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.

Last update: 08/04/2021

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 at Member State level

1.1. Legal order – sources of environmental law

1) General introduction to the system of protection of environment and procedural rights of persons (natural, legal, NGOs) in the specific national order

Bulgaria is a country in which the basic rights and obligations of the citizens are constitutionally established, as well as the obligations of the state for protection and maintenance of the environment. According to Art. 55 of the Constitution, citizens have the right to a healthy and favourable environment in accordance with established standards and regulations. Historically, nature protection laws have existed before, but environmental protection was established in the legal system as an independent object of protection from the effects of industrialisation in the early 1970s, coinciding with the period of political enlightenment and cooperation in Europe (Helsinki Process). Environmental movements and civil protests against air pollution in Ruse in the 1980s were significant for the transition from a totalitarian to a democratic society. After the adoption of the 1991 Constitution, in connection with the preparation and EU accession of the country in 2007, the legislation was in line with the EU legal system (horizontal and sectoral), subject to its primacy and the direct effect of supranational law. The international treaties to which Bulgaria is a party are also part of the system of domestic law.

Depending on the accepted classification according to the method of normative regulation, the protection of the environment as an objective law and justice is interdisciplinary[1], subject to a relatively lesser extent to other branches of law such as civil, criminal, commercial and constitutional law, and finds expression most often in administrative law and process[2]. The main procedural principle of access to justice is that each party has the right to be heard by the court before an act (e.g. administrative decision) takes effect which is important for its rights and interests. The court shall ensure that the parties have an equal opportunity to exercise the rights conferred on them and it applies the law equally to all pursuant to the Civil Procedure Code (CPC). Individuals and legal persons enjoy equal procedural opportunities to participate in administrative proceedings and in the judicial review of administrative acts to defend their rights and legitimate interests, as stipulated in the Administrative Procedure Code (APC). The APC stipulates the main principles of the administrative procedures in Chapter II. Among them are the principles of legality, proportionality, equality, independence and impartiality, of the active role of the authorities and the court, acting ex officio, an expression of which is the obligation of the court to point out to the parties that in some circumstances the burden to provide evidence is theirs.[3] Access to justice in environmental matters is one of the main principles of environmental protection in Bulgaria, together with other principles listed in Art. 3 of the Environmental Protection Act (EPA) such as sustainable development; public participation and transparency in the decision-making process in the field of environment; awareness of citizens about the state of the environment; the polluter pays principle.

The environmental government system comprises authorities of the executive power at central level and authorities at local level. The specialised administration of competent administrative authorities with rights and obligations in the environmental field consists of the Minister of Environment and Water (MoEW), the executive director of the Executive Agency for Environment (EEA), the directors of the Regional Inspectorates for Environment and Water (RIEW) and the directors of the basin directorates, plus the administration of general competence: the Council of Ministers, the mayors of the municipalities and, in towns with district division, the mayors of the districts, and the regional governors.

The Bulgarian Parliament (the National Assembly) is the main legislative body which passes, amends, supplements and repeals laws, e.g. the EPA (Art. 84, p.1 of the Constitution). The Council of Ministers adopts decrees, ordinances and resolutions pursuant to and in implementation of the laws, e.g. the ordinances on SEA and EIA. The Council of Ministers drafts rules and regulations by decree (Art. 114 of the Constitution). In the field of environment, the Minister of Environment and Water issues rules, regulations, instructions and orders (by delegation of Art. 115 of the Constitution[4]), e.g. rulebooks like the Rules on the functions, tasks and composition of the Supreme Environmental Expert Council. An essential characteristic of the legal system is the hierarchy of normative acts and their application by the court depending on their rank according to the explicit provision of Art. 15 of the Law on Normative Acts (LNA) of 1973, still in force today. The principle of application, in the case of non-compliance of the normative act, of a higher degree is also confirmed in Art. 5 of the APC, adopted in 2006. The administrative normative by-laws according to the APC can also be directly challenged in court.

The structure of normative acts is determined according to the LNA and Decree № 833 for application of the LNA. The section "Additional provisions" at the end of the normative act also indicates the directives transposed by it and introduces requirements of other normative acts of the EU.

2) Constitution – main (content of + including references) provisions on environment and access to justice in the national constitution (if applicable) including procedural rights

The Bulgarian Constitution provides for a right to a healthy and favourable environment corresponding to the established standards and norms (Art. 55). Protection of the environment is also a citizen’s duty. Enforcement of the right to a healthy and favourable environment is possible, together with other constitutional fundamental rights and freedoms (Chapter II) like:

  1. the right to life (Art. 28)
  2. the inviolability of the home (Art.33)
  3. freedom of expression – Art. 39
  4. the right to access to and dissemination of information – Art. 41(2)
  5. freedom of assembly – Art. 43
  6. freedom of association – Art. 44(1).

Citizens are guaranteed access to court to appeal administrative acts[5] (Art. 120 of the Constitution), unless provided otherwise by the law. No explicit legal exception exists in the field of environmental law. All provisions of the Constitution apply directly (Art.5(2)) and all citizens are equal before the law (Art.6(2)). As to the right to a healthy and favourable environment, it is usually applied together with other legal rules and standards of procedural or substantive nature, such as:

  • the obligation of the State to ensure the protection of the environment and of living nature in all its variety, and the rational use of natural resources (Art.15),
  • the right of citizens to file complaints, proposals and petitions with the state authorities (Art. 45),
  • the right of citizens to legal defence whenever their rights or legitimate interests are violated or endangered, and the right to be accompanied by a legal counsel when appearing before an agency of the State (Art. 56), and
  • the obligation of the judiciary to protect the rights and legitimate interests of all citizens, legal entities and the State (Art. 117 (1)).

3) Acts, Codes, Decrees, etc. - main provisions on environment and access to justice, national codes, acts

The main legal provisions on the environment and access to justice in environmental matters in Bulgaria are set out in the framework Environmental Protection Act (EPA). In addition, the general legal rules for access to justice are set out in the Link opens in new windowAdministrative Procedure Code (APC), the Link opens in new windowAdministrative Offences and Penalties Act (AOPA) and the Civil Procedure Code, which applies subsidiarily to any matters not explicitly regulated by the APC. Other relevant sectoral environmental laws and by-laws that could provide for environmental rights to be defended include the Link opens in new windowBiological Diversity Act, the Genetically Modified Organisms Act, Link opens in new windowthe Water Act, the Protected Areas Act, the Waste Management Act, the Link opens in new windowClean Ambient Air Act, the Link opens in new windowProtection from Environmental Noise Act, the Link opens in new windowBlack Sea Coast Spatial Development Act, the Link opens in new windowAgricultural Land Protection Act, the SEA Ordinance on the conditions and procedures for carrying out Environmental Assessment of Plans and Programmes, the Ordinance on the terms and procedure for carrying out an EIA, the Link opens in new windowOrdinance on the terms and procedure for carrying out the assessment for compatibility of plans, programmes, projects and investment proposals with the subject and purpose of protection of protected areas, the Link opens in new windowOrdinance on conditions and the order for issuing of integrated permits (IED Ordinance); and the Link opens in new windowOrdinance on prevention of major accidents involving dangerous substances and limitation of their consequences (SD Ordinance).

4) Examples of national case-law, role of the Supreme Court in environmental cases

The legal implementation of the requirements regarding access to justice has been in progress since the ratification of the Aarhus Convention, in force as from 2004, and EU accession, from 2007, respectively. The listed examples of court rulings are significant for the evolution of the interpretation of the issues on exercising citizens/NGOs right of access to justice.

As an achievement of general importance for the strength of the supremacy of the rule of law in nature conservation, the Supreme Administrative Court (case № 12379/2018) repealed Decision of the Council of Ministers No. 821/29.12.2017 on amendment of the management plan for Pirin National Park. The judicial review incorporates interpretation of the provisions of Bulgarian and international law, taking into account decisions of the CJEU, directives of the EU and decisions of the World Heritage Committee to the Convention concerning the Protection of the World Cultural and Natural Heritage. Of key importance is the recognition by the court of the primacy of the requirement of Art. 6.4 of the Aarhus Convention for public participation at an early stage when all options are open and an effective public hearing can be carried out. Another achievement in this case was that the many laws to which the court referred in concluding that the authorities had breached the law included Art. 6(4) of the Aarhus Convention.

The main aspects of access to justice for citizens and environmental NGOs (ENGOs) in environmental matters based on Art. 9 par. 2 of the Aarhus Convention are recognised by virtue of the binding effect of the ratification act and the successive internal law - § 1, p. 25 EPA. Recognising sufficient interest in such cases for members of the public, it broadens the principle of impairment of rights depending on direct violation, or threat of violation, of the rights, freedoms and legal interests of individuals and organisations according to Art. 147 APC. Such a broad interpretation of access to justice in environmental matters for individuals and ENGOs is consistently implemented as a precondition of standing capacity, but depending also on the interpretation of the nature of the administrative act appealed.[6] In the case of an appeal of the integrated permit for a thermal power plant, the first-instance district court denied legal standing of an ENGO registered with private interest[7]. The third chamber of the Supreme Administrative Court (SAC) (case № 7384/2015) repealed this decision of the district court, stating that the parameters of the legal interest to appeal the administrative act are defined by the subject of the act, which establishes obligations or affects rights and legal interests of the appealing citizen or organisation, and these parameters are decisive for the admissibility of the judicial review for legality of the act. However, more recent case-law of the SAC shows the opposite tendency, and the court does not grant standing to ENGOs of private interest to challenge Art. 6 of the Aarhus Convention decisions. In a lawsuit concerning an appeal of the decision of the Energy and Water Regulatory Commission (EWRC) to extend the duration of the licence for electric power generation sought to establish a practice of allowing ENGOs in litigations on the Energy Act so that they could appeal the acts of the EWRC. In that case (№ 12922/2015), the SAC denied the right of appeal to ENGOs. Other problems with procedures outside the scope of Art. 6 of the Aarhus Convention is granting of standing in other procedures for environmental permits – challenging water permits for instance.

Environmental cases are handled under the common administrative procedure – i.e. there are no specific court rules applicable to environmental matters. The second, cassation, instance has recently been stripped of the right to challenge EIA/SEA decisions on projects, plans and programmes of strategic national importance[8]. Also worth mentioning is a lawsuit based on class action related to environment, case № 6614/2017 of the Sofia City Court brought by citizens against Sofia Municipality for the lack of effective measures for achieving good quality of ambient air.

The case-law of SAC is important for jurisprudence in the application of environmental law. It is not a formal source of law, but its has binding power for the law-enforcement authorities. However, the interpretative rulings of the SAC could be seen as a subsidiary source of law.[9] Legislative changes in 2017 in the Law on Access to Public Information to limit the cassation appeal of decisions issued in cases against refusal of information, including on the environment, i.e. their consideration at only one instance[10], was subject to public and institutional criticism, with a veto by the President and a request to declare them unconstitutional.[11]

5) Can the parties to the administrative procedure directly rely on international environmental agreements, or can only the national and EU transposing legislation be referred to?

International treaties ratified in accordance with the constitutional procedure, promulgated and having come into force with respect to the Republic of Bulgaria become part of national legislation. They have primacy over any conflicting provisions of domestic legislation (Art. 5(4) of the Constitution). The parties to the administrative procedures could directly refer to the international environmental treaties ratified by the Republic of Bulgaria.

Both administrative bodies and courts apply the Aarhus Convention directly. As mentioned above, the Supreme Administrative Court (case № 12379/2018) recognised the primacy of the requirement of Art. 6.4 of the Aarhus Convention for public participation at an early stage when all options are open and an effective public hearing can be carried out.

1.2. Jurisdiction of the courts

1) Number of levels in the court system

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:

  1. District courts as first instance courts for disputes of relatively small economic interest (less than 12,500 EUR and up to 25,00 EUR for property right disputes).
  2. Regional courts acting as first instance courts for more important disputes and as appellate instance for district court decisions.
  3. The SCC performing the function of cassation instance for all appellate decisions (with a few exceptions).

The administrative judicial system consists of:

  1. 28 administrative courts that deal with appeals against administrative decisions.[12]
  2. The SAC can act either as first instance court or as a cassation instance.
  3. District courts that hear appeals against administrative acts for sanctioning administrative offences (misdemeanours), incl. for not executing or violating a decree, order or other act related to the environmental legislation (Art. 32(2) of AOPA). A cassation appeal against a district court’s decision in such a case will be dealt with by a three-judge chamber of the respective administrative court.

The Supreme Judicial Council, the Judges Chamber, is the authority that appoints, promotes and dismisses judges. There are no specialised courts or tribunals for hearing environmental cases. However, at some administrative courts judges are organised in chambers to the effect that environmental cases are decided by a limited number of judges in the respective court.

2) Rules of competence and jurisdiction – how is it determined if there is jurisdiction of the court, cases of conflict between different national tribunals (in different Member States)?

The 28 regional administrative courts act as first instance in all administrative cases, with the exception of those cases which fall within the jurisdiction of the Supreme Administrative Court.

The SAC hears cases such as appeals against acts of the Council of Ministers, the prime minister, the deputy prime ministers and the ministers, cassation appeals and protests against first-instance decisions of court, and motions for reversal of effective judicial acts on administrative cases.

The territorial jurisdiction is defined by the address or seat of the persons addressed by the individual administrative act. If the addressees have different addresses/seats but within a single court district, the case is heard by the administrative court in the district of the territorial structure of the administration of the authority which has issued the act. All other cases are heard by the administrative court in the district where the seat of the authority is found. Appeals against general administrative acts[13] are heard by the administrative court at the seat of the authority that issued the contested act. Such acts could be decisions of the municipal council for adoption or amendment of the annual budget of the municipality, or the Order of the Minister of Environment and Water for declaring a protected territory under Art. 39 of the Law on Protected Territories (PAT).[14] Legal actions for compensation shall be brought before the court at the address or seat of the appellant, including in cases where they are adjoined with appeals against administrative acts.

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.

3) Specialities as regards court rules in the environmental sector (special environmental tribunals), laymen contributing, expert judges

Environmental cases are handled under the common administrative court procedure stipulated in the APC or by subsidiary application of the Civil Procedure Code – i.e. there are no specific court rules applicable to environmental matters; incl. a number of provisions e.g. alternative competence, statute of limitations on administrative sanctions (Art. 34 AOPA).

The general rule is a two-instance judicial review, except for lawsuits for EIA/SEA decisions for approval of projects, plans and programmes of strategic importance for which the first-instance decision is final.

Within the amendments of APC from 2018, the respective norms providing for a one-instance court procedure for challenging decisions transforming the status of agricultural land for construction and other non-agricultural purposes under Art. 20а, 3, 24а, 1 and 38, 1 of the Protection of Agricultural Lands Act, as well as decisions aimed - in the case of lack of the proprietor’s consent - at providing the respective rights empowering the land access of the operator for prospecting, exploring or extracting minerals according to Art. 75 of the Underground Natural Resources Act. The Constitutional court rejected the request to rule on the non-conformity of the adopted provisions of the APC as a restriction of the right to justice[15].

4) Level of control of judges in case of administrative appeals, concept of own motion, what are its limits? Rules on court action on its own motion.

The general rule in the APC, applicable also to environmental lawsuits, is that administrative acts may be contested before the court in respect of the legal conformity of the acts. Administrative acts may be contested on the grounds of lack of competence; non-compliance with the established form; material breach of administrative procedure rules; conflict with provisions of substantive law; non-conformity with the purpose of the law.

In jurisdiction disputes, the question whether the case falls under the jurisdiction of an administrative court or another authority outside the court system may be raised during any stage of the proceedings, including ex officio by the court. (Art. 130(3) APC). The court also acts on its own motion when there is a question about the territorial jurisdiction of the court. (Art. 134(2) APC). The court shall constitute the parties, acting on its own motion. (Art. 154 APC). The court may also act on its own motion in appointing experts and ordering inspection and certification. (Art. 171(2) APC). Acting on its own initiative or on a motion by a party, the court may correct any written errors, errors in calculations or other such obvious inaccuracies in the court decision. (Art.175 (1) APC). Within a cassation review, the SAC could act also on its own motion to assess the validity, admissibility and conformity of the court decision with the substantive law. (Art. 218(2) APC).

1.3. Organisation of justice at administrative and judicial level

1) System of the administrative procedure (ministries and/or specific state authorities)

The general rules for administrative procedures at national, regional and local level are regulated in the Administrative Procedure Code. A proceeding for the issuance of an individual administrative act shall be started at the initiative of the competent authority or at the request of an individual or an organisation and, in cases provided for in the law, by the prosecutor, the ombudsman, the superior or another state body. The special procedural rules for environmental law procedures are stipulated in the Environmental Protection Act or in the sectoral laws with relevance to environment (e.g. the Water Act). The main competent authorities issuing decisions in environmental procedures are the Minister of Environment and Water, the Directors of Regional Inspectorate of Environment and Waters and the Executive Director of the Executive Environmental Agency, the directors of the basin directorates, the mayors of the municipalities. Тhe regional governors ensure the implementation of the state policy for environmental protection in the territory of the region and have other duties listed in Art. 15 of the EPA.

2) How can one appeal an administrative environmental decision before court? When can one expect the final ruling?

An administrative act may be contested before the court even if the possibility for administrative contestation of the administrative act has not been exhausted, unless otherwise provided for in this APC or in a special law.

In administrative matters, two-instance court procedures are in place. Lawsuits for EIA/SEA decisions for approval of projects, plans and programmes of strategic importance for which the first-instance decision is final.

See p.1.2.3. for other provisions on one-instance court procedures.

According to the data of the Link opens in new windowEU Justice Scoreboard on the indicator time needed to resolve administrative cases at all court instances, Bulgaria was second (with the shortest time) after Sweden in 2017, and first in 2018.

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, and, in some cases, a third cassation instance, e.g. against an appellate court decision in conflict with a decision of the Court of Justice of the European Union[16]. The grounds for cassation, specified in Art. 209 of the APC, are defects of the first-instance decision concerning the requirements for validity, admissibility and correctness of the judicial act, respectively, namely is it

  1. invalid,
  2. inadmissible, or
  3. incorrect because of a breach of the material law, substantial breach of the court procedural rules or insufficiency.

The duration of the lawsuit depends on the complexity of the case, e.g. the evidence collection, however recently the SAC in particular was able to deliver a decision per court instance within 6 months or less from filing of the case. The EPA sets special timelines for the courts to hear and deliver a decision for lawsuits on the EIA/SEA decisions for projects, plans and programmes of strategic national importance. Such court cases should be heard within 6 months and a decision pronounced with 1 month after the case is completed.

In the realisation of projects which are designated as sites of national significance by an act of the Council of Ministers and are also sites of strategic importance, judicial control over the administrative decisions in the SEA and EIA procedures is carried out in one court instance proceedings (Art. 88(4) and Art. 93(10) EPA). In these cases there are short deadlines for consideration of the case by the court and pronouncement of decisions –6 months and 1 month respectively. Inasmuch as these rules represent deviation from the established principle, they limit the access to justice in its fullest possible scope guaranteed by the APC and expressed by first instance and cassation court review that aim not only to review and correct the defects of the administrative decision but also of the first-instance court decision by order of the instance control exercised by the Supreme Administrative Court, which is the highest court in the administrative court proceedings with the highest authority, experience and capacity.

3) Existence of special environmental courts, main role, competence

Environmental cases are handled under the common administrative procedure – i.e. there are no specific court rules applicable to environmental matters. Specificities of judicial procedures in environmental matters could be divided into three groups with respect to standing (p.1.4), evidence collection (p.1.5.) and scope of review (p.1.8)[17].

4) Appeal against environmental administrative decisions delivered by competent authorities and appeal against Court orders and decisions (levels)

An administrative act may be contested before the court even if the possibility for administrative contestation of said act has not been exhausted, unless otherwise provided for in the APC or in a special law. If the person has used the possibility of administrative review and is not satisfied with the outcome, it can refer the case to the court in accordance with the rules for judicial review of administrative acts. Where the act, the tacit refusal or the tacit consent have been contested according to an administrative procedure, the time begins to run from the communication that the superior administrative authority has rendered a decision and, if the authority has not pronounced it, from the latest date on which the authority should have pronounced it (Art. 149 (3) APC).

Regarding the court instances of the judicial review, the second court instance for appeals of decisions on EIA/SEA has been removed and the cases are heard and decided with a final decision by the first-instance court. This applies to SEAs/EIAs related to investment proposals, their extensions and changes defined by the Council of Ministers as projects of national and strategic importance, as well as decisions of the Minister of Environment and Water in the case of a joint procedure between EIA and integrated permit or for approval of safety reports for upper-tier establishments under the Seveso Directive (Art. 94, para.1, p.9 EPA). Such court cases should be heard within 6 months and a decision pronounced with 1 month after the case is completed.[18]

The procedure for challenging the assessment of compatibility with the objectives of protected areas for habitat protection (Article 31 BDA) is determined alternatively depending on the applicable environmental assessment procedure. The appropriate assessment falling within the scope of the EPA could be carried out through the SEA procedure (for plans and programmes) or through the EIA procedure (for projects) under the EPA and in compliance with special provisions of the Biological Diversity Act (BDA) and Chapter Three of the Ordinance on the terms and conditions for assessing the compatibility of plans, programmes, projects and investment proposals with the subject and purpose of protection of protected areas. Alternatively, outside these cases the appropriate assessment is carried out in a separate procedure and the final act is subject to separate judicial review[19]

5) Extraordinary ways of appeal. Rules in the environmental area. Rules for introducing preliminary references

In both administrative and civil court procedures, an extraordinary remedy for reversal of court decisions exist. The Administrative Procedure Code provides for motions for reversal of effective judicial acts in administrative cases. A right to motion for reversal vests in a party to the case to which the judicial act is adverse.[20] The Prosecutor General or the Deputy Prosecutor General heading the Supreme Cassation Prosecution Office may motion for the reversal of effective judicial acts on the grounds and within the time limits applicable to the parties in the case. An act shall be reversible:

  1. upon discovery of new circumstances or new written evidence of material relevance to the case which could not have been known to the party upon adjudication in the case;
  2. upon establishment, according to the duly established court procedure, of falsity of the testimony of witnesses or of expert findings on which the act is based, or of a criminal act by the party, by the representative thereof or by a member of the court panel in connection with adjudication in the case;
  3. where the act is based on a document which has been pronounced forged according to the duly established judicial procedure, or on an act of a court or another State institution which was subsequently revoked;
  4. where another effective court decision has been rendered in respect of an identical motion, between identical parties and on identical grounds and the court decision is contrary to the decision for which the reversal is motioned;
  5. if, consequent to the breach of the relevant rules, the party was deprived of the possibility to participate in the administrative proceeding or was not duly represented, as well as if the party was unable to appear in person or through an authorised representative by reason of an irremovable obstacle;
  6. if the European Court of Human Rights has found, by judgment, any violation of the Convention for the Protection of Human Rights and Fundamental Freedoms;
  7. when the judgment or ruling in an administrative lawsuit is null and void (128а APC).

According to the general rule provided in the Civil Procedure Code (CPC), applicable also to administrative lawsuits, if the interpretation of a provision of the legislation of the European Union or the interpretation and validity of an act of the bodies of the European Union is of importance for the correct settlement of the lawsuit, the Bulgarian court shall make a request for preliminary ruling to the Court of Justice of the European Union (CJEU). The request shall be made by the court before which the lawsuit is pending, ex officio or upon a request of the party. The court whose decision is subject to appeal may deny the request of the party to forward a request on causative matters for interpretation of a provision or of an act. The ruling denying such a request is not subject to appeal.

The national court, whose decision is not subject to appeal, shall always forward a request for interpretation, except where the answer to the question arises clearly and undoubtedly from a previous decision of the CJEU or the meaning and sense of the provision or of the act are clear beyond any doubt (Art. 629(4) CPC).

6) Are there out of court solutions in the environmental area as regards solving conflicts (mediation, etc.)?

There are no special rules for environmental cases and out-of-court solutions regarding such conflicts. As a general rule, a judicial settlement may be reached during any stage of the proceedings under the same conditions under which the settlement may be reached in the proceedings before the administrative authority. All parties to the case shall mandatorily participate in the settlement. By the ruling confirming the settlement, the court invalidates the administrative act and dismisses the case. The ruling may be appealed only by a party which did not participate in the settlement. Should any such settlement be revoked, examination of the case shall proceed. A confirmed settlement shall have the significance of an effective decision of court.[21] (Art. 178 APC)

7) How can other actors help (ombudsperson (if applicable), public prosecutor), accessible link to the sites?

The role of the Link opens in new windowOmbudsperson of the Republic of Bulgaria includes facilitating conflicts in relations between the administration and affected persons in cases of wrongful conduct, but s/he cannot overturn an administrative decision. In cases provided for in the law, the Ombudsperson could initiate a proceeding for the issuance of an individual administrative act. S/he could put forward suggestions and recommendations for removing the causes and conditions for breaches of rights and freedoms, incl. by initiating proposals for draft laws.

According to Art. 150 (3) of the Bulgarian Constitution, the Ombudsperson may approach the Constitutional Court with a request to declare as unconstitutional a law which infringes human rights and freedoms.

The Ombudsperson can ask the authorities[22], listed under Article 150 of the Constitution, to approach the Constitutional Court if s/he is of the opinion that this is necessary to interpret the Constitution or to pronounce on compliance with the Constitution of the international treaties entered into by the Republic of Bulgaria prior to their ratification and on compliance of laws with the generally recognised rules of international law and with the international treaties to which the Republic of Bulgaria is a party. The Ombudsperson has a right to motion for reversal of effective administrative acts pursuant to Art. 99-100 of the APC, as well as at the phase of their execution. The motion concerns any effective individual or general administrative act which has not been contested before the court, and it may be revoked or modified by the immediately superior administrative authority and, if the act was not subject to administrative contestation, by the authority which issued the act. The grounds for reversal are that some of the requirements for legal conformity of the act have been materially breached.

The local ombudspersons, wherever such are elected, are competent with the statutes approved by the municipal councils acting under local government autonomy. A request for assistance can be submitted to the ombudsperson by individuals and NGOs working in the public interest in the field of human rights via an online form available at the Link opens in new windowwebsite.

The Role of the Public (State) prosecutors:

The public (state) prosecutor[23] as an institution ensures that legality is observed by leading the investigation and supervising the legality thereof; by conducting investigations; by bringing charges against suspected criminals and supporting the charges in indictable cases, incl. for environmental crimes. It can take part in administrative suits related to the environment by challenging administrative acts and/or be a controlling party in such suits on behalf of the state. The prosecutor can, in cases provided for by the law, initiate proceedings for the issuing of an individual administrative act.

1.4. How can one bring a case to court?

1) Who can challenge an environmental administrative decision (relevance of the concept of concerned public and NGOs)?

The Bulgarian legislation grants standing to interested persons (ENGOs and physical persons) to bring to court both measures of a general nature such as protected areas management plans and normative administrative acts – secondary legislation issued by the executive authorities. §1, p. 24 of the Additional Provisions of the Environmental Protection Act states that "public" is defined as one or more natural or legal persons, and associations, organisations or groups thereof established in accordance with national legislation. §1, p. 25 of the EPA further defines "the public concerned" as the public referred to in §1, p. 24 who are affected or likely to be affected by, or which has an interest in, the procedures for approval of plans, programmes and development proposals, and in the decision-making process on the granting or updating of permits according to the respective environmental procedure or in the conditions set in the permits, including non-governmental organisations promoting environmental protection which are established in accordance with national legislation[24].

The national courts interpret differently “the public concerned” pursuant to Art. 2, p.5 of the Aarhus Convention, transposed by §§ 24 and 25 of the Additional Provisions of the Environmental Protection Act. At the moment, the prevailing case-law on the matter is that only ENGOs registered with public interest have a right of appeal in environmental cases. Conversely, other judges[25] have held that the right of appeal applies to all ENGOs, whether registered with private or public interest[26]. To grant standing to the interested public within the scope of Art. 9(2) of the Aarhus Convention, the court carries out an admissibility test based on two groups of criteria, namely arising from the special composition of the provision in connection with the legal definition of par. 1, items 24 and 25 of the Additional Provisions of the EPA regarding the legal personality and legal interest of the complainant, as well as the suitability of the challenged act as a subject of appeal. In order to assess the material relevance of the act for resolving issues of environmental protection, the court shall examine the relevance to the activities included in Annex I to the Convention and the national legislation under item 20 of Annex I; as well as, on a general basis according to Art. 159, item 1 of the APC, the content of the administrative act as an internal or intermediate act, which is not subject to appeal as it has no dispositional consequences in relation to the legal sphere of citizens and legal entities but is aimed only at hierarchically subordinated structures or the preparation of another final act. For example, standing was granted to an ENGO to challenge an act on coordination of an investment project, a negative screening decision not to carry out appropriate assessment under Art. 31(19) of the BDA (for a Natura 2000 protected area), but the court did not grant the right to legal review of a municipal programme for improving the quality of the ambient air under Art. 27 of the Clean Ambient Air Act due to the qualification for lack of authoritative order representing an individual administrative act. Despite examples of contradictory court practice, it is evolving with reference to the achievements in implementing Directive 2003/35 /EU, as well as the Compliance Committee to the Aarhus Convention.

2) Are there different rules applicable in sectoral legislation (nature conservation, water management, waste, EIA, IPPC/IED, etc.)?

No, there are not. Only regarding the court instances of the judicial review, the second court instance for appeals of decisions on EIA/SEA has been removed and the cases are heard and decided with a final decision by the first-instance court. This applies to SEAs/EIAs related to investment proposals, their extensions and changes defined by the Council of Ministers as projects of national and strategic importance, as well as in cases of integration of EIA procedure with at least one of the procedures for granting of integrated permits or approval of safety reports for upper-tier establishments under the Seveso Directive (Art. 94, para.1, p.9 EPA). Such court cases should be heard within 6 months and a decision pronounced with 1 month after the case is completed.

The different sectoral laws refer to the APC in order to provide the procedure that is applicable for appealing administrative acts under the specific authorisation. The uniform grounds[27] for assessing legal conformity of the act are consistent with the diversity of the corresponding requirements, both substantive and procedural, and the nature as an individual or general administrative act of the specific authorisation. Such explicit referring rules are inter alia Art. 31 of the BDA for the decision on appropriate assessment of plans, programmes and development proposals, or modifications or extensions thereof; Art. 71, 77 of the Water Act for the permit or the decision on refusal of the authority competent for water use-related permissions; Art. 77 of the Waste Management Act for the issued permit, the decision on amending and/or supplementing, the refusal to issue, amend and/or supplement the permit, its withdrawal, as well as the decision to revoke a designation of a waste treatment site.[28]

3) Standing rules applicable for NGOs and individuals (in administrative procedure and at judicial level, for organisations with legal personality, ad hoc groups of representatives of the public, standing for foreign NGOs, etc.)

See p.1 above on the standing rules for NGOs and individuals: §1, p. 24 and 25 of the Additional Provisions of the Environmental Protection Act.

The Bulgarian courts have ruled on some occasions on the admissibility of an appeal by ENGOs based on their self-identification and registration with public or private interest. In the case of the appeal of the integrated permit of a thermal power plant[29], the first-instance administrative court denied the legal standing of ENGOs registered with private interest. The Supreme Administrative Court repealed the decision of the district court by stating that the parameters of the legal interest to appeal the administrative act are defined by the subject of the act which establishes obligations or affects the rights and legal interests of the appealing citizen or organisation, and these parameters are decisive for admissibility of the legal review of legality of the act. However, more recent case-law of the SAC shows the opposite tendency, and the court does not grant standing to ENGOs with private interest. In the case of the appeal of the decision of the Energy and Water Regulatory Commission (EWRC) to extend the duration of the licence for electric power generation, it was sought to establish a practice of allowing ENGOs in litigations on the Energy Act so that they could appeal acts of the EWRC. In this case, the court denied the right of appeal to the ENGOs.

The right to standing is recognised as a public subjective right of concerned citizens and organizations to contest the administrative act depending on their legal interest, i.e. in a procedure to defend rights, freedoms or legitimate interests that have been breached or threatened by the act, or to oppose obligations that have been imposed. The concerned persons with standing are defined through rights or legitimate interests, which may be personal or environmentally related. The second alternative, in conformity with Art. 9, par. 2 of the Aarhus Convention and Art. 147 of the APC, has been accepted in court practice as a criterion for considering, along with other relevant ones[30], whether to grant standing to the ENGO in challenging SEA/EIA/appropriate assessment/integrated permit decisions[31],[32]. More specifically, the question of whether the general development plan[33] is an act within the category of environmentally significant decisions in the relevant context has been prevailingly resolved by denying the standing capacity of the ENGO, in addition to the decisive argument of the exclusion of said act from court control by virtue of Art. 215, (6) SDA.[34]

4) What are the rules for translation and interpretation if foreign parties are involved?

Persons who have no command of the Bulgarian language may use their native language or another language which they specify. In such cases, an interpreter shall be appointed. Any documents presented in a foreign language must be accompanied by an accurate translation into the Bulgarian language. If the competent authority is unable itself to verify the accuracy of the translation, the said authority shall appoint a translator for the account of the party concerned, unless a law or an international treaty provides otherwise. The costs of translation shall be borne by the person who has no command of the Bulgarian language if the administrative proceeding was initiated at the request thereof, unless a law or an international treaty provides otherwise (Art. 14(4) APC).

1.5. Evidence and experts in the procedures

Overview on specific rules in administrative environmental matters, control of judge, calling for an expert in the procedure

1) Evaluation of evidence – are there any limits in obtaining or evaluating evidence, can the court request evidence on its own motion?

The judicial authorities cannot initiate a case ex officio – this applies to 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. As to evidence collection, courts usually prefer to hear expert opinions, and witnesses are allowed to give evidence in court. The scope of review of administrative decisions 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.

The administrative court is obliged to carry out a full review of the legality of the contested administrative act without being constrained by the grounds for review put forward with the complaint. The procedural activity of the court to establish the facts relevant to the case follows the principles and specific requirements of the APC (Art. 39 and Art. 171). Mainly, the court considers the evidence collected in the administrative procedure before the competent administrative authority (the administrative file); however, having in mind the burden of proof, the parties to the case are free to establish the facts and circumstances to their benefit. The administrative authority and the persons for whom the contested administrative act is favourable must establish the existence of grounds of fact specified in the act and the fulfilment of the legal requirements for its issuance. Where a refusal to issue an administrative act is contested, the contestant must establish that the conditions for the issuance of the act have existed. The court should instruct the parties about the distribution of the burden of proof. In line with the ex officio principle in the proceedings, the court shall indicate to the parties that for some circumstances relevant for resolving the case, they do not provide evidence (Art. 9(3) APC), and on its own initiative can appoint court experts and order inspection and certification. The court may interrogate as witnesses persons who have given evidence before an administrative authority and expert witnesses only if it finds it necessary to hear them immediately. In the detailed regulation of the process of presenting evidence, the general rules of the Civil Procedure Code (CPC) apply. Such rules are the assessment by the court of all the evidence in the case and of the arguments of the parties based on the court’s internal conviction (Art. 12 CPC) and the law, the rules about the use of written evidence, about witness statements and the opinions of the experts presented to the court.

2) Can one introduce new evidence?

The parties can, on their own initiative, make evidence claims to clarify facts and circumstances that will be beneficial for them in the proceedings, as long as they are admissible means for collecting evidence pursuant to the Civil Procedure Code and the stage of the court procedure. The court delivers a ruling on the evidence claim made after giving the parties the opportunity to make a statement. The court hearing of the case in administrative cases has as its purpose not so much to collect new evidence but to review the legality of the decision/administrative act of the administrative authority. In this regard, new evidence to prove legally valid facts and circumstances that have occurred even before the issuing of the decision/act are admissible (Art. 171 (2), 142 (2) APC). When an administrative decision is challenged before court, a party can request evidence collection of facts. There is no limitation on the facts that can be established – irrespective of whether these facts occurred before or after the decision was taken. The facts should be relevant to the subject of the court review. If the issue is not submitted to the discretion of the administrative body, after declaring null or revoking the administrative act the court decides the case on its merits (Art. 173(1) APC).

3) How can one get expert opinions in the procedures? Publicly available lists and registries of experts.

One or more experts appointed by the court could be involved to provide expert opinion in the procedure. Their involvement could be initiated by the parties or on the initiative of the court if, to ascertain facts, special knowledge is required that the court does not possess. The request for admission of an expert opinion specifies in which field special knowledge is required, the subject and task of the expertise, the materials that are provided to the expert(s), name, education and speciality of the expert(s). Expert opinion about legal questions is not admissible, as this would violate the competence of the court.

Approval of lists of experts qualified in accordance with defined criteria for the territory of the respective court district is regulated by the Judiciary System Act and an Ordinance of the Minister of Justice. The lists are promulgated in the State Gazette and are publicly accessible, incl. at the website of the Link opens in new windowMinistry of Justice. If necessary, the court can appoint an expert listed in another court district or not listed in any list.

3.1) Is the expert opinion binding on judges, is there a level of discretion?

The expert’s opinion is evidence and the court is not bound to accept the expert’s conclusion presented with the opinion, but considers it together with all other evidence on the case. The case-law practice has accepted that an expert opinion presented in another court case cannot be used.

3.2) Rules for experts being called upon by the court

An expert may be appointed ex officio from the list of approved experts for the respective court if, to clarify certain issues arising in the case, special knowledge in the field of science, art, crafts etc. needs to be obtained. The expert should be independent and each of the parties may request removal of the expert if there are grounds for presuming non-independence. The expert is obliged to immediately inform the court of all circumstances which may be grounds for removal. They are obliged to take a stand on the allegations in the request for its removal (Art 196 CPC). Тhe remuneration of experts is determined by the court in view of the work performed and the expenses incurred.

The conclusions of the expert opinion of the expert(s) appointed by the court is admissible as evidence regardless of whether this has been at the initiative of the parties or the court.

3.3) Rules for experts called upon by the parties

At the request of the party, an expert in a particular field of expertise may be appointed from the list of approved experts for the respective court. If necessary, an expert who is not included in the respective list may also be appointed as an expert. The expert is appointed by the court, but each party can object to the appointment if there are doubts about their independence. The conclusions of the expert opinion of the expert(s) appointed by the court is admissible as evidence if it is made at the initiative of the parties. However, expert opinion obtained privately by the parties outside the court proceedings is not admissible evidence.

3.4) What are the procedural fees to be paid and when in relation to expert opinions and expert witnessing?

When the court allows expert opinion and assigns experts appointed at the request of the parties or ex-officio, it determines an initial deposit, as well as the proportions of it to be paid by each party, and the timing for payment. Upon accepting expert opinion, the court rules on the final deposit to be paid in and the remaining amounts to be paid by the parties. If the timing for payment is not complied with, with the decision on the case the court adjudicates on the party to pay it in.

Expert fees are paid out from the sum deposited by the party to the proceedings or from the budget of the authority which has appointed the expert(s). The amount of the fee (hourly fee of 3% of the minimal wage at the time of appointment), the manner of calculating the time needed for the expertise, as well as the additional costs related to completion of the assigned task by the expert(s) are regulated by an Ordinance of the Minister of Justice pursuant to Art. 403 (1) of the Judiciary System Act (Ordinance № 2/29.06 2015 on the registration, qualification and remuneration of court experts).

1.6. Legal professions and possible actors, participants to the procedures

1) Role of lawyers, compulsory or not, how to contact, publicly accessible internet link to registry or website of the bar, perhaps of specialised lawyers in the environmental field

There is no specialisation of environmental lawyers or special qualification required to represent clients in environmental cases in the administrative courts. The general competence requirements apply - to be admitted to the bar and to be a member of the Bar Association or a judicial consultant to the authorities/parties to the case. Over the years, some lawyers have established reputation and experience as environmental lawyers, mostly defending cases of citizens and ENGOs against decisions on EIA, SEA or other authorisation of developments or approval of strategic documents.

1.1 Existence or not of pro bono assistance

There is no structured approach to the provision of pro bono assistance, and there appears to be an overall lack of awareness of pro bono services both among practitioners and among individuals who need such services according to an Link opens in new windowanalysis which states that there are four areas of pro bono legal assistance: NGOs offering pro bono services; pro bono law clinics at higher education institutions; private practitioners offering pro bono services as part of their general practice; and practitioners offering free legal representation to friends and family. Most pro bono services are provided on an ad-hoc basis. The law firms could decide to allocate part of the time of their lawyers[35] for pro bono legal services, however that is not regulated by the law but based on their good practice.

1.2 If pro bono assistance does exist, what are the main elements of the procedure to receive it (perhaps links to forms, court or agency in charge, address, telephone, email, ways to contact, etc.)?

The pro bono assistance is not structured or regulated by the law and is mostly ad hoc. If pro bono assistance is offered by NGOs, law firms, individual practitioners or law clinics (see above), they have their own rules of procedure for providing the assistance.

1.3 Who should be addressed by the applicant for pro bono assistance?

If pro bono assistance is offered by NGOs, law firms, individual practitioners or law clinics, they will have their own rules for application for assistance.

The National Legal Aid Bureau, the bar associations or the national legal aid hotline.

The National Register of Legal Aid contains a list of attorneys providing legal services to clients. Any attorney who wants to be on the list must file an application, approved by the local Bar Association Council, to be entered in the register. The register is published on the internet. The NLAB is exclusively competent for the decision on applications for legal assistance in the pre-trial stage.

2) Expert registries or publicly available websites of bars or registries that include the contact details of experts

Link opens in new windowThe National Register of Legal Aid

Link opens in new windowRegister of bar associations

3) List of NGOs who are active in the field, links to sites where these NGOs are accessible

Some of the active ENGOs include:

Link opens in new windowWWF Bulgaria

Link opens in new windowWildlife Society Balkani

Link opens in new windowAssociation of Parks in Bulgaria

Link opens in new windowZa Zemiata, with a special programme on Access to Justice

Link opens in new windowFor the Nature Coalition (not registered as a legal entity)

4) List of international NGOs, who are active in the Member State

Link opens in new windowGreenpeace (not formally registered as a legal entity)

Link opens in new windowWWF Bulgaria

Link opens in new windowFriends of the Earth and CEE Bankwatch Network

1.7. Guarantees for effective procedures

1.7.1. Procedural time limits

1) Time limit to challenge an administrative environmental decision (not judicial) by an administrative body (either superior or same level).

The administrative review appeal or protest (by the prosecutor) against an administrative (environmental) decision can be lodged in writing through the agency of the administrative authority whose act is contested within 14 days after communication of the act to the persons and organisations concerned. The administrative appeal is a procedural opportunity for challenging both legality and expediency, i.e. application of discretion by the administrative authority, of an act.

A tacit refusal may be contested within 1 month after expiry of the time limit within which the administrative authority was obligated to pronounce. Where the persons concerned have not been notified of the initiation of the proceedings, the time limit for contesting shall be 2 months from expiry of the time limit for ruling (Art. 84(2) APC).

The procedure set out in the APC is also applicable for appealing decisions of the competent body with regard to the plans, programmes and development proposals with the subject and purpose of preservation of the respective protected zone. An amendment of Art. 31, (19, 20) of the BDA from 2017 provides for a one-instance final court decision on appeals of acts related to sites designated as sites of strategic national importance by an act of the Council of Ministers.

2) Time limit to deliver decision by an administrative organ

The general rule is that the administrative act (decision) is issued within 14 days after the date of initiation of the proceedings. Administrative acts which declare or state already existing rights or obligations are issued within 7 days after the date of initiation of the proceedings if the act is of significance for recognising, exercising or extinguishing rights and obligations. The same time limit of 7 days also applies to acts related to issuing of documents of significance for recognising, exercising or extinguishing rights and obligations as well as refusal to issue such documents. However, this time limit of 7 days can be extended to 14 days if the issuance of an act includes an expert examination or where the personal participation of the person concerned is required for the performance of the expert examination.

Any case files which may be reviewed on the basis of evidence presented together with the request or proposal to initiate proceedings, or presented by another administrative authority which has them available, or on the basis of well-known facts, officially known facts or legal presumptions, shall be resolved without delay and no later than seven days (Art.57(4) APC). Information which another authority concerned has available on paper shall be provided within 3 days upon request, and the time limit for pronouncement shall start from the date of receipt of the information. Automatic notification within the meaning of the Electronic Governance Act is made immediately.

Where it is necessary to collect evidence on material circumstances or to allow other individuals and organisations to defend themselves, the act shall be issued within 1 month after initiation of the proceedings. Where the authority is collective, the question of the issuance of the act shall be addressed not later than at the first meeting after the expiry of the time limits referred to above. When another authority has to be approached for consent or opinion, the time limit for the issuance of the act shall be presumed to have been extended accordingly, but this extension may not exceed 14 days. In all cases of extension of the time limit, the administrative authority shall notify the applicant immediately.

The above-mentioned time limits do not include the preparatory activities in the procedures for issuing of the administrative act, e.g. in the case of environmental assessments (e.g. preparing the EIA or SEA report, carrying out public consultation/hearings). There are special time limits for issuing administrative decisions pursuant to the EPA. For example, the motivated screening SEA decision is issued within 30 days after the submitting of a request by the developer of the plan or programme, depending on the specific characteristics and their complexity. The competent authority issues an EIA decision within 45 days after the public hearing, accounting for its results.

3) Is it possible to challenge the first level administrative decision directly before court?

An administrative act may be contested before the court even if the possibility for administrative challenge of the administrative act has not been exhausted, unless otherwise provided for in thе APC or in a special law.

4) Is there a deadline set for the national court to deliver its judgment?

There is no stipulated deadline for the national courts to hear a case. The general rule according to the Civil Procedure Act (Art. 13) and the APC (Art. 127(1)) is that the court hears and rules on the case within a reasonable time limit. The APC stipulates a limit of 1 month after the hearing at which the examination of the case is completed for the court to render a decision. However, as mentioned in 1.7.3., the EPA stipulates special timelines for the courts to hear and deliver a decision in lawsuits on EIA/SEA decisions for projects, plans and programmes of strategic national importance or in the case of joint procedures where the Minister of Environment and Water issues an EIA decision and integrated permit/safety report (under the Seveso Directive). Such court cases should be heard within 6 months and a decision pronounced with 1 month after the case is completed.

5) Time limits applicable during the procedure (for parties, submitting evidence, other possible deadlines, etc.)

Within administrative procedures

The administrative authority affords the parties an opportunity to express an opinion on the evidence collected within the administrative procedure, as well as on the requests submitted, setting a time limit of 7 days.

The ruling whereby anticipatory enforcement is admitted or refused shall be appealable through the agency of the administrative authority before the court within 3 days after communication, regardless of whether the administrative act has been contested.

The administrative act, or the refusal to issue an act, shall be communicated following the procedure of notification of the APC within 3 days after its issuance to all persons concerned, including those who did not participate in the proceedings.

A tacit refusal may be contested within 1 month after expiry of the time limit within which the administrative authority is obligated to pronounce. Where the persons concerned have not been notified about the start of the proceedings, the time limit for contestation is 2 months after expiry of the time for pronouncing the act. The conditions and procedure for certifying and contesting the tacit consent shall be regulated in special laws.

An appeal or protest within the administrative appeal procedure shall be lodged in writing through the agency of the administrative authority whose act is contested within 14 days after communication of the act to the persons and organisations concerned.

If an appeal or protest does not satisfy the formal requirements for content and required annexes, a notification is dispatched to the submitters on resolving the non-conformities within 7 days after receipt of the communication. Where the submitter's address is not given, notification shall be effected by means of the posting of a notice at the place designated for this purpose in the building of the administrative authority within 7 days.

In cases where the appeal was submitted after expiry of the time limit, the appellant may request resumption of the time limit within 7 days after communication of the act on termination of the proceedings if non-compliance with the said time limit is due to special unforeseen circumstances.

Within 7 days or, where the administrative authority is collective, within 14 days after receipt of the appeal or protest, the first-instance administrative authority may review the matter and withdraw, on its own initiative, the contested act, revoke or amend the act, or issue the relevant act, if it has refused to issue the act, and notify the parties concerned of this.

Within 2 weeks after receipt of the case file, where single-person, or within 1 month, where collective, the superior authority competent to consider the appeal or protest shall render a reasoned decision.

Within the judicial procedures

Administrative acts shall be contestable within 14 days after communication thereof. A tacit refusal or tacit consent is contestable within 1 month after expiry of the time limit within which the administrative authority is obligated to pronounce the act.

Where the act or tacit refusal has been contested according to an administrative review procedure, the relevant time limit begins to run from the communication that the superior administrative authority has rendered a decision and, if the authority has not pronounced the act, from the latest date on which it should have pronounced the act.

Where a prosecutor has not participated in the administrative proceedings, the prosecutor may contest the act within 1 month after its issuance. There is no time limit for the contestability of administrative acts by a motion to declare nullity.

Within 14 days after receipt of the transcript of the appeal/protest, each of the parties may present a written response and provide evidence.

The ruling on the motion of anticipatory enforcement can be challenged within 3 days after communication thereof.

The minutes of a court public hearing are published on the website of the court within 14 days after the hearing.

1.7.2. Interim and precautionary measures, enforcement of judgments

1) When does the appeal challenging an administrative decision have suspensive effect?

The principle is that an appeal challenging an administrative decision has suspensive effect unless an anticipatory enforcement has been allowed by the administrative authority or by law. After its introduction in 1991, the principle of suspensive effect of the appeal of an individual administrative act has been eroded by the institute of anticipatory enforcement. Pursuant to the special provisions for such enforcement in a number of laws for the acts regulated by them and according to the powers under Art. 60 of the APC, the deciding administrative authority can admit, with a reasoned decision, anticipatory enforcement of the act (the decision being part of the act or a special order). The reasons could be protecting the life or health of individuals, protecting particularly important state or public interests, preventing a risk of the frustration or material impediment of the enforcement of the act, or where delay in enforcement may lead to a significant or difficult to repair damage.

The administrative act shall not be enforced prior to expiry of the time limits for its contestation or, where an appeal or protest has been lodged, until resolution of the dispute by the relevant authority. This rule shall not apply if all parties concerned request in writing an anticipatory enforcement of the act or if an anticipatory enforcement of the act is admitted by a law or by an order under Article 60 of the APC. The superior administrative authority may stay the anticipatory enforcement, allowed by order, upon the request of the contestant if this is required in the public interest or would inflict an irreparable detriment on the person concerned. In this case, the suspensive effect of the appeal will be restored.

Allowing and staying the anticipatory enforcement are defined by the criteria in Art. 60(1) and Art 90 (3) of the APC, the main criterion being significant or irreparable damages following delay in enforcing the act or irreparable damages from its anticipatory enforcement.

The defence against preliminary enforcement may be provided by means of appeal in a separate legal control procedure independently from appealing the administrative act itself. The order by which the preliminary execution is admitted or refused may be appealed through the administrative body before the court within 3 days after its announcement, regardless of whether the administrative act has been appealed. It shall not stop the admitted preliminary execution, but the court may stop it till its final decision. The ruling of the court is still subject to appeal according to Art. 60, (8) of the APC. Otherwise, the preliminary execution may be stopped within the main procedure under the conditions of Art. 166 of the APC, i.e. if it may cause to the appellant significant or hard-to-repair damage. The execution may be stopped only on the grounds of new circumstances.

2) Is there a possibility for an injunctive relief during the administrative appeal by the authority or the superior authority?

Suspension of enforcement of the administrative act, where it includes an order for anticipatory enforcement, or admission of anticipatory enforcement are both injunctive relief measures envisaged in the administrative process explicitly regulated in the APC. The provision of Art. 60 of the APC regulates the possibility for inclusion in the administrative act or in a separate act issued after its issuance of an order for its anticipatory enforcement without explicit indication of the administrative phase (Art. 60, para. 3; Art. 90, para. 2, p. 2 APC).

In order to allow anticipatory enforcement, the administrative body should duly assess and reason its decision based on the following criteria: the life or health of individuals, protecting particularly important state or public interests, preventing a risk of the frustration or material impediment of enforcement of the act, or where delay in enforcement may lead to a significant or difficult to repair damage. The superior administrative authority may stay the anticipatory enforcement, allowed by order, upon the request of the contestant if this is required in the public interest or would inflict an irreparable detriment on the person concerned. In this case, the suspensive effect of the appeal will be restored

3) Is there a possibility to introduce a request for such a measure during the procedure and under what conditions? Possible deadline to submit this request?

The material prerequisites for issuing an anticipatory enforcement order are regulated in Art. 60, para. 1 of the APC in relation to the assessment of the public interest and the private interest, namely: the administrative act includes an order on the anticipatory enforcement thereof, where this is required in order to ensure the life or health of individuals, to protect particularly important state or public interests, to prevent a risk of the frustration or material impediment of enforcement of the act, or where delay in enforcement may lead to a significant or difficult to repair damage, or at the request of some of the parties in protection of a particularly important interest thereof. In the latter case, the administrative authority requires an appropriate guarantee. All parties concerned can also request in writing an anticipatory enforcement of the act. On the request of the appellant, the higher administrative body can stay the preliminary execution admitted by an order (not by a law provision) if it not been necessitated by public interest or will cause irreparable damage to the person concerned (Art. 90 APC).

The initial request for admission of anticipatory enforcement, whether in the course of the administrative procedure or after the act is issued, is not conditional on compliance with a certain procedural time limit. Art. 60(4) of the APC explicitly provides that a repeat request for anticipatory enforcement by a party can be made solely on the basis of new circumstances.

4) Is there immediate execution of an administrative decision irrespective of the appeal introduced? Under what conditions?

The principle of suspensive effect of the appeal applies except in cases of anticipatory enforcement of the act. See 1.7.2. for anticipatory enforcement granted by the administrative authority and the reasoning (criteria) for such a decision. Beside cases of immediate enforcement provided in special laws[36], the enforcement is unconditional, including when the preliminary enforcement of the administrative act is allowed by law, which explicitly excludes the judicial review on this issue (Art. 166, para. 4 APC).

5) Is the administrative decision suspended once challenged before court at the judicial phase?

Pursuant to Art. 166, para 1 of the APC filing a complaint or protest with the court has suspensive effect (suspends the execution of the act). However, the administrative authority that issues the act can order the anticipatory enforcement of it, where this is required to ensure the life or health of individuals, to protect particularly important state or public interests, to prevent a risk of the frustration or material impediment of the enforcement of the act, or where delay in enforcement may lead to a significant or irreparable detriment, or at the request of some of the parties in protection of their particularly important interest. In the latter case, the administrative authority shall require a relevant guarantee.

On the other hand, the court may also allow anticipatory enforcement of the act under the conditions of Art. 167 of the APC. At any stage of the proceedings, the court, at a request of a party, may admit anticipatory enforcement of the administrative act under the same terms under which the enforcement would be admitted by the administrative authority. When such enforcement could inflict significant or difficult to repair damage, the court may admit it subject to the condition of payment of a security deposit at an amount set by the court. A second motion for such enforcement may be submitted to the court solely on the basis of new circumstances.

6) Is there a possibility for the national tribunals to provide injunctive relief (conditional upon a financial deposit)? Is there separate appeal against this order on the injunctive relief or the financial deposit?

When the administrative authority has granted by order anticipatory enforcement of the act (Art. 60(1) APC), the court may stay it at the request of the appealing party or of a statutorily constituted person affected by the administrative act. The reason for the suspension is the possibility of significant or difficult to repair damage (Art. 166(2) APC). The party must present evidence of the occurrence of property damage or damage from the violation of non-material rights, as well as its possible extent.

Suspension of the enforcement of acts for which the law has allowed anticipatory enforcement is admissible at any stage of the proceedings up to entry into effect of the decision. Acting on a motion by the contestant, the court may stay the anticipatory enforcement admitted by an effective order of the authority which has issued the act. The enforcement may be stayed solely on the basis of new circumstances and insofar as the legal review of the administrative acts is not explicitly excluded from the special law.

Financial guarantee is paid in the contrary case – when the court, at a request of a party, admits anticipatory enforcement of the administrative act. When such enforcement could inflict significant or irreparable damage, the court may admit it subject to the condition of payment of a security deposit at an amount set by the court. (Art. 167 APC)

1.7.3. Costs – Legal aid – Pro bono assistance, other financial assistance mechanisms

1) How can one calculate what costs will be involved when one intends to initiate a procedure – administrative costs, judicial costs, costs for filing a case, experts’ fees, lawyers’ fees, cost of appeal, etc.

The APC promotes as a principle access to justice, including no financial barriers (Art. 12), and stipulates that no stamp duties are collected and no costs are paid for any proceedings, except in the special cases provided for in the APC or in another law, as well as in the cases of judicial appeal against administrative acts and the bringing of a legal action under the APC.

In the Tariff for State Taxes, the tax for filing a cassation appeal against an administrative act by NGOs or individuals is 10 BGN (about 5 EUR[37]). However, the 2019 amendments to the APC significantly increased the tax for the cassation appeal from 5 BGN to 70 BGN for individuals, sole traders, state and municipal authorities and other persons with public functions or offering public services, and 370 BGN for organisations. The tax is not paid for the filing of a protest by the prosecutor or by individuals for whom it is acknowledged by the court or another authority (e.g. the chairman of the Supreme Administrative Court[38]) that they do not possess the means to pay. When a material interest could be defined in the administrative court proceedings, the state tax is proportional and amounts to 0.8% of the material interest of (value for) the party, but not more than 1,700 BGN, and in the event that the interest in the case is above 10,000,000 BNG the tax is 4,500 BGN.[39] Another part of the costs in judicial proceedings is the attorney’s fee, the minimum for which is defined in Ordinance № 1 on the Minimum Amounts of Attorneys’ Fees (e.g. for procedural representation, defence and assistance in administrative cases without a specific material interest, except for the special cases in para. 2, no less than 500 BGN, (Art.8(3)).

Where the court revokes the appealed administrative act or refusal to issue an administrative act, the stamp duties, court costs and fee for one lawyer, if the appellant has retained a lawyer, are reimbursed from the budget of the authority which issued the revoked act or refusal. The appellant is entitled to the same awarded costs upon dismissal of the case by reason of a withdrawal of the contested administrative act.

Where the court rejects the contestation or the appellant withdraws the appeal, the party for which the administrative act is favourable is entitled to be awarded costs. The appellant shall pay all costs incurred in litigation, including the minimum fee for one lawyer, fixed according to the ordinance to the Bar Act on minimum lawyers’ fees, if the other party has hired a lawyer, or, if the administrative authority has been represented by its staff legal adviser, remuneration is awarded in the amount determined by the court (Art. 78(8) CPC).

Where the court allows expertise and assigns experts appointed at the request of the parties or ex officio, it determines an initial deposit, as well as the proportions to be paid by each party, and the timing for payment. Upon accepting the expert opinion, the court rules on the final deposit to be paid in and the remaining amounts to be paid by the parties.

The expert fees are paid out from the deposit or from the budget of the authority which has appointed the experts. The amount of the fee, the manner of calculating the time needed for the expertise, as well as the additional costs related to completion of the assigned task by the experts are regulated by an Ordinance of the Minister of Justice pursuant to Art. 403 (1) of the Judiciary System Act (Ordinance № 2/29.06 2015 on the registration, qualification and remuneration of court experts).

The fee for claims by the affected parties for damages caused by illegal administrative acts is defined as a simple flat fee, i.e. not in accordance with the material interest (value for the party) in the case.

2) Cost of injunctive relief/interim measure, is a deposit necessary?

During any stage of the proceedings up to entry into effect of the ruling, acting on a motion by the contestant, the court may stay the anticipatory enforcement admitted by the authority under Article 60(1) if the enforcement could inflict a significant or difficult to repair damage on the contestant. The enforcement may be stayed solely on the basis of new circumstances. The motion referred to in paragraph (2) shall be examined in camera. The court shall immediately render a ruling. No deposit is required in the case of staying the enforcement (Art. 166 APC).

Conversely, at any stage of the proceedings the court, at the request of a party, may admit anticipatory enforcement of the administrative act under the same terms under which the enforcement would be admitted by the administrative authority. When such an enforcement could inflict significant or irreparable damage, the court may admit it subject to the condition of payment of a security deposit at an amount set by the court (Art. 167(1-2) APC) (see 1.7.2.5 and 1.7.2.6).

3) Is there legal aid available for natural persons?

Pro bono assistance is regulated by the Legal Aid Act (in force from 01.01.2006 with amendments), which aim is to guarantee equal access to justice for all persons in criminal, civil and administrative cases before all court instances by ensuring and providing effective legal aid. Legal aid funds are provided from the state budget. Legal aid is organised by the National Legal Aid Bureau (NLAB) and by the bar association councils. The aid is provided for consultations for reaching an out-of-the court agreement before the start of the judicial proceedings or for submitting a case to the court, for drafting documents necessary for submitting a case and representation in court. The aid is provided e.g. to persons and families who are eligible for receiving social aid monthly allowances.

The legal aid system covers cases where a party to an administrative case does not possess the financial means to pay the lawyer’s fee, wants to have one, and it is in interest of justice. Legal aid is provided in cases where, based on evidence issued by the competent authorities, the court or the chairperson of the NLAB decides that the party lacks the means to pay the lawyer’s fee. The court or the chairman decides on that taking into consideration the income of the person or of his/her family, his/her material assets declared, the family, health and employment status, and age. In the case of representation in the court, the court rules on the need of the party to obtain legal aid. In cases of legal aid for consultations or for drafting of documents for submission of a case, the decision is taken by the chairperson of the NLAB.

The national legal aid hotline is another means for providing legal aid to individuals under more relaxed conditions than the general rules. The hotline is administrated by the NLAB and aid is provided by lawyers listed at the NLAB.

The types of legal aid are:

  1. consultation with a view to reaching an agreement before commencement of the court proceedings or for filing a case, including consultation;
  2. preparation of documents for filing a case;
  3. procedural representation;
  4. representation upon detention.

For pp.1 and 2, the legal aid is free of charge and is provided to those who qualify for it.[40]

The legal aid system covers cases of p. 3 for court presentation where a party to an administrative case does not possess the financial means to pay the lawyer’s fee, wants to have one, and it is in the interest of justice. Legal aid is provided only to individuals and not to NGOs or other persons in cases where, based on evidence issued by the competent authorities, the court or the chairperson of the National Legal Aid Bureau (NLAB) decides that the party lack the means to pay the lawyer’s fee. The court or the chairman decides on a case-by-case basis taking into consideration the income of the person or of his/her family, his/her material assets declared, the family, health and employment status, and age. In the case of representation in court, the court rules on the need of the party to obtain legal aid. In cases of legal aid for consultations or for drafting of documents for submission of a case, the decision is taken by the chairperson of the NLAB.

Link to the Link opens in new windowNational Legal Aid Bureau website.

National legal aid hotline: (+359) 0700 18 250

4) Is there legal aid available for associations, legal persons, NGOs with legal personality and without legal personality? If yes, how to request legal aid? Is there pro bono assistance?

No, there is no state support and legal aid for associations, legal persons, or NGOs with or without legal personality. There is no access to a legal aid lawyer within the legal aid scheme. Legal aid is provided only to individuals who lack the means to pay the lawyer’s fee. However, some environmental projects, albeit rarely, provide opportunities for NGOs or informal local groups to obtain legal aid to challenge administrative decisions on approval of plans and projects with adverse environmental impacts. For example, the Biodiversity Foundation Bulgaria runs a charity programme – the Emergency Fund for Biodiversity – aimed at covering the costs for responding to hot nature protection problems and paying for lawyers, court experts, etc.

5) Are there other financial mechanisms available to provide financial assistance?

No, not strictly for legal aid but some EU-funded programmes or the recent Link opens in new windowActive Citizens Fund of the EEA grant programme in Bulgaria support provision of legal aid, incl. in the thematic outcome “Increased civic engagement in environmental protection/climate change”.

6) Does the ‘loser party pays’ principle apply? How is it applied by courts, are there exceptions?

The ‘loser party pays’ principle applies according to Art. 143 of the APC (Liability for Costs). Where the court revokes the appealed administrative act or refusal to issue an administrative act, the stamp duties, court costs and fee for one lawyer, if the appellant has retained a lawyer, are reimbursed from the budget of the authority which issued the revoked act or refusal. The appellant is entitled to the same awarded costs upon dismissal of the case by reason of a withdrawal of the contested administrative act. Where the court rejects the contestation or the appellant withdraws the appeal, the party to which the administrative act is favourable shall be entitled to be awarded costs.

When the court rejects the contestation or the appellant withdraws the appeal, the party to which the administrative act is favourable is entitled to be awarded costs. The appellant shall pay all costs incurred in litigation, including the minimum fee for one lawyer, fixed according to the ordinance to the Bar Act on minimum lawyers’ fees, if the other party has retained a lawyer. The only grounds for a possible reduction of the lawyer’s fee is provided in the CPC, applicable also in administrative litigation. The CPC states that the court can reduce the lawyer’s fee to be paid if the amount does not correspond to the legal and factual complexity of the case, but not to less than the minimum amount determined according to Art. 36 of the Bar Act.

Otherwise, no state duties and no court costs are paid on any administrative proceedings under the APC, as well as in cases of judicial appeal against administrative acts and upon bringing a legal action, unless provided for otherwise in another law

7) Can the court provide an exemption from procedural costs, duties, filing fees, taxation of costs, etc.? Any other national characteristics linked to this topic?

The tax for cassation appeal is not paid for filing of a protest by the prosecutor or by individuals for whom it is acknowledged by the court or another authority (e.g. the chairman of the Supreme Administrative Court) that they do not possess the means to pay.

1.7.4. Access to information on access to justice – provisions related to Directive 2003/4/EC

1) Where are the national rules on environmental access to justice available? Internet link to be provided. Are there other forms of structured dissemination?

There is a link to the website of the Ministry of Environment and Water (MoEW) with Link opens in new windowgeneral information about the Aarhus Convention and some guidance related to its provisions. Other forms of dissemination are provided mostly by NGOs on their Link opens in new windowwebsites or on the special project websites.

2) During different environmental procedures how is this information provided? From whom should the applicant request information?

Mostly, any interested person can get information about access to justice from the administrative decisions or court decisions, which state the authority before which the act can be appealed and the time limit for appeal (see also 1.7.4.3. and 1.7.4.4).

3) What are the sectoral rules (EIA, IPPC/IED, regarding plans and programmes, etc.)?

The Environmental Protection Act stipulates in Art. 3 that one of the principles of environmental protection is access to justice on environmental matters. The general rules of the APC apply (see 1.7.4.4). For the EIA procedure, the EPA requires that the EIA decision shall contain the authority and the deadline within which it can be appealed (Art. 99(3), item 9 EPA). The same requirement is stipulated in the SEA Ordinance referring both to the screening decision (whether to carry out an SEA) and to the final SEA decision (Art. 14(2) and Art. 26 (2)). The Ordinance on appropriate assessment (according to Art. 6.3 of the Habitats Directive) also has provisions about access to justice (the authority and the timeframe for appeal) for the screening decision and the final decision (Art. 20 (3) and Art. 28(2-3)).

In EIA procedures, within 7 days after issuing the decision on the EIA, the competent body or an official authorised by that body announces the EIA decision through the central mass media, on its website and/or in another appropriate way.

For IED installations, Art. 127 of the EPA states that decisions for granting, refusal, modification, updating or revocation of an integrated permit shall be announced by the competent authority through the mass media within 14 days after the date of issue, at the same time sending it to the states affected by the operation of the installation in case of cross-border transfer, and it can be challenged pursuant to the APC within 14 days after the notification.

The discretional court judicial competence according to Art. 127 of the APC is also relevant on admissibility of the appeal of the contested act issued under sectoral legislation on the components and factors of the environment in question. For example, the River Basins Management Plans (RBMP) and the actualisations of them, approved by the Council of Ministers upon a proposal of the Minster of Environment and Water (Art. 160 of the Water Act) were recognised as a general administrative act suitable for appeal under APC.[41] Conversely, the Air Quality Programmes were not designated as appealable administrative acts.[42], [43]

In the event that the relevant special law lacks an explicit arrangement on the procedure and deadline for appealing the authorisation act – in the concrete example within the Underground Resources Act concerning the prospecting permit issued – the general provisions of the APC, including the announcement procedure of Art. 61, shall apply.[44] Art. 140 (1) of the APC states that if the administrative act, or the announcement of its issuance, does not state before which body and in what timeframe an appeal can be submitted, the respective timeframe for appeal shall be extended to 2 months.

4) Is it obligatory to provide access to justice information in the administrative decision and in the judgment?

The administrative authority issues or refuses to issue the act by means of a reasoned decision. Where the administrative act is issued in writing, the act also states the authority before which the act can be appealed and the timeframe for appeal (Art. 59 (2), p.7 APC). The same applies to the decision. It states whether the court decision is subject to appeal, to which court and within what period. (Art. 172(1), p.8 APC).

5) Is translation, interpretation provided to foreign participants? What are the rules applicable?

The proceedings under APC (administrative and judicial) are conducted in the Bulgarian language (Art.14). Persons who have no command of the Bulgarian language may use their native language or another language which they specify. In such cases, an interpreter is appointed. Any documents presented in a foreign language must be accompanied by an accurate translation into the Bulgarian language. If the competent authority is unable itself to verify the accuracy of the translation, the said authority shall appoint a translator for the account of the party concerned, unless a law or international treaty provides otherwise. The costs of translation shall be borne by the person who has no command of the Bulgarian language if the administrative proceeding was initiated at his/her request, unless a law or international treaty provides otherwise.

1.8. Special procedural rules

1.8.1. Environmental Impact Assessment (EIA) - provisions related to Directive 2003/35/EC

Country-specific EIA rules related to access to justice

1) Rules on standing and access to justice relating to screening (conditions, timeframe, public concerned)

EIA screening is regulated by Art. 93 of the EPA and Chapter II of the EIA Ordinance. The Minister of Environment and Water or the Director of the RIEW is the EIA competent authority, depending on the characteristics of the project (e.g. the minister for EIA in projects with transboundary impacts). They rule on the need for EIA (screening decision) within 1 month of submission of the request by the developer of the proposal by publicly announcing the reasons for their decision. The screening decisions of the competent authorities are subject to appeal (administrative and/or judicial review) under the APC (within 14 days after the notification). The appeal can be submitted by interested parties who can prove they are directly affected by the proposal. It is established case-law that legal entities, including environmental non-governmental organisations, that meet the criteria of national law, namely registered under the relevant procedure[45], have standing in the judicial proceedings before a court (see also § 1, pp. 24-25 of the Additional Provisions of the EPA)

A special provision for access to justice on the screening decision is where decisions of the first-instance court of appeal against decisions of the Minister of Environment and Water on investment proposals, their extensions or amendments which are defined as sites of national significance by an act of the Council of Ministers and which are sites of strategic importance are final. In this case, the court considers the complaints and pronounces a decision within 6 months from their submission. The court shall announce its decision within 1 month of the session in which the case was closed.

2) Rules on standing relating to scoping (conditions, timeframe, public concerned)

The EIA scoping phase is defined in Art. 95 of the EPA and Chapter III of the EIA Ordinance.

The developer of the investment proposal informs the competent authority in writing by announcing its proposal on its website, if there is one, and through the mass media or other appropriate means. The competent authority announces the proposal on its website and notifies the mayor of the affected municipality, district and town hall in writing. The mayor of the respective municipality, district and town hall announces the investment proposal on their website, if there is one, or in a publicly accessible place.

The developer has to proceed on the basis of approved terms of reference for the scope and content of the EIA for the investment proposals listed in Annex No. 1 to EPA or for those proposals for which a screening decision for those listed in Annex No. 2 to carry out an EIA has been made. It consults the EIA competent authorities, other specialised departments and affected public with regard to the scope of the EIA. There is no administrative act issued at this phase to be challenged, hence no access to justice at the scoping EIA stage.

3) At what stage(s) can the public challenge the administrative decisions on environmental projects? Deadline to challenge decisions?

Screening decisions of the competent authorities are subject to appeal under the APC (within 14 days after the notification). The appeal can be submitted by interested parties who can prove they are directly affected by the proposal. It is established case-law that legal entities, including ENGOs, that meet the criteria of national law, namely registered under the relevant procedure, have standing in the judicial proceedings (see also 1.8.1.1). The scoping decision cannot be challenged, but interested parties, incl. the public and ENGOs are consulted (see 1.8.1.2).

4) Can one challenge the final authorisation? Under what conditions, if one is an individual, an NGO, a foreign NGO?

An appeal to challenge the final authorisation within the EIA/appropriate assessment procedure pursuant to the EPA or BDA can be submitted by interested parties who can prove they are directly affected by the proposal. It is established case-law that legal entities, including ENGOs, that meet the criteria of national law, namely registered under the relevant procedure, have standing in the judicial proceedings before a court (see also § 1, pp. 24-25 of the Additional Provisions of the EPA).

The participation in the EIA of foreign NGOs or citizens and their standing in court procedures is not regulated by the EPA. As a general principle, the APC applies to any foreigners who reside in the Republic of Bulgaria, insofar as the Constitution and laws do not require Bulgarian citizenship. The procedure for EIAs of investment proposals for construction, activities and technologies in the territory of the Republic of Bulgaria expected to have significant environmental impact on the territory of other states (transboundary EIA) is regulated by Art. 98(1) of the EPA. The Minister of Environment and Water notifies the affected states at the earliest possible stage of the investment proposal, but not later than the date of notifying the domestic population. Upon consenting for participation in the EIA procedure, the minister provides the affected state with a description of the investment proposal and information about possible cross-border environmental impacts, as well as information about the character of the decision expected to be taken. This might be one avenue by which NGOs in the affected countries can submit objections or comments, if their respective state provides for such opportunity. However, there is no national case-law identifying how this would apply to granting of standing and appealing the EIA decision.[46]

However, the access to justice regarding the final authorisation in terms of development consent, e.g. construction permit, is limited to interested persons according to the SDA, excluding the application of the presumption of interest for ENGOs that the EPA grants them[47]. The appeal is against the administrative acts which, depending on the type and size of the construction, are a necessary condition for permitting the construction, together with the environmental authorizations, under the EPA and the BDA[48]. The issued construction permit, or refusal to issue such a permit, is notified to interested persons under the conditions and by order of the APC. Interested persons in cases of new construction, or extension or upgrading of an existing construction: the assignor, the owners and holders of limited real rights in the land property, the person who has the right to build on another's property by virtue of a special law, and, in the case of constructions in neighbourhoods and properties under Art. 22(1) SDA, the assignor and owner of the land. The individual administrative acts under SDA, refusals for their issuance and administrative acts by which they are revoked or left in force, may be appealed to the relevant administrative court at the location of the real estate. Acts and refusals of the Minister of Regional Development and Public Works, the Minister of Defence and the Minister of the Interior are appealed to the Supreme Administrative Court. The prosecutor may file protests regarding the legality of acts subject to appeal (ENGOs and concerned citizens sending a signal to the prosecutor could be an indirect way for them to access justice by “delegating” to the prosecutor).

Complaints and protests must be filed through the authorities whose act is being appealed or protested within 14 days of its notification and, when the act is notified by promulgation in the State Gazette, within 30 days of its promulgation. Complaints and protests against acts approving a detailed development plan or issuing a permit for construction of a site of national importance or a municipal site of primary importance must be submitted through the body that issued the act within 14 days from the promulgation of the act in the State Gazette (Art. 215 SDA).

In the proceedings for amendment of a permit for use of a water body, the right to challenge on the grounds of § 1, items 24 and 25 of the EPA is generally recognised, but the organisation is not allowed due to the nature of the act - only for extension not affecting the parameters of the permit for use of a water body. For the issuance of the administrative act, in this case the proceedings under Art. 62a of the Act on Waters for disclosure of the requested change to the public and to holders of already issued water-use permits, are not applicable and therefore no right of appeal arises [49].

5) Scope of judicial review – control on substantive/procedural legality. Can the court act on its own motion?

The general principles of the judicial control set out in the APC also apply to EIA decisions. Judicial review is carried out for the legality of the grounds under Art. 146 APC: lack of competence; non-compliance with the established form; significant violation of administrative production rules; contradiction with substantive provisions; inconsistency with the purpose of the law.

Administrative acts are also equated with the administrative services under Art. 21, para. 3 of the APC. Acts constituting tacit refusal or tacit consent within the meaning of Art. 58 of the APC could also be subject to control.

For the courts acting on their own motion, the general principles apply, see 1.2.4.

6) At what stage are decisions, acts or omissions challengeable?

The screening decision and the EIA final decision completing the full procedure can be challenged. Within 7 days after issuing the EIA decision, the competent authority delivers the decision to the developer and announces the decision through the central mass media, on its website and/or in another appropriate way. The competent authority ensures access to the contents of the EIA decision, including its appendices, through its website and following the provisions of the Access to Public Information Act. Interested persons can appeal the decision on EIA pursuant to the APC within 14 days after the announcement of the decision. For screening decisions, see 1.8.1.1.

7) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

No, there is not. An administrative act may be contested before the court even if the possibility for administrative contestation of the act has not been exhausted, unless otherwise provided for in the APC or in a special law (Art. 148 APC) (see also 1.3.2).

8) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc., not meaning the requirement determined under point 12?

The procedural standing, and in particular the legal standing (interest) of the appellant, is not made conditional on his/her participation with objections or comments in the public hearing.

9) Fair, equitable – what meaning is given to equality of arms in the national jurisdiction?

The principles on which the proceedings provided for in the Administrative Procedure Code are based are set out in Chapter Two "Basic Principles", including Art. 8 of the APC. All parties concerned with the outcome of the proceedings under the APC enjoy equal procedural opportunities to participate in the proceedings for the defence of rights and legitimate interests. Within the limits of operational autonomy, similar cases should be treated equally under equal conditions. The court instructs the parties that they do not provide evidence of certain circumstances relevant to adjudication in the case (Art.9 APC). Where collection of further evidence, other than such contained in the case file, is necessary for clarification of the legal dispute, the rapporteur judge instructs the relevant party on the need to collect such evidence (Art. 163 APC). The court is obligated to cooperate with the parties to rectify any errors in form and any ambiguities in the statements of the parties and to instruct them that for certain circumstances relevant to the case they do not provide evidence (Art.171 APC).

10) How is the notion of “timely” implemented by the national legislation?

The principle of speed and procedural economy is essential for the administrative and judicial phases. Art. 11 of the APC provides that procedural actions shall be performed within the time limits established by the law, and within the shortest time necessary according to the specific circumstances and the purpose of the procedural action or administrative act.

Non-pronouncement by the administrative body within the term according to Art. 58 of the APC equates to tacit refusal, and, in cases provided for by a special law, tacit consent, which is appealable. A tacit refusal or tacit consent may be challenged within 1 month of expiry of the period within which the administrative authority is required to rule.

Administrative acts may be challenged within the prescribed time limits after their notification. In addition to disciplinary responsibility, officials responsible for failure to comply with the timeframe shall also bear administrative penalties under Chapter Eighteen of APC.

The one-instance and fast (6-month) legal review of investment proposals, their extensions or amendments of projects of national significance and strategic importance, though limiting access to justice, can be partially effective in the case of a favourable court ruling for the complainant, providing timeliness and a quicker result for preventing the implementation of plans and programmes with adverse environmental impacts (see 1.8.1.1).

11) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to this sector apart from the general national provisions?

No specific requirements for injunctive relief other than those mentioned in 1.7.2 have been laid down for challenging decisions concerning EIA. For example, at any stage of the proceedings up to entry into effect of the court decision acting on a motion by the contestant, the court may impose injunctive relief by staying the anticipatory enforcement admitted by the authority which has issued the act under Article 60(1) of the APC if the enforcement could inflict a significant or difficult to repair damage on the contestant. The enforcement may be stayed solely on the basis of new circumstances.

1.8.2. Integrated Pollution Prevention and Control (IPPC)/Industrial Emissions Directive (IED) - provisions related to Directive 2003/35/EC

1) Country-specific IPPC/IED rules related to access to justice

In the national legal order, Art.120 of the Constitution has adopted the concept of a general clause of court control over the legality of administrative acts. Access to justice on the prevention and control of pollution is regulated further by the APC and the special provisions of the EPA – Chapter seven “Prevention and restriction of industrial pollution”, Section II "Integrated permits". The conditions and order for issuing integrated permits are regulated with an Ordinance of the Council of Ministers (Art. 119(1) EPA) (IP Ordinance).

The decision for granting, refusal, modification, updating or revocation of an integrated permit (IP) is announced by the competent authority for permits through the mass media within 14 days after the date of issue, at the same time sending it to the states affected by operation of the installation in case of cross-border transfer. During this timeframe, the applicant shall also be notified in writing. Interested persons can appeal the decision pursuant the APC within 14 days after its announcement (Art.127 EPA).

2) Standing rules, at what stages can one challenge decisions (if one is an NGO, a foreign NGO, a citizen)? Is the final decision challengeable?

The special grounds (special clause) for appeal are provided in Art. 127 of the EPA following the principal legal logic and provisions for appealing individual administrative acts. It states that the decisions for granting, refusal, modification, updating or revocation of an integrated permit shall be announced by the competent authority through the mass media within 14 days after the date of issue, at the same time sending it to the states affected by operation of the installation in the case of cross-border transfer, and it can be challenged pursuant to the APC within 14 days after notification.

For challenges of decisions in a joint procedure (IED and EIA) for which the Minister of Environment and Water is a competent authority, the provisions of Art. 99 of the EPA apply – within 7 days after decreeing of the decision on EIA, the competent body or an official authorised by it announces the EIA decision through the central mass media, on its website and/or in another appropriate way.

The decisions of the executive director of the EEA are subject to administrative review before the superior administrative authority, which is the Minister of Environment and Water, as well as to legal review before the administrative court without the administrative review option being exhausted.

The right to appeal is enjoyed by interested persons as well as the public concerned as per § 1, pp. 24 and 25 of the EPA, which defines “public” and “public concerned”, and procedural standing is granted to affected individuals and legal persons and their organisations incorporated in line with the national legislation, incl. ENGOs incorporated in line with the national legislation.

Concerning foreign individuals, the general principle stipulated in the APC is that it applies only to foreigners who reside in the Republic of Bulgaria or who are participants in an administrative proceeding before a Bulgarian authority outside the Republic of Bulgaria, insofar as the Constitution and laws do not require Bulgarian citizenship. However, following the requirements of the Aarhus Convention, to which Bulgaria is a party (Article 3(9)[50], there should be no discrimination and no person should be excluded from the definition on the grounds of nationality, domicile, citizenship or seat.

3) Rules on standing and access to justice relating to screening (conditions, timeframe, public concerned)

There is no express screening procedure defined in the EPA or in the Ordinance on integrated permits (IP), thus no access to justice at this stage.[51].

4) Rules on standing relating to scoping (conditions, timeframe, public concerned)

There is no strict scoping phase in the procedure beside the assessment of the formal requirements for the permit application.

5) At what stage(s) can the public challenge the administrative decisions on environmental projects? Is there a deadline to challenge decisions?

The decision for granting, refusal, modification, updating or revocation of an integrated permit shall be announced by the competent authority through the mass media within 14 days after the date of issue. The notifications are published on the website of the EAA and in the public register containing data about the results of the issuance, refusal to issue, revocation, review, amendment and updating of IPs. Interested parties can appeal the decision in conformity with the APC within 14 days after its announcement.

6) Can the public challenge the final authorisation?

The decision of the competent authority concerning integrated permits can be appealed by interested persons (e.g. ENGOs with public interest or individuals) within 14 days after its announcement (Art.127 EPA).

7) Scope of judicial review – control on substantive/procedural legality. Can the court act on its own motion? Is it possible to challenge decisions, acts or omissions?

The general principles of the judicial control set out in the APC also apply to IED decisions. Judicial review is carried out for the legality of the grounds under Art. 146 APC: lack of competence; non-compliance with the established form; significant violation of administrative production rules; contradiction with substantive provisions; inconsistency with the purpose of the law.

Chapter fifteen of the APC, "Protection against Unjustified Actions and Inactions of the Administration", provides for procedures for litigation.

For the courts acting on their own motion, the general principles apply, see 1.2.4.

8) At what stage are these challengeable?

IED decisions for granting, refusal, modification, updating or revocation of an integrated permit are announced by the competent authority through the mass media within 14 days after the date of issue, at the same time sending it to the states affected by operation of the installation in the case of cross-border impacts and transfer of emissions. The permit applicant is also notified in writing. Interested persons can appeal the decision by the order of the APC within 14 days after being notified (Art.127(2) EPA).

Under the prerequisites of Article 256 of the APC, inaction on an obligation directly arising from a normative act can be challenged indefinitely. In this case, the provisions for challenging individual administrative acts shall be applied accordingly. Failure to perform factual actions which the administrative authority is obliged to perform by virtue of the law are subject to challenge within 14 days from the submission of a request to the authority for its execution. In its decision, the court orders the administrative authority to take the action, setting a time limit, or rejects the request.

9) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

An administrative act may be contested before the court even if the possibility for administrative contestation of the act has not been exhausted, unless otherwise provided for in the APC or in a special law (Art. 148 APC) (see also 1.3.2).

The administrative appeal is an opportunity, not a condition, for challenging the legality or expediency, i.e. application of the discretion by the administrative authority, of an act.

Administrative litigation is not one of the procedural preconditions for judicial appeal, i.e. the possibility of judicial appeal is not conditional on a prior appeal before the higher administrative authority (Art. 148 and Art. 149(1,3) of the APC).

10) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc., not meaning the requirement determined under point 12?

The procedural standing, and in particular the legal standing (interest), of the challenger is not made conditional on his/her participation with objections or comments in the public hearing.

11) Fair, equitable – what meaning is given to equality of arms in the national jurisdiction?

The principles on which the proceedings provided for in the Administrative Procedure Code are based are set out in Chapter Two, "Basic Principles", including Art. 8 of the APC, which can be traced to the relevant procedural institutes:

All parties concerned with the outcome of the proceedings under the APC shall enjoy equal procedural opportunities to participate in the proceedings for the defence of rights and legitimate interests. Within the limits of operational autonomy, similar cases shall be treated equally under equal conditions (see also 1.8.1.9).

12) How is the notion of “timely” implemented by the national legislation?

The principle of speed and procedural economy is essential for the administrative and judicial phases. Art. 11 of the APC provides that procedural actions shall be performed within the time limits established by the law, and within the shortest time necessary according to the specific circumstances and the purpose of the procedural action or of the administrative act.

Non-pronouncement by the administrative body within the timeframe according to Art. 58 of the APC equates to tacit refusal and, in the cases provided for by a special law, tacit consent, which is appealable. A tacit refusal or tacit consent may be challenged within 1 month of expiry of the period within which the administrative authority is required to rule.

Administrative acts may be challenged within the prescribed time limits after their notification. In addition to disciplinary responsibility, officials responsible for failure to comply with the timeframe shall also bear administrative penalties under Chapter Eighteen of the APC.

The IP and EIA decisions are obligatory for the issuing of permission for construction. The IP decision can be challenged by interested parties within 14 days after its announcement (see also 1.8.2.5).

An exception is made for facilities and equipment in respect of which an EIA procedure is completed with a decision confirming the implementation of the BAT in compliance with Art. 99a of the EPA. If the procedure is according to the EIA rules, there is a special time limit for decisions on decisions related to the implementation of projects designated as nationally significant and strategically important by an act of the Council of Ministers. In this case, the court proceedings are to be concluded within 6 months from the filing of the appeal and the court must announce the decision within 1 month after the hearing at which the case has been concluded.

13) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to this sector apart from the general national provisions?

No specific requirements for injunctive relief other than those mentioned in 1.7.2 have been laid down for challenging decisions concerning integrated permits. For example, at any stage of the proceedings up to entry into effect of the court decision acting on a motion by the contestant, the court may impose injunctive relief by staying the anticipatory enforcement admitted by the authority which has issued the act under Article 60(1) of the APC if the enforcement could inflict a significant or difficult to repair damage on the contestant. The enforcement may be stayed solely on the basis of new circumstances.

14) Is information on access to justice provided to the public in a structured and accessible manner?

In the context of implementation of the Aarhus Convention in Bulgaria, public awareness measures on information provision and public involvement in decision-making are more visible, for example through the EEA website. The Link opens in new windowMoEW website provides general information about the Aarhus Convention and some guidances related to its provisions. Other forms of dissemination are provided mostly by NGOs on Link opens in new windowtheir websites or on the special project websites, or as a result of European projects, for example: https://e-justice.europa.eu/content_access_to_justice_in_environmental_matters-300-bg-bg.do?clang=en. See also 1.7.4.

1.8.3. Environmental liability[52]

Country-specific legal rules relating to the application of the Environmental Liability Directive 2004/35/EC, Articles 12 and 13

1) Which requirements need to be fulfilled for natural or legal persons (including environmental NGOs) to have the decision taken on environmental remediation by the competent authority reviewed by a court or another independent and impartial body in accordance with Article 13(1) ELD?

The Act on liability for prevention and remedying of environmental damage (ELA) provides for several opportunities for judicial review of the competent authorities’ decisions. The most important is if authorities refuse to apply remedial measures. Any natural or legal person who has been affected, or may be affected, by environmental damage, or has sufficient interest in the taking of a decision for removing environmental damages, or claims that their right has been violated, may request that a competent authority initiate a procedure to determine and apply remedial measures. ENGOs are not required to prove such circumstances and their interest/standing is presumed by the law[53] (Art. 47 (2) ELA).

If the competent authority issues a decision (an order) for refusal of applying remedial measures in which they indicate the grounds for it and publish it on their website, interested parties, incl. ENGOs, can appeal the refusal under the APC (Art.48(5)). The usual 14-day time limit after notification of the decision applies.

When the applied preventive measures are not enough for prevention of an imminent threat from environmental damages, the competent authority[54] may suggest to the Minister of Environment and Water a proposal for applying preventive measures within 3 days from drawing up of the written statement about the damages. Within 10 days from receiving a proposal, the Minister issues an order for applying preventive measures, which shall be published on the website of the MoEW. The order can be appealed under the APC. The appeal does not stop its enforcement (Art.23(3-4) ELA). There is no established case-law on such cases, but it could be presumed that ENGOs will be granted standing in the judicial proceedings.

The draft order concerning remedial measures[55] which the operator is obliged to implement is made public on the website of the competent authority within 3 days after it is drawn up. The publication also contains an invitation to the public to submit their recommendations and opinions. The draft order is posted in a public place on the administration’s premises. Recommendations and opinions may be submitted in writing within 14 days from publication of the draft order. Within 7 days from expiry of the time for comments, the competent authority issues an order for applying the remedial measures and makes it public on its website. The order is subject to appeal under the APC within 14 days. (Art. 29 ELA)

In the case of factual complexity in determining the remedial measures and/or in the event that additional analyses are needed, the competent authority issues an order for the measures based on a report for remedial measures drawn up by the operator. The draft order is made public on its website with an invitation to the public to produce their recommendation and opinions within 14 days. The order for remedial measures is issued within 30 days from expiry of the 14-day timeframe for comments. Within 3 days from its issue, the order is published on the authority’s website. It is subject to appeal under the APC within 14 days. (Art. 30-32 ELA)

In the same vein, when the operator (person causing the damage) is unknown and 1) the measures can be determined without additional analysis or 2) when, because of factual complexity in determining the remedial measures additional analysis is needed, the order for remedial measures is subject to appeal under the APC within 14 days. (Art 33-34 ELA).

The order for remedial measures, when an unknown operator has been established, shall be published on the MoEW website and is subject to appeal under the APC. (Art. 36 ELA)

2) In what deadline does one need to introduce appeals?

The general 14-day time limit for appeal following the notification of the decision applies. A tacit refusal or tacit consent shall be contestable within 1 month after expiry of the time limit within which the administrative authority was obligated to pronounce. (Art. 149 (1-2) APC). See also 1.8.3.1.

3) Are there requirements for observations accompanying the request for action pursuant to Article 12(2) ELD and if yes, which ones?

The person that submits a request for action in an application and provides the following:

  1. address for correspondence;
  2. place, territorial scope and type of environmental damages caused;
  3. data on the operator which has caused the environmental damages, if known;
  4. actual or presumed reasons for the occurrence of the environmental damages;
  5. violated right of the applicant or sufficient interest in the taking of a decision to eliminate environmental damages;
  6. visible and/or presumed consequences of the environmental damages;
  7. recommendations for the undertaking of respective remedial measures, if the person has such;
  8. other circumstances and facts supporting the information and the observations in connection with the environmental damages caused.

4) Are there specific requirements regarding ‘plausibility’ for showing that environmental damage occurred, and if yes, which ones?

The competent authority considers the request within 7 days from receipt of the application. If the information provided is not complete, it returns the application with an indication of what additional information is to be provided by the applicant. The applicant shall provide the additional information within 7 days of receiving the instruction. If the applicant does not provide the additional information within the timeframe, the competent authority does not consider the request.

5) Is a certain manner required and/or time limits set, and if yes, which ones, as regards the notification of the decision by the competent authority to the entitled natural or legal persons (including the entitled environmental NGOs)?

If the competent authority issues a decision (an order) for refusal to apply remedial measures, it is published it on its website and interested parties, incl. ENGOs, are informed about it.

Within 10 days from receiving a proposal for applying preventive measures, the Minister issues an order for such measures, which shall be published on the MoEW website.

In the case of factual complexity in determining the remedial measures and/or in the event that additional analyses are needed, the competent authority issues an order for the measures. The draft order is made public on its website with an invitation to the public to provide their recommendations and opinions within 14 days.

The draft order about remedial measures[56] which the operator is obliged to implement is made public on the website of the competent authority within 3 days after it is drawn up. The publication also contains an invitation to the public to submit their recommendations and opinions. The draft order is posted in a public place on the administration’s premises. Recommendations and opinions may be submitted in writing within 14 days from publication of the draft order. Within 7 days from expiry of the time for comments, the competent authority issues an order for applying the remedial measures and makes it public on its website.

The orders for remedial measures when an unknown operator has been established shall be published on the MoEW website.

6) Does the MS apply an extension of the entitlement to request action by competent authority from damage to the environment in cases of imminent threat of such damage?

The law does not provide for specific extension of entitlement to citizens or NGOs to request actions in cases of imminent threat of damage. The initiative lies with the operator, where it is known, or otherwise with the competent authority. However, citizens or NGOs can give signals and inform the competent authority about the imminent threat. In the case of an imminent threat of environmental damages where the operator is not known, the competent authority, within 3 days after receiving the information, shall perform an on-site check of the facts and circumstances related to the imminent threat of environmental damages and draw up a written statement. (Art.21(1) ELA)

7) Which are the competent authorities designated by the MS?

  1. The Minister of Environment and Water (with competences defined in Art.7 of the ELA, e.g. issues orders for the application of preventive and remedial measures in the cases provided by law; holds consultations with the public and operators in determining remedial measures; applies coercive administrative measures and imposes the administrative penalties provided for in the law);
  2. The directors of the Regional Inspectorates on Environment and Water (RIEW) (with competences defined in Art. 8, e.g. carries out inspections for establishment of the operator and ascertainment of the immediate threat or the environmental damages caused; considers requests of representatives of the public for undertaking preventive and remedial measures; holds consultations with the public and with operators on determining remedial measures);
  3. The directors of the Basin Directorates for Water Management (with competences defined in Art. 9, e.g. undertake actions in the event of an immediate threat or in the event that environmental damages have been caused within the scope of the region for basin water management);
  4. The directors of the national parks (with competences defined in Art. 10, e.g. undertake actions in the case of an immediate threat of environmental damages or in the event that environmental damages have been caused in the territory of the national park).

8) Does the MS require that the administrative review procedure be exhausted prior to recourse to judicial proceedings?

No. An administrative act may be contested before the court even if the possibility for administrative appeal of the act has not been exhausted, unless otherwise provided for in the APC or in a special law. (Art. 148 APC) See also 1.3.2.

1.8.4. Cross-border rules of procedures in environmental cases

1) Rules on involving other countries? At which stage of the procedure is there a possibility to challenge environmental decisions?

In the event of transboundary effects of projects or plans or programmes, there are procedures for transboundary consultations with the affected states in line with the obligations under the relevant international Convention and EU Directives. § 1, p. 23 of the Additional Provisions of the EPA defines interested states in cross-border context as these states, which are source of negative impacts on environment, and the states, which might be affected by these impacts, Parties to the Convention for environmental impact assessment in cross-border context.

SEA: The developer of the plans and programmes sends a copy of the plans and programmes (PP) and of the SEA report to each state that could be affected by application of the PP subject to SEA and organises consultations with the state(s) which could probably be affected. The results of the consultations should be reflected in the SEA report and are taken into account in the statement of the Minister of Environment and Water or the director of the respective RIEW. Access to the SEA decision is ensured to affected and interested parties and each state likely to be affected by application of the PP. (Art. 87 (1-2), 88(2) EPA)

EIA: Regarding investment proposals for construction, activities and technologies in the territory of the Republic of Bulgaria that are expected to have significant impact on the environment in the territory of other state or states, the Minister of Environment and Water shall notify the affected states at the earliest possible stage of the investment proposal, but not later than the date of notifying the domestic population; upon consenting for participation in the EIA procedure, the minister provides the affected state with a description of the investment proposal and information about possible cross-border environmental impacts, as well as information about the character of the decision expected to be taken. (Аrt. 98 (1) EPA)

For Seveso III undertakings/facilities of high risk potential (upper-tier establishments), if there is a danger of occurrence of a large accident with transboundary effects, the Minister of Environment and Water notifies potentially affected states and provides information in compliance with the requirements of the Convention on the Transboundary Effects of Industrial Accidents. (Art. 111(2) and 116 (4) EPA)

IED installations: Within 14 days from conclusion of the checks for compliance of the contents and form of the application for an integrated permit with the requirements of the integrated permit (IP) ordinance, the competent authority initiates a procedure for granting the IP, announces and grants the interested parties equal access to the application for a month, including the states affected by the operation of the installation in the case of transboundary impacts (122a (5) EPA). The decision for granting, refusal, modification, updating or revocation of an IP is announced by the competent authority through the mass media within 14 days after the date of issue, at the same time sending it to the states affected by operation of the installation in the case of cross-border transfer.

ELD: In the case of an imminent threat of environmental damages or in the event that environmental damages have been caused by activities performed in the territory of the Republic of Bulgaria which affect or may affect another state, the Minister of Environment and Water shall immediately notify the affected state or the EU Member States by providing information about the damages and information about the procedures according to the law. Upon request by the competent authorities of the other state or the EU Member States, the minister provides additional information. (Art. 49, 52 of ELA)

2) Notion of public concerned?

The EPA, in its additional provisions, defines “public" as one or more natural persons or corporate bodies and their associations, organisations and groups, created in compliance with the national legislation. Further, "affected public" is members of the public who are affected, or are likely to be affected, or who have an interest in the procedures for approval of plans, programmes or investment proposals and in the taking of decisions for the issuing or updating of permissions by order of this Act or the conditions in the permission, including ENGOs established in compliance with the national legislation. However, both definitions concerning legal persons are to be interpreted as those established in compliance with national (Bulgarian) legislation. Concerning individuals, the general principle stipulated in the APC is that it applies only to foreigners who reside in the Republic of Bulgaria or who are participants in an administrative proceeding before a Bulgarian authority outside the Republic of Bulgaria, insofar as the Constitution and laws do not require Bulgarian citizenship. However, following the requirements of the Aarhus Convention, to which Bulgaria is a party (Article 3(9)[57], there should be no discrimination and no person should be excluded from the definition on the grounds of nationality, domicile, citizenship or seat[58]. The principle set out in the Constitution of the Republic of Bulgaria is that international treaties which have been ratified in accordance with the constitutional procedure, promulgated and have come into force with respect to the Republic of Bulgaria shall be part of the legislation of the State. They shall have primacy over any conflicting provisions of the domestic legislation. However, no case-law has been identified to reflect the position of the Bulgarian courts.

See also 1.4.1.

3) Do NGOs of the affected country have standing? When and to what court should they submit their appeals? What procedural assistance are they eligible for (legal aid, request for injunctive relief, interim measures, pro bono)?

See 1.8.4.2. The national law does not provide special rules on standing of NGOs of another state. However, the Aarhus Convention, which is part of the national legislation and, according to Art. 5(4) of the Constitution, shall have primacy over any conflicting provision of the domestic legislation, states in Art. 2(5) that “the public concerned” is members of the public affected, or likely to be affected, by the environmental decision-making or having an interest in it. The term should be seen in the light of the non-discrimination provision in Art. 3(9), which means that the obligation to inform the public concerned includes also, where appropriate, the public across national borders.[59]

In its findings on communication ACCC/C/2004/03 (Ukraine), the Compliance Committee to the Aarhus Convention observed that “foreign or international non-governmental environmental organizations that have similarly expressed an interest in or concern about the procedure would generally fall under these definitions as well.” It should be applied at least for participation in the decision-making process.[60]

Also, it should be noted that some of the international ENGOs have their branches registered in Bulgaria as legal entities with all procedural rights.

Only individuals are granted legal aid according to Bulgarian law. Mostly foreigners seeking asylum are granted legal aid. There is no provision for such aid in environmental cases.

Once foreign NGOs are granted standing by the court, they have procedural rights to also request injunctive relief and interim measures.

The Ordinance on the Terms and Conditions for EIA, Chapter Eight, provides for a procedural sequence of the transboundary consultations where Bulgaria is a country of origin or the country concerned. According to Art. 23 of the EIA Ordinance, the Ordinance is subsidiary "unless an international agreement between the Republic of Bulgaria and the State or States concerned provides otherwise." The main subject of it are the requirements for exchange of information and public discussion, as well as inclusion of the requirements of the affected party in the EIA decision, but without justice – it would mean recognition of the extraterritorial effect of the court decision. However, we could not draw a clear conclusion on what this would mean in practice for foreign citizens and NGOs without case-law identified that would reflect the position of the Bulgarian courts.

4) Do individuals of the affected country have standing? What procedural assistance are they eligible for (legal aid, request for injunctive relief, interim measures, pro bono)?

No national rules on granting standing to foreigners are to be found in the general principle stipulated in the APC that it applies only to foreigners who reside in the Republic of Bulgaria or who are participants in an administrative proceeding before a Bulgarian authority outside the Republic of Bulgaria, insofar as the Constitution and the laws do not require Bulgarian citizenship. Following the requirements of the Aarhus Convention (Article 3(9))[61], there should be no discrimination and no person should be excluded from the definition on the grounds of nationality, domicile, citizenship or seat. Foreigners could be considered as “the public concerned” affected, or likely to be affected, by the environmental decision-making or having an interest in it.

Persons who are non-citizens therefore have rights and interests under the Convention. For example, in cases where the area potentially affected by a proposed activity crosses an international border, members of the public in the neighbouring country will be members of the “public concerned” for the purposes of Art. 6 of the Convention.

Only individuals are granted legal aid according to Bulgarian law. Mostly these are foreigners seeking asylum. There are no provisions for such aid in environmental cases.

Once foreign citizens are granted standing by the court, they have procedural rights to also request injunctive relief and interim measures.

See also 1.8.4.2. and 1.8.4.3.

5) At what stage is the information provided to the public concerned (including the above parties)?

Following the procedures for transboundary consultations under the international conventions and EU Directives, foreign persons (individuals and NGOs) should be informed by the competent authority of their respective country, and following the procedures for access to information in that country depending on the procedure in question. For example, if Bulgaria is the affected country in the case of notification about expected significant impact on the environment in the territory of Bulgaria as a result of proposed activity in the territory of another state, the Minister of Environment and Water shall ensure public access to the information provided about EIA and the timely sending of all statements about the information before the taking of decisions by the competent authority of the other state.

See also 1.8.4.1. for different procedures.

6) What are the timeframes for public involvement including access to justice?

See 1.8.4.1. for different procedures, however it depends on the transboundary consultations. For example, in EIA procedures in the territory of the Republic of Bulgaria expected to have significant impact on the environment in the territory of another state or other states, the Minister of Environment and Water notifies the affected states at the earliest possible stage of the investment proposal, but not later than the date of notifying the domestic population.

7) How is information on access to justice provided to the parties?

See 1.8.4.1. for different procedures, however it depends on the transboundary consultations. For example, in EIA procedures in the territory of the Republic of Bulgaria expected to have significant impact on the environment in the territory of another state or other states, the Minister of Environment and Water notifies the affected states at the earliest possible stage of the investment proposal, but not later than the date of notifying the domestic population. However, there are no specific rules on providing information on assess to justice[62]. For example, within the SEA procedure public access (via the competent authority’s website, SEA online register) to the SEA decision and to the negative screening decision is ensured to the public, the affected and interested parties, and each state for that is likely to be affected by the application of the plan or programme (Art. 88(2) EPA). However, no relevant case-law has been identified to reflect the position of the Bulgarian courts on granting standing to foreign ENGOs and citizens in environmental cases.

8) Is translation, interpretation provided to foreign participants? What are the rules applicable?

The general rules of the APC apply. Persons who have no command of the Bulgarian language may use their native language or another language which they specify. In such cases, an interpreter shall be appointed. Any documents presented in a foreign language must be accompanied by an accurate translation into the Bulgarian language. If the competent authority is unable itself to verify the accuracy of the translation, the said authority shall appoint a translator for the account of the party concerned, unless a law or an international treaty provides otherwise. The costs of translation shall be borne by the person who has no command of the Bulgarian language if the administrative proceeding was initiated at the request thereof, unless a law or an international treaty provides otherwise. (Art 14 APC)

See also 1.4.4.

9) Any other relevant rules?

The Bulgarian Constitution stipulates that foreigners who reside in the Republic of Bulgaria shall have all the rights and obligations under this Constitution, with the exception of the rights and obligations for which the Constitution and laws require Bulgarian citizenship (Art. 26(2)). The Act on Access to Public Information states that every citizen of the Republic of Bulgaria has the right to access to public information under the conditions and by the order determined in this law, unless another law provides for a special procedure for searching, receiving and distributing such information. (Art.4)

In the Republic of Bulgaria, foreigners and stateless persons shall enjoy the right to access to public information. The right shall be used by all legal entities.

The Environmental Protection Act as special law in terms of access to information states in Art. 17 that everyone has the right to access available environmental information without the need to prove a specific interest, hence there is no restriction on such access.


[1] Environmental protection is carried out via legal mechanisms in all main branches of law – civil law, administrative law (with a framework Environmental Protection Act, many sectoral laws and the APC), administrative penal law (administrative offences punishable under the sectoral laws and the procedure provided in the Law on Administrative Offences and Punishments) and penal law (the Penal Code).

[2] In administrative law, access to justice is strongly influenced by the Aarhus Convention and the EU legal order, which means broader possibilities for A2J in procedures which are considered Art.6 of the Aarhus Convention’s procedures by the EU Acquis Communautaire.

[3] It should be mentioned that the CPC and the APC are relatively new pieces of legislation (2006-2008) and the jurisprudence in their realm is in a process of establishment.

[4] Art. 115 The ministers shall issue regulations, ordinances, instructions and orders.

[5] Напр. не подлежат на обжалване например заповедите за обявяване на защитени зони от Натура 2000 (чл. 12, ал. 7 от Закона за биологичното разнообразие), като предстои произнасяне на Конституционния съд по к.д. № 14/2020 г.

[6] Ruling № 466/ 14.01.2014 adm. case. № 15788/2013 Supreme Administrative Court with analysis on the appealability of the administrative act as such in the scope of Art. 6(1) a) and b) of the Aarhus Convention.

[7] According to the Bulgarian law on non-for-profit entities, there is a division by registration for NGOs in public and private interest – see below p.1.4.

[8] Defined as sites of national importance by an act of the Council of Ministers and are sites of strategic importance (Art.99(9) EPA)

[9] See Stalev Zh. „Link opens in new windowCase-law as a source of law“, Journal. „Съвременно право“, 1997, № 6

[10] The problem with the removal of the second instance in court cases for access to information on environmental matters, which has, as a result, a kind of “local justice” in such cases where sometimes the number of judges in a regional administrative court is very small (between 2 and 5).

[11] Decision of the Constitutional Court № 5/2019 г. Case №12/2018 г., State Gazette, 36/2019

[12] Районните съдилища са първа инстанция при оспоране на повечето актове, издадени в изпълнение на Закона за собствеността и ползването на земеделските земи, в този случай Административният съд е касационна инстанция. (Параграф 19 от Преходните и заключителни разпоредби на АПК). Районните съдълища са първа инстанция при обжалване на наказателно постановление за налагане на административно наказание (глоба) (Чл. 58д ЗАНН)

[13] The general administrative acts are the administrative acts of a single legal effect whereby rights or obligations are created or rights, freedoms or legitimate interests of an indefinite number of persons are affected, as well as the refusals to issue such acts. (Art.65 APC)

[14] Административен нормативен акт, за който се приема, че не подлежи на обжалване по чл. 39 - обявяване и чл. 42.- изменение, от ЗЗТ; отказът обаче е обжалаем Решение № 4144 от 04.04.2017 г. адм.д.. № 12973/2016 г., 5 чл.с-в ВАС.

[15] See Decision of the Constitutional Court in case N 12/2018, SG N 36/2019

[16] Other grounds for third cassation instance appeal are court decisions on a substantive or procedural issue: decided in contradiction of the obligatory practice of the Supreme Court of Cassation and the Supreme Court in interpretative decisions and decrees, as well as in contradiction of the practice of the Supreme Court of Cassation; decided in contradiction with acts of the Constitutional Court of the Republic of Bulgaria or of the Court of Justice of the European Union; of importance for the exact application of the law, as well as for the development of the law. (Art.280(1) CPC)

[17] № 7560/16.06.2020, case. № 12754/2019, VI section, SAC /defining the public concerned is a legal, not an expert, issue/; ECLI:BG:AP300:2015:20150900154.001 /criteria to reject an action on cancellation of an ENGO/; №11516/31.10.2016 case № 1092/2016, V section, SAC /the control regarding other administrative acts is beyond the scope of judicial review within the subject matter of the case/

[18] Carrying out an integrated procedure is regulated according to Art. 94(4) of the EPA as an option depending on the receipt of a request of the assignor, which is binding in its application in this hypothesis and does not imply an assessment of a specially authorised and competent body - the Minister of Environment and Water without providing for a decision at this stage. It can be compared with the hypothesis under Art. 93 (10) of the EPA for appealing screening decisions of the Ministry of Environment and Water, referring to national sites. The systematic place of the provision is in Art. 99 of the EPA, which regulates final decisions on EIA.

[19] № 1704/17.02.2016, case № 13691/2015, 5-member composition, SAC /the grounds of the requirement to carry out an assessment under Art. 6 of Directive 92/43/EEC on conservation of natural habitats include probability, but not certainty, of the negative effect/. This example is indicative of the scope of the court's review of the obligation, at the expense of the limited degree of discretion, for the competent authority to require an assessment.

[20] The same right is granted to a person who was not a party to the main proceedings (Art. 245-249 APC - Cancellation at the request of a third party). The possibility for a party to the proceedings to reverse a final decision was used at least in a couple of cases by investors who found support in the SAC.

[21] Проблемно е отсъствието на процесуално качество на засегната общественост при оспорване на отрицателно решение по ОВОС, сключване на споразумение с възложителя и окончателно обезсилване на решението на РИОСВ направо от съда. (Определение № 323/17.09.2020 г.. по адм. д. № 528/2020 г.на АС – Велико Търново)

[22] The Constitutional Court shall act on an initiative from no fewer than one fifth of all members of the National Assembly, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court or the Prosecutor General. A challenge to competence may also be filed by a municipal council (in the case of competence disputes between the National Assembly, the President and the Council of Ministers, and between the bodies of local self-government and the central executive branch of government) and by the Supreme Bar Council (for declaring as unconstitutional an Act which violates the rights and freedoms of citizens).

[23] See Art. 120 and 127 of the Constitution on the powers of the court and the prosecutor within the judicial system to control and to observe the legality of administrative acts.

[24] In this regard, two categories of cases permitting decisions can be outlined (under Art. 9(2) of the Aarhus Convention and others). In the category of “others” fall planning measures of a general nature, such as protected areas management plans, and also normative administrative acts. Standing in the two latter categories is granted on the basis of assessment of “interest”. The fact that standing when challenging protected areas management plans is not problematic at all does not mean that in other areas, such as air quality programmes, there is no problem.

[25] See case № 7384/2015, Supreme Administrative Court

[26] Not-for-profit organisations (NGOs) freely determine their goals and can identify themselves as organisations carrying out activities for public or private benefit. The determination shall be made by the statutes, the constituting act or amendments in them.

[27] Following art. 146 of the APC, they are lack of competence; non-compliance with the established form; material breach of administrative procedure rules; conflict with provisions of substantive law; non-conformity with the purpose of the law.

[28] № 935/27.05.2011 г. case № 521/2011, Administrative Court Plovdiv /on the conformity of the extension of a permit of river dragging activities with the RBMP/; № 156/08.01.2014 Г. case № 14789/2013, 5-member composition SAC /on the refusal for operating authorisation for utilisation of motor vehicles derived from the use/, for other examples, see footnote 3,4

[29] Supreme Administrative Court (case № 7384/2015)

[30] Supreme Administrative Court, case № 12064/2017 /The nature of the act as an internal act within the municipal administration is an obstacle to challenging the Air Quality Programme issued under Art. 27 CAAA.

[31] But not for all administrative acts, e.g. decisions of the municipal councils on adopting programmes under Art. 27 of the Clean Ambient Air Act for improving air quality.

[32] ECLI:BG:AD718:2015:20150700930.001, confirmed by SAC, case № 7777/2015

[33] See art. 103 and 104 of the Territorial Development Act

[34] The provision has been declared unconstitutional by the Constitutional Court at the request of the Supreme Bar Council, case № 2/2020. Decision № 14/2020 (State Gazette No. 92/2020).

[35] In this example, up to 40 hours’ attorney work annually: Link opens in new windowhttp://madaralaw.com/en/Pro-bono.c109.

[36] By virtue of Art. 22, item 1 of the APC, the procedure for issuing individual administrative acts under the APC shall not apply to administrative acts which, under a special law, are issued and executed immediately. The effect of the acts that are immediately enforced may be exempted not only from the conditions for the expiry of the time-limit for the appeal and the hindering (suspensive) effect of the appeal or the protest for their challenge, but also from the requirement to notify the addressees of the act. Their enforcement is unconditional under the preconditions laid down by the legislator in the relevant special law, most often in connection with acts imposing coercive administrative measures. For example, the decisions of the commission, with which concentration between enterprises is prohibited or termination of the violation is ruled, including by imposing of behavioural and/or structural measures for restoration of the competition, shall be subject to immediate execution. (Art.66(1) Competition protection Act)

[37] 1 BGN is approximately 0.5 EUR and the exchange rate is fixed by law.

[38] С изменения в АПК ДВ бр. 15/2021 г. се преурежда проверката за редовност на касационната жалба чл. 213а - ще се извършва от съда, чието решение се обжалва, включително с произнасяне за освобождаване от внасяне на държавна такса, спиране на изпълнение чл. 166 или допускане на предварително изпълнение чл. 167. Първоинстанционният съд може да остави жалбата без движеине или да прекрати делото с определение на основанията по чл. 215 АПК и чл. 213а, ал. 3. Съгласно новелата на чл. 229, ал.1, т. 1, не подлежат на обжалване с частна жалба определениета за прекратяване по чл. 213а, ал. 7, т.е. произнесени по жалба срещу актове за връщане и прекратяване поради неизпълнено в срок на указание за отстраняване на нередовност, в съответната фаза на процеса, на която е установено – при проверката за редовност на касационната жалба от първоинстанционния съд - чл. 213а, ал. 1 изр 2 или ал. 2 (на основание чл. 215), при контролната проверка на първоинстанционната проверка от председателя на касационния съд или неговите заместници, съответно председателя на отделението - чл. 213а, ал. 6 и (накрая) - от съда в хода на касационното производство - чл. 213а, ал. 6, т. 2, втора хипотеза, както и по жалба срещу отказ за освобождаване от държавна такса. С изменението е предвидено и ново служебно правомощие на съда за следене на редовността и даване на указания за нередовност на процесуалните действия -чл. 142б

[39] p. 4.3 of the Decision of the Constitutional court, case № 12/2018, SG 36/2019

[40] E.g. to persons and families who meet the conditions for receiving monthly allowance by the order of Art. 9 and 10 of the Regulations for implementation of the Social Assistance Act.

[41] The issues on the admissibility of an appeal in the case are resolved by Ruling № 13598/09.11.2017, case № 9701/2017 SAC.

[42] See footnote 13 above about case № 12064/2017, SAC

[43] The admissibility of complaint in regard to the nature of the administrative act is grounds on its own separate from the legal personality of the ENGO and the legal interest.

[44] Ruling № 6343 from 15.05.2018, case № 5051/2018 , 5-member composition, SAC

[45] Not-for-profit legal entities (NGOs) freely determine their goals and can identify themselves as organisations carrying out activities for public or private benefit. The identification shall be made by the statutes, the constituting act or amendments in them. The rules for NGOs for public benefit are detailed in Chapter III of the Act on not-for-profit legal entities (http://bcnl.org/en/legislation/law-for-the-non-profit-corporate-bodies-legal-entities.html)

[46] It should be mentioned that the Aarhus Convention Compliance Committee (ACCC) findings emphasise that such a right should be granted even for members of the public of a country whose authorities did not take steps to conduct a transboundary EIA procedure (see ACCC findings in C-71 and C-91).

[47] In its findings in the C-58 case, the ACCC states that: “By not ensuring that all members of the public concerned having sufficient interest, in particular environmental organizations, have access to review procedures to challenge the final decisions permitting activities listed in annex I to the Convention, (paras. 79–81), the Party concerned (Bulgaria) fails to comply with article 9, paragraph 2, in conjunction with article 9, paragraph 4, of the Convention.

[48] To the issued permit for construction is annexed an EIA decision or a decision for assessment of the need for EIA, as well as a decision for approval of a safety report for construction or reconstruction of an enterprise and/or facility, or parts thereof, with high risk potential (Art. 149 (6) SDA).

[49] Ruling № 9488/28.06.2011in case № 5702/2011, III division SAC

[50] “Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.”

[51] The administrative procedural actions of the administrative authority concerning the issuance of the act shall not be subject to separate appeal, unless otherwise provided for in this Code or in a special law. (Art. 64 APC)

[52] See also case C-529/15.

[53] Тhe well-known facts, the facts for which the law formulates a presumption, as well as the facts which are known to the body ex officio shall not be subject to proving. (Art.37 (2) APC). It is not necessary to prove facts for which there is presumption established by law. Rebuttal of such presumption is permitted in all cases, except when prohibited by law. (Art.154(2) CPC)

[54] The ELA refers here to the competent authorities as listed in 1.8.3.7, namely: the directors of the Regional Inspectorates on Environment and Water (RIEW); the directors of the Basin Directorates for Water Management; the directors of the national parks. The same applies when referring to competent authorities in this section.

[55] Measures to control, capture, remedying of the polluters and/or other factors, caused the ecological damages, in view to restriction or preventing of further ecological damages, negative impacts over human health and further affecting services from the natural resources.

[56] Measures to control, capture, remedy the polluters and/or other factors that caused the environmental damages with a view to restricting or preventing further environmental damages, negative impacts on human health and services from natural resources.

[57] “Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.”

[58] Persons who are non-citizens therefore have rights and interests under the Convention. For example, in cases where the area potentially affected by a proposed activity crosses an international border, members of the public in the neighbouring country will be members of the “public concerned” for the purposes of article 6. Moreover, in its findings on communication ACCC/C/2004/03 (Ukraine), the Committee observed that “foreign or international non-governmental environmental organizations that have similarly expressed an interest in or concern about the procedure would generally fall under these definitions as well.”

[59] The Aarhus Convention. An Implementation Guide. Second Edition. 2014

[60] Ibid.

[61] “В рамките на съответните разпоредби на настоящата Конвенция, обществеността следва да има достъп до информация, възможност да участва при вземането на решения и достъп до правосъдие по въпроси на околната среда без дискриминация въз основа на гражданство, националност или местожителство, а в случай на юридически лица, без дискриминация въз основа на мястото, където са регистрирани, или действител-ното място на упражняване на дейност.”

[62] Upon consenting to participate in the EIA procedure, the ministry provides the affected country with a description of the investment proposal and information on possible transboundary environmental impact, as well as information on the nature of the decision that is to be taken. (Art. 98(1) EPA)

Last update: 08/04/2021

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Access to justice falling outside of the scope of EIA, IPPC/IED, access to information and ELD

1.1. Decisions, acts or omissions concerning specific activities falling within the scope of EU environmental legislation outside the scope of the EIA and IED Directives[1]

1) What are the applicable national statutory rules on standing for both individuals and NGOs wishing to obtain a) an administrative review and b) a legal challenge before a national court in respect of the procedures for adopting the decision, act or omission and its content (in particular, the conditions to be fulfilled and any time-limits that apply to the submission of a challenge)? How effective is the level of access to national courts in light of the CJEU case law and any related national case law?

The system of national environmental legislation largely follows the structure of transposition of relevant EU sectoral directives by environmental components and factors. Despite the differences in their purpose, the EIA procedure, as well as the procedures under the special laws, constitute administrative authorisation for environmental interventions with a similar legal characteristic of an environmental permit , i.e. an administrative act favouring the subject of the act but with a specific subject to protect a common environmental value.

According to the regulations for drafting normative acts, after 2007 the EU directives, whose requirements are introduced in Bulgarian legislation, are indicated in the Additional Provisions section of the relevant legal act.

Biodiversity Act

The assessment of compatibility with the conservation objectives of the protected areas established in accordance with the Birds and Habitats Directives (appropriate assessment) shall be carried out jointly with the EIA and the SEA respectively, where the project, programme or investment proposal is subject to such an assessment according to Chapter Six of the EPA. Where the investment proposal, plan or programme does not fall within the scope of the EPA, pursuant to paragraph 3 of Art. 31 of the Biodiversity Act, the appropriate assessment is carried out in accordance with the Ordinance on appropriate assessment. The decisions of the competent authority may be appealed pursuant to the Administrative Procedure Code. The decisions of the first-instance court on appeals against decisions of the competent body on assessment of plans, programmes and investment proposals related to the implementation of sites which are defined as sites of national importance by an act of the Council of Ministers and are sites of strategic importance are final. (Art.31(19) Biodiversity Act)

Genetically Modified Organisms Act

The GMO Act introduces the requirements of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC and of Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms. The GMO Act explicitly stipulates that interested parties may appeal under the Administrative Procedure Code against refusals to register premises for contained use of GMOs and refusals to issue permits for contained use of GMOs and permits to release GMOs into the environment. Decisions to register premises for contained use of GMOs and to issue permits for contained use of GMOs and permits to release GMOs into the environment can be challenged by the interested parties under the general appeal procedures against administrative acts.

Water Act

Art. 1 states that the purpose of the Act is to ensure integrated water management in the public interest and for the protection of the health of the population. The Water Act transposes Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy and has the role of a framework law in the sector of water management.

The issuance of administrative acts for water use (permits) – permits for water abstraction and permits for the use of a water body are regulated in Chapter Four of the Water Act. There are cases when a permit is not required, as well as the special regimes of extraction of mineral waters which are exclusive state property through concessions under the Concessions Act. Тhe permit or the decision for refusal of the competent authority is subject to appeal before the respective administrative court by order of the Administrative Procedure Code. (Art.71 Water Act)

Seveso III laws

The Disaster Protection Act transposes Directive 2012/18/ EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC (Seveso III directive). The main regulation of the Seveso regimes is in the EPA and in the Ordinance for prevention of major accidents with hazardous substances and for restriction of consequences from them. Decisions for approval or disapproval of the safety report may be appealed under the Administrative Procedure Code within 14 days from their announcement.

Environmental Noise Protection Act

The law introduces the requirements of Directive 2002/49/ EC of the European Parliament and of the Council of 25 June 2002 on the assessment and management of environmental noise (OJ L 189/12 of 18 July 2002).

There is a distinction between the assessment, management and control of noise in residential and public buildings, which are carried out in accordance with the Health Act, as well as with the by-laws on its implementation, with the Noise Protection Act being subsidiary.

Upon ascertainment of a violation of the prohibition for emitting noise (e.g. of open areas in zones and territories, intended for residential construction, recreational zones and territories and zones with mixed purpose of road vehicles), the officials appointed by the Minister of the Interior issue a written order for suspension of the sound system. The order may be appealed pursuant to the Administrative Procedure Code, as the appeal does not suspend the execution. (Art.28a)

Waste Management Act

The issued permit and other decisions concerning the site for waste treatment may be appealed before the respective administrative court pursuant to the Administrative Procedure Code. The appeal does not suspend the execution of the appealed act. (Art.77)

Other laws that provide rules for access to justice aim at protecting the sustainable use of natural resources, in particular land-use regimes and changing the designation of agricultural land, forests and the Black Sea coast, exploitation of mineral resources, and the land-use designation in the General Spatial Plan: the Agricultural Land Conservation Act, the Forestry Act, the Black Sea Coast Spatial Development Act, the Underground Resources Act, the Territorial Development Act.

The reasoning of the Bulgarian courts when deciding on legal standing has also included reference to the case-law of the Court of Justice, in particular Case C-240/09. The court examined the grounds of a legal review of procedures involving the participation of the public concerned. In this case, a special legal standing, arising from the requirements of Art. 9, para. 2 of the Aarhus Convention in relation to the projects of Annex I to the Convention, for which approval the national law provides for public consultation, was recognised (e.g. Ruling 466/14.01.2014, administrative case № 15788/2013, 7 chamber of SAC[2]).

The court maintains that the legal standing, in the hypotheses of contesting acts directly reflecting on the environment, shows a deviation from the right to challenge referred to in Art. 147(1) APC content of the right to challenge. As an international treaty which, in view of the provision of Art. 5(4) of the Constitution, has primacy over national provisions that contradict it, and in view of the special EPA, the existence of legal standing of the association should be assessed in accordance with Art. 9, § 2 of the Convention. According to this provision, access to justice is considered to be provided to non-governmental organisations that have sufficient interest or an infringed right; for the purposes of the Convention, the interest of any non-governmental organisation which meets the requirements of national law and works to protect the environment - Art. 9, §2 in conjunction with Art. 2, item 5 of the Convention, assuming that the organisation may also have an infringed right. The provisions of §1, item 25 and item 24 of the EPA are similar. Given this relevant legislation, as far as the legal standing of NGOs and the indisputably established registration of a private complainant in accordance with national law and the subject of “activity – environmental protection” are concerned, they can have legal standing, provided the other requirements of the Convention are also complied with[3].

For procedures that do not require public participation, the general requirement for legal standing within the meaning of national law is applied under the conditions of Art. 147 of the APC, i.e. for having legal standing as an owner of a (potentially) violated or infringed right.

2) What is the scope of the administrative review (if applicable) and the judicial review (if applicable)? Does it cover both procedural and substantive legality?

As a general principle applicable to procedures under the laws listed above, within the administrative review both the appropriateness and legality of the administrative act may be challenged. Judicial review is only for lawfulness in the case of procedural violations that are substantial and breach material law. According to Art. 146 of the APC, the grounds for legal review are:

  1. lack of jurisdiction;
  2. non-compliance with the established form;
  3. significant violation of administrative production rules;
  4. contradiction of substantive provisions;
  5. non-compliance with the purpose of the law.

The court monitors ex officio the validity, admissibility and conformity of the administrative decision with substantive law.

3) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

The choice to challenge an administrative act for its legality and expediency first within an administrative review before a superior authority or directly with the court for its legality is at the discretion of the contesting party, but with the reservation that a mandatory phase of challenge before the higher administrative body might be introduced by law. Art. 148 of the APC stipulates that the administrative act can be challenged before the court without exhausting the possibility of challenging it by administrative procedure, unless otherwise provided by law, including in the Code itself. Such was the provision of Art. 216 of the Spatial Development Act (repealed SG, No. 25 of 2019), which did not allow direct challenge to the court of a building permit and the other acts of the chief architect referred to therein.

See also 1.7.3.

4) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc.?

The exercise of the right to participate, incl. for the public concerned, in the administrative process for issuing of an act is not among the statutory requirements for standing and challenging this act.

See also 1.8.1.8 and 2.1.1.

5) Are there some grounds/arguments precluded from the judicial review phase?

Procedural violations which do not necessarily affect the discretion of the decision-making authority as expressed in the contested act do not constitute grounds for annulment in the legal review. The court is not competent to rule on the discretion of the decision-making authority (expediency) for making a choice between more than one legally valid alternatives.

6) Fair, equitable – what meaning is given to equality of arms in the national jurisdiction?

See the general principle of equality in the Administrative Procedure Code, which is explained in 1.8.1.9. in the context of EIA procedure.

7) How is the notion of “timely” implemented by the national legislation?

The general principles of speed and procedural economy as essential for the administrative and judicial phases are reviewed in 1.8.1.10 within the context of EIA procedure.

8) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to each sector apart from the general national provisions?

The general rules described in 1.7.2. apply.

9) What are the cost rules to bring a challenge on access to justice in these areas? What are the possible consequences if one loses a case before court? What are the safeguards against the costs being prohibitive, and do these include express statutory reference to a requirement that costs should not be prohibitive?

The general rules about costs described in 1.7.3. apply.

1.2. Decisions, acts or omissions concerning the administrative procedures to be followed to comply with national implementing legislation for the Strategic Environmental Assessment (SEA) Directive 2001/42/EC[4]

1) What are the applicable national statutory rules on standing for both individuals and NGOs wishing to obtain a) an administrative review and b) a legal challenge before a national court in respect of the procedures for adopting the decision, act or omission (in particular, the conditions to be fulfilled and any time limits that apply to the submission of a challenge)? How effective is the level of access to national courts in light of the CJEU case law and any related national case law?

The administrative decisions that finalise the SEA procedure[5] are the screening statement (decision whether or not to carry out a full SEA) and the final full decision on the SEA procedure (Art.88(1) EPA). Access to the statement or decision is ensured for the public, the affected and interested parties and each state in the case of transboundary effects that will arise as a result of application of the plan or programme (PP) following the rules stipulated in the SEA Ordinance. The interested parties may appeal the statement or decision under the APC within 14 days from its announcement. Access to justice is possible at the stage of SEA procedure for assessment of PP. In spatial planning, where most of the PPs subject to SEA are adopted, there is no access to justice for ENGOs, only for directly affected individuals. The general development plans are not subject to legal review (Art. 215 (6) SDA). The detailed plans cannot be challenged by the general public or ENGOs, only by owners, holders of limited property rights and concessionaires of the plot or of the neighbouring real estates regulated or directly affected by the Detailed Spatial Plan) (Art. 131 SDA). See also 2.4.3.

§ 1, pp. 24-25 of the Additional Provisions of the EPA defines the “public” and “public concerned” who can also be interested parties in administrative and legal appeals in SEA procedures. ENGOs that meet the criteria of national law, namely registered under the relevant procedure, have standing in the judicial proceedings before a court. However, there is no established case-law on access to court for ENGOs with private interest as opposed to those with public interest. The interested parties may appeal the SEA screening or final decision under the APC within 14 days from its announcement. The decisions of the first-instance court on appeals against decisions regarding the realisation of sites designated as PP of national significance by an act of the Council of Ministers which are also PP of strategic importance are final. The court considers the complaints and rules with a decision within 6 months from their submission. The court announces its decision within 1 month of the session in which the case was heard and closed. Though one-instance legal review limits the access to justice, in the event that the court rules in favour of the complainant the timeliness and overall result of preventing implementation of PP with adverse environmental impacts is partially effective.

With access to justice to the screening and final SEA decisions, the system of legal review is comprehensive and efficient. However, the barriers to access to justice to the PP reduce its effectiveness, which could be improved with legislative changes, for which the Aarhus Convention Compliance Committee and the Meeting of the Parties are also calling. See also 2.4.3 and 1.4.1.

2) What is the scope of the administrative review (if applicable) and the judicial review (if applicable)? Does it cover both procedural and substantive legality?

As a general principle applicable to procedures under the laws listed above, within the administrative review both the appropriateness and legality of the administrative act may be challenged. Judicial review is only for legality – procedural legality for violations that are substantial and substantive legality for breach of material law. See also 2.1.2.

3) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

No, there is not. An administrative act may be contested before the court even if the possibility for administrative contestation of the act has not been exhausted, unless otherwise provided for in the APC or in a special law. (Art. 148 APC). See also 1.3.2. and 1.8.1.7.

4) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc.?

The exercise of the right to participate, incl. for the public concerned, in the administrative process for issuing the act is not among the statutory requirements for recognising the procedural legitimation for challenging it.

See also 1.8.1.8 and 2.1.1.

5) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to each sector apart from the general national provisions?

The general rules described in 1.7.2. apply accordingly.

6) What are the cost rules to bring a challenge on access to justice in these areas? What are the possible consequences if one loses a case before court? What are the safeguards against the costs being prohibitive and do these include express statutory reference to a requirement that costs should not be prohibitive?

The general rules about costs described in 1.7.3. apply accordingly.

1.3. Decisions, acts or omissions concerning the administrative procedures to be followed to comply with the public participation requirements of Article 7 of the Aarhus Convention in respect of plans and programmes not submitted to the procedures set out in the Strategic Environmental Assessment (SEA) Directive 2001/42/EC[6]

1) What are the applicable national statutory rules on standing for both individuals and NGOs wishing to obtain a) an administrative review and b) a legal challenge before a national court in respect of the procedures for adopting the decision, act or omission (in particular, the conditions to be fulfilled and any time limits that apply to the submission of a challenge)? How effective is the level of access to national courts in light of the CJEU case law and any related national case law?

The general rule about the participation of citizens and organisations in administrative procedures is set out in Art. 27 of the APC. Upon submission of a request to initiate or join the proceeding, or upon receipt of the notification referred to in Article 26, the applicant and the individuals and organisations concerned who have joined the proceeding become parties to the proceeding for the issuance of an individual administrative act. The administrative authority must verify the prerequisites for admissibility of the request and for participation of the individuals or organisations concerned in the proceeding for the issuance of the individual administrative act. This principle can apply to any act of a general nature relevant for approval of PPs outside the scope of SEA. Once these persons are admitted as parties to the proceeding, the general rules for administrative and legal review apply. (Please see 2.1.2.).

In the current practice of the administrative courts, the decisions of the municipal councils on adopting programmes under Art. 27 of the Clean Ambient Air Act for improving air quality by decreasing pollution levels and achieving air quality value levels are not accepted as challengeable administrative acts due to the nature of the act as an “internal act” which does not affect the rights and interests of citizens and organisations. Based on this, the courts have concluded that the ambient air quality programme is not an act of a public authority that can be challenged by members of the public. A Bulgarian NGO, “Za Zemiata”, also filed a Link opens in new windowcase with the Compliance Committee to the Aarhus Convention claiming violation of the Convention by denying legal standing to citizens and ENGOs to challenge Air Quality Plans.

See also 2.2.1.

2) What is the scope of the administrative review (if applicable) and the judicial review (if applicable)? Does it cover both procedural and substantive legality?

Most plans and programmes cannot be reviewed outside the SEA procedure by ENGOs and the general public. As mentioned in p. 2.2.1, general development plans are not subject to legal review (Art. 215 (6) SDA). Detailed spatial plans cannot be challenged by the general public or ENGOs, only by owners, holders of limited property rights and concessionaires of the plot or of the neighbouring real estates regulated or directly affected by the Detailed Spatial Plan (Art. 131 SDA). Also, as mentioned above, in the current case-law of the administrative courts the decisions of the municipal councils on adopting programmes under Art. 27 of the Clean Ambient Air Act for improving air quality by decreasing pollution levels and achieving air quality value levels are not accepted as challengeable administrative acts due to the nature of the act as an “internal act” which does not affect the rights and interests of citizens and organisations. The same would apply to other PPs which do not affect the rights and interests of citizens and ENGOs and are not general or individual administrative acts[8] in the definitions of the APC.

3) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

No. The principal rule of the APC is that an administrative act may be contested before the court even if the possibility for administrative contestation of the act has not been exhausted, unless otherwise provided for in the APC or in a special law. (Art. 148 APC). See also 1.3.2., 1.8.1.7. and 2.3.2.

4) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc.?

The exercise of the right to participate, incl. for the public concerned, in the administrative process for issuing the act is not among the statutory requirements for recognising the procedural legitimation for challenging it.

See also 1.8.1.8 and 2.1.1. and 2.3.2

5) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to each sector apart from the general national provisions?

The general rules described in 1.7.2. apply.

6) What are the cost rules to bring a challenge on access to justice in these areas? What are the possible consequences if one loses a case before court? What are the safeguards against the costs being prohibitive and do these include express statutory reference to a requirement that costs should not be prohibitive?

The general rules about costs described in 1.7.3. apply.

1.4. Decisions, acts or omissions also concerning plans and programmes required to be prepared under EU environmental legislation[9]

1) What are the applicable national statutory rules on standing for both individuals and NGOs wishing to obtain a) an administrative review and b) a legal challenge before a national court in respect of the content of the plan (in particular, the conditions to be fulfilled and any time limits that apply to the submission of a challenge)? How effective is the level of access to national courts in light of the CJEU case law and any related national case law?

There is a growing tendency in the sectoral legislation for positive examples in this group of cases and ongoing gradual establishment of the criteria for access to justice, including with regard to the procedures, i.e. not only in administrative but also civil proceedings. In the case-law, the uncertainties are primarily related to the legal characteristics of the act and the legal interest. A significant contribution to the development of the legislative process has been the most recent Decision № 14/2020 of the Constitutional Court, according to which the non-appealability of administrative acts cannot affect the realisation of the fundamental rights and freedoms of the citizen, unless this is necessary for the protection of higher constitutional values related to particularly important interests of the citizens. The decision in essence denies the unlimited possibility of the law-makers, by expedience, to exclude from judicial control a certain category of acts, in this case general development plans, and declares Art. 215(6) of the Territorial Development Act unconstitutional.

2) Does the form in which the plan or programme is adopted make a difference in terms of legal standing (see also Section 2.5 below)?

According to Art. 120 of the Constitution, a system of a general legal review for legality has been adopted, which also covers normative administrative acts. The contestation before the Constitutional Court of a law adopted by the National Assembly due to its incompatibility with the Constitution or an international legal act to which the Republic of Bulgaria is a party is limited to the exhaustively determined subjects[10] and an individual constitutional complaint is not admissible.

3) What is the scope of the administrative review (if applicable) and the judicial review (if applicable)? Does it cover both procedural and substantive legality?

General development plans are not subject to legal review (Art. 215 (6) SDA). The detailed plans cannot be challenged by the general public or ENGOs, only by owners, holders of limited property rights and concessionaires of the plot or of the neighbouring real estates regulated or directly affected by the Detailed Spatial Plan (Art. 131 SDA). The Compliance Committee to the Aarhus Convention found that by barring all members of the public, including environmental organisations, from access to justice with respect to General Spatial Plans Bulgaria fails to comply with Art.9(3) of the Convention; and by barring almost all members of the public, including all environmental organisations, from access to justice with respect to Detailed Spatial Plans Bulgaria fails to comply with Art.9(3) of the Convention[11].

In the Water Act, interested persons who have participated in the procedure for issuing a water-use permit can also challenge the decision or the refusal for a permit within the general procedure.

The grounds for administrative and legal review in cases where individuals or ENGOs are admitted to the procedure are the same as discussed in 2.1.2.

4) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

There is no such a requirement as a general principle, but according to Art. 148 APC it is possible to introduce such a rule by means of a law. See also 2.1.3.

5) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc.?

There is no such a condition for legal standing. See also 2.1.4.

6) Are there some grounds/arguments precluded from the judicial review phase?

Procedural infringements which are not of such a nature as to affect the decision of the decision-making authority expressed in the contested act are not grounds for annulment by judicial review. The court also has no jurisdiction to rule on the discretion given to the decision-making authority (expediency) for the choice made from more than one lawful alternative.

Null and void acts may be challenged without a time limit, but nullity may not be brought after a challenge of the lawfulness of the act has been rejected.

See also 2.1.5.

7) Fair, equitable – what meaning is given to equality of arms in the national jurisdiction?

Please refer to 1.8.9. and 2.1.6

8) How is the notion of “timely” implemented by the national legislation?

The general principles of speed and procedural economy as essential for the administrative and judicial phases are reviewed in 1.8.10 within the context of EIA procedure. See also 2.1.7.

9) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to each sector apart from the general national provisions?

The general rules described in 1.7.2. and 2.1.8 apply.

The proceedings for damages under Chapter 11 of the APC cover claims for damages caused to citizens or legal entities by illegal acts, actions or omissions of administrative bodies and officials. Amended SG, no. 94 of 2019, adds claims for damages caused by a sufficiently significant violation of European Union law, and the standards of non-contractual liability of the state for violation of European Union law are applied to property liability and admissibility of the claim.

In a recent court case, a collective action was admitted by the Sofia City Court, including, at the request of the appellants, the court ordering, as an interim measure, that the municipality announce the average daily levels of fine dust particles on its website, on information boards located in public transport vehicles and in metro stations. It also obliged Sofia Municipality to carry out in its territory the activity of machine-washing of streets of public importance and inner-neighbourhood streets twice a month, and to present in the case a plan for construction of cycle lanes, including from the suburbs to the central part of the city.

10) What are the cost rules to bring a challenge on access to justice in these areas? What are the possible consequences if one loses a case before court? What are the safeguards against the costs being prohibitive and do these include express statutory reference to a requirement that costs should not be prohibitive?

The provision of Art. 60 of the Constitution requires that citizens must pay taxes and duties established by law proportionately to their income and property. An amendment to the Environmental Protection Act which introduced a proportional fee for cassation appeal of decisions for environmental impact assessment (EIA) was pronounced as unconstitutional, Constitutional Court case No.12/2018.

The fee for affected parties to submit a claim for damages caused by illegal administrative acts is defined as a simple flat fee, i.e. not in accordance with the material interest (value for the party) in the case.

The general rules about costs related to access to justice described in 1.7.3. apply. See also 2.1.9.

1.5. Executive regulations and/or generally applicable legally binding normative instruments used to implement EU environmental legislation and related EU regulatory acts[12]

1) What are the applicable national statutory rules on standing for both individuals and NGOs wishing to obtain a) an administrative review and b) a legal challenge before a national court in respect of the procedure for adopting or the content of the decision, act or omission of the national regulatory act (in particular, the conditions to be fulfilled and any time limits that apply to the submission of a challenge)? How effective is the level of access to national courts in light of the CJEU case law and any related national case law?

If an act is adopted in the form of a law (normative instrument), the only possibility for direct judicial review of this act is before Constitutional Court, and only specific subjects (one fifth of the Members of the Parliament, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court and the Prosecutor General) are entitled to initiate this review (Art. 150(1) of the Constitution). The Constitutional Court has jurisdiction, among other things, to: provide binding interpretations of the Constitution; to pronounce on any petition to establish unconstitutionality of laws and other acts passed by the National Assembly, as well as acts issued by the President; to settle any competence disputes between the National Assembly, the President and the Council of Ministers, as well as between the bodies of local self-government and the central executive authorities; to pronounce on the consistency of any international treaties concluded by the Republic of Bulgaria with the Constitution prior to ratification of such treaties, as well as on the consistency of any domestic laws with the universally recognised standards of international law and with the international treaties to which Bulgaria is a party. (Art. 149(1) of the Constitution)

According to Art. 150 (3) of the Bulgarian Constitution, the Ombudsperson may approach the Constitutional Court with a petition for declaring as unconstitutional a law which infringes human rights and freedoms. The Ombudsperson can notify the authorities, as listed under Article 150(1) of the Constitution, to approach the Constitutional Court if he/she is of the opinion that it is necessary to interpret the Constitution or to pronounce on compliance with the Constitution of the international treaties entered into by the Republic of Bulgaria prior to their ratification, and on the compliance of laws with the generally recognised rules of international law and with the international treaties to which the Republic of Bulgaria is a party. (See also 1.3.7)

The normative acts (by-laws) issued by the executive authorities can be challenged (Art. 185-196 of the APC). They may be challenged in full or in relation to individual provisions. Citizens, organisations and bodies whose rights, freedoms or legal interests are affected, or may be affected, by a by-law normative act, or for whom such act gives rise to obligations, have the right to challenge the act. The prosecutor may file a protest against the act.

2) What is the scope of the administrative review (if applicable) and the judicial review (if applicable)? Does it cover both procedural and substantive legality?

There is no administrative review of laws in the Bulgarian national legal system. However, the Regional Governors supervise the normative instruments of municipalities (municipal by-laws).

The acts of the municipal council that could be normative instruments used to implement EU environmental legislation and related EU regulatory acts may be challenged before the respective administrative court.

The regional governor exercises control over the legality of the acts of the municipal councils, unless otherwise provided by law. They may return illegal acts to the municipal council for new discussion or challenge them before the relevant administrative court.

The mayor of the municipality may return illegal or inappropriate acts of the municipal council for new discussion or challenge the illegal acts before the respective administrative court and request suspension of the implementation of the general administrative acts and the effect of the by-laws. The act returned for new discussion shall not enter into force and shall be considered by the municipal council within 14 days from its receipt.

The amended or re-adopted act of the municipal council may be challenged before the respective administrative court pursuant to the APC. The general rules for administrative procedure, as established by law, apply to unsettled issues on the issuance, contestation and implementation of the acts of the municipal councils and the mayors. (Art. 45 of the Local Self-government and Local Administration Act).

3) Before filing a court action, is there a requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures?

There is no administrative or legal review of laws by the general public and ENGOs. However, they can challenge normative by-laws in full or in relation to individual provisions. There is a right of challenge for citizens, organisations (incl. ENGOs) and authorities whose rights, freedoms or legal interests are affected, or may be affected, by a normative by-law act, or for whom such act gives rise to obligations (185-186 APC).

4) In order to have standing before the national courts is it necessary to participate in the public consultation phase of the administrative procedure – to make comments, participate at hearing, etc.?

There is no such a condition for legal standing. See also 2.1.4. Citizens and NGOs can file direct legal appeals against the by-laws (e.g. regulations and ordinances of central authorities).

5) Is injunctive relief available? If yes what are the procedural requirements in order to be eligible for this? Are there special rules applicable to each sector apart from the general national provisions?

If the Supreme Court of Cassation or the Supreme Administrative Court establishes inconsistency between a law and the Constitution, it shall suspend proceedings in the case and refer the matter to the Constitutional Court (Art. 150(2) Constitution of the Republic of Bulgaria). With the provision of art. 151, para. 2, third sentence, of the Constitution, the constitutional legislator has adopted as a rule that the decision of the Constitutional Court (CC) declaring a law unconstitutional as a normative act is valid from now on (ex nunc). The legal effect of the decision is non-application of the declared unconstitutional law from the day of entry into force of the decision of the CC. From that moment on, it ceases to operate and regulate public relations subject to its regulation. Decisions of the CC shall be promulgated in the State Gazette within 15 days from their adoption and shall enter into force 3 days after their promulgation. (Art.14(3) Constitutional Court Act). In a recent decision[13], the CC declared that in some cases its decisions may have retroactive effect when they declare as unconstitutional non-normative laws, decisions of the National Assembly and decrees of the President.

The appeal of acts of the municipal councils by the regional governor suspends the implementation of the individual and general administrative acts and the effect of the by-laws, unless the court rules otherwise. (Art. 45(4) of the Local Self-government and Local Administration Act)

6) What are the cost rules to bring a challenge on access to justice in these areas? What are the possible consequences if one loses a case before court? What are the safeguards against the costs being prohibitive and do these include express statutory reference to a requirement that costs should not be prohibitive?

The general rules about costs related to access to justice described in 1.7.3. apply. See also 2.1.9.

7) Is it possible to bring a legal challenge before a national court concerning any related EU regulatory act with a view to a validity reference under Article 267 TFEU, and if so how[14]?

When the interpretation of a provision of European Union law or the interpretation and validity of an act of the bodies of the European Union is relevant for proper resolution of the case, the Bulgarian court shall make a preliminary reference (inquiry) to the Court of Justice of the EU. The inquiry shall be addressed by the court before which the case is pending, ex officio or at the request of the party. The competent court, whose decision is subject to appeal, may not accept the request of the party to send a preliminary request for interpretation of a provision or of an act. The ruling is not subject to appeal. The court whose decision is not subject to appeal shall always ask for an interpretation, except where the answer to the question follows clearly and unambiguously from a previous ruling of the Court of Justice or the meaning and significance of the provision or act are so clear that they do not give rise to doubt. The competent court shall always make an inquiry when a question is raised about the validity of an act under art. 628. (Art. 628-629 of the Civil Procedure Code)

There is no specific procedure according to national law for directly challenging an act adopted by the EU institution or body before the national court.



[1] This category of case reflects recent case-law of the CJEU such as Protect C-664/15, the Slovak brown bear case C-240/09, see as described under Commission Notice C/2017/2616 on access to justice in environmental matters

[2] Link opens in new windowLegal standing is granted for challenging in part the administrative act referring to the need for carrying out of appropriate assessment for impacts on protected areas by the NGO as public concerned. In this court ruling, the court recognises the standing with reference to Annex I, p. 20 of the Aarhus Convention. The case is an example of the challenging of art.6(3) of the Habitats Directive screening decision.

[3] Article 6 of the Convention states that each party shall apply the provisions of this Article: (a) to decisions authorising proposed activities referred to in Annex I; (b) in accordance with their national law in respect of decisions which are not included in Annex I but which may have a significant effect on the environment, the Parties determining whether the proposed activity is subject to these provisions.

[4] The SEA Directive relates to plans and programmes. These are also covered by Article 7 and Article 9(3) of the Aarhus Convention.

[5] The SEA is mandatory for plans and programmes in the fields of agriculture, forestry, fisheries, transport, power generation, waste management, water resources management and industry, including production of underground resources, electronic communications, tourism, development planning and land use, when these plans and programmes outline the framework for the future development of investment proposals of appendices No 1 and 2. Plans and programmes at local level for small territories, and changes of such plans and programmes, are assessed only when, at their application, significant impacts on the environment are expected. All other plans and programmes are submitted to a screening procedure according to the SEA Ordinance. (Art. 85 EPA)

[6] Общите устройствени планове не подлежаха на обжалване (чл. 215, ал.6 ЗУТ) преди решението на Конституционния съд № 14/2020, с което разпоредбата бе обявена за противоконституционна.

[7] See findings under Link opens in new windowACCC/C/2010/54 for an example of a plan not submitted to SEA but subject to the public participation requirements of Article 7 of the Aarhus Convention.

[8] General administrative acts are administrative acts with one-time legal effect which create rights or obligations or directly affect the rights, freedoms or legal interests of an indefinite number of persons, as well as refusals to issue such acts. (Art. 65 APC)

[9] These fall within the scope of both Article 7 and Article 9(3) of the Aarhus Convention. See also relevant case-law of the Court of Justice of the European Union such as Case C-237/97, Janecek and cases such as Boxus and Solvay C-128/09-C-131/09 and C-182/10, as referred to under Commission Notice C/2017/2616 on access to justice in environmental matters.

[10] The Constitutional Court would act in this case on an initiative from no fewer than one fifth of all Members of the National Assembly, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court or the Prosecutor General.

[11] Link opens in new windowACCC/C/2011/58 Bulgaria. The Meeting of the Parties confirmed these findings with Decision V/9d on compliance by Bulgaria with its obligations under the Convention.

[12] Such acts fall within the scope of Article 8 and Article 9(3) of the Aarhus Convention. An example of such an act concerns the decision of the national administration that featured in Case C-281/16, Vereniging Hoekschewaards Landschap, ECLI:EU:C:2017:774

[13] Case No.3/2020 of the Constitutional Court.

[14] I For an example of such a preliminary reference, see Case C-281/16, Vereniging Hoekschewaards Landschap, ECLI:EU:C:2017:774

Last update: 08/04/2021

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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

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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 windowhttps://www.courts.ie/judgments.

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 windowhttps://www.courts.ie/judgments.

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 windowhttps://www.courts.ie/judgments

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.

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Last update: 28/08/2014

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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 proportiona