, or the lack of issues examined during the EIA have to be raised in an appeal against the substantive EIA decision granting or refusing an environmental permit before the development consent is issues.

Substantive EIA decisions take the form of an authorization called environmental permit (környezetvédelmi engedély). These can be appealed in the first instance and the second instance decision can be reviewed by the court (from 1 January 2013 by the administrative and labor court). Standing in such cases is provided to the project developer, the entity preparing the EIA, any individual whose rights and legitimate interests are affected (having a real estate or a registered right relating to a real estate in the impact area of the planned development) and any registered environmental NGO active in the impact area. There is no obligation but a practical need to involve external experts into the court procedure, because the judge is not able to decide in such complicated matters as the correctness of EIA findings. The courts review both the procedural and the substantive legality of the environmental permit, i.e. if the sectoral environmental laws as well as the administrative procedural law were respected during the administrative (EIA) procedure. Courts also look beyond the EIA decision and verify material and technical findings and calculations of the Environmental Impact Study.

It is not necessary to participate in the EIA proceeding in order to have legal standing before the court in EIA cases, however, it is necessary to meet the requirements of standing and to exhaust administrative remedies before filing a lawsuit. However, it is not necessary that the entity filing the lawsuit be the same who exhausted the administrative remedies; the only condition is that only second instance EIA decisions can be taken to court. Injunctive relief is possible in EIA court cases, however, there are no special rules prevailing in such procedures compared with the general rules of injunctive relief. Conditions to be fulfilled are those listed under point X below.

Substantive IPPC decisions take the form of an authorization called single environmental operation permit (egységes környezethasználati engedély). These can be appealed in the first instance and the second instance decision can be reviewed by the court. Standing in such cases is provided to the project developer, the entity preparing the IPPC documentation, any individual whose rights and legitimate interests are affected (having a real estate or a registered right relating to a real estate in the impact area of the planned development) and any registered environmental NGO active in the impact area. There is no obligation but a practical need to involve external experts into the court procedure, because the judge is not able to decide in such complicated matters as the correctness of IPPC findings. The courts review both the procedural and the substantive legality of the single environmental operation permit, i.e. if the sectoral environmental laws as well as the administrative procedural law were respected during the administrative (IPPC) procedure. Courts also look beyond the IPPC decision and verify material and technical findings and calculations of the IPPC documentation.

It is not necessary to participate in the IPPC proceeding in order to have legal standing before the court in IPPC cases, however, it is necessary to meet the requirements of standing and to exhaust administrative remedies before filing a lawsuit. However, it is not necessary that the entity filing the lawsuit be the same who exhausted the administrative remedies; the only condition is that only second instance IPPC decisions can be taken to court. Injunctive relief is possible in IPPC court cases, however, there are no special rules prevailing in such procedures compared with the general rules of injunctive relief. Conditions to be fulfilled are the same as in EIA court cases.

V. Access to Justice against Acts or Omissions

There are a number of possibilities to submit claims to court directly against private individuals or legal entities. First of all, if the defendant has done damage to the applicant, the latter can claim regular private law compensation for the loss. As a subset of this, the applicant to be potentially damaged can claim that the court order the defendant to prevent the damage. In case the defendant operates a dangerous facility (veszélyes üzem) or performs a dangerous activity (which is every activity using the environment as a resource or as a target of emission) then the burden of proof is shifted to the defendant and s/he has to prove that the damage was attributable to an unpreventable external cause (objective or strict liability). Secondly, direct claims can be formulated as nuisance claims (birtokvédelmi kereset) in case the defendant disturbs the applicant with environmental impacts, e.g. fumes, noise, other disturbances. This option is mostly used in a neighborhood context where the applicant and the defendant reside in proximity. Thirdly, personal integrity claims (személyiségvédelmi kereset) can be submitted against those who harm the integrity of an individual, the latter including health, well-being, right to life or right to home. Finally, the Environmental Protection Act and the Nature Conservation Act both contain a legal opportunity for environmental and/or nature conservation NGOs to file lawsuits against polluters or those damaging natural values. Such cases are adjudicated by regular private law courts and applicants may claim that the court order the defendant to stop pollution/damage to nature and introduce preventive measures in order to avoid pollution/damage.

Claims against state bodies can be submitted in two possible cases:

  • if the state body is the polluter, then the same rules apply to them as to regular polluters
  • if the state administrative body’s decision-making procedure was faulty (either procedurally or in terms of substance) and the fault reaches a certain threshold (extraordinary, purposeful or highly negligent) than compensation can be claimed from the state administrative body by those who suffered a damage by this

In environmental liability matters, the competent authority designated by Hungary is the regional environmental, nature conservation and water management inspectorate (környezetvédelmi, természetvédelmi és vízügyi felügyelőség). A request for environmental liability action can be submitted at these agencies using the regular ways of communication, e.g. by mail, email, phone, fax or personal appearance in office hours at the helpdesk of the agency. A request of action has to conform to the usual requirements of any such request, e.g. has to include the name and whereabouts of the initiator, the description of the matter and a definite call for action. Environmental NGOs can also submit such request upon the entitlement by the Environmental Protection Act. Court review of decisions made by the environmental agency in environmental liability matters differs according to the nature of the decision. If the decision is about environmental liability as such, the rules of court review are the same as in case of regular administrative decisions, because the environmental agency has to make a formal decision in such matters also, and liability cases do not have a special procedural regime. In case the decision of the environmental agency is in fact a response to a request for action, there is no court review available. Such decisions are rather replies to requests; the latter characterized by the Environmental Protection Act and the environmental agencies also as only public complaints. And because there is no need to make formal administrative decisions on public complaints, there is no decision that could be taken to the court. Environmental liability is principally enforced by the state administration, which uses its powers to make administrative decisions in liability issues. Private entities can enforce environmental liability with serious limitations. It is only available for environmental NGOs and such NGOs can file lawsuits against polluters or those damaging natural values. Such cases are adjudicated by regular private law courts and applicants may claim that the court order the defendant to stop pollution/damage to nature and introduce preventive measures in order to avoid pollution/damage.

VI. Other Means of Access to Justice

In case there is an environmental problem, there are other means of remedies available besides the actions of administrative organs and lawsuits initiated at courts. Some of these remedies respond to factual problems in the environment (e.g. a pollution) while others tackle suspected maladministration of environmental issues by public authorities. These are the following:

  • public prosecutor (ügyész): Public prosecutors have two types of powers with which they respond to both types of problems: pollution and maladministration. In terms of pollution, the prosecutor is entitled by the Environmental Protection Act to start a lawsuit against a polluter for stopping the activity or ordering the polluter to pay compensation; also according to the Civil Procedure Act, the public prosecutor can start a lawsuit if those who are otherwise entitled are not able to enforce their rights, except when the enforcement of rights requires personal enforcement action. In terms of maladministration, the public prosecutor within its competence of public interest protection can issue a call (felhívás) to any public authority against its final decision not adjudicated by the court that deems unlawful. The call has to be issued within one year and the addressee of the call is the superior authority of the decision-making organ. In case the call fails the prosecutor can start a lawsuit against the unlawful decision.
  • ombudsman (Alapvető Jogok Biztosa): The ombudsman can investigate the actions or omissions of public authorities and in case the latter harm or endanger basic rights of citizens can take respective measures. These measures can be: issue a recommendation to the superior authority of that investigated, initiate a process at the prosecutor, initiate a process at the National Data Protection and Freedom of Information Authority, initiate a process at the Constitutional Court, or can be an amicus curiae in administrative court cases in environmental matters.
  • deputy ombudsman for future generations (Alapvető Jogok Biztosának a jövő nemzedékek érdekeinek védelmét ellátó helyettese): Previously this position was an independent environmental ombudsman position; however, from 1 January 2012 the position is one of a deputy. Powers of the deputy ombudsman are: survey the enforcement of interests of future generations, regularly inform the ombudsman of its impressions, call the attention of the ombudsman for the threat of unlawfulness affecting a larger group of people initiate an investigation of the ombudsman, participate in such investigations and suggest a process before the Constitutional Court.
  • National Data Protection and Freedom of Information Authority (Nemzeti Adatvédelmi és Információszabadság Hatóság): The Authority receives complaints in freedom of information matters when freedom of information requests were refused unlawfully. The Authority in case the complaint is substantiated can call the affected organ refusing the request to correct unlawfulness. In case the latter fails, the Authority can start a lawsuit against the affected organ.
  • OECD National Focal Point: In case a multinational company has caused an environmental problem, there is a possibility to apply the OECD Guidelines for Multinational Enterprises that also has a number of environmental provisions. In this case, a complaint can be filed at the Hungarian National Contact Point within the Department of International and EU Affairs at the Ministry for National Economy (Nemzetgazdasági Minisztérium). The Contact Point will bring together the affected parties and try to reach an agreement, and also close the case with a statement.

Private criminal prosecution is only available in very limited types of cases and in relation to crimes that were committed against the person and not the environment. One such type of case however can have environmental relevance; it is the libel (defamation) cases. In those cases the charge is represented by private persons who are offended or harmed by the libel (defamation). Such cases may have environmental significance if initiated against environmental activists or NGOs as part of a SLAPP (Strategic Lawsuit Against Public Participation) action.

In case of maladministration (inappropriate administrative action, administrative inaction or omission) there are a number of remedies available, such as:

  • complaint to the ombudsman, see above
  • complaint to the public prosecutor, see above
  • complaint to the National Data Protection and Freedom of Information Authority, see above
  • in case of administrative silence, the superior authority calls the decision-making organ to act upon a petition submitted by a party to the case; if the inaction persists, the superior authority can appoint another authority with the same competence to make a proper decision; in case the call by the public prosecutor to end administrative silence has not produced a result, the prosecutor can initiate a case at the court

VII. Legal Standing


Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Those individuals whose rights or legitimate interests are affected by the case have legal standing. If the law regulates so, these are those individuals who own a real estate in the impact area of an activity or facility or whose rights relating to such a real estate are registered officially.

Anyone can have standing in a judicial procedure that can have rights and obligations; however, this is only the ability to have standing. Those have in fact legal standing whose rights or legitimate interests are affected. This can be proven for instance by demonstrating that the person participated in the administrative procedure that precedes the judicial phase in a case.

NGOs

Law can grant legal standing to NGOs whose activity is aimed at the protection of a fundamental right or the promotion of public interest. Environmental NGOs have legal standing in environmental administrative procedures if they operate in the impact area of an activity or facility.

NGOs have legal standing in environmental cases in two different circumstances.

a) In procedures initiated against administrative decisions, those environmental NGOs have legal standing that operate in the impact area of an activity or facility.

b) Environmental NGOs can start a lawsuit against polluters and ask the court to order the ceasing of the activity or the introduction of preventive measures by the polluter.

Other legal entities

Other legal entities or organizations with no legal personality have standing if their rights or legitimate interests are affected by the case.

Other legal entities or organizations with no legal personality have standing if their rights or legitimate interests are affected by the case.

Ad hoc groups

Ad hoc, non-registered groups have no legal standing.

Ad hoc, non-registered groups have no legal standing.

foreign NGOs

In general, since foreign NGOs are not active on the territory of Hungary, they have no legal standing in those procedures where otherwise NGOs registered in Hungary do. In special circumstances, e.g. on a reciprocal basis with other countries or in Environmental Impact Assessment cases in a transboundary context, foreign NGOs can exercise standing rights.

In general, since foreign NGOs are not active on the territory of Hungary, they have no legal standing in those procedures where otherwise NGOs registered in Hungary do. In special circumstances, e.g. on a reciprocal basis with other countries or in Environmental Impact Assessment cases in a transboundary context, foreign NGOs can exercise standing rights.

Any other

Those bodies, whose tasks are affected by the case but have not participated in the decision-making in the case, can have legal standing.

Those bodies, whose tasks are affected by the case but have not participated in the decision-making in the case, can have legal standing.

There are no significantly different procedures applicable to individuals in sectoral environmental legislation. EIA and IPPC processes are typically more open due to the fact that everyone is having legal standing who lives or resides on the impact area of the planned or operating facility/activity. However, in road construction procedures and those relating to atomic energy matters, legal standing of individuals is more restricted. As said above, NGOs have privileged legal standing in environmental administrative procedures, the latter characterized by the Supreme Court as those in which the regional environmental agency is a decision-making or a co-decision authority. Foreign individuals and NGOs have a special legal standing regime stemming for the Espoo Convention in transboundary cases. This guarantees that those affected by a planned activity in a foreign country enjoy equivalent legal standing as those affected in Hungary.

There is no real actio popularis in Hungary, i.e. a possibility that anyone can go to court against an administrative decision or the action or omission of another person without a legal interest having stated. Previously, there was an actio popularis available against any normative act at the Constitutional Court; however, since January 1, 2012 (the entry into force of the new Constitution of Hungary) this is only available in cases where the person was affected by the implementation of an unconstitutional norm.

Other institutions also have legal standing as follows:

  • ombudsman: the ombudsman can be an amicus curiae in administrative court cases in environmental matters
  • public prosecutor: the prosecutor is entitled by the Environmental Protection Act to start a lawsuit against a polluter for stopping the activity or ordering the polluter to pay compensation; also according to the Civil Procedure Act, the public prosecutor can start a lawsuit if those who are otherwise entitled are not able to enforce their rights, except when the enforcement of rights requires personal enforcement action
  • National Data Protection and Freedom of Information Authority: the Authority has standing to sue against those not providing public interest information unlawfully and refusing to act in accordance with the preceding call for action by the Authority

EIA and IPPC rules for standing of individuals/NGOs and access to justice only prevail if the procedure is an EIA or an IPPC permitting. In general, for environmental matters (e.g. air quality emission limit values, noise emission limit values, waste management permits, etc.) the general standing rules prevail, i.e. as indicated in the above matrix.

VIII. Legal Representation

The role of lawyers is to supports individuals and legal entities in the enforcement of their rights. They are part of a larger system the components of which (prosecutors, judiciary, etc.) promote rule of law. Lawyers can be attorneys who are licensed to represent clients on a contractual basis or can be lawyers employed by state bodies. Lawyers employed by the environmental state administrative bodies or the Ministry of Rural Development (de facto Ministry of Environment of Hungary), apply environmental law on a daily basis. Their number is between 50 and 100 in Hungary. Private attorneys representing individual or corporate clients have to apply environmental law once the life or operation of such entities respectively so require. Their number is not predictable. Public interest environmental lawyers represent clients against polluters for enforcing environmental liability or against state administration for preventing potentially environmentally harmful developments. Their number is between 5 and 10 in Hungary. Legal counsel is not mandatory in most of the judicial procedures, and in environmental court cases respectively. The few exceptions where legal representation is mandatory are the following:

  • appeal procedures before the regional courts
  • remedy procedures before the Supreme Court
  • any procedure before the country courts except in cases where the pecuniary value of the case does not exceed EUR 100 000, cases for compensation for maladministration, media and press cases, cases for personal integrity protection and administrative court cases

There are a number of lawyers specializing in environmental matters, however, to different extent. Only a few large law firms advertise that their portfolio includes environmental law and these are typically the largest ones in the country. Some attorneys work for corporate clients whose operation involves the implementation of environmental law on a regular basis, however, their names are not known. A few attorneys claim in the public eye that they are experts of environmental law (e.g. taking high profile environmental cases, such as the one in which the defendant is the company potentially causing the 2010 October red mud spill), but this seems to be rather a one-time action not supported by the general portfolio of such attorneys. Lastly, there are a few NGOs that specialize in environmental law, either by employing lawyers for their own environmental cases (3-4 NGOs) or by having a staff that provides legal help in public interest environmental cases (1-2 NGOs).

There are a number of databases that help people find environmental lawyers. In case of business matters, e.g. application for a permit, complaint against an environmental penalty, etc. there are a number of internet based databases that enable searching the specialization of available licensed attorneys throughout the entire country. This can be supplemented by searching thematic pages of legal websites where prominent environmental lawyers can be found. In case of public interest matters, environmental lawyers can be found either directly on the internet, or via contacting environmental NGOs. The latter are definitely aware of the availability and contact details of the public interest environmental law offices. Finally, in case of searching for legal aid, the legal aid service of the Ministry of Administration and Justice operates a website where the database of legal aid lawyers and legal aid NGOs can be searched, however, this is not aided by a function of search for specialization.

IX. Evidence

Environmental cases before the court do not fall under a different regulation than regular civil law or administrative law cases. It means that according to the procedural rules, those have to provide evidence who are interested to prove something. It is most frequently the plaintiff. In Hungary, there is a system of free evidence, i.e. no proof has a predefined strength and any form of evidence (witness, expert opinion, visiting a location, documents, objects) can prove a standpoint in a court procedure. However, in environmental cases the most convincing is an expert opinion.

In line with the rule of free evidence, no single way of proof has a predefined value, i.e. any argument can be proven by any form of evidence if appropriate. The judge is not bound by any form of evidence but has to accept the reality of findings contained in the so-called public documents (közokirat) that were issued by authorities within their sphere of competence. Court are free in conjunction with other evidence to evaluate the proof. In case an expert opinion is incomplete, unclear, or contradictory with itself or with another expert opinion, the original opinion has to be clarified by the expert but the court can also appoint a new expert. Parties to a court procedure are free to introduce new evidence, however, they are bound by a few basic rules:

  • the evidence has to be introduced in time, i.e. it cannot result in extending the procedure in an unreasonable manner
  • the court is obliged to refuse evidence if it was offered in unjustified delay or against the rules of good will litigation
  • costs of evidence has to be borne by those who initiate proof, however, later the final bearing of the cost may change using the loser pays principle

The court usually does not initiate evidence, since the role of the court is to decide a legal dispute and not to uncover the ultimate truth. However, the court has to inform upon a targeted question of the parties what part of their argumentation still lacks sufficient evidence. In addition, the court in exceptional circumstances can initiate evidence in administrative court cases, such as when notices that the administrative act is null and void, in order to substantiate that finding.

An expert has to be involved into the procedure of evidence if there is need for a special knowledge on any topic of relevance that the judge does not hold (in fact, any non-legal issue). In this case, parties may request the court to mandate a judicial expert who is registered at the Ministry of Administration and Justice on the list of experts to provide an expert opinion. In case there is no such expert available, anyone having the necessary knowledge can be mandated by the court. Parties themselves can also mandate experts and submit private expert opinions to the court, however, their weight of proof in the decision-making process of the court is somewhat weaker than the officially mandated judicial expert opinion. Recent case law of the Supreme Court however acknowledged that such private expert opinions are not simply expressions of the parties’ views but part of the pool of evidence.

Expert opinions (private and officially mandated alike) are not mandatory on the court in a way that the court may divert from them. However, their convincing power stems from their well substantiated nature and any diversion from the findings must be reasoned by the court, either by reference to proven facts, or to other expert opinions. Otherwise the court risks the annulment of the judgment by the superior court for not having conducted a proper process of evidencing.

X. Injunctive Relief

In case an administrative decision is appealed, the appeal has automatic suspensive effect and the rights granted by the decision cannot be exercised. The first instance decision-making organ, however, can declare its decision immediately enforceable if it is needed to prevent or remedy a life threatening or highly damaging situation, if national security, national defence and public order so requires, or a further law makes it possible for – inter alia – environmental, nature conservation, public health, historic monument protection or soil protection, etc. reason. A lawsuit filed against a final administrative decision has no automatic suspensive effect, however, in the motion or afterwards during the court case a request can be submitted to the court to suspend the enforceability of the disputed administrative decision. After receiving the request the court has to make a decision on the suspension within 8 days. Criteria to be taken into account during decision-making are: can the original situation be restored, will be omission of suspension cause more harm than the suspension would.

A request for injunction cannot be submitted before the main request (kereset) but only together with it or subsequently. Injunction can be granted if it is needed for preventing a directly threatening harm, the preservation of a situation giving rise to a legal dispute, the protection of rights of the claimant, and the harm caused by the measure does not exceed the advantages reached by the injunction. The court can make the injunction conditional upon a cross-undertaking in damages. The court has to decide in an expedited procedure on the injunction. The court’s decision on the injunction can be appealed.

XI. Costs

In order to initiate a court proceeding, the applicant has to pay the court tax or duty (illeték). Later, during the procedure the costs of evidence have to be pre-paid (deposited at the court) by those initiating the evidence. In case a witness needs to travel to a hearing, those who initiated his/her audition have to bear the costs and pay it to the witness. Also those filing an appeal have to pay the appellate court tax (fellebbezési illeték). During the court process, each party is responsible for paying his/her own attorney fees. Finally, after the judgment the losing party has to pay the expenses paid by the winning party.

A regular court tax against an administrative decision is EUR 100. In private law cases, the court tax depends on the so-called pecuniary value of the case, e.g. the amount of compensation claimed from the defendant. The court tax is 6% of this value but minimum EUR 50 and maximum EUR 5000. Since there is no appeal in administrative court cases, there is no court tax to be paid in such cases. In private law cases, an appeal is 8% of the value of the value of the case but minimum EUR 50 and maximum EUR 8350. If a request for extraordinary remedy is submitted, its court tax is 10% of the value of the case but minimum EUR 165 and maximum EUR 11670.

In environmental cases, other cost categories can vary between extremes according to the following, which is an estimate based on regular practice:

  • travel cost of witnesses: EUR 10 to 50
  • fee for witness for lost income/salary: EUR 50 to 100
  • costs of holding an on-site visit by the court: N/A
  • expert opinion: real estate evaluation in compensation case: EUR 200 to 1000; health report in personality protection case: EUR 200 to 800; on-site air quality or noise emission monitoring in environmental case: EUR 1000 to 4000; on-site nature conservation monitoring EUR 4000 to 8000; reading extensive materials, e.g. an Environmental Impact Statement (környezeti hatástanulmány): EUR 1000 to 2000
  • attorney fees are subject to agreement between the party and the attorney using marker prices, but may vary from EUR 40 for an hour of work to EUR 200, but can also apply a contingency fee method where 15 to 40 % from the successfully acquired amount is acceptable

A request for injunction is free of charge but the court may make the delivery of the injunction dependent on the payment of a bond or cross-undertaking in damages. This amount – especially in high profile environmental cases such as large scale infrastructure projects’ EIA cases – may amount to EUR 4000 per day.

The bearing of the costs of litigation has to be defined in the judgment. The loser party is to be obliged to pay the costs of the winning party, with certain exceptions such as:

  • in case the defendant has not given rise to the procedure and admits at the first hearing his/her duties the costs are to be borne by the applicant
  • parties acting in the procedure unsuccessfully, with undue delay or missing deadlines, or causing unnecessary costs otherwise have to bear such costs
  • in case someone files a lawsuit despite an agreement reached in a mediation procedure, can be ordered to pay regardless his/her success in the court case
  • in case of partial win, the court defines the bearing of costs proportionate to the ratio of win/lose by a party
  • in case this latter ratio is approximately even, the court may order that each party bear its own costs
  • in case there is an amicus curiae in the case and its side wins, his/her costs have to be borne by the loser, but if its side loses, only those costs have to be borne by the amicus curies that arose due to its participation in the procedure

XII. Financial Assistance Mechanisms

There are two major types of fee waivers or allowances: those that do not require a decision from the court and those that do. Within those that do not need court decision some allowanced are dependent on the case type and some are on the type of applicants.

As for free allowances defined by law for case types, there are a number of procedures that can be started without having paid a court tax but only one type has environmental relevance: cases for enforcing freedom of information. Other types of cases do not require the prior payment of court tax, only the loser in the case will have to pay the court tax subsequently. Such types of cases with potential environmental relevance are

  • compensation cases where the person who suffered damage had his/her life, integrity and health threatened
  • personality rights protection cases
  • compensation cases against public authorities
  • administrative court cases against administrative decisions

Finally, there are cases where there is no prior but only subsequent payment of the costs of the procedure (költségfeljegyzési jog). Such cases with environmental relevance are the compensation cases for damage caused by mining. Also administrative court cases where the costs of evidence initiated by the defendant administrative organ are covered by this allowance.

Certain types of applicants are freed from paying court taxes, amongst others the Hungarian State, the municipalities, NGOs (associations and foundations if they have not realized income the preceding year from economic activity), nonprofit companies and the EU and its institutions.

The court with its decision can grant four types of cost allowances:

  • permit for subsequent payment of the court tax if losing the case (illetékfeljegyzési jog): this applies if the prior payment of the court tax would mean a disproportionate burden taking into account his/her assets and incomes, especially if the court tax to be paid exceeds 25% of his/her annual per capita income before revenue taxing
  • permit for subsequent payment of the costs of the procedure (költségfeljegyzési jog)
  • full waiver from paying any costs of the procedure except the expenses of the other party in case of losing (teljes költségmentesség)
  • partial waiver from paying some costs of the procedure except the expenses of the other party in case of losing (részleges költségmentesség)

The latter 3 types of allowances have their conditions defined in details, taking into account the assets as well as the income situation of this applying for it.

Legal aid is available in environmental matters, however, there is no specific legal aid for such cases. Natural persons as well as NGOs can benefit from legal aid that has two types: legal aid outside and within a judicial procedure. Civil and criminal procedures as well as extra-judicial legal advice and assistance in preparation of documents are all eligible for legal aid, except legal assistance to the founding of an NGO.

Outside a judicial procedure a beneficiary can have legal advice, assistance in preparing documents and help in accessing case files. Within a judicial procedure a beneficiary can have an attorney for the case. Conditions of benefiting from legal aid are that the applicant’s net monthly income does not exceed the amount of the so-called minimum old-age pension (öregségi nyugdíj mindenkori legkisebb összege = nyugdíjminimum) and has no assets. NGOs qualified as public interest (közhasznú) can benefit from legal aid in judicial procedures started for the protection of public interest upon the explicit entitlement given by law (cases against polluters started upon the Environmental Protection Act are such procedures).

Legal aid primarily covers the costs of a legal aid attorney in a case or the costs of a legal advisor if legal assistance is needed but no judicial proceeding is underway. However, while the legal representation in a court case is covered fully by the legal aid, in case of legal advice outside a court case the number of working hours of a legal expert to be spent on the matter is limited by the decision of the competent legal aid authority.

Legal aid providers have to be registered at the legal aid service of the government, and make a service contract with the government agency detailing their roles and responsibilities. The following can apply for registration as legal aid providers:

  • attorneys
  • attorney offices
  • European Union lawyers working permanently in Hungary
  • NGOs dealing with (human or basic) rights protection
  • ethnic minority self-governing bodies
  • universities providing legal education

A legal aid organization (e.g. an NGO) can apply for registration in case it has an office space suitable for meeting clients and has a service contract with an attorney made for a definite term that enables the attorney to provide legal service on behalf and upon the instructions of the legal air organization. It is extremely rare that environmental cases involve legal aid. Firstly, it is due to the fact that only environmental cases in the judicial phase can involve legal aid, and many environmental cases are decided on the administrative level, not entailing a court procedure. Secondly, there are not many legal aid lawyers or legal aid organizations (NGOs, universities, etc.) that specialize in environmental law. Thirdly, this opportunity is not widely known for the civil sector either.

There is a possibility to apply for pro bono legal assistance provided by law firms because more and more such firms are involved in these kinds of activities, in Hungary mostly upon the initiative of PILNET (formerly known as PILI). However, these law firms do not offer specialized environmental legal advice.

There are no environmental legal clinics in Hungary, only a Freedom of Information Legal Clinic network operated and coordinated by Open Society Justice Initiative. In this network, there are a few NGOs that offer clinical legal education for environmental or related freedom of information matters, such as EMLA (environmental) and Energia Klub (energy related environmental). Currently they are not available for the public but serve only students of the ELTE University Faculty of Law in order to enrich their extracurricular activities.

There are a few public interest environmental law organizations in Hungary, most notably EMLA and Reflex, while public interest environmental lawyers work for NGOs such as LMCS or Nimfea. These organizations and experts are available for the public and they apply their own principles in providing free of low-cost legal aid in environmental matters. Their contact details are online as well as accessible at environmental protection NGOs.

XIII.Timeliness

Administrative organs are obliged by the Administrative Procedure Act to deliver a decision within 30 days from receiving a request. In cases where the decision is needed to prevent a life threatening or a highly damaging situation, the decision has to be made in an expedited procedure. The head of the administrative authority may prolong the procedure before the end of the first 30-day period with an additional 30 days. If the authority fails to respect the time limits, it has to pay back the procedural fee to the applicant, and in case this delay is twice as long as the statutory deadline for decision-making, the payment to the applicant is double the procedural fee.

Courts must examine submitted documents within 30 days and make appropriate measures, e.g. order the applicant to complement its submissions. This applies also to motions starting lawsuits. Within the same 30 days also the date of the first hearing has to be set, informing the parties at least 15 days prior to the date. The first hearing has to be held within 4 months from the arrival of the motion to the court but within 9 months the latest. Subsequent hearings should be held within 4 months from the preceding trial. For declarations to be made by the parties, the court can set deadlines that are usually 15 days. Courts have to prepare a minutes of a court hearing (jegyzőkönyv) immediately, or if the hearing was recorded within 8 days from the day of hearing. The printed minutes have to be mailed to parties within 15 days. Parties may jointly ask the court at least 8 days before a hearing that the date of the hearing be postponed. If parties agree to halt the procedure, the case is terminated after 6 months unless any of the parties initiates the restart of the procedure at the court (szünetelés). Appeals against first instance judgments can be filed within 15 days from the delivery of the judgment to the superior court, while a request for extraordinary remedy (felülvizsgálati kérelem) can be filed within 60 days from the delivery of the final judgment to the Supreme Court (Kúria).

A typical duration of an environmental court case is the following:

  • administrative court cases against administrative decisions regarding smaller scale projects: 1,5 to 2 years
  • administrative court cases against administrative decisions regarding larger scale projects: 2 to 5 years
  • private law cases against damage or harm done to the environment or nature: 2 to 3 years on the first instance, 1 to 2 years on the second instance, altogether 3 to 5 years
  • private law cases for compensation of environmental harm: 1,5 to 2 years on the first instance, 1 to 2 years on the second instance, altogether 2,5 to 4 years

There is no statutory deadline for courts to deliver a judgment. Consequently, there are no sanctions against courts delivering a judgment in a non-timely manner. However, within the administration of the judicial branch, the National Judiciary Bureau (Országos Bírósági Hivatal) as well as all the heads of the courts are responsible for monitoring the keeping of procedural deadlines by the courts.

XIV. Other Issues

Environmental decisions are challenged in different stages of the procedure, depending upon the nature of person involved in the case. In case of private individuals, their majority reacts after a change in the environment happened, i.e. they want to be involved into procedures after a decision is made and developments on the ground visibly start to occur. On the contrary, environmental NGOs who have independent staff to monitor development decision-making usually get involved already in the permitting phase of cases, before a final decision is made in a matter. There are contrary examples, however, especially in EIA and IPPC procedures where – due to the stronger openness rules – also private individuals participate in the procedure in due time.

The public is not provided either comprehensible or easy-to-understand information about access to environmental justice in Hungary. Overall, there is low awareness of access to justice in environmental matters or in general in the population of Hungary. This is partly attributable to the very low level of capacity building programs managed by the government and to the relatively low priority attached to such matters in the government policy being continuous in this matter for decades already. There are sporadic information and little information on the Aarhus Convention on government websites and this is not augmented by practical information for the public to implement real access to justice.

ADR is existent in Hungary for solving conflicts of parties regarding their private law matters in the form of mediation. Mediation in Hungary follows the regular standard protocol of mediation as internationally adopted. Experts and third parties can participate in the mediation procedure upon the request or with the consent of the parties involved into mediation. Mediation ends with the signing of an agreement, if the parties or a party requests its termination or within 4 months from the start of procedure. Mediation is not mandatory before starting a lawsuit, however, it has to be mentioned in the action starting a court case filed at the court. From July 2012 there is a special opportunity to do in-court mediation that is managed by a court clerk (bírósági titkár) upon a joint request of the parties. There is no legal possibility to have mediation between private parties and administrative authorities, therefore in environmental administrative cases mediation is not applied. Nevertheless, between private parties (including NGOs) mediation is available in environmental matters. However, it is hardly used, due perhaps to the lack of awareness of this legal opportunity or the lack of trust in alternative dispute resolution methods.

XV. Being a Foreigner

The Constitution (Alaptörvény) of Hungary having entered into force on 1 January 2012 in its chapter Freedom and Responsibility contains Article XV.2 that states that Hungary ensures the fundamental rights to everyone without any discrimination as to – amongst others – language, nationality or other status. In the Administrative Procedure Act of Hungary (Ket.), Article 2.1 states that parties in the administrative procedure are entitled to equal treatment and their cases have to be decided without unreasonable differentiation or bias. Interestingly, we cannot find any such provision in the Civil Procedure Act (Pp.), however, the courts are supposed to decide in an unbiased manner. Although the language of the court procedure is Hungarian, no one can suffer any harm from not knowing the language, states the Civil Procedure Act. Anyone can use his or her own language in the court procedure according to international agreements. If the exercise of these rights so requires, the court must involve and interpreter into the process. If the implementation of such rights guaranteed by international agreements necessitates the involvement of an interpreter, its costs are prepaid and borne by the State. Otherwise the costs of interpreter belong to the costs of the cases to be paid by the loser with the aforementioned exceptions.

VI. Transboundary Cases

Administrative cases that involve environmental issues in another country are regulated by the EIA Decree in line with the Espoo Convention. The Convention distinguishes between two types of procedures: when a country is an affected country or when it is a country of origin (of the environmental impact). Cases when Hungary is a country of origin have relevance here. In such cases, the regional Environmental Protection Agency informs the applicant and the Ministry of Environment, while the latter informs the Ministry of Environment of the affected country. The rest of the procedure follows a process defined by the two countries, however, there are some mandatory elements to this procedure:

  • if the affected country requests, the international environmental impact assessment procedure has
  • the applicant has to prepare in the language of the affected country or in English the international chapter and the non-technical summary of the environmental impact statement
  • consultations start between the two countries
  • comments can be submitted by the affected country as well as its pubic
  • the decision of the environmental agency has to be communicated with the affected country

The public concerned has no specific notion applied in transboundary cases, and even the Environmental Protection Act Article 4.21 says only that those persons and organizations are the affected ones who live and act on the impact area. Based on this, as well as on the legal standing rules of the Administrative Procedure Act, we may conclude that also foreign public has legal standing according to the following:

  • foreign individuals can be equally affected in any type of case just like Hungarian individuals, there is no difference between parties as to residence or domicile
  • foreign NGOs (NGOs registered abroad) may have legal standing only in cases where international agreements so regulate, and in the environmental field it is the Espoo Convention; this convention guarantees that the country of origin has to provide an opportunity to the public in the areas likely to be affected to participate in procedures equivalent to that provided to the public of the country of origin; in other words, if an NGO has legal standing in Hungary, then a foreign NGO also has legal standing if its area of activity covers the affected area on the other, non-Hungarian side of the border

Once in the court procedure, a foreign individual or NGO has the same procedural rights and a local citizen or locally registered NGO, with only very few exceptions. E.g. free-of-charge litigation can only be awarded to Hungarian citizens, EU citizens or citizens of third countries staying lawfully in the EU. This for instance deprives citizens of Serbia and Ukraine of this opportunity, and the ones of Croatia until July 2013. Foreign applicants may be obliged by the court upon the request of the defendant to pay a deposit to cover the potential costs of the case for the case of losing it.

In administrative court cases (i.e. cases in which the procedural or substantive legality of an administrative decision is challenged before a court) the Hungarian courts have exclusive jurisdiction. In civil law cases, normally defendants are challenged before Hungarian courts according to the territorial jurisdictional rules of the Civil Procedure Act. Nevertheless, according to Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in tort cases a person causing damage can be sued not only in the country of his or her domicile if the damage (including environmental damage) occurs or may occur in another Member State of the EU which may typically happen in transboundary environmental damage cases.

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Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Malta

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

The word environment does not appear anywhere in the Constitution of Malta and there are few provisions that may be relevant and applicable for environmental protection and access to justice in environmental matters. These are:

  • Article 9: State shall safeguard the landscape and the historical and artistic patrimony of the nation.
  • Article 33: The right to life of every citizen is guaranteed as a fundamental human right. The wording of the provision is wide and can be interpreted to include the right to a healthy environment as an aspect of the right to life. A case asking for such an interpretation however has never arisen before the Maltese courts.
  • Article 46 refers to the right any citizen has to initiate a constitutional case against the government before the law courts alleging that the latter is breaching human rights either with respect to him or any other person.

As stated in the paragraphs above, the cited provision are wide enough and the Maltese judges in a similar situation would probably look into similar case law in other European States and the European Court of Human Rights which accept the interpretation that the right to life includes the right to a healthy environment.

II. Judiciary

Malta’s legal system is based on the continental civil law model. Maltese law owes its roots to Roman law, whilst public law has been greatly influenced by British law. The only sources of Maltese law are the Constitution, the Codes, the Acts of Parliament and subsidiary legislation that may be published under such Acts. The most Superior Court in Malta is the Constitutional Court which hears and determines specific disputes including the transgression of human rights. All cases relating to the transgression of human rights are heard before the First Hall of the Civil Courts and the Constitutional Court may then act as a court of last instance. There is a distinction between the criminal courts and the civil courts and both Courts are split into inferior and superior courts. The Judiciary is composed of two offices:

  • Judges who preside over the Superior Courts, as well as the courts of second instance (court of appeal) and the magistrates who preside over the inferior courts and conduct criminal inquiries. Inferior courts are less formal than superior courts and deal with civil disputes and criminal offences of a lesser degree.
  • The criminal offense or civil action is brought before the relevant Courts of First Instance. Both parties in the dispute may appeal from the decision of the Courts of First Instance.

An individual may further appeal from the Court of Appeal’s decision only under two circumstances:

  • (a) An EU citizen may allege the infringement of EU law in Malta before the Court of Justice of the EU.
  • (b) Only in human rights cases, an individual may take his case before the European Court of Human Rights if s/he is not satisfied by the decision of the Constitutional Court.

There are no specialized judicial bodies on environment matters. There are administrative bodies. Forum shopping is not really a possibility because Maltese laws clearly specify where judicial applications should be filed and concurrent jurisdiction does not arise. The only exception is the government that has the right to choose whether the civil dispute in which it is a Party should be dealt with by the First Hall Civil Court (Superior Court) or the Court of Magistrates Civil Jurisdiction (Inferior Courts). The First Hall of the Civil Courts also has jurisdiction over disputes that cannot be quantified. It is very rare that an action for civil damages in environmental disputes is made before the inferior civil courts because of the amount limit, and also because very often the Government is a party in the dispute. The main difference between the superior and the inferior civil courts is a formal one, especially in procedural matters.

One judge from the inferior civil courts presides over the Civil Court of Appeal while three judges from the First Hall preside over the Civil Court of Appeal. There is an equal opportunity for both parties to appeal from the decisions given in the inferior and superior civil Courts of First Instance. The appeal may be made against the sentence as a whole or against part of it. The appellant may launch an appeal against the respondent. The respondent may then reply in writing or launch a counter appeal on a different part of the judgment. When both parties wish to appeal from the decision of the Court of First Instance, one party appeals first, then the other makes a counter appeal on a different part of the judgment. The Court of Appeal can confirm the judgment in full or in part, or it can revoke the original judgment altogether. The decision of the Court of Appeal is final. The procedure relating to the appeal from the superior civil courts is again more formal than the one relating to an appeal from the inferior civil courts. There are also a number of tribunals which have an adjudication function but which are not part of the law courts. These have limited and specific jurisdiction. The Constitutional Court acts as a court of appeal for all cases on transgression of human rights that are first considered by the First Hall of the Civil Courts in its constitutional capacity. If there is new evidence or serious flaws in the judicial process one can lodge a plea to have a retrial in criminal law and civil law. The grounds upon which this plea may be accepted are specified by law.

Title IV of the Code of Organization and Civil procedure provides for a new trial of a case decided by a judgment in the Civil Court where:

a) the judgment was obtained by fraud on the part of any of the parties;

b) the sworn application was not served on the party cast, and such party shall not have appeared at the judicial proceedings;

c) any of the parties to the suit was under legal disability to sue or be sued, provided no plea had been raised and determined;

d) the judgment was delivered by a court having no jurisdiction, provided no plea there had been raised and determined;

e) the judgment contains a wrong application of the law;

f) judgment was given on any matter not included in the demand;

g) the judgment was given in excess of the demand;

h) the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata and provided no plea of res judicata had been raised and determined;

i) where the judgment contains contradictory dispositions;

j) where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact;

k) where, after the judgment, some conclusive document was obtained and the party producing it had no knowledge of it, or which, he could not have produced, before the judgment in a manner allowed by law;

l) where the judgment was the effect of an error resulting from the proceedings or documents of the cause.

In the superior and inferior courts, the demand for a new trial shall be made, before a court of first instance, by means of a sworn application, and before a court of second instance, by means of an application; the application shall be accompanied by security for costs. The time for demanding a new trial is three months from the date of the judgment complained of or as applicable. A new trial may in no case be demanded after the lapse of five years from which the first judgment was given. The Court of Appeal has reformatory rights. It can amend and replace the decision of the Court of First Instance. There are no particular specificities for judicial procedures in environmental matters. When an environmental law is breached it gives rise to a civil action for damages either instituted by the public authorities or by third parties or both. If the damages claimed are less than 1000 Euros the claim is brought before the inferior civil courts. The plaintiff files a writ of summons which describes the facts of the dispute and then asks the court to declare the defendant responsible and assess the damages incurred. If damages are higher, the claim is to be made before the First Hall of the Civil Courts. In this case the summons must be accompanied by the declaration on oath and the list of witnesses the plaintiff wishes to summon. In the case of transgression of all environmental laws the offender is charged by the Police before the criminal courts. The Appeal procedures before the civil courts and the criminal courts for environmental matters are not any different from those applied in general. The court may adopt its own technical experts and carry out any inquiry as it may deem appropriate. Witness lists are brought by the Parties but the court is free to appoint its own experts to give information.

III. Access to Information Cases

Legal Notice 116/2005 The Freedom of Access to Information on the Environment Regulations, 2005 transposes Directive 2003/4/EC on public access to environmental information. According to its provisions, the applicant for environmental information may be a natural or a legal person. The applicant may request the competent authority, the Malta Environment and Planning Authority (MEPA), to provide him with any environmental information held by or for it or any other public authority, without having to state a direct interest as to why he requests the information. He may do so, in writing or by electronic mail. MEPA shall, if it has the requested environmental information in hand, provide the information to the applicant within thirty days from receipt of the request. The period shall be extended by a further thirty days if the volume and the complexity of the information cannot be provided in thirty days. MEPA shall notify the applicant of such an extension and explain why. MEPA may refuse to provide the requested environmental information if the information requested:

  • Is manifestly unreasonable, formulated in too general a manner or concerns material in the course of completion or unfinished documents or data. In the latter case MEPA shall state the name of the authority preparing the material and the estimated time needed for completion.
  • Concerns internal communications, taking into account the public interest served by disclosure.
  • Would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law, international relations, public security or national defense, the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature,
  • Relates to the confidentiality because it affects commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest.
  • Affects the public interest in maintaining statistical confidentiality and tax secrecy, intellectual property rights, the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, if such confidentiality is provided for by national or Community law and unless a person has consented to the release of the information which is given on a voluntary basis.
  • May jeopardize the protection of the environment (e.g. the location of rare species).

The Regulations establish that the grounds for refusal shall be interpreted in a:

  • restrictive way,
  • on a case by case basis.

The public interest served by disclosure shall be weighed against the interest served by the refusal. The competent authority may not refuse the disclosure of environmental information where the request relates to information on emissions into the environment. According to Article 41 (1) (a) of the Environment and Development Planning Act (EDPA) if a request for environmental information is refused or wrongfully/inadequately answered by MEPA, a person may appeal before the Environment and Planning Review Tribunal. The time frame to appeal MEPA’s refusal to answer a request for environmental information, or its answering inadequately or wrongly, is 30 days from the date when it communicates its decision to the applicant. The first hearing before the Tribunal shall be held within three months from the receipt of the appeal by the applicant. The decision of the Tribunal shall be final and binding if it is supported by the opinion of two of its three members. Decisions of the Tribunal are always public. An appeal from the Tribunal’s decision may only be made on a point of law before the Court of Appeal (Inferior Civil Jurisdiction) within 20 days from the decision of the Tribunal. Nothing in the Regulations requires MEPA to include information on remedies available but the notification may include a reference. The courts may listen to evidence behind closed doors in order to have access to information that has not been disclosed. The courts would have the right to order MEPA or any authority to disclose information if justified by law on the basis of its right of review regarding any act or omission by a public authority.

IV. Access to Justice in Public Participation

MEPA is Malta’s environment agency and regulator on environment and development planning issues. MEPA has the following bodies that decide on administrative procedures in environmental matters:

(a)The MEPA board is made up of no less than 13 and no more than 15 members, one of whom shall be the Chair. The role of the MEPA Board is to decide on any application relating to:

  • activities/developments of national or strategic significance,
  • national security or other national interests or which could affect the interests of other States/governments/applications in respect to development subject to an EIA,
  • Reconsiderations when the decision for reconsideration was taken by MEPA itself.

(b) MEPA’s executive is made up of four directorates on:

  • environment protection,
  • development planning,
  • corporate services and enforcement.

(c) The directorates are subject to the overall supervision and control of the Authority and of the Chief Executive officer. The executive is responsible (amongst other things) for granting licenses and permits required under various laws on environmental and development planning.

(d)The Environment and Planning Commission (EPC) may have various divisions that deal with different types of applications (e.g. outside development zones, urban conservation areas etc.). The EPC shall always have 5 members per, sitting including the Chair. The MEPA executive body shall delegate to the EPC the role to determine any application for a permit EXCEPT for those which the MEPA board has to decide upon.

(e) The Environment and Development Planning Tribunal provides for appeals against administrative decisions taken by the administrative bodies listed above. This administrative adjudicating body is set up under the EDPA. It consists of 3 members. The Chair is a person well versed in environmental and development planning and the other members are a lawyer and an architect. There are panels with different people who rotate to sit in the tribunal as Chair or Members according to their expertise depending on the case before them. The secretary to the Tribunal is responsible for choosing the members according to the case.

Administrative remedies have to be exhausted before taking a case to court. The Environment and Planning Review Tribunal must hear appeals first and an appeal from the decision of the tribunal can only be taken to court on a point of law. Otherwise, the decision of the Tribunal is final. Land use plans, zoning plans, and other normative types of environmentally relevant decisions defining the use of space may be reviewed by courts by virtue of:

(a)   Either their right to review decisions by public bodies as discussed under V below and/or

(b)   If an applicant appeals from the decision of the Environment and Planning Review Tribunal on a point of law.

This situation applies for appeals from MEPA on:

(a)   Decisions of the authority relating to development control

(b)   The enforcement of such control

(c)    Decisions made by the authority relating to environmental protection including environmental assessments, IPPC, environment information and remedying of environmental damage.

The EIA and the IPPC process would only be subject to the courts’ review for procedural and substantive legality when the courts can intervene as explained above. It needs to be pointed out however that whilst the IPPC in itself constitutes a permit the EIA does not. Even if the EIA is approved it is a preparatory process that is required by law and MEPA would still have to assess the EIA submitted and take it into consideration when deciding whether to grant a permit or not. Standing before the national courts depends upon whether the process referred to above is satisfied. The courts may review the administrative decisions in cases of a MEPA permit only after the plaintiff has exhausted the administrative remedies and applied before the Tribunal referred to above. In all other cases if there has been an administrative act or omission that is subject to review in accordance with Part V of this report. The courts determine whether the plaintiff would have participated as an objector or an interested stakeholder. Although, environmental NGOs constituted by law to have environmental protection within their remit should, according to the IPPC and EIA regulations have legal standing.

There is no injunctive relief in the EIA process because the EIA is not a permit in itself. One cannot challenge an EIA process before the courts unless one can allege that in some way the process has been carried out contrary to law and may institute an action for access to justice against acts or omissions. This situation has never arisen. There are no special rules applicable to EIA procedures. There is no reference to injunctive relief in IPPC legislation. The same procedure as described for EIA may apply. However since the IPPC is a permit, the MEPA may impose a financial guarantee which it would forfeit if the permit is not abided by and it has the power to ask the operator to take all the necessary measures in cases of emergency so it could even issue an enforcement notice to close the plant.

V. Access to Justice against Acts or Omissions

The Code of Organization and Civil Procedure (COCP), namely Article 469A, provides for the judicial review of any act by the public sector only. The courts of justice of civil jurisdiction may investigate the validity of an administrative act by a public authority and declare it null and void, invalid, or without effect where the administrative Act is in violation of the Constitution and when the administrative Act is further beyond the scope of the public authority’s power because of the following reasons:

(a)   Such act emanates from a public authority that is not authorized to perform it;

(b)   A public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative Act or in its prior deliberations thereon; or

(c)    When the administrative Act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or when the administrative Act is otherwise contrary to law.

The term ‘Administrative Act’ includes the issuing by a public authority of:

  • any order, license, permit, warrant, decision, or a refusal to any demand of a claimant, but it does not include any measure intended for internal organization or administration within the said authority.
  • ‘public authority’ is here defined as the Government of Malta, including its Ministries and departments, local authorities, and any corporate body established by law.

Under the COCP Article 469A, an action to impugn an administrative Act shall be:

  • Filed within a period of six months from the date when the ‘interested person’ becomes aware or could have become aware of such an administrative Act, whichever is the earlier.
  • The provisions of this article shall not apply where the mode of contestation or of obtaining redress is provided for in any other law.
  • The plaintiff can request payment of damages based on the alleged responsibility of the public authority, in tort or quasi tort, arising out of the administrative Act.
  • The court shall not award the said damages where, notwithstanding the annulment of the administrative Act, the public authority has not acted in bad faith, or unreasonably, or where the thing requested by the plaintiff could have lawfully and reasonably been refused under any other power.

The COCP therefore provides a general right to access to justice to any ‘interested party’ to ask the courts to review the validity of the administrative Act or the breach of any law.

  • A person may appeal from the decision of the court when it reviews the validity of an administrative Act under Article 469A of the COCP.
  • The length of time for lodging an appeal is the same as for other appeals before the Civil Courts. In the case of appeals from the Superior Courts before the Court of Appeal, the time is twenty days, which shall commence the date on which the judgment was delivered.
  • An appeal is entered by means of a note to be filed in the registry of the court by which the judgment appealed from was delivered.
  • An appeal may be entered for either the whole or only parts of the judgment and both the plaintiff and the defendant may appeal.

LN 126/2008 on the Prevention and Remedying of Environmental Damage Regulations, 2008, establishes a framework of environmental liability. The Competent Authority and the regulator is MEPA. These Regulations shall only apply to environmental damage or to an imminent threat of such damage, caused by pollution of a diffuse character, where it is possible to establish a causal link between the damage and the activities of individual operators. MEPA shall be entitled to initiate cost recovery proceedings against the operator or a third party who has caused the damage or the imminent threat of damage, in relation to any measures taken under these Regulations within five years from the date on which those measures have been completed, or the liable operator or third party has been identified, whichever is later. LN 126/2008 defines ‘costs’ as costs which are justified by the need to ensure the proper and effective implementation of these Regulations, including:

  • the costs of assessing environmental damage,
  • an imminent threat of such damage,
  • alternatives for action,
  • the administrative, legal, and enforcement costs,
  • the costs of data collection, and other general costs, monitoring and supervision costs.

‘Damage’ is defined as a measurable adverse change in a natural resource or measurable impairment of a natural resource service, which may occur directly or indirectly. MEPA shall:

  • establish which operator has caused the damage or the imminent threat of damage,
  • assess the significance of the damage, and determine which remedial measures should be taken with reference to Schedule II.

MEPA may require the relevant operator to carry out his own assessment and to supply any information and data as necessary. MEPA may empower or require third parties to carry out the necessary preventive or remedial measures. Any decision taken pursuant to these Regulations which imposes preventive or remedial measures shall state the exact grounds on which it is based. Such decision shall be notified forthwith to the operator concerned, who shall at the same time be informed of the remedies available to him under the relevant laws concerned and of the time-limits to which such remedies are subject. Natural or legal persons affected, or likely to be affected, by environmental damages, or having a sufficient interest in environmental decision-making relating to the damage, shall be entitled to submit to the Competent Authority any observations relating to instances of environmental damage of which they are aware. They shall be entitled to request MEPA to take action under these Regulations.

  • A person shall be deemed to have a ‘sufficient interest’ if he is a registered objector according to the EDPA or if he qualifies as a consulted or an identified stakeholder under the provisions of the Environmental Impact Assessment Regulations, 2007.
  • The interest of any non-governmental organization promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of qualifying as a person with ‘sufficient interest’.
  • The request for action shall be accompanied by the relevant information and data supporting the observations submitted, in relation to the environmental damage in question.

Where the request for action and the accompanying observations show in a plausible manner that environmental damage exists, MEPA shall consider any such observations and requests for action. In such circumstances MEPA shall give the relevant operator an opportunity to make his views known, with respect to the request for action and the accompanying observations. MEPA shall, as soon as possible and in accordance with the relevant provisions of national law, inform the persons with a sufficient interest that submitted observations to the Authority, of its decision to accede to, or refuse the request for action and shall provide the reasons for it. It is MEPA then who proceeds with taking the case to the courts alleging that an operator should be found guilty of environmental liability. To date MEPA has not had the opportunity to initiate such an action before the Maltese courts.

VI. Other Means of Access to Justice

The general public may resort to the Ombudsman under the Ombudsman Act, to seek his opinion as to whether a Ministry or any other public entity exercised its duties in a fair and equitable manner. The decision of the Ombudsman is not binding. There is also an auditor for MEPA within the Ombudsman’s office which is specifically responsible for MEPA related issues. Any individual may have recourse to the Users’ Committee, where he may query practices undertaken by MEPA when exercising its powers and ask the Chairman of the Users’ Committee to investigate it and pronounce his views on the matter. The decisions of the Chairman of the Users’ Committee are not binding. Private criminal prosecution is not available in environmental matters.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

X

Must prove direct interest except in breach of human rights under the Constitution. Either is a registered objector for a development planning permit or a consulted or an identified stakeholder under the provisions of the Environmental Impact Assessment Regulations, 2007.

NGOs

X

But they must be register as objectors.

Only Exists under EIA and IPPC and right of access to information with respect to the right to review a decision by the authority. In environmental liability EIA IPPC non-governmental organization promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of qualifying as a person with ‘sufficient interest’. When contesting development planning permits they may resort to court only after exhausting administrative remedies and only on a point of law. In a recent case the Court still interpreted their sufficient interest to require that they should have registered themselves as objectors.

Other legal entities

X

But they must register as objectors.

Only if they have a remit that is applicable to the case.

Ad hoc groups

Only if in their personal capacity and if they register as objectors.

Only if in their personal capacity and if there is a direct interest

foreign NGOs

Only if they are NGO s registered in the EU.

Apart from the above re NGOs the foreign NGOs have to be registered in the EU.

Any other

In a recent case the Court dismissed a plea made by an NGO for a claim against a private individual on grounds of lack of standing when the NGO claimed that this individual had breached the conditions of permit for development (land use) give to it by MEPA. The standing which NGOS have is strictly within the parameters provided by the law for access to environmental information rights EIAs and IPPC law. The NGO in question did not make a claim against the authority but against a private individual. The procedural rules are the same for all those sectors where the individual may object to an environmental or development planning permit. If a permit is issued any person may contest it as an objector and if the permit is awarded only the objectors may make a claim before the Environment and Development Planning Tribunal to appeal. Before the courts, an appeal on the same issue can only be made on a point of law and after the administrative remedy is exhausted. It is not likely that the courts would accept it because the courts would only accept access to justice by any individual if it is brought under the procedure described under 5 above. The only case of actio popularis that can be made by any person on behalf of another is for the breach of fundamental human rights listed in Constitution. Other state institutions or bodies (e.g. ombudspersons, public prosecutors) have no legal standing. Unless it is specifically stated in the applicable law as in the case of access to environmental information, EIA and IPPC legislation there is no right of access to justice for individuals that do not have a direct interest. Administrative remedies before the Environment and Development Planning Tribunal must first be exhausted and then an appeal can only be made on a point of law.

VIII. Legal Representation

Legal Counsel is obligatory. There is no different procedure for environmental cases. Legal Counsel follows usual procedures before civil and criminal courts. There is no specific system, usually any lawyer may take up an environmental case. Specialization in environmental law is not possible as Malta’s economies of scale do not permit lawyers and legal firms to take up only environmental law cases, which are very rare. There is more involvement in the legal profession with development planning permits rather than environmental permits. The only group of Maltese lawyers that specialize specifically in environmental law are found in academia, namely within the department of environmental law and resources law at the Faculty of Laws. The department has at times given its advice even pro bono similarly it may be the case that lawyers assist environmental NGOs pro bono but there is no official legal entity/NGO that provides free legal advice on environmental matters.

IX. Evidence

The presentation of evidence in judicial proceedings for environmental matters is the same as in the general judicial system. Expert opinion is not binding on Judges in the sense that although they may call for experts they have the discretion to decide independently thereof. The Maltese legal system gives absolute discretion to judges; even previous case law is not binding although judges would look into it. Although judicial decisions have an executive title they are not ‘law’.

X. Injunctive Relief

The court may order injunctive relief based on its discretion. There are no conditions in which administrative decisions can be immediately executed, irrespective of an appeal or a court action. The court can accept a warrant of prohibitory injunction in judicial proceedings only. The Code of Organization and Civil Procedure in Article 873 provides for a warrant of prohibitory injunction which is used to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant. The court shall not issue such warrant unless it is satisfied that it is necessary to preserve any rights of the person suing out the warrant, and that prima facie such person appears to possess such rights. The application shall be served on the party against whom it is issued. That party shall file a reply within ten days. The court may, in urgent cases, reduce the said period in this subarticle. If the other Party does not oppose, the court may accede to the demand. The court may initially issue a provisional warrant for under such terms and conditions as it may deem necessary according to the case, and subsequently decide about the matter in a definitive manner. The court shall, after appointing the application for hearing, decide on its merits after receiving any evidence it deems fit, within the shortest time possible but not any later than one month from the day when the warrant had been filed and confirmed on oath and the parties have been duly notified. There is an appeal against the decision of the court regarding injunction.

XI. Costs

There are no specific cost categories an applicant would face for access to justice in environmental matters only. The court fees may range between 100 to 300 Euros, appeal itself costs around 170 Euros, and every notification costs 7 Euros. A rough estimate of expert fees would include a rate of 70 to 100 Euros for an hour of work. The warrant of prohibitory injunction costs 47 Euros and 7 Euros every notification. A deposit or a guarantee may be set by the court. There is absolute application of the loser pays principle although the person who is held liable usually has to pay for expenses incurred in the lawsuit by the other party. The court may however choose to apportion expenses.

XII. Financial Assistance Mechanisms

The courts cannot provide exemptions from procedural costs, duties, filing fees, taxation of costs, etc. in environmental matters. There are no other financial mechanisms available to provide financial assistance to applicants. There is no legal aid for civil law suits only for criminal law suits. So there is no legal aid available in environmental matters unless the person has committed a crime. Officially there is no pro bono legal assistance provided by law firms but NGOs mat have such assistance if legal firms opt to work for them gratuitously. There are no legal clinics dealing with environmental cases. There are no public interest environmental law organizations or lawyers in Malta.

XIII. Timeliness

The time limit to deliver a decision by an administrative organ is three months but it can be extended. There are no sanctions against administrative organs delivering decisions in delay. There are no time limits set by law for judicial procedures in environmental matters, both for the court and for the parties. The courts are not bound to decide by a time limit. The Maltese courts at times take long to decide a case: sometimes five, ten and even twenty years. There is no trend on what the typical duration of an environmental court case in different types of procedures is and there is no indication when the decision will be made. There is no deadline set for the court to deliver its judgment. There are no sanctions against courts delivering decisions in delay.

XIV. Other Issues

The public usually challenges decisions at the public consultation phase but may also challenge when the decision is made. There have not been many court cases only protests. There is no information on access to justice in environmental matters provided to the public in a structured and accessible manner in Malta. An arbitration system exists but this does not apply to access to justice on environmental matters, only for civil law disputes. Under the Environment and Development Planning Act an out of court settlement exists but this applies only to criminal proceedings against people accused of infringing environmental laws. The situation does not apply to access to justice matters. Rather than mediation as such, which may occur, MEPA and the applicants and the objectors may hold informal meetings.

XV. Being a Foreigner

It is a constitutional right that no discrimination on the basis on race or nationality can be made. Use of different languages is allowed in court procedures and is such cases an interpreter is provided if need be. The right to a fair hearing guarantees that translation is provided and paid by the government in court procedures if need be.

XVI. Transboundary Cases

  1. Describe procedural rules on cases that involve environmental issues in another country. (5 sentences)

The EIA Regulations LN 114/2006 provide for transboundary consultations. Where the Minister responsible for Environment is aware that a project in Malta is likely to have significant effects on the environment in another State, or where a State likely to be significantly affected so requests, the Minister shall send to the affected State as soon as possible and no later than when the Maltese public is informed, the following information:

(a) a description of the project, together with any available information on its possible transboundary impacts

(b) relevant information regarding the environmental impact assessment procedure

(c) information on the nature of the decisions which may be taken and shall give the affected State a reasonable time in which to indicate whether it wishes to participate in the environmental impact assessment procedure.

If the affected State which receives information indicates to the Minister that it intends to participate in the environmental impact assessment procedure, the Minister shall send information gathered regarding the proposed development to the affected State. The affected State shall enter into consultations with the Minister concerning, inter alia,

(a)   The potential transboundary effects of the project and the measures envisaged to reduce or eliminate such effects

(b)   The parties shall agree on a reasonable timeframe for the duration of the consultation period.

(c)    The affected State may arrange for the information to be made available, within a reasonable time, to its authorities and the public in its territory, within the timeframe established by agreement between the Parties,

(d)   the affected State shall forward its opinion to the Minister who shall forward it to MEPA

The transmission of information concerning potential transboundary impacts, and the receipt of information by the affected State, shall be subject to Maltese law. The Minister shall provide to the affected State the final decision on the proposed project along with the reasons and considerations including information about the public participation process on which it was based and any conditions attached thereto. There shall also be a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects. The Minister shall immediately inform the affected State and enter into consultations on the necessary measures that may be undertaken to reduce or eliminate significant adverse transboundary impact. MEPA shall furnish the Minister with all such documentation and information as he may request. LN 126/2008 Regulations on Remedying Environmental Damages also contains provisions concerning transboundary environmental damages where the environmental damage affects or is likely to affect other EU Member States. If environmental damage has occurred, Malta would need to provide sufficient information to the potentially affected EU Member States. The notion of public concerned in a transboundary context is the same as for nationals, any person whether legal or natural and environmental NGOs. There is no specific list of cases where individuals or NGOs could choose between courts of different countries. The choice would depend on the outcome of the courts taking cognizance of the case.

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Last update: 14/09/2016

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Access to justice in environmental matters - Netherlands

  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I. Constitutional Foundations

Article 21 of the Dutch Constitution (Grondwet[1]) obliges Government to secure its citizens with a habitable environment and arrange for the protection and the improvement of the environment. Together with Article 11 which secures the right to personal integrity and Article 22 which awards a right to health, these provisions are the main (social) fundamental rights related to the environment laid down in the Dutch Constitution. Access to justice is secured by Article 17 that states that no one can against his will be kept from the competent court. Furthermore Chapter 6 of the Dutch Constitution is relevant for it states that the law will make clear which court is competent. Citizens have the right to invoke fundamental rights directly in administrative or judicial procedures if these rights are considered subjective rights. Therefore Article 21 of the Constitution could be invoked by citizens in procedures against decisions by public authorities. In most cases however, it will not have the desired effect because of the discretion that Government has in achieving the objective(s) of this provision. Any provision of an International treaty can be invoked in administrative and judicial proceeding after it has been published and when such a provisions is of a generally binding nature (Article 93 of the Constitution). This is also true for the so-called Aarhus Convention that was adopted by both the Netherlands and the European Union.

II. Judiciary

Legal protection in the Netherlands is first of all provided by the courts of general jurisdiction that are competent to decide on civil and criminal cases.[2] This system has three tiers. A case is heard first by a District Court (Rechtbank) and if a party doesn’t agree with the judgment, he may lodge an appeal to a Court of Appeal (Gerechtshof). The Court of Appeal re-examines the facts of the case and reaches its own conclusions. Thereafter it is usually possible to refer a dispute to the highest court, the Supreme Court of the Netherlands (Hoge Raad). The Supreme Court of the Netherlands examines only whether the lower court(s) observed proper application of the law in reaching its decision. At this stage, the facts of the case as established by the lower court(s) are no longer subject to discussion. In 2013 the Netherlands will be divided into 11 districts, each with its own District court. District courts are divided into 3 sectors: a civil law sector, a criminal law sector and an administrative law sector. The 11 districts are divided into 4 areas of jurisdiction for the Courts of Appeal for civil and criminal disputes and some specific administrative disputes (e.g. tax law). With regard to criminal and civil law, the justices of the Court of Appeal only deal with cases where an appeal has been lodged against the judgment passed by the District Court. There is no special court or tribunal for environmental matters. The law will stipulate which court is competent, so there is no relevant possibility for forum shopping. With a few exceptions, administrative disputes on governmental decisions about environmental matters are heard first by one of the eleven District Courts (administrative law sector). Usually the cases are heard by the District Court by a single-judge division, but the court can decide to appoint three judges to a case which is complex or which involves fundamental issues. In environmental matters governed by administrative law and in a lot of other areas appeal is a matter for the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), which will have a case dealt with by three judges although it could decide to have a simple case heard by a single judge. In other areas Dutch law provides for a special appeals tribunal, like the Central Appeals Tribunal (Centrale Raad van Beroep) for cases involving civil servants and social security issues, the Court of Appeal for appeals against tax assessments and the Trade and Industry Appeals Tribunal (College van Beroep voor het Bedrijfsleven) for disputes in the area of social-economic administrative law and for appeals for specific laws, such as the Competition Act. In many administrative disputes the hearing by the administrative law sector of the District Court is preceded by an objection procedure under the auspices of the administrative authority. When a case is being dealt with in an objection procedure or by an administrative court the applicant has the possibility to ask the court for a provisional or interim measure in a specific procedure if there is sufficient reason and a sufficiently urgent interest (Articles 8:81-8:86 General Administrative Law Act). If the interim measures demanded are allowed by the administrative court it will in most cases mean that the challenged decision is suspended.

In procedures against administrative decisions a competent court will quash (or: annul) the decision if the applicant has proven the decision in breach of the law. Although the courts do have the competence to alter or amend an administrative decision after it has been annulled, exercising that authority will be justified only in cases where it is sufficiently obvious what decision the administrative body would have to take after the annulment. In most cases the annulment of the decision will lead to a new decision by the same administrative authority. Courts are able to award compensatory damages to citizens against the public authority when there are grounds to do so (on the basis of tort), a request has been made by that citizen and the attacked decision has been found in breach of the law. Procedures against administrative decisions in environmental matters are governed by both the general provisions of (administrative) procedural law which are stipulated in the General Administrative Law Act (Algemene wet bestuursrecht), mainly chapters 6, 7 and 8, and by some provisions in specific acts of which the most important are the Environmental Management Act (Wet milieubeheer), the General Act on Environmental Permitting (Wet algemene bepalingen omgevingsrecht), the Spatial Planning Act (Wet ruimtelijke ordening), the Water Act (Waterwet), the Nature Conservation Act (Natuurbeschermingswet 1998) and the Flora- and Fauna Act (Flora- and Faunawet). In procedures about administrative decisions on environmental matters there is the possibility that the court will appoint a specific independent expert, the Foundation for advising Administrative Courts in environmental and zoning cases (Stichting Advisering Bestuursrechtspraak or StAB). This foundation is funded by government and has a specific expertise in environmental matters. The law provides that it will write a report on any environmental case at the request of an administrative court. In administrative court procedures the courts do not have the possibility to investigate parts of an administrative decision that have not been attacked by the applicant. Any court however has the authority to investigate the facts of the case by hearing witnesses, by asking for (written) evidence or by appointing an expert as long as it concerns the conflict that has been brought to court by the parties in the procedure. Administrative courts will use these powers in cases where the applicant has supplied sufficient information to doubt the facts that the administrative authority has based its decision on. Case law proves that parties to the conflict being decided by the courts have the duty to provide evidence out of their own motion. This is also true in environmental matters before administrative courts, although the administrative authority of course always has the duty to take due care in preparing any administrative decision.

III. Access to Information Cases

Article 110 of the Dutch Constitution (Grondwet) instructs government to adopt legislation to secure citizens’ access to information on governmental affairs. The Freedom of Information Act (Wet openbaarheid van bestuur) allows for the full or partial disclosure of previously unreleased information and documents that are controlled by all tiers of the government and are related to public affairs. The Freedom of Information Act states that practically all records related to governmental affairs are subject to disclosure, it sets the principle of mandatory disclosure but also contains a number of grounds for refusal in Article 10 and 11. Decisions concerning the disclosure of information must always take these grounds into account. In accordance with Article 3 of the Freedom of Information Act (Wet openbaarheid van bestuur) anyone may ask for information that is contained in public records to be disclosed. Requesters are not required to state the subject or reason of their interest. Disclosure of information is deemed relevant for securing the rule of law in a democratic society. Furthermore there are no relevant formal requirements for such a request, although a written request is preferred. One does have to state the public affair to which the request refers. A decision on a request has to be made within 4 weeks; in case of environmental information this is 2 weeks. The administrative authority can offer parties concerned an opportunity to submit views about the disclosure of information that can affect their interests in which case the decision is postponed (article 6(3) Freedom of Information Act). In accordance with the provisions of the General Administrative Law Act (Algemene wet bestuursrecht) a refusal has to be accompanied by a statement of reasons for the refusal and must contain information on available remedies. Those who are not satisfied with a decision (refusal, an incomplete answer or an insufficient answer) can apply for reconsideration under the auspices of the administrative authority that refused the request. If the decision remains unsatisfactory they then can turn to the administrative sector of the District Court for a court judgment. This is in accordance with the general provisions that are stipulated in Article 8:1 and 7:1 of the General Administrative Law Act (Algemene wet bestuursrecht). Finally it is possible to launch an appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State). All procedures have to be filed within 6 weeks and have no rules on mandatory legal representation. However, in cases where no decision is taken within the period that was awarded to the public authority to take the decision, that inaction of the public authority can be taken to court directly. When relevant for the dispute the courts are in general competent to demand information of the public authority. Article 8:29 of the General Administrative Law Act (Algemene wet bestuursrecht) allows public authorities to send information to court asking not to disclose the information to the applicant. This is what could occur in a case that concerns the request to disclose certain information. Only in cases where the applicant has allowed the court to access the information and to decide the case on the basis of that information even though the applicant didn’t have access, could it influence the verdict of the court. When any court concludes that there is no (reasonable) ground to refuse disclosure, it could order information to be disclosed.

IV. Access to Justice in relation to Public Participation

The administrative procedures in environmental matters are governed by both the general provisions on administrative procedure of the General Administrative Law Act (Algemene wet bestuursrecht) and by some specific provisions in the General Act on Environmental Permitting (Wet algemene bepalingen omgevingsrecht) and the Environmental Management Act (Wet milieubeheer) and the Spatial Planning Act (Wet ruimtelijke ordening). For a number of important environmental permitting decisions, such as whether or not to grant an environmental permit (like an IPPC-permit) and the adoption of municipal zoning plans, the law provides for a procedure that involves public participation based on a draft-decision by the public authority. If a decision has been drafted it will be made publicly known and the draft-decision and the documents that it is based on will be available for anyone’s viewing for 6 weeks. During that time anyone can participate in the decision making process by submitting views to the competent authority. The competent authority will have to react to these views before then taking and publishing the final decision. Such a final decision has to be taken within 6 months of the application for the environmental permit. This administrative procedure is laid down in section 3.4 (extensive public preparation procedure) of the General Administrative Law Act (Algemene wet bestuursrecht) and section 3.3 of the General Act on Environmental Permitting (Wet algemene bepalingen omgevingsrecht). This procedure is applicable when prescribed by law or when the administrative authority decides to prepare the decision using this procedure. Any decision that was prepared in this extensive procedure is subject to review by a court directly. Preparation of any other decision will be less extensive and will (in most cases) not involve public participation. In those cases, taking a final decision will usually take 8 weeks. This procedure is provided for in section 4.1 of the General Administrative Law Act (Algemene wet bestuursrecht) and in section 3.2 of the General Act on Environmental Permitting (Wet algemene bepalingen omgevingsrecht). In cases where the extensive procedure for preparing the decision has been applied, any interested party may lodge an appeal (see Article 1:2 General Administrative Law Act) that has also submitted views on the draft-decision (see Articles 8:1 and 6:13 of the General Administrative Law Act). An interested party is anyone whose interest is directly affected by an administrative decision. Case law provides that there should be a personal, objectively determinable interest that belongs to the person filing the case. Regarding administrative authorities, the interests entrusted to them are deemed to be their interests. Regarding legal entities, their interests are deemed to include the general and collective interests that they particularly represent in accordance with their objects and as evidenced by their actual activities. An example of a general interest could be the protection of the environment in a specific area. When the extensive procedure hasn’t been applied, Articles 8:1 and 7:1 of the General Administrative Law Act (Algemene wet bestuursrecht) will prescribe that any interested party that wants to bring the case to court, shall first have to file an objection (bezwaarschrift) with the authority that took the decision. The result of this objection procedure will be a (re)new(ed) decision by the same public authority and only that decision can be taken to court. In any case only those parts of the decision may be challenged in court that have also been disputed in the administrative phase (Article 6:13 of the General Administrative Law Act).

Most cases are lodged with the District Courts unless a specific Act stipulates another procedure (e.g. appeal in first and only instance with the Administrative Jurisdiction Division of the Council of State). For cases concerning environmental permits the District Court and thereafter the Administrative Jurisdiction Division of the Council of State are usually competent. Cases on zoning plans go directly to the Administrative Jurisdiction Division of the Council of State. For instance: a zoning plan will be adopted according to the extensive procedure that has to be applied by the competent authority in preparing the decision. Judicial review of a zoning plan is a matter for the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) in first and last instance. An application for an IPPC license (in accordance with Article 2.1(1) sub e of the General Act on Environmental Permitting) will also be dealt with in the extensive administrative procedure but will be subject to judicial review by the District Court first and to appeal by the Administrative Jurisdiction Division of the Council of State. In cases on an IPPC license the courts will grant the public authority a small margin of appreciation when establishing what are the Best Available Techniques for the specific installation at hand. In all procedures of judicial review the applicant may ask for provisional or interim measures in accordance with the general provisions on injunctive relief in administrative procedures (Articles 8:81-8:86 General Administrative Law Act).

In some environmental cases the law prescribes that an Environmental Impact Assessment (EIA) report has to be drawn up by the applicant before the public authority is able to decide on an application (Chapter 7 of the Environmental Management Act). Any decision on EIA screening, EIA scoping decisions or acceptance of an EIA report by the public authority can be challenged in court by filing a case against the decision that allows or refuses the application. There are no special rules on standing, forum, hearing, evidence or the extent of the review by the court. EIA is seen as an important instrument