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.

To find more national information about access to justice in environmental matters, please click on one of the links below:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

3. Other relevant rules on appeals, remedies and access to justice in environmental matters

1.1. Legal order – sources of environmental law

Main elements of the fact sheet:

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

1.1.1. A Complex Federal State

Belgium is a federal state (article 1 of the Constitution). It is a federal state with a somewhat complex character, because it is composed at the same time of three communities (the Flemish-, French- and German-speaking Communities) and three regions (the Flemish, Walloon and Brussels-Capital Regions), which partly overlap. The powers of the state are indeed distributed over the Federal State, on the one hand, and the regions and communities, on the other hand. It is a basic characteristic of the Belgian federal system that powers are allocated to the regions and communities (by the Constitution and the related institutional legislation), while the Federal State has reserved powers assigned to the legislator by the Constitution, and residual powers. The competencies of the communities are in the areas of culture, education, social welfare and other so called “person-related matters”, while the competencies of the regions are in fields such as land use planning, environmental protection, housing, agriculture, economic development, energy, local government, employment, mobility and the related infrastructure. A particular feature is that the German-speaking Community has taken over some competencies of the Walloon Region in the German-speaking part of Belgium, including land use planning and the conservation of landscapes and monuments. All matters that have not been entrusted to the regions or communities continue to fall under federal competence, even if this is not explicitly stated in law. The Federal State has some competencies in the field of environmental protection and has an important role to play in the enforcement of legislation through its competence for policing and justice. One other important basic characteristic of the Belgian constitutional system is that the regions and communities in principle have exclusive powers which are hierarchically not subordinated to those of the federal legislator. The federal government cannot intervene in matters entrusted to the regions and communities. They are autonomous in these fields. However, certain exceptions apply. As regards environmental matters, the regions are particularly important. In fact, like the communities, they have their own legislative power and their own executive power. The legislative power is exercised respectively by the Flemish, the Brussels-Capital and the Walloon Parliaments. These institutions are directly elected every five years, together with the elections for the European Parliament. The Flemish, Walloon and Brussels-Capital Governments are at the head of the respective regional executive powers. Legislative power on the federal level is exercised by Acts of Parliament (called loi/wet), while executive power is exercised by means of Royal Decrees (arrêtés royaux/koninklijke besluiten). Regional and community competencies are exercised through Decrees (décrets/decreten), except in the Brussels-Capital Region, where they are called Ordinances (ordonnances/ordonnanties).

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

1.1.2 The Constitution

In the Belgian Constitution there is reference to environmental protection in two different provisions. Article 7bis, the single provision of Title Ibis “General Policy objectives of Federal Belgium, the Communities and the Regions” of the Belgian Constitution, introduced by the Constitutional Amendment of 25 April 2007, states: “In the exercise of their respective competencies the Federal State, the Communities and the Regions foster the objectives of sustainable development in their social, economic and environmental aspects, taking into account the solidarity between generations”. This provision is the only provision of the Constitution that sets policy objectives for the different authorities. It calls for integration of sustainable development concerns in the different policies of the authorities concerned. The fundamental rights of the Belgians are established in Title II of the Constitution. One of the provisions of that Title deals with social, economic and cultural rights. Article 23 of the Constitution, introduced by the Constitutional Amendment of 31 January 1994, provides: “Everyone has the right to lead a life in conformity with human dignity. To this end, the laws, decrees […] guarantee, taking into account corresponding obligations, economic, social and cultural rights, and determine the conditions for exercising them. These rights include notably: […] 4° the right to enjoy the protection of a healthy environment; [...]”. The Constitution also recognises everyone’s right to consult any administrative document and to obtain a copy, except in relation to the cases and conditions stipulated by law (Art. 32).

Article 23 of the Constitution has no direct effect. It cannot be invoked by private persons in regard to authorities or third parties. Art. 23 offers a framework within which legislators can establish more specific rights for individuals. Article 23 of the Constitution includes, however, a standstill obligation, also known as the principle of non-regression. The authorities may not reduce the level of environmental protection guaranteed by the applicable environmental laws. The standstill obligation does not prohibit any relaxation of environmental laws, but opposes significant reductions in the level of protection, unless these can be justified by reason of public interest. When interpreting legal norms, judges should choose the interpretation which is most in accordance with the right to enjoy the protection of a healthy environment (principles of "constitutional interpretation" and "in dubio pro natura"). In case of conflicting interests, judges must take into account the constitutional status of the right to the protection of a healthy environment. The Constitutional Court can directly examine laws for compatibility with article 23 of the Constitution. The Council of State can test government decisions against article 23 of the Constitution. In accordance with the Aarhus Convention, it is believed that article 23 of the Constitution contains not only substantive rights, but also procedural rights on access to information, on public participation in decision-making and on access to justice in environmental matters.

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

1.1.3 Environmental legislation

The main environmental legislation on the federal level consists of:

• Federal Act of 12 January 1993 on a right of action for the protection of the environment
• Federal Act of 15 April 1994 on the protection of the population and the environment against the dangers of ionising radiation and concerning the Federal Agency for Nuclear Control
• Federal Act of 21 December 1998 concerning product standards for the promotion of sustainable production and consumption patterns and for the protection of the environment, public health and employees
• Federal Act of 20 January 1999 on the protection of the marine environment and the marine spatial planning in the marine areas under Belgian jurisdiction
• Federal Act of 13 February 2006 concerning strategic environment assessment of certain plans and programmes and public participation concerning plans and programmes related to the environment
• Federal Act of 5 August 2006 concerning public access to environmental information

In the Flemish Region, the main environmental legislation consists of:

• Forest Decree of 13 June 1990
• Decree of 5 April 1995 concerning general provisions of environmental policy (with provisions concerning objectives and principles of environmental policy, environmental policy planning, environmental quality standards, corporate environmental management, environmental impact assessment and safety reporting, the operation of establishments and activities and recognised persons, environmental covenants, climate change, environmental agencies, advisory boards, environmental damage and enforcement)
• Decree of 21 October 1997 concerning nature conservation and the natural environment
• Decree of 18 July 2003 on integrated water management (coordinated)
• Decree of 27 October 2006 concerning soil remediation and protection
• Decree of 22 December 2006 concerning the protection of waters against pollution by nitrates from agricultural sources
• Flemish Land Use Code of 15 May 2009
• Decree of 23 December 2011 concerning the sustainable management of material cycles and waste
• Decree of 25 April 2014 on the integrated environmental permit
• Decree of 27 November 2015 on low emission zones

In the Walloon Region, the main environmental legislation consists of:

• Decree of 27 June 1996 on waste
• Decree of 11 March 1999 on environmental licences
• Decree of 10 November 2004 establishing a system of negotiable emission rights for greenhouse gases, setting up a Walloon Kyoto Fund and on the flexible mechanisms of the Kyoto Fund
• Decree of 27 May 2004 introducing Volume I of the Walloon Environmental Code
• Decree of 3 March 2005, introducing Volume II of the Walloon Environmental Code
• Decree of 15 July 2008 containing the Forest Code
• Decree of 20 February 2014 on climate policy
• Decree of 1 March 2018 on soil protection and soil remediation
• Territorial Development Code of 20 July and 22 December 2016
• Decree of 17 January 2019 combatting air pollution from cars

In the Brussels-Capital Region, the main environmental legislation consists of:

• Ordinance of 5 June 1997 concerning environmental permits
• Code on inspections, prevention, reporting and sanctioning of environmental offences and on environmental liability (25 March 1999)
• Ordinance of 17 July 1997 on combatting noise pollution in an urban environment
• Ordinance of 18 March 2004 on the environmental assessment of plans and programmes
• Brussels Land Use Code of 9 April 2004
• Ordinance of 29 April 2004 on environmental covenants
• Ordinance of 20 October 2006 establishing a framework for water policy
• Ordinance of 1 March 2007 concerning the protection of the environment against potential negative effects of non-ionising radiation
• Ordinance of 5 March 2009 on the management and remediation of polluted soils
• Ordinance of 1 March 2012 on nature conservation
• Ordinance of 14 June 2012 on waste management
• Ordinance of 2 May 2013 containing the Brussels Code on Air, Climate and Energy
• Common Ordinance and Decree of 16 May 2019 of the Brussels-Capital Region, the Joint Community Commission and the French Community Commission on the publicity of the administration in the Brussels institutions

Those Federal Acts and Regional Decrees and Ordinances have been complemented with a large number of executive orders in the form of Royal Decrees or Executive Orders of the respective regional governments.

Some matters are regulated in a uniform way for the whole country by Co-operation Agreement. That is the case with:

• Co-operation Agreement of 25 April 1997 between the Federal State and the Regions concerning administrative and scientific coordination in the field of Biosafety
• Co-operation Agreement of 14 November 2002 between the Federal State and the Regions concerning the national climate plan
• Co-operation Agreement of 4 November 2008 between the Regions concerning the prevention and management of packaging waste
• Co-operation Agreement of 16 February 2016 between the Federal State and the Regions on the control of major-accident hazards involving dangerous substances
• Co-operation Agreement of 12 February 2018 concerning the intra-Belgian effort-sharing of climate and energy objectives for the period 2013-2020

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

1.1. 4. Jurisprudence

In general, we can say that through amending existing (Art. 17 of the Judicial Code Amended by the Federal Act of 21 December 2018) and introducing new legislation and the evolution of the case law of the courts, the Belgian legal system is now in line with the Aarhus Convention insofar as procedural rights of natural and legal persons and NGOs are concerned. We can refer in this respect e.g. to the case law of the Constitutional Court (Constitutional Court, N° 7/2016, 21 January 2016 Vogelbescherming Vlaanderen) and of the Court of Cassation, the supreme court, (Cass. 11 June 2013, PP and PSLV v. Gewestelijk Stedenbouwkundig Inspecteur and vzw Milieusteuntpunt Huldenberg, Nr. P.12.1389.N) on the right of environmental NGOs to claim moral damages for harm to the environment and to take action as a civil party for reparation in criminal proceedings, or to the case law of the Council of State, the supreme administrative court, on access to justice and interim relief (e.g. Council of State, N° 193.593, 28 May 2009, VZW Milieufront Omer Wattez; Council of State, N° 221.784, 18 December 2012, BVBA Immo Dominique).

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?

1.1.5. International law before the Courts

International law can be relied upon before the courts insofar as its provisions have so-called direct effect, i.e. they are ratified by Belgium and are sufficiently clear and unconditional. Before the Constitutional Court it is, however, not necessary that the provisions of international law have direct effect. Parties can indeed rely on them in conjunction with constitutional and other institutional law provisions. In practice, parties are relying very often on e.g. the Aarhus Convention, especially those provisions that have not been transposed in EU or domestic law.

1.2. Jurisdiction of the courts

1) Number of levels in the court system

Constitutional Court

The Constitutional Court has the exclusive power to review federal acts, decrees or ordinances for compliance with the rules that determine the respective powers of the Federal State, the communities and the regions. These power-defining rules are set forth in the Constitution as well as in federal acts (usually passed by a special majority) that are enacted with a view to institutional reform in federal Belgium. The Constitutional Court is also competent to decide on any violation by a federal act, decree or ordinance of the fundamental rights and freedoms guaranteed in Title II of the Constitution (Articles 8 to 32), of Article 170 (legality principle in tax-related matters), Article 172 (equality in tax-related matters), Article 191 (protection of foreigners) and Article 143, §1 (principle of "federal loyalty"). The Constitutional Court combines its constitutional review with the review of compliance with international and European Law, including environmental law. The Constitutional Court can annul or suspend federal acts, decrees or ordinances (or part thereof). In the event that the lower courts have doubts about the conformity of federal acts, decrees or ordinances with the above-mentioned articles of the Constitution, they must refer the case to the Constitutional Court for preliminary ruling. Of such cases, 7 to 9% concern environmental law in the broad sense.

General courts

Belgium is judicially organised on the basis of a territorial subdivision on four levels with a supreme court (Court of Cassation) for the whole country at the top, five major judicial areas, each within the jurisdiction of a Court of Appeal and a Labour Appeal Court (Antwerp, Brussels, Ghent, Liège and Mons), 12 districts (largely coinciding with the provincial borders) and 162 cantons (each with a Justice of the Peace Court). There are nine Labour Tribunals and nine Commercial Courts, each with local departments. There are 13 Courts of First Instance, each with local departments, and 15 Magistrates' Courts.

The Court of Cassation is the highest court of law and oversees the correct enforcement of the law by the courts and tribunals. The Court of Cassation does not examine the facts of the case referred to it, but rather whether the judgment complies with the law. Appeal to the Court of Cassation does not constitute a third instance. A lawsuit can only be brought before the Court of Cassation after it has already been adjudicated by the court hearing the main action and by the appeal court. When the Court of Cassation finds that a court has infringed the law, it will quash the verdict and refer the case to a court of law of the same level as the court that passed the unlawful verdict. That court will have to hear the case all over again.

The five Belgian Courts of Appeal and Labour Appeal Courts are the appeal bodies for the courts in the districts of their jurisdiction. A Court of Appeal has three divisions. There are the divisions for civil cases, which hear appeals against judgments delivered in the first instance by the civil divisions of the courts of first instance and the company courts. Then there are the criminal law divisions, which decide in criminal cases on appeals against sentences passed by the corresponding divisions of the courts of first instance. Finally, there are the family and juvenile divisions, which handle appeals against judgments of the family and juvenile judges at the court of first instance. The Courts of Appeal of Antwerp and Ghent have chambers specialising in environmental and town planning law and a specialised Attorney-General. The Labour Appeal Courts have jurisdiction in matters of social and labour law.

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)?

A Court of First Instance has three divisions. The civil divisions have jurisdiction in all cases that have not been exclusively assigned to other courts of law. These divisions also rule on appeals against judgments delivered by the Justices of the Peace and the Magistrates’ Courts in civil matters. Divisions for criminal law (also called the penal court or tribunal correctionnel) decide on offences that have not been assigned to the Magistrates’ Court or the Assize Court (criminal court). They also rule on appeals against sentences passed by the Magistrates’ Courts in criminal cases. The juvenile divisions (or juvenile court) rule on protective measures towards minors or take repressive measures against juvenile offenders. The Court of First Instance has general and full jurisdiction. This means that it has power to rule on all matters that are not reserved for another court of law. So the Court of First Instance tries most environmental cases, in criminal matters as well as in civil matters. It is, however, not mandatory to install specialised environmental chambers as is the case for juvenile cases or tax-related matters. Only the Courts of First Instance of Antwerp (Antwerp department), West-Flanders (Kortrijk department), Liège (Huy department), Luxemburg (Arlon department) and Namur (Namur department) have formally installed a department specialised in and handling all the environmental cases of the district. The president of the Court of First Instance has special powers in urgent cases. He may decide in interim injunction proceedings on urgent matters. Judgments delivered by the Court of First Instance (except for cases that are already an appeal against a decision of a Justice of the Peace or a Magistrates’ Court) are open to appeal before a Court of Appeal. The Industrial Tribunals and Company Courts have jurisdiction in cases of social and labour law and in conflicts between companies respectively.

Each canton has one Justice of the Peace Court (162 in total). This court stands closest to the citizens. A Justice of the Peace hears all cases where the value of the petition does not exceed 5,000.00 euro. Some cases of neighbourhood nuisances can be considered as environmental, dealing with issues such as noise, odour or distance of plantations. In addition, the Justice of the Peace has extensive powers in rent disputes, expropriations, easements, agricultural affairs and the mentally ill. Judgments delivered by a Justice of the Peace are open to appeal before the Court of First Instance or the Company Court, depending on the type of case. Magistrates’ Courts decide on claims for compensation for damage suffered in road accidents. Magistrates' Courts also punish traffic offences and some offences against the Forest Code, the Rural Code, the River Fishery Code and the Railway Code. Judgments are open to appeal before the Court of First Instance.

Administrative Courts

The Council of State is the supreme administrative court. The Council of State is not part of the ordinary judiciary. It has two sections: the Legislation Section, which advises the legislator on new legislation, and the Administrative Jurisprudence Section, which rules as an administrative court. The Administrative Jurisprudence Section protects citizens against unlawful administrative acts (individual legal acts and regulations). Any natural or legal person having an interest can bring a request for annulment before the Administrative Jurisprudence Section of the Council of State against irregular administrative acts that have caused them detriment. As the highest administrative court, the Council of State also acts as a cassation body against judgments of lower administrative courts. The rulings of the Council of State are not open to appeal. A request for suspension may be brought along with a request for annulment. The Council of State may suspend the challenged decision, provided that the grounds for annulment seem valid and there is urgency. Within the Administrative Jurisprudence Section of the Council of State there are two Dutch-speaking chambers and two French-speaking chambers specialising in environmental and town planning cases. The environmental cases and town and country planning cases account for around 25% of all cases.

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

Specialised environmental administrative courts in the Flemish Region

The Flemish Region has two specialised environmental administrative courts: the Council for Permit Disputes (Raad voor Vergunningsbetwistingen) and the Enforcement College (Handhavingscollege). The Council for Permit Disputes was established in 2009 as an administrative court for permits in the area of town and country planning and, recently, for "integrated environmental permits" (the former town planning permit and environmental permit combined) and other related matters. The Council for Permit Disputes has taken over the competencies of the Council of State with regard to permits in the Flemish Region. The Council of State now acts as an appeal (cassation) body against judgments of the Council for Permit Disputes. The Council for Permit Disputes has competence for annulment and suspension of permits. The ‘public concerned’ can bring a request for annulment before the Council against illegal permits. Some administrations also have standing in front of the Council. A request for suspension may be brought along with the action for annulment. The Council can suspend the challenged decision if the grounds for annulment are found to be valid and if there is urgency. The Council for Permit Disputes has the power to decide on the suspension and annulment of permits. The Council also has the competence to impose an injunction on administrative authorities. In rare cases, and only if the administrative authority has circumscribed powers, the Council can make a decision instead of the administrative authority. The Council can also decide on mediation at the request of the parties.

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 Environmental Enforcement College was established in 2009 and was renamed the Enforcement College when the "integrated environmental permit" came into force. Infringements of environmental law are often sanctioned through administrative fines. These administrative fines can be challenged before the Enforcement College. The appeal has a suspensive effect. The Enforcement College can annul and substitute a decision of the government agency. The Council of State acts as an appeal (cassation) body against judgments of the Enforcement College.

1.3. Organisation of justice at administrative and judicial level

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

1.3.1. Administrative decision making

Permits are a very important tool in environmental policy. Traditionally in Belgium a distinction is made between the building permit, which is inter alia necessary for the construction of projects, including infrastructure projects and industrial installations, and the operating or environmental permit, which regulates the operation of installations that can cause environmental disturbances. In the Walloon Region, a “permis unique” (integrated permit) has been introduced. If a project needs both permits, they are integrated and delivered through a unified procedure, resulting in a building permit (without limitation in time) and an environmental permit with a term of validity of maximum 20 years (renewable) delivered by one authority. In the Brussels-Capital Region, measures have also been taken to co-ordinate building and environmental permits, but in a more lenient way than in the Walloon Region. In the case of a “mixed project”, where the project requires an environmental permit for 1A or 1B class and a building permit, both applications are to be introduced at the same time, will be submitted to the opinions of the environmental and planning authorities and a public inquiry at the same time, and will result in two decisions taken by the authorities at the same time, resulting in a planning permission that is not limited in time and an environmental permit with a validity of maximum 15 years (renewable). In the Flemish Region, a new permitting system integrates the building and environmental permit in a new integrated permit, the “Omgevingsvergunning” or “Integrated Permit”.

Environmental, building or integrated permits are delivered, generally after public consultation and expert opinions of relevant specialised environmental agencies, by political or administrative authorities in first instance on the local, provincial or, exceptionally, regional level, depending on the size of the project and the nature of the operator. Permit decisions must be formally reasoned. An administrative appeal with a higher political authority (on the provincial or regional level) is generally possible. However, in the Brussels-Capital Region there is a somewhat unusual situation. In that region, an appeal can be made against decisions taken in first instance by the Brussels Environmental Administration (the administration in charge of the environment for the Brussels-Capital Region) or by municipalities/towns before a specific organ, the “Milieucollege – Collège d’environnement” (Environmental Appeal Board or Environmental College), which is a kind of specialised Environmental Administrative Body presided over by a professional judge and composed of nine independent experts (environmental lawyers and scientists) proposed by the Brussels-Capital Parliament and appointed by the Brussels-Capital Government. They can review the decision of the Brussels Environmental Administration or the decision of a municipality/town (local level) in all aspects and thus grant a permit where it was refused in first instance, 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 extend a permit. It can also take decisions on appeals on administrative fines/sanctions, accreditations and law enforcement measures relating to the management and remediation of polluted soil. The decision of the Environmental Appeal Board can in turn be appealed before the Regional Government, which can again fully review the decision.

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

1.3.2. Administrative appeals

In administrative appeals, all aspects of the permit decision are reviewed, both from a legal and from an “opportunity” point of view. The decision shall replace the one taken at first instance, having regard to the same matters of fact and law. A full review of the case shall be carried out. This is called an “action for reversal” (recours en réformation). The appeal body is not restricted in its review by the arguments that have been introduced by the appellant; it exercises discretion. In general, administrative appeals can be introduced by the natural or legal person who applied for or holds the permit, by members of the “public concerned” in the sense of art. 2 (5) and 6 of the Aarhus Convention, including environmental NGOs, and by some representatives of competent authorities and advisory agencies. In the Walloon region, administrative appeals can be lodged “by any natural or legal person justifying an interest as well as to the technical official and the municipal college of the municipality in the territory in which the establishment is located”. In the Brussels-Capital Region, the administrative appeal before the Environmental Appeal Board and the Government is open to the applicant, to any member of the public concerned, including environmental NGOs, and to other public bodies, such as the municipality, the Brussels Environmental Administration and the competent land use planning officer (gemachtigde ambtenaar ruimtelijke ordening – Fonctionnaire délégué de l’urbanisme).

As permits for operating nuclear installations are delivered by the King (the Federal Government), there is no administrative appeal available in such cases. The same holds true for permits delivered by the Federal Minister for the North Sea for activities in the Belgian marine areas.

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

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

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

1.3.3. Administrative court appeals

Permit decisions and other administrative decisions (safety measures, some administrative sanctions, other types of authorisations or approval, etc.) that are final because they cannot be further appealed in the administrative track can be challenged in court. After exhaustion of the administrative appeals, permit decisions taken in the last instance by the administrative/political authorities can be appealed before the Council of State (within 60 days of notification of, or acquaintance with, the challenged administrative decision), which can review the legality of the decision, both from a procedural and from a substantive point of view. Only the final decision can be challenged before the Council of State (for instance, if an appeal before the Brussels-Capital Government can be lodged against a decision of the Environmental Appeal Board (Environmental College), only the decision of the Government may be annulled by the Council of State). Insofar as there are no other competent courts, any natural or legal person can bring an action for annulment and suspension before the Council of State against unlawful administrative acts that have caused them detriment. In the past, there were no administrative courts of first instance dealing with environment-related issues, so all these cases went directly to the Council of State.

This situation has partially evolved, but only in the Flemish Region. Since 1 September 2009, the regionally established Council for Permit Disputes has been responsible for dealing with disputes regarding building permits and, for the mean time, integrated permits in the Flemish Region instead of the Council of State. The Council for Permit Disputes is authorised to deal with appeals against explicit or implicit administrative decisions that are final (decisions taken on administrative appeal or that cannot be administratively appealed) on the granting or refusal of an integrated permit. The appeal must be lodged within 45 days of notification of, or acquaintance with, the challenged administrative decision. The Enforcement Court hears appeals against administrative fines imposed for breaches of environmental and planning law in the Flemish Region. The appeals can be introduced, within 30 days, by persons who have been fined. The judgments of both courts are subject to cassation appeal before the Council of State.

In the other regions, and in the areas not covered by those Courts, appeals against administrative decisions, such as permits, must be made directly to the Council of State. The same holds true for administrative decisions taken under federal legislation. Administrative fines for breaches of Walloon environmental legislation can be appealed, within 30 days, before the Magistrates’ Court or the Penal Court, depending on the category of sanctions imposed.

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

1.3.4. Mediation

Mediation in environmental matters is not very well developed. The Council for Permit Disputes has a mediation option available that suspends the annulment or suspension procedure, but the number of mediations is very low and the success rate even lower.

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

There are different Ombudsmen active at the various government levels in Belgium (NL; FR). Regional, federal and local Ombudsmen work in their respective competence fields, including the environment (NL; FR).

In the Brussels-Capital Region, the Common Ordinance and Decree of 16 May 2019 on the publicity of the administration in Brussels institutions provides the establishment of an ombudsman for complaints regarding unilateral administrative acts with individual scope (to be implemented).

In principle, Ombudsmen will not treat the complaint if it is on the same subject as an administrative appeal or a court case has been introduced. The deadline for the introduction of a demand for annulment before the Council of State will, however, be suspended if a complaint is introduced with an Ombudsman, for a maximum of 4 months while the complaint is handled.

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)?

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

1.4.1. Who can challenge environmental administrative decisions?

The procedure for judicial review of administrative decisions by the Council of State is laid down in its basic act (lois coordonnées sur le Conseil d'Etat) and complementary regulations. This procedure can be used to challenge any unilateral, final, legally binding act of a Belgian administrative authority, whether of an individual or regulatory nature (i.e. administrative decisions in individual cases as well as executive orders and administrative regulations laying down generally applicable rules). An action for annulment of an administrative act can be brought by any party (any natural or legal person) which has been "harmed" or has an "interest" at stake. Meeting this requirement does not pose particular problems for individual claimants (legal or natural persons) in environmental cases, and the standing requirements do not vary according to the type of environmental legislation concerned. Proof of actual harm is not required. A legitimate interest in the contested act is sufficient. This interest need not necessarily be based on a legally recognised subjective right. Whether a natural person has the interest required to seek judicial review of an administrative decision affecting their environment is essentially a factual matter, which will be judged by the Council of State based on the specific circumstances of the case. Although the notion "public concerned" within the meaning of the Aarhus Convention is not actually used as such, the case law on the criteria for standing for individual members of the public in substance comes very close to the definition of this notion in the Convention. The Council will examine whether the claimant will or may be affected by the environmental effects of the implementation of the decision. The nature and range of those effects will be taken into account. In the event of uncertainties, the decision on standing tends to be in favour of the claimant. The distance between the claimant's home and the activity that is the subject of the contested decision is an important consideration, but it is not necessarily decisive. In planning cases, e.g., the settled case law is that any "inhabitant of the neighbourhood" has a legitimate interest to seek review of planning decisions affecting its aspect and development. There is also case law in which the Council held that a person using a forest area for recreational purposes (e.g. walking) can challenge the legality of an administrative act which will result in the deterioration of that area.

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.)

1.4.2. Standing of NGOs

Insofar as standing of NGOs is concerned, the jurisprudence of the Council of State, which had been developed in a strict way in the past, was relaxed more than a decade ago under the influence of the case law of the Constitutional Court, the CJEU and the ECtHR and brought into line with the Aarhus Convention. Since a judgment of the general assembly of the Council of State of 2008 (Council of State, N° 187.998, 17 November 2008, Coomans), the Council is using the formula of the Constitutional Court concerning standing requirements for NGOs in stating that a non-profit organisation that has legal personality (association sans but lucratif) has standing if its statutory objective is of a particular nature, and thus different from that of general interest, that it is defending a collective interest, that the statutory aim can be affected by the challenged act, and that it is obvious that it is pursuing its statutory objective in an active way. There are no recent cases in which an environmental NGO has been declared inadmissible. In principle, foreign NGOs should be treated on an equal footing, as is the case with foreign administrative authorities (Council of State, N° 239.291, 5 October 2017, Provincie Noord-Brabant). The Council for Permit Disputes is following the same approach (RvVb 5 September 2017, RvVb/A/1718/002, vzw Natuurpunt).

Organisations without legal personality have no standing, but different persons can introduce a collective demand for annulment and suspension, each of them being required to pay the court fee. The judgments of the Council of State or the Council of Permit Disputes have an “erga omnes” effect. Thus, when an administrative act or regulation is annulled, everyone who would have been harmed by the act or regulation benefits from the annulment, even if they were not a party in the procedure.

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

1.4.3. Use of languages

Cases can only be introduced in the official languages, namely Dutch, French and German for the Council of State and Dutch for the Council of Permit Disputes. Foreign parties have to rely in practice on lawyers or representatives who have mastery of (one of) the official language(s). When the case is treated by the Council of State in an official language other than that used by a party, interpretation or translation can be requested. The State will have to cover the costs.

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?

2) Can one introduce new evidence?

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

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

3.2) Rules for experts being called upon by the court.

3.3) Rules for experts called upon by the parties.

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

The Council of State (and its court advisers), the Council of Permit Disputes and the Enforcement College may, at their own initiative or at the request of a party, appoint an external expert to advise the court on a technical matter. In practice, this possibility is never used. If a court finds that a certain relevant aspect has not been (sufficiently) investigated by the public authority, the challenged administrative decision will usually be annulled and the public authority must ensure that it is adequately investigated and assessed when taking a new decision. The court may order as an injunction (order) that this investigation must be carried out (e.g. granting of a permit in the vicinity of a special protection zone without appropriate assessment: injunction to make a new decision based on results of an appropriate assessment the applicant must prepare).

The court can also annul the decision and refuse the permit application due to incompleteness (in the absence of the required investigation) such that the application must be resubmitted (with the required documents, e.g. an appropriate assessment, an EIA, an air quality investigation, etc.).

The most important source of "expert advice" in the files of the Courts can be found in the administrative file. The administrative file contains the project EIA (if required), other documents that have to be annexed to the permit application (e.g. mobility report, memorandum on environmental effects prepared by recognised experts) and the mandatory advice of certain specialised bodies. The opinions of the advisory bodies are deemed to have been prepared by technical experts in various areas (nature, heritage, water, etc.).

The legislation leaves considerable margin for discretion by the government agency which adopts administrative decisions in environmental matters. The courts only verify whether the decision of the government agency is in this respect not manifestly unreasonable. If a party relies on expert advice that is contrary to the advice on which the government has relied when taking the decision, the court will check whether the government agency has taken its decision carefully and whether the decision is not manifestly unreasonable.

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

1.6.1. Barristers

Cases before the Council of State, the Council of Permit Disputes and the Enforcement College can be introduced in person without legal assistance or through a barrister (including a trainee barrister). Specialised barristers can be found through the websites of the bar associations (NL - FR).

1.1. Existence or not of pro bono assistance

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.)?

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

1.6.2. Legal aid

A distinction can be made between primary and secondary legal aid. Primary legal aid consists of practical information, referral to a specialist, or initial legal opinions given by a lawyer or representatives of public welfare assistance centres or of the social sector. This consultation is totally free. Primary legal aid is also organised by the commissions for legal aid in each judicial district. They are composed of barristers and representatives of the social sector.

Secondary legal aid consists of detailed legal advice or legal assistance/representation within the framework of proceedings and is exclusively provided by barristers (NL - FR). The federal government finances the system of secondary legal aid. In each judicial district, there is a bureau for legal aid, operated by the local bar association, which takes care of secondary legal aid. The barristers providing legal aid are registered once a year on a list drawn up by the bar association. The bureau for legal aid appoints barristers on the basis of this list. The bureau for legal aid can grant partially or completely free of charge secondary legal aid, depending on the income situation of the client. In that case, the barrister will be paid by the government after, as the case may be, reclamation of the compensation or “judicial allowance” (see further below).

Persons with insufficient resources may also enjoy “free of charge” procedures by decision of the concerned court or of the bureau for judicial assistance (art. 664–699ter of the Judicial Code). Judicial assistance consists of exempting those who do not have sufficient resources to pay the cost of proceedings (not the lawyers’ fees), in full or in part, from paying the relevant costs, which are consequently paid from the State budget.

Articles 508/13/1 to 508/13/4 of the Judicial Code determine who can benefit from free legal aid and judicial assistance and who can benefit from partially free legal aid and judicial assistance. The Council of State and the Council of Permit Disputes can, under the same conditions, grant exemption from court fees and expenses.

There are no specific provisions concerning legal aid for legal persons or NGOs. Judicial assistance can be granted to legal persons (art. 666 Judicial Code).

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

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

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

1.6.3. Environmental NGOs

Some environmental NGOs are litigating and will from time to time support citizens who are going to court. These include:

ClientEarth

Greenpeace (FR - NL)

WWF (FR - NL)

Friends of the Earth

Bond Beter Leefmilieu (the Flemish umbrella ENGO) and its member organisations

Inter-Environnement Wallonie (the Walloon umbrella ENGO) and its member organisations

Inter-Environnement Bruxelles (a Brussels umbrella ENGO) and its member organisations

BRAL/ Stadsbeweging voor Brussel (a Brussels umbrella ENGO) and its members.

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).

2) Time limit to deliver decision by an administrative organ

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

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

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

Administrative appeals in environmental permitting procedures

The procedural time limits in administrative appeals depend on the legislation concerned and reference should thus be made to each piece of relevant legislation for the details. To give an idea of those limits, we will present the most relevant legislation here, namely the regional environmental or integrated permit legislation.

In the Flemish Region, the legislation concerning the integrated permit (omgevingsvergunning) provides a regular and simplified procedure. Decisions taken in first instance can, as a rule, be appealed to the higher authority, so decisions of the local government (college van burgemeester en schepenen) can be appealed to the provincial government (deputatie van de provincieraad) and decisions taken in first instance by the provincial government can be appealed to the regional environmental minister (minister van omgeving). No administrative appeal is, however, possible against decisions taken at first instance by the minister or the regional environmental officer. These can only be challenged before the Council for Permit Disputes. The appeal must be introduced within 30 days after notification or publication of the decision concerned and must contain the objections. Furthermore, the appeal must include all information specified in the legislation and all supporting material, and a fee of 100 EUR is payable). An appeal can be made using a registered letter or via the digital platform Omgevingsloket. In the event that the person making the appeal wishes to be heard, they must indicate this in their appeal. In principle, the appeal suspends the permit decision taken in first instance. The higher authority has to render its decision within a period of 120 days, which will be reduced to 60 days where the simplified procedure is applicable or extended by 60 days where a new public inquiry is needed (because of a modification of the application), an administrative loop is applied (to correct a failure earlier on in the procedure) or an intervention of the municipal council is necessary (if road-related issues are at stake). The authority has to review the matter entirely and is not bound by the arguments introduced or to the specific provisions that are challenged. If the authority takes no decision within those time limits, the appeal is considered to be rejected and that implicit decision can be challenged in court.

In the Walloon Region, any interested natural or legal person and the technical officer of the Department of Permits and Authorisations of the Walloon Region (fonctionnaire technique du Département des Permis et Autorisations du Service public de Wallonie) can lodge an administrative appeal against an environmental permit (permis d’environnement) or integrated permit (permis unique) decision taken by the competent local authorities in first instance (collège communal). The communal college of the place where the establishment is or will be situated can appeal if the decision in first instance has been taken by the regional technical officer. The appeal has to be introduced by registered letter within 20 days after notification or publication of the contested decision and a fee of 25 EUR must be paid. The appeal has no suspensive effect on the challenged decision, except when lodged by the technical officer. The Government has to decide on the appeal within 70 days (in the case of a class 2 establishment) or 100 days (in the case of a class 1 establishment). Those time limits will be extended in the event that a (new) public inquiry is organised in the appeal phase. In the event that no decision is notified within the time limit, the appeal against the first-instance decision is considered to be rejected. A different solution is applicable in the event that the first-instance decision was not taken on time and that “tacit decision” to refuse the permit was appealed.

In the Brussels-Capital Region, the Environmental College (Milieucollege - Collège d’environnement) is competent for administrative appeals against first-instance decisions on environmental permits (milieuvergunning – permis d’environnement), against administrative fines, law enforcement measures relating to the management and remediation of polluted soil, accreditation measures and Natura 2000 exemption decisions. An appeal must be lodged within 30 days after notification or publication of the permit by means of a registered letter. The parties can ask to be heard. The college has to decide on the appeal within 60 days. In the event of multiple appeals, that period can be extended by maximum 25 days; the period is also extended by 15 days in the case of an oral hearing. In summertime (appeals lodged between 15 June and 15 August), an extra 45-day period applies. The lodging of an appeal has no suspensive effect on the challenged decision, except in some particular instances for appeals introduced by public bodies and when duly motivated by grave peril or irreparable harm, if the College suspends the decision under appeal. When no decision is taken within those time limits, the appeal is considered to be rejected and the challenged decision is confirmed. A further administrative appeal against the explicit or implicit decision of the Environmental College is possible with the Government of the Brussels-Capital Region within 30 days, except for decisions regarding accreditations and administrative fines (those decisions of the Environmental Appeal Board can be challenged before the Council of State). The parties can ask to be heard. The Government decides within 60 days, extended by 15 days, in the case of an oral hearing. When the decision is not notified within those time limits, the applicant can send a reminder by letter. If no decision is notified within another period of 30 days, the challenged decision is confirmed. In that case, the decision of the Environmental College which is thus confirmed may be challenged before the Council of State.

That procedure is clearly described on a webpage of the Brussels Environmental Administration (FR or NL).

Regarding the publicising of the decision on appeal, the decision of the Environment College shall be notified to the applicant and to the competent authority. The Government's decision shall be notified to the parties. The addressee of the decisions is required to post a notice on the building housing the facilities, in a place visible from the public highway, mentioning the existence of the decision. The display must be kept in a perfect condition of visibility and readability for a period of 15 days.

The Brussels Environmental Administration shall keep a register of all decisions. Each municipality shall also keep a register of decisions regarding the facilities located in its territory. The register must also contain the decisions of the Environmental College and the Government. The registers shall indicate, as a minimum, the identity of the holders, the sector of activity, the date and nature of the decision and its expiry date. The register kept by the Brussels Environmental Administration shall be made accessible to the public by electronic means of communication. The website of the Brussels Environmental Administration provides information about environmental permits that are either under investigation, valid or invalid (refused or cancelled within the last 3 months).

Exhaustion of the administrative appeal as precondition for a court appeal

Where an administrative appeal is available, that avenue should be used first. Only after exhaustion of such an administrative appeal should an appeal with the competent administrative court be lodged. There are no time limits for the administrative courts to decide the matter.

1.7.2. Interim and precautionary measures, enforcement of judgments

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

Effect of introducing an administrative appeal on the appealed decision

There is no uniform rule concerning the effect on the appealed decision of introducing an administrative appeal. In the Flemish Region, administrative appeals concerning first-instance decisions with regard to the integrated permit (omgevingsvergunning) have suspensive effect. Consequently, the appealed decision cannot be executed as long as no decision on appeal has been taken. In the Walloon Region, an administrative appeal against environmental and integrated permit decisions (permis d’environnement /  permis unique) has no suspensive effect, except when lodged by the technical officer. In the Brussels-Capital Region, administrative appeals concerning first-instance environmental permit (permis d’environnement / milieuvergunning) decisions with the Environmental College have no suspensive effect, but if the appeal is lodged by the local authority, the Brussels Environmental Administration (Leefmilieu Brussel – Bruxelles Environnement) or the competent land use planning officer (gemachtigde ambtenaar ruimtelijke ordening – fonctionnaire délégué de l’urbanisme) and it is duly motivated by serious danger or irreparable harm, the president of the Environmental College or a member assigned by them will suspend the decision within five working days, after having heard the parties. The further appeal to the Government has no suspensive effect.

Effect of introducing a judicial appeal on the challenged decision

Introducing a judicial appeal against a final administrative decision has no suspensive effect of its own. Both the Council of State and the Council for Permit Disputes can, however, if suspension has been requested, suspend the challenged decision until the final judgment on the merits.

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

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?

Interim relief

The Council of State is empowered to suspend the implementation of a challenged administrative decision or regulation and to order provisional measures. An action for cessation (vordering tot schorsing/demande de suspension) may be brought immediately along with the action for annulment or later on, as long as the court adviser (auditeur) has not submitted his written report on the pending case (in that case, however, the party can ask the presiding judge to organise a hearing within a short period). No financial deposit is required, but a court fee of 200 EUR per requesting party is charged. The interim judgment should, in principle, be given within 45 days after its introduction, however this time limit is not sanctioned and not respected in practice. The Council of State may suspend the challenged decision if the grounds for annulment are found to be valid at first sight (a serious plea must be invoked, known as “moyen serieux” or “ernstige middelen”) and the case is considered urgent where serious harm cannot be prevented if the case is treated in the usual way. Even when the conditions for suspension are present, the Council is, however, not obliged to suspend, considering the different interests at stake, including those of the authority that has taken the challenged decision and those of the intervening party that is the beneficiary of that decision (e.g. the permit holder). According to the law, the Council shall reject the demand for suspension “if the adverse consequences of it are in a manifestly disproportionate way outweighing the benefits of it”. In the case of “extremely urgent necessity”, a fast-track procedure can be followed. If a provisional suspension is ordered without a hearing, such a hearing will be ordered in view of confirming or withdrawing the suspension. In the case of suspension, a final decision should be taken within 6 months, but this is also a time limit that is often not respected in practice. The case law shows that environmental harm of a certain seriousness is accepted as a reason to consider the case urgent and fit for interim relief (e.g. Council of State, 30 March 2017, n°. 237.852, vzw Unizo Vlaams-Brabant & Brussel; Council of State, 20 June 2017, n° 238.574, Dieltjens; Council of State, 7 February 2019, n°. 243.627, De Jaeghere). Interim judgments cannot be appealed.

In the Flemish Region, the Council of Permit Disputes has the same powers. The court fee in this case is 100 EUR per requesting party. The procedure is very similar to the procedure before the Council of State. The case law is also very similar to the case law of the Council of State (e.g. Council of Permit Disputes, 14 January 2020, RvVb-S-1920-0438, Machiels; 28 January 2020, RvVb-S-1920-0492, Van Den Broeck; 4 February 2020, RvVb-S-1920-0514, Bahri;11 February 2020, RvVb-S-1920-0543, Gommers;11 February 2020, RvVb-S-1920-0539, De Belder).

Furthermore, according to Article 584 of the Judicial Code, the President of the Court of First Instance has the power to give a provisional solution (interim relief) to any case in summary proceedings (kort geding, procedure en référé) that is not beyond its competence. So in urgent cases, after summary proceedings, the president can order temporary measures in order to avoid serious detriment, without prejudice to the final solution of the case. This procedure can be used in the event that the administrative action for suspension before the Council of State or the Council of Permit Disputes cannot be used, e.g. when subjective civil rights are at stake.

The permit holder will be informed that a case has been introduced and can defend its interest, prior to the decision on interim relief, in the procedure before the Council of State, the Council for Permit Disputes or the President of the Court of First Instance. The decision of the latter can be appealed, also by the permit holder.

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

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

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?

Right of action for the protection of the environment

The President of the Court of First Instance also has special powers for the protection of the environment on the basis of the Federal Act of 12 January 1993 on a right of action for the protection of the environment (vorderingsrecht inzake bescherming van het leefmilieu, droit d'action en matière de protection de l'environnement). In accelerated proceedings, the public prosecutor, an administrative authority or an environmental organisation with legal personality can ask the President to order the cessation of actions that constitute, or threaten to constitute, an obvious breach of environmental law. In a judgment of 8 November 1996 (Cass., 8 November 1996, n° C.95.0206.N, Eurantex nv / Boterstraatcomité vzw), the supreme court considered that the purpose of the Act was not only to prevent damage to the environment, but also to ensure a viable environment for the population, so that the protection of the environment also extends to a protection of town and country planning. According to the Court, the Act not only makes it possible to order the cessation of illegal works that impair the environment, but also for works already completed to be undone if such an injunction is necessary to prevent further damage to the environment.

The special environmental action on the basis of the Act of 12 January 1993 is normally only available to the public prosecutor, the administrative authorities (including municipalities) or environmental organisations with legal personality meeting the following requirements: their purpose is to protect the environment, their statutes define the territory to which their activities extend and they meet the conditions provided for in Article 17 of the Judicial Code. These conditions include:

1. the corporate purpose of the legal person is of a special nature distinct from the pursuit of the public interest in general;
2. the legal person pursues this social objective in a sustainable and effective manner;
3. the legal person takes legal action within the framework of that corporate purpose with a view to the defence of an interest related to that objective;
4. the legal person pursues merely a collective interest with the legal claim.

However, article 271 of the Federal Municipal Act and its regional successors such as art. 194 of the Flemish Municipality Decree – a Decree that had abolished article 271 of the Federal Municipal Act has been annulled by the Constitutional Court for violation of the standstill obligation of article 23 of the Constitution (Constitutional Court, N° 129/2019, 10 October 2019) – allows one or several residents of a municipality to act on behalf of the municipality if the mayor and aldermen fail to do so. This provision can be combined with the Act of 12 January 1993 such that individual citizens living in the municipality concerned 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. It follows from the joint reading of the two aforementioned Acts that, if the mayor and aldermen fail to act under those circumstances, one or several residents can take legal action on behalf of the municipality in order to protect the environment. No particular interest needs to be demonstrated because the municipality is presumed to have an interest. The circumstance that residents can bring an action for cessation on behalf of the municipality if the latter fails to do so actually gave rise to another problem. What if the municipality itself shares responsibility for the breach of environmental law by having issued an illegal permit? This matter has been settled by the Constitutional Court, which ruled that not allowing the action under such circumstances would constitute an infringement of the principle of equality and non-discrimination (Constitutional Court, n° 70/2007, 26 April 2007, M. Lenaerts and others/n.v. ’s Heerenbosch).

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.

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

Court fees

In cases before the Council of State, there is a court fee (rolrecht, droit de rôle) per applicant and per request of 200 EUR (demand for suspension and demand for annulment). The same is true for the Council of Permit Disputes, where the fee is 200 EUR per annulment request per applicant and 100 EUR per suspension request (regular suspension as well as suspension by extreme emergency) per applicant. The court fee for a mediation with the Council of Permit Disputes is 700 EUR and will be shared between the parties in the event of a mediation agreement. Furthermore, there is a mandatory contribution of 20 EUR per demand to the Legal Aid Fund.

In the Brussels-Capital Region, for an administrative appeal before the Environmental College or the Government concerning environmental permits or measures relating to the management and remediation of polluted soil, there is a fee of 125 EUR per applicant. An appeal before the Environmental Appeal Board for disputing an administrative fine is free.

Judicial allowance

The unsuccessful requesting or defending party has to pay a compensation or judicial allowance (rechtsplegingsvergoeding, indemnité de procedure) to the successful party. This is a flat-rate allowance for the costs and fees of the lawyer of the successful party. A basic amount has been set (700 EUR), which can be increased or decreased depending on the circumstances of the case and within certain limits (minimum 140 EUR; maximum 1,400 EUR). It will be increased by 20% in the event of a demand for interim measures. The Council has to take the following into account when deciding on the compensation in a particular case: 1) the financial capacity of the unsuccessful party to reduce the amount of the compensation; 2) the complexity of the case; 3) the manifestly unreasonable nature of the situation. If the unsuccessful party benefits from secondary legal aid, the legal compensation is set at the minimum amount, except in the case of a manifestly unreasonable situation. If several parties are awarded compensation at the expense of one or more unsuccessful parties, the amount thereof is at most double the maximum compensation to which the beneficiary who is entitled to claim the highest compensation can claim. It is divided between the parties. No party can be held liable for payment of compensation for the intervention of the lawyer of another party in excess of the amount of the court fee. The compensation cannot be granted or imposed on an intervening party. The amounts are adapted from time to time to developments in the cost of living (indexation). Most of the time, the basic amount of 700 EUR is awarded.

Aarhus Convention

The Constitutional Court has ruled, by referring inter alia to the Aarhus Convention case law of the CJEU and Directive 2011/92/EU, that the above-mentioned system of court fees and compensation does not violate art. 10, 11 and 23 of the Constitution (Constitutional Court, n° 17/2015, 12 February 2015, Neyrinck c.s.; n°48/2015, 30 April 2015, Meurant c.s.; n° 103/2015, 16 July 2015, GERFA c.s.; n° 152/2015, 29 October 2015, vzw Ademloos c.s.; n° 87/2018, 5 July 20018, vzw Aktiekomitee Red de Voorkempen).

Other fees

In the event that a party wished to call witnesses, appoint experts or conduct extra investigations – this is extremely rare – the fees and disbursements of the experts, the witness money and the accommodation and travel costs arising from investigative acts would be at the expense of the losing party.

Costs of attorneys

The preparation of a case and the elaboration of additional documentation in the procedure and the pleadings are time consuming. With an hourly rate ranging from € 125 to € 200 or more (without VAT), barristers’ cost for a case will easily reach € 4,000 to € 10,000, and € 5,000 to € 12,000 if there is also a demand for suspension. In the event that a further appeal is necessary (before the Council of State against a judgment of the Council of Permit Disputes), another € 4,000 to € 8.000 will be needed. Environmental NGOs give an average cost of € 5,000 for a Council of State case and € 2,000 for a case before the ordinary courts. They often try to do a maximum of preparatory work themselves so that they can limit barristers’ costs. In some instances, barristers agree to a preferential tariff for an NGO (e.g. € 75 hourly). A case for less than € 2,000 seems, however, impossible. In complex cases, and in cases where there is a need to appeal, the cost can be much higher.

These costs have increased further since Belgium abolished VAT exemption for barristers in 2014. Barristers currently have to charge 21% VAT on their fees and costs. The Constitutional Court was of the opinion that this increase does not violate art. 10, 11 and 23 of the Constitution (Constitutional Court, n° 27/2017, 23 February 2017, Ordre des barreaux francophones et germanophone c.s.), after having consulted the CJEU on the validity of the EU VAT Directive in the light of art. 47 of the EU Charter of Fundamental Rights and the Aarhus Convention (CJEU, 28 July 2016, Case C‑543/14, Ordre des barreaux francophones et germanophone and Others).

Total costs

Together with the court fees, and the risk of having to pay a judicial allowance as intervention in the lawyers’ fees and costs of the winning party if the case is lost, these costs might be an obstacle for access to justice by ordinary people and NGOs. If these costs are not covered by insurance (which can often be the case when a private party is suffering damages that can be considered as environmental), a party might often think or more before launching procedures. Although procedures in Belgium cannot be considered “prohibitively expensive”, lawyers’ fees and the new system of court fees, judicial allowances and VAT might have a dissuasive effect.

3) Is there legal aid available for natural persons?

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?

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

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

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?

Legal aid

There are no specific provisions concerning legal aid for legal persons or for NGOs. There is only one case reported in which legal aid was awarded to an environmental NGO. The Constitutional Court held that Articles 508/1 and 508/13 of the Judicial Code violated Articles 10 and 11 of the Constitution, read in conjunction with Article 6.3 (c) of the European Convention on Human Rights, by not providing legal aid for legal persons that are prosecuted and have insufficient income (Constitutional Court, n° 143/2016, 17 November 2016, M.S.). However, the articles concerned have not been modified yet. There is no specific public funding for environmental litigation by environmental NGOs. However, apart from project-related subsidies, federal and regional governments (as well as local governments) are giving some general subsidies to support the activities of certain environmental NGOs. Such non-earmarked subsidies can of course to some extent support litigation of those NGOs, but this is not seen as a very reliable source for funding litigation. Except the assistance provided for in the context of legal aid (see 1.6 above) by “pro deo” lawyers – junior lawyers are obliged to participate in the system, senior lawyers can do it voluntarily – there is no tradition of organised pro bono assistance. Public interest litigation as an institution is not known in Belgium. However, there are, within the group of specialised environmental lawyers, a few lawyers that nearly exclusively work for environmental NGOs or citizens keen to protect the environment. Law School Clinics dealing with environmental law do not exist.

Security

The appellant in an environmental case does not have to pay a bond in order to obtain an injunction of the appealed decision. However, when an individual citizen, or a group of citizens, acts instead of the defaulting municipality on the basis of art. 271 of the Municipal Act (and its regional counterparts), there is an obligation for the party to “offer” security that it will pay the costs of the proceedings and the condemnations if it loses. In general, a declaration that it will bear the costs and that it has paid the initial court fee is accepted as being sufficient in that regard. Protective cost orders as such are not known. The need for such orders may be felt less than that for other legal orders because most of the costs can be assessed more or less in an early stage or are fixed by law, with the notorious exception of the costs of experts.

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?

On the federal level, information on access to information, including the applicable rules, can be found through this website (NL/FR/DE/EN).

Information about the Federal Appeals Commission for access to environmental information is accessible through this website (NL/FR/DE).

For the Flemish Region, this website can be referred to.

For the Walloon Region: consult this website.

For the Brussels-Capital Region, information is provided on these websites (NL/FR):

Toegang tot milieu-informatie

Accéder à l'information environnementale

De Commissie voor Toegang tot Bestuurdocumenten (CTB)

La Commission d'Accès aux Documents Administratifs (CADA)

Commission for Access to Administrative Documents

Toegang tot rechtspraak in milieuzaken

Accéder à la justice en matière d'environnement?

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

Information during environmental permitting procedures

During environmental permitting procedures, most of the time there is an opportunity for public participation in which information on the application is at the disposal of the public. Insofar as access to information is concerned, there is no variation in the legislation between the rules applicable to and those applicable to other establishments, although the permit application for IPPC/IED installations will generally contain more information than that for smaller establishments, according to Directive 2010/75/EU.

In the Flemish Region, the legislation on the integrated permit (omgevingsvergunning) provides (except in cases where the simplified procedure is applicable) a public inquiry of 30 days, during which the application can be consulted at the local government of the place where the project is planned. The inquiry is announced with a poster at the affected location, a message on the website of the local government, for bigger projects, an announcement in a daily or weekly newspaper, and through some individual notifications. In the event that an EIA or Safety Report is part of the application in which location alternatives are discussed, the local governments affected by the alternatives shall also publish a notification on their websites. The application and the EIA and safety documentation can be consulted in hard copy at the local authority or digitally through the Omgevingsloket and, where EIAs are concerned, through the MER-dossierdatabank (on request). Apart from the permit application, other documentation that will be available for consultation includes, when applicable, the EIA screening note, the scoping decision concerning the EIA, the approval or rejection of the EIA Report, the opinions of the specialised public bodies (on request), the EIA Report and the Safety Report. In the event of transboundary effects (meaning both regional and national borders) of the proposed project, the application will be sent to the competent authorities of the regions or countries concerned to obtain their opinion. The public concerned of those regions or countries can take part in the public participation process organised by the local authority in the Flemish Region or the public inquiry organised by the competent authority of the other regions or countries.

In the Walloon Region, applications for environmental permits and integrated permits are, as a rule, subject to a public inquiry of 30 days (if an EIA is necessary) or 15 days (in other cases) organised by the local authority(s) concerned. The public inquiry is announced through a poster at the location and on the official local announcement billboards. Some individual notifications (hard copy or digital) are necessary. When an EIA is required, additional notification should also be made in two newspapers (at least one with local circulation), in the local information journal or equivalent publication, and on the website of the local government. The file can be consulted by the public during the public inquiry and includes the application, and, if necessary, the EIA Report (with an executive summary and technical annexes), the comments and suggestions brought forward during the initial consultation in view of the EIA, and the opinions of competent bodies as soon they are available here.

In the Brussels-Capital Region, so-called special publication measures (speciale regelen van openbaarmaking, mesures particulières de publicité) are nearly always applicable for environmental permit procedures. This means that the local authorities where the effects of the planned project will occur shall organise a public inquiry. Reasonable time is given to the public to take part in a public consultation (no fewer than 15 days, but more generally 30 days (if an EIA is required). The public inquiry will be announced through different posters at the location and in the vicinity. The “public” is referred to in a very broad way, namely “one or more natural or legal persons, associations, organisations or groups” (or even “whoever” as per the Land Use Planning Code). Also, the local consultation commission (overlegcommissie, commission de concertation) will be asked to provide an opinion. During that period, the application file can be consulted at the local administration, including at least one evening a week, and a request can be made to be heard by the consultation commission.

A website provides information about all ongoing public inquiries for building and environmental permits in the Brussels-Capital Region territory. The permit application file selected on this website can be viewed via an interactive map. Another website of the Brussels Environmental Administration provides information about environmental permits that are either under investigation (as soon as the file is declared complete), valid or invalid (refused or cancelled within the last three months). To further facilitate participation, public consultations will soon be centralised on a single webpage on the website of the Brussels Environmental Administration. That webpage will present both current and past public consultations.

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

Environmental Impact Assessment

In the Flemish Region, the EIA Report and all related documents (screening, scoping and quality control decisions) will be submitted for public participation together with the permit application within the framework of the integrated permitting procedure (see above). Prior to submitting the permit application to the competent authority, the initiator can ask the administration to withdraw information in the EIA Report that falls under one or more of the grounds for refusing access to environmental information during the public inquiry. They must explain which information is involved and on what grounds the withdrawal from public access should take place. The administration will balance the interests concerned against the right of access to environmental information. The administration may withdraw all or part of the aforementioned information from the public domain. If it decides to withdraw all or part of the indicated data from the public, it must include the relevant data in an appendix. That appendix to the EIA Report is not made available to the public during the permitting procedure.

In the Walloon Region, in the event that an EIA Report (étude d’incidence) is required, a first consultation of the public will take place in view of a scoping decision. Furthermore, within the framework of the permitting procedure, a file accessible to the public can be consulted during office hours at a place indicated by the competent authority. The file contains the permit application, a non-technical summary, the EIA notice (notice d’évaluation) or the EIA Report, and the opinions received. The competent authority can decide to withdraw from the file information that falls under one or more of the grounds for refusing access to environmental information, in which case this will be indicated in the file. The inquiry takes 30 days.

In the Brussels-Capital Region, the EIA Report (Etude d’incidences ou rapport d’incidences – Effectenstudie of effectenverslag) is part of the permit application and is submitted to the special publication measures mentioned above. The EIA Report is prepared by a licensed office that provides recommendations and includes a non-technical summary. The follow-up of the study is ensured by the Accompanying Committee, of which the Brussels Environmental Administration, Urban Brussels, the Municipality and Brussels Mobility are members.

The ordinance of 5 June of 1997 provides for an appeal sui generis before the Government if the Accompanying Committee fails to meet the deadline for a decision on the scope of the study (art. 24) or the completeness of the EIA Report, or against the decision of the Accompanying Committee considering the impact study incomplete (art. 28, §4). The Government replaces the Accompanying Committee. It shall notify its decision within 60 or 30 days of referral.

Strategic Environmental Assessment

On the Federal level, the competent administration decides on a case by case basis, and based on the advice of a Special Advisory Committee drawn from different federal administrations, whether federal plans and programmes can have a considerable environmental impact and should therefore be subject to an SEA. The authority that is initiating the SEA shall submit a draft outline of the SEA (ontwerpregister, projet de répertoire) to the Committee, which will give scoping advice. The initiating authority will take a scoping decision taking account of that advice. The author of the plan or programme shall submit the draft plan or programme, accompanied by the environmental impact report, to the public for consultation. The public consultation is announced no later than 15 days prior to commencement by means of a message in the Belgian Official Journal, on the Federal Portal site, and by at least one other means of communication chosen by the originator of the plan. The public consultation lasts 60 days and is suspended between 15 July and 15 August. The publication in the Belgian Official Journal states the start and end date of the public consultation and the way in which members of the public can make their advice and comments known. The comments and opinions are sent to the author of the plan or programme by post or electronically within the investigation period. Additional means of public consultation can be provided for in order to make the draft plan or programme and the environmental impact report as widely known as possible (EN/NL/FR/DE).

In the Flemish Region, it is up to the EIA/SEA Team (Team Mer) of the Department of Environment and Spatial Development in the screening phase to decide if an SEA is necessary for a certain plan or programme on the basis of a notification of the authority concerned and after consulting with some specialised authorities. In the event that an SEA is necessary, a detailed notification is submitted in view of scoping. This notification is published on the website and can be consulted at the local authorities concerned and the authority that is taking the initiative for the plan or programme. Within a period of 30 days, anyone can submit their comments and suggestions to the EIA/SEA Team or to the local authorities in view of the scoping decision of the EIA/SEA Team. Once the EIA Report has been drawn up, it will, together with the concerned plan or programme, be submitted to a public inquiry in all concerned communities for 60 days. In the case of transboundary effects, there will be a transboundary public inquiry. Similar rules apply for SEAs concerning land use plans within the framework of the integrated planning process of the Flemish Land Use Planning Code (Vlaamse Codex Ruimtelijke Ordening or VCRO).

In the Walloon Region, the Walloon Government determines the content (scoping) of an SEA Report after consulting with the Environmental Section of the Economic, Social and Environmental Council of Wallonia (Pôle Environnement du Conseil économique, social et environnemental de Wallonie), the local authorities concerned, and the agencies and persons that it decides to consult. In the event that an SEA is necessary, the SEA Report will be submitted to public participation, together with the related draft plan or programme, by the local authorities concerned. The public inquiry will be announced by posters and on websites, and, depending on the category, by notices in the Belgian Official Journal, newspapers or local bulletins, on the radio, or through the local information bulletin. The public inquiry will last 45 or 30 days, depending on the category to which the plan or programme belongs. The inquiry is suspended between 16 July and 15 August and between 24 December and 1 January. The publicly accessible file contains the draft plan or programme, the EIA notice or EIA Report, all complementary documentation and opinions received.

In the Brussels-Capital Region, the SEA procedure starts with a draft outline of the SEA (ontwerpbestek, projet de cahier des charges) that the initiator has to submit to some advisory bodies. They shall deliver their opinion within 30 days and the authority that is initiating the plan or programme will than decide on the outline of the SEA. When the SEA Report is finalised, it is submitted, together with the draft plan or programme, for public consultation. The public inquiry is announced by posters in every municipality of the Region, by a notice in the Belgian Official Journal, and in at least three Dutch-language and three French-language newspapers distributed across the Region, as well as by a radio and television announcement. The announcement states the beginning and the end of the public inquiry. The public inquiry is also announced electronically on the website of the Brussels Environmental Administration.

After these announcements have been made, the draft plan or programme and the environmental impact report are made available to the public for at least 60 days at the town hall of each municipality of the Region. The comments and objections, the authors of which can send a copy to the mayor and aldermen of the municipalities concerned, are addressed to the initiating authority within the investigation period either by post or electronically. In the case of transboundary effects, there will be a transboundary public inquiry.

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

Information on access to justice

According to art. 19 of the basic act on the Council of State, individual administrative decisions must provide information about the possibility to challenge the decision with the Council of State, otherwise the period of 60 days to introduce a demand for annulment will, as a rule, not start to run.

Insofar as the Flemish Region is concerned, integrated permit decisions must be made public and notified to the concerned parties and should indicate the possibility for and means of appeal against the decision taken. This includes information about the possibility to introduce a demand for annulment and suspension with the Council of Permit Disputes in the case of decisions that cannot be appealed any further within the administrative track.

The same obligation applies to administrative decisions in the Brussels-Capital Region: citizens must be informed about available appeals. Any unilateral administrative act with individual scope notified to a citizen, or any decision to refuse access to information (totally, partially or in the requested format), must indicate:

1. the possibility to contact the Brussels mediator (with the means); and
2. the means of and time limits for administrative appeal to which it may be subject as well as the competent authorities and the procedures for lodging this appeal.

The concerned parties may initiate an appeal procedure:

1. to the College of the Environment against decisions, acts or omissions of the competent authority; and
2. to the Government against decisions of the Environment College. Further appeal to the Council of State is possible.

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

Translation and interpretation

Before the Council of State, private parties, including NGOs, can use the official language of their choice (Dutch, French or German), while public authorities must use the language determined by the strict and complex Belgian administrative language legislation. In exceptional circumstances, the case will be processed by the bilingual chamber of the Council. If the case is processed by the Council of State in a language other than that used by the private party – in principle, the case will be treated in the language of the challenged decision – that party can ask for translation and interpretation. The costs are at the expense of the State. There are no provisions for the use of other languages. Thus, foreigners must rely on barristers that use one of the national languages when representing them before the Council and themselves meet the costs of translation.

Similarly, there are no rules on translation of documents for foreigners in the legislation concerning the Council of Permit Disputes in the Flemish Region, which has Dutch as its working language. However, during oral hearings the Council can, ex officio or at the request of the concerned party, provide interpretation for persons who are unable to speak or understand Dutch sufficiently. The costs will be at the expense of the Council. It seems that this possibility has not been used yet.

In the Brussels-Capital Region, the applicant can choose to submit their appeal in French or Dutch, the two official languages of the Region, before the Environmental Appeal Board. The decision will be rendered in both languages if another party speaks the other official language.

Decisions of the Government are bilingual.

Access to information and the right of administrative appeal

Access to information is essential for effective public participation and access to justice.

On the federal level, access to environmental information is dealt with in the Federal Act of 5 August 2006 concerning access of the public to environmental information. Appeals against refusals and the absence of a decision within the timeframe of 30 days can be addressed to the Federal Appeal Commission for Access to Environmental Information (Federale Beroepscommissie voor de toegang tot milieu-informatie – Commission fédérale de recours pour l’accès aux informations environnementales). The appeal is free of charge. An appeal shall be sent to the Commission within 60 days after the requester has been informed of the refusal or, in the absence of such a decision, after the date of expiry of the period within which the environmental instance had to take a decision on the request. The Commission has investigation and decision powers. It takes its decision within 30 days after the introduction of the appeal. The Commission publishes its decisions as soon as possible after the applicant has received the decision. The Commission also has an advisory function for federal environmental instances. All decisions and advice can been found on its website. Against decisions of the Commission, appeal is possible before the Council of State.

The Brussels-Capital Region has recently streamlined its legislation on access to information, including environmental information, into a single and comprehensive text. The new Brussels legislation on the publicity of the administration also provides for specific regional appeal bodies: a mediator (not entered into force yet) and a Regional Commission for access to administrative documents (La Commission d'accès aux documents administratifs (CADA) - De Commissie voor Toegang tot Bestuurdocumenten (CTB)). The Regional Commission deals with appeals relating to the dissemination of information, the refusal of access to information and the refusal to correct inaccurate or incomplete information relating to a person. The appeal is free of charge. The appeal shall be sent to the Commission within 30 days (five working days in cases of urgency) of gaining knowledge of the decision of refusal or, in the absence of such a decision, of the date of expiry of the period within which the administrative authority had to take a decision on the request.

The Regional Commission has investigation and coercive power. It also has the power to grant access or demand rectification of the information in dispute. The Commission shall publish on its website, within 20 working days of adoption, the decisions, opinions and proposals it adopts. An annual report is also published. The Commission’s decisions can be contested before the Council of State.

In the Flemish Region, the right to access to environmental (and other) information is governed by the Governance Decree (Bestuursdecreet). Appeal can be lodged against any decision made by a public authority with regard to access to information, either after expiry of the term within which the decision had to be taken, or in the event of the decision being carried out reluctantly. This appeal must be lodged with an administrative appeal body (Beroepsinstantie openbaarheid van bestuur) composed of officials appointed by the Government of Flanders. This appeal is free of charge and must be submitted in writing, by web form or by e-mail, within 30 calendar days after the sending of the decision or after expiry of the implementation period. The decisions of the appeal body are public and are published on the internet (Publicaties | Vlaanderen.be). The public authority has to implement the appeal body’s decision as soon as possible and at the latest within 15 calendar days after receiving the decision. If the public authority has not implemented the decision of the appeal body in due time, then the appeal body will carry out the decision itself as soon as possible. An appeal for annulment can be lodged with the Council of State against the decision of the appeal body within 60 days.

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)

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

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

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

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

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

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

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?

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

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

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?

Screening and scoping decisions

In Belgium, screening and scoping decisions, as well as decisions concerning the approval of SEA or EIA Reports by competent authorities, cannot be challenged in court separately. They are considered to be “preparatory decisions” that can only be challenged together with the administrative acts that are subject to SEA or EIA: the plans, programmes and permits concerned. The rules on standing and access to justice are thus those applicable for plans and programmes and permits, as presented above. It is settled case law of the Council of State that the Council is not authorised to substitute its assessment of the EIA screening, scoping or quality control for that of the competent authority. In the exercise of the legality check entrusted to the Council, the Council is only authorised to verify whether the competent authority could reasonably have decided, on the basis of correct factual information, that the intended plan, programme or project does not give rise to significant environmental impacts, that the drawing up of an SEA or EIA was not necessary, that the scope of the SEA or EIA was acceptable, or that the quality of the report was sufficient. However, although the Council is restricting itself to a “marginal review” of the legality of screening, scoping and quality decisions, we are witnessing over time that the Council is becoming more demanding concerning those decisions. The legality control includes both the substantive and the procedural legality. The Council can raise a plea on its own initiative. In the event that there is an organised administrative appeal provided for, that appeal must have been exhausted first before it is possible to challenge the decision taken on administrative appeal before the Council of State, but it is not necessary to have participated in the public consultation phase. We can say that the procedure applied by the Council is fair and equitable, but although things are improving over time, the procedure is still too time consuming (see above). Interim relief is available under the general conditions presented above.

The same can be said concerning the Council of Permit Disputes in the Flemish Region, with that exception that within the framework of the new system of integrated permits, by a Decree of 8 December 2017, some provisions had been introduced meaning that members of the public concerned could, in principle, only have access to administrative appeal and judicial appeal to the Council for Permit Disputes if they had participated in the public inquiry by submitting a reasoned opinion, comment or objection. Those restrictions have, however, been annulled by the Constitutional Court for violation of Articles 10, 11 and 13 of the Constitution (Constitutional Court, n° 46/2019, 14 March 2019, vzw Aktiekomitee Red de Voorkempen and Others).

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

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

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

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

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

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

5) Can the public challenge the final authorisation?

6) 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?

7) At what stage are these challengeable?

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

9) 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?

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

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

12) 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?

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

IPPC installations are subject to the general rules of the different environmental permitting procedures in place. We refer to the explanations given in points 1.7.1.-1.7.4.

1.8.3. Environmental liability[1]

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?

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

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

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

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)?

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?

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

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

In the Flemish Region, the following persons who are aware of environmental damage may submit comments to the competent authority of the Enforcement Division of the Department of the Environment (Afdeling Handhaving van het Departement Omgeving) and request that the competent authority take action: 1) natural and legal persons affected or likely to be affected by environmental damage; 2) natural and legal persons who have an interest in the decision-making regarding the damage; 3) legal persons referred to in Article 2 of the Federal Act of 12 January 1993 on a right of action for the protection of the environment (i.e. environmental NGOs) (see point 1.7.2). A request for measures must contain the following elements: name, capacity and address of the applicant; the way in which the applicant is suffering or is likely to suffer; description of the nature, extent, location and date of assessment of the damage; indication that it concerns a request for measures as provided for in Title XV, Chapter VI of the Decree of 5 April 1995; date and signature of the applicant. As far as possible, the request for measures should contain: 1) a description of the probable cause of the environmental damage; 2) an indication of the operator likely to cause environmental damage; 3) an inventory of the attached documents. The competent authority has to decide on the request within 30 days. The persons that have applied for measures to be taken can appeal to the Flemish Government by registered letter within 30 days of the notification. The Flemish Government has to decide on the appeal within 105 days. The appeal is not suspensive. The decision on appeal can be challenged with the Council of State.

In the Walloon Region, natural or legal persons (a) affected or likely to be affected by environmental damage or (b) having sufficient interest in environmental decision-making relating to the damage may submit to the competent authority, the Environmental Policy Board of the Walloon Public Service Agriculture, Natural Resources and Environment (Direction de la Politique Environnementale du SPW Agriculture, Ressources Naturelles et Environnement), any observations relating to any occurrence of environmental damage of which they have become aware, and are entitled to request that the competent authority take action. ENGOs are deemed to have sufficient interest provided that they have legal personality and that they have environmental protection as a statutory objective. These associations should provide proof, by producing their activity report or any other document, that they undertake genuine activities in accordance with their statutory objective. The request for action is accompanied by relevant information and data supporting the observations presented in relation to the environmental damage in question. If a request for action is formulated too vaguely or too generally, the competent authority invites the applicant as soon as possible to formulate it in more detail and helps the applicant to do so adequately. In the case of damage to the soil, the request for action only applies to pollution that generates a risk of a serious negative impact on human health. If the request for action and accompanying observations plausibly indicate the existence of environmental damage, the competent authority examines these observations and this request for action. In such cases, the competent authority gives the operator concerned the opportunity to make known their views on the request for action and accompanying observations. The competent authority shall acknowledge receipt of the request for action within ten working days of receipt. The competent authority shall inform the persons that have submitted observations of its decision to act or not and of the reasons thereof: (1) as soon as possible, and at the latest within one month of receiving the request; (2) or within two months of receipt of the request where the extent or complexity of the situation reported are such that the one-month period cannot be respected. The notification of the reasoned decision of the competent authority indicates the appeal to which it may be subject as well as the procedures for lodging this appeal. If the competent authority does not notify its decision on the request for action within the deadlines provided for, the request is deemed to be rejected. Any claimant who considers that their request for action has been improperly disregarded or wrongfully rejected, in whole or in part, or that it has been insufficiently considered or has not been processed in accordance with the Environmental Code, may appeal to the Walloon Government. Under penalty of inadmissibility, this appeal shall be brought within ten working days of receipt of the notification of the decision of the competent authority or, in the absence of a decision, within ten days of the expiry of the applicable time limits. The Walloon Government decides on the appeal after having obtained the opinions of the environment administration and of any person or body it deems useful to consult. It shall rule as soon as possible, and at the latest within 90 days of receipt of the appeal. The decision of the Walloon Government is notified to the applicant indicating the appeals which they can make and the time limits within which these appeals must be lodged. That decision can be appealed with the Council of State.

In the Brussels-Capital Region, any natural or legal person having an interest to assert that they are affected or likely to be affected by environmental damage is entitled to submit to the competent authority, the head of the Brussels Environmental Administration (leidend ambtenaar Leefmilieu Brussel/fonctionnaire dirigeant de Bruxelles Environnement), any observation related to any occurrence of environmental damage or to an imminent threat of environmental damage of which it becomes aware, and has the right to request that the competent authority take measures, with regard to the Code on inspections, prevention, reporting and sanctioning of environmental offences and on environmental liability. Any association which works for the protection of the environment in the territory of the Brussels-Capital Region is deemed to have an interest provided that:

1. the association is incorporated as a non-profit association (vzw/asbl);
2. the non-profit association was pre-existent on the date of occurrence of the environmental damage or the imminent threat of damage;
3. the statutory object is the protection of the environment; and
4. the interest at stake in their observations and/or request for action falls within the scope of the statutory object of the association as it stands at the date of the damage or of the imminent threat.

This provision applies without prejudice to the right of action provided for by the Federal Act of 12 January 1993 (see point 1.7.2). The request is accompanied by the relevant information and data supporting the observations presented in relation to the environmental damage in question. If the request and accompanying observations indicate in a plausible way the existence of environmental damage, the authority examines these observations and this request. In such a case, the authority gives the operator concerned the opportunity to make known its position on the request and accompanying observations according to the forms and deadlines fixed by the Government. The authority informs the persons who have submitted observations of its decision to act or not, indicating the reasons behind it, as soon as possible, and at the latest within one month of receiving the request. The notification of the reasoned decision of the authority indicates the means and time limits for appeal to which it may be subject as well as the procedures for lodging this appeal. The aforementioned persons may initiate an appeal procedure:

1. to the College of the Environment against decisions, acts or omissions of the competent authority; and
2. to the Government against the decisions of the Environment College.

A further appeal to the Council of State is possible.

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?

2) Notion of public concerned?

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)?

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)?

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

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

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

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

9) Any other relevant rules?

Federal plans and programmes

Regarding SEA for federal plans and programmes that can have a significant effect on the environment of another Member State of the European Union or another State party to the Espoo Convention, the following shall be communicated to the competent authorities of those States: 1) the draft plan or programme together with the environmental impact report and any information about the cross-border effects; 2) a description of the preparation and assessment procedure applicable to the plan or programme in question. The competent authorities are informed that they can specify whether they intend to cooperate in the assessment procedure for the plan or programme within a period of 45 days from the notification. The State concerned informs the author of the plan or programme within a period of 45 days whether it wishes to submit the plan or programme to a national consultation. The author of the plan or programme and the concerned State jointly determine a reasonable period within which the consultation in the concerned state will be arranged. The concerned State that announced the arranging of a national consultation shall forward its opinion to the author of the plan or programme within that period.

Nuclear installations

Operating permits for nuclear installations are a federal competence. Following the judgment of the Court of Justice of the European Union of 29 July 2019, C‑411/17, Inter-Environnement Wallonnie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL, the Constitutional Court (Constitutional Court, n° 34/2020, 5 March 2020, Inter-Environnement Wallonnie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL) has judged that the extension in time of industrial production of electricity constitutes a ‘project’ within the meaning of Directive 2011/92/EU, and that an environmental impact assessment must, in principle, be carried out with respect to that project prior to the adoption of such a decision. Such a project must undergo an assessment procedure in relation to its transboundary effects in accordance with Article 7 of the EIA Directive.

Regional plans and programmes

In the Flemish Region, transboundary consultation and public participation will in the first place happen in the context of SEA. If the plan or programme concerned can have significant effects on people or the environment in other Member States of the European Union and/or in contracting parties to the Aarhus Convention and/or in other regions, or if the competent authorities of these Member States, contracting parties and/or regions so request, the EIA/SEA Team (Team MER) shall send a copy of the fully declared notification to the competent authorities of the Member States, contracting parties and/or regions. When the copy is sent, it shall be clearly indicated that any comments about the SEA can be submitted to the administration within a period of 60 days from receipt of the copy in view of scoping. A similar notification is necessary when the draft plan or programme and the SEA documentation are submitted to public consultation. By mutual agreement, practical arrangements are made concerning the way the citizens of the concerned countries and regions can introduce their observations. Similar provisions apply in the case of EIA, although transboundary consultation on the EIA Report will be combined with the consultation on the application of an integrated permit. If the competent administration determines that the subject of the permit application can have significant effects on people and the environment in another region, another EU Member State or a contracting party to the Espoo Convention, or if the competent authority of that other region, EU Member State or contracting party to the Espoo Convention so requests, the competent administration makes the application available to the competent authority for advice. In addition, it shall be clarified whether or not the application is subject to an EIA or to consultations between the regions, the EU Member States or other contracting parties involved. That information serves as the basis for the necessary consultation according to the principle of reciprocity and equal treatment. As soon as possible, and no later than the day before the start of the public inquiry, the authority with which the file is available for inspection will inform the competent authority. The interested residents of the region concerned, the EU Member State concerned or the contracting party to the Espoo Convention concerned may participate in: 1) the public inquiry organised in the Flemish Region; 2) the public inquiry that the competent authority may organise in its own territory based on the application file received. The competent authority shall at the same time communicate its possible comments, together with the results of any public inquiry it has organised, to the competent permitting authority and to the EIA administration within a period of 50 days from the date of receiving the file. If the application relates to an establishment subject to an EIA, consultations are held with the region or the EU Member State concerned about, among other things, the potential transboundary effects of the establishment and the measures that are envisaged to limit or eliminate those effects within an agreed reasonable time. Similar provisions apply when the competent administration determines that the subject of the application is the operation of a so-called Seveso plant with a major transboundary major-accident risk.

When in the Walloon Region a plan, programme or project is subject to a SEA or EIA and the Government or the competent authority notes that it is likely to have significant effects on the environment of another region, another Member State of the European Union or another party to the Espoo Convention, or when another region, another Member State of the European Union or another State party which is likely to be significantly affected makes the request, the draft plan, draft programme or permit application, accompanied by the SEA or EIA Report and any information on the cross-border implications of the case, is sent for consultation to the competent authorities of that other region, other Member State of the European Union or party at the same time as these documents are subject to public inquiry in the Walloon Region. In addition, the following information is also transmitted:

1. the contact details of the authorities competent to take the decision, of those from which relevant information can be obtained, of those to which comments or questions may be addressed, as well as details of the deadlines for transmitting comments or questions;
2. the nature of the possible decisions or, where it exists, the draft decision;
3. where applicable, details concerning a proposal to update a permit or the conditions attached to it;
4. an indication of the date and place where the relevant information will be made available to the public and the ways it will be made available;
5. the precise means of public participation and consultation;
6. the main reports and opinions addressed to the competent authority or authorities at the time when the public was informed.

The consultation procedure may be implemented through an appropriate joint body.

When the implementation of a plan or programme under development in the Brussels-Capital Region is likely to have significant effects on the environment of the Flemish Region, the Walloon Region or a Member State of the European Union, or when the Flemish Region, the Walloon Region or a Member State of the European Union likely to be significantly affected, so requests, the Government transmits to the region or Member State of the European Union, before said plan or programme is adopted or submitted to the legislative or regulatory procedure, a copy of the draft plan or programme as well as a copy of the SEA Report. When the Flemish Region, the Walloon Region or a Member State of the European Union receives a copy of a draft plan or programme as well as a copy of the SEA Report, it informs the Government if it wishes to start consultations before the plan or programme is adopted or submitted to the legislative procedure and, if this is the case, the Government and the region or Member State of the European Union concerned enter into consultations on the likely transboundary implications of implementation of the plan or programme and on the measures envisaged to reduce or eliminate these impacts. When such consultations take place, the Government and the region or Member State of the European Union concerned shall mutually agree on arrangements to ensure that the competent authorities and the public in the region or Member State of the European Union whose territory is likely to be significantly affected are informed and can send their opinion within a reasonable time. When the regions or the Member States are required to consult under this article, they shall agree from the start of negotiations on a reasonable period for carrying out the consultations.

When the competent authority, insofar as EIA and environmental permits are concerned, determines that a project could have a significant impact on the environment of another region, another Member State of the European Union or another party to the Espoo Convention, or when the concerned region, State or party to the Convention so requires, the competent authority shall arrange for the transfer to the competent authority of the concerned region or State, at the latest at the time when the public inquiries in the Brussels-Capital Region start, all available information about the project and its possible cross-border effects as well as the nature of the decision that could be taken. The competent authority grants a reasonable time to the addressee of this information to indicate whether there is a desire to participate in the decision-making procedure. In this case, the competent authority will also hand over the following as soon as possible, with the instruction to arrange the participation of the intended public:

1. the relevant content of the application file in relation to the project;
2. the government data from which relevant information can be obtained and on which comments can be made;
3. the correct means of public participation;
4. the period within which the decision must be taken.

The competent authority considers the comments made during this procedure and communicates its decision to the body that participated in the decision-making process.

Foreign individuals and NGOs

In Belgium, there are no specific rules concerning standing of individuals or NGOs of an affected country. Thus, the general rules on standing, timeframes and use of languages will apply, as discussed above in points 1.4, 1.6 and 1.7. Like Belgian nationals or persons living in Belgium, foreign nationals or persons living in another country can, under the same conditions of having an interest, introduce a demand for annulment and request interim measures (e.g. Council of State, n° 187.971, 17 November 2008, De Cloedt; Council of State, n° 210. 478, 18 January 2011, De Cloedt). The same is true for foreign NGOs (e.g. Council of State, n° 231.609, 18 June 2015, Sucaet; Council of State, n° 241.778, 14 June 2018, Sucaet).

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

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) 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?

Standing of individuals and NGOs

The standing rules are the same as those mentioned in paragraph 1.4. In general, we can say that Belgian law and jurisprudence have evolved in such a way that access to justice in environmental matters is now consistent with the requirements of the Aarhus Convention and related EU law (see paragraph 1.3).

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?

Administrative appeals and court review

As set out in paragraph 1.3, in administrative appeals all aspects of the administrative decision can be reviewed, while the judicial review by the administrative courts will cover both the procedural and substantive legality. There are no grounds or arguments precluded from the judicial review phase.

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

Exhaustion of administrative review procedures

When an administrative appeal is provided for in the legislation at stake, that avenue should be exhausted first before recourse is taken to the judicial review procedure (see paragraph 1.3).

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.?

Public participation

In order to have standing before the administrative courts, it is not necessary to participate in the public consultation phase of the administrative procedure.

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

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

Fairness

The principle of equality of arms is part of the notion of fair trial. In Belgium, the principle is interpreted in a way that is consistent with the case law of the ECtHR and the CJEU.

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

Timeliness

The main weakness of the Belgian situation concerning access to justice is that, although we have seen improvement in recent years, the courts still need still too much time to decide cases.

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?

Injunctive relief

Injunctive relief is available under the conditions set out in point 1.7.2.

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?

Cost rules

The rules set out in point 1.7.3 are applicable.

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[1]

Standing of individuals and NGOs

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 standing rules are the same as those mentioned in paragraph 1.4. An important difference with EIA-related permit decisions is that, in general, for SEA-related plans and programmes there is no administrative appeal, only judicial review by the Council of State. The time limit for introducing a case is 60 days after the day of publication of the plan or programme. The main weakness of the Belgian situation concerning access to justice is that, although we have seen improvement in recent years, the Council of State still needs too much time to decide cases (see point 1.8.1).

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?

Court review

As set out in paragraph 1.3, the judicial review by the Council of State will cover both procedural and substantive legality. Judicial review of SEA is only possible together with the plan or programme concerned, as set out in point 1.8.1. There are no grounds or arguments precluded from judicial review.

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

Exhaustion of administrative review procedures

Administrative appeal procedures for plans and programmes are, in general, not provided for in the legislation. Thus, the rule to exhaust that avenue first before having recourse to the judicial review procedure is not applicable (see paragraph 1.3).

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.?

Public participation

In order to have standing before the Council of State, it is not necessary to participate in the public consultation phase of the administrative procedure.

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?

Injunctive relief

Injunctive relief is available under the conditions set out in point 1.7.2.

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?

Cost rules

The rules set out in point 1.7.3 are applicable.

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[2]

Standing of individuals and NGOs

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 standing rules are the same as those mentioned in paragraph 1.4. In general, for plans and programmes there is no administrative appeal provided for, only judicial review by the Council of State. The time limit is 60 days after publication of the plan or programme. In general, we can say that Belgian law and jurisprudence have evolved in such a way that access to justice in environmental matters is now consistent with the requirements of the Aarhus Convention and related EU law (see paragraph 1.1).

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?

Court review

As set out in paragraph 1.3, the judicial review by the Council of State will cover both procedural and substantive legality. Through the control of general principles of proper administration, the legality control allows to reach out to facts. There are no grounds or arguments precluded from the judicial review phase.

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

Exhaustion of administrative review procedures

Administrative appeal procedures for plans and programmes are, in general, not provided for in the legislation. Thus, the rule to exhaust that avenue first before having recourse to the judicial review procedure is not applicable (see paragraph 1.3).

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.?

Public participation

In order to have standing before the Council of State, it is not necessary to participate in the public consultation phase of the administrative procedure.

Timeliness

The main weakness of the Belgian situation concerning access to justice is that, although we have seen improvement in recent years, the Council of State still needs too much time to decide cases (see point 1.8.1).

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?

Injunctive relief

Injunctive relief is available under the conditions set out in point 1.7.2.

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?

Cost rules

The rules set out in point 1.7.3 are applicable.

1.4. Decisions, acts or omissions also concerning plans and programmes required to be prepared under EU environmental legislation[3]

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?

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)?

Standing of individuals and NGOs

The standing rules are the same as those mentioned in paragraph 1.4. There is no variation in respect of the form in which the plan or programme is adopted.

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?

Court review

As set out in paragraph 1.3, the judicial review by the Council of State will cover both procedural and substantive legality. There are no grounds or arguments precluded from the judicial review phase.

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

Exhaustion of administrative review procedures

Administrative appeal procedures for plans and programmes are, in general, not provided for in the legislation. Thus, the rule to exhaust that avenue first before having recourse to the judicial review procedure is not applicable (see paragraph 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.?

Public participation

In order to have standing before the Council of State, it is not necessary to participate in the public consultation phase of the administrative procedure.

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

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

Fairness

The principle of equality of arms is part of the notion of fair trial. In Belgium, the principle is interpreted in a way that is consistent with the case law of the ECtHR and the CJEU.

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

Timeliness

The main weakness of the Belgian situation concerning access to justice is that, although we have seen improvement in recent years, the Council of State still needs too much time to decide cases (see point 1.8.1).

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?

Injunctive relief

Injunctive relief is available under the conditions set out in point 1.7.2.

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?

Cost rules

The rules set out in point 1.7.3 are applicable.

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

Standing of individuals and NGOs

Administrative regulations of the federal, regional, community, provincial and local governments can be challenged before the Council of State. The standing rules are the same as those mentioned in paragraph 1.4. There is no administrative appeal provided for, only judicial review by the Council of State. The time limit is 60 days after publication of the regulation in the Belgian Official Journal (Belgisch Staatsblad/Moniteur belge) or, where provincial or local regulations are concerned, after their official publication. Furthermore, Art. 159 of the Constitution states that Courts only apply general, provincial or local decisions and regulations where they are in accordance with the law. This “exception of illegality” can be raised in

any court case without a specific time limit.

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?

Court review

As set out in paragraph 1.3, the judicial review by the Council of State will cover both procedural and substantive legality. There are no grounds or arguments precluded from the judicial review phase.

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

Exhaustion of administrative review procedures

Administrative appeal procedures for regulations are not provided for in the law. Thus, the rule to exhaust that avenue first before having recourse to the judicial review procedure is not applicable (see paragraph 1.3).

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.?

Public participation

In general, there is no formal public consultation phase for regulations. Most of the time, however, some specialised advisory bodies composed of stakeholders shall be consulted. In the Flemish Region, the Flemish Government is required to publish draft regulations containing general and sectoral environmental conditions on the website of the Environment Department for a period of 30 days. The draft is available for inspection at the Department of the Environment during the same period. During that period, any person can submit their comments to that Department.

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?

Injunctive relief

Injunctive relief is available under the conditions set out in point 1.7.2.

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?

Cost rules

The rules set out in point 1.7.3 are applicable.

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[5]?

EU regulatory acts

It is not possible to bring a direct legal challenge before the Council of State concerning any EU regulatory act, because the Council is only competent to annul or suspend administrative acts and regulations issued by a Belgian administrative authority. However, if an administrative act of a Belgian administrative authority is challenged for violation of an EU act and the validity of that EU act is questioned, the Council of State is obliged to refer to the CJEU under Article 267 TFEU (compare with CJEU 19 October 201, C-281/16, Vereniging Hoekschewaards Landschap) before deciding the case.

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

[2] See findings under ACCC/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.

[3] 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 the Commission Notice C/2017/2616 on access to justice in environmental matters.

[4] Such acts come 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.

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

Enforcement of administrative court decisions

- Council of State

When the Council of State or the Council of Permit Disputes annuls a challenged administrative decision, such a judgment has retroactive effect and the administrative decision is considered never to have existed.

At the request of one of the parties, the Council of State clarifies the grounds for its annulment judgment and the measures to be taken to remedy the illegality which led to that annulment. If the judgment entails a new decision by the concerned administration, the Council may order that this administrative decision should be taken within a specified period. It may order this in a subsequent judgment, provided that the party at whose request the annulment was pronounced has given notice of default to the administration to make a new decision, by registered letter, and that at least three months have passed since the date of the notification of the annulment judgment. If the administration has no discretionary power regarding the new decision, the judgment of the Council of State shall take the place of that decision (substitution). Where the judgment of the Council of State implies that the authority concerned refrains from taking a decision, the Council may order such an obligation to refrain from taking a decision.

If the administration fails to comply with that obligation, the party at whose request the annulment was pronounced may request that the Council of State impose a penalty payment on this authority. The periodic penalty shall be enforced at the request of the party at whose request it was imposed and with the intervention of the Minister of the Interior. Half is allocated to the general resources of the Treasury. The other half is paid to the party at whose request the penalty payment has been imposed. Such penalty can be important. For example, in a case of illegal permits for clearing forests, the Council imposed a penalty of € 50,000 per site and breach. In another case, the penalty payment was set at € 15,000 per breach and per day.

At the request of a defendant or intervening party, and if it considers it necessary, the Council of State shall designate those consequences of annulled administrative decisions which shall be deemed to be definitively or provisionally maintained for the period it determines. Such a measure can only be ordered for exceptional reasons that justify an infringement of the principle of legality by a decision that is specifically reasoned and after a contradictory debate. This decision may take into account the interests of third parties.

- Council of Permit Disputes

The rules applicable to the Council of Permit Disputes are similar. If the Council of Permit Disputes declares the appeal to be well-founded, the Council will annul the contested permitting decision in whole or in part. The Council has a right of injunction: it can order the authority that took the annulled decision to take a new decision within a period determined by the Council. The Council can also impose certain conditions. Only in the event that the authority that should take a new decision has no discretionary power can the Council substitute its judgment for that decision. In all other cases, the Council cannot replace the authority that took the contested decision. It is then up to that authority to take a new decision respecting the Council’s ruling. This new decision can be appealed again. The Council of Permit Disputes can impose penalty payments under conditions similar to those for the Council of State.

The Council can apply an “administrative loop”. In the event that the Council finds an illegality in a challenged decision, it can, under certain circumstances, give the administrative authority the possibility to take a new decision, not containing the same error, that will be reviewed again by the Council.

The Council of Permit Disputes can also maintain the legal consequences of an annulled permit decision under circumstances similar to those for the Council of State.

Compensation for reparation

Anyone requesting the annulment of a decision with the Council of State can request that compensation be awarded to them in order to rectify the damage suffered as a result of the illegality. Compensation for damages may be sought in the application for annulment during the course of the procedure or no later than 60 days after notification of the judgment finding the illegality. The Council of State has to take into account all circumstances of public and private interest. After a claim for compensation has been introduced with the Council of State, the petitioner can no longer bring civil liability claims before the ordinary courts regarding the same disadvantage. Anyone who has already brought a civil liability claim with the ordinary courts can no longer claim damages from the Council of State.

Silence of the administration

When an administrative authority is obliged to take a decision, upon expiry of a period of four months, counting from a reminder notified to it by an interested party, the silence of the administration is deemed to be a negative decision that can be appealed before the Council of State. This provision is without prejudice to special provisions which stipulate a different period or attach different consequences to the silence of the administrative authority, as is the case in some environmental permitting procedures (see point 1.7.1).

To find more national information about access to justice in environmental matters, please click on one of the links below:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

3. Other relevant rules on appeals, remedies and access to justice in environmental matters

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 Administrative Procedure Code (APC), the Administrative 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 Biological Diversity Act, the Genetically Modified Organisms Act, the Water Act, the Protected Areas Act, the Waste Management Act, the Clean Ambient Air Act, the Protection from Environmental Noise Act, the Black Sea Coast Spatial Development Act, the Agricultural 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 Ordinance 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 Ordinance on conditions and the order for issuing of integrated permits (IED Ordinance); and the Ordinance 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 EU 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 Ombudsperson 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 website.

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 Ministry 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 analysis 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

The National Register of Legal Aid

Register 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:

WWF Bulgaria

Wildlife Society Balkani

Association of Parks in Bulgaria

Za Zemiata, with a special programme on Access to Justice

For the Nature Coalition (not registered as a legal entity)

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

Greenpeace (not formally registered as a legal entity)

WWF Bulgaria

Friends 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 National 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 Active 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 general information about the Aarhus Convention and some guidance related to its provisions. Other forms of dissemination are provided mostly by NGOs on their websites 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 MoEW 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 their 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] For example, orders on the designation of Natura 2000 protected areas are not subject to appeal (Article 12(7) of the Biodiversity Act), pending a ruling by the Constitutional Court in constitutional case No 14/2020.

[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. „Case-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] District courts are first instance courts for contesting most acts issued under the Act on the Ownership and Use of Agricultural Land; in this case, the Administrative Court is the cassation instance. (Paragraph 19 of the Transitional and Final Provisions of the Code of Administrative Procedure). District courts are first instance courts when appealing against an order imposing an administrative penalty (a fine) (Article 58e of the Administrative Infringements and Penalties Act (ZANN)).

[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] An administrative act, which is deemed not to be subject to appeal under Article 39 (Designation) and Article 42 (Changes) of the Protected Territories Act (ZZT); A refusal can, however, be appealed (Decision No 4144 of 04.04.2017 in administrative case No 12973/2016, of the 5-member chamber of the Supreme Administrative Court).

[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] The lack of legal standing of the public concerned poses problems when a negative environmental impact assessment (EIA) decision is contested, an agreement concluded with the contracting authority or a decision by a regional inspectorate for environment and water (RIEW) directly annulled by the court. (Order No 323/17.09.2020 of the Veliko Tarnovo Administrative Court in administrative case No 528/2020).

[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: http://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] Amendments to the Code of Administrative Procedure (SG No 15/2021) re-organised the way in which the regularity of cassation appeals is examined (Article 213a). The examination will be carried out by the court whose decision is being appealed and encompasses orders waiving payment of a state fee, suspending enforcement (Article 166) or authorising provisional enforcement (Article 167). The court of first instance may dismiss the appeal or close the case by means of an order on the grounds referred to in Article 215 and Article 213a(3) of the Code of Administrative Procedure. The amended Article 229(1)(1) does not allow private appeals against the dismissal orders referred to in Article 213a(7), i.e. orders dismissing appeals against referral and dismissal decisions issued for failure to comply, within the time limit, with an instruction to correct an irregularity, at the relevant stage of the process at which the irregularity is established (when the regularity of the cassation appeal is examined by the court of first instance (Article 213a(1), second sentence or (2), on the basis of Article 215); when the first instance examination is checked by the President of the Court of Cassation, his or her deputies or the president of the division (Article 213a(6)) and, lastly, by the court in the course of the cassation proceedings (Article 213a(6)(2), second scenario), as well as on appeals against a refusal to waive state fees. The amendment also confers a new power on the court, which may now, of its own motion, monitor regularity and issue instructions concerning procedural irregularities (Article 142b).

[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] ‘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.’

[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)

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 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 case 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[7] 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[8]

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[9] 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[10].

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[11]

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[12], 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[13]?

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] Legal 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] See findings under ACCC/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.

[7] 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)

[8] 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.

[9] 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.

[10] ACCC/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.

[11] 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

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

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

Remedies against the silence of the administration (the administrative passivity)

Non-pronouncement of the administrative authority in due time is considered as a tacit refusal to issue the act and can be challenged by the persons concerned (ENGOs are presumed to be concerned persons for administrative acts in the environmental field). Where the proceeding has been instituted before a specific authority and said authority is supposed to make a proposal to another authority for the issuance of the act, a tacit refusal shall occur regardless of whether the authority issuing the act was approached with a proposal. Where a tacit refusal is reversed by an administrative or legal review procedure, the express refusal which follows prior to the decision on reversal is likewise considered reversed.

Within the administrative review, the tacit refusal may be challenged by the persons concerned within 1 month from expiry of the timeframe in which the administrative body was obliged to issue the act. 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).

Within the legal review before the court, a tacit refusal or a tacit consent is contestable within 1 month after the expiry of the time limit for the administrative authority to pronounce its decision. Where the act, tacit refusal or tacit consent have been contested according to an administrative procedure, the time limit begins to run from the communication that the superior administrative authority has rendered a decision and, if said authority has not pronounced, from the latest date on which said authority should have pronounced. Where a prosecutor has not participated in the administrative proceeding, said prosecutor may contest the act within 1 month after issuance. There is no time limit for challenging administrative acts by a motion to declare their nullity. (Art. 149 APC)

Where a tacit refusal or tacit consent has been revoked, an express refusal or express consent succeeding prior to the court decision on revocation shall likewise be considered to be revoked. (Art. 172 (3) APC)

Any official who fails to fulfil the requirements for cooperating with and providing information to the public incurs liability to administrative penalties according to the procedure established by the APC, without this affecting the validity of the administrative act. (Art.28(3) APC)

Penalties for de-facto contempt of court, e.g. when the decision of the court is not followed and respected

Any official who fails to meet an obligation arising from an effective judicial act, outside the cases covered under Section V (Enforcement of administrative decisions and decisions of the court) of the APC, is liable to a fine of BGN 200 to BGN 2,000. Any repeat violation of the same nature is punishable by a fine of BGN 500 for each week of non-performance, unless this is due to objective impossibility. Sanctions for other violations of the APC are imposed on any person (e.g. obliged to act or conform to certain obligations) who fails to meet another administrative procedure obligation and they shall pay a penalty of BGN 150 to BGN 1,500, unless subject to a severer sanction. (Art. 304-305 APC)

Upon culpable non-performance, the enforcement authority shall impose a fine of BGN 50 up to BGN 1,200 per week on the officials performing the functions of a state body until the obligation to perform a specific action is fulfilled. If the obligated authority is collective, no fines shall be imposed on the members thereof who voted in favour of performance of the obligation. The same fines are imposed upon any non-performance of the obligation to refrain from action.

Other relevant rules and administrative/court practice

The Parliament is obliged to address the consequences of declaring a law as non-constitutional. In the meantime, the courts should directly apply the Constitution and the legal principles while deciding on cases, according to a ruling of the Constitutional Court on Case №5/2019. No legal vacuum in the legislation is possible. The National Assembly must regulate the legal consequences of the application of the unconstitutional law.

In line with this ruling and new case law of the Constitutional Court (CC), the Supreme Court of Cassation (SCC) delivered Decision № 71/6 of April 2020 with the same conclusions, preceding the decision of the Constitutional Court, on the claim for compensation under the Law on the Liability of the State and the Municipalities for Damages. The claim was for damages suffered by inaction in addressing the consequences of unconstitutional amendment to the State Budget Act in the Act on Energy from Renewable Sources (AERS). According to the conclusion of the court expertise for the trial period relevant for the case (01.01.2014 to 09.08.2014) from the plaintiff were withheld 20% fees fee for production of electricity from wind and solar energy under Art. 35a AERS (declared unconstitutional by CC, Case No. 13/2014). After repeal of this provision by the Constitutional Court, § 6, item 2 and item 3 of the Law on the State Budget of the Republic of Bulgaria for 2014, the consequences were not addressed. The SCC ruled that the state should pay compensation of BGN 564,986.04 to the operator of a photovoltaic power plant that suffered from the inaction of the National Assembly. The awarded amount was a sum of the due indemnity, part of the interest on it and the incurred court costs of the three court instances. The court reasoned that the indemnity was due to the wrongful conduct of the Parliament, which firstly adopted a law declared as non-constitutional and secondly was inactive in addressing the consequences – in other words, it confirmed liability of the state in the event of failure to replace unconstitutional laws.

To find out more about access to justice in environmental matters in Czech Republic, please take a look at:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

3. Other relevant rules on appeals, remedies and access to justice in environmental matters

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

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, Supreme Court and Supreme Administrative Court) is often used for interpretation purposes and is respected by lower courts.

Sources of Czech codified law are divided into three levels according to their legal force, namely constitutional laws, ordinary laws and by-laws. The norm of lower legal force must not contradict the norm of higher legal force.

At the constitutional level, fundamental rights and freedoms are enshrined in the Charter of Fundamental Rights and Freedoms (referred to here simply as the “Charter”). As described in more detail below, the Charter grants, among other fundamental rights, the right to a favourable environment, the right to information about the environment, and the right of access to the courts to protect one's rights.

Article 41 of the Charter provides a list of fundamental rights enshrined in the Charter which may be claimed only within the scope of the laws implementing these provisions. This list includes the right to a favourable environment and the right to information about the environment. Whereas the right to information about the environment is implemented by one comprehensive Act (Act No. 123/1998 Coll., on the Right to Access to Environmental Information), the right to favourable environment is implemented by multiple legal acts.

The right to a favourable environment can be asserted and protected in a number of decision-making processes. The general regulation of administrative proceedings is contained in Act No. 500/2004 Coll. Code of Administrative Procedure (the “Code of Administrative Procedure”). However, most administrative proceedings and other decision-making processes are further regulated in specific laws.

The protection of rights which may be asserted in administrative proceedings and other decision-making processes is provided primarily by administrative courts. The legal regulation of proceedings before administrative courts is regulated by Act No. 150/2002 Coll., Code of Administrative Justice (the “Code of Administrative Justice”).

Access to administrative courts is, in principle, based on the doctrine of impairment of subjective rights of the applicant. The right to a favourable environment is considered as “naturally” belonging only to individuals (natural persons). However, according to the recent jurisprudence of the Constitutional and Supreme Administrative court (see section 1.1, point 4), NGOs are entitled to protect the substantive rights of their members, i.e. to act on behalf of their members and bring actions against decisions or other acts or omissions which may have affected the right of their members to a favourable environment.

The Code of Administrative Justice includes special legal regulation of the court procedure for cases when the impairment of one's rights was allegedly caused by an administrative decision, a measure of a general nature, an omission (inaction) by the administrative body or other unlawful interference with one's rights. It also grants special standing to protect the public interest to designated authorities – the Supreme Public Prosecutor and the Public Defender of Rights.

The public bodies responsible for the protection of the environment are in particular the Ministry of the Environment, which has general responsibility for promoting the environmental laws and serves as general supervisory and monitoring body in this area, and other ministries, namely the Ministry of Agriculture and the Ministry of Health, which are entrusted with competence in individual areas of environmental protection. There are also some special administrative authorities subordinate to the ministries with specific competence for the protection of the environment, for example, the Czech Environmental Inspectorate, The Nature and Landscape Protection Agency or Regional Health Stations. For more details see section 1.3. 1) below.

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

Article 7 of the Czech Constitution states that the state shall concern itself with the prudent use of its natural resources and the protection of its natural wealth. The Constitutional Court referred to this rather general provision e.g. in its Decision of 15 March 2016, Pl. ÚS 30/15, in which it stated that legal protection of specific sectors of the environment is a pivotal measure in realising the above-mentioned general constitutional principle.

As mentioned above, the Charter enshrines a right to live in a favourable environment and right to timely and complete information about the environment in Article 35. Further, it prescribes in the same Article that in 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”. The Charter also grants the related right to protection of health in Article 31. However, the exercise of the right to a favourable environment depends on the laws implementing these provisions as according to Article 41 of the Charter, and this right can be claimed only within the scope of such laws.

The Constitution and Charter guarantee protection of rights, including the right to a favourable environment, in both judicial and other proceedings, including administrative proceedings.

According to Article 90 of the Constitution, the courts are called upon above all to provide protection of rights in the legally prescribed manner.

According to Article 36 of the Charter, anybody may assert in the set procedure his or her right in an independent and unbiased court of justice and in specified cases with another organ. Anyone who claims that his or her rights have been violated by a decision of a public administration organ may apply to a court of law for a review of the legality of the decision, unless the law provides otherwise. However, review of decisions affecting the fundamental rights and freedoms listed in the Charter may not be excluded from the jurisdiction of the courts.

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

Environmental legislation consists of a large number of legal norms. They include laws stipulating legal protection of individual components of the environment, laws regulating activities with a potentially negative impact on the environment, special instruments of environmental protection, etc.

The general regulation of most decision-making processes, including administrative proceedings, is contained in the Code of Administrative Procedure. This also contains the basic regulation of the right to public participation in administrative proceedings. This is further developed by a number of special laws that take precedence over general regulation (see section 1.4, point 3).

Access to justice in administrative matters is regulated by the Code of Administrative Justice. Specific provisions of environmental laws, mostly regulating the rights of environmental NGOs, are also relevant in this respect.

A list of the most important laws is given below

Act No. 500/2004 Coll., the Code of Administrative Procedure (Zákon č. 500/2004 Sb., Správní řád).

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Article 27 defines the parties to administrative procedure.

Act No. 150/2002 Coll., the Code of Administrative Justice (Zákon č. 150/2002 Sb., Soudní řád správní).

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Article 65 et seq. regulate standing to appeal against administrative decisions;

Article 66 et seq. regulate action for protection of the public interest;

Article 79 et seq. regulate standing to complain about inaction by the administrative body;

Article 82 et seq. regulate standing to complain about other unlawful interference with rights;

Article 101a et seq. regulate standing to complain about measures of a general nature.

Act No. 183/2006 Coll. on town and country planning and the Building Code (Building Act) (Zákon č. 183/2006 Sb., o územním plánování a stavebním řádu (stavební zákon)).

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Article 85 et seq. define the parties in the planning permission proceedings.

Article 109 et seq. define the parties in the construction proceedings.

Act No. 100/2001 Coll. on the Environmental Impact Assessment and amending some related laws (the EIA Act) (Zákon č. 100/2001 Sb., o posuzování vlivů na životní prostředí a o změně některých souvisejících zákonů (zákon o posuzování vlivů na životní prostředí)

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Article 3 letter i) defines the public concerned.

Article 7 provides the public concerned with the right to appeal against the decision issued in the screening and scoping procedure determining that a project or change to a project shall not be assessed under this Act, and to bring an action against such a decision and to challenge the substantive and/or procedural legality of the decision;

Article 9c determines under which conditions the public concerned and the public in general may participate in subsequent proceedings.

Articles 9d regulates the right of the public concerned to access to the courts.

Act No. 76/2002 Coll., on Integrated Prevention and Pollution Control, on Integrated Pollution Register and on amendments to certain acts (Act on Integrated Prevention) (Zákon č. 76/2002 Sb., o integrované prevenci a o omezování znečištění, o integrovaném registru znečišťování a o změně některých zákonů (zákon o integrované prevenci)

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Article 7 defines the parties in integrated authorisation proceedings.

Act of the Czech National Council No. 114/1992 Coll., on Nature and Landscape Protection (Zákon České národní rady č. 114/1992 Sb., o ochraně přírody a krajiny)

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Article 70 provides for the right of participation by environmental NGOs in administrative proceedings conducted under this Act which could affect nature and landscape protection.

Act No. 254/2001 Coll. on waters and amendment to some acts (the Water Protection Act) (Zákon č. 254/2001 Sb., o vodách a o změně některých zákonů (vodní zákon)).

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Article 115 provides for the right of participation by environmental NGOs in proceedings under this Act with the exception of specified procedures.

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

The Supreme Administrative Court, according to Article 12 of the Code of Administrative Justice, shall guarantee the unity and legality of decision-making in administrative matters by ruling on cassation complaints. It shall further follow and assess the final decisions of administrative courts and, for the sake of uniform judicial decision-making in administrative matters, adopt positions on judicial decision-making in matters of specific kinds, including environmental cases. The Supreme Court fulfils a similar role in civil and criminal cases.

The Constitutional Court has a unique competence to protect constitutional order and fundamental rights. It is namely entitled, upon motions on specific subjects, to review the compliance of laws with the Constitution and to decide about individual constitutional complaints from persons claiming that their constitutional rights were infringed by decisions or other actions by public authorities. Its decisions are generally binding according to Article 89, paragraph 2 of the Constitution.

The following examples of case law from the Constitutional Court and the Supreme Administrative Court are fundamental for access to justice in environmental matters:

Decision of the Constitutional Court of 30 May 2014, no. I. ÚS 59/14

The Constitutional Court stated that natural persons wo are members of a civic association whose objective is, according to its charter, the protection of nature and landscape, can exercise their right to a favourable environment, listed in Article 35 of the Charter of Rights and Freedoms, via this civic association. Therefore the Court granted the environmental NGO the right to bring an action against the land use plan as a measure of a general nature on behalf of its members, and also laid down the conditions for standing (subject of activity, local relationship, duration). Further, it stated that where it is possible to interpret national standards in several ways, the interpretation that meets the requirements of the Aarhus Convention shall prevail.

Judgement of the Supreme Administrative Court of 25 June 2015, No. 1 As 13/2015-295

The court confirmed that it is possible that substantive rights of associations can be violated. However, it also stated that it is not possible to generalise the presumption that the rights of the association may be affected by all projects. It is always necessary to assess each case individually.

Judgement of the Supreme Administrative Court of 16 May 2015 No. 2 Aos 2/2013-120

According to the court, the main criterion for adjudication of the standing of an association is the presence of a sufficiently strong relationship between the claimant and the affected area.

Judgement of the Supreme Administrative Court, No. 3 As 126/2016-38

The court ruled that it is not possible a priori to exclude an ad hoc established association from judicial protection in environmental cases.

Judgement of the Supreme Administrative Court of 2 May 2019, No. 7 As 308/2018 - 31

The court confirmed that, where the applicant is explicitly excluded by law from the scope of the parties to the administrative proceedings and therefore cannot file an administrative appeal, his or her standing to appeal the final decision in court is not influenced by that fact. Therefore the applicant may bring an action even though he/she was not party to the proceedings, provided that his or her rights might have been affected by the decision.

Judgement of the Supreme Administrative Court of 27 March 2010, No. 2 As 12/2006-111

The court stated that neither natural nor legal persons can derive their rights directly from the Aarhus Convention, as the Aarhus Convention is not “self-executing”.

Judgement of the Supreme Administrative Court of 28 August 2007, No. 1 As 13/2007-63

According to the court, it is in compliance with Article 9 of the Aarhus Convention if the EIA statement is subject to judicial review only together with the final decision (development consent). However, in such cases, lawsuits filed by NGOs should normally be granted suspensive effect.

Decision of the Constitutional Court of 30 July 2019, No. III. ÚS 2041/19

The court confirmed that proceedings concerning the removal of an illegal building are initiated solely ex officio. Therefore, nobody has a right to initiate such proceedings of his or her motion nor a right for judicial protection against the failure of an authority to start such proceedings.

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?

According to Article 10 of the Czech Constitution, international agreements approved by the Parliament and binding on the Czech Republic shall constitute a part of the Czech legal order and shall be applied prior to national laws. The national agreement thereby gains the effect of national law.

The jurisprudence of the Czech courts concluded that, for direct application of the international agreements, the agreement must be “self-executing”. These requirements are usually met by agreements whose parties did not exclude direct application of the agreement, where the rules are “unconditional”, “sufficiently specific” and “grant specific rights” to private persons (judgment of the Supreme Court of 12 February 2007, No. 11 Tcu 7/2007).

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” (following decisions of the Constitutional Court of 19 November 2008, No. Pl. ÚS 14/07, of 30. June 2008, No. IV. ÚS 154/08, of 17 March 2009, No. IV. ÚS 2239/07, of 30 May 2014, No. I. ÚS 59/14). On the other hand, in most of their decisions, the courts emphasised that the Aarhus Convention is an important interpretation source and national laws must be interpreted consistently with the international obligations arising out of the Convention.

1.2. Jurisdiction of the courts

1) Number of levels in the court system

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 Municipal Court of Prague),
• the high courts and
• the Supreme Court.

• the regional courts (including the Municipal Court of Prague) and
• the Supreme Administrative Court.

The Constitutional Court has a specific position and powers in the protection of Constitutional and fundamental rights (see next point).

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 civil courts protect private rights and decide on civil matters in the procedure regulated by the Civil Procedure Code. The criminal courts decide on the guilt and punishment for criminal offences defined by the Criminal Code, in the procedure regulated by the Criminal Procedure Code. The prosecutor has an exclusive right to start the procedure in the criminal court. Civil jurisdiction rests with the district, regional and upper courts and by the Supreme Court.

The administrative courts protect individual public rights in the procedure regulated by the Code of Administrative Justice. They review the decisions of the administrative authorities, including decisions on administrative offences (torts). Administrative jurisdiction rests with specialised senates of the regional courts and the Supreme Administrative Court.

The Supreme Administrative Court conducts proceedings on competence actions (Article 97 et seq. of the Code of Administrative Justice). A competence dispute arises either between a state administration authority and a self-government body or between self-government bodies (for example between a municipal authority and a regional authority), over who should make a decision on a particular matter. In practice, negative conflicts of competence are more common (both parties to the dispute consider that the matter does not fall within their jurisdiction), but there are also cases of the opposite (for example a party discovers that both the state administration body and self-government decided on its (identical) case). The Supreme Administrative Court is also entrusted with disputes between central state administration bodies (for example a dispute over who should issue a decision between two ministries). Since these “inter-ministerial disputes” regularly involve the assessment of very complicated and legally demanding issues with a very broad practical impact, the legislature has also ordered the Supreme Administrative Court to resolve such disputes in jurisdiction proceedings.

The Special Chamber (court), established under Act No. 131/2002 Coll., on decision making on certain conflicts of jurisdiction, decides on positive and negative conflicts of jurisdiction to which the court is a party (or both parties). The subject of the decision is disputes about the power to issue decisions which arise between courts on the one hand and administrative authorities on the other, and disputes between civil and administrative courts. The essence of the decision of the Special Chamber is to determine which of the parties to the dispute is competent to give a ruling on a particular matter.

The Constitutional Court 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 conflict with the constitutional order. It also decides on constitutional complaints against final decisions of public authorities in all branches of law which are alleged to infringe fundamental rights and basic freedoms.

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

At the judicial level, there are no organs specialising in environmental protection. The ordinary civil and criminal courts deal with disputes and crimes related to the environment. The decisions of the administrative authorities, including those which relate to the environment, are reviewed in the first instance by the departments of the regional courts, specialising in administrative matters. The judgments of administrative courts can be reviewed, on the basis of a cassation complaint, by the Supreme Administrative Court, which is a specialised judicial authority in administrative matters.

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 organisations, which are described in detail in section 1.4. From the factual point of view, a significant proportion of lawsuits filed by these organisations represent a specificity of the administrative judicial procedures in environmental matters. It is usually difficult to bear the burden of proof in civil judicial procedures, in which the plaintiff is asking the court to protect his or her rights infringed by interventions affecting the environment, as it is difficult to prove interference with the right to a favourable environment. It is similar for criminal offences related to damaging the environment.

No laymen participate in the decision-making by administrative or civil courts in environmental matters. Theoretically, lay judges would decide on environmental crimes in cases where the regional court had jurisdiction as a first instance court. However, proceedings on environmental crimes are usually decided at first instance by regional courts and therefore laymen judges are not involved.

There are also no “expert judges” in the Czech legal system, except for their general specialisation on criminal, civil and administrative law. In practice, some judges, especially members of the Supreme Administrative Court, are known for their specific knowledge of environmental law.

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

Upon an administrative appeal (administrative lawsuit) and within the scope of the arguments for such an appeal, the courts can and must review both the substantive and procedural legality of the development consents and other administrative decisions. They are entitled, at the suggestion of the parties, to review or amend the evidence considered in the administrative procedure. Together with the final decision which is the subject of the lawsuit, they shall also review the substantive and procedural legality of the acts which the final decision is based on and which are not subject to independent review (for example, the EIA statement – see section 1.4, point 2) for more details).

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

1.3. Organisation of justice at administrative and judicial level

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

The system of administrative procedure in the Czech Republic is generally regulated by the Code of Administrative Procedure and specific acts in various areas of public administration, including environmental protection and its specific branches. As a general principle, the administrative procedure has two levels. The municipal authorities act most often as first instance administrative organs and the regional authorities as the appeal bodies. In some types of procedure, regional authorities act as the first instance and the relevant ministries as the appeal bodies. There are also some special administrative authorities with specific competence. In the area of environmental protection, the most important special administrative authorities are the Czech Environmental Inspectorate, the Nature and Landscape Protection Agency and Regional Health Stations.

The general responsibility for environmental laws and policies lies with the Ministry of the Environment, which also has a general supervisory and monitoring role in this area. However, other ministries also have competence in the field of environmental protection (Ministry of Regional Development in spatial planning, Ministry of Agriculture in water protection, Ministry of Health in protection against noise).

As for the rules regulating the possibility of public participation in environmental matters: in the individual administrative procedures

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

There are a number of special provisions regulating specific administrative procedures including special regulation of parties to the process. In the area of environmental protection those are the EIA Act, the IPPC Act, the Nature Protection Act, the Water Protection Act and others (see section 1.1, point 3), and section 1.4, point 3), for more details).

In some kinds of procedure, namely concerning plans and programmes (adopted in the form of so-called measures of a general nature), anyone can usually participate in the procedure with the right to present their comments, while the persons specifically affected in their rights (usually affected property owners) can raise objections. An administrative appeal is not available in such cases. However, the affected persons, including the NGOs, can challenge the measures of a general nature in court. (see section 1.4 for more details).

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

As a general principle of Czech administrative law, it is possible to file an appeal against administrative decisions to a superior administrative body. The appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the court. Where there is no possibility of administrative appeal, it is possible to bring an action directly to the court.

Similarly, the administrative remedies have to be exhausted before taking a case to an administrative court also in case of omissions (illegal inaction) by the administrative authorities or in case of other “illegal interventions” by the administrative authorities.

Pursuant to Article 65 paragraph 1 of the Code of Administrative Justice (see section 1.1, point 3), anyone who claims that their rights have been infringed directly by a decision of an administrative authority or due to the violation of their rights in the preceding proceedings can bring an action against such a decision. Moreover, according to paragraph 2 of the same article, the action can be also brought by a person who had the status of a party to the proceedings before the administrative authority who is not entitled to do so under paragraph 1, if that party claims that his or her rights have been prejudiced by the actions of the administrative authority in a manner that could have resulted in an illegal decision.

The final ruling of the administrative court is usually issued 1–2 years after the action was filed, except for cases where the law prescribes that the ruling must be issued within a specific time limit (e.g. review of measures of a general nature, including land use plans, or permits for highways, where the courts must decide within 3 months of receiving the lawsuit). The ruling of the first instance (regional) court can be further reviewed on the basis of a cassation complaint by the Supreme Administrative Court. The procedure before the Supreme Administrative Court usually lasts for 6–9 months.

The measures of a general nature (including land use plans, river basin management plans and other plans and programmes related to the environment) can be appealed directly before the administrative courts on the basis of Article 101a of the Code of Administrative Justice by any person claiming that his or her rights were infringed by the measure of a general nature.

The administrative courts generally only have the power to cancel the administrative decisions (power of cassation). There are however exceptions to this rule. When reviewing decisions imposing administrative penalties (fines), the courts may, next to cancelling the decision, also moderate the penalty. If the court is cancelling a decision on refusal to provide information, it can also order the administrative authority to disclose the information. This rule, however, does not apply to environmental information.

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

There are No special environmental courts (see also section 1.2, point 3) above). The regional courts (administrative departments) are the forum to challenge all administrative decisions, including development consents and other decisions related to the environment (with the possibility to file a cassation complaint against their decision to the Supreme Administrative Court).

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

As described under point 2) of this section, it is possible to file an appeal against administrative decisions, including environmental ones, to a superior administrative body. There is no administrative appeal against “measures of a general nature” (plans and programmes).

The final (usually second instance) decision of an administrative authority can be challenged before the administrative court by a person who claims that their rights have been infringed directly by a decision of an administrative authority or due to violation of their rights in the preceding proceedings. A person who claims that his or her rights have been infringed by a measure of a general nature may bring an action directly to the administrative court.

The administrative courts shall review both the substantive and procedural legality of administrative decisions subject to an administrative lawsuit. Infringement of the procedural provisions for the administrative procedure is a reason for cancelling 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 at the time when the administrative decision was issued. The courts usually decide on the basis of the materials gathered in the administrative procedure. They are, however, entitled, if the parties to the court procedure suggest this, to review the correctness of such materials, and repeat or amend the evidence considered in the administrative procedure. The court shall review ex officio whether the administrative authorities might have misused or exceeded the scope of their discretionary powers.

The decisions of administrative courts can be reviewed, on the basis of a cassation complaint, by the Supreme Administrative Court. The cassation complaint is an extraordinary remedy, as it does not postpone the legal force of the first instance decision. However, due to the frequency of using this remedy and taking into account that the Supreme Administrative Court can change the contested decision, the cassation complaint has in practice the character of an ordinary remedy (appeal), as it is the only way to review the first instance decision in the administrative judiciary.

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

At the level of the administrative review, the legality of both the individual decisions (development consents) and the measures of a general nature (plans and programmes) can be reviewed in the extraordinary ex officio review procedure under Article 94 (individual decisions) and Article 174 (measures of a general nature) of the Code of Administrative Procedure. The procedure is carried out by an authority superior to the administrative body which issued the final decision subject to review. Anyone can indicate to the superior authority that such proceedings should be started. However, there is no legal entitlement for private subjects to initiate the review proceedings if the superior administrative authority does not find any grounds for their initiation.

Any person can ask the Supreme Public Prosecutor or the Public Defender of Rights to file a public interest lawsuit against an individual administrative decision. It is however left to the discretion of these institutions whether to do so.

Cases where a person is entitled to bring an action against an administrative decision, even though he or she was not entitled to be a party to the administrative proceedings, can also be considered as extraordinary. This could be a case for a person who is affected by the decision approving the operation of a source of noise exceeding the legal limits (“noise exception”). Such a person can bring an action before the administrative court without having to exhaust the administrative appeal process. The same situation exists with respect to permits issued under the Nuclear Act.

Czech courts have the possibility and, in the procedure before the Supreme Court, the Supreme Administrative Court and the Constitutional Court, the obligation to ask the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union to rule on the interpretation or validity of European law when it is decisive for their decision (introduce a preliminary reference). The article states that if such a question arises in proceedings before a court of a Member State whose decision cannot be challenged under national law, that court must refer the matter to the Court of Justice of the European Union. The only exceptions are situations where the interpretation of European Union law does not create problems in its context (acte clair) or where the uncertainty of interpretation has already been overcome by the case-law of the Court (acte éclairé). The parties in the case can ask the courts to introduce the preliminary reference, but they cannot enforce this request. Only where the Supreme Court or the Supreme Administrative Court do not introduce the preliminary reference, even though the conditions of Article 267 TFEU are met, they can challenge this in the constitutional complaint. According to the Czech procedural laws (e.g. Article 48 paragraph 1 point b) of the Code of Administrative Justice), introducing a preliminary reference constitutes a reason for suspension of a court proceedings.

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

Mediation or other out of court solutions is not used in the environmental matters.

Mediation is regulated by Act. No. 202/2012 Coll., on Mediation, which lays down rules for mediators. Every mediator has to undergo professional training, pass an exam and then be registered in the list of mediators run by Ministry of Justice. The Ministry of Justice supervises mediators; however mediators who are in the bar (attorneys) are supervised by the Czech Bar Association. Information about mediation can be found on the website of the Czech Bar Association.

Mediation is mostly used in civil cases, especially in family disputes. Nobody can force the other party to take a part in mediation, but in some cases, the mediation can be initiated by the court – the court can inform the parties about mediation, call upon the parties to try mediation or even order a first meeting with the mediator. Then the parties must voluntarily decide to try mediation or not. While they have agreed on mediation, the parties make a contract. The mediator is entitled to a fee and appropriate expenses paid by the parties, usually in equal shares. Ideally, the mediation should result in the conclusion of a mediation agreement which can be later approved by the court or by notarial deed, so the parties obtain the enforceable title. However, mediation is practically never used in environmental matters.

There are some special procedures within the administrative and judicial proceedings. Apart from participation in administrative procedures and challenging the decisions at administrative courts, there are several other remedies which may be used by both the parties to administrative procedures and general public, namely

• submissions to competent authorities to initiate ex officio review procedures, including submissions to take measures against inaction (omission) by subordinated authorities,
• extraordinary administrative remedies (i.e. administrative review of decisions in force, new procedure (retrial)),
• submissions to the Public Defender of Rights, criminal notification to police or public prosecution, and submissions to the Supreme Public Prosecutor and ombudsperson to file a public interest lawsuit.

However, there is no legal duty for the competent authorities to initiate proceedings on the basis of the above submissions. It is up to them to decide whether to start the procedure or not while the applicant has only the right to be informed about the follow-up to his submission.

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

There is the Public Defender of Rights in the Czech Republic who deals with all cases where administrative bodies act or fail to act in breach of the law, principles of the democratic rule of law or principles of good administration. This also covers environmental cases.

The Public Defender of Rights may initiate its inquiry ex officio. Anybody may approach the Public Defender of Rights with a submission (specific conditions are set forth as to when the Public Defender of Rights 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 broken the law, he/she may only advise the authority to take corrective measures, not order it to do so. If this is not respected, the Public Defender of Rights may contact a superior authority or government and inform the general public.

The Public Defender of Rights can conduct independent inquiries but cannot substitute for the activities of state administration bodies and may not cancel or change their decisions. However, if an error is found, it may require the authorities or institutions to remedy the situation.

The Public Defender of Rights cannot interfere with the decision-making activities of the courts.

Both the Public Defender of Rights and the Supreme Public Prosecutor are entitled to file a “lawsuit in the public interest” against any administrative decision according to Article 66 of the Code of Administrative Justice (see section 1.1, point 3), if they “find” (the Supreme Public Prosecutor) or “prove” (the ombudsman) that an important public interest is at stake. The Supreme Public Prosecutor does not have any other specific competence in the field of administrative decisions, including environmental decisions.

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 prevailing concept for standing in the administrative courts is based on the “impairment of rights” theory. As already described above in section 1.3, point 2), the general standing provision for the administrative courts, Article 65 of the Code of Administrative Procedure, states that standing to appeal against administrative decisions is granted to

1. persons who assert that their rights have been infringed by the decision which “creates, changes, nullifies or authoritatively determines their rights or duties” and
2. other parties to administrative proceedings issuing the administrative decision, who assert that their rights have been infringed in these proceedings and that this could cause illegality of the decision (standing of the environmental organisations is derived from this provision).

Under the previous case law, environmental NGOs could only claim infringement of their procedural rights before the administrative courts, but not the substantive legality of the administrative decisions. This approach was further supported by the Constitutional Court, which repeatedly ruled that legal entities, including environmental NGOs, cannot claim a right for a favourable environment, as this can “self-evidently” belong only to individuals. The courts therefore dealt with the material objections of NGOs only in exceptional cases.

In this respect, the decision of the Constitutional Court of 30 May 2014, No. I. ÚS 59/14 (see section 1.1, point 4) above) represented a change in the case law of the Czech courts. The Constitutional Court stated that NGOs are entitled to protect the substantive rights of their members, i.e. to act on behalf of their members and bring action against decisions or other acts or omissions which may have affected the right of their members to a favourable environment. The court based this conclusion on the consideration that it is not possible for natural persons, as holders of the right to a favourable environment, to lose the opportunity to claim this right, on the sole ground that they associate in an NGO. The court also relied on the provisions of the Aarhus Convention. It concluded that, although the Aarhus Convention is not self-executing in the Czech legal system, it had to be considered as an interpretative source. Therefore, where it is possible to interpret national standards in several ways, the interpretation that meets the requirements of the Aarhus Convention will prevail.

On this basis, the Constitutional Court concluded that it was necessary to grant environmental NGOs access to the courts and to allow them to propose the annulment of the land use plan. At the same time, the Constitutional Court explicitly defined the criteria for the standing of environmental NGOs to ask for the review of the land use plans in the court:

1. the NGO must claim that the illegality of a measure of a general nature affects its legal sphere,
2. the NGO must have environmental protection as the subject of its activity according to its bylaws,
3. the NGO must have a factual relationship to the locality regulated by the land use plan (registered office, residence of members, etc.).
4. establishment of the NGO, i.e. the time in which it has been in operation; however, the establishment of an ad hoc association is not excluded either.

This decision of the Constitutional Court specifically dealt with the standing of the environmental NGOs to appeal against land use plans before administrative courts. By the judgment of the Supreme Administrative Court of 25 June 2015, No. 1 As 13/2015-295 (see section 1.1, point 4) above) and following case law, the above principles were applied to the standing of the NGOs in environmental matters in general. Moreover, the amendment to the EIA Act of 2015 stated explicitly, for administrative procedures subsequent to an EIA, that the environmental NGOs can challenge both the substantive and procedural legality of the decisions issued in these procedures and they should be deemed to have rights capable of being impaired by the decisions.

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

The sectoral legislation includes special regulation of administrative proceedings themselves, including the possibility of participation, but not of access to justice. The conditions of access to the court are, with regard to all decisions, regulated by the general regulation contained in the Code of Administrative Justice. The only Act containing a special provision on judicial review is the EIA Act.

If the competent authority concludes that a project subject to the screening (an “Annex II” project, in the sense of the EIA Directive) shall not be subject to EIA, it shall issue a decision to this effect. The environmental NGOs, subject to the requirement for either 3 years of legal existence or 200 people supporting the action, can file an administrative appeal against such a decision and subsequently bring an action before the administrative court.

The final “EIA statement” cannot be reviewed by courts independently (directly). As the Supreme Administrative Court ruled in its judgement of 28 August 2007, no. 1 As 13/2007-63 (see section 1.1, point 4) above), it shall be subject to judicial review only together with (or within the scope of) the permit for which the EIA statement serves e.g. the land use permit. In the administrative procedures in which such permits are issued, NGOs meeting the same requirements as described above for appeal against the screening decision can apply for the status of a party and consequently file an administrative appeal against the final decision (permit) and then an appeal to the court.

The environmental NGOs (without having to meet any specific conditions, except having the protection of the environment or other public interests as a main goal in their by-laws) can also apply for the status of a party to the proceedings according to the IPPC Act, the Nature Protection Act or the Water Protection Act (see section 1.1, point 3) above). Final decisions issued according to these acts can be challenged by the environmental NGOs if they participate in the administrative procedure with the status of a party.

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.)

In the administrative procedures, the basic rule for granting the status of party to the proceedings is based on the concept of one’s “rights or duties being possibly directly affected” by the decision. According to Article 27 of the Code of Administrative Procedure, the parties to the proceedings are persons whose rights or duties can be directly affected by the administrative decision. However, this general regulation shall apply only if the specific administrative procedure is not regulated by a special law which would take precedence over the general regulation. Most administrative proceedings are further regulated in special legislation which lays down special definitions for the parties to the proceeding which take precedence over general legislation. There are a large number of special laws governing the individual decision-making processes relevant to the protection of the environment. The most important ones are listed below.

a) Act no. 183/2006 Coll., Building Act

The Building Act sets its own definitions of parties of the administrative proceedings for issuing land use permits, building permits and other permits under the act. The definitions are generally based on the principle that only the individuals and legal entities whose property rights or other rights in rem can be directly affected by the permit, including the applicant, in some cases the environmental NGOs and in land use processing the affected municipalities, have status of party of the proceedings and may exercise the rights associated with that status.

b) Act No. 100/2001 Coll. on the Environmental Impact Assessment
In the EIA process, anyone can make comments at specified stages. The result of the EIA process is the issuance of a binding EIA opinion as a necessary document for the subsequent administrative procedures in which the project is approved. The EIA Act lays down conditions under which designated subjects may become parties to the subsequent development consent proceedings. The status of party to the subsequent proceedings is granted only to environmental NGOs or NGOs concerned with public health which were established at least three years before the date of publication of the announcement of the subsequent proceedings or whose participation is supported by at least 200 persons.

c) Act No. 76/2002 Coll., on Integrated Prevention and Pollution Control
The Act grants the status of party to proceedings concerning integrated operation permits for installations falling under the scope of this act, which implements Directive 2010/75/EU on industrial emissions, to the operator and owner of the regulated facility, the affected region and municipality and environmental NGOs that register within 8 days of the date of publication of the notice. Employers’ organisations and chambers of commerce can get the status of party under similar conditions as environmental NGOs.

d) Act No. 114/1992 Coll., on Nature and Landscape Protection

The Act sets out the conditions under which environmental NGOs can become participants in proceedings under this Act. The NGOs are entitled to be informed of all administrative proceedings in which the interests of nature and landscape protection may be affected. Subsequently, if the NGO notifies its participation in the procedure under this act within eight days of the date of the notification, it has the status of a party to the proceedings. The act further grants the status of party to such proceedings to affected municipalities.

e) Act No. 254/2001 Coll. , the Water Protection Act

The Act grants to environmental NGOs the status of party to the proceedings under this act (with exceptions) under similar conditions to the Act on Nature and Landscape Protection. The act further grants the status of party to municipalities in proceedings in which decisions which may affect water conditions or the environment are made.

f) Special definitions of the parties to administrative proceedings related to the environment are contained in a number of other special laws, such as Act no. 44/1988 Coll. Mining Act, Act no. 61/1988 Coll. Act on Mining activities, Act No. 258/2000 Coll. Public Health Protection Act, or Act no.263/2016 Coll., Nuclear Act. With regard to the proceedings under the last two of these acts, the status of party is granted only to the applicant. This is the case, for example, for proceedings to grant “noise exceptions” – decisions which authorise an operator of a source of noise which exceeds the maximum limits to continue with the operations for a limited period of time (with the possibility of repeated prolongation).

There is no special provision concerning the participation of foreign NGOs in environmental administrative procedures. They may be granted the status of party to the proceedings under the same rules as the Czech ones.

Some acts, on the other hand, provide for a special obligation to cooperate with municipalities (Act on Nature and Landscape Protection).

The standing rules at the judicial level are described above in section 1.3, point 2) and point 1). Individuals have standing to appeal against administrative decisions if they can assert that their rights, including the right to a favourable environment, have been infringed by the decision which “creates, changes, nullifies or authoritatively determines their rights or duties” or that their rights have been infringed in the proceedings and this could render the decision illegal.

According to the recent jurisprudence of the Constitutional and Supreme Administrative Courts in 2014 (decision of the Constitutional Court of 30 May 2014, No. I. ÚS 59/14, and the judgment of the Supreme Administrative Court of 25 June 2015, No. 1 As 13/2015-295), environmental NGOs are entitled to bring an action against an administrative decision which may infringe the right to a favourable environment. Their standing, however, is not based on the recognition of NGOs’ right to a favourable environment, but on their right to protect the substantive rights of their members and act on behalf of them. The case-law subsequently defined further conditions for standing. The conditions include

• requirement that the objections brought by the NGO should relate to the subject of the NGO’s activity;
• period of operation of the NGO;
• close local relationship of the NGO to the subject of administrative proceedings.

Any assessment of the fulfilment of the individual requirements always depends on the individual assessment by the court in a specific case, as to whether the interests defended by the NGO may be affected.

Fulfilment of the condition that the case relates to the subject of activity of the NGO is usually evaluated on the basis of the goals and activities specified in the statutes (bylaws) of the NGO. The courts usually base their conclusions on the rebuttable presumption that an NGO carries out all the activities listed in its statutes. For example, in the judgement of 29 January 2018, no. 64 A 4/2017-205, the Regional Court in Brno acknowledged the legal standing of an NGO, whose goal according to its statutes was the protection of nature and the environment, to bring an action against a land use plan defining a road corridor in a certain area. In the judgement of 28 March 2018, no. 2 As 149/2017-164, the Supreme Administrative Court acknowledged legal standing of an NGO to bring an action against a decision on imposing measures to compensate for the impacts of road construction on a Site of Community Importance, although the project was 60 km away from the seat of the NGO. The reason was again that the subject of activity of the NGO, according to its status, was the protection of nature, landscape and environment in specially protected areas. Courts are thus usually satisfied with the activities set out in the statutes and it is up to the respondent to prove that the NGO is not in fact engaged in these activities.

The period of operation of the NGO and its degree of establishment in the area may be inferred by the courts from the facts known to them from other proceedings. This is especially the case for NGOs that participate in these proceedings repeatedly and are known for their environmental activities (for example the judgement of the Supreme Administrative Court of 24 May 2016, no. 4 As 217/2015-197). However, the establishment of ad hoc association is not excluded either.

The local relationship of the NGO is assessed with respect to the whole subject of the proceedings, i.e. not necessarily with regard to individual objections brought in the proceedings by the NGO (judgement of the Supreme Administrative Court of 28 February 2020, no. 6 As 104/2019-70). A local relationship usually exists if the NGO is active in the area where the permitted activity is to take place. Wider standing may be granted if the effects of the project extend beyond the boundaries of the area or if the NGO carries out its activities on the territory of the whole republic for a long time. For example, in the judgement of 28 February 2020, no. 6 As 104/2019-70 the Supreme Administrative Court upheld the locus standi of an environmental NGO which has, for a long time and in serious manner, developed activities in connection with nature and landscape protection throughout the Czech Republic, against a building permit for new thermal power plant units located in an area other than that of the NGO’s registered office.

The general conditions discussed above arising from the Code of Administrative Justice and related case law are supplemented by a special regulations contained in the EIA Act with regard to the proceedings subsequent to the EIA process. Article 9d paragraph 1 of the EIA Act (see section 1.1, point 3) above) states explicitly that the environmental NGOs can challenge both the substantive and procedural legality of the decisions issued in these procedures under the same criteria which they have to fulfil to become parties to these proceedings (i.e. they must exist as a legal entity at least three years before the date of publication of the announcement of the subsequent proceedings or must be supported by at least 200 persons).

In processes concerning the adoption of various plans and programmes related to the environment, the legislation usually also provides every person with the right to submit comments. When the plan or programme is issued in the form of a measure of a general nature, it can be appealed before the administrative courts on the basis of Article 101a of the Code of Administrative Justice by any person claiming that his or her rights were infringed by the measure of a general nature issued by the administrative authority. According to the case-law of the administrative courts, an appeal against the land-use plan, as the most typical measure of a general nature, can be submitted by an owner of a property located in the territory regulated by the respective plan whose property is directly affected by the proposed plan, as well as by the owner of a neighbouring property that could be affected by a certain activity, the effects of which will also have a significant impact on his land (e.g. by emissions, noise, etc.) or which will lead to a significant decrease in the value of his property. On the other hand, a tenant does not have standing. For standing of environmental NGOs, the above-described principles, established by the decision of the Constitutional Court of 30 May 2014, No. I. ÚS 59/14, apply.

As described above in the section 1.1., the Code of Administrative Justice also contains special legal regulation of the court procedure for cases where the interference with rights was caused by omission (inaction) by the administrative body or other unlawful interference (for example consent from an administrative authority to the placement of a project, which does not require a development consent in the form of an administrative decision). In both cases, the standing is based on direct interference with subjective rights of a person who is affected by the inaction or other unlawful interference.

The Code of Administrative Justice stipulates that a person who has exhausted the administrative measures for protection against illegal omission (inaction) by 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 respect. According to the case law of the Czech courts, no person has standing to sue the administrative authority in the situation where it refuses to initiate the procedure ex officio, even though it has a legal duty to do so (for example, when there is a project built or operated without the necessary permits). The courts repeatedly dismissed lawsuits from affected neighbours in such cases (see e.g. Decision of the Constitutional Court of 30 July 2019, no. III. ÚS 2041/19 in section 1.1, point 4) above). The issue is actually under review by the extended senate of the Supreme Administrative Court in case 6 As 108/2019. It is possible that the extended senate could change the existing jurisprudence.

There is also no specific regulation concerning the standing of the environmental organisations to sue administrative authorities in case of illegal omissions or other unlawful interferences.

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

According to Article 36 of the Code of Administrative Justice the parties have equal position in the proceedings. The court is obliged to provide them with the same opportunities to exercise their rights and to provide them with instructions on their procedural rights and obligations to the extent necessary for them not to suffer harm in the proceedings. A similar principle applies in administrative procedures where administrative authorities are obliged to act impartially and treat the parties equally. These clauses also relate to language and country of origin and may be considered as general anti-discrimination clauses.

In court procedures, all parties are entitled to be heard in their mother tongue. Anyone who does not speak Czech may ask for an interpreter (translator); this right is guaranteed directly by the Charter of Fundamental Rights and Freedoms.

It is the state which bears the cost of translation in court procedures, contrary to administrative procedures where the party who does not speak the language has to bear the cost of translation itself. The exception is EIA/SEA procedures for projects or plans with transboundary aspects where notification and documentation must also be submitted in the official language of the State concerned (see Article 13 and 14a of the EIA Act).

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?

In the administrative procedure, the administrative body is responsible for collecting all necessary evidence needed for sufficient clarification of the relevant facts (Article 50 of the Code of Administrative Procedure). However, in the administrative review procedure, the parties can propose new evidence only if they could not do so earlier in the process (Article 82 of the Code of Administrative Procedure).

In the judicial review procedure, the court can decide which of the proposed evidence to consider and act on. According to law (Article 52 of the Code of Administrative Procedure), the court does not have to act on unnecessary and/or irrelevant proposals. In this case, in the decision on the merits, the court has to explain why the evidence was not considered. If not, this can result in so called “overlooked evidence” which means that the decision is unreviewable and also unconstitutional (Decision of the Constitutional Court of 16 February 1995, No. III. ÚS 61/94).

Evidence is evaluated by the court in line with the principle of independent assessment of all evidence. The court is not bound by any regulation as to what evidence should be given priority or assigned greater plausibility etc.; it is up to the court to carefully evaluate all the evidence. In its decision on the merits, the court has to thoroughly explain what evidence the decision is based on, what evidence was taken into account, which items were given priority, and why. If not, the decision is likely to be cancelled by the superior court.

The court can of its own motion request new evidence that was not introduced by any of the parties, particularly if the need for the evidence comes from the content of the administrative file. Any other evidence can be adduced if the court considers it necessary, if it would lead to relevant findings, and provided the equality among the parties is not infringed.

2) Can one introduce new evidence?

In civil cases one can introduce new evidence after the procedure has started, but only up to a specific moment (the end of the preparatory procedure, if it was performed, or the end of first hearing). In administrative judicial procedure, there is no limited period of time for introducing new evidence, up to the end of the court proceedings. However, in the case of action against administrative decisions, all the claims must be formulated in a two month period that is reserved for bringing an action.

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

In the procedure, the parties and also the court can ask for expert opinions. The expert can be appointed by the court or hired by the party. The rules for experts and their performance are prescribed in Act. No. 36/1967 Coll., on experts and interpreters and executive regulation No. 37/1967 Coll. From 1 January 2021, the new Act. No. 254/2019 Coll., on experts, expert offices and expert institutions will come into force. According to this new act, anyone who meets the established criteria (now including at least a master’s level education) is entitled to be registered as an expert. The new act also introduces a possibility for experts to act together as an agency of experts and an obligation for experts to have liability insurance.

Anyone can find the experts in the list provided by the Ministry of Justice on its website. There is a facility to choose the expert according to his/her specialisation and place of residence. The database is accessible free of charge.

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

The expert opinion is not formally binding on the judge, but it is considered as one of the pieces of evidence, so the principle of independent assessment of evidence applies. The principle of free evaluation of evidence, however, applies exclusively to the evaluation of the veracity or credibility of the evidence. This includes, for example, expert reports. On the other hand, the principle does not apply to the evaluation of the weight of any piece of evidence in terms of its relevance to clarifying the facts of the case. Weight evaluation is a matter of legal assessment rather than a free evaluation of evidence in terms of veracity. Similarly, free evaluation is not applicable to the evaluation of the legality of the manner in which evidence was obtained.

The court should assess whether there are enough grounds for the conclusions of the expert opinion and whether all of the questions were answered, and also assess the expert opinion in relation to other pieces of evidence presented in the case. The expert should state how he came to his findings and conclusions (judgment of the Supreme Court of 21 October 2009, no. 21 Cdo 1810/2009). If there is any doubt about the quality of the expert opinion, the court can ask another expert to review the preceding expert opinion. The judge must decide on the credibility of the expert’s opinion and on its value as proof. If necessary, the judge can ask for a counter-examination. If there are two conflicting expert opinions, the judge will ask for a review opinion from a third expert. Disagreement of the party with the conclusions of the expert opinion cannot be the only reason for reviewing the expert opinion.

3.2) Rules for experts being called upon by the court

The court usually calls upon the experts at the suggestion of the parties, however it can also call on the expert of its own motion. The parties should always be given an opportunity to express their view on the choice of the expert and the questions that he/she was asked to answer. If there is any reason for exclusion of the expert (mainly bias, see Article 11 of Act. No. 36/1967 Coll., on Experts and Interpreters), the expert opinion cannot be used as evidence (see judgment of the Supreme Court of 17 July 2014, no. 21 Cdo 2616/2013).

3.3) Rules for experts called upon by the parties

The expert opinion introduced by the parties should have the same importance and plausibility as the expert opinion requested by the court, provided that the expert opinion meets all requirements prescribed by law and includes a declaration by the expert that he or she is aware of the results of intentionally false expert opinion. Any party can choose an expert from the official lists of experts, ask him to give his expert opinion, pay for his services and present this expert opinion before the court as evidence.

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

The expert is entitled to a fee for giving the expert opinion. If the expert was appointed by the court, the rules for the fee are given by law (Regulation No. 37/1967 Coll., the regulation of Ministry of Justice applying the Act on Experts and Interpreters). Where the expert was called upon by a party, the fee conforms to the contract between the expert and the party. If the parties to a contract do not agree otherwise, the fee also covers appropriate expenses.

The expert called upon by the court must account for the fee and the appropriate expenses together with the expert opinion, based on the hourly fee (see section 1.7.3, point 1) for more details). The court than sets the exact amount of the fee no later than in two months from provision of the expert opinion. If the expert opinion is of poor quality or late, the court can reduce the fee by up to half or, in case of seriously poor-quality, refuse to award the fee.

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

Unlike in criminal cases, a party to court proceedings in civil cases has to be represented by an attorney only in review proceedings before the Supreme Court (Article 241 of the Code of Civil Procedure), and in administrative court cases only in the cassation procedure before the Supreme Administrative Court (Article 105 of the Code of Administrative Justice). In both cases, the requirement for representation applies only to the claimant. However, if the claimant has a legal education, the obligation will not apply. The same applies in the case of a legal entity represented by a member or employee with a legal education.

The register of attorneys is run by Czech Bar Association on its website. Anyone can search for a lawyer by his/her name, legal specialisation (environmental law is under no. 49), place of residence, language, registration number etc. When choosing an attorney, all the data needed is displayed, including phone number, e-mail address, contact at law firm etc.

1.1 Existence or not of pro bono assistance

The pro bono lawyer can be appointed by the court or by the Czech Bar Association or arranged by some NGOs. There is no complex system of pro bono services, although drafts of an Act on Pro Bono Assistance have been discussed repeatedly in recent years.

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 court will appoint the attorney pro-bono in a civil or administrative case if the party files an application, the lawyer is necessary to protect the interests of the party, and the court considers it appropriate given the lack of financial resources of the party. The attorney’s fee and appropriate expenses for representation are then paid by the state.

The Czech Bar Association provides pro bono legal services for those who do not fulfil the conditions for appointment of representative by and are not capable of obtaining the service at their own expense. The services are provided in the form of indicative legal consultation of legal counsel including representation. The application forms for pro bono legal service provided by the Czech Bar Association are available here.

Pro bono service is also arranged by some NGOs. The Pro Bono Alliance mediates the pro bono service among the NGOs (and their clients) and lawyers. Information about the service are available at http://www.probonoaliance.cz/en/ and http://potrebujipravnika.cz

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

As follows from the previous answer, the applicant can address the courts, the Czech Bar Association or some NGOs for pro bono assistance.

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

List of experts provided by Ministry of Justice.

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

Hnutí DUHA

Rekonstrukce státu

Děti Země

Arnika

Beleco

CALLA, sdružení pro záchranu prostředí

Český svaz ochránců přírody

Frank Bold Society

Greanpeace Česká republika

Česká společnost ornitologická

Česká společnost pro ochranu netopýrů

Česká společnost entomologická

Hnutí Brontosaurus

Přátelé přírody

Čistý les, z.s.

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

Forest Stewardship Council

Greenpeace Czech Republic

Friends of the Earth (Hnutí DUHA)

International Young Naturefriends

BirdLife (Česká společnost ornitologická)

Eurosolar Czech Republic

WWF

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 Code of Administrative Procedure, in Article 83, provides a general fifteen-day time limit to challenge administrative decision by an administrative appeal, which can be filed by a party to the administrative procedure.

The superior administrative body can also initiate a review procedure ex officio. This proceeding can be initiated by anyone, but without a legal right to start the proceedings. The ex officio review proceeding can be started within a time limit of one year from the day when the decision came into force.

2) Time limit to deliver decision by an administrative organ

Generally, the administrative authorities are obliged to deliver the decision within a period of 30 days, with the option to extend it up to 60 days (Article 71 of the Code of Administrative Procedure).

If the administrative authority does not comply with this time limit, it is possible to submit a request to the superior body to take measures against inaction (omission) by the subordinate authority. Afterwards, it is possible to file a lawsuit and request the court to order the administrative authority to issue a decision on the merits of the matter (see section 1.4, point 3 for more details).

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

As a general principle of Czech administrative law, a party to the proceeding can file an administrative appeal against administrative decisions to a superior administrative body. The appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the court. Non-exhaustion of proper remedies is a ground for dismissing the action before the court. However, if there is no possibility of administrative appeal, because of an explicit regulation by law (see section 1.1, point 2 for more details), it is possible to bring an action directly to the court.

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

Generally, there are no specific deadlines for the courts to issue their judgments. Proceedings in the civil and administrative courts (on one level) may last from a few months to several years. However, the Charter of Fundamental Rights, in Article 38 paragraph 2, provides everyone with the right to have his case dealt with without undue delay.

According to Article 56 of the Code of Administrative Justice, the court hears and decides cases in the order in which they occur; this does not apply if there are serious grounds for prior hearing and decision-making on the case. The Code of Administrative Justice further defines types of proceedings to be decided as a matter of priority. These include, actions for failure to act and actions against unlawful interference.

A 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 land use plans or special acts on some aspects of development of traffic infrastructure projects where the Code of Administrative Justice (Article 101d paragraph 2) prescribes a deadline of 90 days. The same time limit for the court decision is set in Article 7 paragraph 10 of the EIA Act and also applies to decisions on administrative lawsuits concerning some large infrastructure projects (Act No. 416/2009 Coll. Article 2, paragraph 2). Interim decisions on a suspensive effect of the lawsuit or injunctive relief must be delivered within a period of 30 days in administrative cases and 7 days in civil cases.

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

The parties to the administrative procedure must challenge the decision before the courts within 2 months of the time when the final administrative decision was delivered (which is the decision of the superior body on the administrative appeal). In cases concerning some large infrastructure projects, the deadline is 1 month. The lawsuit against “measures of a general nature” such as land use plans must be filed within 1 year from the time they became effective.

In civil cases, one can introduce new evidence only until a specific moment (the end of the preparatory procedure, if there was one, or the end of the first hearing), in administrative judicial procedure there is no limited period of time for introducing new evidence, up to the end of the court proceedings. However, in the case of action against administrative decisions, all claims must be formulated in the two month period that is reserved for bringing an action.

Another deadline is set for “persons concerned” by a lawsuit (usually the parties to the original administrative procedure), who must indicate, within the time limit set by the court, whether they wish to participate in the court proceedings. For the time limit applicable during the procedure, it should be noted that the court must notify the parties at least ten days before the hearing that it is to be held (a shorter time limit may be set by court if the court has to decide within a period of days).

1.7.2. Interim and precautionary measures, enforcement of judgments

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

An appeal to a superior administrative body has a suspensive effect. Only in rare cases, and generally not in environmental matters, will the appeal not have a suspensive effect and may be preliminarily executed. The administrative body is able to void the suspensive effect in cases referred to in Article 85 paragraph 2 Code of Administrative Procedure, which means if it is necessary for protection of the public interest or if there is a threat of serious harm to the rights of some of the parties.

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

The administrative body can order injunctive relief at the request of a party or ex officio, before the end of the appeal proceedings, if the conditions of the parties need to be adjusted provisionally or if there is a fear that enforcement of a final decision will not be possible (Article 61 Code of Administrative Procedure).

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?

As stated in the previous point, it is possible for the party to request injunctive relief also during the appeal procedure. There is no deadline for such a request, up to the end of the procedure.

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

The administrative decision of the first stage administrative body cannot be executed if an administrative appeal is launched, pending the decision of the superior authority, unless the suspensive effect of the administrative appeal is made void (see point 1 above). If an appeal is brought to court, the administrative decision can be executed unless the court grants a suspensive effect to the lawsuit or issues a preliminary injunction (see the next point).

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

The submission of a lawsuit against a decision of an administrative authority generally does not have a suspensive effect. Once the decision is approved by the superior administrative body, it may be executed regardless the lawsuit filed against it. Only if the court grants a suspensive effect to the lawsuit or issues a preliminary injunction will execution of the decision be impossible.

The court may, in accordance with Article 73 paragraph 2 of the Code of Administrative Justice, at the request of the claimant, grant a suspensive effect to the lawsuit under the following conditions

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

Specific conditions for granting a suspensive effect apply in case of lawsuits against final decisions (development consent) for a projects which are subject to EIA according to Article 9d paragraph 2 EIA Act (see section 1.8.1 for more details).

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?

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 Justice where there is a need for an interim arrangement of the relationship between the parties. There must be a threat of a “serious harm”, but it does not have to be the claimant personally who is under this threat. The court may order the parties to the dispute, or even a third person, to perform, abstain from something or endure something.

Nevertheless, it is very rare for the administrative courts to issue preliminary injunctions (granting suspensive effect is more usual). 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 enforcement of the (subsequent) court decision could be threatened (Article 74 of the Code of Administrative Justice). The court may apply injunctive relief to forbid the handling of things, laws or particular transactions.

In administrative cases, there is no separate time-limit in which the request for a suspensive effect or preliminary injunction has to be filed. In civil cases, it is possible to ask for the preliminary injunction first and file the lawsuit some time afterwards.

There is no possibility for the court to order deferral in administrative cases; this is possible only in civil proceedings.

In administrative matters, it is not possible to appeal (to file a cassation complaint) to the Supreme Administrative Court against the interim decisions, including decisions 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.

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.

Generally, no fees are charged for 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:

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

All these fees must be paid by the applicant/appellant. Further, there are costs for persons other than the court such as experts (cost of expert opinions), interpreters, witnesses etc. and the costs of the 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; see regulation in Act No. 549/1991 Coll. A fee for a lawsuit to review an administrative decision is CZK 3,000 (approx. EUR 125). Fee for a lawsuit against a land use plan is 5000 CZK (approx. EUR 200). Fee for a cassation complaint is CZK 5,000 (approx. EUR 200).

If a remedy is requested in the civil court action (such as claims for damages connected to environmental pollution or devastation), the system for calculating the fees is generally based on the 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. The fee for an appeal in civil cases is the same as for the lawsuit in the same case.

Costs of expert opinions (noise or pollution studies, etc.) may vary; the cost can normally be from EUR 100 to 4,500. However, the vast majority of administrative cases are decided on the basis of the administrative files, and possibly other official documents. On the other hand, in the civil cases it is necessary to bring enough evidence to support the lawsuit, so expert opinions are often necessary. For example, in cases in which the plaintiff asks the court to order the owners of the road to take measures to reduce the noise caused by traffic in excess of the noise limits, the costs of the expertise (assessment) may vary between EUR 1,900 and 4,200. 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 widely. Typically, there is the hourly fee which is agreed with the client and may range from EUR 50 to 200. However, there are also other possibilities of determining fees such as a fee for the full representation, or a fee based on the tariff for attorneys.

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

The fee for a request for injunctive relief in the administrative cases is CZK 1,000 (around EUR 40). No deposit to cover any compensation is required.

In contrast, in the civil matters anyone requesting a court to order injunctive relief is obliged to pay a deposit of CZK 10,000 (approx. EUR 360) to cover any compensation for damage or other loss which could be caused by the injunctive relief; a fee of CZK 1,000 (approx. EUR 40) is obligatory as well.

3) Is there legal aid available for natural persons?

Concerning other possibilities of financial assistance, it is possible for a party to a judicial dispute to ask the court to appoint him or her a legal representative and at the same time to exempt that party from the duty to pay the legal costs (fully or partially). The conditions are the same as for a waiver of the court fees, i.e. the financial situation of the applicant.

Further, it is also possible to ask the Czech Bar Association to appoint an attorney to provide free legal aid – the pro bono lawyer (normally only for one or a few actions, not for full representation).

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 a waiver of the costs of legal representation. Officially, waiver of these costs is always related to the appointment of a representative by the court (or by the Bar Association).

Only attorneys can provide legal aid as a paid service, and only an attorney can be appointed as a representative of a party who is asking for free legal aid. On the other hand, it is possible for a party to be represented before a court or administrative organ by someone other than an attorney. In practice, the NGOs often provide basic free legal aid (as counselling centres) in their fields of specialisation, and sometimes also represent parties in court. Legal aid is used relatively frequently in environmental cases and the frequency seems to be growing constantly.

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?

Free legal aid is available for legal persons under the same conditions as for natural persons. The Supreme Administrative Court ruled, with respect to the environmental NGOs who regularly apply to courts to challenge administrative decisions in environmental matters, that it is up to them to organise their activity in a way they have sufficient resources for it, and therefore, they cannot be provided with free legal aid repeatedly (decision of the Supreme Administrative Court of 9 February 2017, no. 1 As 326/2016-22, or decision of the Supreme Administrative Court of 27 May 2010, no. 1 As 70/2008 - 74).

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

There is a possibility to obtain a financial grant for legal services from non-governmental organisations, see e.g. Foundation Via.

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

The loser pays principle applies as a general rule in the Czech court system. The losing party is therefore customarily obliged to pay the costs of the successful party as well as the cost of expert opinions and other costs of the procedure.

However, the case-law of the administrative courts states that the costs of the legal representation (attorney’s fees) are not eligible costs for the administrative authorities which act as defendants in the administrative courts (the administrative body issues a decision and subsequently defends it before the court), as they employ their own lawyers who can represent them in the dispute. This case law also admits some exceptions.

Under special circumstances (depending on the consideration of the court) the court may also decide in civil jurisdiction that each party has to bear its own costs as well.

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?

As stated above, both civil and administrative courts can mitigate the costs of the proceedings by granting a waiver of the court fees when the applicant proves the need for the waiver. This possibility is applicable at all instances in 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. A full waiver of the fee can be granted only under special circumstances. Waiver of these costs is related to the appointment of the representative by the court (or by the Bar Association).

The civil judges can grant a full or partial waiver of the court fees if the applicant proves a lack of funds and the action itself is not arbitrary, or almost certainly without any chance of being successful.

Case-law in environmental cases further specifies these rules in a way that an NGO cannot be awarded waivers repeatedly; if the NGO wants to protect the environment in court, it must raise essential resources for that and “not transfer them onto the state”.

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?

With regard to the possibilities for public participation in environmental decision-making and subsequent access to justice, the most important are general provisions of the Code of Administrative Procedure and the Code of Administrative Justice and specific provisions of environmental laws, mostly regulating the rights of environmental NGOs (see section 1.1 point 3 for more details).

The Collection of Laws is available here and all laws, regulations etc. are free available on private websites as well https://www.zakonyprolidi.cz/.

The Ministry of the Environment provides information on the application of the Aarhus Convention, including rules on access to justice on environmental matters, in this publication. A summary document about the possibilities of public participation and access to justice in environmental and related matters can be found also here.

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

There are general provisions in the Code of Administrative Procedure dealing with service of documents, the obligation on administrative bodies to provide information about proceedings to the parties and to notify the parties and the persons concerned about the taking of evidence and the right of access to the files. In proceedings with a large number of parties, the initiation of proceedings is usually announced by public notice.

One can also request information from administrative bodies according to the laws on access to information. There are two different regimes: general Act No. 106/1999 Coll., Freedom of Information Act and specific Act No. 123/1998 Coll., on the Right to Access to Environmental Information. They are not applicable simultaneously; the specific act should be always applied to requests for environmental information.

The request for environmental information can be made orally, in writing or in any technically available form. The request must not be anonymous, and it has to be clear from the request what information is being requested. There are no other specific formal requirements for the request. If the request is incomprehensible or too general, the authority shall ask for more detail. The information shall be provided within 30 days of receipt or provision of additional details. This deadline can be extended, for serious reasons, up to 60 days maximum.

According to the “general” Freedom of 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 applies exclusively with respect to requests for environmental information.

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

The information about the EIA procedures, and all documents relevant for the assessment stage (until the EIA statement is issued), are available online, on the website of the competent authority and also (with an archive) here.

In the case of IPPC, the information is available in the integrated prevention information system.

According to the Building Act, the draft land use plans must be made available to the public, where possible via the internet. This applies also to other plans and programmes subject to SEA (Air Quality Improvement Programmes, Waste Management Plans, National River Basin Management Plans, Strategies of Regional Development, Regional Energy Conceptions etc.), which are available here.

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

In the first instance administrative decision, there must be information on the right to launch an administrative appeal and the deadline for it. However, for the final decision of the superior administrative authority, the law does not require it to contain any information about the possibility of judicial review. The judgement must contain the information about the right to appeal, including the timeframe for it.

Both administrative decisions and judgements must include legal reasoning explaining why the decision was made. According to the jurisprudence, the decision is not reviewable if it does not contain sufficient legal conclusions resulting from the relevant facts or its reasons are not unambiguous in relation to the verdict. This is also the case for a decision where the reasoning does not make properly show the factual and legal reasons which led the administrative authority to issue a decision.

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

The general rule of administrative procedure is that all documents and hearings are in the Czech language. Documents in languages other than Czech have to be submitted in the original and parties have to submit officially certified translation as well.

Anyone who declares that he or she does not speak the language of the hearing has the right to an interpreter (see Article 16 paragraph 3 Code of Administrative Procedure and Article 37 paragraph 4 of the Charter of Fundamental Rights).

In court procedures, the rules are the same. The right to an interpreter is provided in Article 36 paragraph 1 and 2 Code of Administrative Justice.

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

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

• the EIA procedure is fully open to the public,
• the EIA report (documentation) is accessible and everyone is entitled to make comments on it within the given time limits,
• the process is finalised by issuing an “EIA statement” which must be adopted before further decisions (permits) are issued,
• the EIA statement is binding in the subsequent proceedings,
• the EIA statement cannot be reviewed separately, it can only be reviewed in the review proceedings for the subsequent decision.

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

If the competent authority concludes that a project subject to screening (“Annex II” project, in the sense of the EIA Directive) shall not be subject to EIA, it shall issue a decision to this effect. Only environmental NGOs meeting the requirement for either 3 years of legal existence or 200 people supporting their action can file an administrative appeal against such a decision. The NGO can also subsequently file a lawsuit with the administrative court. The EIA Act grants the right to file a lawsuit against this type of decision explicitly and only to the NGOs. However, the general rules on access to justice contained in the Code of Administrative Procedure also apply. Therefore, anyone claiming an infringement of rights should have the right to bring an action (taking into account the case law on the infringement on rights, see above).

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

The scoping decision, as well as the final “EIA statement” cannot be reviewed by the courts independently (directly). As the Supreme Administrative Court has ruled in its judgement of 28 August 2007, No. 1 As 13/2007-63 (see section 1.1, point 4) above), they shall be subject to judicial review only together with (or within the scope of) the permit for which the EIA statement serves as the basis. In the administrative procedures in which such permits are issued, NGOs meeting the same requirements as described above for appeal against the screening decision can apply for status of party and consequently file an administrative appeal against the final decision (permit) and then an appeal to the court.

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

As follows from the above, screening decisions can be challenged by administrative appeal by an NGO meeting the above requirements, within 15 days after delivery (i.e. 30 days after it is published by public notice). The decision of the superior administrative authority can be further appealed in court, within 2 months after delivery.

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

Pursuant to Article 65 of the Code of Administrative Justice (see section 1.1, point 3), anyone who claims that their rights have been infringed directly by a final decision of an administrative authority or due to violation of their rights in the preceding proceedings can bring an action against such a decision. Although it does not follow directly from the provision in question, the right to bring action is usually granted to persons with the status of party to the proceedings. An environmental NGO meeting the requirement for either 3 years of legal existence or 200 people supporting its action can file an administrative appeal against the final authorisation of a project subject to EIA and subsequently an appeal to the administrative court.

There is no special provision concerning the possibility for the foreign NGOs to participate in the environmental administrative procedures. Foreign NGOs should be able take part in these administrative procedures under the same requirements as the Czech ones.

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

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 courts in general. The courts are entitled, at the suggestion of the parties, to review or amend the evidence considered in the administrative procedure. Together with the final development consent, the substantive and procedural legality of the EIA statement and/or EIA screening and scoping decision shall also be reviewed.

The EIA Act states explicitly, for the administrative procedures subsequent to EIA, that the environmental NGOs can challenge both the substantive and procedural legality of the decisions issued in these procedures and they should be deemed to have rights capable of being impaired by the decision.

The court shall, at the suggestion of the plaintiff, also verify materials and technical findings on which the EIA statement and subsequently the development consent is based, at least to the extent that there is not a clear conflict between these findings and the conclusions and reasoning of the administrative authorities.

There are no judicial procedures concerning environmental matters which the courts could start of their own motion. The courts can act solely on the basis of the lawsuit or other appropriate motion, never on their own initiative (see section 1.2 point 4 for more details). They only can grant suspensive effect or issue injunctive relief in EIA cases of their own motion. As for the scope of the review, the courts shall, of their own motion, consider whether the decision is not null and void, if it is not clearly incomprehensible or if there is not a clear absence of reasoning. The court also shall, without any explicit plea from the party in this respect, interpret national law as far as possible in accordance with EU law.

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

The public can challenge the final administrative decisions (development consent), e.g. the land use permit, building permit, mining permit etc. (the list of the proceedings subsequent to the EIA is provided in Article 3, letter g) of the EIA Act)., for which the EIA statement serves as the basis. The standard deadlines, i.e. 15 days for administrative appeal and 2 months for appeal to the court, apply, except for some of the infrastructures projects, where the deadline for filing a lawsuit is 1 month.

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

As a general principle of Czech administrative law, it is possible to file an appeal against administrative decisions to a superior administrative body. The appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the court. The only exception is a situation where there is no possibility of administrative appeal because of an explicit regulation by law.

As stated above, the screening decision according to which a project shall not be subject to EIA can be subject to administrative and subsequently also judicial review by an environmental NGO meeting the requirement for either 3 years of legal existence or 200 people supporting its action. Other outcomes of the EIA process can be challenged only together with the final administrative decisions (development consents).

The administrative remedies have to be exhausted before taking a case to administrative court also in case of omissions (illegal inaction) by the administrative authorities.

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?

Active participation in the consultation phase of the procedure (making comments, participating in the hearing on the EIA procedure itself) does not represent a condition for administrative appeal and standing before the court. However, not using the procedural rights actively can influence the probability of success of the court action, as the courts often refuse to deal with arguments which were, without a proper reason, not already raised at the administrative stage. The same applies to not raising objections in subsequent administrative proceedings.

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

Article 7 paragraph 1 of the Code of Administrative Procedure in this regard provides that the persons concerned (including NGOs) shall enjoy equal treatment in the exercise of their procedural rights. The administrative authority shall act impartially towards the persons concerned and shall require all persons concerned to fulfil their procedural obligations equally. The authorities are obliged to provide them with the same opportunities to exercise their rights and to provide them with information on their procedural rights and obligations to the extent necessary not to suffer harm in the proceedings.

According to Article 36 of the Code of Administrative Justice the participants have an equal position in the proceedings. The court is obliged to provide them with the same opportunities to exercise their rights and to provide them with instructions on their procedural rights and obligations to the extent necessary so that they do not suffer harm in the proceedings. In the decision of the Supreme Administrative Court of 6 December 2007, No. 2 Afs 91/2007-90, the Court found that if the court decides on the merits of the case without a hearing, it is necessary that the parties have the opportunity to meet all the documents on which the court will base its decision.

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

According to Article 6 of the Code of Administrative Procedure, the administrative authorities have to proceed without undue delay. If the administrative authority does not act within the statutory period (usually up to 30, 60 or 90 days, in various procedures), or within a reasonable period if the statutory period is not specified, the party to the administrative proceedings can ask for a measure against inactivity and subsequently file a lawsuit to the administrative court.

As described in section 1.7.2, points 5) and 6) submission of a lawsuit against a decision of an administrative authority generally does not have a suspensive effect. The court may grant a suspensive effect to the lawsuit if executing the decision would cause the applicant “incomparably more serious” harm than that which could be caused to other persons by granting the injunctive relief and issuing injunctive relief would not be contrary to an important public interest. The Constitutional Court stated that the court has to deal with the application for suspensive effect of the administrative action before the authorised project against which the complainant was appealing has already been irreversibly realised (see Decision of the Constitutional Court of 6 May 2015, No. II. ÚS 3831/14). The Supreme Administrative Court has stated repeatedly that the lawsuits filed by the public concerned in environmental matters should normally be granted suspensive effect, so that the legal protection is not only formal but can also have a practical meaning (see e.g. judgement of 28 August 2007, nNo. 1 As 13/2007-63).

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?

Article 9d paragraph 2 of the EIA Act provides that in cases of actions taken against decisions made in subsequent procedures, the court shall decide of its own motion whether to grant suspensive effect of the action, and the same applies for the injunctive relief. The court should grant suspensive effect to the action or order injunctive relief if there is a risk of serious damage to the environment. General regulation on issuing injunctive relief upon request also applies (see section 1.7.2 point 5 for more details).

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

The environmental NGOs (without having to meet any specific conditions, except having the protection of the environment or other public interests as a main goal in their by-laws) can apply for the status of party to the proceedings according to the IPPC Act within 8 days of publication of the information about the request for the IPPC decision by public notice. The employers’ organisations and chambers of commerce can get the status of party under similar conditions to environmental NGOs.

The status of party is also granted to municipalities and regions on whose territory the facility is to be located.

Final decisions issued according to these acts can be challenged by the parties to the proceedings, including environmental NGOs if they participated in the administrative procedure with status of party.

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?

Parties to the IPPC procedure can appeal the IPPC decisions (integrated permits) to the superior administrative authority (the Ministry of the Environment).

Final IPPC decisions (integrated permits), issued according to the IPPC Act, can be reviewed by courts under the general conditions for judicial review of the administrative acts. Standing to appeal against the integrated permits is therefore granted to

1. persons who assert that their rights have been directly infringed by the IPPC decision and
2. other parties to administrative proceedings for issuing the IPPC decision, who assert that their rights have been infringed in these proceedings and this could render the decision illegal (standing to appeal for the environmental organisations is derived from this provision).

The environmental organisations have standing to appeal the IPPC decision if they meet the conditions under b), i.e. if they applied for and were subsequently granted the status of party to the IPPC administrative proceedings (ending with issuance of the IPPC permit). To get the status of party to such proceedings, the organisation has to notify the competent administrative body that it wants to participate in the proceedings within 8 days of publication of the information about the request for the IPPC decision by public notice. A specific way for an NGO to become party to the IPPC process and get standing is to meet the criteria in the EIA Act (see section 1.8.1 point 4 for more details).

The legal basis for NGO participation in the IPPC process, as described in this section, also applies to foreign NGOs (see also section 1.4, point 3) for more details).

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

If the project is subject to EIA, the screening procedure under the EIA Act is carried out separately, outside the scope of the IED/IPPC procedure (see section 1.8.1, point 1) for more details).

The IPPC Act regulates the procedures enabling change to the integrated permit already issued. The operator is obliged to notify the administrative authority of any planned change in the use, mode of operation or extent of the facility which could have consequences for the environment. At the same time, the administrative authority shall review at least every 8 years whether there has been a change in the circumstances that could have led to a change in the binding conditions on the integrated permit. The administrative authority shall first assess whether the change is substantial or minor, then it is possible to initiate an integrated permit change procedure or a minor change procedure.

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

There is no “scoping stage” in the IPPC procedure. If the project is subject to EIA, the scoping procedure under the EIA Act is carried out separately, outside the scope of the IED/IPPC procedure (see section 1.8.1, point 2) for more details).

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

The public can challenge the final administrative decision (integrated permit) within the standard deadlines, i.e. 15 days for administrative appeal and 2 months for appeal to the court.

Where the grounds for appeal relate to the decision on the application for the use of BAT under the responsibility of the Ministry of Industry and Trade or the Ministry of Agriculture, the Ministry of the Environment shall send an appeal and a copy application for an integrated permit including this decision to the Ministry of Industry and Trade or the Ministry of Agriculture to assess whether there has been a mistake in applying the relevant BAT and BREF conclusions to the setting of binding conditions for operation. These central administrative authorities shall send their statement within 15 days from the date of receipt of the appeal or appeal against the issued decision. These statements are the basis for the decision of the Minister of the Environment on appeal or dismissal.

6) Can the public challenge the final authorisation?

If an environmental organisation meets the criteria for being a party to the IPPC administrative proceedings (see section 1.8.2 point 2), it can file an administrative appeal against the IPPC decision (integrated permit) and consequently have standing to appeal the final decision on the administrative appeal. The same applies to municipalities and regions on whose territory the facility is to be located. Individuals who assert that their rights have been directly infringed by the IPPC decision are entitled to challenge the final authorisation despite they did not have the status of party to the administrative proceedings.

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 regional courts are the forum 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). Moreover, the court usually asks the parties if they agree to decide the case without a hearing, and in many (probably most), the parties agree to this.

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. The court shall, at the suggestion of the plaintiff, also verify material and technical findings on which the IPPC decision is based, at least to the extent that there is not a clear conflict between these findings and the conclusions and reasoning of the IPPC decision.

There are no judicial procedures concerning environmental matters which the courts could start of their own motion. The courts can act solely on the basis of the lawsuit or other appropriate motion, never on their own initiative (see section 1.2 point 4 for more details).

Failure by the administrative authority to issue a decision can also be challenged under the general conditions (see section 1.4 point 3 for more details).

8) At what stage are these challengeable?

The final administrative decision (integrated permit) is challengeable.

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

As a general principle of Czech administrative law, it is possible to file an appeal against administrative decisions to a superior administrative body. The appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the court. The only exception is a situation where there is no possibility of administrative appeal because of an explicit regulation in law.

As stated above, final IPPC decisions (integrated permits) issued according to the IPPC Act can be reviewed by the courts under the general conditions for judicial review of the administrative acts.

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?

Formal status of party to an administrative procedure is in general necessary for the possibility to file an administrative appeal and therefore also for standing before the court. The only exceptions are situations where there is no possibility of administrative appeal, because the person affected by the decision was not granted the status of party to the proceedings and therefore could not launch an administrative appeal.

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 appeal the IPPC decision before the courts. If an individual or an environmental organisation meets the criteria for being a party to the IPPC administrative proceedings, it can file an administrative appeal against the IPPC decision and consequently have standing to appeal the final decision, even if it was not active in the IPPC administrative procedure.

However, not using the procedural rights actively can influence the probability of success of the court action, as the courts often refuse to deal with arguments which were, without a proper reason, not already raised at the administrative stage.

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

Article 7 paragraph 1 of the Code of Administrative Procedure in this regard provides that the persons concerned (including environmental organisations) shall enjoy equal treatment in the exercise of their procedural rights. The administrative authority shall act impartially towards the persons concerned and shall require all persons concerned to fulfil their procedural obligations equally. The authorities are obliged to provide them with the same opportunities to exercise their rights and to provide them with information on their procedural rights and obligations to the extent necessary for them not to suffer harm in the proceedings.

According to Article 36 of the Code of Administrative Justice the participants have an equal position in the proceedings. The court is obliged to provide them with the same opportunities to exercise their rights and to provide them with instructions on their procedural rights and obligations to the extent necessary for them not to suffer harm in the proceedings. In the decision of the Supreme Administrative Court of 6 December 2007, No. 2 Afs 91/2007-90, the Court found that if the court decides on the merits of the case without a hearing (written procedure), it is necessary that the parties have the opportunity to see all the documents on which the court will base its decision.

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

According to Article 6 of the Code of Administrative Procedure, the administrative authorities have to proceed without undue delay. If the administrative authority does not act within the statutory period (usually up to 30, 60 or 90 days, in various procedures), or within a reasonable period if the statutory period is not specified, the party to the administrative proceedings can ask for a measure against inactivity and subsequently file a lawsuit to the administrative court.

As described in section 1.7.2, points 5) and 6) submission of a lawsuit against a decision of an administrative authority generally does not have suspensive effect. The court may grant suspensive effect to the lawsuit if executing the decision would cause the applicant “incomparably more serious” harm than that which could be caused to other persons by granting the injunctive relief and issuing injunctive relief would not be contrary to an important public interest. The Constitutional Court stated that the court has to deal with the application for suspensive effect of the administrative action before the authorised project against which the complainant was appealing has already been irreversibly realised (see decision of the Constitutional Court of 6 May 2015, No. II. ÚS 3831/14). The Supreme Administrative Court stated repeatedly that the lawsuits from the public concerned in environmental matters should normally be granted suspensive effect, so the legal protection is not only formal but can also have a practical meaning (see e.g. judgement of 28 August 2007, nNo. 1 As 13/2007-63).

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?

The administrative body may, ex officio or at the request of a party before the end of the proceedings, order injunctive relief. It is used in cases where the conditions of the parties need to be adjusted provisionally or in cases where there is a fear that enforcement of the final decision will not be possible (see Article 61 Code of Administrative Procedure).

Article 9d paragraph 2 of the EIA Act provides that, in actions against decisions made in subsequent procedures, the court shall decide of its own motion whether to grant suspensive effect to the action, and the same applies to injunctive relief. The court should grant suspensive effect to the action or order injunctive relief if there is a risk of serious damage to the environment. This applies also with respect to the IPPC permit if the project is also subject to EIA. General regulation on issuing injunctive relief upon request applies (see section 1.7.2 point 5 for more details).

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

The IPPC Act provides that data from the integrated prevention information system should be published on the website of the Ministry of the Environment. There is however no structured information about access to justice in this area.

1.8.3. Environmental liability[1]

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?

General conditions for standing in environmental matters (see section 1.4. points 1 and 3) apply. Parties to proceedings concerning environmental liability matters may file the lawsuit to the administrative courts once the administrative decision is final. That means that ordinary administrative remedy, which is an appeal to the Ministry of the Environment, has to be exhausted first.

Environmental NGOs may become parties to the proceedings according to the Environmental Liability Act (no. 167/2008 Coll.) by initiating the procedure, i.e. by filing the request for preventive or remedial measures, or if they notify the competent authority in writing of their participation within 8 days of the date of notification of the initiation of the proceedings. Other natural or legal persons may file a request for preventive or remedial measures, but they cannot become parties to the proceedings.

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

The administrative appeal can be introduced within 15 days for administrative appeal and appeal to the court within 2 months from the day the decision was delivered to the appellant.

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

The procedure for imposing preventive or remedial measures relating to environmental damage may be initiated ex officio by the Czech Environmental Inspectorate or upon request. This request may be filed by persons affected or likely to be affected by environmental damage (such as landowners) or by environmental organisations or other non-commercial legal persons whose main activity according to their statutes is protection of the environment.

The request for action must be accompanied by information demonstrating that there has been environmental damage or this is imminent. There are no more detailed requirements.

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

There are no specific requirements regarding plausibility for showing that environmental damage occurred. There is only a requirement that the request for action must be accompanied by information demonstrating that there has been environmental damage or that the environmental damage is imminent (as above). But the law does not specify the way of submitting information.

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)?

There is no time limit set directly for notification of the decision by the competent authority to the entitled natural or legal persons (including the entitled environmental NGOs). The general deadlines for issuing the decision in Article 71 of the Code of Administrative Procedure (30 days, with the option to extend up to 60 days) apply. However, the authority must take into account the urgency of the matter. Where needed, it shall ask the operator to take preventive or remedial measures before the decision is issued.

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?

No extension of the entitlement to request action by competent authority is applied in cases of imminent threat.

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

There are two principal competent authorities in the field of environmental 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 requests for action. It is empowered to impose preventive or remedial measures relating to environmental damage and penalties.

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

The administrative review procedure - appeal to a superior administrative body - must be exhausted prior to recourse to judicial proceedings in the area of environmental liability.

Similarly, the administrative remedy – a request to the superior body to take measures against inaction (omission) - has to be exhausted before taking a case to an administrative court in case of failure by the Inspectorate to start the proceedings on the request to impose preventive or remedial measures.

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?

Special provisions in relation to the affected states are included in the Czech EIA Act. They grant any “affected state” whose territory may be affected by significant environmental impacts of a project the right to initiate a transboundary assessment procedure. Besides, it is obligatory for the administrative authorities to inform the affected states of the relevant IPPC procedures and enable them to submit their statements and consult on the project with them when required to do so.

Theoretically, it should be also possible for the affected states to participate in the subsequent administrative procedures such as the procedures on the land use permit and the building permit.

The final administrative decisions (development consent), e.g. the land use permit, building permit, mining permit, IPPC etc. for projects subject to EIA or IPPC procedure, can be challenged. As a general principle of Czech administrative law, the appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the courts.

2) Notion of public concerned?

There is no specific notion of the public concerned in a transboundary context.
The general definition of public concerned applies, i.e. to grant the association the status of “public concerned”, the environmental NGOs must meet the requirement for either 3 years of legal existence or 200 people supporting the action.

The concept of “affected state” applies with respect to transboundary EIA and IPPC procedures.

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)?

There is no special provision concerning the possibility for the foreign NGOs or other members of the public concerned to participate in the environmental administrative procedures. The foreign NGOs need to meet the same requirements as the Czech ones to participate in the administrative procedures. In line with the interpretation of the EIA and IPPC Acts in conformity with EU law, they should have the same rights as the Czech NGOs. They have a right to an interpreter in the proceedings, but they are obliged to pay for his or her services.

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)?

There are no special rules for this. Individuals of the affected country need to meet the same requirements as the Czech ones to participate in administrative procedures. Only those persons, including foreigners, who prove that they fulfil one of the conditions stated by law can become parties to the administrative procedures in question. Individuals must therefore prove that their rights may be infringed by the decision. They have a right to an interpreter in the proceedings, but they are obliged to pay for his or her services.

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

General provisions of the Code of Administrative Procedure dealing with service of documents, obligations on the administrative body to provide information about the proceedings to the parties and to notify the parties and the person concerned about the taking of evidence, the right to access to the files etc. apply (see section 1.7.4). Most of the information about the procedural rights is provided when the procedure is announced. In proceedings with a large number of parties, the initiation of proceedings is usually announced by public notice.

The information about EIA procedures and all documents relevant to the assessment stage (until the EIA statement is issued) are available online on the website of the competent authority and also (with archive) here. The notification and documentation must be submitted in the official language of the State concerned (see Article 13 and 14a of the EIA Act).

In the case of IPPC, the information is available in the integrated prevention information system.

According to the Building Act, the draft land use plans must be made available to the public, where possible via the internet. This applies also to other plans and programmes subject to SEA.

The documents are available only in Czech, with the exception regarding EIA procedures described above.

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

The general rules described in section 1.7. apply.

In regard to the EIA/SEA processes, in the case of a project carried out in the Czech Republic, a notification, including a translation, shall be sent within 7 working days of its receipt to the affected state with a request for comments. The public, the public concerned, the authorities concerned, the municipalities concerned and the state concerned may comment on the notification to the competent authority within 30 days of the date of publication of the notification and this period may be extended by up to 30 days if the state concerned requests it.

If the concept implemented in the territory of the Czech Republic may have an impact on the territory of another state, the Ministry of the Environment shall send, within 10 days of its receipt, information on the draft concept, including a translation to the affected state.

If the concept may affect the territory of a country other than the Czech Republic, the Ministry of the Environment shall publish within 20 days of its receipt information on the draft concept and send it to the authorities, affected regions and affected municipalities and inform them of the possibility of commenting on the concept. Anyone may send written comments within 30 days of the date of publication of the draft concept. The Ministry of the Environment shall send to the state of origin, within 40 days of the date of publication, information on the draft concept, together with its observations and information that it may take part in the consultation.

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

In the administrative decision of the first instance administrative authority, there must be information about the right to launch an administrative appeal and the deadline for it. However, for the final decision of the superior administrative authority, the law does not require this to contain information about the possibility of judicial review. The judgement must contain the information about the right to appeal. This applies to any party to the proceedings, including the public concerned in another country.

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

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. A similar principle applies 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 the court procedures, all parties are entitled to be heard in their mother tongue. Anyone who does not speak Czech may ask for an interpreter (translator); this right is guaranteed directly by the Charter of Fundamental Rights and Freedoms.

It is the state which bears the cost of translation in the court procedures, contrary to the administrative procedures where the party who does not speak the language has to bear the cost of the translation.

9) Any other relevant rules?

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

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?

In the administrative proceedings, procedural rights, including the right to appeal, are granted to the parties to the proceedings. Those who are parties to the proceedings can then usually also bring an action in court.

The basic rule for granting the status of party to the proceedings is based on the concept of one’s “rights or duties being possibly directly affected” by the decision. According to Article 27 of the Code of Administrative Procedure, the parties to the proceedings are persons whose rights or duties can be directly affected by the administrative decision. However, this general regulation shall apply only if the specific administrative procedure is not regulated by a special law, which would take precedence over the general regulation. Most administrative proceedings are further regulated in special legislation which lays down special definitions for the parties to the proceedings which take precedence over general legislation. There are a large number of special laws governing the individual decision-making processes relevant to the protection of the environment. The most important ones, next to the EIA and IPPC processes, are listed below.

a) Act no. 183/2006 Coll., Building Act.

The Building Act sets its own definitions of parties of the administrative proceedings for issuing land use permits, building permits and other permits under the act. The definitions are generally based on the principle that only the applicant, individuals and legal entities whose property rights or other rights in rem can be directly affected by the permit, including the applicant, in some cases the environmental NGOs, and in land use processing the affected municipalities, have a status of party of the proceedings and may exercises the rights associated with that status.

b) Act of the Czech National Council No. 114/1992 Coll., on Nature and Landscape Protection

The Act sets out the conditions under which environmental NGOs can become participants in proceedings under this Act. The NGOs are entitled to be informed of all administrative proceedings in which the interests of nature and landscape protection may be affected. Subsequently, if the NGO notifies its participation in the procedure under this act within eight days of the date of the notification, it has the status of a party to the proceedings. The act further grants the status of a party to such proceedings to affected municipalities.

c) Act No. 254/2001 Coll. on waters and amendment to some acts (the Water Protection Act)

The Act grants to environmental NGOs status of a party to the proceedings under this act (with exceptions) under similar conditions as Act on Nature and Landscape Protection. The act further grants the status of a participant to municipalities and that in proceedings in which decisions which may affect water conditions or the environment are made.

d) Special definitions of the parties to administrative proceedings related to the environment are contained in a number of other special laws, such as the Act no. 44/1988 Coll. Mining Act, Act no. 61/1988 Coll. Act on Mining activities, Act No. 258/2000 Coll. Public Health Protection Act, or Act no.263/2016 Coll., Nuclear Act. With regard to the proceedings under the last two of these acts, the status of a party is granted only to the applicant. No other subjects are granted the status of party to the proceedings. This is the case, for example, for proceedings to grant “noise exceptions” – decisions which authorise an operator of a source of noise in excess of the maximum limits to continue with the operations for a limited period of time (with the possibility of repeated prolongation). Other examples are the permits issued according to the Act no.263/2016 Coll., Nuclear Act.

The time limit to challenge administrative decision by an administrative appeal is fifteen days, according to Article 83 of the Code of Administrative Procedure.

For challenging the decision before the administrative court, the standing is, according to Article 65 of the Code of Administrative Justice, granted to

1. persons who assert that their rights have been infringed by the decision which “creates, changes, nullifies or authoritatively determines their rights or duties” and
2. other parties to administrative proceedings for issuing the administrative decision, who assert that their rights have been infringed in these proceedings and this could render the decision illegal (standing of the environmental organisations is derived from this provision).

Until 2014, the prevailing case law provided that the environmental NGOs could only challenge the administrative decisions on grounds of violation of their procedural rights, but not on grounds of violation of substantive requirements of environmental laws. In this respect, the decision of the Constitutional Court of 30 May 2014, No. I. ÚS 59/14 and subsequent jurisprudence of the administrative courts (see section 1.1, point 4) and section 1.4, point 3) above) represented a change in the case law of the Czech courts. In this decision, the Court concluded that, although the Aarhus Convention was not self-executing in the Czech legal system, it had to be considered as an interpretative source. Therefore, where it is possible to interpret national standards in several ways, the interpretation that meets the requirements of the Aarhus Convention will prevail.

At the same time, the Constitutional Court explicitly defined the criteria for the environmental NGOs to have standing to review the land use plans in court, which include having environmental protection as the subject of the NGO activity according to its bylaws, a factual relationship of the NGO to the affected locality and the length of existence and factual activities of the NGO.

The above-mentioned decision of the Constitutional Court specifically dealt with the standing of the environmental NGOs to appeal the land use plans before the administrative courts., By the judgment of the Supreme Administrative Court of 25 June 2015, No. 1 As 13/2015-295 (see section 1.1, point 4) above) and following case law, the above principles were applied to the standing of the NGOs in environmental matters in general.

The parties to the administrative procedure must challenge the decision before the court within 2 months of the time when the final administrative decision was delivered (which is the decision of the superior body on the administrative appeal). In cases concerning some large infrastructure projects, the deadline is 1 month. If the person challenging the decision was not a party to the administrative procedure, the deadline starts at the day the person provably learned about the decision and its content.

As for the omissions, if the administrative authority does not comply with the time limit, it is possible to submit a request to the superior body to take measures against inaction (omission) by the subordinate authority. Afterwards, it is possible to file a lawsuit and request the court to order the administrative authority to issue a decision on the merits of the matter (see section 1.4, point 3 for more details).

As for the effectiveness of access to justice in the national courts, it was increased by the change in case law described above, according to which the environmental NGOs can challenge not only the procedural but also the substantive legality of decisions (permits) relating to the environment and protect the right of their members to a favourable environment. In this context, the Supreme Administrative Court referred to CJEU decisions C-263/08 Djurgarden, C-240/09 VLK and C-115/09 Trianel.

Also, both the Constitutional and the Supreme Administrative Court have repeatedly stated that the courts should deal with applications for suspensive effect of the lawsuits in environmental matters in such a way that the judgment is issued before the project has already been irreversibly realised, so the legal protection is not only formal but can also have a practical meaning. (see e.g. Decision of the Constitutional Court of 6 May 2015, No. II. ÚS 3831/14 or the judgement of the Supreme Administrative Court of 28 August 2007, no. 1 As 13/2007). However, this jurisprudence is not always applied by the lower courts. CJEU case C-416/10 Križan was mentioned by the Supreme Administrative Court in this respect in judgment of 23 February 2018, No. 1 As 296/2017).

According to settled case law, procedural mistakes can represent a reason for annulment of a decision if the decision might be different without the procedural defect. The courts have not so far stated that it is not up to the applicant to prove a causal link between the procedural defect and the contested decision, but for the other party to provide evidence that the procedural defect would have made no difference to the outcome, as the CJEU ruled in case C-72/12 Altrip. However, it could be deduced from the jurisprudence that it is for the court to explain sufficiently such a conclusion.

The jurisprudence has also not dealt with other aspects of the effectiveness of access to national courts, as emanating from the CJEU case law, so far. This applies e.g. on the requirement for compensation for pecuniary damage caused non-fulfilment of EU environmental law (case C-420/11 Leth) or addressing unlawful harm to the environment retrospectively (case C-399/14 Grüne Liga Sachsen).

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?

In the administrative appeal, the applicants, including the environmental NGOs, can challenge both the substantive and procedural legality of the decisions issued in these procedures. The objections should however relate to the rights of the applicant or public interests they protect (in case of the NGOs). This is explicitly stated in the Building Act for procedures regulated by it, but applies as a general principle.

Also the courts shall review both the substantive and procedural legality of the administrative decisions. The courts are entitled, at the suggestion of the parties, to review or amend the evidence considered in the administrative procedure. The objections should again be related to the rights of the applicant – this is inferred from the standing rules (see previous point). As already stated, until 2014 the prevailing case law provided that the environmental NGOs could only claim infringement of their procedural rights before the administrative courts. However, after the decision of the Constitutional Court of 30 May 2014, No. I. ÚS 59/14, this approach is no longer applied by the administrative courts and the scope for admissible objections from the NGOs is deduced from the scope of the public interests they protect.

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

The appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the courts. The only exception is a situation where there is no possibility of administrative appeal (see section 1.1, point 2 for more details).

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.?

Formal status of party to an administrative procedure is in general necessary for the possibility to file an administrative appeal and therefore also for standing before the court (see the previous answer). The only exception is a situation where there is no possibility of administrative appeal, because the affected person is not granted the status of party to the proceedings (as in the case of the “noise exceptions” - see section 1.1, point 2 for more details).

Active participation in the administrative procedure (making comments etc.) does not represent a formal condition for administrative appeal and standing before the court. However, not using the procedural rights actively can influence the probability of success of the court action, as the courts often refuse to deal with arguments which were, without a proper reason, not already raised at the administrative stage. The Supreme Administrative Court concludes that the petitioner, who was passive in previous procedures, may be successful in court only exceptionally, either (i) if its procedural passivity resulted from objective circumstances or (ii) to the extent that the irregularities referred to are fundamental and have an impact on the public interest (see Judgement of the Supreme Administrative Court of 30 November 2016, No. 1 As 197/2016-66).

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

Generally no; however, where the applicant has not made any claims in the previous administrative procedure or in the previous instance of judicial review, the court normally does not take these claims into account. Moreover, the court will not deal with arguments which do not relate at all to the rights of the applicant, or, in case of the NGOs, to the public interests the NGO protects.

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

Article 7 paragraph 1 of the Code of Administrative Procedure in this regard provides that the persons concerned (including environmental organisations) shall enjoy equal treatment in the exercise of their procedural rights. The administrative authority shall act impartially towards the persons concerned and shall require all persons concerned to fulfil their procedural obligations equally. The authorities are obliged to provide them with the same opportunities to exercise their rights and to provide them with information on their procedural rights and obligations to the extent necessary not to suffer harm in the proceedings.

According to Article 36 of the Code of Administrative Justice, the participants have an equal position in the proceedings. The court is obliged to provide them with the same opportunities to exercise their rights and to provide them with instructions on their procedural rights and obligations to the extent necessary so that they do not suffer harm in the proceedings. In the decision of the Supreme Administrative Court of 6 December 2007, No. 2 Afs 91/2007-90, the Court found that if the court decides on the merits of the case without hearing, it is necessary that the parties have the opportunity to meet all the documents on which the court will base its decision.

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

According to Article 6 of the Code of Administrative Procedure, the administrative authorities have to proceed without undue delay. If the administrative authority does not act within the statutory period (usually up to 30, 60 or 90 days, in various procedures), or within a reasonable period, if the statutory period is not specified, the party to the administrative proceedings can ask for a measure against inactivity and subsequently file a lawsuit to the administrative court.

As described in section 1.7.2, points 5) and 6) submission of a lawsuit against a decision of an administrative authority generally does not have suspensive effect. The court may grant a suspensive effect to the lawsuit if executing the decision would cause the applicant “incomparably more serious” harm than that which could be caused to other persons by granting the injunctive relief and issuing injunctive relief would not be contrary to an important public interest. The Constitutional Court stated that the court has to deal with the application for suspensive effect of the administrative action before the authorised project against which the complainant was defending has already been irreversibly realised (see decision of the Constitutional Court of 6 May 2015, No. II. ÚS 3831/14).

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 administrative body can, at the request of a party or ex officio before the end of the appeal, proceedings, order injunctive relief if the conditions of the parties need to be adjusted provisionally or if there is a fear that enforcement of the final decision will not be possible (Article 61 Code of Administrative Procedure). There are no specific sectoral rules in this respect.

The administrative courts issue injunctive relief on the basis of Article 38 of the Code of Administrative Justice in cases where there is a need for an interim arrangement of the relationship between the parties. There must be a threat of a “serious harm”, but it is not necessary that it is the claimant personally who is under this threat. The court may order the parties to the dispute, or even third parties, to make something, abstain from something or endure something. There are no specific sectoral rules in this respect except in the EIA Act.

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 court fees for individual kinds of administrative lawsuits are based on a flat rate regardless of the value of the case, see regulation in Act No. 549/1991 Coll. A fee for a lawsuit to review an administrative decision is CZK 3,000 (approx. EUR 125), the same fee applies to the cassation complaint. The fee for a lawsuit against a land use plan is CZK 5,000 (approx. EUR 200)., See section 1.7.3 for more details.

The general rule that the losing party pays applies; however, the case law of the administrative courts upholds the general principle that the costs of legal representation are not eligible costs for the administrative authority, as they employ their own lawyers who can represent them at the dispute. This can be seen as a general safeguard against the prohibitive costs in administrative judiciary. There is however no express statutory reference in this respect. There is not an express statutory reference to a requirement that costs should not be prohibitive.

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[2]

In accordance with Directive 2001/42/EC, the Czech EIA Act states that the concepts subject to the SEA are:

• concepts that set the framework for future authorisation of projects subject to EIA in the fields of agriculture, forestry, hunting, fisheries, surface or groundwater management, energy, industry, transport, waste management, telecommunications, tourism, territorial planning, regional development and the environment;
• concepts with a significant impact on NATURA 2000 areas;
• concepts of local importance, if the affected territory consists of the territorial district of one or a few municipalities, if so provided in the screening procedure

The specific examples of such concepts are Land Use Plans, Air Quality Improvement Programmes, Waste Management Plans, National River Basin Management Plans, Flood Risk Management Plans, Strategies for Regional Development, Regional Energy Concepts etc.

There is no special institution in Czech law that would explicitly provide the public concerned (individuals and NGOs) with access to justice with regard to concepts, plans or programmes subject to the SEA, or, more generally, relating to the environment. However, a number of plans and programmes are issued in the form of “measures of a general nature” according to Article 171 of the Code of Administrative Procedure. A measure of a general nature is a hybrid administrative act that is neither a legal norm nor an individual decision. It regulates a specific subject and relates to an indefinite number of addressees. There is a specific regulation of judicial review of this kind of administrative acts (see below).

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?

As for the administrative review, the legality of measures of a general nature, subject to the SEA (see above) can be assessed in the extraordinary review proceedings, which may be initiated ex officio by the superior administrative authority. Anyone (including any individual or environmental NGO) may request that such proceedings should be started. However, there is no legal entitlement to initiate the review proceedings if the superior administrative authority does not find grounds for their initiation. The review proceedings may be initiated within 1 year of the entry into force of the measure of a general nature.

The legality of measures of a general nature can be further reviewed by the courts on the basis of a lawsuit to annul a measure of a general nature or parts thereof under Article 101a of Act No. 150/2002 Coll., the Code of Administrative Justice. The application may be filed by a person who claims that his or her rights were infringed by the measure of a general nature issued by the administrative authority.

According to the decision of the Constitutional Court of 30 May 2014, No. I. ÚS 59/14, the environmental NGOs may challenge measures of a general nature, including those subject to SEA, under following conditions:

1. the NGO must claim that the illegality of a measure of a general nature affects its legal sphere,
2. the NGO must have environmental protection as the subject of its activity according to its bylaws,
3. the NGO must have a factual relationship to the locality regulated by the land use plan (registered office, residence of members, etc.),
4. the establishment, i.e. longstanding activity of the association; however, an ad hoc association is not excluded either

The application may be filed within 1 year of the effective date of the measure of a general nature.

If the act is adopted in the form of a legal regulation, the only direct possibility of judicial review is by the Constitutional Court, and only specific subjects are entitled to initiate this review (e.g. a group of members of the Parliament, the Ministry, the Public Defender of Rights, etc.). Anyone may ask any of the entities with standing under Article 64 (2) of the Constitutional Court Act to ask for annulment of a statutory instrument too. However, there is no legal entitlement to file a petition for the annulment of statutory instrument.

For the public (both individuals and NGOs), it is only possible to file a petition for the annulment of a legal regulation under section 64 (2) subparagraph d), i.e. only together with a constitutional complaint if the application of legal regulation resulted in the fact which is the subject of the constitutional complaint. The NGOs (like anyone else) cannot file a constitutional complaint to the Constitutional Court directly, but only after they have exhausted all other remedies and claim that their constitutionally guaranteed rights have been infringed.

If the Constitutional Court finds that the legal regulation violates the Constitution, it will annul it. Pursuant to Article 89 (2) of the Constitution, enforceable decisions of the Constitutional Court are binding on all bodies and persons.

The general courts may refuse to apply a sub-legal regulation if it is against the law. Courts cannot annul this regulation, but only choose not to apply it in a specific case.

If plans or programmes are not issued in the form of a measure of a general nature, such acts can be annulled by the same administrative authority which issued them. If such plan or programme represents a basis for a subsequent decision, it can be reviewed by a court as part of the judicial review of this subsequent act.

As for the effectiveness of access to justice in the national courts, it was increased, in accordance with the relevant CJEU case law (namely C-240/09 Lesoochranárske zoskupenie) by the change in case law described above, according to which the environmental NGOs can challenge, under conditions settled by the Constitutional Court in decision no. I. ÚS 59/14 of 30 May 2014 (see section 1.1, point 4) above), both the substantive and the procedural legality of measures of a general nature relating to the environment and protect the right of their members to a favourable environment. In the subsequent case law of the Supreme Administrative Court (namely the judgment of 25 June 2015, No. 1 As 13/2015-295; see section 1.1, point 4) above), this was applied as a general principle in the field of environmental law, with a reference to the CJEU judgment in C-115/09 Trianel.

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?

In the administrative review proceedings, the superior authority deals only with the legality of measures of a general nature.

Before the court, affected persons, including NGOs, can challenge both the substantive and procedural legality of the measures of a general nature. The legality of the SEA proceedings and its outcome (the SEA statement) can be reviewed together with the concept, plan or programme issued in the form of the measure of a general nature.

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

As stated in general summary of concepts which are subject to the SEA, the majority of the concepts are adopted in the form of measures of a general nature. For this form there is no possibility of administrative remedy like an appeal against an administrative decision. However, review proceedings can be initiated (see above at point 1).

Exhaustion of administrative review is, therefore, not a requirement for starting a judicial review procedure in such cases.

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.?

Active participation in the consultation phase of the procedure (making comments, participating at the hearing) does not represent a formal condition for standing before the court. However, not using the procedural rights actively can influence the probability of success of the court action, as the courts often refuse to deal with arguments which were, without a proper reason, not already raised at the administrative stage. This in particular applies to the argument of (un)proportionality of the measure of a general nature.

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?

There is no specific injunctive relief for the SEA cases, but the general regulations apply. The administrative courts may issue a preliminary injunction on the basis of Article 38 of the Code of Administrative Justice where there is a need for an interim arrangement of the relationship between the parties. There must be a threat of “serious harm”, but it is not necessary for it to be the claimant personally who is under this threat. The court may order to the parties to the dispute, or even a third party, to do something, abstain from something or endure something. As the courts should deliver the final judgment in 90 days in cases concerning measures of a general nature, injunctive relief is not in practice issued in these cases.

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 court fees for individual kinds of administrative lawsuits are based on a flat rate regardless of the value of the case; see regulation in Act No. 549/1991 Coll. Fee for a lawsuit against a measure of a general nature is CZK 5,000 (approx. EUR 200) see section 1.7.3 for more details.

The general rule that the losing party pays applies; the costs of proceedings dealing with an application for annulment of plans or programmes are usually between CZK 10,000 and 20,000 (approx. EUR 410–830). However, the case law of the administrative courts upholds the general principle that the costs of legal representation are not eligible costs for the administrative authority, as they employ their own lawyers who can represent them in the dispute. This can be seen as a general safeguard against prohibitive costs in administrative proceedings. This case law also admits some exceptions.

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[3]

There are multiple plans and programmes that are not submitted to SEA , i.e.:

1. Regulatory orders pursuant to Act No. 201/2012 Coll., Air Protection Act. Also the Air Protection Act, issued in the form of a municipal regulation (normative instrument).
2. The River Basin Management Plans and Flood Risk Management Plans according to the Water Protection Act, issued in the form of measures of a general nature.
3. The Forest Management Plans according to Act No. 289/1995 Coll, the Forest Act, which are binding on the forest owners and by their nature, are rather individual administrative decisions regulating the obligations of specific forest owners, although they do not formally have this form.
4. The Land Use Plans of the municipalities, if the regional authority decides that the draft plan should not be submitted to SEA.

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?

As with the administrative review, the legality of the acts subject to Article 7 of the Aarhus Convention which are issued in the form of measures of a general nature can be assessed in the review proceedings, which may be initiated ex officio by a superior administrative authority. Anyone (including any individual or environmental NGO) may indicate that such proceedings should be started. However, there is no legal entitlement for private subjects to initiate the review proceedings, if the superior administrative authority does not find grounds for their initiation. The review proceedings may be initiated within 1 year of the effective date of the measure of a general nature.

The legality of measures of a general nature can be further reviewed by the courts on the basis of a lawsuit to annul a measure of a general nature or parts thereof under section 101a of Act No. 150/2002 Coll., the Code of Administrative Justice. The application may be filed by any person who claims that his or her rights were infringed by the measure of a general nature issued by the administrative authority.

According to the decision of the Constitutional Court no. I. ÚS 59/14 of 30 May 2014, environmental NGOs may challenge measures of a general nature under following conditions:

1. the NGO must claim that the illegality of a measure of a general nature affects its legal sphere,
2. the NGO must have environmental protection as the subject of its activity according to its bylaws,
3. the NGO must have a factual relationship to the locality regulated by the land use plan (registered office, residence of members, etc.),
4. the establishment, i.e. longstanding activity of the association; however, an ad hoc association is not excluded either

The application may be filed within 1 year of the effective date of the measure of a general nature.

If the act is adopted in the form of a legal regulation (normative instrument), the only possibility of direct judicial review is before the Constitutional Court, and only specific subjects (the Ombudsman, the Ministry of the Interior, a group of at least 25 Deputies or a group of at least 10 Senators) are entitled to initiate this review. For the public (both individuals and NGOs), it is only possible to suggest annulment of a legal regulation together with a constitutional complaint against a specific decision in the case where the regulation was applied. The NGOs (like anyone else) cannot go to Constitutional Court directly, but only after they have exhausted all other remedies and claim that the courts or other bodies which dealt with their case interpreted the law in conflict with the Constitution.

If the Constitutional Court finds that a legal regulation violates the Constitution, it will annul it. Pursuant to Article 89 (2) of the Constitution, enforceable decisions of the Constitutional Court are binding on all bodies and persons.

The general courts may refuse to apply a regulation if it is contrary to law. The court cannot annul this regulation, but only choose not to apply it in a specific case.

If the plans or programmes are not issued in the form of a measure of a general nature, such acts can be annulled by the same administrative authority which issued them. If such plan or programme represents a basis for a subsequent decision, it can be reviewed by the court as part of the judicial review of this subsequent act.

As for the effectiveness of access to justice in the national courts, it was increased by the change in case law described above, according to which the environmental NGOs can challenge, under conditions settled by the Constitutional Court in its decision of 30 May 2014, No. I. ÚS 59/14 (see section 1.1, point 4) above), both the substantive and procedural legality of measures of a general nature relating to the environment and protect the right of their members to a favourable environment.

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?

In administrative review proceedings, the superior authority deals only with the legality of measures of a general nature.

Before the court, affected persons, including the NGOs, can challenge both the substantive and procedural legality of the measures of a general nature. This applies also to the review of plans issued in a form of a legal regulation before the Constitutional Court.

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

For plans and programmes issued in form of measures of a general nature, there is no possibility of administrative remedy, like an appeal against an administrative decision. However, review proceedings can be initiated (see above at point 1).

Exhaustion of administrative review is, therefore, not a requirement for starting a judicial review procedure in such cases.

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.?

Active participation in the consultation phase of the procedure (making comments, participating at the hearing) does not represent a formal condition for standing before the court. However, not using the procedural rights actively can influence the probability of success of the court action, as the courts often refuse to deal with arguments which were, without a proper reason, not already raised at the administrative stage. This namely applies to the argument of (un)proportionality of the measure of a general nature.

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?

There is no specific injunctive relief for this kind of cases, but the general regulations apply. The administrative courts may issue a preliminary injunction on the basis of Article 38 of the Code of Administrative Justice where there is a need for an interim arrangement of the relationship between the parties. There must be a threat of “serious harm”, but it is not necessary for it to be the claimant personally who is under this threat. The court may order to the parties to the dispute, or even to a third party, to do something, abstain from something or endure something. As the courts should deliver the final judgment in 90 days in cases concerning measures of a general nature, injunctive relief is not in practice issued in these cases.

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 court fees for individual kinds of administrative lawsuits are based on a flat rate regardless of the value of the case, see regulation in Act No. 549/1991 Coll. Fee for a lawsuit against a measure of a general nature is CZK 5000 (approx. EUR 200) see section 1.7.3 for more details.

The general rule that the losing party pays applies; the costs of proceedings dealing with an application for annulment of plans or programmes are usually between CZK 10,000 and 20,000 CZK (approx. EUR 410–830). However, the case law of the administrative courts upholds the general principle, that the costs of legal representation are not eligible costs for the administrative authority, as they employ their own lawyers who can represent them in the dispute. This case law also admits some exceptions.

1.4. Decisions, acts or omissions also concerning plans and programmes required to be prepared under EU environmental legislation[4]

The plans covered by this section include:

1. Air Quality Improvement Programmes (required by Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe),
2. Waste Management Plans (required by Directive 2008/98/EC on Waste), including the Waste Management Plan of the Czech Republic, the Regional Management Plans and the Municipal Waste Management Plans,
3. Water Management Plans (required by Directive 2000/60/EC, Framework for Community Action in the Field of Water Policy), including the National River Basin Management Plans, International River Basin Management Plans and River Sub-basin Management Plans,
4. Areas within the Natura 2000 system (required by Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora) are designated in the form of a government regulation according to Act no. 114/1992 Coll., on Nature and Landscape Protection.

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?

Laws which regulate plans and programmes that are specifically required by EU legislation do not provide for specific rules for an administrative or judicial review.

For the administrative review, the legality of measures of a general nature can be assessed in the review proceedings, which may be initiated ex officio by a superior administrative authority. Anyone (including any individual or environmental NGO) may indicate that such proceedings should be started. However, there is no legal entitlement for private subjects to initiate the review proceedings if the superior administrative authority does not find grounds for their initiation. The review proceedings may be initiated within 1 year of the effective date of the measure of a general nature.

The legality of measures of a general nature can be further reviewed by the courts on the basis of a lawsuit to annul a measure of a general nature or parts thereof under Article 101a of Act No. 150/2002 Coll., the Code of Administrative Justice. The application may be filed by any person who claims that his or her rights were infringed by the measure of a general nature issued by the administrative authority. The application may be filed within 1 year of the effective date of the measure of a general nature.

If the act is adopted in the form of a legal regulation (normative instrument), the only possibility of its direct judicial review is before Constitutional Court and only specific subjects (the Ombudsman, the Ministry of the Interior, a group of at least 25 Deputies or a group of at least 10 Senators) are entitled to initiate this review. For the public (both individuals and NGOs), it is only possible to suggest annulment of a legal regulation together with a constitutional complaint against a specific decision in the case where the regulation was applied. The NGOs (like anyone else) cannot go to Constitutional Court directly, but only after they have exhausted all other remedies and claim that the courts or other bodies which dealt with their case interpreted the law in conflict with the Constitution.

If the Constitutional Court finds that legal regulation violates the Constitution, it will annul it. Pursuant to Article 89 (2) of the Constitution, enforceable decisions of the Constitutional Court are binding on all bodies and persons.

The general courts may refuse to apply a regulation if it is contrary to law. Court cannot annul this regulation, but only choose not to apply it in a specific case.

If plans or programmes are not issued in the form of a measure of a general nature, such acts can be annulled by the same administrative authority which issued them. If such plan or programme represents a basis for a subsequent decision, it can be reviewed by a court as part of the judicial review of this subsequent act.

As for the effectiveness of access to justice in the national courts, it was increased by the change in case law described above, according to which the environmental NGOs can challenge, under conditions settled by the Constitutional Court in decision of 30 May 2014, No. I. ÚS 59/14 (see section 1.1, point 4) above), both the substantive and the procedural legality of measures of a general nature relating to the environment and protect the right of their members to a favourable environment. In relation to judicial review of the Air Quality Improvement Programmes, the Supreme Administrative Court, in its judgment of 20 December 2017, No. 6 As 288/2016-146, with reference to CJEU cases C-237/07 Janecek and C-404/13 ClientEarth, confirmed that the national court has the authority to review the content of the plan and its fulfilment of the requirements of EU law. Subsequently it can instruct the administrative authority on how an already adopted plan should be revised and amended.

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)?

Special environmental legislation (the Building Act, the Air Act, the Water Protection Act, the Forest Act, etc.) does not contain any special provisions on the judicial review of plans contained therein. In some cases, however, it expressly states that a certain plan or programme is issued in the form of a measure of a general nature, or it can be inferred from a substantive point of view that it is a measure of a general nature. In this case, the plan is administratively and judicially reviewable under the general provisions relating to measures of a general nature.

If the plan or programme is adopted in the form of a legal regulation than there is only special judicial review by Constitutional Court and only explicitly designated persons are entitled to initiate this review (see section 2.5).

If plans or programmes are issued neither as a legal regulation nor as a measure of a general nature, such acts can be annulled by the same administrative authority which issued them. If such plan or programme represents a basis for a subsequent decision, it can be reviewed by the court as part of the judicial review of this subsequent act.

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?

The environmental NGOs can challenge, in the administrative review as well as in the judicial review, both the substantive and procedural legality of the decisions issued in these procedures and they should be deemed to have rights capable of being impaired by the decisions.

In the administrative review proceedings, the superior authority deals only with the legality of measures of a general nature. Before the court, affected persons, including the NGOs, can challenge both the substantive and procedural legality of the measures of a general nature.

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

For the form of measure of a general nature (which is typical for plans and programmes) there is no possibility of administrative remedy such as an appeal. The appeal can be lodged only against an administrative decision. However, the review proceedings for the measure of a general nature can be initiated (see above at point 1).

If a plan or a programme is adopted in the form of an administrative decision, the appeal to a superior administrative body must be exhausted before the administrative decision can be further appealed before the court. The only exception is a situation where there is no possibility of administrative remedy because of an explicit regulation by law.

The administrative remedies have to be exhausted before taking a case to the administrative court also in the case of omissions (illegal inaction) by the administrative authorities.

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.?

Active participation in the consultation phase of the procedure (making comments, participating at the hearing) does not represent a condition for administrative appeal and standing before the court. However, not using the procedural rights actively can influence the probability of success of the court action, as the courts often refuse to deal with arguments which were, without a proper reason, not already raised at the administrative stage.

The Supreme Administrative Court concludes that the petitioner, who was passive in previous procedures, may be successful in court only exceptionally, either (i) if its procedural passivity resulted from objective circumstances or (ii) to the extent that the irregularities referred to are fundamental and have an impact on the public interest (see Judgement of the Supreme Administrative Court of 30 November 2016, No. 1 As 197/2016-66).

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

Generally no; however, if the plaintiff has not made any claims in the previous administrative procedure or in the previous instance of judicial review, the court will not take these claims into account.

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

Article 7 paragraph 1 of the Code of Administrative Procedure in this regard provides that the persons concerned (including environmental organisations) shall enjoy equal treatment in the exercise of their procedural rights. The administrative authority shall act impartially towards the persons concerned and shall require all persons concerned to fulfil their procedural obligations equally. The authorities are obliged to provide them with the same opportunities to exercise their rights and to provide them with information on their procedural rights and obligations to the extent necessary not to suffer harm in the proceedings.

According to Article 36 of the Code of Administrative Justice the participants have an equal position in the proceedings. The court is obliged to provide them with the same opportunities to exercise their rights and to provide them with instructions on their procedural rights and obligations to the extent necessary so that they do not suffer harm in the proceedings. In the decision of the Supreme Administrative Court of 6 December 2007, No. 2 Afs 91/2007-90, the Court found that if the court decides on the merits of the case without hearing, it is necessary that the parties have the opportunity to meet all the documents on which the court will base its decision.

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

According to Article 6 of the Code of Administrative Procedure, the administrative authorities have to proceed without undue delay. If the administrative authority does not act within the statutory period (usually up to 30, 60 or 90 days, in various procedures), or within a reasonable period if the statutory period is not specified, the party to the administrative proceedings can ask for a measure against inactivity and subsequently file a lawsuit to the administrative court.

As described in section 1.7.2, points 5) and 6) submission of a lawsuit against a decision of an administrative authority generally does not have a suspensive effect. The court may grant a suspensive effect to the lawsuit if executing the decision would cause the applicant “incomparably more serious” harm than that which could be caused to other persons by granting the injunctive relief and issuing injunctive relief would not be contrary to an important public interest. The Constitutional Court stated that the court has to deal with the application for suspensive effect of the administrative action before an authorised project against which the complainant was appealing has already been irreversibly realised (see Decision of the Constitutional Court of 6 May 2015, No. II. ÚS 3831/14). The Supreme Administrative Court stated repeatedly that the lawsuits of the public concerned in environmental matters should normally be granted suspensive effect, so the legal protection is not only formal but can also have a practical meaning (see e.g. judgement of 28 August 2007, No. 1 As 13/2007-63).

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 administrative body can, at the request of a party or ex officio before the end of the appeal, proceedings, order injunctive relief if the conditions of the parties need to be adjusted provisionally or if there is a fear that enforcement of a final decision will not be possible (Article 61 Code of Administrative Procedure).

The administrative courts may further issue a preliminary injunction on the basis of Article 38 of the Code of Administrative Justice where there is a need for an interim arrangement of the relationship between the parties. There must be a threat of a “serious harm”, but it is not necessary for it to be the claimant personally who is under this threat. The court may order to the parties to the dispute, or even third parties, to do something, abstain from something or endure something.

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 court fees for individual kinds of administrative lawsuits are based on a flat rate regardless of the value of the case; see regulation in Act No. 549/1991 Coll. A fee for a lawsuit to review an administrative decision is CZK 3,000 (approx. EUR 125), the same fee applies for a cassation complaint. Fee for a lawsuit against a measure of a general nature is CZK 5,000 (approx. EUR 200) see section 1.7.3 for more details.

The general rule that the losing party pays applies; however, the case law of the administrative courts upholds the general principle that the costs of legal representation are not eligible costs for the administrative authority, as they employ their own lawyers who can represent them in the dispute. This case law also admits some exceptions.

1.5. Executive regulations and/or generally applicable legally binding normative instruments used to implement EU environmental legislation and related EU regulatory acts[5]

Examples of this form of acts are the Waste Management Plan of the Czech Republic (issued in the form of a government regulation) according to Act No. 185/2001 Coll. on Waste, Regulatory Order according to Act No. 201/2012 Coll., Air Protection Act, or designation of Areas within the Natura 2000 system declared according to Act No. 114/1992 Coll., on Nature and Landscape Protection.

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 the act is adopted in the form of a legal regulation (normative instrument), the only possibility for direct judicial review is before the Constitutional Court and only specific subjects (the Ombudsman, the Ministry of the Interior, a group of at least 25 Deputies or a group of at least 10 Senators) are entitled to initiate this review.

For the public (both individuals and NGOs), it is only possible to suggest annulment of a legal regulation together with a constitutional complaint against a specific decision in the case where the regulation was applied. The NGOs (like anyone else) cannot go to Constitutional Court directly, but only after they have exhausted all other remedies and claim that the courts or other bodies which dealt with their case interpreted the law in conflict with the Constitution.

If the Constitutional Court finds that a legal regulation has been issued in violation of the Constitution or the law, it will annul it. Pursuant to Article 89 (2) of the Constitution, enforceable decisions of the Constitutional Court are binding on all bodies and persons.

Pursuant to Article 95 (1) of the Constitution the general courts may refuse to apply a sub-legal regulation if it is against the law. The court cannot annul this regulation, but only choose not to apply it in a specific case.

The public can participate in the legislative process at the preparatory stage, in a form of consultative participation. However, this is not regulated by law and is not possible in all cases.

The requirements for the effectiveness of access to the national courts in environmental matters, as formulated in CJEU case law, have not been directly applied by the Constitutional Court in reviewing the normative acts.

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 kind of “administrative review” of legal regulations in the Czech legal system. However, the Ministry of the Interior supervises the normative instruments of municipalities and regions. The Ministry of the Interior may call on the municipality to remedy or file a complaint to the Constitutional Court

If the Constitutional Court reviews the legal regulation, this review covers both the substantive and the procedural legality of the regulation. The Constitutional Court examines whether the regulation was adopted within the limits of the competence of the respective authority and in a manner prescribed by law.

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 usually no possibility to participate in the process of issuing legal regulations and no kind of administrative review. Concerning judicial review of the normative acts before the Constitutional Court, it is necessary for members of the public to exhaust all other remedies in the case where the act was applied and claim that the courts or other bodies which dealt with their case interpreted the law in conflict with the Constitution, or that the act itself is contrary to the Constitution.

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 entities which are entitled to initiate a judicial review of legal regulations (normative acts) before the Constitutional Court are not obliged to participate in consultation procedures.

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?

With regard to the review of the legal regulations (normative acts) before the Constitutional Court, injunctive relief is not available. However, in some cases the Constitutional Court may annul the statutory instrument with retroactive effect.

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?

Access to the Constitutional Court is free of charge; it is, however, obligatory to be represented by a lawyer (attorney) and it is necessary to exhaust all other remedies and claims before constitutional compliance. Therefore, the costs of the preceding procedures are relevant (see section 1.7.3 point 1) in this respect).

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[6]?

The obligation of the courts to introduce a preliminary reference (see section 1.3 point 5) applies in every case where EU law is interpreted and it also applies to interpretation of the validity of acts adopted by the EU institutions and bodies. Any party to the dispute can ask the court to make such a reference, but it is for the court alone to decide whether to do so. There is no specific procedure in national law to challenge directly an act adopted by an EU institution or body before the national courts.

[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 the Commission Notice C/2017/2616 on access to justice in environmental matters

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

[3] See findings under ACCC/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.

[4] 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 the Commission Notice C/2017/2616 on access to justice in environmental matters.

[5] Such acts come 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

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

Liability of public administration for failing to act in compliance with legal requirements, including failing to provide effective access to justice, is regulated by the Act No. 234/2014 Coll., on Civil Service, and by the Act no. 40/2009 Coll., Criminal Code. Disciplinary measures according to Act on Civil Service include a written reprimand, deduction of 15% of salary for up to 3 months, removal from the position of senior servant or dismissal from the civil service. Punishment according to the Criminal Code for the abuse of competence of public official include imprisonment, dismissal from the civil service or fine.

In cases of silence of administration, one can also use rules to force the administrative body to act. Rules on silence of administration state that the administrative authorities have to proceed without undue delay. If the administrative authority does not act within the statutory period, or within a reasonable period if the statutory period is not specified, the provisions on protection against inactivity shall apply.

According to Article 80 of the Code of Administrative Procedure, if the administrative authority does not take a decision on the matter within the legal time limit, the superior administrative authority shall take official measures against inaction as soon as it becomes aware of it. After exhausting this administrative remedy, the affected person can, according to Article 79 of the Code of Administrative Justice, file an action with an administrative court.

In case of damage caused by either an illegal decision of the public authority or other unlawful maladministration, the victim can ask for redress before the civil court according to Act No. 82/1998 Coll., on Liability for Damage Caused by the Exercise of Public Authority by a Decision or Incorrect Administrative Procedure. Maladministration includes the silence of administration. An individual may claim damages as well as reasonable satisfaction for non-material harm. The possibility to claim damages according to Act No. 82/1998 Coll. covers claims for failing to provide effective access to justice as well.

When the administrative body does not comply with a judgment which orders it to act in some way, it is a specific case of maladministration. In this case, the above-mentioned measures concerning disciplinary or criminal liability, as well as civil liability for damages, can be applied.

In general, if any person or public authority does respect the court decision, there is a possibility of enforcement of the court decision either by the court itself or by a judicial executor. In cases of non-pecuniary duties, the execution can take a form of either direct enforcement (vacation of a building, clearing of a land, other kind of physical works, depriving of possession of an object etc.) or by imposing enforcement fines.

To find more national information about access to justice in environmental matters, please click on one of the links below:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

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

The Danish Constitution from 1953 does not enshrine a right to a clean environment or healthy environment. Thus, the protection of the environment relies on the relevant legislation at national and EU level and to some extent also case law regarding nuisance etc. The procedural rights of access to courts for individuals and others in relation to administrative decisions by the authorities is established in Sec. 63 of the Constitution. There are no administrative courts in Denmark. However, administrative appeals boards have traditionally provided an alternative option for independent review of administrative decisions within the environmental legislation, primarily the Environment and Food Appeals Board and the Planning Appeals Board. The Energy Appeals Board may also address issues of environmental law, e.g. environmental assessment requirements related to energy facilities. The administrative appeal system in general provides an easily accessible option for access to justice in environmental matters both for individuals and NGOs.

The Danish Parliament (Folketinget) has the legislative powers to adopt environmental legislation. It is a one-chamber system with 179 members of Parliament.

Several ministries have responsibilities relating environmental matters in a broad sense, including issuing executive orders. The Ministry of Environment has the main responsibilities as regards environmental issues, including protection of nature, water, air etc. The Ministry of Climate, Energy and Utilities has responsibilities regarding climate and energy issues as well as water and waste utility regulation. The Ministry for Food, Agriculture and Fisheries has responsibilities regarding general environmental regulation of agriculture. The Ministry of Internal Affairs and Housing holds responsibilities regarding land use planning and the Planning Act and the Building Act, while the Ministry of Transport has responsibilities regarding transport infrastructure. The Ministry of Industry, Business and Financial Affairs has the overall responsibility as regards the secretariat of the administrative appeals boards. The appeals boards, however, operate independently from the Ministry when deciding cases.

2) Constitution

Sec. 63 in the Danish Constitution of 5^th June 1953 establishes that any questions about the limits of public authority can be brought to the courts. It also states that a court case will in general not suspend the administrative decision. However, the court may in specific circumstances grant suspensive effect while the case is pending.

It is not specified in Sec. 63 who can take such cases to a court. This is determined by the standing requirements applied by the courts. The decisive standing criterion is the existence of a legal interest, see below 1.4.

As mentioned above, there are no constitutional rights for protection of the environment in Denmark.

3) Acts, Codes, Decrees, etc.

The main rules on access to justice in environmental matters are to be found in the relevant pieces of environmental legislation. A distinction must be drawn as regards access to the (general) courts and access to the administrative appeal boards. As regards access to courts, the relevant legislation generally establishes a time-limit of 6 months for bringing an appeal to the courts. As regards access to the administrative appeal boards, the legislation generally establishes a time-limit of 4 weeks for bringing an administrative appeal. Furthermore, the relevant legislation specifies what can be appealed and by whom. The main environmental acts include:

Act on Nature Protection: Lovbekendtgørelse nr. 240/2019 af lov om naturbeskyttelse

Act on Planning: Lovbekendtgørelse nr. 1157/2020 af lov om planlægning

Act on Environmental Protection: Lovbekendtgørelse nr. 1218/2019 af lov om miljøbeskyttelse

Act on Environmental Assessment: Lovbekendtgørelse nr. 973/2020 af lov om miljøvurdering af planer og programmer og af konkrete projekter

Act on Environmental Liability: Lovbekendtgørelse nr. 277/2017 af lov om undersøgelse, forebyggelse og afhjælpning af miljøskader (miljøskadeloven)

More general legislation on procedures etc. includes:

Access to courts:

Act on Administration of Justice: Lovbekendtgørelse nr. 938/2019 af lov om retspleje

Access to appeal boards:

Act on Environment and Food Appeals Board: Lov nr. 1715/2016 om Miljø- og Fødevareklagenævnet

- Statutory Order on procedures: Bekendtgørelse nr. 131/2017 om forretningsorden for Miljø- og Fødevareklagenævnet

- Statutory Order on fees for appeals: Bekendtgørelse nr. 132/2017 om gebyr for indbringelse af klager for Miljø- og Fødevareklagenævnet

Act on Planning Appeals Board: Lov nr. 1658/2016 om Planklagenævnet

- Statutory Order on fees for appeals: Bekendtgørelse nr. 108/2017 om gebyr for indbringelse af klager for Planklagenævnet

- Statutory Order on procedures: Bekendtgørelse nr. 130/2017 om udnyttelse af tilladelser, frist for indgivelse af klage, indsendelse af klage til Planklagenævnet og opsættende virkning af klage for visse afgørelser truffet efter lov om planlægning og visse andre love

4) Examples of national case-law

Case law from the Danish courts regarding access to justice in environmental matters is somewhat limited. Some examples as regards access of NGO’s and citizen groups include:

U2012.2572H (Østerild): The Supreme Court case concerned the granting of suspensive effect in a case where an NGO and affected citizens challenged the Act on a national wind turbine test centre (647/2010). The Supreme Court confirmed the ruling of the Western High Court rejecting the granting of suspensive effect based on a balancing of the interest in not postponing the implementation of the law against the interests of the appellants. As regards the right of access, the Western High Court accepted right of access the ad-hoc organization (National Organisation for a Better Environment). The high court made reference to the number of members (more than 200), to objections raised during the parliamentary process, and to the fact that the organization would have had a right to administrative appeal if the test centre had been established by an administrative decision.

U2009.2706H/MAD2009.1612H (Kyndby Huse): The right of appeal of an ad-hoc citizens group (Citizens for Offshore Turbines in Marine Areas on its own and as representative of individual citizens) against the Nature Protection Appeal Board regarding EIA-decisions for two test turbines on land was not disputed, but their claim was unsuccessful (costs: 250,000 DKK). In U2009.1785H, the claim of the organization against the project developer was dismissed as the project was abandoned.

U2005.2143H/MAD2005.537H: The Supreme Court dismissed the claims raised by a citizens group against the Metro Company partly as not addressing an issue of law, and partly as not being sufficiently precise.

MAD2004.1360Ø: A local citizens group claim against the Nature Protection Appeal Board regarding EIA of the Metro project was not granted suspensive effect.

U2001.1594V/MAD2001.539V: The Western High Court acknowledged the right of appeal of the Danish Anglers Association regarding a decision to reintroduce beavers in Denmark.

MAD2003.602Ø: Standing of an ad-hoc local citizens group (Amager against Superficious Malls) was not disputed, but they were unsuccessful in their claim against the Nature Protection Appeal Board regarding plans for a new shopping centre (costs: 50.000 DKK)

U2000.1103H./MAD2000.83H: A claim raised by the Danish Cyclist Association regarding lack of EIA of a road project was successful in the Supreme Court. The standing of the association was not disputed in the case and was not discussed by the courts ex officio.

U1994.780Ø: Greenpeace Denmark was accepted as having a sufficient legal interest in a claim against the Ministry of Transport regarding EIA of the Øresund-bridge project.

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 agreements are only considered 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 may, 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, in accordance with EU law, be directly applicable in the Member States if the provisions are sufficiently clear and precise. Under such circumstances courts and administrative bodies are obliged to apply international agreements directly.

1.2. Jurisdiction of the courts

1) Number of levels in the court system

The Danish court system is a general court system where the courts adjudicate civil, administrative and criminal cases. The court system consists of three levels:

• District courts (24)
• High courts (2)
• The Supreme Court

Since 2007, a case will normally start in a district court with appeal option to the Western or Eastern High Court. A district court may, however, refer cases on matters of principle or more complex issues to the high courts. In such cases, an appeal can be made to the Supreme Court as second instance. Third instance appeals to the Supreme Court may also be accepted in special circumstances by the Appeals Permission Board.

The Supreme Court consists of one president and 17 Supreme Court judges. Court rulings are normally made by a minimum of five judges. The Eastern High Courts consist of one president and 59 judges, whereas the Western High Court consists of one president and 38 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).

2) Rules of competence and jurisdiction

Denmark has a system of ordinary – or general – courts dealing with both criminal and civil cases, including cases challenging administrative decisions. There is no constitutional court and no administrative courts. Consequently, there are no specialised environmental courts in Denmark. There are, however, quasi-judicial administrative appeals boards which, to some extent, are comparable to environmental courts, see further below. In general, it is not a requirement that administrative appeal is exhausted before a case can be taken to the ordinary courts.

3) Specialities as regards court rules in the environmental sector

As regards the general courts, there is no specialisation or use of expert judges in environmental matters.

The administrative appeals boards in the environmental sector have a varying degree of specialisation, including laymen and expert members, see further below 1.3.3.

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

In administrative matters the role of the courts is to oversee the public authorities. This includes judicial review of the procedural and substantive 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.

The courts apply the adversarial principle relying on the claims and arguments brought forward by the parties to the case. In general, they cannot act on their own motion. A court may, however, ask the parties to elaborate on matters that it finds important to the case. In district court cases where a party is not represented by a lawyer, the court may give advice on how the party can inform the case and safeguard his/her interests, cf. Act on Administration of Justice Sec. 339.

1.3. Organisation of justice at administrative and judicial level

1) System of the administrative procedure

Most environmental decision-making rests with the local authorities – the 98 municipalities. In a few areas decisions are made by the relevant minister – in practice by ministerial agencies such as the Environmental Protection Agency (Miljøstyrelsen), the Coastal Authority (Kystdirektoratet) or the Energy Agency (Energistyrelsen).

Such administrative decisions can in general be appealed to the administrative appeal boards – or to the courts. In case of administrative appeals, the appeal will in most cases first be presented to the authority who made the decision allowing a reconsideration of the decision.

It is also possible to submit a complaint to the Parliamentary Ombudsman. This is, however, only possible if other options of administrative appeals, e.g. to the appeals boards, have been exhausted. If a decision has been made by a ministerial agency it might in some specific circumstances be possible to make a complaint to the minister, in particular regarding access to environmental information that are not related to administrative decisions.

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

An appeal of an administrative decision to the general courts must in general be made within 6 months. This time-limit is stipulated in the relevant environmental legislation. An appeal must be submitted in writing in accordance with the rules laid down in the Act on Administration of Justice.

It is difficult to estimate when one can expect a final ruling. The time frames may vary from one district court to another. In 2019 the average time frame in civil cases in the Supreme Court was 11 months, while the time frames in the high courts depend upon whether it is first instance cases or appeal cases.

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

As mentioned above, there are specialised administrative appeals boards in Denmark. They do not belong to the court system, but are established as independent appeals boards within the administrative system. Since February 2017 the administrative appeals boards have a joint secretariat in the Appeals Board Agency (Nævnenes Hus) organisationally placed within the Ministry for Industry, Business and Financial Affairs (Erhvervsministeriet). The composition of the boards varies depending upon the types of cases and the relevant legislation.

With effect from February 2017, as a consequence of a reshuffle of the Government, the former Nature and Environment Appeals Boards was divided into two separate appeals boards: the Environment and Food Appeals Board and the Planning Appeals Boards.

Administrative decisions made under a broad range of environmental legislation, including the Environmental Protection Act, the Nature Protection Act and the Environmental Assessment Act can be made to the Environment and Food Appeals Board. Whereas decisions under the Planning Act can be appealed to the Planning Appeals Board. The relevant legislation determines who can appeal and which decisions can be appealed to the boards. In general, there is broad access to appeal by individuals as well as NGOs.

The Environment and Food 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 board has two distinct configurations:

• a lay configuration consisting of a chairman (qualified as judge), two high court judges and four lay members appointed by Parliament, or
• an expert configuration consisting of a chairman (qualified as judge), two high court judges and (in general) two experts. There are eight different expert “groups” depending upon the topic of the case, e.g. industry, soil pollution, groundwater and water supply, freshwaters, marine waters, agriculture, food or veterinary topics.

The Planning Appeals Board has one configuration consisting of a chairman (qualified as judge), one high court judge, five expert members and four lay members.

For both boards, the chairman and the expert members are appointed by the Minister for Business for a period of four years. The lay members are appointed by the Parliament, whereas the two high court judges are appointed by the high courts among their judges.

In the Environment and Food Appeals Board the lay board mainly deals with appeals related to nature protection, while the expert board mainly deals with appeals related to pollution issues. The board has a fairly wide discretion to delegate decision-making to the chairman. It is possible that in special cases the board configurations may join into one combined board. It is also possible that an appeal case in special circumstances may be transferred from one configuration to another.

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 appeals boards, or the general courts. Access to the appeals boards is easy and cheap. An appeal must 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 must forward the appeal to the Appeals Board together with relevant information.

A minor fee (2017-: 900 DKK (approx. 120 EUR) for individuals and 1.800 DKK (approx. 241 EUR) for organisations and businesses) 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, but the digital complaints system must be used. The appeals boards must provide the necessary information for making a decision in the case. Unless explicitly limited by law the appeals boards can make a full review of the administrative decision, including matters of legality as well as discretionary matters (merits). The appeals boards may use cassation and return an invalid decision to the authority or, in the case of a full review, replace the decision with a new decision on the merits (reformatory). A decision of an appeals board can be brought to the courts normally within 6 months.

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

As mentioned above, an appeal against an administrative decision by local authorities or ministerial agencies can in general be made either to the administrative appeals boards or to the general courts. In some circumstances access to administrative appeals is cut off, including in general supervisory decisions on environmental matters as well as some specific types of decisions, e.g. wastewater plans. A decision by the administrative appeals boards can be appealed to the general courts – normally to the district courts and with the option for a second appeal to the high courts. Third instance appeals to the Supreme Court may also be accepted in special circumstances by the Appeals Permission Board. A district court may refer cases on matters of principle or more complex issues to the high courts. In such cases, an appeal can be made to the Supreme Court as second instance.

The illustration below illustrates how administrative decisions made by local authorities or ministerial agencies can be appealed in general.

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

In general, there are no extraordinary ways of appeal in the Danish court system, apart from the option of applying for a third instance appeal in the Supreme Court. The parties of a court case can make a request for a preliminary reference to be made to the Court of Justice of the European Union or the court can make a preliminary reference on its own initiative in accordance with Art. 267 TFEU. If a request for preliminary reference is made by the prosecutor in a criminal case or by a state authority in a civil case a statement from a special committee within the Ministry of Justice will be obtained.

The Danish appeals boards, including the Environment and Food Appeals Board, do not consider themselves capable of making preliminary references to the CJEU – primarily due to the members (apart from the high court judges) being appointed by the minister for a limited period of four years), see also the ruling of the CJEU in C-222/13 TDC.

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

The Act on Administration of Justice establishes a system for mediation within the court system upon the request of the parties of a civil case. In such cases, the court will offer mediation as an alternative to an ordinary court procedures if the court considers that the case is suitable for mediation.

Apart from the general mediation option, there are no specific out of court solutions in the environmental area.

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

Apart from the option of appeal to the administrative appeals boards 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 Appeals Agency (Ankestyrelsen). 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 Appeals Agency 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 Agency determines whether a complaint should lead to further investigations. It may review the legality of acts or omissions. The Agency may also 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 Appeals Agency, 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. In some circumstances a complaint can be made to a superior authority, e.g. to the minister regarding omissions of a ministerial agency.

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 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. This does not, however, exclude standing for organizations. There is no actio popularis in Denmark giving everybody access to courts. The courts may determine on a case by case basis whether a claimant has a sufficient legal interest. It is generally accepted that the group of persons and NGOs that have a right to administrative appeal will also be considered to have a sufficient legal interest to bring the case to the courts.

In relation to the administrative appeal system in environmental matters, the relevant legislation specifies who has access to appeal to the administrative appeals boards. The legislation was amended and to some extent streamlined in 2000 with the purpose of implementing the Aarhus Convention (Act no. 447/2000). The legislation provides access for both individuals and certain NGOs, in particular ENGOs. In general, the rules on access to administrative appeal do not distinguish between the public concerned and the public in general. Rather, it relies on the term of “legal interest” which may be interpreted differently depending upon the topic of case.

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

The rules on who has access to administrative appeal differ from one area to another. It is specified in the relevant sectoral legislation who has access to administrative appeals and what decisions that can be appealed, see further below. There are, however, no specific rules as regards who has access to the courts.

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.)

Legal standing for individuals in the administrative appeal system may range from a broad understanding of the concept of “legal interest” in matters regarding physical planning in the Planning Act, to a narrower understanding in the Environmental Protection Act of having “an individual, significant interest,” whereas the Nature Protection Act for individuals only grants access to administrative appeal to the addressees (or others pertaining to a status as a party to the case).

Following the implementation of the Aarhus Convention in 2000, most environmental legislation stipulates the right of administrative appeal for NGOs. In general, nationwide NGOs having protection of nature and environment or recreational interests as their main purpose have access to administrative appeal. It is a requirement that the organization can present bylaws that document such a purpose.

Generally, local organizations or groups also have access to administrative appeal, however, with some variations from one area to another. According to the Environmental Protection Act local organizations must have requested to be notified about decisions in order to have access to administrative appeal. This is not a requirement according to the Nature Protection Act and the Planning Act.

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 regarding environmentally harmful activities access to administrative appeal as well as to the courts on equal terms.

As mentioned above, legal standing in the court procedures is determined by the concept of legal interest on a case by case basis. In most cases the same circle as those having a right of access to administrative appeals will also have legal standing before the courts, both as regards individuals and NGOs.

In general, the courts apply a fairly liberal approach to groups and organizations representing individuals and generally accept such groups as having a sufficient legal interest depending upon the individual interests being represented. Whether foreign NGOs can raise a claim in the courts will most likely depend upon whether the NGO is affected or represents a sufficient legal interest in the case. Group or class actions on behalf of the interests of a group of persons have been possible since 01/01/2008 according to the Act on Administration of Justice Chap. 23a.

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

According to the Act on Administration of Justice Sec. 149, the court language is Danish, which means that documents etc. should be elaborated in Danish unless both parties and the court accepts a foreign language. Oral negotiations etc. will be translated if needed or requested, however, costs may be placed on the parties of the case in civil cases. Use of Nordic languages should in general be accepted.

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?

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. There are no restrictions on what kind of evidence may be presented. However, the court will reject irrelevant evidence.

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.

As public authorities, the administrative appeals boards have a duty to ensure that sufficient information is available for making a decision – the adversarial procedure. The boards may seek expert opinions. Expert opinions etc. cannot be requested by the parties in an administrative appeals case.

2) Can one introduce new evidence?

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. Prior to the court negotiations, the court may 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.

In the administrative appeals boards there are no restrictions, in principle, as regards the supply of new relevant information to the boards.

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

A party to a court case may request expert opinions and also suggest specific experts, but it is the court that makes the final decision on whether to call an expert and who.

There are no official lists, but the Danish Technological Institute maintains a list of potential experts on technological matters.

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

Expert opinions are not binding on the court.

3.2) Rules for experts being called upon by the court

The court may call upon experts based on the request of a party, see below.

3.3) Rules for experts called upon by the parties

If a party requests an expert opinion he/she should make a suggestion for the questions to be asked. The opposing party will have the opportunity to comment on the suggestion and the court then approves the questions and appoints an expert. It is possible for the parties to pose additional questions to the expert and also to request another expert opinion on the same issue subject to approval by the court.

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

In general, there are no procedural fees related to expert opinions. The costs of the expert opinion will normally be borne by the party who has called for expert opinions as determined by the court and they should do so when the costs occurs. The court may, however, distribute the costs between the parties.

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

In general, legal representation is not compulsory in administrative appeal or judicial procedures in environmental matters. In administrative appeals, the appeals 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, e.g. from law firms that are either specialized or have specific and documented expertise in environmental matters. Also, the court may in some circumstances request legal representation if this is deemed necessary.

1.1 Existence or not of pro bono assistance

It is possible to apply for legal aid according to the Act on Administration of Justice. Normally, you have to fulfil certain criteria regarding maximum income (as of 01/01/2020: DKK 336,000 for a single income and 427,000 for a couple). In addition, your case needs to be reasonably justified. In environmental matters it is possible that legal aid may 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 legal aid 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.

1.2 If pro bono assistance does exist, what are the main elements of the procedure to receive it

Applications for legal aid must be submitted to the Department of Civil Affairs.

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

A list of lawyers is available at advokatnoeglen.dk, where it is possible to select specialised lawyers within environmental matters.

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

There are no NGOs specialized in giving legal advice to private individuals regarding administrative appeals or court cases in environmental matters. Some Danish NGOs have significant expertise in environmental cases – most often in administrative appeals, e.g. the Danish Society for Nature Conservation, Danish Ornithological Association, Danish Outdoor Council and the Danish Anglers Association. Only few environmental court cases are initiated by NGOs, but they often use the administrative appeals system.

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

Greenpeace, WWF, NOAH/Friends of the Earth

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).

For administrative appeals, time limits may be set in the legislation. In most environmental legislation, a time limit of four weeks from the decision is set for appeals to the appeals boards.

The general time limit for to challenge an administrative environmental decision in court is 6 months. This time limit is stipulated in most environmental laws.

Regarding the time limit for appeals within the judicial system, the regular time limit of appeal from a district court to one of the high courts is four weeks. A decision by one of the high courts can be appealed to the Supreme Court within eight weeks.

In regard to the extraordinary appeal to the Supreme Court as third instance, this can only be granted in special circumstances, see above 1.3.4.

2) Time limit to deliver decision by an administrative organ

In general, there are no time limits for the administrative authorities to deliver a decision in environmental matters, apart from a general expectation to deliver a decision within reasonable time. One exception is the time limit of 90 days as regards screening decisions in EIA matters regarding so-called Annex II projects.

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

It is possible to challenge first level administrative decisions directly before court, see above 1.3.2.

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

The ruling of the court must be given as soon 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 Sec. 219, see also above 1.3.2 on the average time frames in civil cases.

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

In judicial procedures different time limits apply mainly for the parties. As a general rule, it is the court who decides the different time limits and ex officio set out the progress of the case.

In civil cases, after the submission of an application a deadline of two weeks will normally be set for the defendant to submit a reply. The court will then decide whether a preparatory meeting will be held. The court will also decide whether further written statements should be submitted, including a description of the documents and evidence to be submitted during the main negotiations.

The court decides when the preparation ends. However, if this is not decided by the court, the preparatory meetings will end four weeks before the main negotiations in court start.

1.7.2. Interim and precautionary measures, enforcement of judgments

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

Regarding administrative appeals to the Environment and Food 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 will not suspend the decision. The Appeals Board may, however, decide otherwise when an appeal has been submitted.

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

There are very few explicit rules on injunctive relief, e.g. Sec. 53 of the Environmental Assessment Act regarding administrative appeals.

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?

There are very few explicit rules on injunctive relief, e.g. Sec. 53 of the Environmental Assessment Act regarding administrative appeals.

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

This will depend upon whether the appeal has suspensive effect or not, see above section 1.7.2.1.

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

An appeal to the courts does not automatically suspend the administrative decision, as stated in the Danish Constitution Sec. 63. However, due to the particular circumstances of a case, the court may grant suspensive effect, which can be on the basis of a request from a party. In general, the courts are 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. 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.

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?

It is possible to request a court order to prevent action in a civil (private) lawsuit, according to the Act on Administration of Justice Ch. 40. A (temporary) court order may be conditional upon the payment of a financial deposit. The order can be subject to a separate appeal.

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.

Fixed court fees apply within the court system for filing a case. The standard fee is DKK 500 (67 EUR). If a case has a value of more than 50,000 DKK (6,700 EUR) an additional fee of 250 DKK + 1.2 % of the value above 50,000 DKK (6,700 EUR) will apply. The maximum fee is 75,000 DKK (10,000 EUR) or 112,500 DKK (15,100 EUR) in the Supreme Court. In cases regarding administrative decisions, the maximum fee is 2,000 DKK. The fees apply in the preparatory phase after submission of an application. They will apply again if the case reaches the main negotiations. If a case is appealed, new fees will apply, including the standard court fee (750 DKK (100 EUR) in the high courts and 1,500 DKK (200 EUR) in the Supreme Court) and fees calculated on the basis of the value of the case if the value is above 50,000 DKK. Expert fees and lawyer fees will be determined by the court based on certain standard fees.

Within the administrative appeals system a standard fee of 900 DKK (120 EUR) for individuals and 1,800 DKK (241 EUR) for NGOs and companies apply in most cases. The fee is reimbursed if the claim is wholly or partially successful or if the appeal is rejected, see statutory order 132/2017 regarding the Environment and Food Appeals Board.

In general, the administrative appeals system is intended to fulfil the obligations of the Aarhus Convention to ensure fair, equitable, timely and not prohibitively expensive access to review of administrative decisions by independent appeals board. In situations where there is no access to administrative appeals, it may have been specified either in the legislation or in the preparatory works that the courts must ensure that costs are not prohibitively expensive. This may also be the case even if there is access to administrative appeals, see e.g. the Act on Environmental Assessment Sec. 54.

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

The courts may request a deposit if they grant suspensive effect or injunctive relief. There are no additional procedural costs apart from the general court fees. There are no deposit requirements within the administrative appeal system.

3) Is there legal aid available for natural persons?

Within the court system it is possible to apply for legal aid according to the Act on Administration of Justice, see 1.6.1.1.

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?

Individuals, but under special circumstances also groups or organizations, may apply for legal aid on the basis of special circumstances according to the Act on Administration of Justice, see 1.6.1.1 above.

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

Private insurances often include coverage for some costs.

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

In general, the ‘loser pays principle’ applies in court cases, cf. Act on Administration of Justice Sec. 312. The court may, however, in special situations decide that the losing party is not required pay the costs of the opponent, e.g. if the opponent is a public authority, or the case addresses a matter of principle. But there is no general exemption from ‘the loser pays principle’ in cases against public authorities and there are several examples of private claimants being ordered to pay the costs of public authorities.

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?

According to the Act on Court Fees (Consolidated Act no. 1252/2014), court fees do not apply to those who are granted legal aid under the Act on Administration of Justice, or those who have a private insurance cover and fulfil the criteria for being granted legal aid.

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?

The courts provide general information on access to the courts and a digital platform for filing a lawsuit is available together with further guidance. The administrative appeals boards provide information on how to submit an administrative appeal in environmental matters. In general, a digital platform must be used for administrative appeals. Furthermore, the Environmental Protection Agency provides information on access to justice in environmental matters.

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

In general the applicant can request information from the relevant authorities.

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

There is no specific active dissemination on access to justice within sectoral rules. However, the environmental acts in general provide some details on administrative appeal procedures, e.g. Act of Environmental Assessment Sec. 52.

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

It is mandatory to provide information on appeal options in an administrative decision. If there is no option for administrative appeals, a decision must provide information on access to courts. There is no requirement to provide information regarding legal aid, in a decision or in a judgement.

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

There are no formal rules on translation etc. in administrative procedures and decisions. It does, however, follow from the general obligation to provide necessary guidance to the citizens according to the Act on Administrative Decisions (Forvaltningsloven), that an authority has certain obligations to provide translations or interpreters if this is necessary.[1]

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)

The rules on EIA are primarily implemented in the Act on Environmental Assessment (consolidated Act 973/2020). The Environmental Assessment Act stipulates that screening decisions can be appealed within four weeks to the Environment and Food Boards of Appeal (or the Energy Appeals Board). Anyone with a legal interest as well as NGOs representing at least 100 members can submit an appeal to the administrative appeals boards.

It is also possible to bring an appeal to the courts. In particular, this might be relevant in cases that are subject to specific rules such as state road or rail projects where there is no administrative appeal regarding EIA of such projects. In other cases, administrative appeals may be cut off.

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

Due to the fact that scoping is not a final administrative decision but a procedural decision, there are no specific rules on administrative appeals in the Environmental Assessment Act in relation to scoping. This does not, however, hinder appeals to the courts.

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

There is a general deadline of four weeks to challenge administrative decisions according to the Act on Environmental Assessment. This applies to screening decisions as well as the decision to grant a permit for the project. With respect to bringing a case to the courts there is a deadline of 6 months.

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

The final EIA permit can be subject to administrative appeals in full by individuals as well as NGOs, including foreign NGOs. Anyone with a legal interest and also environmental NGOs representing at least 100 members may bring an appeal. It is also possible to challenge an EIA permit in the courts.

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

A decision to grant a permit under the Act on Environmental Assessment can be appealed in full to the administrative appeals boards, including procedural and substantive legality as well as the merits of the case. As regards the courts a full review can be carried out, but in general the courts will restrict themselves and not review the merits of a case.

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

See above, section 1.8.1.3.

7) 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 legal requirement on the exhaustion of administrative appeals before bringing a case to the court.

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?

In order to have standing before the national courts it is not necessary to participate in the public consultation phase of the administrative procedure.

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

This is not specified in the Danish legislation. The notion is in general associated with the administrative appeal system providing a broad and easy access to review of administrative decisions.

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

This is not specified in the Danish legislation.

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?

According to Sec. 53 of the Environmental Assessment Act, the Environment and Food Appeals Board may issue an order to stop building or construction works. In general an appeal to the administrative appeals boards will not suspend a screening or permit decision unless the appeals board decides otherwise, cf. the Act on Environmental Assessment (Sec. 53). The appeals board may also order a project to be stopped if this is deemed necessary, cf. Sec. 53. Bringing a case to the court will not suspend the decision either unless the court decides otherwise.

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

The IED rules are primarily implemented in the Danish Act on Environmental Protection (Consolidated Act no. 1218/2019). Most decisions under the Environmental Protection Act can be appealed to the Environment and Food Appeals Board. The rules on administrative appeals in the Environmental Protection Act apply in parallel to the rules in the Environmental Assessment Act if separate decisions are made. An IED permit will, however, normally replace an EIA permit.

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?

Final IED decisions can be appealed to the appeals board within four weeks from the decision. Anyone with an individual and significant interest in the case can appeal the decision. ENGOs as well as certain specific organisations can appeal decisions. Local ENGOs can also appeal decisions if they have requested to be informed about such decisions.

Decisions determining that a permit is not required for the establishment or amendment of certain large-scale installations, including IED activities, can also be appealed to the Environment and Food Appeals Board, cf. Statutory Order 1534/2019. Supervisory decisions regarding baseline reports can also be appealed, but not decisions regarding baseline reports as part of an application process, cf. Statutory Order 1534/2019 Sec. 56.

There are no specific rules regarding judicial review by the courts apart from the general rule that appeals to the courts can be made within 6 months from the decision.

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

See above 1.8.2.2. Otherwise there are no specific screening rules related to IED projects apart from the rules on EIA, see above.

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

See above 1.8.2.2. Otherwise, there are no specific scoping rules related to IED projects apart from the rules on EIA, see above.

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

See above 1.8.2.2.

6) Can the public challenge the final authorisation?

In order to appeal a final permit according to the Environmental Protection Act to the appeals board, it is necessary to demonstrate an individual and significant interest or to be an NGO. There is no right of administrative appeals for the public as such. The courts are likely to set similar requirements for standing.

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 appeals board can make a full review of a permit, including procedural and substantive legality as well as the merits of the case. The appeals board can also review the scientific accuracy, request further information or call on additional expert advice. In general it is not possible to challenge omissions, e.g. decisions not to use the supervisory powers within the administrative appeal system. However, such issues can be brought to the supervisory authority (Appeal Agency)

As regards the courts, a full review can be carried out but in general the courts will restrict themselves and will not review the merits of a case. A court cannot act on its own motion.

8) At what stage are these challengeable?

See above, 1.8.2.2.

9) 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 requirement of exhausting administrative review procedures prior to bringing a case to the courts.

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?

There are no requirements of prior participation in order to gain standing before the courts. The general standing requirement of an individual and significant interest applies.

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

This is not specified in the Danish legislation. The notion is in general associated with the administrative appeal system providing a broad and easy access to review of administrative decisions.

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

There is no specific implementation of the notion “timely” into national legislation apart from the access to administrative appeals.

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?

An administrative appeal to the appeals board of a permit will normally not suspend the decision unless the appeals board decides otherwise. Taking a permit into use during an appeal case is, however, at the responsibility of the operator. There are no specific rules on injunctive relief.

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

See above 1.7.4.

1.8.3. Environmental liability[2]

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?

Specific rules on appeals in relation to environmental liability are laid down in the Environmental Liability Act. The Act stipulates access to administrative appeals by anyone with an individual and significant interest as well as environmental NGOs. Local NGOs safeguarding the environment and nature as well as recreational interests also have access to administrative appeals. Those who have a right of administrative appeal also have a right to request a decision on whether there is an environmental damage under the relevant sectoral laws, e.g. the Environmental Protection Act.

There are no specific rules on access to review by the courts, on the general rules see above 1.4.

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

An administrative appeal must be submitted within four weeks from the decision or public announcement.

An appeal to the courts must be submitted within 12 months from the decision or public announcement of the decision.

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

Those who have the right of administrative appeal may also request action from the authorities, cf. Act on Environmental Liability Sec. 36 and the relevant sectoral laws. The request must be accompanied by relevant information to support the request, e.g. scientific information.

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

No, see above 1.8.3.2.

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)?

The competent authority must inform the entitled persons of a draft decision and set a deadline of at least 4 weeks to comment on the draft decision, cf. Act on Environmental Liability Sec. 38.

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 right to request action also applies in cases of imminent threat of damage.

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

In most cases, the local authorities will handle the initial stages according to the relevant legislation. If there is environmental damage as defined in the legislation the case will be transferred to the Minister for Environment and Food. In practice cases will be handled by the Environmental Protection Agency.

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

The MS does not require that the administrative review procedure be exhausted prior to recourse to judicial proceedings.

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?

The Act on Environmental Assessment includes a specific Section 38 on transboundary effects and the obligations to provide information to other countries. There are also provisions to ensure information to potentially affected countries in case of environmental damages, e.g. Environmental Protection Act Sec. 73g. There are no specific rules on access to justice for e.g. foreign NGOs. Thus, the general rules will apply.

2) Notion of public concerned?

The Act on Environmental Assessment defines the public as including the broad notion of the public as well as the public concerned. This is also relevant in relation to cross border hearings.

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)?

There are no special rules on appeals for foreign NGOs. The general rules for administrative appeals as well as judicial review etc. apply, see above 1.4.3.

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)?

There are no specific rules regarding standing of individuals. The general rules for administrative appeals as well as judicial review applies, see above 1.4.3.

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

According to the Act on Environmental Assessment, information on potential transboundary effects must be provided regarding draft plans or programmes as well as environmental impact statements for EIA projects before a permit is granted. Information will be provided to the authorities of the affected state.

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

A reasonable timeframe must be established for submission of comments to draft plans. For environmental impact statements, the interpretation is normally 8 weeks, which is the same time limit for public consultation in Denmark. With effect from 1 January 2021, the timeframe for cross border consultations has, however, been set at minimum of 30 days. The general timeframes apply for standing in relation to administrative appeals or judicial review.

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

There are no specific rules on provision of information on access to justice. The information will be provided in the same way as nationally.

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

See above 1.7.4.5.

9) Any other relevant rules?

There are no other relevant rules.

[1] Guidance on the Act on Administrative Decisions.

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

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?

As mentioned in section 1.3., the rules on standing for individuals and NGOs are to be found in the relevant pieces of environmental legislation in relation to administrative appeals to the appeals boards, e.g. the Environment and Food Appeals Board and the Planning Appeals Board. Standing for individuals may vary from a broad access e.g. in planning issues to a narrower requirement of significant and individual interest in pollution cases. Regarding nature protection issues, neighbours will normally not have standing. Standing for NGOs is generally broad including NGOs safeguarding environmental, nature protection or recreational interests. Also local NGOs will normally have access to administrative appeals although with some variations. In general there is a four-week deadline for bringing an administrative appeal to the appeals boards.

As regards standing for the courts, there are no specific rules apart from the general standing requirement of having a significant and individual interest. However, the courts will normally accept standing for those individuals and NGOs that have access to administrative appeals, and perhaps even a broader circle. There is generally a six-month deadline for bringing an administrative decision to the court. In general, standing before the courts does not appear to be interpreted narrowly, but there are only a limited number of court cases.

In general, the effectiveness of access to the administrative appeals boards is considered to be quite good. Considering the very limited number of court cases brought by NGOs, court procedures are unlikely to be regarded as an effective option, most likely due to potential costs of a court case.

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?

For administrative appeals, there is in general a full review by the appeals boards unless otherwise specified. This includes a review of the procedural and substantive legality of administrative decisions as well as the merits. In planning matters, the review by the Planning Appeals Board is restricted to matters of legality, including procedural as well as substantive legality, but not the merits (or discretionary) parts of a planning decision.

For judicial review by the courts there is in principle a full review, but the courts will be reluctant to review the merits of a case.

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 in general no requirement of exhaustion of administrative review procedures.

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.?

In order to have standing before the national courts it is not necessary to participate in the public consultation phase of the administrative procedure.

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

There are no grounds/arguments precluded from the judicial review phase.

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

Ensuring fair and equitable access to review of administrative decisions is primarily ensured through the administrative appeal system to the administrative appeals boards, see e.g. above 1.7.3

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

There is no specific implementation of this notion in Danish legislation.

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 rules on suspensive effect and injunctive relief vary from one sector to another in relation to administrative appeals. In general, appeals of plans or permits will not have suspensive effect. Appeals of exemptions granted according to the Nature Protection Act will, however, have suspensive effect, unless otherwise determined by the appeals board. In relation to judicial review by the courts, the general rule is that an appeal will not have a suspensive effect.

There are very few explicit rules on injunctive relief, e.g. Sec. 53 of the Environmental Assessment Act regarding administrative appeals.

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 on costs and loser pays regarding court review apply, see above 1.7.3. In situations where there is no access to administrative appeals, it may have been specified either in the legislation or in the preparatory works that the courts must ensure that costs are not prohibitively expensive.

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[2]

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 Act on Environmental Assessment provides for access to administrative appeals regarding screening decisions and decisions on environmental assessments of plans and programmes. In general, the Act refers to the administrative appeal options according to the relevant legislation under which the plan or programme is adopted. If there are no administrative appeal options under the relevant legislation, then there will be access to appeal to the Environment and Food Appeals Board, cf. Act on Environmental Assessment. There is no access to administrative appeals for plans and programmes adopted by acts of Parliament.

Individuals having a legal interest have access to administrative appeals as well as nationwide NGOs safeguarding environmental and nature protection interests or other land use interests. An appeal must be submitted within four weeks from the screening decision or environmental assessment decision.

There are no specific rules on access to judicial review in matters covered by the SEA Directive, apart from a six-month deadline.

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?

The scope of administrative review and judicial review will follow the rules in the relevant legislation. However, it will normally cover both procedural and substantive legality. In some circumstances, e.g. regarding river basin district plans, administrative appeal is restricted to issues regarding the adoption of the plans only.

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 requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures.

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.?

In order to have standing before the national courts it is not necessary to participate in the public consultation phase of the administrative procedure.

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?

There are no specific rules on the suspensive effect or injunctive relief in relation to SEA matters. In general, administrative appeals regarding SEA will follow the appeal rules of the relevant plan, e.g. the Planning 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 Act on Environmental Assessment stipulates that in court cases the court must ensure that costs are not prohibitively expensive. Otherwise, the general rules on costs etc. apply, see above 1.7.3.

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[3]

There are no specific rules for this type of plan in Denmark. The Act on Environmental Assessment applies a very broad scope for any type of plans or programmes, including informal plans or programmes. So, we refer to the rules above, see 2.2.

1.4. Decisions, acts or omissions also concerning plans and programmes required to be prepared under EU environmental legislation[4]

Plans and programmes required by the EU legislation will fall under the scope of the Act on Environmental Assessment, see above 2.2. There might, however, be some specific rules in particular regarding the scope of review in administrative appeals of such plans, e.g. for river basin district plans, where only procedural issues regarding the planning process can be appealed. Not all plans or programmes required to be prepared under EU legislation can be subject to administrative appeals, but they can be subject to court review, e.g. action programmes under the Nitrates Directive.

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 Act on Environmental Assessment provides for access to administrative appeals regarding screening decisions and decisions on environmental assessments of plans and programmes. In general, the Act refers to the administrative appeal options according to the relevant legislation under which the plan or programme is adopted. If there are no administrative appeal options under the relevant legislation, then there will be access to appeal to the Environment and Food Appeals Board, cf. Act on Environmental Assessment. There is no access to administrative appeals for plans and programmes adopted by acts of Parliament.

Individuals having a legal interest have access to administrative appeals. The same applies to nationwide NGOs safeguarding environmental and nature protection interests or other land use interests. An appeal must be submitted within four weeks from the screening decision or environmental assessment decision.

There are no specific rules on access to judicial review in matters covered by the SEA Directive, apart from a six-month deadline.

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)?

There is no access to administrative appeal for plans and programmes adopted by acts of Parliament, but they can be brought to the courts.

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?

The scope of administrative review and judicial review will follow the rules in the relevant legislation. However, it will normally cover both procedural and substantive legality. In some circumstances, e.g. regarding river basin district plans, the scope of administrative appeal is restricted to procedural issues regarding the adoption of the plans only.

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 legal requirement on the exhaustion of administrative appeals before bringing a case to the court.

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.?

In order to have standing before the national courts it is not necessary to participate in the public consultation phase of the administrative procedure.

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

There are no grounds/arguments precluded from the judicial review phase. As regards administrative appeals, see above 2.4.3

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

This is not specified in Danish legislation.

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

The notion of ‘timely’ is not specified in Danish legislation. There are, however, some indicative time limits as regards court procedures, see above.

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?

There are no specific rules on the suspensive effect or injunctive relief in relation to SEA matters. In general, administrative appeals regarding SEA will follow the appeal rules of the relevant plan.

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 Act on Environmental Assessment stipulates that in court cases the court must ensure that costs are not prohibitively expensive. Otherwise, the general rules on costs etc. apply, see above 1.7.3

1.5. Executive regulations and/or generally applicable legally binding normative instruments used to implement EU environmental legislation and related EU regulatory acts[5]

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?

In general, there are no options for administrative appeals regarding executive regulations and/or generally applicable legally binding normative instruments. If, however, such executive regulations are to be considered a plan or a programme falling under the scope of the SEA requirements under the Act on Environmental Assessment, the rules on administrative appeals in the Environmental Assessment Act will apply as regards the environmental assessment.

There are no specific rules on judicial review of executive regulations. However, the general rule on judicial review in Sec. 63 of the Danish Constitution also includes access to review of executive regulations and their legality. Thus, executive regulations can be challenged in courts e.g. as regards their legal basis in the relevant legislation and their compliance with EU law.

So, for the following points 1-6 we refer to the general rules described above.

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?

If the Environmental Assessment Act applies, issues of legality (procedural and substantive) can be subject to administrative appeals.

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 legal requirement on the exhaustion of administrative appeals before bringing a case to the court.

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.?

In order to have standing before the national courts it is not necessary to participate in the public consultation phase of the administrative procedure.

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?

There are no specific rules on the suspensive effect or injunctive relief.

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 Act on Environmental Assessment stipulates that in court cases the court must ensure that costs are not prohibitively expensive. Otherwise, the general rules on costs etc. apply, see above 1.7.3.

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[6]?

There are no specific rules on this in Danish legislation.

[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 the Commission Notice C/2017/2616 on access to justice in environmental matters

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

[3] See findings under ACCC/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.

[4] 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 the Commission Notice C/2017/2616 on access to justice in environmental matters.

[5] Such acts come 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

[6]ECLI:EU:C:2017:774

To find more national information about access to justice in environmental matters, please click on one of the links below:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

3. Other relevant rules on appeals, remedies and access to justice in environmental matters

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

The Federal Republic of Germany is a federation and consists of 16 states (“Bundesländer” or just “Länder”). According to the German constitution, the so-called Basic Law (Grundgesetz, GG), state power is divided between the federal level (Bund) and the level of the states (Länder). As a general rule, the constitution assigns state power to the state level under Article 30 GG, Article 70 (1) GG (legislative power) and Article 83 GG (executive power). The federal level has administrative and legislative power only if the constitution expressly says so. In practice, however, the federal level has the largest share of legislative power. Article 73 (1) No. 1-14 GG assigns an important number of exclusive legislative powers to the federal level. In the areas of “concurrent legislative powers” (konkurrierende Gesetzgebung, see Article 74 (1) No. 1-33 GG in conjunction with Article 72 GG) the states (Länder) may legislate as long as and to the extent that the federal legislator has not (or not yet) exercised its legislative powers in the respective area. Article 72 (3) GG enlists certain fields of concurrent legislative powers, in which the states (Länder) may deviate from federal legislation by introducing their own legislation.

Today, most environmental acts in Germany are federal law. Very often these norms transpose EU law. More than two thirds of environmental legislation in Germany can be traced back to EU norms.[1] This is especially the case in the areas of

• air pollution control,
• noise protection,
• waste management,
• chemicals,
• genetic engineering and
• nuclear safety.

Fields of concurrent federal legislation in which the states may deviate from federal legislation according to Article 72 (3) GG include

• management of water resources (except for regulations related to materials or facilities),
• protection of nature and landscape management (except for the general principles governing the protection of nature, the law on protection of plant and animal species or the law on protection of marine life) and
• regional planning.[2]

The German system of administrative justice is designed to guarantee individual rights against the exercise of public power. Claimants generally have to assert a violation of an individual right (“subjective public right” / subjektiv öffentliches Recht) in order to have access to justice, Art. 19 (4) GG.

Public interest litigation is an exception to the general rule. It has to be justified by special statutes. The Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) makes it possible for NGOs (see 1.4), legal and natural persons to appeal against the violation of important environmental provisions.

However, the underlying concept of the Aarhus Convention according to which the “public concerned” should have access to justice in all environmental matters is not made visible by a comprehensive domestic provision.

A green actio popularis has not been established.

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

Since 1994 the German constitution has enshrined environmental protection as a national objective in Article 20a GG. Environmental protection and sustainability have thus gained constitutional status. According to the wording of Article 20a, the state and its legislative, executive and judicial organs are bound to protect the natural foundations of life and animals, also as a responsibility towards future generations.

Still, up until now, Article 20a GG is not understood as a legal provision that grants an individual right to natural or legal persons or associations to initiate legal proceedings in cases concerning environmental matters.

The main constitutional provision on access to justice is Article 19 (4) GG. This is a constitutional guarantee that does not refer to environmental cases specifically. It states: “Should any person’s rights be violated by public authority, he may have recourse to the courts”. The provision thus reflects the traditional rights-based approach to access to justice in Germany.

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

Regarding access to justice in environmental matters, the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO) applies to cases brought by individuals and legal entities. Under § 42 (2) VwGO a person has locus standi if they claim that their rights have been violated by the administrative act or its refusal or omission, unless otherwise provided by law. According to § 43 (1) VwGO the establishment of the existence or non-existence of a legal relationship or of the nullity of an administrative act may be requested by means of an action if the plaintiff has a justified interest in the establishment being made soon (action for a declaratory judgment).

Special provisions on environmental access to justice for NGOs can be found in federal law (Bundesrecht) as well as in the respective laws of the states (Landesrecht).

On the federal level the most important pieces of legislation are:

• the Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) and
• the Federal Nature Conservation Act (Bundesnaturschutzgesetz, BNatSchG).

A number of states (Länder) have included complementary provisions on environmental access to justice in their respective nature conservation legislation, see for example:

• Baden-Württemberg: § 50 of the Nature Conservation Act (Gesetz des Landes Baden-Württemberg zum Schutz der Natur und zur Pflege der Landschaft, NatSchG BW)
• Berlin: § 46 of the Nature Conservation Act (Gesetz über Naturschutz und Landschaftspflege von Berlin, NatSchG Bln)
• Brandenburg: § 37 of the Implementation Act for the Federal Nature Conservation Act (Brandenburgisches Ausführungsgesetz zum Bundesnaturschutzgesetz, BbgNatSchAG)
• Mecklenburg-Western Pomerania: § 30 of the Implementation Act for the Federal Nature Conservation Act (Gesetz des Landes Mecklenburg-Vorpommern zur Ausführung des Bundesnaturschutzgesetzes, NatSchAG MV)
• North Rhine-Westphalia: § 68 of the Nature Conservation Act (Gesetz zum Schutz der Natur in Nordrhein-Westfalen, LNatSchG NRW)
• Rhineland-Palatinate: § 31 of the Nature Conservation Act (Landesnaturschutzgesetz Rheinland-Pfalz, LNatSchG Rheinland-Pfalz)
• Saxony: § 34 of the Nature Conservation Act Saxony (Sächsisches Naturschutzgesetz, SächsNatSchG)
• Thuringia: § 29 of the Nature Conservation Act Thuringia (Thüringer Gesetz zur Ausführung des Bundesnaturschutzgesetzes und zur weiteren landesrechtlichen Regelung des Naturschutzes und der Landschaftspflege, ThürNatG)

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

In Germany there is no Supreme Court in charge of all branches of the court system. The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) and the constitutional courts of the Länder do not function as supreme courts, and they are not part of the regular court system. Their jurisdiction is restricted to constitutional questions, which might, however, also arise in certain environmental cases (e.g. regarding the scope of fundamental rights or of the national objective of environmental protection enshrined in Article 20a GG).

Cases involving environmental issues generally fall within the competence of administrative courts. Therefore, the Federal Administrative Court (Bundesverwaltungsgericht, BVerwG) in Leipzig plays the most important role when it comes to establish jurisprudence in environmental cases because it is the final instance in this branch of the judiciary. For more information about the judicial system see 1.2.

Three recent landmark decisions by the BVerwG are to be mentioned:

2018: “Air quality and diesel ban” [3]

Decision of the BVerwG on a controversial case initiated by an NGO, inter alia on the question, whether a ban on diesel-powered vehicles can be the only appropriate measure to secure that air pollution is tackled in the quickest possible way to an extent still in compliance with the law in force and whether, in consequence, such a ban has to be enacted to comply the obligations of Article 23 (1) (2) of Directive 2008/50/EC on ambient air quality and cleaner air for Europe.

2019: “NGO standing”[4]

Decision of the BVerwG on the question whether an environmental organisation has standing in a situation where the NGO potentially would have had the right to take part in a public participation process which did not take place, when the NGO claims that participation was omitted without good reason.[5]

2020: “Area of natural beauty and NGO standing?”[6]

In a pending case[7] an environmental NGO is challenging a local regulation that establishes an area of “outstanding natural beauty”. Does the procedure to adopt such a regulation require a Strategic Environmental Assessment (the “SEA”) or at least a reasoned decision by the competent authority not to do one? If so, the environmental NGO would have access to justice to invoke a violation of EU law on the SEA in court proceedings under the Environmental Appeals Act (Umweltrechtsbehelfsgesetz, UmwRG). The BVerwG has therefore requested a preliminary ruling from the CJEU under Article 267 TFEU.[8]

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 environmental agreements (for example the ESPOO Convention) require implementation by the German legislator in order to become part of the domestic legal system. Only then can a person rely on its provisions before a domestic court.

Of course, EU law can be invoked by a party. However, the national court has to check whether the relevant provision of EU law is meant to have direct effect according to the Treaties and/or to the case-law of the CJEU. Therefore, beneficial provisions in a not duly implemented EU Directive can be referred to if this provision is “unconditional and sufficiently clear”.

To give an example: In the environmental landmark case C-115/09 (BUND/Trianel) from May 2011 the CJEU held that an individual rights approach to establishing NGO standing in environmental matters used by the German legislator is not a sufficient implementation of the access to justice clause in Directive 2003/35/EC. As a result environmental NGOs in Germany could directly rely on the access to justice provisions under Directive 2003/35/EC when bringing actions to court. This legal situation lasted till Germany enacted an amendment to the Environmental Appeals Act (Umweltrechtsbehelfsgesetz, UmwRG) which widened NGO standing in order to comply with Directive 2003/35/EC.

1.2. Jurisdiction of the courts

1) Number of levels in the court system

As a general rule the German court system has three levels or instances.

Very often, the first and second instance belong to the judiciary of the respective state (Land) and the third instance court is a federal court (Bundesgericht).

The court system has several branches. For instance, the so-called ordinary jurisdiction (ordentliche Gerichtsbarkeit) has jurisdiction to decide cases of private and criminal law. Cases involving environmental issues are very often public law cases and thus fall within the competence of the administrative courts. Administrative courts (Verwaltungsgerichte) belong to a separate branch of the judiciary (Verwaltungsgerichtsbarkeit) and are to some extent subject to specific rules on court procedure laid down in the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO).

The three levels of the German administrative judiciary are:

• Administrative Court / several in each state (Verwaltungsgericht, the “VG”)
• Higher Administrative Court / one for each state (Oberverwaltungsgericht, the “OVG” or Verwaltungsgerichtshof, the „VGH)
• Federal Administrative Court / one for Germany based in Leipzig (Bundesverwaltungsgericht, the “BVerwG”)

In general, administrative court proceedings start at the administrative court. The losing party has a restricted possibility to appeal (Berufung) to the Higher Administrative Court and, after that, a restricted possibility to further appeal (Revision) to the Federal Administrative Court on questions of federal law.

A number of important environmental cases (e.g.: nuclear energy projects or offshore wind farms) start in the Higher Administrative Court, see § 48 (1) VwGO.[9] In those cases, the Federal Administrative Court is a court of second instance.

Some environmental cases of fundamental importance start (and end) in the Federal Administrative Court. Examples are big infrastructure projects like federal highways (Federal Highways Act), projects falling under the General Rail Act or federal waterways (Federal Waterways Act). The planning of such big projects is subject to a formal administrative procedure where the public and other authorities have to be heard. The final development consent by the public authority is called the “plan approval decision” (Plangenehmigung or Planfeststellungsbeschluss). All and any disputes related to project approval procedures and plan approval procedures for projects falling under the legal acts mentioned in § 50 (1) no.6 VwGO can be legally challenged at the Federal Administrative Court, see § 50 (1) no. 6 VwGO.

As mentioned above, the Federal Constitutional Court (Bundesverfassungsgericht, “BVerfG”) and the constitutional courts of the states are not part of the regular court system. Their jurisdiction is restricted to constitutional questions. However, citizens can apply to the constitutional courts to ascertain whether their constitutional rights have been violated, with the basic right to health (Art. 2 (2) GG) being the most relevant to environmental cases. The so-called constitutional complaint (Verfassungsbeschwerde) is of utmost importance. The decisions of the BVerfG on constitutional complaints are numerous and enjoy a high reputation as cornerstones of the rule of law in Germany.

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)?

Jurisdiction is clearly defined by law beforehand.

The court has to verify its competence by its own motion (ex officio). The judge has to decide whether he/she is competent to rule on the case or not. This concerns the competent branch of the judiciary and substantive jurisdiction (see above, 1)) as well as territorial jurisdiction, which is determined according to § 52 (1) No. 1-5 VwGO. In disputes regarding immovable property or a local entitlement or legal relationship, territorial jurisdiction shall lie solely with the administrative court within whose district the assets or the site are located or the local entitlement applies (§ 52 Nr. 1 VwGO). Other cases of territorial jurisdiction are determined in § 52 (1) No. 2, 3 and 5 VwGO.

If the court comes to the conclusion that it lacks substantive, territorial or hierarchical jurisdiction it has to hear the parties on the matter and then take a decision to refer the case to the competent court (the “Verweisungsbeschluss”). If this decision becomes final it has a binding force on the court chosen to decide, even if this court belongs to another branch of the judiciary, see §§ 17 ss., § 17b (1) of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG).

The German Courts Constitution Act is not a sufficient legal basis to refer a case to the competent court of another Member State.

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

In Germany there are no special environmental courts that deal exclusively with environmental issues. In general, administrative courts are competent to decide environmental law cases because, typically, these cases involve an action or non-action by a public law body (e.g. permitting or inspection authority). Most administrative courts have chambers that are specialized in environmental law.

It is noteworthy that state liability cases are not under the jurisdiction of the administrative courts but are decided by ordinary courts.

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.

Insofar as the administrative act is unlawful and the plaintiff’s rights have been violated, the court shall rescind the administrative act and any ruling on an objection. If the administrative act has already been executed, the court may also state on request that the administrative authority has to countermand execution, and how. This statement shall only be permissible if the authority is able to do so and this question is mature for adjudication. If the administrative act has been settled previously by withdrawal or otherwise, the court shall declare on request by judgment that the administrative act was unlawful if the plaintiff has a justified interest in this finding, § 113 (1) VwGO.

Insofar as the rejection or omission of the administrative act is unlawful and the plaintiff’s rights are violated thereby, the court shall announce the obligation incumbent on the administrative authority to effect the requested official act if the case is ready for adjudication. Otherwise, it shall hand down the obligation to notify the plaintiff, taking the legal view of the court into consideration, § 113 (5) VwGO.

Also, administrative discretion is not without reviewable legal limits. Insofar as the administrative authority is empowered to act on its discretion, the court shall also examine whether the administrative act or the refusal or omission of the administrative act is unlawful because the statutory limits of discretion have been overstepped or discretion has been used in a manner not corresponding to the purpose of the empowerment, § 114 (1) sentence 1 VwGO. The exercise of administrative discretion has to be in conformity with the aim of the legal empowerment, considering all relevant factual and legal aspects by taking due account, inter alia, of the fundamental rights at stake and the principle of proportionality. If this exercise has not been done properly by the public administration, the court grants injunctive relief under § 113 (5) sentence 2 VwGO and obliges the public administration to take a new decision in which the legal opinion of the court has to be taken into consideration (Neubescheidung unter Beachtung der Rechtsauffassung des Gerichts).

Sometimes legal proceedings lead to the assumption of the court that ‑ in the individual case ‑ the margin of administrative discretion is “reduced to zero” (Ermessensreduzierung auf Null), meaning the rule of law only allows one specific administrative action to be taken. If this specific administrative action is identical with the one requested by the claimant, the power of the court is not any longer restrained by the principle of the separation of powers. The administrative court directly obliges the public administration to act, see § 113 (5) sentence 1 VwGO.

1.3. Organisation of justice at administrative and judicial level

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

The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit, the “BMU”) is responsible for a wide range of government policy areas in environmental matters, including preparing legislation and transposing directives of the European Union into national law, as well as issuing ordinances and administrative regulations.[10]

Four federal environmental agencies exist:

• Federal Environment Agency (Umweltbundesamt, the “UBA”),
• Federal Agency for Nature Conservation (Bundesamt für Naturschutz, the “BfN”),
• Federal Office for Radiation Protection (Bundesamt für Strahlenschutz, the “BfS”)
• Federal Office for the Safety of Nuclear Waste Management (Bundesamt für die Sicherheit der nuklearen Entsorgung, the “BASE”).

They are specialised in tasks such as providing scientific support and advice to the BMU, monitoring specific federal issues such as air pollution, emissions from nuclear power plants or assessment of environmental risks in fields such as medical products and biocides.[11]

Administrative competence in environmental matters in most cases lies within the competences of the states (Länder). The states implement both federal and their own state environmental law. State authorities are responsible for e.g. granting construction permits and permits for installations, inspecting installations and enforcing environmental law in case of non-compliance by means of administrative fines, interdiction of plants or withdrawal of permits.[12]

The structural set-up of the administrative system depends on the state as each state has the autonomy to establish its own administrative structure and procedure. Thus, some states have introduced a hierarchy of administrative bodies on three different levels while others employ a two-level system in this context. Additionally, the cities of Berlin, Hamburg and Bremen, which form their own respective states, have adopted administrative structures of their own.[13]

The diversity of administrative procedures and appeals among the states leads to the situation that access to justice can vary from state to state.[14]

2) How can one appeal an administrative environmental decision before court?

Prior to lodging a rescissory action, the lawfulness and expedience of the administrative act shall be reviewed in preliminary proceedings (administrative appeal procedure, Vorverfahren or Widerspruchsverfahren). Such a review shall not be required if a statute so determines, or if the administrative act has been handed down by a supreme federal authority or by a supreme Land authority, unless a statute prescribes the review, or the remedial notice or the ruling on an objection contains a grievance for the first time, § 68 (1) VwGO.

This applies mutatis mutandis to the enforcement action if the motion to carry out the administrative act has been rejected, § 68 (2) VwGO. An administrative decision has to provide an information on legal remedies (Rechtsbehelfsbelehrung) at its end.

In environmental law, there are several provisions that exclude the administrative appeals procedure.

For the area of federal environmental law this is the case inter alia for:

• actions brought against plan approval decisions (Planfeststellungsbeschlüsse), see §§ 74 (1), 70 Administrative Procedure Act (Verwaltungsverfahrensgesetz, the “VwVfG”)
• actions brought against planning permissions (Plangenehmigung), see § 74 (6) sentence 3 VwVfG.

State law may have its own provisions regarding the necessity of preliminary administrative proceedings before having access to court, for example:

• North Rhine-Westphalia: § 110 Judiciary Act of North Rhine-Westphalia (Justizgesetz Nordrhein-Westfalen, JustG NRW)
• Lower Saxony: § 80 (1) Judiciary Act of Lower Saxony (Niedersächsisches Justizgesetz, NJG).
• Bavaria: in this state the administrative appeal is optional and thus not mandatory, see § 15 of the Bavarian Act on the Implementation of the Federal Code of Administrative Court Procedure (Gesetz zur Ausführung der Verwaltungsgerichtsordnung, BayAGVwGO).

The general time limit for bringing administrative appeals (objections) or court actions is

• one month after the administrative act has been announced to the aggrieved party, § 70 (1) VwGO (administrative appeal), or of service of the ruling on the objection, § 74 (1) sentence 1 VwGO (judicial appeal). If in accordance with § 68 VwGO a ruling on an objection is not required, a judicial appeal must be lodged within one month of announcement of the administrative act or announcement of its rejection, § 74 (1) sentence 2 VwGO.
• one year if the information on legal remedies has not been provided or has been incorrectly provided, § 58 (2) VwGO.

Specific limits are provided in the Environmental Appeals Act, namely

• one year, if members of the public concerned were not notified of the administrative decision, and if there was no public notification either. The time limit starts from the day the decision came to attention of the claimant or could have come to its attention, see § 2 (3) sentence 1 UmwRG,
• two years, meaning that NGOs, after this time period, are excluded from bringing judicial complaints against certain environmental administrative decisions, § 2 (3) sentence 2 VwGO.[15] The time limit starts and expires regardless of their awareness of the existence of the respective administrative decision.

When can one expect the final ruling?

There are no fixed deadlines for the courts to deliver a judgment. After Germany was criticized by the European Court of Human Rights in November 2011, new legislation was enacted which enables the parties to the proceedings to warn a court when the procedures are on the verge of taking excessive time, and to claim special damages if the procedure takes too long.[16]

According to data published by the Federal Statistical Office (Statistisches Bundesamt) in 2018, for the year of 2018 there was a duration of 12.1 months for proceedings in the first instance (Klageverfahren) at the Administrative courts on average, with 6.3 months being the shortest average time in some states and 19.6 months being the longest average time in other states.[17]

For proceedings continuing at the level of Higher Administrative Courts the duration of the appeal proceedings (Berufung) is 11.7 months as a national average, with 5.3 months being the shortest average time in some Länder and 25.5 months being the longest average time in other states.[18]

For 2018, the statistics of the Federal Administrative Court list an average duration of revision proceedings (Revision) of about 11.5 months.[19]

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

In Germany there are no special courts that deal exclusively with environmental issues. In general, administrative courts are competent to hear environmental law cases (see above at I.2). Some aspects of liability fall within the competence of ordinary courts. Most administrative courts have chambers specialized in environmental law.

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

• Appeals against an environmental administrative decision

In general, there is a regular administrative appeal against first instance administrative decisions in environmental matters, which is mandatory according to the general rule in § 68 VwGO, unless statutes determine otherwise (see above at 1.3.2). Administrative decisions must give the addressee all the necessary information on the remedy, the time limit to be observed and where to lodge it, see § 58 (1) VwGO. If necessary preliminary administrative proceedings are unsuccessful, the appeal may be brought before the administrative courts.

• Appeals against court decisions

Court decisions, other than judgments, can be challenged by a complaint (Beschwerde), see §§ 146 et seq. VwGO.

Judgments of administrative courts can be challenged by an appeal (Berufung) - appeal on points of fact and law - to the Higher Administrative Court, see § 124 (1) VwGO. The Administrative Courts admits the appeal under § 124a (1) sentence 1 VwGO in conjunction with section 124 (2) VwGO

• if serious doubts exist as to the correctness of the judgment,
• if the case has special factual or legal difficulties,
• if the case is of fundamental significance,
• if the judgment derogates from a ruling of the Higher Administrative Court, of the Federal Administrative Court, of the Joint Panel of the supreme courts of the Federation or of the Federal Constitutional Court, and is based on this derogation, or
• if a procedural shortcoming subject to the judgment of the court of appeal on points of fact and law is claimed and applies on which the ruling can be based.

If the appeal on points of fact and law is not admitted in the judgment of the Administrative Court, admission shall be applied for within one month after service of the complete judgment, § 124a (4) sentence 1 VwGO. The Higher Administrative Court refuses to admit the appeal by an order (Nichtzulassungsbeschluss) if none of these grounds can be demonstrated by the claimant. This court order cannot be appealed, see § 124a (5) sentence 4 VwGO. If the Higher Administrative court admits the appeal by an order it then continues to conduct appeal proceedings taking into account all points of fact and law raised in the case presented.

Against judgments of the Higher Administrative Court parties have recourse to an appeal on points of law to the Federal Administrative Court (Revision). This recourse has to be admitted by the Higher Administrative Court or, upon request, by the Federal Administrative Court itself.

Against the judgment of an administrative court those concerned have recourse to an appeal on points of law, circumventing the appeal on points of fact and law instance, if the plaintiff and the defendant agree in writing to the submission of the appeal on points of law in lieu of an appeal on fact and law, and if it is admitted by the administrative court in the judgment or on request by order, § 134 (1) sentence 1 VwGO - “leapfrog“ appeal (Sprungrevision).

Furthermore, parties have recourse to an appeal on points of law to the Federal Administrative Court against the judgment of an administrative court if the appeal on points of fact and law is ruled out by federal law. The appeal on points of law can only be lodged if the administrative court has admitted it, or if the Federal Administrative Court has admitted it in response to a complaint against non-admission, § 135 sentence 1 VwGO.

In some environmental matters, in particular in cases concerning infrastructural projects, the Federal Administrative Court is competent as a court of first instance, see § 50 (1) no. 6 VwGO. This means that there is only one instance in which all factual and legal aspects of the case are examined. A further appeal procedure is not possible, see 1.2.1.

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

In environmental matters there are no extraordinary remedies or ways of appeal.

When a court is uncertain as to the interpretation or validity of an act adopted by the European Union it will stay the proceedings by analogy to § 94 VwGO and refer the matter to the CJEU and request a preliminary ruling according to Article 267 TFEU. After the CJEU decision on the interpretation or the validity of the provisions in question, the national court will continue its own proceedings.

According to the CJEU´s statistics, with a total of 2249 requests between 1952 and 2017, German national courts have the highest share of requests for preliminary rulings, including 149 requests in 2017.[20]

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

Alternative dispute resolution (ADR) is still not very frequently used in Germany in environmental matters. Some well-known mediation procedures took place in the course of big infrastructure permit procedures, by example

• Airport Berlin (Flughafen Berlin Brandenburg “Willy Brandt“),
• Frankfurt Airport,
• Main Station Stuttgart (“Stuttgart 21“)[21].

However, the ADR processes in these cases were not binding and in each of the cases the administrative decision was followed by several lawsuits.

It is noteworthy that the German judiciary provides an optional mediation procedure during the litigation which is conducted by the court’s judge mediator (Güterichter).

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

Other actors play hardly any role in Germany. Ombudspersons are only available in a private context – for instance in daily newspapers etc. and are not specialized in environmental matters. Some commissioners for data protection are also responsible for access to information under the Freedom of Information Acts (Informationsfreiheitsgesetze - federal and state level) and in only few German States also for the provisions on access to environmental information.[22] They act as mediators between those holding information and those requesting access to information. On the Federal level the German Parliament (Deutscher Bundestag) adopted in December 2020 a new law (that will enter into force in spring 2021) – based on this the Federal commissioner for data protection will be in charge as well for requests that refer to the Environmental Information Act (Umweltinformationsgesetz, UIG).

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)?

In general, individuals, legal entities and NGOs can challenge administrative decisions. In principle, this covers ad-hoc groups of citizens or foreign individuals as well.

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

There are different rules applicable for individuals and NGOs but also depending on sectoral legislation, see 1.4. 3) and 1.8.1 - 1.8.3, and 2.1 – 2.4.

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.)

Standing rules applicable for individuals and legal entities

Individuals and other legal entities only have standing at the judicial level if they can maintain that their “own rights” (such as health or property) have been possibly violated by the administrative decision, see § 42 (2) VwGO. In other words: Individual standing is denied if any “possible or thinkable” violation of such an individual right can be excluded by a prima facie assessment of the court.

The individual rights concept has two important consequences.

Firstly, the claimant can neither invoke the violation of someone else’s rights nor “the rights of nature”; an actio popularis launched by an individual is manifestly inadmissible.

Secondly, if the individual claimant is a third party, being for example the neighbour of a permitted industrial facility, they must show a possible violation of their own rights.

More precisely, the claimant has to demonstrate a possible violation of an individual right (subjektiv öffentliches Recht) by invoking a violation of public law that is aimed to protect not only the public interest but – “at least also” – the specific private interests of the claimant who brought the action.

This legal concept is a cornerstone of administrative justice in Germany. It is referred to as “protective norm theory” (Schutznormtheorie) and leads to two different categories of German public law:

• legal norms that protect the private interest of the third party conferring standing (drittschützende Normen) and
• legal norms that do not protect the private interests of the third party (Normen ohne drittschützende Wirkung).

Over the last 60 years German administrative courts have developed a detailed case law on the question “whether” and “for whom” a specific provision of public law is considered to be “protective” and therefore confers standing. All major provisions are covered; German law commentaries very often have a special chapter on the issue.

These principles of German procedural law also apply in environmental law cases: individual standing is granted if the public administration by permitting (for example) an industrial facility did not comply with the public law provisions which are meant to protect the health or the property of the individual claimant. The claimant can for instance invoke the public law statutes against harmful environmental effects (air pollution, noises, odour etc) and the statutes on construction law (distances between buildings, type of use under the binding municipal development plan). If the only concern of the individual claimant is of a mere public interest (“danger for the protection of flora and/or fauna”) the action is considered to be clearly inadmissible. In this case an individual claimant lacks standing.

The Federal Administrative Court, in principle, also applies this legal concept in actions brought by individuals under the Environmental Appeals Act (Umweltrechtsbehelfsgesetz, UmwRG). According to § 4 (1) and (3) UmwRG, both individuals and environmental NGOs can demand the revocation of a decision on the permissibility of a project if a necessary Environmental Impact Assessment (EIA) has not been conducted or the procedure has been seriously flawed. However, private individuals cannot bring an action only based on the claim that an EIA was not conducted (correctly), as an EIA is conducted solely in the public interest. Therefore, individual claimants always also have to maintain a violation of their individual rights to overcome the hurdle of standing. If they have overcome this hurdle, however, the individual claimant can successfully invoke violations of the duty to conduct an EIA. In this case, the merits of the action do not depend on an actual violation of individual rights. This remarkable gap between a private interest assessment at the stage of the admissibility and a public interest assessment at the stage of the merits seems quite unusual in German administrative justice.

It has not yet been decided by the CJEU whether the Aarhus Convention and the corresponding European legislation will allow such a split approach to access to justice for individuals and other legal entities.

Standing rules applicable for NGOs

Recognised environmental organisations are granted legal standing in all cases explicitly specified in § 1 Environmental Appeals Act (Umweltrechtsbehelfsgesetz, UmwRG).

This includes, for example, permit procedures for projects requiring an environmental impact assessment (EIA) or for industrial sites covered by the Industrial Emissions Directive.

The Federal Nature Conservation Act (Bundesnaturschutzgesetz, BNatSchG) and some state nature conservation acts[23] grant legal standing to recognised nature conservation organisations in specified areas of nature conservation, see § 64 BNatSchG. In these cases, recognised NGOs can challenge, for example, decisions to grant an exemption from rules for the protection of Natura 2000 sites or for protected areas of marine environment.

In order to be able to rely on the special procedural rights of recognised environmental organisations, NGOs have to obtain the status of an officially recognised environmental or nature conservation organisation. This requires NGOs to fulfil the conditions stipulated by § 3 UmwRG or the state nature conservation acts respectively and to request recognition from the competent federal or state authority. Recognition must be granted when the legal requirements are met.[24] Some important requirements of § 3 UmwRG are that the organisation is committed to the protection of the environment, has been active in protection activities for at least three years and grants membership and voting rights in the internal members´ meeting to any person willing to support the environmental work of the organisation.

For NGOs that are active on a national scale or on the territory of several states, and for foreign NGOs, the competent recognition authority is the German Environment Agency (Umweltbundesamt, the “UBA”). If an NGO is only active on the territory of one state, the recognition process has to be completed with the respective state authority.[25]

For ad-hoc groups of citizens the same rule applies as for individuals, unless they successfully register as recognised environmental organisations.

Foreign individuals are subject to the same the rules as national individuals. This is the case also for foreign NGOs, unless they successfully register as recognised environmental organisations according to § 3 (1) and (2) UmwRG[26].

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

According to § 184 Courts Constitution Act (Gerichtsverfassungsgesetz, GVG), § 55 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO) the language used in court and court procedures is German. The only exception concerns certain areas of the Land of Brandenburg, where the Sorbian-speaking minority has the right to use their language.

According to § 185 GVG and § 55 VwGO in oral hearings of administrative court procedures, translation has to be provided if there are persons directly involved who are not able to communicate in German. Apart from this general rule, there are no further legal requirements on translation. In general, courts will choose an interpreter from a list of registered and court-certified interpreters. In administrative court hearings, the costs of interpretation may be regarded as court expenses (Auslagen) and would then have to be borne by the losing party.

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?

When administrative courts decide cases in environmental matters they are not restricted to the information the parties bring. Courts can (and must, if necessary) explore the facts on their own motion and also produce evidence themselves. The principle of ex officio investigation (Amtsermittlungsgrundsatz) applies, see § 86 (1) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). The same principle applies to administrative proceedings (Untersuchungsgrundsatz), see § 24 Administrative Procedure Act (Verwaltungsverfahrensgesetz, VwVfG).

Nevertheless, it is up to the parties to clarify the facts in question. They are obliged to cooperate with the court, see § 86 (1) sentence 1 VwGO. This often requires the parties to refer to expert opinions. Thus, environmental organisations as well as the other parties to the dispute cooperate with and pay for experts in the specific fields to provide evidence.

2) Can one introduce new evidence?

According to § 6 Environmental Appeals Act (Umweltrechtsbehelfsgesetz, UmwRG), claimants must submit the full statement of grounds for the appeal including all relevant facts and evidence within 10 weeks after the action was initiated.

In contrast to the regular provisions of administrative procedural law and to the situation before the amendment of the UmwRG in 2017, when the prolonging of the time limit was more or less at the court´s discretion, the deadline of § 6 UmwRG is a strict one and can only be waived under clearly exceptional circumstances, if the plaintiff had no chance to participate during the preceding administrative procedure, § 6 (4) UmwRG, or if the plaintiff can adequately excuse the delay, § 6 (4) UmwRG.

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

In principle, the parties are free to introduce evidence in the form of an opinion by an expert of their choice. It is up to the parties to choose experts who are qualified for the matter in question. The court cannot prevent the parties from choosing a particular expert to provide evidence in the form of an expert opinion. However, if the court is not convinced of the professional qualification of the expert or the quality of the expert opinion itself, it will not take that opinion into consideration when deciding upon the case.

A helpful source is the online publication of the Bavarian Environmental Agency (Bayerisches Landesamt für Umwelt, LfU Bayern) of 2017 on laboratories and experts in environmental matters such as soil, contaminated sites, waste, water, air, noise, radiation[27].

Also the Hessian Agency for Nature Conservation, Environment and Geology (Hessisches Landesamt für Naturschutz, Umwelt und Geologie, HLNUG) provides information online[28].

The following lists are publicly available:

• Federal Association of Experts and Reviewers[29];
• register of experts provided by the chambers of commerce[30] (IHK – Industrie- und Handelskammern).

See also 1.3.3 and 1.6.2.

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

The court shall rule in accordance with its free conviction gained from the overall outcome of the proceedings, see § 108 (1) sentence 1 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). It is therefore up to the court to evaluate the expert opinions. The courts are independent and free to review the evidence, to judge whether there is a breach of law and to evaluate the severity of the infringement. In the judgment, the grounds which were decisive for the judicial decision must be named. The judgment may only be based on such facts and pieces of evidence on which those concerned have been heard.

3.2) Rules for experts being called upon by the court

The court is free to choose an expert and is not bound by the suggestions of the parties. Technically, the expert is not required to meet any specific qualifications set by law, it is enough if the court is convinced that the expert is adequately qualified in general and for the matter of the specific case. In practice, however, the courts choose experts from a list of publicly certified experts. The court is free to evaluate the content of the expert opinion and is not bound by conclusions of the expert opinion.

3.3) Rules for experts called upon by the parties

In principle, the parties are free to introduce evidence in the form of an opinion by an expert of their choice. It is up to the parties to choose experts who are qualified for the matter in question. The court cannot prevent the parties from choosing a particular expert to provide evidence in the form of an expert opinion. However, if the court is not convinced of the professional qualification of the expert or the quality of the expert opinion itself, it will not take that opinion into consideration when deciding upon the case.

The costs for the preparation of the expert opinion or for the expert being present at the court hearing are borne by the party relying on the respective expert, unless the court comes to the conclusion that the expert opinion or the expert being present at the court hearing were necessary to adequately pursue the matter before the court, as a whole or to a certain extent[31], see § 162 (1) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO).

According to the case-law of the Federal Administrative Court, this is only the case if the party relying on the expert cannot rely on sufficient expertise of its own to prove its reasoning.[32] Whether this is the case is to be assessed from the point of view of a reasonably acting party who would do their best to represent their interests while aiming to keep the costs at a reasonable level.[33]

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

There are no special procedural fees that arise for expert opinions. The general procedural fees are calculated on the basis of the estimated value in dispute regardless of the actual efforts of the court. Still, if the court has hired an expert, the expert is paid according to the rates set by the law on the remuneration of experts, interpreters, translators etc. (Justizvergütungs- und –entschädigungsgesetz, JVEG). The court can decide that these expenses (Auslagen) have to be borne by the losing party. These costs can exceed the procedural fees, especially when the value in dispute is relatively low.

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

If the court of first instance is an administrative court (Verwaltungsgericht, VG), representation by a lawyer is not mandatory. If the court of first instance is a Higher Administrative Court (Oberverwaltungsgericht, OVG or Verwaltungsgerichtshof, VGH) or the Federal Administrative Court (Bundesverwaltungsgericht, BVerwG), representation by a lawyer is compulsory.

However, almost all lawsuits in environmental matters are conducted with the assistance of a lawyer because, as with other areas of administrative law, environmental procedures are so complex that laypeople cannot oversee all legal consequences. Specialised environmental lawyers give advice at all stages of the procedure, often beginning with the public consultation during the administrative procedure. Legal representation plays a crucial role for the success of proceedings. The service of environmental lawyers often goes far beyond usual legal counselling. They work very closely with the claimants; often responses are co-authored by environmental lawyers and other experts on the issues concerned.

1.1 Existence or not of pro bono assistance

German lawyers are only allowed to waive fees under certain conditions according to § 49b of the Federal Lawyers´ Code (Bundesrechtsanwaltsordnung, BRAO). Environmental organisations usually hire specialists on a regular basis and use their funds to pay the lawyers.

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.)?

According to the Act on Advisory Assistance and Representation for Citizens with a Low Income (Advisory Assistance Act; Gesetz über Rechtsberatung und Vertretung für Bürger mit geringem Einkommen, Beratungshilfegesetz - BerHG) persons seeking legal aid have access to advisory assistance for the exercise of rights outside court proceedings and in mandatory conciliation proceedings. Litigants can apply for a certificate of eligibility at the local court. If legal aid is granted the person has to pay at most 15 euros to the attorney. Provisions to be met are as follows: litigants cannot mobilise the necessary resources due to their personal and economic circumstances (determined according to the standards set out for assistance with court costs under the provisions of the Zivilprozessordnung - Code of Civil Procedure); there are no other possibilities for assistance, use of which can be expected from the litigant; use of advisory assistance does not seem frivolous. Advisory assistance consists of advice and necessary representation (§ 2 para. 1 and 3 BerHG).

With regard to legal aid for court proceedings: See explanations to questions 3) and 4) in point 1.7.3 below. The respective provisions are laid down in § 166 VwGO and §§ 114 et seq. of the Code of Civil Procedure. German law provides for a means and a merits test. Subject to further details the prerequisites are as follows: If a party is unable to bear the costs of court proceedings and – if necessary – of a lawyer in full or in part due to its economic and personal circumstances, it can apply for legal aid to the court, if the party has a reasonable prospect of success in the proceedings and the proceedings are not wilful. For the purpose of examination a party’s application, the party is obligated to submit a declaration of its economic and personal circumstances, e. g. family background, job status, financial circumstances, earning capacity, financial burdens and potential legal expenses insurances.

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

One possibility is to contact an environmental NGO active in the area at issue. The NGO might be willing to take over the case in question, or can possibly help with some aspects of the case.

Lawyers can be found via internet research. The Federal Bar Association (Bundesrechtsanwaltskammer - BRAK) provides a register listing all lawyers admitted to the legal profession in Germany (Bundesweites Amtliches Anwaltsverzeichnis). However, with regard to lawyers’ specialisations, the register’s search function is limited. However, almost all lawyers have a webpage that provides information about their specialisation. Some environmental lawyers are part of the IDUR – Informationsdienst Umweltrecht (information service environmental law) network.

Another website listing several environmental lawyers is umweltanwaelte.de.

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

A helpful source is the following online publication of the Bavarian Environmental Agency (Bayerisches Landesamt für Umwelt, LfU Bayern) of 2017 on laboratories and experts in environmental matters such as soil, contaminated sites, waste, water, air, noise, radiation.[34]

Also the Hessian Agency for Nature Conservation, Environment and Geology (Hessisches Landesamt für Naturschutz, Umwelt und Geologie, HLNUG) provides information online.[35]

The following lists are publicly available:

• Federal Association of Experts and Reviewers[36]
• register of experts provided by the chambers of commerce[37] (IHK – Industrie- und Handelskammern)

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

An up-to-date list of all environmental organisations recognised on the federal level, also providing links to the Länder authorities that are competent for the recognition process on Länder level, is published by German Environment Agency (Umweltbundesamt, UBA)[38].

Some of the most active NGOs in environmental litigation are the “BUND” and the “NABU” and their regional organisations.

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

With regard to international NGOs that are active in environmental litigation in Germany, Friends of the Earth/BUND (Bund für Umwelt und Naturschutz Deutschland e.V.) and their regional organisations play a crucial role.

Also the other actively litigating NGO in Germany, NABU, has an international affiliation as a partner of BirdLife International.

The following international environmental NGOs active in Germany do not regularly initiate environmental proceedings as they are not registered as recognised environmental organisations under the Environmental Appeals Act (Umweltrechtsbehelfsgesetz, UmwRG):

• Client Earth
• WWF[39]
• Greenpeace[40]

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)

If an administrative appeal is mandatory, see § 68 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO, see also above at 1.3.2) the time limit to launch it is one month after the party was notified of the administrative decision, see §§ 70 (1) sentence 1 VwGO, 58 VwGO.

The determination of this deadline follows the rules of § 57 (2) VwGO, § 222 (1) Code of Civil Procedure (Zivilprozessordnung, ZPO) and §§ 187 et seq. German Civil Code (Bürgerliches Gesetzbuch, BGB). With some exceptions, the time limit to lodge an appeal will expire at the end of the day with the number of the day of the notification, § 188 (2) sentence 1 BGB. For example, if the administrative decision was notified on October 23, the one-month time limit expires at the end of the day of November 23.

The deadline for an appeal or another legal remedy is only initiated if the party concerned has been informed in writing or in electronic form of the appeal, the administrative authority or the court at which the appeal is to be lodged, the seat and the deadline to be adhered to, § 58 (1) VwGO. If the information has not been provided or has been incorrectly provided, the lodging of the appeal is permissible within one year of service, publication or pronouncement, unless submission was impossible prior to expiry of the year’s deadline period as a result of force majeure, or a written or electronic notification was given that an appeal was not possible, § 58 (2) VwGO.

If members of the public concerned were not notified of the administrative decision, and if there was no public notification either, the decision must be challenged within one year from the day when the administrative decision came its attention or could have come to its attention according to § 58 (2) VwGO and § 2 (3) sentence 1 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG).

If an administrative decision falling into the categories of § 1 (1) sentence 1 no. 5 or no. 6 UmwRG[41] is at stake, for NGOs, there is a deadline excluding any appeal against an administrative decision, when two years have expired since the administrative decision has been granted, regardless of whether the environmental organisation was aware or could have been aware of the decision, § 2 (3) sentence 2 UmwRG.

2) Time to deliver a decision by an administrative organ

Time limits to deliver a decision apply to decisions in administrative permit procedures. In permit procedures for general industrial plants, for example, a time limit of seven months applies to large projects and a period of three months to smaller projects, see § 10 (6a) Federal Immission Control Act (Bundes-Immissionsschutzgesetz, BImSchG). The period starts from the day when the application documents submitted to the competent authority are complete. The authority can prolong the period for up to three additional months if it can show that there is a valid reason.

In permit procedures for large-scale projects such as national roads, railways and waterways there are no fixed time limits. In such cases, decisions must be taken “within reasonable time” or in “an efficient manner”.

If with regard to an objection or an application to carry out an administrative act it has not been decided on the merits within a suitable period without sufficient reason, the action shall be admissible in derogation from § 68 VwG (see 1.3.2). The action may not be lodged prior to the expiry of three months after the lodging of the objection or since the filing of the application to carry out the administrative act, unless a shorter period is required because of special circumstances of the case. If an adequate reason applies why the objection has not yet been ruled on or the requested administrative act has not yet been carried out, the court shall suspend the proceedings until expiry of a deadline set by it, which can be extended. If the objection is admitted within the deadline set by the court or the administrative act carried out within this deadline, the main case shall be declared to have been settled.

In case of urgency, even prior to the lodging of an action, the claimant may request an interim court order to prevent the enforcement of his or her individual right being prevented or considerably impeded by the administrative inaction, see §§ 80 (5), 123 VwGO.

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

Claimants have to check very carefully whether an direct appeal to the court is admissible or not because it may be mandatory that ‑ before going to court – the claimant has to seek relief in a preliminary proceeding within the administration itself (administrative appeal procedure Vorverfahren or Widerspruchsverfahren). An administrative decision has to provide information on legal remedies (Rechtsbehelfsbelehrung) at its end.

The framework legislation on the administrative appeal procedure is enshrined in §§ 68 et seq. VwGO. The provisions underline the fact that launching administrative proceedings without success is a prerequisite to the admissibility of judicial proceedings before the court, unless it is determined otherwise, see § 68 (1) sentences 1 and 2 VwGO.

Concerning environmental public law, there are several provisions that allow a direct action to the court by excluding the administrative appeal procedure or making clear that it is not mandatory in the respective field of law.

Federal law allows for direct access to court, for example, for big infrastructure projects:

• actions brought against plan approval decisions (Planfeststellungsbeschlüsse), see §§ 74 (1), 70 Administrative Procedure Act (Verwaltungsverfahrensgesetz, the “VwVfG”)
• actions brought against planning permissions (Plangenehmigung), see § 74 (6) sentence 3 VwVfG.

State law may have its own provisions regarding the necessity of preliminary administrative proceedings before having access to court, for example:

• North Rhine-Westphalia:§ 110 Judiciary Act of North Rhine-Westphalia (Justizgesetz Nordrhein-Westfalen, JustG NRW)
• Lower Saxony: § 80 (1) Judiciary Act of Lower Saxony (Niedersächsisches Justizgesetz, NJG).
• Bavaria: In this state the administrative appeal is optional and thus not mandatory, see § 15a of the Bavarian Act on the Implementation of the Federal Code of Administrative Court Procedure (Gesetz zur Ausführung der Verwaltungsgerichtsordnung, BayAGVwGO).

The general time limit for bringing administrative appeals or, if excluded, court actions is

• one month after the notification of the challenged administrative decision, see § 74 VwGO;
• one year if the information on legal remedies was missing or incorrect, § 58 (2) VwGO.

Specific limits for are provided in the Environmental Appeals Act, namely

• one year, if members of the public concerned were not notified of the administrative decision, and if there was no public notification either. The time limit starts from the day the decision came to attention of the claimant or could have come to its attention, see § 2 (3) sentence 1 UmwRG,
• two years, meaning that NGOs, after this time period, are excluded from bringing judicial complaints against certain environmental administrative decisions, § 2 (3) sentence 2 VwGO.[42] The time limit starts and expires regardless of their awareness of the existence of the respective administrative decision.

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

There are no fixed deadlines for the courts to deliver a judgment. After Germany was criticised by the European Court of Human Rights in November 2011, new legislation was enacted which enables the parties to a court case to warn a court when the procedures are on the verge of taking excessive time, and to claim special damages if the procedure takes too long.[43]

The main provisions can be found in § 198 et seq. of the Courts Constitution Act (Gerichtsverfassungsgesetz,GVG).

According to data published by the Federal Statistical Office (Statistisches Bundesamt) in 2018, for the year of 2018 there was a duration of 12.1 months for proceedings in the first instance at the Administrative courts (Verwaltungsgerichte, VG) on average, with 6.3 months being the shortest average time in some Länder and 19.6 months being the longest average time in other Länder. For proceedings continuing at the level of Higher Administrative Courts, the duration of the appeal proceedings is 11.7 months as a national average, with 5 months being the shortest average time in some Länder and 25.5 months being the longest average time in other Länder.[44]

For 2018, the statistics of the Federal Administrative Court list an average duration of revision proceedings of about 11.5 months.[45]

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

Apart from the time limits described under 1) and 3) there is a specific deadline that has to be observed during the environmental litigation.

According to § 6 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG), claimants must submit the full statement of grounds for the appeal including all relevant facts and evidence within 10 weeks after the action was initiated.

In contrast to the regular provisions of administrative procedural law and to the situation before the amendment of the UmwRG in 2017, when the prolongation of the time limit was more or less at the court´s discretion, the deadline of § 6 UmwRG is a strict one and can only be set aside under clearly exceptional circumstances.

The same time limit was introduced into specific sectoral legislation, e.g. for national roads, see § 17e Federal Highways Act (Bundesfernstraßengesetz, FStrG).

During the judicial procedures, individual deadlines can arise when the court asks the parties to substantiate their submissions. The court can set these deadlines independently according to § 87b Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO).

1.7.2. Interim and precautionary measures, enforcement of judgments

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

In general, both administrative and judicial appeals against an administrative decision have suspensive effect (“aufschiebende Wirkung” or “Suspensiveffekt”), see § 80 (1) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO).[46]

However, § 80 (2) VwGO provides important exceptions to this rule. The administrative decision is immediately enforceable, and the appeal has no suspensive effect

1. if public charges and costs are called for,
2. with non-postponable orders and measures by police enforcement officers,
3. in other cases prescribed by a federal statute or state statute, in particular for objections and actions on the part of third parties against administrative acts relating to investments or job creation, or
4. in cases where an immediate execution is separately ordered by the authority which has issued the administrative act or has to decide on the objection in the public interest or in the overriding interest of a party concerned.

Examples where the suspensive effect is precluded by federal law are:

• § 14e (2) Act on Federal Waterways (Bundeswasserstraßengesetz, WaStrG),
• §17e (2) Federal Highways Act (Bundesfernstraßengesetz, FStrG)

If the authority which has issued the administrative act orders its immediate execution, the special interest in immediate execution of the administrative act shall be reasoned in writing. No special reasoning shall be required if the authority takes an emergency measure designated as such in the public interest where a delay is likely to jeopardise the success, in particular with impending disadvantages for life, health or property as a precautionary measure, § 80 (3) VwGO. An order for immediate execution (Anordnung der sofortigen Vollziehung) removing the suspensive effect of the appeal is subject to judicial control.

On request, the court dealing with the main case may completely or partly order the suspensive effect in cases falling under subsection 2 Nos. 1 to 3, and may restitute it completely or partly in cases falling under subsection 2 No. 4. The request is already admissible prior to filing of the rescissory action. If the administrative act has already been implemented at the time of the decision, the court may order the rescission of implementation, see § 80 (5) VwGO.

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

During an administrative appeal procedure, the claimant may request “the restitution of the suspensive effect” from the administration, unless otherwise is provided by federal law, see § 80 (4) VwGO.

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 request can be introduced during the appeal procedure. As the request is usually based on the urgency of the matter (i.e., irreversible damage might occur if the project is realised during the time it takes to evaluate the merits of the appeal, such as cut trees etc.) there are no fixed deadlines for the request for restitution of the suspensive effect. It is most efficient to combine the request with the appeal against the administrative decision.

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

If there is no suspensive effect according to § 80 (2) VwGO, see 1.7.2.1), the administrative decision is legally valid and can be immediately enforced or executed, irrespective of any pending appeal or court action.

In these cases it is possible to request restitution of the suspensive effect from the administration, see § 80 (4) VwGO, or from the court, see § 80 (5) VwGO, as an order for interim relief (vorläufiger Rechtsschutz), see 1.7.2.5).

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

See above 1), page 30-31.

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?

In general, judicial procedures provide for the possibility of injunctive relief. In environmental matters this remedy plays an important role, e.g. when irreversible damage to natural resources is at stake. The injunctive relief is directed against the administrative decision in the form of a preliminary injunction (vorläufiger Rechtsschutz) seeking the restitution of the suspensive effect by a court order, see § 80 (5) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO) or demanding interim measures to be taken until the merits of the case have been decided, see § 123 VwGO.

In order for a request for injunctive relief to be admissible, the plaintiff must show that the claim would also be admissible as a regular, non-injunctive action, i.e. the plaintiff must fulfil all conditions, e.g. on standing, which would apply for assessing the main case. In addition to that, in order to obtain interim relief, the plaintiff must prove that a preliminary decision is necessary (and it is not acceptable to wait for the regular judicial decision). This urgency can arise from different circumstances. For example, urgency can be based on the fact that if a project was not stopped before the court’s main decision, irreversible damage would occur (i.e. trees cut down, natural landscape destroyed etc.). As injunctive relief can only be asked for when the matter is urgent, there is no fixed deadline.

The restitution of the suspensive effect may be made dependent on the provision of a security or on other instructions, § 80 (5) sentence 4 VwGO.

An appeal (Beschwerde) against a court decision (granting or denying interim relief) to the Higher Administrative Court is possible, see § 146 VwGO.

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.

When seeking access to justice in environmental matters, parties face the following costs:

Costs for administrative appeal procedures (Widerspruchsverfahren)

In some environmental matters, applicants seeking justice must first initiate an administrative appeal procedure (see above at 1.3.2). To commence such a procedure, applicants have to submit a written complaint (Widerspruch) to the competent authority in which they explain why the authority’s decision or action is violating their rights. Costs for this procedure are relatively low.

However, in some environmental matters, especially regarding big infrastructure planning procedures, an administrative review or appeal procedure is not available. Instead, applicants have to bring judicial proceedings directly against the responsible authority.

Court fees in judicial proceedings

The court fees in environmental matters depend on the number of instances and the type of remedies pursued during the proceedings.

There are:

• Fees for the commencement of a procedure.
• Fees for appeal proceedings.
• Fees for interim measures: If a case is so urgent that the time for a regular court case would result in major harm, applicants can seek interim measures, also called injunctive relief (einstweiliger Rechtsschutz). Court fees also apply to these cases.
• Lawyers´ fees can add a significant amount to a case’s costs. If according to the final decision the case is lost, applicants may have to pay not only for their own legal costs, but can be ordered to bear (a share of) the defendant’s legal costs. Usually, public authorities will try to avoid legal fees and will be represented by their employees. Under certain circumstances, however, other private parties such as operators or investors might be included in court cases. This is necessary where the court’s decision has direct legal consequences for those parties, § 65 (2) VwGO. A typical example would be the operator of a plant whose permit is appealed in court. Those private are usually represented by lawyers which may result in costs to be covered by the losing party.
• Costs for evidence, expert fees: In environmental matters, many facts that are important for the decision of the case (evidence) need to be ascertained by specialists. The more skills and time are required for analysing and presenting the relevant facts, the higher the costs for scientific analyses and experts. The costs for the provision of evidence in a typical environmental case are difficult to estimate. On average, costs of evidence in the form of an expert opinion would range from a minimum of EUR 5,000 up to EUR 25,000. In the case of complex proceedings, where several expert opinions are required for different matters, the total amount can be significantly higher. These costs are estimates for expert opinions called for by the parties. If an expert is called upon by the court, the costs are calculated according to the law on the remuneration of experts, interpreters, translators etc. (Justizvergütungs- und –entschädigungsgesetz, JVEG).

Estimation of costs for a judicial procedure:

Both court and lawyers’ fees depend on the “value in dispute” (Streitwert). Fees are regulated in the Act on Court Fees (Gerichtskostengesetz, GKG) and the Act on the Remuneration of Lawyers (Rechtsanwaltsvergütungsgesetz, RVG) respectively.

In administrative court proceedings, the value in dispute is determined by the court. This means that the court assesses how the interest of the case could be expressed in monetary terms. The higher the amount in dispute set by the court, the higher will be the court fees and other related costs (such as lawyers’ fees) which, to a certain extent, are determined on the basis of the value in dispute.

The Federal Administrative Court provides guidance in the determination of the value in dispute in the form of a catalogue of values in dispute. This catalogue makes the court fees and legal fees predictable. For cases brought by environmental organisations, the catalogue suggests a value in dispute of between EUR 15,000 and EUR 30,000.[47] Based on this, for an ordinary case, court fees for the commencement of a procedure can vary from EUR 879 to EUR 1,218 and each party’s statutory lawyer fees for first instance court proceedings from EUR 1,957.55 to EUR 2,591.23. The exact amount of the fees will depend on numerous factors, such as the number of parties involved. Costs for the party’s own lawyer can be considerably higher as most experts do not base their remuneration on the lawyers’ fee scheme set by law but on individual contracts with hourly rates that can in total exceed the statutory fee. On top of that, the costs for the provision of evidence and expert opinions have to be added.

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

The value in dispute (Streitwert) as well as the court fees usually amount to about 50% of the fees for the main proceedings. However, a case usually does not end at that interim stage. The costs for injunctive relief follow the same logic as for the main proceedings, and they are additional costs that will be added to the costs of the main proceedings. Deposits normally do not arise in the procedure of injunctive relief/interim measures.

3) Is there legal aid available for natural persons?

According to § 114 Code of Civil Procedure (Zivilprozessordnung, ZPO) and § 166 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), in order to obtain legal aid, individuals must show that that they lack the financial resources to conduct a lawsuit without legal aid, that the action they want to bring has sufficient chances of success and that it is not abusive. For legal aid in out of court matters see explanation in in point 1.6-1)-1.2 above.

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?

According to § 116 of the Code of Civil Procedure (Zivilprozessordnung, ZPO) and § 166 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), legal entities (i.e. also environmental organisations[48]) can also request legal aid when they are based in or a resident of Germany or 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 the resources to do so. As an additional requirement, legal personalities such as environmental organisations must also show that refraining from pursuing the action would be contrary to the public interest. For legal aid in out of court matters see explanation in in point 1.6-1)-1.2 above.

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

There are no other regular mechanisms available to provide financial assistance. Sometimes, individuals, ad-hoc groups of citizens or environmental organisations launch public fundraising campaigns in order to cover the costs of a particular case. Recently, also crowdfunding has been a popular method.

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

In environmental matters, the general rules for administrative court proceedings apply. One of these rules is the “loser pays principle” in § 154 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). Thus, the defeated party has to pay for all the court fees, pay their own lawyer and also reimburse the winning party’s lawyer. The opposing party’s legal fees, however, will only have to be covered for the amount set by law. Furthermore, as public authorities often are represented by their own employees instead of lawyers, the costs of this party may be lower.

With regard to evidence and experts’ fees, the “loser pays principle” does not fully apply:

Costs for evidence that has been ordered by the court have to be borne by the losing party. In general, costs for evidence and expert reports introduced by one of the parties are borne by the party that introduced the evidence. The winning party is not automatically reimbursed. However, the court can decide that the defeated party must bear the costs of evidence of the other party in total. For environmental organisations, in practice, chances are good that the private expert opinions they have commissioned will be reimbursed.[49]

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?

There are no exemptions from procedural or related costs in environmental matters.

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?

Information on access to justice in environmental matters can be found on the websites of the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit, the “BMU”) and the German Environment Agency (Umweltbundesamt, the “UBA”).

The BMU gives an overview of the background of access to justice in environmental matters and provides links to the “Handbook on Access to Justice under the Aarhus Convention of the Regional Environmental Centre for Central and Eastern Europe (2003)” and to the national Environmental Information Act (Umweltinformationsgesetz, UIG) and Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG).[50]

The UBA provides on its website information on the recognition process for environmental organisations to gain standing in environmental matters, and a list of all environmental organisations that are recognised on the federal level. It lists research reports commissioned by the UBA and other scientific studies on the topic of access to justice and gives an overview of important case law by the Court of Justice of the European Union (CJEU) and the Federal Administrative Court (Bundesverwaltungsgericht, BVerwG). Most of the information is in German language. UBA also provides a brochure published in May 2018 by the Ministry for the Environment, Nature Conservation and Nuclear Safety and the German Environment Agency, giving useful information for the public and environmental organisations,[51] including a description of the available legal remedies and information on costs.

The Independent Institute for Environmental Issues (the “UfU”) operates a website on environmental participation which also has a section on access to justice.[52] In 2017, the UBA published a study conducted by the UfU on access to justice by environmental associations.[53] Both the website and the study are in German.

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

Administrative decisions must clearly state whether an appeal is possible, and, if so, specify the administrative unit or court that is competent to receive the appeal and the time limit for an appeal.

There is a special section at the end of the decision titled “Rechtsbehelfsbelehrung” or “Rechtsmittelbelehrung” (“instructions on available remedies”). If this information is missing or incorrect, the time limit for the appeal will not start running according to § 58 (1) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), and, in consequence, an appeal is possible within one year of service, publication or pronouncement, § 58 (2) sentence 1 VwGO. See also the following section 3).

3) What are the sectoral rules (EIA, IPPC/IED, regarding plans and programmes, etc.)? Are there different ways of active dissemination of information on access to justice in the areas of EIA, IPPC/IED, regarding plans and programmes, etc.)?

For projects under the regime of the Federal Immission Control Act (Bundes-Immissionsschutzgesetz, BImSchG) the permit has to be issued in written form and must either be sent to the applicant and to all those involved that raised objections or be published via public announcement, § 10 (7), (8) BImSchG. The written permit has to include information on access to justice, which is usually provided in a special section at the end of the permit titled “Rechtsbehelfsbelehrung” (“instructions on available remedies”), cf. § 10 (8) BImSchG.

For projects under the regime of the IED, the permit also has to be published via the internet, § 10 (8a) BImSchG; this includes the instructions on available remedies.

For projects under the regime of the EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG), the permit has to be published via public announcement and must be made available for perusal including information on access to justice provided in a special section headed “Rechtsbehelfsbelehrung” or “Rechtsmittelbelehrung” (“instructions on available remedies”), § 27 UVPG, § 74 (5) sentence 2 and (4) sentence 2 of the federal Administrative Procedure Act (Verwaltungsverfahrensgesetz, VwVfG).

For plans and programmes under the regime of the EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG) – which also implements the SEA directive – the adopted plan or programme has to be made available for perusal together with several documents including information on access to justice provided in a special section headed “Rechtsbehelfsbelehrung” or “Rechtsmittelbelehrung” (“instructions on available remedies”), except if the plan or programme was adopted in form of a legislative act, § 44 (2) sentence 4 UVPG.

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

There are no special rules on this in the environmental sector. The general rule applies, see § 58 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO):

“Administrative decisions as well as court decisions must clearly state whether an appeal is possible, and, if so, specify the administrative unit or court that is competent to receive the appeal and the time limit for an appeal.”

Thus, there is a special section at the end of the decision titled “Rechtsbehelfsbelehrung” or “Rechtsmittelbelehrung” (“instructions on available remedies”). If this information is missing or incorrect, the time limit for the appeal will not start running according to § 58 (1) VwGO, and, in consequence, appeal is possible within one year of service, publication or pronouncement, § 58 (2) sentence 1 VwGO.

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

According to law, German has to be used in court and court procedures, see § 184 Courts Constitution Act (Gerichtsverfassungsgesetz, GVG), § 55 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). If persons are participating in a court hearing who do not have a command of German, an interpreter shall be called in, § 185 (1) sentence 1 of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG).

In administrative procedures, German has to be used as well, see § 23 (1) Administrative Procedure Act (Verwaltungsverfahrensgesetz, VwVfG). Thus, in general, foreign individuals or NGOs are required to provide for translation themselves. In the case of transboundary procedures, different rules apply, see 1.8.4.

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

With regard to EIA, access to justice is granted regarding decisions on the permitting of projects in the meaning of § 2 (6) EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG), which cover, inter alia, projects within the scope of the EIA Directive, § 1 (1) sentence 1 no. 1 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG). Access to justice is provided as soon as there is the possibility that an EIA might be mandatory.

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

Focus on screening only, scoping and the substantive decision (permit) will come later.

Screening (as well as scoping) decisions cannot be challenged in court separately, but only together with the administrative act that includes the EIA, see § 44a Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO): § 4 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG) stipulates that the EIA is a non-independent part of administrative permit procedures.

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

Scoping decisions cannot be challenged in court separately, but only together with the administrative act that includes the EIA, such as a permit or the adoption of a plan, see 1.8.1 1).

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

Screening as well as scoping decisions cannot be challenged in court separately, but only together with the administrative act that includes the EIA, see 1.8.1 1) and 2). The administrative decisions on environmental projects can thus only be challenged at the stage of final authorisation.[54] The regular deadlines for administrative law apply, along with the deadlines of § 2 (3) sentence 1 UmwRG and § 6 UmwRG, see 1.7.1 3).

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

The general rules apply, see 1.4.

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

In general, Article 19 (4) of the Basic Law (Grundgesetz, GG) obliges courts to review all factual and legal points of an administrative decisions.

According to § 2 (1) sentence 1 no. 1 UmwRG, § 2 (4) sentence 1 UmwRG and § 1 (1) sentence 1 no. 1 UmwRG, the full scope of review (objektive Rechtskontrolle) applies for actions brought by NGOs.

The scope of judicial review is limited if the legislator confers a margin of discretion to the competent administrative authority. If statutes empower the authority to choose between different options, the court has to accept that and is limited in its judicial control. It only can examine whether the discretion has been exercised in a legally correct way by the administration. An error of discretion arises when the margin of discretion is exceeded or the objective of the authorisation has been disregarded, see § 114 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). This rule applies without special regulations in the field of environmental law.[55]

There is another exemption from full judicial review that is still to some extent relevant in environmental law. The administration hitherto enjoyed a certain margin of appreciation with regard to the interpretation of certain legal provisions (behördliche Einschätzungsprärogative). In the case of such a margin of appreciation a court would only examine whether the authority

• complied with the procedural rules,
• shows a correct understanding of the legal concept at stake,
• ascertained the facts in a correct and comprehensive manner,
• complied with standards of assessment, in particular the prohibition of arbitrariness,

and the margin of appreciation had to follow directly from a legal provision or from interpretation.[56]

An example in the field of EIA is § 5 (3) sentence 2 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG) which explicitly specifies a margin of appreciation by limiting judicial review. Authorities thus enjoyed a margin of appreciation when deciding whether a project requires an EIA or not, if this decision derived from a preliminary examination according to § 7 UVPG. In the event that an authority decided that a project does not require an EIA, and it has conducted a preliminary examination according to § 7 UVPG, judicial review of the permit decision was limited to the question whether the preliminary examination complied with the requirements of § 7 UVPG and whether the outcome is reasonable.

In its decision from 2018 in the field of nature protection, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), criticised the use of this margin of appreciation.[57] The BVerfG stated that the limitation of the scope of judicial review would not follow from a margin of appreciation granted to the administration, but that the court could take the administration´s evaluation as a basis for its decision on the scientific and practical question at stake, if the court had reached the limits of possible clarification in terms of the state of scientific and practical knowledge in the field of nature protection. The court stated further that it was up to the legislator to provide, in the long run, at least regulatory standards on the underlying scientific findings.[58]

When administrative courts decide cases in environmental matters they are not restricted to the information the parties provide. Courts can (and must, if necessary) examine the facts on their own motion and also produce evidence themselves on the principle of ex officio investigation (Untersuchungsgrundsatz), see § 86 (1) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). The courts are free to evaluate evidence following their conviction gained from the overall outcome of the proceedings, see § 108 VwGO. It is up to the court to evaluate the expert opinions - whether they are expert opinions introduced by the parties or opinions of court-appointed experts.

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

Administrative decisions on environmental projects can be challenged at the stage of final authorisation, see § 44a VwGO.

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

The regular rules apply, see 1.3.2. and 1.1.7 3).

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 10?

If a permit procedure requiring an EIA is at stake, standing does not require participation in the public consultation phase of the administrative procedure, see § 1 (1) sentence 1, § 7 (4) Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG).[59]

§ 5 UmwRG stipulates that if an individual or an association raises concerns for the first time during the judicial procedure and if this is done in an abusive or dishonest way, these concerns are to be left unconsidered by the court. § 5 UmwRG copies the limitations as envisaged by the CJEU.[60] Up until now national courts have not attached great importance to this legal norm and it is still open whether it will become more important in practice.

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

The national jurisdiction uses the framework given by the principles of an effective procedure as guaranteed in Article 19 (4) Basic Law (Grundgesetz, GG) to provide for a fair and equitable procedure as required in Article 9 (4) of the Aarhus Convention.

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

The notion of “timely” is an essential component of the constitutional guarantee for an effective legal remedy which is enshrined in Article 19 (4) Basic Law (Grundgesetz, GG). There are no fixed deadlines for the courts to deliver a judgment.

After Germany was criticised by the European Court of Human Rights in November 2011, new legislation was enacted which enables the parties to a court case to warn a court when the procedures are on the verge of taking excessive time, and to claim special damages if the procedure takes too long.[61] The main provisions can be found in §§ 198 et seq. of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG).

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?

Injunctive relief is available according to the general rules, see 1.7.2 6).

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

The IED was transposed into German national law in 2013 via amendments to the existing sectoral environmental legislation, mainly to the

• Federal Pollution Control Act (Bundes-Immissionsschutzgesetz, BImSchG),
• the Waste Management Act (Kreislaufwirtschaftsgesetz, KrwG) and
• the Federal Water Act (Wasserhaushaltsgesetz, WHG).

For this reason, there is no specific standalone IED process or procedure, but the IED requirements are integrated into the generally applicable permission processes. Access to justice related to the IED is granted in the wide range of cases when IED requirements are part of projects and permission procedures listed in § 1 (1) sentence 1 no. 1 and (2) Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG). For the projects and permission procedures listed in no. 2, the same rules apply as for those in no. 1, so that in general, the answers given under 1.8.1 are also valid for 1.8.2.

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?

There is no specific standalone IED process or procedure, but the IED requirements are integrated into the generally applicable permission processes. The general standing rules apply, see 1.7.2. Only the final decision is challengeable, following the general rules.

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

There is no specific standalone IED process or procedure, but the IED requirements are integrated into the generally applicable permission processes. The general standing rules apply see 1.7.2. Only the final decision is challengeable, following the general rules.

Screening decisions cannot be challenged in court separately, but only together with the administrative act when the final authorisation is published.

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

There is no specific standalone IED process or procedure, but the IED requirements are integrated into the generally applicable permission processes. The general standing rules apply see 1.7.2. Only the final decision is challengeable, following the general rules.

Scoping decisions cannot be challenged in court separately, but only together with the administrative act when the final authorisation is notified.

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

There is no specific standalone IED process or procedure, but the IED requirements are integrated into the generally applicable permission processes. The general standing rules apply, see 1.7.2. Only the final decision is challengeable, following the general rules. The regular deadlines for administrative law apply, additionally the deadlines of § 2 (3) sentence 1 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) and § 6 UmwRG apply, see 1.7.1 3).

6) Can the public challenge the final authorisation?

(Only) the final decision is challengeable, following the general rules.

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?

See 1.8.1. 5).

8) At what stage are these challengeable?

See 1.8.2. 5).

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

The general rules apply, see 1.3.2. and 1.1.7 3).

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?

For projects listed and referred to in § 1 (1) sentence 1 no. 1 and no. 2 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG), standing does not require participation in the public consultation phase of the administrative procedure, see § 7 (4) UmwRG.[62]

§ 5 UmwRG stipulates that if an individual or an association raises concerns for the first time during the judicial procedure and if this is done in an abusive or dishonest way, these concerns are to be left unconsidered by the court. § 5 UmwRG copies the limitations as envisaged by the CJEU[63]. Up until now national courts haven´t attached great importance to this legal norm and it is still open whether it will become more important in practice.

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

The national jurisdiction uses the framework of the constitutional guarantee for an effective legal remedy which is enshrined in Article 19 (4) Basic Law (Grundgesetz, GG) to provide for a fair and equitable procedure as required by Article 9 (4) of the Aarhus Convention.

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

Indeed in the context of IED decision-making and/or challenging IED related decisions (screening, scoping, authorization).

The notion of timely is an essential component of the constitutional guarantee for an effective legal remedy which is enshrined in Article 19 (4) Basic Law (Grundgesetz, GG). There are no fixed deadlines for the courts to deliver a judgement. After Germany was criticised by the European Court of Human Rights in November 2011, new legislation was enacted which enables the parties to a court case to warn a court when the procedures are on the verge of taking excessive time, and to claim special damages if the procedure takes too long.[64] The main provisions can be found in §§ 198 et seq. of the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG).

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?

The IED requirements are integrated in the generally applicable permission processes, injunctive relief is available according to the general rules, see 1.7.2 6).

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

There are no specific shortcomings as to information on access to justice concerning IED requirements.

1.8.3. Environmental liability[65]

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?

Cover the legal standing requirements here that apply to national or legal persons (NGOs) in request for action cases for the judicial review of the environmental authorities.

In Germany, the ELD has been transposed by the Environmental Damages Act (Umweltschadensgesetz, USchadG). This law sticks closely to the wording of the Directive.[66] The USchadG is a framework law setting minimum standards. More specific legal regulations with stricter requirements prevail over the provisions of the USchadG, § 1 (2) USchadG.[67]

The standing rules for challenging decisions on environmental remediation that fall within the scope of the USchadG do not differ from the standing rules in other environmental cases[68], see 1.4.3) for more details. In general, the provisions of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO) apply.[69] Private persons have standing if they can claim an impairment of their own rights, see § 42 (2) VwGO.

According to § 11 (2) USchadG, NGOs (officially recognised environmental associations) have standing to challenge acts or omissions by authorities based on § 2 and § 1 (1) sentence 1 no. 3 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG), see also 1.4. 3) for more details[70]. According to § 2 (1) sentence 2 UmwRG, their standing covers only cases where the association claims an infringement of provisions relating to the environment in the meaning of § 1 (4) UmwRG.

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

The procedural requirements for legal actions against acts or omissions under the USchadG are generally the same as for other environmental acts[71], see 1.7.1. This means that a remedy first has to be sought at the administrative level; if relief is denied, the general deadline to appeal in court is one month, § 74 (2) of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO).

Additionally, the deadlines of § 2 (3) sentence 1 UmwRG (one year, if members of the public concerned were not notified of the administrative decision, and if there was no public notification either; the time limit starts from the day the decision came to attention of the claimant or could have come to its attention) and § 6 UmwRG (10 weeks to substantiate an NGO claim and to provide evidence) apply, see 1.7.1 3).

3) Are there requirements for observations accompanying the request for action pursuant to Article 12(2) ELD and if yes, which ones? Does the request for action need to be accompanied by scientific underpinning or data?

The request for action in the meaning of Article 12 ELD is transposed by § 10 USchadG. This provision gives a right to individuals and environmental associations to request action and requires the applicant to submit evidence showing in a plausible manner that environmental damage exists.[72]

4) Are there specific requirements regarding ‘plausibility’ for showing that environmental damage occurred, and if yes, which ones? Does the person requesting action need to substantiate its request with data?

With regard to the plausibility requirement, the applicant who filed the request for action carries the burden of proof and is under an obligation to cooperate with the competent authorities. While the applicant is under an obligation to submit evidence showing that the occurrence of environmental damage is “plausible”, the competent authority is under an obligation to take into account any information that it has of its own. The plausibility requirement does not need to be fulfilled only on the basis of the information given by the applicant. However, if the information provided by the applicant is insufficient and the authority does not have additional evidence to confirm the existence of environmental damage, the request can be rejected.[73]

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)?

Negative decisions constitute administrative decisions under German law, they must be reasoned and give details of the available remedies and must be notified to the applicant.[74]

If the competent authority decides to pursue the request, this conclusion does not amount to an administrative decision. The competent authority notifies the individuals and organisations that are entitled to request action according to § 10 USchadG of the remedial measures planned and gives them the opportunity to comment, § 8 (4) USchadG. The notification can be realised in form of a public announcement and § 8 (4) USchadG does not determine a deadline for comments but stipulates that the authority has to consider the comments arriving “on time” when deciding on the remedial measures.

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?

Germany did not extend the entitlement to request action of the competent authority to cases of imminent threat of such damage. According to § 10 USchadG, individuals affected by environmental damage or NGOs can only request action with regard to damage that already occurred.

However, despite the absence of an obligation, an authority has the option to act in cases of imminent danger. If individuals or NGOs bring evidence of an imminent danger to the attention of an authority, the authority can ask the operator to take preventive measures. However, as stated above, in the absence of an obligation to act, in this case an action by the authority is not enforceable on the basis of § 10 USchadG.[75]

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

The USchadG does not determine the competent authorities. The competence of authorities is allocated by the states (Länder). In principle, the authority that is competent in a specific field is also competent for the enforcement of the USchadG in that field.[76]

8) Does the MS require that the administrative review procedure be exhausted prior to recourse to judicial proceedings? It applies only in cases where there is an administrative review available, obviously.

If an individual or an NGO demands that the competent authority take action according to § 10 USchG and the authority refuses this in its decision, the administrative review procedure is mandatory according to the general rule of § 68 VwGO prior to judicial review.

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 that a project is likely to have a significant impact on the environment of another country, a transboundary EIA has to be carried out. This is stipulated by the international Espoo Convention[77] and has been transposed into German law. The competent foreign authorities are to be notified “in good time” (“frühzeitig”), § 54 (1) sentence 1 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG), see also 1.8.4 6). When the decision on a project has been taken, the issuing German authority is under an obligation to forward the decision to the foreign authorities involved, see § 57 (1) UVPG . Only the final decision is challengeable.

For plans and programmes in a transboundary context the SEA Protocol[78] stipulates in Article 10 (1) that if a party to the protocol considers that the implementation of a plan or programme is likely to have significant transboundary environmental effects this party shall notify the affected party as early as possible before the adoption of the plan or programme. This requirement is transposed into German law in § 60 (1) UVPG.

According to Article 11 (2) of the SEA Protocol after the adoption of a plan or programme the parties consulted according to Article 10 are to be informed. This requirement is transposed into German law in § 61 UVPG.

2) Notion of public concerned?

In cases of cross-border EIA or SEA as set out in § 56 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG) or § 61 UVPG, the notion of the public concerned is – just like for national cases – defined by § 2 (9) UVPG. It includes any person whose interests are affected by a permit decision or a plan or a programme, including associations and environmental NGOs whose interests, as laid down in their statutes, are affected by a permit decision or a plan or a programme.

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)?

In principle, foreign NGOs enjoy the same rights to challenge acts and decisions taken during procedures in environmental cases as domestic NGOs.[79] In order to be able to exercise the special procedural rights of recognised environmental organisations, NGOs have to fulfil the conditions laid down in § 3 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) and make a request for recognition. Recognition must be granted when the legal requirements are met[80]. For foreign NGOs, the Federal Environmental Agency (Umweltbundesamt, the “UBA”) is in charge of the recognition process. The competent court is the same as for domestic NGOs and is specified in the information on legal remedies that is published along with the decision, § 57 (1) sentence 2 no. 2, § 61 (2) sentence 2 no. 3 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG). For more details see section 1.4, inter alia on the safeguard measure for foreign associations in § 2 (2) sentence 2 UmwRG.

Injunctive relief is available according to the general rules, see 1.7.2 6).

According to § 116 Code of Civil Procedure (Zivilprozessordnung, ZPO) and § 166 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), legal entities (i.e. also environmental organisations) can also request legal aid, when they are based in or a resident of Germany or in a Member State of the EU or EEA. For more details see section 1.7.3. 4) and 5).

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)?

In principle, access to justice by the foreign public concerned is subject to the same rules that apply to the domestic public, see 1.4 3). In the case of individuals who are affected by a project as neighbours, for example, it is presumed that the requirement for standing is fulfilled.[81]

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

For information on the project and public participation: see 6).

Information on the decision and access to justice: When the decision (positive or negative) has been taken, the issuing German authority is under an obligation to forward the decision to the foreign authorities involved, see § 57 (1), § 61 (2) EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG).[82] While § 57 (1) sentence 1 UVPG explicitly only prescribes the communication of a positive decision, the objectives of the law also require rejections to be transmitted.[83]

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

In the event that a project is likely to have a significant impact on the environment of another country, the competent foreign authorities are to be notified “in good time” (“frühzeitig”), see § 54 (1) sentence 1 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG). If the other country declares that it wishes to participate, a cross-border participation process is carried out, § 54 (5) UVPG, following the rules stipulated in §§ 55 – 57 UVPG.

If the other country does not wish to participate, the public concerned from this country can take part in the domestic participation process, § 54 (6) UVPG, following the rules stipulated in §§ 18 - 22 UVPG, so that the same time limits apply as to foreign stakeholders as for national actors, see also section 1.7.1.

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

The decision submitted to the foreign authorities must include a translation of the information on legal remedies. The German authorities have to help to ensure (“darauf hinwirken”) that the foreign public concerned is informed of the decision by the competent foreign authorities, § 57 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG).

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

The authority must provide the notification as well as other documents that are relevant in the participation process in the language of the neighbouring country, § 55 EIA Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG). In the same way, foreign authorities and the foreign public have the right to submit their comments in their own language, § 56 (4) UVPG.

The decision can be submitted in German, but a translation has to be provided of the sections that are of particular relevance for the foreign authorities and the foreign public and of the information on legal remedies, § 57 UVPG. According to the law, sections of particular relevance include information on how the likely transboundary environmental effects of the project and the statements of the foreign authorities and the foreign public have been considered in the decisions and what remedial measures have been taken to offset transboundary environmental effects.

9) Any other relevant rules?

Germany has concluded agreements with some of its neighbouring countries to flesh out the requirements of the Espoo Convention and to lay down concrete rules and procedures:

• For the Netherlands: Common Declaration of the Ministry of Infrastructure and Environment of the Netherlands and the Ministry for the Environment of Germany, 2013.
• For Poland: Agreement between the Governments of Poland and Germany, 2007 (an amendment will enter into force in 2021).
• For France and Switzerland: Guidelines on transboundary collaboration in environmental projects, and plans and programmes. Issued by the Parties of Upper Rhine Conference of Germany, France and Switzerland in 2016.

[1] Umweltbundesamt, A Guide to Environmental Administration in Germany, 2019, p. 42.

[2] For more detailed information in English see Umweltbundesamt, footnote 1, p. 39.

[3] Federal Administrative Court (BVerwG), Judgment of 27 February 2018, - 7 C 26/16 (in German).

[4] Federal Administrative Court (BVerwG), Judgment of 26 September 2019, - 7 C 5/18 (in German)

[5] Federal Administrative Court (BVerwG), Judgment of 26 September 2019, - 7 C 5/18 (in German)

[6] Federal Administrative Court (BVerwG), Decision of 4 May 2020, - 4 CN 4.18 (in German).

[7] Federal Administrative Court (BVerwG), Decision of 4 May 2020, - 4 CN 4.18 (in German).

[8] CJEU, case C-300/20.

[9] The list has recently been extended by the Investment Acceleration Act (Investitionsbeschleunigungsgesetz) of 3.12.2020, BGBl. I S. 2694.

[10] For detailed information in English see Umweltbundesamt (Ed.). (2019). A Guide to Environmental Administration in Germany. S. 46

[11] For detailed information in English see Umweltbundesamt (Ed.). (2019). A Guide to Environmental Administration in Germany. S. 47 ff.

[12] For detailed information in English see Umweltbundesamt (Ed.). (2019). A Guide to Environmental Administration in Germany. S. 51.

[13] For detailed information in English see Umweltbundesamt (Ed.). (2019). A Guide to Environmental Administration in Germany. S. 52.

[14] For detailed information in English see Umweltbundesamt (Ed.). (2019). A Guide to Environmental Administration in Germany. S. 53 ff.

[15] I.e., inter alia, about (formal) administrative decisions (Verwaltungsakte) permitting projects and public law contracts on projects when they are based on legal provisions relating to the environment that are based either on federal law, on state legislation or on directly applicable EU law.

[16] Act on Access to Justice with regard to overlong judical procedures and criminal investigation proceedings (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) of 24.11.2011, BGBl. I, S. 2302.

[17] Statistisches Bundesamt (Destatis) (2019) Rechtspflege Verwaltungsgerichte 2018. Fachserie 10 Reihe 2.4., p. 23 and p. 26 f., the numbers relate to all cases except for asylum proceedings.

[18] Statistisches Bundesamt (Destatis) (2019) Rechtspflege Verwaltungsgerichte 2018. Fachserie 10 Reihe 2.4. , p. 120 f., the numbers relate to all cases except for asylum proceedings.

[19] Statistical report by the Federal Administrative Court concerning the time period from 1 January 2018 to the 31 December 2018, p. 69.

[20] Court of Justice of the European Union. (2018). Annual Report 2017 Judicial Activity Synopsis of the judicial activity of the Court of Justice and the General Court, pp.121 ff. (123).

[21] Documentation of the process, see Dr. Heiner Geißler. Schlichtung S21 (in German language).

[22] The English website of the Federal Commissioner for Data Protection and Freedom of Information can be retrieved here, an overview of the Commissioners for data protection of the Länder can be found at here. (last accessed 5/05/2020).

[23] Baden-Württemberg: § 50 (1), § 49 (1) Nature Conservation Act Baden-Württemberg (Naturschutzgesetz Baden-Württemberg, NatSchG BW), Brandenburg: § 37 (1), § 36 (2) of the Implementation Act for the Federal Nature Conservation Act (Brandenburgisches Ausführungsgesetz zum Bundesnaturschutzgesetz, NaturschutzBbgNatSchAG), Mecklenburg-Western Pomerania: § 30 (5), § 19 (1), § 23 (4), (5) of the Implementation Act for the Federal Nature Conservation Act (Ausführungsgesetz zum Bundesnaturschutzgesetz Mecklenburg-Vorpommern, NatSchAG MV), North Rhine-Westphalia: § 68, § 66 (1) Nature Conservation Act North Rhine-Westphalia (Landesnaturschutzgesetz Nordrhein-Westfalen, LNatSchG NRW), Thuringia: § 46 Nature Conservation Act Thuringia (Thüringer Naturschutzgesetz, ThürNatSchG).

[24] Helpful information for the recognition request is listed at the UBA website: Umweltbundesamt. (2019, December 30). Hinweise zur Antragstellung.

[25] An up-to-date list of all environmental organisations recognised on the federal level, including links to the competent Länder authorities for recognition on Länder level, is published by UBA, see Umweltbundesamt. (2020, April 15). Vom Bund anerkannte Umwelt- und Naturschutzvereinigungen.

[26] Foreign NGOs enjoy the privilege of § 2 (2) (2) UmwRG which stipulates that the request to register of a foreign NGO is considered as if it was already granted as long as there is no negative decision to their request.

[27] Bayerisches Landesamt für Umwelt. (2017). UmweltWissen – PraxisLabore und Sachverständige im Umweltbereich.

[28] https://www.resymesa.de/ReSyMeSa/Sachverst/ModulStart?modulTyp=ImmissionsschutzSachverst

[29] Bundesverband Deutscher Sachverständiger und Fachgutachter e.V. Der gerichtliche Sachverständige.

[30] IHK. Welcome to the German nationwide register of experts

[31] To decide to which amount the cost were necessary is also at the discretion of the court, the cost rules of the law on the remuneration of experts, interpreters, translators etc. (Justizvergütungs- und -entschädigungsgesetz, JVEG) do not apply.

[32] BVerwG, decision of 11 April 2001 - 9 KSt 2.01 u.a. -, NVwZ 2001, 919.

[33] BVerwG‚ decision of 8 October 2008 - 4 KSt 2000.08.

[34] Bayerisches Landesamt für Umwelt. (2017). UmweltWissen – PraxisLabore und Sachverständige imUmweltbereich

[35] https://www.resymesa.de/ReSyMeSa/Sachverst/ModulStart?modulTyp=ImmissionsschutzSachverst

[36] Bundesverband Deutscher Sachverständiger und Fachgutachter e.V. Der gerichtliche Sachverständige

[37] IHK. nationwide register of experts

[38] Umweltbundesamt (2020, April 15). Vom Bund anerkannte Umwelt- und Naturschutzvereinigungen.

[39] The WWF has sent a communication to the Aarhus Compliance Committee concerning the non-recognition of the NGO in terms of § 3 UmwRG, ACCC/C/2016/137 Germany, asking the ACCC to examine whether the criterium of § 3 UmwRG which demands that any NGO registering must allow every person to become a member of the organisation with full voting rights is in accordance with the Aarhus Convention, inter alia with Article 9 (2). The case is pending since 2016.

[40] Greenpeace has submitted a case to the Administrative Court of Halle (file number ‑ 2 A 583/16 HAL ‑) about the question of recognition in terms of § 3 UmwRG. The case has been temporarily suspended with approval of all parties involved with regard to the pending case of the WWF before the ACCC, (see footnote above), see Wegener, Zeitschrift für Umweltrecht (ZUR) 2019, p. 3, section XIII.

[41] I.e., inter alia, about (formal) administrative decisions (Verwaltungsakte) permitting projects and public law contracts on projects when they are based on legal provisions relating to the environment that are based either on federal law, on Länder legislation or on directly applicable EU law.

[42] I.e., inter alia, about (formal) administrative decisions (Verwaltungsakte) permitting projects and public law contracts on projects when they are based on legal provisions relating to the environment that are based either on federal law, on state legislation or on directly applicable EU law.

[43] Act on Access to Justice with regard to overlong judical procedures and criminal investigation proceedings (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) of 24.11.2011, BGBl. I, S. 2302.

[44] Statistisches Bundesamt (Destatis). (2019). Rechtspflege Verwaltungsgerichte 2018. Fachserie 10 Reihe 2.4. p. 26 and p. 121, the numbers relate to all cases except for the cases of chambers deciding on asylum cases.

[45] (2019). Geschäftsbericht des Bundesverwaltungsgerichts für den Zeitraum vom 1. Januar 2018 bis zum 31. Dezember 2018, p. 69.

[46] Suspensive effect does not pertain when an administrative decision is void. Equally, there is no suspensive effect when the time limit for the appeal has expired before the appeal was lodged, as in this case, the administrative decision is already in force and final and cannot be challenged any more.

[47] No. 1.2, and, more specifically also No. 34.4 of the Catalogue of Value in Dispute, see Bundesverwaltungsgericht. Streitwertkatalog 2013 Streitwertkatalog für die Verwaltungsgerichtsbarkeit in der Fassung der am 31.05./01.06.2012 und am 18.07.2013 beschlossenen Änderungen.

[48] In 2008, the OVG Münster (Higher Administrative Court of North Rhine-Westphalia) ruled in its decision OVG Münster Beschl. v. 30.4.2008 – 8 D 20/08 that an application for legal aid launched by an environmental organisation was unfounded because the organisation had missed to build up a financial reserve for legal purposes in the past and it had the option try to raise funds, in particular for the case that was at stake. The court found that the organisation did not lack funds unless it would have had to use all of its present funds to finance the proceedings. Moreover, according to the court, also the personal wealth of the organisation´s members needs to be taken into consideration before considering to grant legal aid. Based on this judgement where the court applied strict standards when deciding whether the association meets the criterion of “lack of resources”, a study on the development of access to justice in environmental matters (Schmidt, A. et al. (2017), Die Umweltverbandsklage in der rechtspolitischen Debatte, p. 217) called into question, whether environmental NGOs will be granted legal aid in practise at all. Up until now there seems to be no further research as to the question if environmental NGOs did apply for and received legal aid.

[49] Schmidt, A. et al. (2017), Die Umweltverbandsklage in der rechtspolitischen Debatte, pp. 213 et seq., p. 215.

[50]Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit. (2015, 20 November). Zugang zu Gerichten.

[51] Umweltbundesamt, Bundesministerium für Umwelt, Naturschutz und nukleare Sicherheit. (2018). Beteiligungsrecht im Umweltschutz. Was bringt Ihnen die Aarhus-Konvention? pp. 30 et seq.

[52] General information: Unabhängiges Institut für Umweltfragen – UfU e.V. (2020). Beteiligung in Umweltfragen. More information and links: ibid., http://www.umwelt-beteiligung.de/umweltklagen/weiterfuehrende-informationen-uk/.

[53] Umweltbundesamt. (2017). Die Umweltverbandsklage in der rechtspolitischen Debatte. TEXTE 99/2017 Umweltforschungsplan des Bundesministeriums für Umwelt, Naturschutz, Bau und Reaktorsicherheit. Retrieved from .

[54] There is an exception to this in § 17 (3), § 19 (2) Law on the search for and decision on the location of a high-level radioactive waste repository (Gesetz zur Suche und Auswahl eines Standortes für ein Endlager für hochradioaktive Abfälle, StandAG).

[55] Groß. (2018). In Rehbinder/Schink. Grundzüge des Umweltrechts. (5th ed., 4. Rechtsschutz im Umweltrecht, Rn. 66 ff.).

[56] Groß (2018), in: Rehbinder/Schink, Grundzüge des Umweltrechts (5th ed., 4. Rechtsschutz im Umweltrecht, Rn. 66 ff.).

[57] BVerfG, Decision of 23 October 2018 (Az. 1 BvR 2523/13, 1 BvR 595/14).

[58] BVerfG, Decision of 23 October 2018 (Az. 1 BvR 2523/13, 1 BvR 595/14).

[59] However, for plans and programmes, this is the case according to §§ 1 (1) (4), § 7 (3) UmwRG, see 2.2. and 2.4.

[60] in its judgment of 15 October 2015, Case C-137/14 where the court found some aspect of the prior national procedural rules regarding access to justice in non-compliance with Germany´s obligations under Article 11 of Directive 2011/92/EU and Article 25 of Directive 2010/75/EU.

[61] Act on Access to Justice with regard to overlong judical procedures and criminal investigation proceedings (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) of 24.11.2011, BGBl. I, S. 2302.

[62] However, for plans and programmes, this is still the case according to §§ 1 (1) (4), § 7 (3) UmwRG, see 2.2. and 2.4.

[63] In its judgment of 15 October 2015, Case C-137/14 where the court found some aspect of the prior national procedural rules regarding access to justice in non-compliance with Germany´s obligations under Article 11 of Directive 2011/92/EU and Article 25 of Directive 2010/75/EU.

[64] Act on Access to Justice with regard to overlong judical procedures and criminal investigation proceedings (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) of 24.11.2011, BGBl. I, S. 2302.

[65] See also case no. C-529/15.

[66] Landmann/Rohmer UmweltR/Beckmann/Wittmann/ USchadG, Vorb. Rn. 30, 31.

[67] Landmann/Rohmer UmweltR/Beckmann/Wittmann/ USchadG, Vorb. Rn. 25.

[68] Landmann/Rohmer UmweltR/Beckmann/Wittmann/ USchadG, § 11 Rn. 7-10.

[69] Landmann/Rohmer UmweltR/Beckmann/Wittmann/ USchadG § 11 Rn. 7-10.

[70] Groß. (2018). In Rehbinder/Schink. Grundzüge des Umweltrechts. (5th ed., 4. Rechtsschutz im Umweltrecht, Rn. 31.).

[71] Landmann/Rohmer UmweltR/Beckmann/Wittmann/ USchadG, § 11 Rn. 7-10).

[72] Beckmann/Wittmann. (2019). In Landmann/Rohmer. UmweltR/ USchadG. (§ 10 Rn. 3-8).

[73] Beckmann/Wittmann. (2019). In Landmann/Rohmer. UmweltR/ USchadG. (§ 10 Rn. 3-8).

[74] Beckmann/Wittmann. (2019). In Landmann/Rohmer. UmweltR/ USchadG. (§ 10 Rn. 3-8).

[75] Beckmann/Wittmann. (2019). In Landmann/Rohmer. UmweltR/ USchadG. (§ 10 Rn. 1, 2).

[76] Beckmann/Wittmann. (2019). In Landmann/Rohmer. UmweltR/ USchadG. (§ 7 Rn. 3).

[77] Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention).

[78] UNECE Protocol on strategic environmental assessment to the convention on environmental impact assessment in a transboundary context.

[79] Schink/Reidt/Mitschang/Dippel. (2018). UVPG (1st ed., § 56 Rn 10).

[80] Helpful information for the recognition request is listed at the UBA´s website.

[81] Schink/Reidt/Mitschang/Dippel. (2018). UVPG (1st ed., § 57 Rn 1-5).

[82] Schink/Reidt/Mitschang/Dippel. (2018). UVPG (1st ed., § 57 Rn. 1-5).

[83] Schink/Reidt/Mitschang/Dippel. (2018). UVPG (1st ed., § 57 Rn. 1).

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

This category covers those acts, etc. that are regulated by EU law in some way, but do not require an EIA, do not fall under the IED, do not trigger environmental liability, etc.

The CJEU’s case C-664/15 (“Protect”) is a good example. In plain language: The admitted project in that case was not subject to an EIA, being below the relevant threshold, but still triggered the CJEU to decide that there had to be access to justice and legal standing before a national court, due to fact that the proper application of the Water Framework Directive should be reviewed in a court of law.

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 question relates to the types of proceedings that are described in the beginning of the chapter. The second questions asks if in practice the case law of the CJEU prevails and if that is followed by the national courts, and also how effective that access to courts is in the national context.

For decisions, acts or omissions concerning specific activities falling within the scope of EU environmental legislation outside the scope of the EIA and IED Directives either § 1 (1) sentence 1 numbers 2a, 2b, 5 or 6 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) apply.

a) § 1 (1) sentence 1 numbers 2a and 2b UmwRG comprise a smaller range of explicitly named specific activities, inter alia those related to the Seveso Directive.

In these cases, individuals have standing according to the usual rules.

According to § 2 (1) no. 2 UmwRG, NGOs have standing according to the usual rules, provided that they can assert an infringement of legal provisions that are related to the environment in the meaning of § 1 (4) UmwRG.

The special deadlines of § 2 (3) sentence 1 UmwRG and § 6 UmwRG apply.

b) For all other decisions, acts or omissions of the category 2.1, § 1 (1) sentence 1 no. 5 UmwRG applies.

Individuals have standing in these cases according to the general rules, § 42 Law on Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), i.e. if they can maintain a possible violation of their own rights. The question is then whether “a law related to the environment” provides for such a right. For more details see 1.4 3).

NGOs have standing according to the usual rules, provided they can assert an infringement of legal provisions that are related to the environment in the meaning of § 1 (4) UmwRG, § 2 (1) sentence 2 UmwRG.

The special deadlines of § 2 (3) sentence 1 UmwRG and § 6 UmwRG apply; the deadline of § 2 (3) sentence 2 UmwRG also applies.

§ 1 (1) sentence 1 no. 5 UmwRG provides for access to justice if the decisions, acts or omissions in question qualify as administrative decisions (Verwaltungsakte) or public law contracts (öffentlich-rechtliche Verträge). For all other decisions, acts or omissions, there is no standing except if one can maintain a possible violation of one’s own rights, § 42 (2) VwGO. This is e.g. the case for statutory orders or merely factual acts (Realakte).[1] However, a statutory order may be challenged indirectly by appealing an administrative decision based on said order. In that case, the lawfulness of the statutory order is a prerequisite to the lawfulness of the administrative decision.

It is noteworthy that there is a pending case before the CJEU[2] on the question “whether” and, if so, “how” access to justice in environmental matters concerning product approvals, for example with regard to vehicles, has to be granted.

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?

§ 2 (1) sentence 2 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) stipulates that the scope of review for appeals by NGOs is restricted to the infringement of legal provisions that are related to the environment in the meaning of § 1 (4) UmwRG. Legal provisions related to the environment can be procedural as well as substantive.

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

Launching administrative proceedings without success is a prerequisite to the admissibility of judicial proceedings before the court, unless determined otherwise by federal or state law, see § 68 (1) sentences 1 and 2 VwGO, see 1.3 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.?

In the cases described under 2.1, standing does not require participation in the public consultation phase of the administrative procedure.[3]

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

§ 2 (1) sentence 2 UmwRG stipulates that the scope of review for appeals by NGOs is restricted to the infringement of legal provisions that are environment-related according to § 1 (4) UmwRG.

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

The national jurisdiction uses the framework given by the principles of an effective procedure as guaranteed in Article 19 (4) Basic Law (Grundgesetz, GG) to provide for a fair and equitable procedure as required by Article 9 (4) of the Aarhus Convention.

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

The notion of timely is an essential component of the constitutional guarantee for an effective remedy enshrined in Article 19 (4) Basic Law (Grundgesetz, GG). There are no fixed deadlines for the courts to deliver a judgement. After Germany was criticised by the European Court of Human Rights in November 2011, new legislation was enacted which enables the parties to a court case to warn a court when the procedures are on the verge of taking excessive time, and to claim special damages if the procedure takes too long.[4] The main provisions can be found in §§ 198 et seq. of the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG).

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?

Injunctive relief is available according to the general rules, see 1.7.2 6).

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 on costs apply, see 1.7.3.

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[5]

Please describe only the national SEA procedures and the adjacent administrative or judicial review procedures. Plans and programs that are specifically required by the EU legislation to be prepared will be detailed under subchapter 2.4. If you wish, you can write a more general description here and then add only the specificities under subchapter 2.4.

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?

§ 1 (1) sentence 1 no. 4 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) applies to decisions, acts or omissions that potentially require a SEA procedure (a requirement originating in the Strategic Environmental Assessment (SEA) Directive 2001/42/EC). According to § 1 (1) sentence 1 no. 4 clause 2, standing is excluded for plans and programmes adopted by a legislative body.

Individuals have legal standing if they can assert a possible violation of their personal rights, § 42 (2) VwGO, see above, 1.1.3) and 1.4.3). In the case of most plans and programmes it is difficult to demonstrate the infringement of personal rights, which limits the scope of standing for individuals with regard to plans and programmes. Plans and programmes might be challenged indirectly, however, if their lawfulness is a prerequisite to the lawfulness of an appealable administrative decision. However, for air quality plans, following the CJEU’s judgment in the Janecek case, C-237/07, individuals are considered to be affected in their personal rights by courts if no, or no sufficient air quality plan has been established by the authority.[6]

NGOs have standing according to the usual rules, provided they can assert an infringement of legal provisions that are related to the environment in the meaning of § 1 (4) UmwRG, § 2 (1) sentence 2 UmwRG.

The special deadlines in § 2 (3) sentence 1 UmwRG and § 6 UmwRG apply. § 7 (2) sentence 1 UmwRG stipulates that the Higher Administrative Courts are competent in first instance.

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?

§ 2 (1) sentence 2 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) stipulates that the scope of review is restricted to the infringement of legal provisions that are related to the environment in the meaning of § 1 (4) UmwRG. Legal provisions related to the environment can be procedural as well as substantive.

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

Launching administrative proceedings without success is a prerequisite for the admissibility of judicial proceedings before the court, unless determined otherwise by federal or state law, see § 68 (1) sentences 1 and 2 VwGO, see 1.3. 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.?

For plans and programmes, this is the case according to § 1 (1) sentence 1 no. 4, § 2 (1) sentence 1 no. 3 b), § 7 (3) sentence 1 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG), except for land-use plans, § 7 (3) sentence 2 UmwRG. Any points that were not put forward during the public consultation when there was the possibility to raise concerns are precluded from the subsequent court procedure.

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?

Injunctive relief is available according to the general rules, see 1.7.2 6).

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 on costs apply, see 1.7.3.

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[7]

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?

Individuals do not have standing for cases in this category, except if they can assert a possible violation of their own rights, § 42 (2) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), see above, 1.1.3) and 1.4.3).

Environmental organisations also have, de lege lata, no standing for the cases described in this category, as they have access to justice exclusively with regard to the subject matters listed in § (1) sentence 1 no. 1 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG), and the cases of this category do not fall into the scope of § 1 (1) sentence 1 no. 4 UmwRG or other cases of § (1) sentence 1 no. 1 UmwRG.

This means, that there is no access to justice with regard to e.g. the designation of conservation areas by legislative decrees and not requiring a SEA.[8]

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?

Not applicable, see above.

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

Not applicable, see above.

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.?

Not applicable, see above.

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?

Not applicable, see above.

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?

Not applicable, see above.

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?

National law does not differentiate between plans and programmes required to be prepared under EU environmental legislation. The plans and programmes in question are subject to national implementing legislation for the SEA Directive, the provisions listed above at 2.2 apply.

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)?

The question is about whether there are different locus standi conditions if the plan or program is adopted by legislation, by an individual resolution of a legislative body, or a single act of an administrative body, etc.

According to § 1 (1) sentence 1 no. 4 clause 2, standing is excluded for plans and programmes adopted by a legislative body.

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?

The provisions listed above at 2.2 apply.

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

The provisions listed above at 2.2 apply.

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.?

The provisions listed above at 2.2 apply.

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

§ 2 (1) sentence 2 UmwRG stipulates that the scope of review for appeals by NGOs is restricted to the infringement of legal provisions that are related to the environment in the meaning of § 1 (4) UmwRG.

For plans and programmes, in order to be able to initiate judicial proceedings, it is a requirement to participate in the public consultation phase of the administrative procedure– i.e. to make comments, participate at the hearing, etc., see § 1 (1) sentence 1 no. 4, § 2 (1) sentence 1 no. 3 b), § 7 (3) sentence 1) UmwRG. Any points not put forward during the public consultation when there was the possibility to raise concerns are excluded from the subsequent court procedure.

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

The national jurisdiction uses the framework given by the principles of an effective procedure as guaranteed in Article 19 (4) Basic Law (Grundgesetz, GG) to provide for a fair and equitable procedure as required in Article 9 (4) of the Aarhus Convention.

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

The notion of timely is an essential component of the general guarantee for an effective remedy enshrined in Article 19 (4) Basic Law (Grundgesetz, GG). There are no fixed deadlines for the courts to deliver a judgement. After Germany was criticised by the European Court of Human Rights in November 2011, new legislation was enacted which enables the parties to a court case to warn a court when the procedures are on the verge of taking excessive time, and to claim special damages if the procedure takes too long[10]. The main provisions can be found in §§ 198 et seq. of the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG).

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?

Injunctive relief is available according to the general rules, see 1.7.2 6).

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 general rules on costs apply, see 1.7.3.

1.5. Executive regulations and/or generally applicable legally binding normative instruments used to implement EU environmental legislation and related EU regulatory acts[11]

These are legislative acts that are supposed to transpose and implement EU environmental laws (to the extent possible, indeed, when talking about Regulations). Other EU regulatory acts are also relevant here if they have implementing national rules. Please focus on the national legislative processes and the related review procedures. When talking about courts, these can be regular courts, the Supreme Court or the Constitutional Court (as appropriate). Otherwise, the questions are mostly the same as in the previous subchapters.

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?

In principle, neither individuals nor NGOs have standing to challenge national regulatory acts, except when requesting a “preventive declaratory judgment” to stop an upcoming criminal sanction or where an “incident review” might offer the possibility to challenge the validity of the underlying regulatory act, which is no option if the regulatory act does not require further implementing acts.

Citizens have the option to apply to the Federal Constitutional Court to ascertain whether their constitutional rights have been violated (so-called Verfassungsbeschwerde, i.e. constitutional complaint). However, the jurisdiction of the Constitutional Court is restricted to matters directly touching questions of the constitution. This option is not a regular remedy.

One such extraordinary exception may be the application of the new Admissions Act Preparation Act (Maßnahmengesetzvorbereitungsgesetz, MgvG) Though it has not been used yet, the MgvG provides the legal foundation for adopting a limited and specified number of infrastructure projects (namely 28 road, waterway and railway projects) by way of legislation instead of an administrative act. Legislative approval decisions could later only be challenged in the Federal Constitutional Court within the scope of its jurisdiction. In this regard, if the Act were to be applied, judicial review would be limited when compared to the standard laid out by the UmwRG. While e.g. some constitutional rights can thus far not be invoked by NGOs (such as the right to health), the case for a broader application remains pending. [12]

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?

Not applicable, see above.

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

Not applicable, see above.

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.?

Not applicable, see above.

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?

Not applicable, see above.

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?

Not applicable, see above.

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?[13]

In general, when a court is uncertain as to the interpretation or validity of an act adopted by the European Union it will stay the proceedings by analogy with § 94 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), and refer the matter to the CJEU to request a preliminary ruling according to Article 267 TFEU. After the decision of the CJEU on the interpretation or the validity of the provisions in question, the national court will continue its own proceedings. Individuals or NGOs cannot initiate a preliminary procedure but they can recommend it.

Nevertheless, individuals or NGOs, in principle, have no standing with regard to executive regulations and/or generally applicable legally binding normative instruments used to implement EU environmental legislation and related EU regulatory acts, see above.

[1] Schink/Reidt/Mitschang/Franzius. (2018). UmwRG. (1st ed., § 1 Rn.8, §1 Rn. 25 ff.).

[2] C-873/19.

[3] However, for plans and programmes, this is the case according to §§ 1 (1) sentence 4, § 7 (3) UmwRG, see 2.2. and 2.4.

[4] Act on Access to Justice with regard to overlong judical procedures and criminal investigation proceedings (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) of 24.11.2011, BGBl. I, S. 2302.

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

[6] Federal Administrative Court (BVerwG), Order of 27 September 2007, case no.: 7 C 36.07.

[7] See findings under ACCC/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] Access to justice with regard to the designation of conservation areas might be judged differently depending on the outcome of the following case: the Federal Administrative Court requested a preliminary ruling of the CJEU pursuant to Article 267 TFEU in its currently running case (BVerwG 4 CN 4.18) as to the question whether EU law requires a SEA, or at least a decision by the Member State on the need for such an assessment, prior to the adoption of a regulation establishing an area of outstanding natural beauty, C-300/20.

This constellation should also be reflected in the light of the CJEU´s decision in the Protect case, C-664/15.

[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 the Commission Notice C/2017/2616 on access to justice in environmental matters.

[10] Act on Access to Justice with regard to overlong judical procedures and criminal investigation proceedings (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) of 24.11.2011, BGBl. I, S. 2302.

[11] Such acts come 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.

[12] Whether an NGO has standing before the federal constitutional court challenging the omission of appropriate legal norms and measures against climate change is to be considered by the BVerfG in the ongoing case 1 BvR 2656/18 which was initiated by individuals and, inter alia BUND (Bund für Umwelt und Naturschutz Deutschland e.V.

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

If an authority does not respond to a request to take action within 3 months, the requesting party might take the case to court without having to wait for an administrative decision, § 75 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO). If an administrative decision lacks the necessary information on legal remedies (Revchtsbehelfsbelehrung, see above, 1.7.4 2) and 3) or if this information is incorrect, the deadline to appeal the decision is extended from 1 month to 1 year, § 58 (2) VwGO (see above, 1.7.1. 1). Apart from those “procedural sanctions”, there are no penalties imposed.

According to § 167 (1) VwGO, the rules for non-compliance of the public administration with a judgment of an administrative court follow the special rules in § 172 VwGO instead of the general rules for enforcement of the Code of Civil Procedure (Zivilprozessordnung, ZPO).

According to § 172 VwGO, a financial penalty of up to EUR 10,000 can be imposed if an authority fails to comply with the obligation imposed on it in a judgment or interim order. The financial penalty might be ordered repeatedly, until the relevant authority complies.

Within the scope of the Code of Civil Procedure, however, in cases when the debtor fails to carry out an act, the maximum penalty is EUR 25,000, but also coercive detention is possible, § 888 (1) and (2) of the ZPO.

As can be seen from the preliminary ruling in the CJEU’s air quality case (C‑752/18), the referring court, the Higher Administrative Court of Bavaria, was in doubt whether it could interpret the national law in a way giving effect to its ruling and make use of the option of coercive detention in a situation where the only other instrument provided by the law, the penalty, had failed several times and representatives of Bavaria, even the Minister-President, declared publicly that they would not comply with court ordered measures for the improvement of air quality.

A recent decision of the Stuttgart Administrative Court ‑ 17 K 5255/19 ‑ shows that regarding the penalty the higher fine provided by civil law can be made use of by means of interpretation. Further, the court can demand that the fine is to be paid to a public-interest organisation. There are also suggestions that fines could also be made more effective by imposing them for every day of non-compliance.[1]

In another recent decision the Higher Administrative Court of Baden-Württemberg (the “VGH Mannheim”) decided[2] that when a concrete case is at stake where the public administration already demonstrated that subtle pressure was not enough to ensure compliance, not § 172 VwGO but § 167 (1) sentence 1 VwGO, § 888 ZPO, i.e. again the general rules for enforcement, should be the basis for enforcing compliance with the judgment.

Furthermore, the court decided that in cases where the state, here the Land Baden-Württemberg, has to pay a fine, it cannot be the recipient as well. Instead a non-governmental public interest organisation has to be chosen as the recipient, which the court is empowered to under § 167 (1) sentence 1 VwGO, § 888 ZPO and, secondarily, § 153a (1) sentence 2 of the German Code of Criminal Procedure (Strafprozessordnung, StPO).[3]

[1] Kaerkes, comment on VG Stuttgart, decision of 21 January 2020 – 17 K 5255/19, Zeitschrift für Umweltrecht (ZUR) 2020, p. 242 seq. (245).

[2] VGH Mannheim, decision of 14 May 2020 – 10 S 461/20, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2020, p. 972.

[3] VGH Mannheim, decision of 14 May 2020 – 10 S 461/20, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2020, p. 972.

To find more national information about access to justice in environmental matters, please click on one of the links below:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

3. Other relevant rules on appeals, remedies and access to justice in environmental matters

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

Environmental issues are primarily regulated by acts of Parliament, regulations of the central government and ministerial regulations. Regulations of local governments play a minor role. Environmental law in Estonia has undergone significant codification since accession to the EU in 2004. Since 2014, the General Part of the Environmental Code Act (GPECA) acts as a framework law for the environmental law as whole. Sectoral legal acts (e.g. Water Act, Ambient Air Protection Act, Waste Act, Nature Conservation Act) make reference to the framework law and use the terms defined therein. GPECA also includes provisions on procedural (participation) rights related to environmental permits as well as specific provisions on the standing of environmental NGOs in environmental matters.

Environmental issues are within the competence of the Ministry of Environment at the national level. The most important agency within the area of governance of the Ministry is the Estonian Environmental Board, which has various functions in the field of nature protection, environmental protection, resource use and radiation. Importantly, most environmental permits are issued by the Board. The Board also reviews administrative appeals against the permits. The other notable agencies include the Environmental Inspectorate, which is the primary enforcement agency in environmental matters, and the Environmental Agency, which collects, processes and generalises data on Estonian nature, the state of the environment and factors influencing it. Note that the Environmental Inspectorate and the Environmental Board will be merged by January 2021 under the name of the Environmental Board.

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

The Estonian Constitution provides that everyone is obliged to preserve the environment and compensate for damage caused to it (Section 53). Natural resources are considered to be national riches that must be used sustainably according to Section 5. Section 13 stipulates 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 as part of any court case 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 to which they are a party as well as the right to appeal to a higher court according to conditions provided by legislation.

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

GPECA sets out the definition of “environmental NGO” and specifies special standing of such organisations for administrative matters. The provisions are relevant to all environmental administrative matters. There are very few access to justice provisions that are applicable only to sectoral environmental issues. For instance, the Environmental Liability Act, which transposes the Environmental Liability Directive, stipulates that administrative review is mandatory before court review. It should also be noted that the Planning Act provides exceptional access to justice with regard to certain spatial plans. The provisions are applicable to planning cases in general, not only to cases that constitute environmental matters. Generally, everyone is entitled to participate in the planning proceedings and, during those proceedings, express their opinion regarding the spatial plan; the law also provides rather wide opportunity to challenge the spatial plans. Anyone can challenge in court all spatial plans except the national spatial plan and county-wide spatial plans on the basis that it is contrary to public interest (not just environmental public interest).

Other than the relatively few specific provisions, the administrative review as well as court proceedings in environmental matters are subject to the general legal regime applicable in all administrative cases. This means that the rules on administrative review are found in the Administrative Procedure Act and rules on review by the courts are found in the Code of Administrative Court Procedure (CACP). In some instances, e.g. on the issue of recusal of judges, types of admissible evidence etc., the CACP refers to the rules of the (more detailed) Code of Civil Procedure.

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

The Supreme Court of Estonia is the highest court in Estonia in all administrative matters, including environmental disputes. Although the court cannot establish new rules as such, it has had and continues to play an important role in interpreting the national laws. Such interpretations should, among others, ensure compliance with international law (e.g. the Aarhus Convention) as well as EU law (e.g. EIA Directive) that relates to access to justice in environmental matters, e.g. RKHKo 15.12.2014, 3-3-1-67-14, see 1.7.3.6. In the past, the Supreme Court has applied the Aarhus Convention directly to allow standing of environmental NGOs in administrative cases e.g. RKHKo 28.11.2006, 3-3-1-43-06.

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?

As already evidenced by the above, parties to either administrative or court procedure can rely on provisions of international treaties (including the Aarhus Convention on environmental procedural rights), if:

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

1.2. Jurisdiction of the courts

1) Number of levels in the court system

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

• administrative courts (two courts and four courthouses) and county courts (four courts and 15 court houses)
• circuit courts (Tallinn and Tartu)
• the Supreme 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 specialized courts: the administrative courts. Civil and criminal matters are heard by county courts. The circuit courts review judgments of administrative and county courts by way of appeal proceedings. Although circuit courts review all types of matters, the judges are specialized in a specific type of matter (administrative, civil and criminal). The highest-level court - the Supreme Court – reviews district court judgments by way of cassation proceedings. The Court has chambers for different types of matters, including the Administrative Chamber.[1] The Supreme Court also carries out constitutional review of legislation.

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)?

Jurisdiction between administrative courts is decided based on the location of the administrative body or place of work of the public servant against whom a case is brought. If a case is brought against a regional unit of the administrative body, the case should be brought to the court in whose territory the regional unit is located. If the case could be reviewed by multiple courts, the person bringing the case may decide which court to turn to.

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

The 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.

Regarding the jurisdiction or composition of courts, there are no specific features that would apply to environmental matters - rules that apply to administrative, civil or criminal proceedings – apply as usual. Unlike some other countries, there are no specific environmental tribunals, expert judges or similar mechanisms. However, at least some courts, such as the Tallinn Administrative Court, have internal division of tasks, which effectively results in a certain degree of specialization.

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.

In administrative matters, the judges have a more proactive role than in civil or criminal matters, which have an adversarial nature. The administrative court review is based on principles of disposition, investigation and explanation. The court may only adjudicate a matter to the extent requested in the action or other declaration provided in the law. The filing of such declarations is at the discretion of the participants in the proceedings. The court must, on its own motion, make sure that facts are ascertained that are material to the matter dealt with, where necessary by gathering evidence itself, or by imposing the obligation of presenting evidence on participants of the proceedings. The court interprets and deals with declarations of participants in the proceedings according to the actual intention of the participant who made the declaration. At every stage of the proceedings, the court must provide sufficient explanation to participants in the proceedings to guarantee that no declaration or evidentiary item necessary to protect a participant’s interests remains unrecognized because of the participant’s lack of experience in legal matters and that any defects of form that would prevent a declaration from being heard are resolved. In relation to every issue material to determining the matter, the courts must guarantee participants of the proceedings an effective and equal opportunity to present their views and the grounds for those views, and to contest the other participants’ views or to support the same.

Courts may include third parties to the dispute, if they find that the rights of such persons may be impacted by the judgment. Courts may also on their own motion change the deadlines 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 for injunctive relief.

1.3. Organisation of justice at administrative and judicial level

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

Environmental matters are dealt with by several state and local authorities. Environmental permits (permits for mining, use of water, waste management activities, pollution of ambient air) are issued by the Environmental Board. The Environmental Board is also responsible for management of all state nature conservation areas. Several other state authorities are also responsible for construction permits of infrastructure projects, e.g. Road Authority for construction of state roads, Consumer Protection and Technical Regulatory Authority for railroads etc. Local governments (municipalities) are in charge of all local-level spatial planning and construction permits.

The Environmental Inspectorate coordinates and executes supervision regarding the use of natural resources and the protection of the environment by applying the state´s coercive measures on the basis of and to the extent specified by law. The Environmental Inspectorate is an institution dealing with environmental violations and since 1 September 2011 also carries out investigations in criminal cases.

On 17 June, the Riigikogu (Parliament of Estonia) passed changes to the law that will result in the merger of the Environmental Board and the Environmental Inspectorate on 1 January 2021. The merged agency will go by the name of the Environmental Board.

The merger of the Environmental Board and the Environmental Inspectorate is part of the national reform plans approved by the government.

As regards their everyday work (administrative tasks), both agencies had to follow in general terms the Administrative Procedure Act (APA) and specific terms related to environmental laws and regulations. The administrative challenge procedure is described in the APA and generally foresees the right of a person to file a challenge if his or her freedoms are restricted by an administrative act or in the course of administrative proceedings. The challenge must be filed within thirty days from the day a person becomes or should become aware of the challenged administrative act or measure.

Unless otherwise provided for by law, a challenge must be adjudicated within ten days after the challenge is delivered to the administrative authority which reviews the challenge. If a challenge needs to be further examined, an administrative authority which reviews the challenge may extend the term for review of the challenge by up to thirty days. A notice concerning extension of the term must be sent to the person who filed the challenge. A decision on a challenge must be prepared in writing and must indicate the resolution concerning adjudication of the challenge.

A decision on a challenge must be delivered to the person who filed the challenge and to third persons. A person whose challenge is dismissed or whose rights are violated in challenge proceedings has the right to file an appeal with an administrative court under the conditions and pursuant to the procedure provided by the Code of Administrative Court Procedure. In some cases, the law provides for a compulsory administrative challenge procedure before the right to go to court also in environmental matters (for example in Environmental Liability Act).

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

Administrative environmental decisions can be appealed before administrative courts; there are no special environmental courts. Rules on standing in administrative courts depend on whether the case is brought by regular individuals (natural and legal persons) or environmental NGOs. Individuals only have standing to defend their subjective rights. The national concept of subjective right is similar with the concept of subjective right under German legal theory. Violation of subjective rights is understood in the light of the protective norm theory. According to this theory, a violation of a public law provision results in a violation of a person’s subjective right only when the violated provision protects the person’s interest. In deciding whether a person has a subjective right, both the aim of the violated norm and the weight of the person’s interest must be considered, RKEKo 20.12.2000, 3-3-1-15-01. Technically, environmental NGOs also only have standing for the protection of their subjective rights. However, in practice the NGOs have very broad standing as the violation of such rights is presumed provided the organisation meets the national definition of “environmental organisation” (see 1.4.3 for the definition) and the challenged decision is related to the field of activity or environmental goal of the NGO. True actio popularis exists, both for individuals and organisations, only for challenging certain types of spatial plans.

There is no set deadline for the delivery of a judgment after challenging administrative decision in court. In practice, environmental cases at the court of first instance may take as little as a few months or as much as several years to process (depending on the complexity of the case as well as workload of the courts).

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

There are no special environmental courts.

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

Administrative review

Administrative review procedures are regulated by the Administrative Procedure Act. The only notable exception specific to environmental matters is the standing of environmental NGOs, which is stipulated by GPECA. An administrative challenge (vaie) is 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.

In environmental matters, most of the relevant decisions are made by the state environmental authority (Environmental Board) – which is supervised by the Minister of Environment - or the local municipalities, which do not have supervisory administrative bodies. Consequently, the same administrative bodies that made the initial decision are typically in charge of administrative review of environmental decisions.

The administrative review covers both procedural and substantive legality of the challenged decision. Also “purposefulness” of the challenged decision can be reviewed. (Unlike the court review, which cannot cover “purposefulness” due the principle of separation of powers.)

Court review of administrative decisions

In general, administrative decision can be contested in court without the need to undergo mandatory administrative review. Judicial review covers both procedural and substantive legality of the challenged administrative decision. The courts are not allowed to reconsider value judgments of the administrative authorities. The review of legality by courts, however, also includes the review of whether the discretionary powers were correctly used by the authority (e.g. whether all relevant facts were identified and no manifest errors were made in weighing different interests).

Appeal against court orders and decisions

If the party to the case or third party is not satisfied with the judgment of the administrative court (1st instance court) it may appeal to the district court (2nd instance). Note that right is conferred upon all entities that are participants of the proceedings (parties and third persons) or could become a party in the appeal case if the judgment of the administrative court affects that person’s rights and freedoms which are protected by the law. Thus, the broad standing of NGOs also effectively applies in appeals. 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 circuit court. For an appeal, the person filing an appeal must justify 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.

In some situations, a court may end the proceedings or decide key issues (including application of injunctive relief, inclusion of third parties to the proceeding) with a court ruling (kohtumäärus) instead of a judgment (kohtuotsus). In such a situation, an appeal on the court ruling may be filed by the person affected by the ruling to the higher level court.

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

There are no extraordinary ways of appeal that would apply to environmental cases.

Preliminary references may be submitted to the CJEU by any court (i.e. courts of any instance). In practice, most references for preliminary ruling are made by the Supreme Court or circuit courts.

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

There are no official out of court conflict resolution mechanisms, e.g. mediation in environmental matters, which of course does not preclude parties to a conflict from trying to find such solutions. In practice, out of court solutions are discouraged by short deadlines for filing claims for review to the administrative court (a case must be brought to the court within 30 days of notification of the applicant to claim the annulment of an administrative decision). At the same time, after the acceptance of an action during preliminary proceedings, judges should ascertain whether it is possible to resolve the matter by compromise or otherwise by mutual agreement and it is possible to initiate conciliation procedure headed by the specially trained and appointed judges.

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

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 resulting in an environmental danger), criminal charges can be brought by the Prosecutor’s Office. Misdemeanours in the environmental field are handled by various agencies but primarily by the Environmental Inspectorate. These authorities also receive and investigate complaints by individuals.

If a person finds that a legislative act is unconstitutional or some activity, inactivity or omission of a public authority infringes the person’s constitutional rights, the person may also file an application with the Chancellor 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.

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)?

Environmental administrative decisions may be challenged in administrative courts by both natural persons and legal entities, including environmental NGOs. The difference lies in the grounds of standing – for individuals it would be the breach of subjective rights whereas environmental NGOs can effectively bring actions to protect public interests as well.

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

Rules on standing are the same for all environmental decisions with no sectoral differences.

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.)

Standing rules for court review and administrative review are the same, both for individuals and NGOs.

Standing for natural persons and legal entities is rights-based, i.e. you can only challenge an environmental administrative decision (e.g. air pollution permit) if and to the extent it breaches your individual rights. The courts make an initial assessment of standing based on the presumption that the applicant’s arguments are valid; however, the courts may review the issue of standing up to the moment of issuing a judgment. In administrative review, where deadlines are short, the challenge will be reviewed as a whole within those deadlines.

Standing of environmental NGOs is broader for both court proceedings as well as administrative review. An environmental organisation is defined as follows in the GPECA:

§ 31. Non-governmental environmental organisation

(1) For the purposes of this Act, a non-governmental environmental organisation (hereinafter environmental organisation) is:
1) a non-profit association and foundation whose purpose under its articles of association is environmental protection and who promotes environmental protection by its activities;
2) an association that is not a legal person, but that promotes environmental protection and represents the opinions of a significant portion of the local community on the basis of a written agreement between its members.

(2) For the purposes of subsection 1 of this section, the promotion of environmental protection also means the protection of the elements of the environment for the purpose of ensuring human health and well-being as well as the research and introduction of the nature and natural cultural heritage.

(3) Upon assessment of the promotion of environmental protection, the association’s ability to attain its goals set out in the articles of association must be considered, taking into account the activities of the association to date or, upon absence thereof, its organisation structure, number of members and the requirements of becoming a member as laid down in the articles of association.

Any NGO that meets the definition may effectively challenge environmental administrative decisions for the protection of public interests - a presumption of their standing is made if the challenged decision is related to their field of activity or environmental goals of the NGO.

Note that ad hoc groups that are not registered as legal persons can be environmental NGOs if they satisfy the following conditions:

1. a written contract of partnership has been signed by the members of the group,
2. according to the contract, the partnership aims to promote the protection of the environment,
3. the group represents the opinion of a significant proportion of its community.

The national law does not explicitly stipulate the non-discrimination clause of foreign environmental NGOs. However, there also are no clauses that would prevent foreign NGOs from relying on the same provisions on standing as national NGOs. The national law also does not explicitly stipulate that access to justice provisions need to be interpreted consistently with the objective of giving the public concerned wide access to justice. If one disregards the overall purpose of the regulation, then the abstract wording of the national provisions may be interpreted restrictively. For instance, an NGO has standing if it can demonstrate that the challenged administrative act is related to their field of activity or environmental goals. It could be argued that a Swedish NGO dedicated to protecting the grey wolf in Sweden would not have standing to challenge wolf hunting permits in Estonia as these two wolf populations are not connected. In other words, the implementation of the national law requires courts to recognize the special status of NGOs in defending public environmental interest. In general, the national courts have not interpreted standing restrictively but the court practice is limited. e.g. there is no practice on recognizing standing of foreign environmental NGOs.

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

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 and the court 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 for you to arrange for its translation. The 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 arrange for 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 an interpreter in the proceedings on your application or on its own motion. 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 an interpreter itself. In any case, you will have to pay for the associated costs. If the court organizes interpretation of proceedings, court translators are used, if possible.

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 administrative court review is based on the principle of investigation. The court must, on its own motion, make sure that facts are ascertained that are material to the matter dealt with, where necessary by gathering evidence itself, or by imposing the obligation of presenting evidence on participants of the proceedings.

In administrative environmental matters, all rules on evidence applicable to other administrative matters apply, without any distinctive features. In principle, any evidence relevant to arguments of the parties can be submitted and will be evaluated by the courts. If the courts find that there is not enough evidence, they may either ask you to provide it or gather it on their own. In principle, no type of evidence is preferred by the court. Also, parties may not limit the types of evidence admissible or give priority to some type of evidence.

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. This can be done based on an application of a party to the proceedings or on the court’s own motion. 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.

2) Can one introduce new evidence?

New evidence, i.e. evidence not gathered or used in the administrative proceedings, may be introduced in the administrative courts. Such evidence is evaluated in a similar manner to evidence gathered or used in the administrative proceedings.

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

If you want to use an expert opinion in court proceedings as evidence you may contract an expert and provide his/her opinion as documentary 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. The court will use either experts working in a state forensic institution, officially certified experts or other persons with expert knowledge on the issue as experts. If an officially certified expert is available, other persons are appointed as experts only in exceptional cases, where there is some good reason to do so. A list of officially certified experts is available here.

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

Expert opinions are treated as all other types of evidence, i.e. they are evaluated together with other relevant information to determine whether an argument has been proven or not. Therefore, they are not directly binding on judges.

3.2) Rules for experts being called upon by the court

Experts are treated in a similar manner, regardless of who applied for their inclusion in the proceedings. As a rule, they are obliged to give an expert assessment. The latter is, as a rule, a written document, in which the expert describes in detail the studies made, the results of studies and provides answers to the questions posed by the court. The expert may also be called to the hearing of the case, where they are obliged to provide answers to the questions of the parties and the court.

3.3) Rules for experts called upon by the parties

Experts are treated in a similar manner, regardless of who applied for their inclusion in the proceedings. As a rule, they are obliged to give an expert assessment. The latter is, as a rule, a written document, in which the expert describes in detail the studies made, the results of studies and provides answers to the questions posed by the court. The expert may also be called to the hearing of the case, where they are obliged to provide answers to the questions of the parties and the court.

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

Expert’s hourly fees are limited by a Regulation of the Government. As a rule, the hourly fee should be between 10 and 40 times the minimum hourly wage (as of March 2020 – 3.48 €/h). The court will decide upon the exact fee. Expert fees have to be paid only based on a claim by the expert, after the expert assessment has been given. As a rule, the expert fees must be paid by the losing party. If a prepayment is necessary, this will have to be paid by the party who applied for the inclusion of the expert or by both parties in equal sums, if the expert was included on the court’s own motion.

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

In environmental administrative matters, anyone is entitled to represent themselves in the court if they wish to, i.e. it is not mandatory to engage a professional lawyer to represent you However, if you do wish to be represented by a lawyer, you may contract someone with the following qualifications:

• advocates (advokaat) who belong to the Estonian 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.

There are no registries of lawyers specialised in the environmental field, but most of the prominent law offices also list environmental law as a field in which they offer legal services and employ lawyers with relevant experience, including:

• Ellex Raidla
• Sorainen
• Cobalt
• TGS Baltic
• Derling
• PWC Legal Estonia
• Nove
• Fort

Legal assistance (including representation) in environmental matters is also provided by the Estonian Environmental Law Centre which is a public interest NGO. Therefore, it does not provide legal assistance in cases where this would be contrary to public interests.

1.1 Existence or not of pro bono assistance

In recent years, the Ministry of Justice has organised for limited availability of pro bono and low-cost legal assistance in all legal matters. Legal assistance has been provided by private companies that have successfully competed in the tender proceedings for such assistance. Currently (until 2021) such aid is offered by HUGO.legal (previously known as Eesti Õigusbüroo).

Several private law firms offer pro bono assistance as part of their corporate social responsibility (CSR) activities in practice; however, the availability and extent of the assistance is subject to their discretion only.

Pro bono legal assistance is also given by 2^nd and 3^rd year legal students under the guidance of the Estonian Lawyers Union. Ad hoc legal aid days are arranged regularly in Tallinn in cooperation with the city government.

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.)?

To apply for the state-sponsored pro bono legal assistance, you would have to fill in the contact form found on the web page of HUGO.legal.

According to the scheme, any individual living in Estonia whose monthly total income is below €1,700 may apply for pro bono assistance and will receive legal advice in the amount of 2 hours for free. After the first two hours, the next 3 hours of legal aid would be €20/h and after these anyone is still entitled to 10 more hours of assistance with the hourly fee of €40/h. In practice, such volume of free and subsidised legal aid would be sufficient to only clarify legal remedies available. In the simplest of cases, the time may be sufficient to also prepare a draft claim to be submitted to the court. Several of the lawyers that offer such pro bono assistance also do it in English. However, none of the lawyers is member of the bar association. Also, none of them is specialised in environmental law.

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

Queries for pro bono assistance offered under the scheme subsidised by the Ministry of Justice should be made to the service provider – HUGO.legal.

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

A list of officially certified experts that can be used as expert witnesses in court proceedings is available here.

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

There are a number of national and local environmental NGOs. On the national level, the Estonian Council for Environmental NGOs (EKO) is an umbrella organisation for some of the largest and most active environmental organisations. In addition to members of EKO, Eesti Metsa Abiks is currently an active and fast-growing citizens’ movement mostly dealing with issues related to protection of forests. Estonian Society for Nature Conservation also is a national umbrella organisation, with local chapters of varying degree of activity.

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

International environmental NGOs are not active in Estonia, although several Estonian organisations are either members of international networks or in close cooperation with them (e.g. Estonian Green Movement is a member of FoEE, Estonian Ornithological Society a member of BirdLife, Estonian Fund for Nature cooperates with the WWF etc.).

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)

Administrative review

According to the Administrative Procedure Act, administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure.

Judicial review

Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court. Usually it is up to 2 months from the learning of the existence of administrative decision.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court.

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 the administrative act to be declared illegal (without its annulment).

A prohibition action may be filed without a time-limit.

2) Time limit to deliver decision by an administrative organ

Administrative review decisions must be made within 10 days of delivery of the challenge. This term may be extended by up to thirty days if the challenge needs to be further examined.

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

Generally, yes. The administrative review procedure is optional as a rule; i.e. administrative decisions may be challenged directly in court. However, there can be exceptions to that rule, for example the administrative review is obligatory before filing a court case in environmental liability issues that pertain to the national law transposing the ELD. Note that administrative decisions in Estonia do not have ‘levels’.

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

There is no general deadline set for courts to deliver their judgment, i.e. a deadline that would apply to the whole of court proceedings, beginning with bringing of the action by a party. However, as a rule, a judgment should be made and pronounced within 30 days after holding the last court hearing (or the due date for submissions if written proceedings are used). In practice this means that after the case has been studied and heard by the court, the judgment follows rather quickly.

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

Administrative review

Due to the short time limits for making a decision (10 days + option to extend it by up to 30 days) and relatively low level of formality, there are no internal deadlines for administrative review procedures.

Judicial review

The most important time limit during the procedures concerns the submission of evidence. As a rule, the court of first instance should set the final deadline for bringing new evidence. If this has not been set, the deadline to bring any new evidence is the same as bringing any new arguments, i.e. 7 days before the court hearing or 7 days before the due date for submissions. In any case, all evidence and factual claims should be brought as early in the proceedings as possible.

The time limit for bringing the appeal to circuit courts (2^nd instance) and bringing the cassation action to the Supreme Court (3^rd and final instance) is 30 days from the pronouncement of the judgment of the court of lower instance.

1.7.2. Interim and precautionary measures, enforcement of judgments

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

None of the appeals to administrative decisions have an automatic suspensive effect. To suspend the validity and performance of administrative acts, injunctive relief must be applied for.

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

During the administrative review procedures, the administrative authority may decide to suspend the validity of the decision being challenged on its own motion according to the general provisions of the administrative procedure act.

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?

A request for injunctive relief may be made by the person who has brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures.

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

Without the introduction of injunctive relief, all administrative decisions remain valid and may be executed according to the decision irrespective of the appeals. As an exception to this rule, the administrative decision itself may foresee certain restrictions to the validity or performance of rights. In practice, this is very rare: in most cases, environmental administrative decisions become valid and may be acted upon immediately after proper notification.

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

Not automatically. In order to suspend the validity of the decision, injunctive relief must be provided by the court.

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?

Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibiting the addressee of the decision from engaging in the activity regulated in the decision (e.g. construction of a building, logging, mining etc.). Injunctive relief may be granted either based on the court’s own motion or based on the application of one of the parties.

Courts must assess whether injunctive relief is truly necessary for the protection of the applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order. Only the state fee in the amount 15 euros is applied to the application of the injunctive relief.

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.

Administrative review

Administrative review is a no-cost or low-cost procedure. There are no administrative fees imposed on administrative challenges, nor will there be costs imposed to the challenger related to experts, other parties’ lawyers or anything else. On the other hand, if you use a lawyer to represent or assist you in administrative review procedures, you cannot ask those costs to be paid by the administrative authority or any other party, i.e. you must pay for them yourself even if the challenge is found to be justified. Neither can you be compensated for expenditures during the administrative review proceedings if you win the case at the next stage - in court.

Judicial review

If you bring an action to the administrative court, there are several costs that may be involved. Possible costs are divided into two general groups: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud).

Court expenses are costs that are essential for hearing the matter:

• state fee (riigilõiv). These are very low in administrative matters, e.g. €15 for submitting an annulment action and €15 for application of injunctive relief,
• security for bringing cassation procedures in the Supreme Court (€ 25), and
• costs essential to the proceeding (e.g. costs related to witnesses, experts, interpreters and translators, obtaining evidence etc.). These can vary to a large degree, depending on the case. The costs may be substantial but usually the costs are modest.

Extrajudicial costs include 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.

In most cases, fees for contractual representatives (lawyers’ fees) are the largest cost that may arise in environmental matters. Depending on the complexity of case, amount of evidence etc., lawyers’ fees may be from around a five hundred euros to tens of thousands of euros in the court of first instance. According to the general court practice, compensated costs of the appeal and cassation proceedings cannot be higher than those in the first level proceedings.

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

If you apply for injunctive relief, a state fee of €15 must be paid. No deposit is required for applying for injunctive relief.

3) Is there legal aid available for natural persons?

In addition to pro bono legal aid subsidised by the Ministry of Justice (see 1.6.), state legal assistance (provided by members of the Bar association) is awarded to those natural persons who would not otherwise be able to afford legal aid. Whether the person is able to afford legal aid or would be subject to state legal assistance is decided by a court ruling, based on an application of the person asking for assistance. There are certain conditions for qualifying for assistance, based on the financial status of the person. The conditions for assistance are rather restrictive. For instance, the aid is not provided if the applicant could bear the costs of legal services at the expense of their existing property that can be sold without any major difficulties, except at the expense of certain assets specified in law. State assistance is also not provided if there are sufficient reasons to believe that the person’s participation in the court proceedings will not be successful.

Application for state legal assistance should include:

• proceedings for which exemption is applied for,
• applicant’s role in these proceedings as well as their main claims,
• basis for applicant’s claim or objection.

Natural persons also need to include a statement on their financial situation (as well as their family’s) and other documents proving that statement.

State legal assistance is not always for free; depending on the financial situation of the person, they may be required to partially cover the costs and/or cover the costs in instalments.

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?

In addition to natural persons, environmental NGOs (either from Estonia or other EU countries) may also receive state legal aid provided that:

• they apply for the aid in relation to their field of activity and aims,
• they would be unable to cover the costs on their own or do so in full amount.

Applying for and deciding if and to what extent the aid is given is similar to natural persons. Instead of statements of financial situation, a copy of the statute of that organization and the certified copy of the previous year’s annual report should be added to the application.

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

No.

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

In principle, the ‘loser pays’ principle is applied. However, in administrative matters the courts generally do not require the costs of the administrative authority to be paid because the authority is expected to be able to handle typical disputes by itself using its own resources. Thus, if an administrative authority were to use attorneys from private law offices for representation, their costs would be in most cases ineligible. Only if the case is not related to the main field of activity and is very complicated can the costs of legal representation be imposed on the losing applicant. Nonetheless, the legal fees of third persons have to be borne. Typically, the addressee of an environmental decision (the developer) is a private company, which participates in the proceedings by way of a legal representative. If a natural person or an environmental NGO loses the case, they would have to, in principle, pay the legal fees and other court expenditures of the developer.

Administrative courts have discretionary powers to decide, which cost are ”reasonable”. The court also may reduce the cost if bearing the cost would be manifestly unreasonable or unjust for the losing party. The national provisions do not specifically refer to environmental matters. However, the Supreme Court has ruled (starting with the judgment in case 3-3-1-67-14) that this discretion must be used, bearing in mind the obligations arising from Art 9(4) of the Aarhus Convention and relevant EU legislation (e.g. the EIA Directive). Case 3-3-1-67-14 concerned the mining of shale oil. The court found that it would be unjust to require full compensation of the legal fees of the developer by natural persons who challenged the administrative decision. This would also constitute a barrier to access to justice. According to court, the individuals requested a court review of an act that intensively interferes with their basic rights (right to property, right to respect to private life and home, right to health), the individuals did not act in bad faith and the complaints were not manifestly unfounded. Mining activities have a significant impact on the environment and developers of such activities must “bear the necessity of the court review of environmental administrative acts”. RKHKo 15.12.2014, 3-3-1-67-14.

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?

In addition to state legal aid, administrative courts can exempt you from paying state fees and security as well as costs essential for the proceedings (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 instalments.

Applications for such exemption from costs and their review by courts is similar to applications for state legal assistance.

Cost-capping or similar instruments that would pre-emptively limit the amount of costs awarded to the winning side are not available in Estonia.

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?

National rules on environmental access to justice are mostly found in the Administrative Procedure Act , the Code of Administrative Court Procedure and the General Part of the Environmental Code Act, available in the online State Gazette.

Easy-to-read information on how to access judicial review procedures in administrative matters (including environmental matters) is available on the web page of Estonian Courts. Several other organisations also have materials and guidance available, including the provider of subsidised pro bono legal aid (HUGO.legal) and NGO Estonian Environmental Law Centre.

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

Both administrative authorities as well as administrative courts are obliged to assist individuals and organisations if this would be necessary for protection of their rights. For example, if a person is making claims that the court considers ineffective for the achievement of their objective, the court may suggest making different claims. In practice, courts limit their guidance and assistance if applicants use professional legal aid.

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

The rules on information regarding access to justice are not specific to such sectors.

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

Both in administrative decisions as well as judgments (other than judgments of the Supreme Court) a reference to the ways and due dates for appeal must be indicated.

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

The language of administrative proceedings is Estonian. Participants in proceedings may request involvement of an interpreter or translator at their own expense unless an administrative authority resolves that they do not have to bear the cost. The administrative authority may establish a condition that the right granted to the person by an administrative act does not arise before the costs of involvement of the interpreter or translator are paid. In oral communication with officials a foreign language may be used by agreement of the parties. If an application, request or other document is submitted in a foreign language, the agency has the right to require translation. In principle, the agency has to respond in Estonian to the document in a foreign language. The reply is translated at the request of the person who submitted the document at the expense of the person. On agreement, the response to the document may be given in a foreign language understood by both parties.

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 the court accepts it.

If you present a written statement or a document in a foreign language, the court will require it to be translated by you or arrange for 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 arrange for 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 an interpreter in the proceedings on your application or on its own motion. 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 deadline set by the court, your action may be disregarded. If this is unreasonably complicated or impossible, the court may look for an interpreter itself. In any case, you will have to pay for the associated costs. If the court organizes interpretation of proceedings, court translators are used, if available.

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 decisions (i.e. decisions whether to carry out an EIA or not) is considered to be a ‘procedural act’ (menetlustoiming) in a permitting procedure. Possibilities to bring an action against procedural acts is severely limited. In general, such acts can only be challenged together with the administrative act issued at the end of administrative procedure (e.g. environmental permit). Standalone challenges to procedural acts can exceptionally be brought if:

1. it independently infringes your substantive rights (e.g. right to protection of health or property), or
2. the unlawfulness of the procedural act would inevitably lead to an administrative act that infringes your rights.

EIA screening decisions do not, as a rule, fall under these exceptions. According to the case law of the Supreme Court, the screening decisions cannot be independently challenged in the court of law as they do not bring about independent infringement of rights nor would inevitably lead to an administrative act. The effect that the screening decision had on anyone’s rights should be evaluated together with the final administrative decision. Consequently, generally there is no standing to challenge screening decisions independently.

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

Similar to EIA screening decisions, scoping decisions are procedural acts and cannot be challenged independently.

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

Administrative decisions on environmental projects can be challenged if these are considered to be administrative acts, i.e. individual (final) decisions that create, alter or end rights and obligation of persons. In a permitting procedure, where an EIA would be carried out, this would mean that decisions can be challenged after the permit has been issued – all of the decisions made within the permitting procedures can be questioned in such an action.

Regular deadlines apply for challenging administrative acts to which EIA requirements are applied. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court but usually it is up to 2 months from the moment of getting information about the administrative decision.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

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

Final authorisations can be challenged. In principle, only final authorisations may be challenged (procedural decisions made during the course of the administrative procedures prior the final decisions can be independently challenged on a very limited grounds). Conditions to challenge such a final authorisation (e.g. environmental permit) are the same as for all environmental administrative acts.

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

Judicial review of EIA-related decisions covers both substantive as well as procedural legality. However, the courts do not independently re-evaluate the conclusions of EIA experts. If a judge or a panel of judges have doubts about the conclusions presented in the EIA report, they can include an expert in the proceedings, either on the application of parties or on their own motion.

Courts are not allowed to change the claims or arguments brought by the parties on their own motion, however they are obliged to draw parties’ attention to situations where they make claims that are not coherent with their objectives or fail to make claims that would be necessary for reaching such objectives. Sometimes courts do interpret unclear claims but in these cases the court asks the parties to confirm the court’s interpretation.

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

Decisions, acts or omissions are, as a rule, challengeable together with the final administrative act (e.g. permit), after this has been issued.

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

No, administrative review is usually optional and only in few cases law provides it before the right to court proceedings is granted.

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?

No. Participation in administrative procedures is not a precondition to have standing to challenge the administrative act in national courts.

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

General requirements apply. In administrative matters, the judges have a more proactive role than in civil or criminal matters, which have an adversarial nature. The administrative court review is based on principles of disposition, investigation and explanation. The court may only adjudicate a matter to the extent requested in the action or other declaration provided in the law. The filing of such declarations is in the discretion of participants of the proceedings. The court must, on its own motion, make sure that facts are ascertained that are material to the matter dealt with , where necessary by gathering evidence itself, or by imposing the obligation of presenting evidence on participants of the proceedings. The court interprets and deals with declarations of participants in the proceedings according to the actual intention of the participant who made the declaration. At every stage of the proceedings, the court must provide sufficient explanation to participants in the proceedings to guarantee that no declaration or evidentiary item necessary to protect a participant’s interests remains unrecognized because of the participant’s lack of experience in legal matters and that any defects of form that would prevent a declaration from being heard are resolved. In relation to every issue material to determining the matter, the courts must guarantee participants of the proceedings an effective and equal opportunity to present their views and the grounds for those views, and to contest the other participants’ views or to support the same.

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

There are no specific rules in the national legislation to ensure that judicial remedies are “timely” in EIA cases. In essence, the rather wide margin of discretion given to the judges in administrative matters to carry out procedures should ensure that the procedures are carried out with as little time and cost as possible, while at the same time ensuring proper review of challenged decisions, acts and omissions. In practice, the timeliness of judicial review is dependent on the workload of judges and their use of the discretion awarded by the Administrative Court Procedure Act. The court has a general obligation noted in law to deal the administrative matter within a reasonable period of time.

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?

Injunctive relief is available according to rules that are generally applicable to administrative court procedures; no special rules apply to EIA-related court cases.

Request for injunctive relief may be made by the person who has brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of the applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. There are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) in administrative court procedure (here is a difference with the civil procedure) and no claims for damages may be brought against a person who has applied for injunctive relief even if they lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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

There are no rules on access to justice in Estonia that would be specific and unique to the decisions made under the IPPC/IED Directives. Therefore, all of the rules applicable to environmental decisions apply.

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?

Standing rules for IPPC/IED cases are the same as for any other environmental decisions.

Standing rules for court review and administrative review are the same, both for natural and legal persons. Standing is rights-based, i.e. you can only challenge an environmental administrative decision if and to the extent it breaches your individual rights. Standing of environmental NGOs is also technically based on the violation of subjective rights of the environmental NGO but the violation is presumed provided the contested administrative decision is related to the environmental protection goals or the current environmental protection activities of the NGO. See 1.4.3 for the national definition of “environmental NGO”.

It should be noted that as a rule only the final decision (issuing of the integrated environmental permit) can be challenged. Procedural steps preceding the permits may not be individually challenged. Instead, the legality of procedural steps is assessed in the administrative or judicial review of the final decision.

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

Screening decisions are considered to be a “procedural acts” (menetlustoiming) in a permitting procedure. Possibilities to bring an action against procedural acts is limited. In general, such acts can only be challenged together with the administrative act issued at the end of administrative procedure (permit). Standalone challenges to procedural acts can exceptionally be brought if:

1. it independently infringes your substantive rights (e.g. right to protection of health or property), or
2. the unlawfulness of the procedural act would inevitably lead to an administrative act that infringes your rights.

Screening decisions do not, as a rule, fall under these exceptions. According to the case law of the Supreme Court, the screening decisions cannot be independently challenged in the court of law as they do not bring about an independent infringement of rights nor would inevitably lead to an administrative act. The effect that the screening decision had on anyone’s rights should be evaluated together with the final administrative decision. Consequently, generally there is no standing to challenge screening decisions independently.

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

Scoping decisions are procedural acts in a permitting procedure. Possibilities to bring an action against procedural acts is limited. In general, such acts can only be challenged together with the administrative act issued at the end of administrative procedure (permit). Standalone challenges to procedural acts can exceptionally be brought if:

1. it independently infringes your substantive rights (e.g. right to protection of health or property), or
2. the unlawfulness of the procedural act would inevitably lead to an administrative act that infringes your rights.

Scoping decisions do not, as a rule, fall under these exceptions.

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

In most cases, the public can challenge the administrative decisions after they are finalized. General deadlines apply. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

6) Can the public challenge the final authorisation?

General rules apply. The final authorisation can be challenged. In principle, only the final authorisation may be challenged (procedural decisions made during the course of the administrative procedures prior the final decisions can be independently challenged on very limited grounds).

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?

Judicial review of IPPC/IED-related decisions covers both substantive as well as procedural legality. The permit may be annulled both for significant procedural errors as well as if it breaches substantive legal norms.

Courts are not allowed to change the claims or arguments brought by the parties on their own motion, however they are obliged to draw parties’ attention to situations where they make claims that are not coherent with their objectives or fail to make claims that would be necessary for reaching such objectives.

8) At what stage are these challengeable?

As a rule, only final decisions may be challenged. Procedural steps (acts and omissions) can usually be challenged together with the final decision and will be reviewed together with the latter.

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

No, administrative review is optional.

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?

No. Participation in administrative procedures is not a precondition to have standing to challenge the administrative act in national courts.

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

General requirements apply. In administrative matters, the judges have a more proactive role than in civil or criminal matters, which have an adversarial nature. The administrative court review is based on principles of disposition, investigation and explanation. The court may only adjudicate a matter to the extent requested in the action or other declaration provided in the law. The filing of such declarations is at the discretion of participants in the proceedings. The court must, on its own motion, make sure that facts are ascertained that are material to the matter dealt with, where necessary by gathering evidence itself, or by imposing the obligation of presenting evidence on participants of the proceedings. The court interprets and deals with declarations of participants in the proceedings according to the actual intention of the participant who made the declaration. At every stage of the proceedings, the court must provide sufficient explanation to participants in the proceedings to guarantee that no declaration or evidentiary item necessary to protect a participant’s interests remains unrecognized because of the participant’s lack of experience in legal matters and that any defects of form that would prevent a declaration from being heard are resolved. In relation to every issue material to determining the matter, the courts must guarantee participants of the proceedings an effective and equal opportunity to present their views and the grounds for those views, and to contest the other participants’ views or to support the same.

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

There are no specific rules in the national legislation to ensure that judicial remedies are ”timely” in IPPC/IED cases. In essence, the rather wide margin of discretion given to the judges in administrative matters to carry out procedures should ensure that the procedures are carried out with as little time and cost as possible, while at the same time ensuring proper review of challenged decisions, acts and omissions. In practice, the timeliness of judicial review is dependent on the workload of judges and their use of the discretion awarded by the Administrative Court Procedure Act. The court has a general obligation noted in law to deal the administrative matter within reasonable period of time.

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?

Injunctive relief is available, general rules apply. Request for injunctive relief may be made by the person who brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of the applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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

No special arrangements have been made to provide information on access to justice for IPPC/IED cases.

National rules on environmental access to justice are mostly found in the Administrative Procedure Act , the Code of Administrative Court Procedure and the General Part of the Environmental Code Act, available in the online State Gazette.

Easy-to-read information on how to access judicial review procedures in administrative matters (including environmental matters) is available on the web page of Estonian Courts. Several other organisations also have materials and guidance available, including the provider of subsidised pro bono legal aid (HUGO.legal) and NGO Estonian Environmental Law Centre.

1.8.3. Environmental liability[2]

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?

Decisions made under the ELD rules may be challenged like any other environmental decisions.

Standing rules for court review and administrative review are the same, both for natural and legal persons. Standing is rights-based, i.e. you can only challenge an environmental administrative decision if and to the extent it breaches your individual rights. Standing of environmental NGOs is also technically based on the violation of subjective rights of the NGO but the violation is presumed provided the contested administrative decision is related to the environmental protection goals or the current environmental protection activities of the NGO. See 1.4.3 for the national definition of “environmental NGO”.

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

General deadlines apply. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

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

There are no specific requirements as to the content of request for action. The request should include ‘relevant information’ on environmental damage or threat of damage. The national law does not define the information further.

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

No, there are no specific requirements regarding plausibility of the request for action.

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)?

The Environmental Board must notify the person who requested action immediately of their justified decision on the request and include a copy of its decision. The generally applicable time limit for making such a decision is 30 days from receiving a request. If this time limit cannot be followed because the authority has not received a necessary expert assessment or similar (objective) reason, the Board will notify the person who requested action of the delay, including information on what steps have been taken to review the request and when the decision will be made and communicated.

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?

Action may be requested both in case of damage as well as imminent threat of damage. The same rules apply to both the requests as well as how they are handled by the competent authority.

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

The Environmental Board (Keskkonnaamet) is the competent authority as regards rules for environmental liability.

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

According to the Environmental Liability Act, an administrative challenge must be submitted to the Ministry of Environment before an action can be brought in the administrative court. The Ministry has 30 days to review the challenge. In other aspects, general rules for administrative review procedures apply, see 1.7. for the details of the general rules.

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?

Based on the non-discrimination principle provided in EU law, Estonian rules on access to justice on environmental matters do not discriminate against natural or legal persons from other EU countries. This means that essentially the same rules apply as regards standing – both personal (who can challenge) as well as material (which decisions and when can be challenged) for other countries. (For more information on standing, see 1.4.). Special rules apply to notifying the other countries in the case of projects subject to EIA that may have significant transboundary effects. In such a case, the affected country’s authorities will be notified by the Ministry of Environment and if the affected country deems it necessary, details of public participation will be agreed upon. In the case of projects that are subject to integrated environmental permits (under the IED Directive) and have transboundary effects, the affected state’s government has to be notified and consulted.

As a rule, only administrative acts, i.e. final decisions such as environmental permits, may be challenged. Therefore, administrative decisions made in the course of administrative proceedings, such as the decisions regarding the EIA procedures, may be challenged only together with the final decision.

2) Notion of public concerned?

The notion of “public concerned” is applied to natural and legal persons from other countries in the same manner as they are applied to Estonian natural and legal persons. Essentially that means that administrative procedures are either open to everyone (in case of open proceedings) or at least those persons whose rights or obligations would be affected by the administrative decision must be included in the proceedings.

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)?

Foreign NGOs have standing against decisions made by Estonian authorities in Estonian administrative courts (as the 1^st instance). The standing of NGOs, including foreign NGOs, that meet the national definition of environmental NGO is presumed if the decision is related to their environmental aims or field of activity. See 1.4.3 for the national definition of “environmental NGO”.

An action should be brought to the administrative courts within 30 days of the delivery of the administrative act (or without unreasonable delay if the act was not delivered but the NGO learnt of its existence in some other way).

Legal aid, injunctive relief and pro bono assistance to foreign NGOs are available according to the same conditions that would be applicable to Estonian NGOs, see 1.7.2 and 1.7.3.

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)?

Individuals of the affected country have standing against decisions made by Estonian authorities in Estonian administrative courts (as the 1^st instance) if the decision breaches their individual rights (e.g. right to ownership, protection of health or similar).

Procedural assistance is according to the same rules as it is available to Estonian citizens, see 1.4. Additionally, residents of other countries wishing to be provided with state legal aid, must provide a statement of their last three years’ income from a competent authority of the country of their residence (unless it cannot be reasonably acquired, in which case the court may decide on the provision of state legal aid without the statement).

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

According to the national EIA rules, the country concerned is informed by the scoping phase of the procedure by the Estonian Ministry of the Environment. The national law is based on the presumption that the involvement of the public of another country and the specific arrangements for the involvement are within the discretion of the other country. The public of another country will not be involved if the other country informs the Ministry that it does not intend to participate or the country does not respond. If the other country gives notice of the intention to participate, then the Ministry of Environment is required to reach an agreement on:

1. the procedure and actual schedule of the consultations,
2. provision of information to the public and agencies of the affected state and allowing them sufficient time for the submission of opinions on the environmental impact assessment programme and report,
3. the time when the proposals, objections and questions received in the course of the environmental impact assessment are submitted to the affected state for obtaining an opinion,
4. the drafts of the decisions which must be submitted to the affected state for obtaining an opinion.

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

The national law does not specify the timeframes for public involvement of another country because the national law is based on the presumption that the specific arrangements for the involvement are within the discretion of the other country. Note, however, that the national law stipulates that the agreement with the other country on consultations has to foresee sufficient time to the public of the affected state for submission of opinions on the environmental impact assessment programme and report. It should also be noted that anyone can participate in the relevant national EIA procedures, including members of the public of another country.

The national law does not set out access to justice rules specific to cross-boundary impact assessment. In principle, members of the public of another country have standing on the same grounds as members of the public of Estonia, see 1.4.

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

There are no special rules nor practice on providing information on access to justice to foreign parties. As a general rule, any administrative act must also include a reference to how it can be challenged either by means of administrative review or in courts.

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

The national law does not specifically regulate translation and interpretation in the context of cross-boundary impact assessment. According to the general rules the language of administrative proceedings is Estonian. Participants in proceedings may request involvement of an interpreter or translator at their own expense unless an administrative authority resolves that they do not have to bear the costs. The administrative authority may establish a condition that the right granted to the person by an administrative act does not arise before the costs of involvement of the interpreter or translator are paid. In oral communication with officials a foreign language may be used by agreement of the parties. If an application, request or other document is submitted in a foreign language, the agency has the right to require translation. In principle, the agency has to respond in Estonian to the document in a foreign language. The reply is translated at the request of the person who submitted the document at the expense of that person. On agreement, the response to the document may be given in a foreign language understood by both parties. According to the representative of the Ministry of the Environment, relevant documents are translated in cross-border EIA in practice (into English, Latvian or Russian).

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 and the court permits it.

If you present a written statement or a document in a foreign language, the court will require it to be translated by you or arrange for 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 arrange for 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 an interpreter in the proceedings on your application or on its own motion. 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 deadline set by the court, your action may be disregarded. If this is unreasonably complicated or impossible, the court may look for an interpreter itself. In any case, you will have to pay for the associated costs. If the court organizes interpretation of proceedings, court translators are used, if possible.

9) Any other relevant rules?

There are no other relevant rules.

[1] Note that references to the Supreme Court decisions begin with capital letters RK (meaning the Supreme Court, Riigikohus in Estonian) followed by a certain combination of capital letters, which denote the Chamber that made the decision. For instance, the decisions of the Administrative Chamber are referred to as RKHK.

[2] See also case C-529/15

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?

Standing rules are the same for administrative review and administrative court review and for all environmental decisions, regardless of which exact legal act was the basis for the decision. Spatial planning (including challenges to the SEAs related to such plans) is an exception. Certain spatial planning decisions may be challenged by anyone on the grounds of being contrary to public interests (actio popularis). The plans include local (municipal level) spatial plans as well as the national designated plans. The latter type is used for building construction work, which has significant spatial impact and whose chosen location or whose functioning elicits significant national or international interest. A national designated spatial plan is prepared, above all, to express interests which transcend the boundaries of individual counties in the fields of national defence and security, energy supply, the transport of gas, waste management or for the expression of such interests in public water bodies and in the exclusive economic zone.

The general standing rules can be summarized as follows:

• Standing of natural persons and private legal entities other than environmental NGOs, e.g. regular NGOs, companies etc. Standing is based on violation of subjective rights including the right to an environment that meets health and well-being needs, as provided by the General Part of the Environmental Code Act.
• Standing of environmental NGOs, i.e. the NGOs that meet the national definition. Standing is based on the violation of subjective rights but the violation is presumed provided the contested administrative decision is related to the environmental protection goals or the current environmental protection activities of the NGO, see 1.4.3 for the national definition of “environmental NGO”.
• Ad hoc groups (groups that are not legal entities). In general, ad hoc groups do not have standing. However, certain ad hoc groups qualify as environmental NGOs, see 1.4.3 for the national definition of “environmental NGO”.
• Foreign NGOs. General criteria apply, that is, the criterion is violation of subjective rights but the violation of rights is presumed if the NGO meets the national definition of environmental NGO and provided that the contested administrative decision is related to the environmental protection goals or the current environmental protection activities of the organisation.
• Other. State authorities may not challenge the activity of other state authorities, as they are not separate legal entities. However, local municipalities may challenge activities of other public authorities if their rights are violated. The same applies to other legal persons under public law, e.g. universities, public foundations etc.

General deadlines apply. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

Access to national courts is effective if the national law is applied by reviewing bodies in a manner which takes into account the principles (e.g. non-discrimination) and the overall purpose of the regulation. In practice, the complexity of the environmental cases and the cost of legal representation are significant hurdles for typical members of the public and environmental NGOs.

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?

General rules apply. Both administrative review as well as judicial review cover procedural and substantive legality of challenged decisions, acts or omissions. The administrative review also covers “purposefulness” of the challenged decision. The courts are not allowed to reconsider value judgments of the administrative authorities. The review of legality by courts, however, also includes the review of whether the discretionary powers were correctly used by the authority (e.g. whether all relevant facts were identified and no manifest errors were made in weighing different interests).

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

As a general rule, administrative review procedures are not compulsory, i.e. they are not required to be exhausted before filing an action in the court.

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.?

Participation in the administrative procedures is not a precondition to have standing in national courts.

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

As noted above, judicial review of discretionary decisions is limited. The court cannot start to use the discretion given to authorities by laws but can only check whether these discretionary powers were used lawfully. This means that if significant mistakes in using discretion were made, the court cannot rectify this and make a new, fair and lawful decision itself. The court is also barred from re-evaluating value judgments of authorities.

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

General rules apply. In administrative matters, the judges have a more proactive role than in civil or criminal matters, which have an adversarial nature. The administrative court review is based on principles of disposition, investigation and explanation. The court may only adjudicate a matter to the extent requested in the action or other declaration provided in the law. The filing of such declarations is in the discretion of participants in the proceedings. The court must, on its own motion, make sure that facts are ascertained that are material to the matter dealt with, where necessary by gathering evidence itself, or by imposing the obligation of presenting evidence on participants in the proceedings. The court interprets and deals with declarations of participants in the proceedings according to the actual intention of the participant who made the declaration. At every stage of the proceedings, the court must provide sufficient explanation to participants in the proceedings to guarantee that no declaration or evidentiary item necessary to protect a participant’s interests remains unrecognized because of the participant’s lack of experience in legal matters and that any defects of form that would prevent a declaration from being heard are cured. In relation to every issue material to determining the matter, the courts must guarantee participants of the proceedings an effective and equal opportunity to present their views and the grounds for those views, and to contest the other participants’ views or to support the same.

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

There are no rules specific to the decisions, acts or omissions concerning specific activities falling within the scope of EU environmental legislation outside the scope of the EIA and IED Directives. In essence, the rather wide margin of discretion given to the judges in administrative matters to carry out procedures should ensure that the procedures are carried out with as little time and cost as possible, while at the same time ensuring proper review of challenged decisions, acts and omissions. In practice, the timeliness of judicial review is dependent on the workload of judges and their use of the discretion awarded by the Administrative Court Procedure Act. The court has a general obligation noted in law to deal the administrative matter within reasonable period of time.

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?

Injunctive relief is available, general rules apply. Request for injunctive relief may be made by the person who brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they would lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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?

General rules apply. Administrative review is a no-cost or low-cost procedure. Everyone bears their own costs. For instance, if you use a lawyer to represent or assist you in administrative review procedures you must pay for the service yourself even if the challenge is found to be justified.

If you bring an action to the administrative court, there are several costs that may be involved. Possible costs are divided into two general groups: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud). In practice, the greatest expense are fees for legal advisers and contractual representatives (which are classified as extrajudicial expenses). The loser pays principle applies. There is no cost capping. There is no express statutory reference to a requirement that cost should not be prohibitive. In administrative matters the courts generally do not require the costs of the administrative authority to be paid because the authority is expected to be able to handle typical disputes by itself using its own resources. Also, the courts also may reduce the cost of third parties (e.g. permit holder) that have to be compensated. For more details on the general rules, see 1.7.3.

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[2]

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?

Standing (both for administrative review as well as judicial review) related to procedures subject to the SEA Directive depends on the nature of the plan or programme for which the SEA was carried out:

• If the SEA was carried out for a local (municipal) spatial plan or national designated spatial plan, anyone can challenge the spatial plan adopted together with its SEA on the grounds that it contravenes public interests (actio popularis);
• In all other cases, the plan or programme and its SEA can only be challenged if a) the decision is considered to be an individual administrative act, i.e. it creates, terminates or changes subjective rights, and b) it breaches the right of the person bringing the challenge (breach of rights is presumed for environmental NGOs). The overwhelming majority of plans and programmes outside the above-mentioned spatial plans that are subject to SEA are not individual administrative acts and therefore cannot be challenged in administrative review or judicial review procedures.

Challenging omissions to adopt a plan or programme that is an administrative act follows a different logic. In such cases, the standing is firstly dependent on whether the omission could have breached a subjective right – this may also be theoretically relevant as regards those plans and programmes which are not administrative acts. Secondly, standing would be dependent on whether the authority had a clear obligation to act (or act in a certain manner).

General deadlines apply. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

Access to national courts is effective to the extent that the plans are administrative acts and provided that the national law is applied by reviewing bodies in a manner which takes into account the principles (e.g. non-discrimination) and the overall purpose of the regulation. In practice, the complexity of the environmental cases and the cost of legal representation are significant hurdles for typical members of the public and environmental NGOs.

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?

General rules apply. Both administrative review as well as judicial review cover procedural and substantive legality of challenged decisions, acts or omissions. The administrative review also covers “purposefulness” of the challenged decision. The courts are not allowed to reconsider value judgments of the administrative authorities. The review of legality by courts, however, also includes the review of whether the discretionary powers were correctly used by the authority (e.g. whether all relevant facts were identified and no manifest errors were made in weighing different interests).

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

As a general rule, administrative review procedures are not compulsory, i.e. they are not required to be exhausted before filing an action in the court.

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.?

Participation in the administrative procedures is not a precondition to have standing in national courts.

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?

Injunctive relief is available, general rules apply. Request for injunctive relief may be made by the person who has brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they would lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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?

General rules apply. Administrative review is a no-cost or low-cost procedure. Everyone bears their own costs. For instance, if you use a lawyer to represent or assist you in administrative review procedures you must pay for the service yourself even if the challenge is found to be justified.

If you bring an action to the administrative court, there are several costs that may be involved. Possible costs are divided into two general groups: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud). In practice, the greatest expense are fees for legal advisers and contractual representatives (which are classified as extrajudicial expenses). The loser pays principle applies. There is no cost capping. There is no express statutory reference to a requirement that cost should not be prohibitive. In administrative matters the courts generally do not require the costs of the administrative authority to be paid because the authority is expected to be able to handle typical disputes by itself using its own resources. Also, the courts may reduce the cost of third parties (e.g. permit holder) that have to be compensated. For more details on the general rules, see 1.7.3.

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[3]

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?

Standing related to administrative and judicial review of adopted plans and programmes depends on the nature of the plan or programme:

• For plans and programmes that are considered administrative acts, i.e. which create, terminate or change the individual rights of any person, standing is awarded to those persons whose individual subjective rights have been breached (breach of rights is presumed for environmental NGOs). Plans and programmes may also be considered to be administrative acts only in part. Plans and programmes related to environment belonging to this category include spatial plans for small areas (detailed spatial plans) which are not subject to SEAs and protection rules for conservation areas, for example. The following questions and answers are relevant only for this category of plans and programmes.
• The majority of plans and programmes that are subject to Article 7 of the Aarhus Convention are not considered administrative acts but internal administrative documents. As these plans and programmes do not have a direct effect on anyone’s rights, they can also not be challenged either by means of administrative nor judicial review. Therefore, the following questions and answers are not relevant to this category.

Challenging omissions to adopt a plan or programme that is an administrative act follows a different logic. In such cases, the standing is firstly dependent on whether the omission could have breached a subjective right – this may also be theoretically relevant as regards those plans and programmes which are not administrative acts. Secondly, standing would be dependent on whether the authority had a clear obligation to act (or act in a certain manner).

General deadlines apply. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court (usually up to two months).

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

Access to national courts is effective to the extent that the plans are administrative acts and provided that the national law is applied by reviewing bodies in a manner which takes into account the principles (e.g. non-discrimination) and the overall purpose of the regulation. In practice, the complexity of the environmental cases and the cost of legal representation are significant hurdles for typical members of the public and environmental NGOs.

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?

General rules apply. Both administrative review as well as judicial review cover procedural and substantive legality of challenged decisions, acts or omissions. The administrative review also covers “purposefulness” of the challenged decision. The courts are not allowed to reconsider purposefulness and value judgements of the administrative authorities. The review of legality by courts, however, also includes the review of whether the discretionary powers were correctly used by the authority (e.g. whether all relevant facts were identified and no manifest errors were made in weighing different interests).

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

As rule, administrative review procedures are not compulsory, i.e. they are not required to be exhausted before filing an action in the court.

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.?

Participation in the administrative procedures is not a precondition to have standing in national courts.

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?

Injunctive relief is available, general rules apply. Request for injunctive relief may be made by the person who has brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of one of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations except state fee 15 euros attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they would lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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?

General rules apply. Administrative review is a no-cost or low-cost procedure. Everyone bears their own costs. For instance, if you use a lawyer to represent or assist you in administrative review procedures you must pay for the service yourself even if the challenge is found to be justified.

If you bring an action to the administrative court, there are several costs that may be involved. Possible costs are divided into two general groups: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud). In practice, the greatest expense are fees for legal advisers and contractual representatives (which are classified as extrajudicial expenses). The loser pays principle applies. There is no cost capping. There is no express statutory reference to a requirement that cost should not be prohibitive. In administrative matters the courts generally do not require the costs of the administrative authority to be paid because the authority is expected to be able to handle typical disputes by itself using its own resources. Also, the courts also may reduce the cost of third parties (e.g. permit holder) that have to be compensated. For more details on the general rules, see 1.7.3.

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

For plans and programmes that are considered administrative acts, i.e. which create, terminate or change the individual rights of any person, standing is awarded to those persons whose individual subjective rights have been breached (breach of rights is presumed for environmental NGOs). Plans and programmes may also be considered to be administrative acts only in part. Plans and programmes that are not administrative acts do not have a direct effect on anyone’s rights. Such plans and programmes cannot be challenged. Therefore, the following questions and answers are not relevant for this category.

Challenging omissions to adopt a plan or programme that is an administrative act follows a different logic. In such cases, the standing is firstly dependent on whether the omission could have breached a subjective right – this may also be theoretically relevant as regards those plans and programmes which are not administrative acts. Secondly, standing would be dependent on whether the authority had a clear obligation to act (or act in a certain manner). Note that the obligation may arise also from the Community law, as was provided by CJEU in case C-237/07 (Janecek).

General deadlines apply. Administrative challenges must be brought within 30 days of the day when the person either became aware or should have become aware of the challenged administrative act or measure. Different time limits are applied to different actions that can be brought to the administrative court against environmental decisions. Annulment of an administrative environmental decision must be filed within thirty days after the date on which the administrative act was notified to the applicant. Notification within this context can also refer to public notification of issuing the environmental act. If the administrative decision was not notified to the applicant, yet the applicant learns of the administrative act in some other way, it should be challenged without unreasonable delay. What constitutes unreasonable delay will be decided on a case-by-case basis by the court.

If the option of administrative review was used before judicial review, you have 30 days from announcement of the review decision to challenge both the decision of the administrative review as well as the initial administrative decision in the administrative court. 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 the administrative act to be declared illegal (without its annulment).

Access to national courts is effective to the extent that the plans are administrative acts and provided that the national law is applied by reviewing bodies in a manner which takes into account the principles (e.g. non-discrimination) and the overall purpose of the regulation. In practice, the complexity of the environmental cases and the cost of legal representation are significant hurdles for typical members of the public and environmental NGOs.

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)?

The form for the plan or programme is immaterial. According to the long-established case law of the Supreme Court, classification of decisions as administrative acts is not dependent on what the act is called by the authorities but depends on their legal effects. As a practical example, detailed protection rules for nature conservation areas are adopted in the form of a Regulation (i.e. secondary legislative act), but they are considered to be at least in part administrative acts and can be challenged as such in courts or by means of administrative review.

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 rules apply. Both administrative review as well as judicial review cover procedural and substantive legality of challenged decisions, acts or omissions. The administrative review also covers “purposefulness” of the challenged decision. The courts are not allowed to reconsider value judgments of the administrative authorities. The review of legality by courts, however, also includes the review of whether the discretionary powers were correctly used by the authority (e.g. whether all relevant facts were identified and no manifest errors were made in weighing different interests).

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

As rule administrative review procedures are not compulsory, i.e. they are not required to be exhausted before filing an action in the court.

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.?

Participation in the administrative procedures is not a precondition to have standing in national courts.

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

Judicial review of discretionary decisions is limited. The court cannot exercise the discretion instead of the public authorities but can only check whether these discretionary powers were used lawfully. This means that if significant mistakes were made, the court cannot rectify this and make a new, fair and lawful decision itself. The court is also barred from re-evaluating value judgments of authorities.

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

According to the general rules and principles of administrative court procedure, administrative courts have an obligation to offer necessary support and guidance to parties of the court procedures in order to ensure that all of the parties have an equal chance to present and explain their arguments and challenge the arguments brought by the other side. The courts are also obliged to guide the parties if it is evident that they lack the necessary knowledge and experience to make the necessary claims to reach their objectives.

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

There are no rules specific to the present matters. In essence, the rather wide margin of discretion given to the judges in administrative matters to carry out procedures should ensure that the procedures are carried out in as little time and with as little cost as possible, while at the same time ensuring proper review of challenged decisions, acts and omissions. In practice, the timeliness of judicial review is dependent on the workload of judges and their use of the discretion awarded by the Administrative Court Procedure Act. Judges have general duty to deal the case within in reasonable time.

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?

Injunctive relief is available, general rules apply. Request for injunctive relief may be made by the person who has brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. Courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they would lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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?

General rules apply. Administrative review is a no-cost or low-cost procedure. Everyone bears their own costs. For instance, if you use a lawyer to represent or assist you in administrative review procedures you must pay for the service yourself even if the challenge is found to be justified.

If you bring an action to the administrative court, there are several costs that may be involved. Possible costs are divided into two general groups: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud). In practice, the greatest expense are fees for legal advisers and contractual representatives (which are classified as extrajudicial expenses). The loser pays principle applies. There is no cost capping. There is no express statutory reference to a requirement that cost should not be prohibitive. In administrative matters the courts generally do not require the costs of the administrative authority to be paid because the authority is expected to be able to handle typical disputes by itself using its own resources. Also, the courts also may reduce the cost of third parties (e.g. permit holder) that have to be compensated. For more details on the general rules, see 1.7.3.

1.5. Executive regulations and/or generally applicable legally binding normative instruments used to implement EU environmental legislation and related EU regulatory acts[5]

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?

Executive regulations and/or generally applicable legally binding normative instruments which do not have a direct effect on anyone’s rights are not considered administrative acts and thus cannot be challenged either by means of administrative review nor judicial review. However during a court review, a person may request a court to set aside a legislative act relevant to the specific case on the basis that the act contravenes the Constitution. Agreement of the court to the applicants’ position also leads to constitutional review by the Supreme Court.

For so-called ‘mixed acts’, where part of the decision is substantively an administrative act and part of the decision not, the usual rules for standing apply. This means that they can be (partially) challenged by anyone whose rights they breach (breach of rights is presumed for environmental NGOs). The most relevant type of a mixed act is the detailed nature protection rules.

The detailed protection rules have to be provided for certain types of nature protection areas. The rules foresee zoning of the areas and specify the requirements for human activities in each zone. The Nature Protection Act sets out the framework for the rules and also the default regime for each type of zone. For instance, the act prohibits regeneration cutting (a type of forest felling) within limited management zones and the use of floating devices in conservation zones unless specified otherwise in detailed protection rules. The protection rules for Kõnnumaa landscape protection area specify that cutting of forest is allowed in the limited management zone of Ohekatku from August to January and that the use of engineless floating devices is allowed throughout the protected area. The Supreme Court has found that such acts have a mixed nature. The detailed protection rules are administrative acts in so far as they significantly affect specific plots of land. The cases concern rights of construction. However, in the example above the court would probably find that the provision on logging constitutes an administrative act and the provision on the use of engineless watercraft is a legislative measure. See RKHKm 07.05.2003, 3-3-1-31-03, RKÜKo 31.05.2011, 3-3-1-85-10.

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?

General rules apply. Both administrative review as well as judicial review cover procedural and substantive legality of challenged decisions, acts or omissions. The administrative review also covers “purposefulness” of the challenged decision. The courts are not allowed to reconsider value judgments of the administrative authorities. The review of legality by courts, however, also includes the review of whether the discretionary powers were correctly used by the authority (e.g. whether all relevant facts were identified and no manifest errors were made in weighing different interests).

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

As rule administrative review procedures are not compulsory, i.e. they are not required to be exhausted before filing an action in the court.

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.?

Participation in the administrative procedures is not a precondition to have standing in national courts.

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?

Injunctive relief is available, general rules apply. Request for injunctive relief may be made by the person who has brought the administrative challenge to the administrative court also during administrative review procedures. In that case the court will decide whether to suspend the validity of the decision, but the legality of the decision will still be decided by the administrative authority carrying out the review procedures. The courts may provide injunctive relief in different forms, including suspending the validity or enforcement of the decision challenged, prohibit the addressee of the decision to engage in the activity regulated in the decision. Injunctive relief may be granted either based on the court’s own motion or based on the application of the applicant.

Courts must assess whether injunctive relief is truly necessary for the protection of applicant’s rights or to achieve the aim of the action, weigh different interests affected by injunctive relief measures and should apply only such measures that are proportional. However, there are no financial obligations attached to applying for injunctive relief (no deposit or similar instruments) and no claims for damages may be brought against a person who has applied for injunctive relief even if they would lose the case.

Injunctive relief decisions are court orders, which can be appealed in higher courts. The deadline for appealing a court order is 15 days from the delivery of the court order.

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?

General rules apply. Administrative review is a no-cost or low-cost procedure. Everyone bears their own costs. For instance, if you use a lawyer to represent or assist you in administrative review procedures you must pay for the service yourself even if the challenge is found to be justified.

If you bring an action to the administrative court, there are several costs that may be involved. Possible costs are divided into two general groups: court expenses (kohtukulud) and extrajudicial expenses (kohtuvälised kulud). In practice, the greatest expense are fees for legal advisers and contractual representatives (which are classified as extrajudicial expenses). The loser pays principle applies. There is no cost capping. There is no express statutory reference to a requirement that cost should not be prohibitive. In administrative matters the courts generally do not require the costs of the administrative authority to be paid because the authority is expected to be able to handle typical disputes by itself using its own resources. Also, the courts also may reduce the cost of third parties (e.g. permit holder) that have to be compensated. For more details on the general rules, see 1.7.3.

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[6]?

Legal challenges cannot be brought directly against EU regulatory acts to national courts. However, if reaching a judgment in the case brought against a national measure would be dependent on first determining the validity of acts adopted by the institutions, bodies, offices or agencies of the Union, a request for preliminary ruling may be made by national courts. Making such a request and its contents are in any case at the discretion of the national court; although any party of the proceeding can apply for such a request to be made, there is no mechanism to force the court to do so.

[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 the Commission Notice C/2017/2616 on access to justice in environmental matters

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

[3] See findings under ACCC/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.

[4] 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 the Commission Notice C/2017/2616 on access to justice in environmental matters.

[5] Such acts come 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

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

Silence of the administration

Inactivity of the administration may be challenged both by means of administrative as well as judicial review. In both cases, a challenge can only be brought against an authority if the authority has a statutory obligation to act. If the obligation to act is subject to discretion, only cases where the rules on exercise of discretion have been breached may be challenged.

Personal standing rules are the same as for any other administrative or judicial review procedure, i.e. only those persons whose rights are being breached have a standing to challenge the silence, whereas standing is presumed for environmental NGOs in cases related to their previous activity or aims.

A complaint to initiate an administrative review should be brought against silence of the administrative authority within 30 days of the knowledge of the inactivity. An action against passivity can be brought to an administrative court within 1 year of the statutory deadline set for the authority to act; or if no statutory deadline exists for this specific activity, within 2 years of the application to act made by the person bringing an action to court.

If the passivity of the administration has resulted in material or immaterial damages, an action to compensate the damages can also be brought to the administrative court. The deadline for bringing such a case is 3 years from the date of learning about the damage.

Penalties for failing to provide effective access to justice

If the administrative authority fails to properly carry out the administrative review procedures, the decision can be reviewed and revoked by the administrative court. In addition to overturning the administrative review decision together with the initial administrative decision (e.g. an environmental permit) by the court, the administrative authority also risks claims for damages created by lack of effective access to justice.

Penalties for contempt of court

Failure to carry out an administrative court decision by either a private person or administrative body may result in a fine of up to €32,000. This penalty may be applied multiple times if the contempt of court continues even after a fine has been imposed.

To find out more about access to justice in environmental matters in Ireland, please take a look at:

1. Access to justice at Member State level

2. Access to justice falling outside of the scope of EIA (Environmental Impact Assessment), IPPC/IED (Integrated Pollution Prevention and Control (IPPC) Industrial Emissions Directive), access to information and ELD (Environmental Liability Directive)

3. Other relevant rules on appeals, remedies and access to justice in environmental matters

1.1. Legal order – sources of environmental law

Ireland’s Parliament - the Oireachtas - is the national legislature empowered to make laws for the State. The Oireachtas consists of two Houses (Dáil Éireann (the lower house) and Seanad Éireann (the upper house)) plus the President of Ireland.

New primary legislation begins as a Bill. Bills are normally initiated by the government, although opposition bills - called Private Members’ Bills - are also possible, albeit less likely to make it onto the statute book.

A Bill may be commenced in either the Dáil or the Seanad but it must be passed by both Houses to become law. Before a government Bill is introduced to the Oireachtas, the contents of the Bill are approved by the government. Often there will be a consultation process with government departments and groups likely to be affected by the Bill. Once a Bill has successfully passed the parliamentary process, the Bill must then be signed by the President before it becomes an Act of the Oireachtas. Ireland’s Constitution (Bunreacht na hÉireann) provides the President with the power to refer certain Bills to the Supreme Court for a determination as to whether the Bill or any provision thereof is repugnant to the Constitution.

As well as primary legislation, Ireland also relies heavily on secondary legislation or ‘statutory instruments’ in the field of environmental law. Secondary legislation must be consistent with, and based on, legislation adopted by the Oireachtas. Thus, each statutory instrument will have a preamble citing its ‘enabling powers’; that is, the provision(s) of primary legislation under which the statutory instrument is made. Statutory instruments can take the form of orders, regulations, rules, etc. Hundreds are issued each year, in contrast to a much smaller number of Bills/Acts. If EU law requires transposition by Ireland, this is implemented by primary legislation or more usually by secondary legislation (statutory instrument) under the European Communities Act 1972.

If the government wishes to change the Constitution, it must first introduce the proposal to amend the Constitution as a Bill, which must pass the Oireachtas. Then the proposed change must be approved by way of a popular referendum allowing citizens to approve or reject the proposal by way of a majority vote.

Finally, local authorities are empowered to make bye-laws relating to anything within their remit by virtue of the Local Government Act 2001. Such bye-laws are not a prominent feature of environmental law in Ireland, which tends to be dominated by EU law, Acts of the Oireachtas, and statutory instruments, some of which are of course made in fulfilment of obligations under international law. Since Article 29.6 of Ireland’s Constitution provides that no international agreement forms part of the domestic law of the State except as may be determined by the Oireachtas, legislation must be put in place in order to give effect to international agreements in the domestic legal system.

Numerous pieces of UK legislation remain in force in Ireland dating from before the foundation of the Irish State in 1922, albeit again these are not a prominent feature in the environmental law field. Many of the pre-1922 laws which had no ongoing relevance to Ireland were repealed by the Statute Law Revision Acts 2005-2016.

Further information on how laws are made in Ireland can be found here.

Texts of primary legislation (Acts of the Oireachtas) and secondary legislation are available via the Irish Statute Book website. The website generally carries the original text of the legislation as made, with subsequent amendments to each piece of legislation listed. In some cases the website provides a revised/consolidated version.

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

Since Ireland has a common law system, in which both legislation and judicial decisions make up the national law, it is typically necessary to consult case law in addition to legislation in order to determine the current state of the law. Much case law can be found on the Courts Service’s website or on the websites of the Irish Legal Information Initiative (IRLII) and British and Irish Legal Information Institute (BAILII), though some judgments - particularly older judgments - are accessible only from subscription services or in hard copy.

Main elements of the fact sheet:

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

Environmental policy in Ireland is heavily influenced by EU law and international law, of course, with implementation and enforcement being the responsibility of various public authorities, including for example, central government, the EPA, the Gardaí (police) and local authorities (county councils, city councils).

The Minister currently responsible for environmental issues (including matters relating to the Aarhus Convention, which Ireland ratified in 2012) is the Minister of the Environment, Climate and Communications. Several other Ministers have significant environmental responsibilities, including for instance the Minister of Housing, Local Government and Heritage (marine environment, water, planning, landscape, biodiversity and nature conservation), and the Minister of Agriculture, Food and the Marine (Common Agricultural Policy implementation, sea fisheries and aquaculture).

The Environmental Protection Agency (EPA) is responsible for inter alia environmental research development, monitoring, certain licensing regimes (e.g. Integrated Pollution Control (IPC) and Industrial Emissions (IED); waste; waste water discharges; genetically modified organisms (both contained use and deliberate release); emissions trading; volatile organic compounds; and dumping at sea). It also performs enforcement functions in certain areas of environmental law, alongside a wide range of other bodies, including other government agencies and local government.

There are over 30 national environmental NGOs in Ireland covering a wide range of policy areas, plus a number of regional and local organisations. Ireland’s national NGOs include, for example, An Taisce, The National Trust for Ireland (the oldest eNGO in Ireland, established in 1948), BirdWatch Ireland, Friends of the Earth Ireland, Friends of the Irish Environment, and the Irish Wildlife Trust. There are two complementary ‘umbrella organisations’ of environmental NGOs in Ireland: the Environmental Pillar and the Irish Environmental Network, the latter of which disburses core funding from the government.

Relatively broad standing rules (the rules on access to courts) exist for individuals and NGOs in Ireland. See the Supreme Court’s decision in Grace and Sweetman v An Bord Pleanála [2017] IESC 10 and the High Court’s decision in Conway v An Bord Pleanála [2019] IEHC 525 for a recent summary and discussion of the situation relating to individuals (more below).

The environmental rights of individuals and NGOs include the right to access environmental information which is held by or for public authorities, and such public authorities have a statutory duty, subject to the provisions of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. 133 of 2007, as amended)(the AIE Regulations), to provide information and guidance to those seeking access to environmental information.

There are also rights of early and effective public participation in environmental decision-making including around planning permission matters and licensing decisions (such as EPA decisions to grant waste and other licences), including the right to access all information relevant to the decision-making procedure and the right to be promptly informed of environmental decisions.

Individuals and NGOs also have the right to seek a review of decisions that have been made which may affect the environment, or regarding their right to access environmental information, including an administrative appeal (where this is available) and/or by way of judicial review (following an application for leave to bring proceedings) via the courts. The courts may make an order to quash a decision, to prohibit a body from taking certain actions, or more rarely, to require it to take specific actions, or to require a body to act where it has failed to do so.

Planning and environmental law also provides for a range of statutory remedies with a view to enforcement by third parties such as individuals and NGOs, including the remedy of a planning injunction under section 160 of the Planning and Development Act 2000 (as amended)(PDA 2000), whereby “any person” may apply for a court order in the context of unauthorised development; and similarly for judicial enforcement of certain EPA licences under section 99H of the Environmental Protection Agency Act 1992.

The potential for litigants to be exposed to high litigation costs has proven one of the main barriers to accessing environmental justice in Ireland. The introduction of special costs rules in 2010/11 has certainly improved access to justice (more below), although progress in this regard has been gradual over the past decade as a result of uncertainty regarding the scope of these rules and resulting ‘satellite’ litigation to determine the scope. This form of cost protection does not, in any event, apply to all environmental litigation (discussed further below), and concerns also remain over the effectiveness of judicial remedies, and potential time delays for judgments, as noted in the Environmental Governance Assessment on Ireland and the related country fiche. For example, in November 2020 the Aarhus Convention’s Compliance Committee found in ACCC/C/2016/141 that by failing to put in place measures to ensure that the Office of the Commissioner for Environmental Information and the courts decide appeals regarding environmental information requests in a timely manner, Ireland fails to comply with the requirement in Article 9(4) of the Aarhus Convention to ensure timely procedures for the review of environmental information requests; and by maintaining a system whereby courts may rule that information requests fall within the scope of the AIE Regulations without issuing any directions for their adequate and effective resolution thereafter, Ireland fails to comply with the requirement in Article 9(4) of the Convention to ensure adequate and effective remedies for the review of environmental information requests.

In addition to the Department of the Environment, Climate and Communications’ webpages on the Aarhus Convention, the Citizens’ Information website (a government initiative) has a page on the Aarhus Convention which describes the broad requirement for access to justice, including the judicial review process. This page directs readers to the website of the Courts Service “for information on the court fees payable”. These court fees (e.g. stamp duty when a case commences) are however only a very small element of the costs of litigation in Ireland, and should not be confused with the legal fees that may be payable to an applicant’s own legal team and potentially the costs also payable to the opposing litigant in the event that the applicant’s case is unsuccessful.

The Citizens’ Information’s ‘Judicial review’ page is probably the best currently available reference source for the public to consult regarding the potential costs of environmental litigation in practice and potential ways to ameliorate these costs (e.g. by way of ‘no win, no fee’ arrangements with lawyers) in order to provide improved access to justice. This said, the webpage’s summary of the special cost protection rules in s.50B PDA 2000 should now be read in light of the High Court’s judgment in Heather Hill [2019] IEHC 186, which extended cost protection in practice in the field of planning law (NB. this judgment has been appealed to the Court of Appeal).

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

The Constitution of Ireland (Bunreacht na hÉireann), dating from 1937, does not contain any reference to the environment or to environmental rights.

The European Convention on Human Rights (ECHR), to which Ireland is a Party, has effect in the domestic legal order via primary legislation, namely the European Convention on Human Rights Act 2003. The European Court of Human Rights has determined that a State’s positive obligations under Article 2 (right to life) ECHR may be violated with respect to environmental risks, and that Article 8 ECHR (the right to respect for the home, private and family life) may be engaged in respect of environmental pollution that impacts on enjoyment of the home. Article 6 (the right to a fair hearing) and Article 13 (right to an effective remedy) of the ECHR are also potentially relevant in the environmental protection context, as well as Articles 1 of the First Protocol to the ECHR (the right to property), for example. These rights also find expression in the Irish Constitution.

The fundamental rights of the citizen are guaranteed in Articles 40 to 44 of the Constitution. Article 40 provides that all citizens are to be held equal before the law and obliges the State to vindicate the personal rights of the citizen, including the right to life. The term “personal rights”, as interpreted by the courts, has led to the recognition and vindication of several rights not expressly provided for in the text of the Constitution. These ‘unenumerated rights’ include the right to bodily integrity, among others. In July 2020, in Friends of the Irish Environment v Government of Ireland & Ors. [2020] IESC 49, the Supreme Court held that there is no unenumerated or derived constitutional right to a healthy environment in Ireland.

There is no express (or explicit) right of access to justice in the Irish Constitution, but the courts have recognised an ‘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. In O’Donoghue v. Legal Aid Board & Others [2004] IEHC 413, for instance, the High Court found that the plaintiff’s constitutional right to civil legal aid had been infringed by the very long delay in granting her a certificate for legal aid. However, the precise parameters of any such rights have yet to be fully determined. Although the Legal Aid Scheme maintained by Ireland does, in principle, permit aid to be provided for environmental cases, in practice legal aid is only extremely rarely, if ever, provided for environmental litigation (see the Supreme Court at para 2.30 of Conway v Ireland, the Attorney General & Ors [2017] IESC 13). In the Conway case, the Supreme Court raised the possibility of an entitlement to legal aid pursuant to the Aarhus Convention and/or the Public Participation Directive (Directive 2003/35/EC), but the point did not fall to be determined on the facts of the case.

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 Oireachtas (meaning Ireland has what is known as a dualist legal system). This 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 in June 2012 and the Convention entered into force for Ireland in 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. In addition to specific transposition of the provisions of the Convention, section 8 of the Environment (Miscellaneous Provisions) Act 2011 provides that judicial notice must be taken of the Aarhus Convention.

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

As noted above, due to Ireland’s dualist legal system, specific implementation measures were required to give effect to the Aarhus Convention in the domestic legal system. An implementation table totalling some 56 pages was completed on ratification of the Convention, listing the legislation used to implement the Convention in Ireland. The sheer volume of legislation cited makes the framework complex, lacking in clarity in certain respects, and difficult when it comes to public engagement with and understanding of the rules. Certain additional measures that have since been enacted are listed here on the Department of the Environment, Climate and Communications’ website.

For the access to information pillar the situation is relatively simple, in that Ireland has introduced one main statutory instrument – the European Communities (Access to Information on the Environment) Regulations 2007-2018 (S.I. 133 of 2007, as amended: consolidated version) – to transpose obligations under the AIE Directive (Directive 2003/4/EC). Ireland lists an additional eight pieces of transposing legislation in its notification of implementing measures to the European Commission.

On access to justice, the situation is more complex, not least because there is no horizontal EU access to justice directive. The two most significant pieces of national legislation in this area are section 50B of the PDA 2000, and Part 2 of the Environment (Miscellaneous Provisions) Act 2011, both of which introduced new costs rules to apply in certain environmental cases, as well as (in the case of the 2011 Act) a requirement that judicial notice be taken of the Aarhus Convention, as noted above.

In terms of the public participation pillar under the Aarhus Convention, multiple pieces of legislation have been used to transpose the Public Participation Directive (Directive 2003/35/EC) into Irish law, including the integration of its requirements into Irish planning law and into legislation governing other environmental consents. Indeed, Ireland notified the European Commission of 71 separate pieces of legislation as its national transposition of the Directive. For example, in the planning system, members of the public may submit observations on planning applications and may appeal planning decisions to An Bord Pleanála (Ireland’s Planning Appeals Board).

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

As Ireland has a common law system (where both legislation and judicial decisions make up the national law), case law is highly relevant to the access to justice provisions of the Aarhus Convention. Many judgments can be found on the Courts Service’s website or on the websites of the Irish Legal Information Initiative (IRLII) and British and Irish Legal Information Institute (BAILII), though some judgments - particularly older judgments - are accessible only from subscription services or in hard copy. A list of judgments related to access to information on the environment can be found here. The list below outlines a number of relevant rulings since the ratification of the Aarhus Convention by Ireland but is by no means comprehensive. More recent rulings have tended to be preferred here as they better represent the current state of the law and often discuss earlier jurisprudence:

• McCoy & anor -v- Shillelagh Quarries Ltd & ors [2015] IECA 28: interpretation of the special cost protection rules in Part 2 of the Environment (Miscellaneous Provisions) Act 2011.
• North East Pylon Pressure Campaign Ltd. & anor v An Bord Pleanála & ors (No.5) [2018] IEHC 622: interpretation of the special cost protection rules in section 50B of the Planning and Development Act 2000 and Part 2 of the Environment (Miscellaneous Provisions) Act 2011; conclusion that these provisions do “not fully give effect to the not-prohibitively-expensive principle that applies in all national environmental challenges within fields covered by EU environmental law”.
• Heather Hill Management Company Clg & anor -v- An Bord Pleanála & anor [2019] IEHC 186: interpretation of the special cost protection rules in section 50B of the Planning and Development Act 2000 and Part 2 of the Environment (Miscellaneous Provisions) Act 2011. This judgment has been appealed to the Court of Appeal.
• O’Connor v Offaly County Council [2020] IECA 72: interpretation of the special cost protection rules in Part 2 of the Environment (Miscellaneous Provisions) Act 2011.
• Coffey and others v Environment Protection Agency [2013] IESC 31: on protective costs orders, including the question of the costs of a hearing to determine if a protective costs order will apply.
• Sandymount & Merrion Residents Association v An Bord Pleanála & ors [2013] IESC 51: on the standing of unincorporated associations to bring environmental legal proceedings.
• Grace and Sweetman v An Bord Pleanála & ors [2017] IESC 10: on the standing of individuals to bring environmental legal proceedings.
• Conway v An Bord Pleanála [2019] IEHC 525: on the standing of individuals.
• Conway v Ireland, the Attorney General & ors [2017] IESC 13: reference to the Aarhus Convention Compliance Committee’s decisions; reference to a potential requirement for legal aid pursuant to the Aarhus Convention.
• Friends of the Irish Environment v Legal Aid Board [2020] IEHC 454: whether an environmental NGO that is a company is eligible for legal aid (answer: no). This judgment has been appealed to the Court of Appeal.
• NAMA v CEI [2013] IEHC 86 and [2013] IEHC 166: definition of public authority for the purposes of the AIE Regulations.
• Minch v Commissioner for Environmental Information [2017] IECA 223: meaning of environmental information.
• Redmond & Mary Redmond -v- Commissioner for Environmental Information & Coillte Teorantia IECA [2020] 83: meaning of environmental information.
• Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190: meaning of environmental information.
• An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241: access to cabinet records.
• Right to Know CLG v Department of An Taoiseach [2018] IEHC 372: access to cabinet documents under access to information on the environment provisions.

Currently there are no specialist administrative or environmental courts in Ireland, and environmental cases are dealt with across the different courts, up to the level of the Supreme Court. However, the Programme for Government (2020) contains a commitment to establish a new Planning and Environmental Law Court managed by specialist judges, and to review and reform the judicial review system while adhering to EU law obligations under the Aarhus Convention.

The Supreme Court has the following functions:

• It hears appeals from the Court of Appeal if the Supreme Court is satisfied that:
  • the decision involves a matter of general public importance, or
  • in the interests of justice it is necessary that there is an appeal to the Supreme Court.
• It hears appeals directly from the High Court (called a “leapfrog appeal”) if the Supreme Court is satisfied that there are exceptional circumstances that call for a direct appeal to it. The Supreme Court must be satisfied that:
  • the decision involves a matter of general public importance, and/or
  • it is in the interests of justice.
• It is a constitutional court, as it is the final decision-maker in interpreting the Constitution of Ireland.
• It can end the President’s term of office, if five Supreme Court judges or more decide that a President has become permanently incapacitated.
• It can check the constitutionality of a legislative Bill passed by both Houses of the Oireachtas where the Bill is referred to the Court by the President in accordance with Article 26 of the Constitution.

In the latter two functions, the Supreme Court has original jurisdiction, rather than appellate jurisdiction. Further information on the Supreme Court is available here.

In Ireland, consistency of jurisprudence is maintained through the doctrine of ‘stare decisis’, meaning that a court is generally bound by its own previous decisions and that lower courts are bound by the decisions of the higher courts.

The decisions of the Supreme Court (the final court of appeal in all civil and constitutional matters) bind all lower courts, including the High Court and Court of Appeal. In the Supreme Court, the doctrine of stare decisis is not rigidly applied, but the Court will not depart from a previous Supreme Court decision unless there are compelling reasons for doing so (and not simply because the current Supreme Court favours a different conclusion).

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.

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?

As discussed above, 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 Oireachtas. This provision means that legislation must be put in place in order to give effect to international agreements in the domestic legal system.

Given this dualist legal system, it was necessary for Ireland to give effect to all provisions of the Aarhus Convention in national law prior to ratification in 2012. In addition to the transposition of specific provisions, section 8 of the Environment (Miscellaneous Provisions) Act 2011 provides that judicial notice must be taken of the Aarhus Convention.

1.2. Jurisdiction of the courts

1) Number of levels in the court system

In Ireland, there are five distinct types of court, which operate in a hierarchy: the District Court, the Circuit Court, the High Court, the Court of Appeal and the Supreme Court. Each court deals with specific types of cases. When the Circuit Court deals with criminal matters it is known as the Circuit Criminal Court, and the High Court is known as the Central Criminal Court when it exercises its criminal jurisdiction. There is also a Special Criminal Court that deals with criminal cases that cannot adequately be dealt with by the ordinary courts (e.g. terrorist and organised crime cases). Information on the Irish courts system is accessible via thehttps://www.citizensinformation.ie/en/justice/courts_system/courts.htmlCitizens' Information website, as well as on the Courts Service of Ireland's website.

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)?

Articles 34 to 37 of Ireland’s Constitution deal with the administration of justice in general and outline the structure of the court system. Article 34.1 states that ‘Justice shall be administered in Courts established by law’. The Constitution outlines the structure of the court system as comprising a court of final appeal (the Supreme Court), a Court of Appeal, and courts of first instance which include a High Court (with original full jurisdiction in all criminal and civil 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.

Matters concerning the constitutionality of laws may only be determined by the High Court, with an appeal to the Court of Appeal and thereafter to the Supreme Court where the Supreme Court is satisfied that the decision involves a matter of general public importance, or in the interests of justice it is necessary that there be an appeal to the Supreme Court. Where the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal, the Supreme Court may grant permission for a “leapfrog” appeal directly to it from the High Court. A precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors: i. the decision involves a matter of general public importance; ii. the interests of justice.

In many 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 High Court does not have regional divisions, though it hears certain types of actions (not judicial review) in several provincial locations at certain times of the year, and sits in provincial venues to hear appeals from the Circuit Court in civil and family law matters.

There is a doctrine that one must generally exhaust administrative remedies before leave will be granted by the High Court to pursue judicial review proceedings (for a discussion, see Simons 2014). While it is possible for an applicant to pursue judicial review proceedings in the High Court without first exhausting administrative appeal possibilities, often an applicant would be advised to pursue the administrative route first owing to the risk of being refused leave to bring the action for judicial review (or ultimately refused relief by the court exercising its discretion) for failing to exhaust administrative remedies before resorting to court.

However, if the available administrative review procedure is not capable of addressing the particular issue(s) arising, then there is nothing to prevent a litigant from proceeding directly to judicial review.

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

Criminal prosecutions in the environmental context 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.

All civil planning and environmental litigation is dealt with by the ordinary courts. As such, there are currently no specialised environmental courts in Ireland, albeit the Programme for Government (2020) contains a commitment to establish a new Planning and Environmental Law Court managed by specialist judges. In order to speed up the hearing of certain planning permission cases, the Commercial Planning and SID (Strategic Infrastructure Development) List of the High Court (the SID List) is responsible for hearing: (a) judicial reviews in relation to development defined as “strategic infrastructure development” or “strategic housing development”, and (b) planning cases admitted to the Commercial List. Cases in this SID List are subject to a special case management procedure before a judge who specialises in dealing with this list (Practice Direction HC103). Planning law cases which do not fall within the definition of strategic infrastructure/strategic housing may be admitted to the Commercial List (and hence the SID List) provided that they meet the thresholds and criteria for entry to that List (set out in Order 63A of the Rules of the Superior Courts), including payment of a fee of €5,000. The size of this fee means that planning cases normally enter the Commercial List at a developer’s behest rather than at an individual’s or NGO’s.

Regarding the issue of judicial expertise, the recent Environmental Governance Assessment on Ireland noted that, from a brief review of relevant cases, the level of knowledge on planning issues is high, although there is less evidence of specific knowledge in wider environmental cases. As Ryall (2013) noted, in judicial review proceedings the High Court reviews the legality of decisions, and under Irish law there is very limited judicial review of the substance or merits of planning and environmental decisions: see the discussion of judicial review on the basis of unreasonableness/irrationality in 1.2(4) below. The Governance Assessment cited Ryall's (2013) study to the effect that the Irish courts tend to defer to the expertise of public authorities on environmental issues, and called this a concern, noting that it had seen no evidence to suggest this practice has changed since then. It is worth noting a recent judgment in which the High Court emphasised curial deference but nevertheless concluded that there was no material before An Bord Pleanála (ABP) capable of supporting its planning permission decision, despite ABP having concluded that such material was before it: see Halpin v An Bord Pleanála [2020] IEHC 218. ABP sought to appeal this decision to the Court of Appeal on the basis that the High Court is not entitled to “drill down” into its reasoning in this way, but ABP was refused leave by the High Court.

While Ireland does not currently have a specialised environmental court as such, ABP is an administrative appellate body empowered to make binding decisions in planning (i.e. land use) disputes. Significantly, both first parties (i.e. the developer seeking planning permission) and third parties (e.g. members of the public/NGOs) can appeal to ABP. ABP is responsible for the determination of planning appeals as well as the determination of applications for strategic infrastructure development and strategic housing development. It is also responsible for a range of other functions pertaining to land use and planning/environmental law, see here.

ABP is composed of an expert lay decision-making board and a large number of expert professional staff. ABP uses scientific-technical experts as decision-makers, and can hire-in experts to provide advice, and to assist in the evaluation of evidence presented by the parties.

Other specialist decision-making bodies that may be considered environmental tribunals of sorts include the Aquaculture Licences Appeals Board and the Forestry Appeals Committee.

Whilst not tribunals as such, other planning authorities (e.g. local authorities) also have considerable technical expertise in respect of their planning consent functions, which is recognised by the courts (see also the section on curial deference below) and the EPA is another decision-making body with technical expertise which has the power to grant permits and monitor and enforce permit conditions, as well as other broad enforcement powers.

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.

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 occurs relatively rarely 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.

Curial deference

The Irish courts defer to the technical expertise of decision-makers such as planning authorities, ABP and the EPA, since the courts are not experts on planning and environmental matters, while the Oireachtas has often vested the task of making planning and environmental decisions in these expert administrative bodies.

In judicial review proceedings, the High Court reviews the legality of the contested decision. Such review involves a consideration of whether all statutory requirements were met and fair/proper procedures observed. Where the substance of a planning or environmental decision is challenged in judicial review proceedings, the High Court may quash such a decision where the decision in question is found to be “unreasonable” or “irrational,” applying either the general test in The State (Keegan) v. Stardust Victims' Compensation Tribunal [1986] IR 642 (whether the decision is “fundamentally at variance with reason and common sense”) or the narrower test in O’Keeffe v An Bord Pleanála [1993] 1 IR 39, which applies where the review is of a decision of a technical or skilled or professional decision maker in the area of that special technical or skilled knowledge (see Denham J in the Supreme Court in Meadows v Minister for Justice, Equality and Reform [2010] 2 IR 701). Under this O’Keeffe test, the onus is on an applicant for judicial review to establish that the public authority decision-maker had “no relevant material” (cf. the mention of the Halpin case in 1.2(3) above) before it to support its decision and in default of the applicant so establishing, the court cannot reach a conclusion that the decision was unreasonable/irrational.

It has been determined in a number of cases that a greater level of scrutiny than O’Keeffe may potentially apply in planning/environmental cases, albeit accommodated within the existing judicial review regime: see Sweetman v An Bord Pleanála [2007] 2 ILRM 328, at 6.16 and 6.21; Klohn v An Bord Pleanála [2008] 2 ILRM 435, at 458; Keane v. An Bord Pleanála [2012] IEHC 324, paras 18 and 19.

In cases relating to fundamental rights, the courts apply a proportionality test (see Meadows v Minister for Justice, Equality and Reform [2010] 2 IR 701 and AAA & anor -v- Minister for Justice & ors [2017] IESC 80), providing for a more intensive form of review.

1.3. Organisation of justice at administrative and judicial level

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

There are a number of Government Departments responsible for the formation of policy and the development of legislation, including for example the Department of Housing, Local Government and Heritage, and the Department of the Environment, Climate and Communications.

The implementation of planning and environmental law in Ireland is a matter for national bodies which have been established for that purpose. Planning authorities (i.e. local authorities) and An Bord Pleanála (ABP) are responsible for determining planning applications and, in the case of planning authorities, the preparation of development plans and forward planning.

ABP is responsible for the determination of planning appeals as well as the determination of applications for strategic housing development and strategic infrastructure development including major road and railway cases. It is also responsible for a range of other functions, a full list of which can be found here.

The EPA is an independent public body established under the Environmental Protection Agency Act 1992. The EPA is organised across five Offices: the Office of Environmental Sustainability; the Office of Environmental Enforcement; the Office of Evidence and Assessment; the Office of Radiological Protection and the Office of Communications and Corporate Services. On 1 August 2014, the Radiological Protection Institute of Ireland (RPII) merged with the EPA and the Office of Radiological Protection was established. The EPA is responsible for licensing waste facilities, including landfills, incinerators, waste transfer stations; large scale industrial activities such as pharmaceutical, cement manufacturing, power plants; some forms of intensive agriculture; the contained use and controlled release of Genetically Modified Organisms (GMOs); sources of ionising radiation; large petrol storage facilities; waste water discharges; and dumping at sea activities.

In terms of enforcement, the EPA is responsible for conducting an annual programme of audits and inspections of EPA licensed facilities; overseeing local authorities’ environmental protection responsibilities; supervising the supply of drinking water and enforcing urban wastewater licences in plants managed by Irish Water; working with local authorities and other agencies to tackle environmental crime by co-ordinating a national enforcement network (NIECE), targeting offenders and overseeing remediation; prosecuting those who breach certain environmental laws; promoting compliance and enforcing producer responsibility Regulations such as Waste Electrical and Electronic Equipment (WEEE) and batteries; enforcing Regulations such as chemicals (REACH, mercury & detergents), paints, hazardous substances (RoHS, PCBs & POPs), fluorinated greenhouse gases and ozone depleting substances; and coordinating the implementation of the National Hazardous Waste Management Plan.

The Commissioner for Environmental Information determines appeals relating to decisions by public authorities on requests for access to environmental information. The role was established by the European Communities (Access to Information on the Environment) Regulations 2007-2018. Similarly, administrative appellate bodies exist in other fields such as planning (ABP, mentioned above), aquaculture licensing, forestry, and in respect of certain nature conservation decisions - see 1.3(4) below.

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

There is a doctrine that one must generally exhaust administrative remedies before leave will be granted by the High Court to pursue judicial review proceedings (for a discussion, see Simons 2014). While it is possible for an applicant to pursue judicial review proceedings without first exhausting administrative appeal possibilities, often an applicant would be advised to pursue the administrative route first owing to the risk of being refused leave to bring the action for judicial review (or ultimately refused relief by the court exercising its discretion) for failing to exhaust administrative remedies before resorting to court.

However, if for example the available administrative review procedure is not capable of addressing the particular issue(s) arising, then there is nothing to prevent an applicant from proceeding directly to judicial review.

The European Communities (Access to Information on the Environment) Regulations 2007-2018 allow for an appeal to the High Court but only on a point of law and following an internal review by the public body at first instance and a subsequent appeal to the Commissioner for Environmental Information, which must be initiated no later than one month after the internal review decision (this may be extended in certain circumstances). It may also be possible to judicially review the public body or indeed the Commissioner if there is a breach of fair procedures or the request concerns a point of constitutional or EU law although an objection may be raised that there has been a failure to exhaust remedies: see, for example, Right to Know CLG v An Taoiseach [2020] IEHC 228. The Commissioner may refer any question of law arising in an appeal before him to the High Court for determination and must postpone making a decision until after the determination of the court proceedings.

The Wildlife Acts 1976 to 2018 provide that certain administrative decisions of the Minister may be appealed to the District Court. A person aggrieved by a refusal of the Minister to grant or renew a licence to hunt and kill with firearms may appeal the refusal (section 29). A person may appeal a decision of the Minister to refuse to grant or renew a wildlife dealer’s licence (section 48). Any person who is aggrieved by a seizure and detention under the Wildlife Act may also make an appeal (section 77).

The timeframe for a final ruling by the court is difficult to define precisely as it will depend on the length of time the court takes before hearing the case and delivering judgment and then whether that judgment is appealed, and if appealed from the High Court whether directly to the Court of Appeal or by way of a “leapfrog” appeal to the Supreme Court. Whether a reference to the Court of Justice of the European Union is made will also be relevant, of course: this adds around 15.5 months on average. The Courts Service’s latest statistics reveal the following:

• In the High Court, judicial review cases in 2019 lasted on average 392 days from issue to disposal (p.100). (In the Commercial List, where cases are expedited, 1 week to 6 months for a hearing in the High Court from the first return date.)
• In the Court of Appeal, in 2019 the average wait from when the appeal was entered in the court list to the hearing was 20 months (p.110). There is then of course a wait after the hearing for judgment.
• In the Supreme Court, in 2019 the average wait from the determination of the leave application to the hearing of the appeal was 55 weeks (p.110). There is then of course a wait after the hearing for judgment.

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

There is no dedicated environmental court in Ireland, although as noted above the Programme for Government (2020) has committed to establish a new Planning and Environmental Law Court managed by specialist judges.

In order to speed up the hearing of certain planning permission cases, the Commercial Planning and SID (Strategic Infrastructure Development) List of the High Court (the SID List) is responsible for hearing: (a) judicial reviews in relation to development defined as “strategic infrastructure development” or “strategic housing development”, and (b) planning cases admitted to the Commercial List. Cases in this SID List are subject to a special case management procedure before a judge who specialises in dealing with this list (Practice Direction HC103). Planning law cases which do not fall within the definition of strategic infrastructure/strategic housing may be admitted to the Commercial List (and hence the SID List) provided that they meet the thresholds and criteria for entry to that List (set out in Order 63A of the Rules of the Superior Courts), including payment of a fee of €5,000. The size of this fee means that planning cases normally enter the Commercial List at a developer’s behest rather than at an individual’s or NGO’s.

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

Many environmental consent regimes in Ireland do not provide for an administrative appeal, such that the only recourse is to challenge a decision by way of judicial review in the High Court.

There is a right of appeal from a local authority’s planning permission decision to An Bord Pleanála (ABP) - Ireland’s independent Planning Appeals Board - where the decision is a planning decision under the Planning and Development Act 2000 (s.37 PDA 2000).

Decisions on access to environmental information requests may be appealed to the Commissioner for Environmental Information, an independent appellate body at the national level (Article 12 of the European Communities (Access to Information on the Environment) Regulations 2007-2018).

Aquaculture licensing decisions can be appealed to the Aquaculture Licences Appeals Board, an independent national body.

Various consents related to forestry can be appealed to the Forestry Appeals Committee, a body appointed by the Minister for Agriculture (s.14A Agriculture Appeals Act 2001; and the Forestry Appeals Committee Regulations 2020, S.I. 418/2020).

Regulation 37 of the European Communities (Birds and Natural Habitats) Regulations 2011 provides that a person, who has an interest in land that is affected by an order of the Minister to restrict activities that could damage a Natura 2000 site, or by a decision by the Minister not to permit a derogation from such an order, may appeal the decision to an independent Appeals Officer. Further, a person affected by a decision of the Appeals Officer or the Minister may appeal to the High Court on a point of law from the decision within 28 days of receiving the decision of the Appeals Officer.

There is no right of administrative appeal in respect of IED licences granted by the EPA. However, the EPA is required to issue a proposed determination whereby objections may be made followed by a final determination, and the EPA’s decision may be judicially reviewed.

In terms of enforcement, decisions of the District Court may be appealed to the Circuit Court for a full de novo hearing and decisions of the Circuit Court may be appealed to the High Court for a full de novo hearing.

While most areas of environmental law attract an automatic right of appeal from the High Court to the Court of Appeal, judicial review decisions of the High Court in respect of planning law matters may only be appealed to the Court of Appeal if 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 (section 50A, PDA 2000). This jurisdiction is strictly construed and both limbs of the test must be satisfied. Since the 33^rd amendment to the Constitution, establishing the Court of Appeal in 2014, a “leapfrog appeal” application may be made by a party directly to the Supreme Court after the High Court proceedings. For leave to be granted, the Supreme Court must be satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors: the decision involves a matter of general public importance or the interests of justice. These criteria are determined by a panel of three judges of the Supreme Court based on papers lodged seeking leave to appeal and any notice of response.

As the Supreme Court noted in Grace and Sweetman v An Bord Pleanála & ors [2017] IESC 10, it is possible to envisage that there might be a case where the High Court quite correctly refused a certificate to appeal to the Court of Appeal (applying its “and” test) but the Supreme Court, without in any way disagreeing with the High Court, found that the constitutional threshold had been met (applying its “either or both” test). As the Supreme Court noted, the thresholds are not the same and the High Court’s certificate threshold is undoubtedly somewhat higher.

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

Some Acts and statutory instruments provide for referring a point of law or for an appeal on a point of law from an administrative body or tribunal to the High Court. For example, section 50(1) of the Planning and Development Act 2000 provides that An Bord Pleanála can refer a question of law to the High Court, and the AIE Regulations provide for an appeal on a point of law to the High Court. In addition, the District Court and Circuit Court may refer issues of law by way of a case stated procedure with, respectively, the High Court and the Court of Appeal.

There are no other extraordinary ways or means of appeal apart from the restriction in s.50A(7) of the Planning and Development Act 2000, which requires - as an exception to the general automatic right of appeal to the Court of Appeal - that leave be obtained for appeals from the High Court in planning judicial review applications.

There are no separate or distinct national rules or practice directions on when the national courts should make preliminary references to the Court of Justice of the European Union (CJEU) under Art. 267 of the Treaty on the Functioning of the European Union. In the past, applicants have sought clarity regarding whether, for example, it is permissible in a planning judicial review for the High Court to decline to make a preliminary reference then decline to grant leave for an appeal.

Ireland’s courts have in recent years shown an increasing tendency to refer questions to the CJEU in the area of environmental law. See, for example: NEPPC (C-470/16), Grace & Sweetman v An Bord Pleanála (C-164/17), Klohn (C-167/17), People Over Wind & Sweetman v Coillte (C-323/17), Holohan v An Bord Pleanála (C-461/17), Friends of the Irish Environment CLG v An Bord Pleanála (C-254/19), Friends of the Irish Environment v Commissioner for Environmental Information (C-470/19).

In Holohan & Ors. v An Bord Pleanála [2017] IEHC 268, it was held by the High Court that if a question of EU law which is not acte clair arises, there may be some reasons for considering that it might be more appropriate for it to be referred by the High Court rather than by an appellate court.

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

There is the option to pursue both mediation and arbitration in Ireland and these may be used as alternative dispute resolution mechanisms for environmental disputes and conflicts. Mediation is regulated by the Mediation Act 2017 and there are court rules for mediation in the District Court, Circuit Court and High Court. The Court may issue an invitation to consider mediation of its own motion in any civil proceedings to which the 2017 Act applies, on any occasion on which such proceedings are before the Court and where, following an invitation by the Court, the parties decide to engage in mediation, the Court may, having heard the parties, make such orders in accordance with section 16(2) of the 2017 Act as it considers appropriate.

Commercial arbitration is regulated under the Arbitration Act 2010 and may arise where there is a commercial agreement such as an asset purchase agreement or share purchase agreement or lease agreement where a covenant, or warranty or indemnity relating to environmental law has been breached.

Mediation and arbitration as options for dispute resolution are generally agreed between the parties and do not involve the court system although court proceedings may be adjourned sine die pending the outcome of mediation or arbitration. There is also an option for an arbitrator to state a point of law to the High Court and there is a dedicated High Court judge to deal with arbitration matters.

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

The Director of Public Prosecutions (DPP) has a role in prosecuting environmental crime. For example, certain waste offences may be prosecuted on indictment in the Circuit Court by the DPP. The penalty on conviction on indictment is a fine not exceeding €15,000,000 or imprisonment for a term not exceeding ten years, or to both such fine and such imprisonment.

The Commissioner for Environmental Information has a role in determining appeals under the European Communities (Access to Information on the Environment) Regulations 2007-2018. The role of the Commissioner is to carry out independent reviews of decisions made by public authorities on requests for environmental information.

Ireland’s Ombudsman can investigate complaints about public service providers. However, its website listing of those it can investigate misses out several relevant bodies (e.g. Bord na Móna (semi-State peat company) and the EPA). The website does however note that the list is not exhaustive; that said, the fact that a body is not listed may make it less likely that this route is used to seek redress in respect of such bodies.

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)?

In general terms those with standing are split into two groups. Firstly, those people who made a submission during the administrative process and who have a sufficient interest in the proceedings (participation in the process will undoubtedly confer standing, albeit having made a submission is not always a necessary precondition: see Grace and Sweetman v. An Bord Pleanála [2017] IESC 10). All persons, irrespective of location or interest or any other qualifying criteria can make a submission. An assessment of whether a particular party has a sufficient interest will depend on the factors present in each case. The courts will look at factors such as the degree of impact on the individual from the proposed development, the degree of involvement they have had in the decision-making process, their motives in seeking to review a decision and the stage in the process in respect of which a decision is sought to be challenged in deciding whether they have standing to challenge the decision.

Secondly, eNGOs whose aims and objectives relate to the promotion of the environment and who have pursued that objective over the previous 12 months have a right of standing in the case of development subject to EIA. Currently there are no rules in terms of the numbers of members or other criteria for eNGOs in order to qualify under this general standing right. There is equally no distinction drawn between eNGOs that are incorporated as a legal entity and those that are unincorporated associations.

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

The standing rules outlined above are generally applicable to challenges that involve the EIA, IED, Habitats/Birds and SEA Directives, etc. However, depending on the nature of the activity, all litigation is funnelled through one of two distinct legislative streams: development (planning permission) and non-development activity (i.e. waste, water, IED etc.).

In the case of development (planning permission) challenges, a litigant will only be granted leave if the court is satisfied both that the litigant has a sufficient interest in the matter (which may be deemed in the case of eNGOs, as described above) and that there are “substantial grounds” for contending that the decision or act concerned is invalid or ought to be quashed (s.50A PDA 2000). This requirement to demonstrate substantial grounds does not apply outside the field of planning permission.

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.)

For individuals, as a rule, participating in the administrative procedure will confer standing.

The Supreme Court in Grace and Sweetman v An Bord Pleanála [2017] IESC 10 held that a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account.In that context the Court emphasised that participation in the process will undoubtedly confer standing. On the facts, standing was accorded to Ms. Grace even though she had not participated at all in the administrative process. It should be noted, however, that she lived within 1 km of the proposed development, had a long history of activism in relation to the development and was certainly directly affected. The decision of the Court should not therefore be regarded as authority for the proposition that the prior participation rule has been dispensed with. That said, the Court indicated that had Mr. Sweetman (the other challenger, who did not live near to the wind farm in question) participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour (ultimately the Court did not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing).

Subsequently, the High Court held in Conway v An Bord Pleanála [2019] IEHC 525 that there is nothing in Article 11 of the EIA Directive or in C-263/08 Djurgården or C-137/14 Commission v. Germany which would preclude a national court, as a matter of EU law, from considering as among the factors to be taken into account in determining standing, the non-participation by the applicant in the prior administrative or planning process which led to the impugned decision and any explanation for that non-participation (factors which, as the Supreme Court in Grace and Sweetman confirmed, can be considered under Irish national standing rules). Indeed, the Court held, C-664/15 Protect Natur suggests that a prior participation requirement may not infringe the right of access to effective judicial mechanisms, at least under Article 9 of the Aarhus Convention and potentially also under Article 11 of Directive 2011/92. However, the Court did not reach a definitive conclusion on that point. Subsequently, in January 2021, the CJEU in Case C-826/18 Stichting Varkens in Nood held that Article 9(2) of the Aarhus Convention precludes a prior participation requirement in respect of proceedings within the scope of Article 9(2) brought by eNGOs which are part of the “public concerned”. The CJEU further held that Article 9(3) of the Convention does not preclude a prior participation requirement, unless the applicant cannot reasonably be criticised, in light of the circumstances of the case, for not having intervened in the earlier procedure.

In order to have standing, an individual must demonstrate that they have a sufficient interest in the decision. That interest does not need to relate to a financial or land-based interest but some degree of physical proximity or impact is one of the elements assessed. Equally, a Court will look at the reasons for the individual seeking judicial review of the administrative decision. Courts will generally look to identify either a personal and proximate interest and/or a genuine environmental concern and give standing if those factors are present. If, on the other hand, the proposed development does not engage any personal interest of the individual, they are not directly impacted and the Court perceives that a professed environmental concern is simply a proxy to interfere in the development process, standing may be refused. The absence of any definition of “sufficient interest” makes predicting in advance whether an individual will have standing a difficult exercise, particularly where the individual has not participated in the earlier procedure. As the Supreme Court emphasised in Grace and Sweetman, participation in the earlier process will undoubtedly confer standing.

Finally, although not strictly a standing issue, as described above an individual will not pass the initial threshold for judicial review in a planning permission case unless they can demonstrate “substantial grounds” as to why the decision should be set aside. This requires that they demonstrate to the Court on an ex parte basis the legal reasons that they say mean that the decision should be set aside. Those legal reasons must satisfy a Court that there is at least a serious prima facie case being made and the applicant should be allowed to litigate the claim at full hearing.

NGOs must also demonstrate substantial grounds to the same standard in planning permission cases, and must generally demonstrate a “sufficient interest” in order to have standing. However, they do not have to demonstrate a sufficient interest in a decision subject to EIA. In other words, in EIA cases they are entitled to participate as of right once they have aims or objectives “which relate to the promotion of environmental protection” and had pursued those aims during the previous 12 months prior to the date of the application for development or a licence. It is unclear whether this 12 month requirement refers to a necessity for constant activity over that period or whether a single intervention or activity by the NGO during the previous 12 months will suffice. This 12 month requirement precludes NGOs from being set up after an application has been submitted in order to function as a litigation vehicle with deemed standing for subsequent proceedings. Provision is made in legislation for the authorities to prescribe additional requirements for NGOs to satisfy in order to be granted standing rights but that power has not been exercised to date.

Given that numerous Irish statutory provisions have been made to give eNGOs deemed standing in certain specific situations, it would be prudent to proceed on the basis that outside these specific statutory regimes/situations it will be necessary for eNGOs to demonstrate a sufficient interest rather than expecting that they will effectively be deemed in practice to have standing in all environmental/planning cases. It is worth noting that the State will litigate standing points against eNGOs; e.g. in 2020 the Government successfully argued before the Supreme Court that Friends of the Irish Environment, as a corporate body, did not have standing to vindicate personal constitutional rights or human rights under the ECHR: see Friends of the Irish Environment v Government of Ireland & Ors. [2020] IESC 49.

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

The general rules of Court apply. All cases must be in one of the official languages of the State, i.e. English or Irish.

Regarding interpretation, Order 120 of the Rules of the Superior Courts provides that there shall be such number of interpreters as the Chief Justice and the President of the High Court respectively may from time to time, by requisition in writing addressed to the Minister for Justice, request, and such interpreters shall attend the Courts and the Offices of the Superior Courts and be available to attend those Courts as required for the hearing of any cause or matter. The Courts Service’s Annual Report 2020 states that funding of €1.5m was provided for interpretation services in the courts in 2019, and contains a table listing the most common languages interpreted in court.

Any foreign language documents to be used in litigation must be translated by a suitably qualified translator into English or Irish. The costs of this exercise must be borne by the party which seeks to rely upon those documents. Affidavits can be sworn in a foreign language once duly sworn and accompanied by a verified translation and an affidavit(s) from the translator and interpreter confirming that the translation is accurate and that the interpreter read accurately to the deponent the contents of the foreign language affidavit (Order 40 of the Rules of the Superior Courts).

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?

Judicial procedures in Ireland are common law adversarial procedures. Generally speaking, outside of injunctive or enforcement proceedings, the primary procedure available in the environmental sphere is judicial review of an administrative decision that has already been made. That involves an assessment by a court of the legality of the decision made. The Irish courts tend to defer to the technical expertise of planning and environmental decision-makers on the basis that the courts are not generally experts on planning and environmental matters, and the relevant legislation has given the task of making decisions to these expert administrative bodies (see Ryall (2013)). The court’s review is therefore generally confined to ensuring that the administrative authorities have correctly discharged the legal and administrative requirements – e.g. that any statutory duties have been fulfilled, that public participation has occurred, that proper regard has been had to submissions, that all required environmental assessments have been completed to the necessary standard, and that all the administrative steps have been discharged - and that the body has not acted “unreasonably” or “irrationally” (on which see 1.2(4) above).

That limitation means that once a Court is assessing an administrative decision it is assessing only the evidence that was before (and which was considered by) the administrative body. As the Court has no role in revisiting the merits of the conclusion reached by that body (other than in the limited sense of reviewing the reasonableness or rationality of the decision on O’Keeffe/Keegan grounds – see section 1.2(4)), it has no jurisdiction or power to request new evidence.

In a recent judgment in the planning permission context the High Court emphasised its longstanding position on curial deference but nevertheless concluded that there was no material before An Bord Pleanála (ABP) (Ireland’s Planning Appeals Board) capable of supporting ABP’s decision under challenge, despite ABP having concluded that such material was before it: see Halpin v An Bord Pleanála [2020] IEHC 218. ABP sought to appeal this decision to the Court of Appeal on the basis that the High Court is not entitled to “drill down” into its reasoning in this way, but ABP was refused leave by the High Court.

2) Can one introduce new evidence?

An individual or NGO is entitled to place whatever expert evidence it wishes before the administrative decision maker.

Once a judicial review procedure has commenced both sides are, in theory at least, entitled to produce any new evidence they wish in sworn form. However, as a Court does not reassess the merits of the substantive conclusions reached by the administrative authority on the evidence that was before it (other than in the limited sense of reviewing the reasonableness or rationality of the decision on O’Keeffe/Keegan grounds – see section 1.2(4)) any new evidence is, by definition, unlikely to be relevant to the judicial review process. However, despite this difficulty, both the applicant/objector and the developer will nevertheless sometimes submit new evidence to the Court.

On the applicant/objector side this expert evidence is generally designed to demonstrate that the administrative authorities could not have reached particular conclusions and/or to demonstrate that the scientific basis for those conclusions was erroneous. On the developer side affidavits are frequently sworn by the authors of expert reports that were considered by the administrative authorities. These affidavits generally purport to explain the type and scale of the scientific assessments which were undertaken by the developer with a view to supporting the legality of the decision to grant planning permission.

Finally, the administrative authority that took the decision will, almost invariably, be the primary respondent to any judicial review proceedings. These authorities have a limited role in seeking new evidence prior to any decision on an application for development or a licence. Once a decision has been made the administrative authorities will ordinarily swear affidavits verifying the steps taken in reaching that decision and identifying how and where statutory obligations were discharged. However, those affidavits will not, by definition, be composed of additional evidence that was not considered in advance of the impugned decision having been taken justifying the decision taken.

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

The commissioning of expert evidence, notwithstanding the very limited role of any evidence that was not before the administrative body, is a matter entirely at the discretion of the party seeking to rely upon it. It is up to a party seeking expert evidence to approach an individual or organisation with the necessary expertise and agree the scope and terms of that evidence with them.

While Ireland does not have an official accrediting body for expert witnesses, Round Hall (publisher) compiles the Expert Witness Directory of Ireland, a reference-checked list of expert witnesses in over 1,000 areas of expertise. To be permitted to use the associated logo “Expert Witness Directory of Ireland Irish Checked”, a witness listed in this Directory has to establish that they meet the requirements of the Expert Witness Directory of Ireland Code of Conduct.

There is no statutory listing of requirements (such as qualifications or professional experience) for evidence to be regarded as “expert”. However, any such expert evidence will include an attestation as to the author’s qualifications, experience and particular expertise. Given the small size of the jurisdiction and the limited number of environmental topics that are ordinarily subject to litigation on a more than occasional basis, in practice the pool of experts is generally familiar to all sides; otherwise, experts may identified by way of the Directory described above or by word of mouth, searching on the internet, etc. Ireland’s Law Reform Commission produced a report on Consolidation and Reform of Aspects of the Law on Evidence in 2016, which deals extensively with the issue of experts.

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

Expert evidence (whether from the developer or from the objectors) which was before the administrative body is not binding on that administrative body. These bodies exercise an independent decision-making function and are specifically entrusted to assess and reach independent conclusions in respect of the evidence placed before them.

However, once they have formed that view and made a decision to grant or refuse the application that opinion (and the decision made on foot of it) are regarded as presumptively correct for the purposes of any subsequent judicial review proceedings: Kelly v An Bord Pleanála (Aldi Laytown) [2019] IEHC 84. They may only be varied by a Court if they are predicated upon an error of law or an error of jurisdiction made by the administrative authority. In practice it is very difficult to successfully challenge any substantive conclusion reached by an administrative body in respect of the evidence placed before it. A party seeking to do so must demonstrate that the decision is fundamentally at variance with reason and common sense (general test) or that there was no evidence to support the conclusion (the narrower test that applies where the review is of a decision of a technical or skilled or professional decision maker in the area of that special technical or skilled knowledge) (see 1.2(4) above). It does not matter, therefore, if a Court thinks that the decision was inadvisable or that the evidence available inclined to a different conclusion.

This said, in a recent judgment in the planning permission context the High Court emphasised its longstanding position on curial deference but nevertheless concluded that there was no material before An Bord Pleanála (ABP) (Ireland’s Planning Appeals Board) capable of supporting ABP’s decision under challenge, despite ABP having concluded that such material was before it: see Halpin v An Bord Pleanála [2020] IEHC 218. ABP sought to appeal this decision to the Court of Appeal on the basis that the High Court is not entitled to “drill down” into its reasoning in this way, but ABP was refused leave by the High Court.

Curial deference does not apply in relation to the legal requirements which have to be discharged. Those are matters, such as statutory interpretation, which the Court is clearly expert in. This means that, in practice, challenges to grants of permission or licences are overwhelmingly concerned with legal requirements rather than the substance of an application and in respect of which independent expert evidence is generally produced. The scope for expert evidence is therefore much more limited in the Irish system than may be the case in inquisitorial proceedings.

3.2) Rules for experts being called upon by the court

In the Irish system there is no scope for experts to be called by the Court on its own motion. The Court can suggest that certain evidence may be useful for it to hear but it has no power to compel the production of that evidence.

3.3) Rules for experts called upon by the parties

In the majority of civil actions, but not environmental judicial review, expert evidence is submitted via expert reports, affidavits or letters in a broadly similar standard form. This standard form is to ensure that the expert is independent of the party which commissioned the evidence and includes an express undertaking that the expert’s primary obligation is to the Court and not to that party. In general these reports are drafted directly by the experts themselves with minimal intervention by lawyers. These experts may be called to give evidence during the proceedings and may be subjected to cross-examination by lawyers for the opposing parties.

In environmental judicial review proceedings, there is no strict obligation on the expert to attest to that primary obligation to the Court or to the independence of the expert, although as a matter of practice the expert will ordinarily identify their relevant experience. In addition, this evidence tends to be drafted with significant input from lawyers.

Environmental judicial review proceedings are almost always conducted without any expert evidence being given orally in Court and consequently without cross-examination.

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

There are no procedural fees for expert evidence as such. Any expert evidence which is sought to be adduced is in the form of affidavit evidence. There are de minimis administrative costs for the swearing (€10 + €2 for each document exhibited) and filing (€20) of these affidavits. However, they are precisely the same costs in respect of all affidavits and no distinction is drawn on the basis that they are expert evidence.

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

It is not compulsory for litigants to be represented by lawyers. However, litigants would normally be well advised to seek such legal representation in order to ensure an equality of arms.

The legal profession in Ireland is divided between solicitors and barristers. Solicitors are qualified legal professionals who provide expert legal advice and support to clients on contentious and non-contentious business. Barristers do not handle clients’ funds, they do not provide safe custody of original documents, nor do they provide the normal non-contentious administrative services which a client would expect from a firm of solicitors. Solicitors seek the expert assistance of barristers on issues that they feel require further opinion and in the preparation and conduct of litigation. Solicitors tend to call on the services of barristers to present their clients’ cases in the higher courts, mainly because of barristers’ expertise in oral advocacy and court procedure.

Normally a client must have a solicitor in order to access the services of a barrister. Certain professional bodies (and their members), if approved by the Bar of Ireland, may have direct professional access to barristers to seek legal opinion in non-contentious matters. In litigation, a client will typically be represented by a firm of solicitors and two (sometimes three, rarely four) barristers: a junior counsel (rarely two) and a senior counsel (sometimes two).

The Law Society of Ireland maintains a directory of solicitors. This contains basic contact details for individual solicitors and firms and does not enable clients to identify specialized environmental lawyers. Solicitors are however allowed to advertise their services (e.g. on their website), subject to strict rules, which for example prevent solicitors from advertising that they will take cases on a “no win, no fee” basis. For more information about solicitors, see here.

The Bar of Ireland maintains a directory of barristers here. This is searchable by area of specialisation as well as name, allowing one to identify barristers specializing in the fields of planning and environmental law. Again, special advertising rules apply. For more about barristers, see here.

Clients typically contact lawyers by email or phone, and in practice word of mouth tends to operate to inform potential clients of lawyers who specialise in the fields of planning/environmental law, and of those solicitors and barristers who may be willing to take cases on a “no win, no fee” basis.

1.1. Existence or not of pro bono assistance

Some non-contentious advisory work is undoubtedly done by many lawyers on a pro bono basis, but this is often ad hoc and often unseen. There are a number of free legal advice centres in Ireland, though they have not tended to do environmental law work. Recently, however, Community Law & Mediation hired an environmental justicelawyer – a first for the free legal advice sector in Ireland. In addition, two large corporate law firms in Dublin hired a lawyer (each) to work full-time on pro bono matters outside the firms’ normal areas of practice. In November 2020, the Pro Bono Pledge, an initiative of the Public Interest Law Alliance (PILA) and FLAC (Free Legal Advice Centres), launched in Ireland – signatories commit to a minimum aspirational target of 20 pro bono hours per lawyer per year and there is a mechanism to benchmark progress through annual reporting of anonymous pro bono data. The Bar of Ireland operates a voluntary assistance scheme for NGOs, charities, etc.

Litigation in the field of environmental law does not tend to be done on a pro bono basis by solicitors or barristers. Rather, lawyers may be willing to take cases on a “no win, no fee” basis, meaning the lawyers are not paid if the client’s case is unsuccessful but if it is successful then the lawyers would expect to recover their fees (in full or part) from the losing litigant.

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.)?

As mentioned under 1.1, most pro bono assistance in the field of environmental law would be ad hoc, established by the client simply making direct contact with the lawyer(s) in question and the lawyer(s) agreeing to help. Information about how to apply for assistance from the Bar of Ireland’s Voluntary Assistance Scheme is available here.

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

Please see answer to 1.2.

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

While Ireland does not have an official accrediting body for expert witnesses, Round Hall (publisher) compiles the Expert Witness Directory of Ireland, a reference-checked list of expert witnesses in over 1,000 areas of expertise. This is available in hard copy only.

In terms of online resources, this searchable UK-based directory lists experts in Ireland as well as the UK, but is not comprehensive. A list of expert engineers is available here. Otherwise, experts tend to be identified based on word of mouth, searching on the internet, etc.

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

The websites of the two complementary umbrella organisations for eNGOs – the Irish Environmental Network and the Environmental Pillar – contain lists of their eNGO members with links to websites:

https://ien.ie/our-members/

https://environmentalpillar.ie/our-members/

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

Friends of the Earth has an Irish branch: Friends of the Earth Ireland. Friends of the Irish Environment recently partnered with ClientEarth to bring a case relating to the Common Fisheries Policy before the Irish High Court. Otherwise, eNGOs in Ireland tend to be national, albeit with links to and/or membership of international networks such as the EEB, BirdLife International, etc.

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 time limit for a statutory appeal will depend on the decision-making regime. In the case of appealing planning decisions to ABP, this is four weeks (s.37 PDA 2000). In the case of an appeal to the Commissioner for Environmental Information, the appeal must be brought within one month after receipt of the decision following the internal review (or where no decision was notified within one month from the time when the decision was required to be notified) (Article 12 of the European Communities (Access to Information on the Environment) Regulations 2007-2018). In the case of an appeal against an aquaculture licensing decision, the period is one month from the date of publication of the decision (s.40 of the Fisheries (Amendment) Act 1997 (as amended)). In the case of various consents related to forestry, the deadline for appealing to the Forestry Appeals Committee is 28 days from the date of the Minister’s decision (Article 5 of the Forestry Appeals Committee Regulations 2020, S.I. 2020/418). The time limit for appeals Regulation 37 of the European Communities (Birds and Natural Habitats) Regulations 2011 (referred to in section 1.3 above) is not later than 28 days after notice of the Direction or the decision was given. Unlike court applications for judicial review, where the court has discretion to extend time, statutory time limits generally cannot be extended.

2) Time limit to deliver decision by an administrative organ

Planning authorities must generally issue decisions within eight weeks, though this period can be extended by a further four weeks where further information is requested or by a further eight weeks where further information is requested in a case requiring EIA or an appropriate assessment under the EU Habitats Directive (s.34(8) PDA 2000). An Bord Pleanála has the objective of reaching decisions on appeals within 18 weeks (s.126) and decisions on applications for strategic infrastructure (s.37J), although decisions on strategic housing development applications must be made within 16 weeks where no oral hearing is held (s.9 of the Planning and Development (Housing) and Residential Tenancies Act 2016).

Forestry: the relevant legislation does not record a deadline for the Minister to reach afforestation licensing decisions or for the Forestry Appeals Committee to determine appeals. A review of the afforestation approval process published in 2019 recorded that less than 40% of afforestation applications were decided in less than 70 days in 2019, while almost half of the applications took more than 99 days to decide. In 2018, 26 of the 66 appeals decided by the Forestry Appeals Committee took over 53 weeks to determine – almost 40% of the total.

IED: the EPA must issue its proposed determination within 8 weeks (s.87(3) Environmental Protection Agency Act 1992; and the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 (S.I. 137/2013)). There is no administrative appeal mechanism akin to an appeal to ABP in the planning context; however, as set out above, the proposed determination may be objected to, and the EPA’s decision may be judicially reviewed before the High Court. The EPA’s decision must be given “as expeditiously as may be” (s.85).

Aquaculture licensing: the Minister must endeavour to determine licence applications within four months (Fisheries (Amendment) Act 1997). On appeal, the Aquaculture Licences Appeals Board must endeavour to ensure that appeals are dealt with within four months.

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

There is a doctrine that one must generally exhaust administrative remedies before leave will be granted by the High Court to pursue judicial review proceedings (for a discussion, see Simons 2014). While it is possible for an applicant to pursue judicial review proceedings without first exhausting administrative appeal possibilities, often an applicant would be advised to pursue the administrative route first owing to the risk of being refused leave to bring the action for judicial review (or ultimately refused relief by the court exercising its discretion) for failing to exhaust administrative remedies before resorting to court.

However, if for example the available administrative review procedure is not capable of addressing the particular issue(s) arising, then there is nothing to prevent an individual/NGO from proceeding directly to judicial review.

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

There is no deadline on national courts to deliver judgments and delays can be an issue in practice, e.g. before the Court of Appeal where there have been lengthy backlogs.

The Courts Service must maintain a register of civil judgments that are outstanding pursuant to section 46 of the Court and Court Officers Act 2002 (as amended). If a judgment is not delivered within 2 months from the date on which it was reserved, the President of the Court will list the proceedings before the judge who reserved judgment, and that judge should then specify the date on which he or she proposes to deliver judgment in the proceedings (s.46(4)). However, the delivery of a judgment is a matter for the trial judge and it is not uncommon for the delivery of judgment to be adjourned on a number of occasions.

In the recent case of Keaney v Ireland (Application no. 72060/17), the European Court of Human Rights (ECtHR) found that Ireland had breached Art. 6 of the ECHR because of delays in determining legal proceedings (not relating to environmental law) at the national level. The domestic proceedings in question took more than 11 years in total from first instance to the Supreme Court’s judgment. The ECtHR also found that Ireland was in breach of Art. 13 ECHR (right to an effective remedy) because there was no effective remedy provided in Ireland in respect of such delays. Further, in November 2020 the Aarhus Convention’s Compliance Committee found in ACCC/C/2016/141 that Ireland fails to comply with the requirement in Article 9(4) of the Aarhus Convention to ensure timely procedures for the review of environmental information requests – this conclusion applies inter alia to judicial procedures.

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

Judicial procedure

The general rule in environmental judicial review is that the applicant has three months to apply for leave from the date when grounds for the application first arose (Order 84 of the Rules of the Superior Courts). In planning law and IED actions for judicial review, the period is 8 weeks.

Once an action for judicial review has commenced with a grant of leave and service of the applicant’s statement of grounds and grounding affidavit (exhibiting evidence), Order 84 of the Rules of the Superior Court then requires respondents to deliver opposition papers (statement of opposition and replying affidavit) in the normal judicial review list within three weeks, but this rarely happens in practice.

Beyond the applicant’s exhibition of evidence at leave stage, and the respondent’s replying affidavit (exhibiting evidence in reply), which must in principle be filed within 3 weeks (as noted above), there are no time limits in judicial review proceedings for parties to submit additional evidence. Where a party wishes to submit further evidence on affidavit, leave of the court is required (Order 84, rule 23). If a case is admitted to the Commercial Planning and SID (Strategic Infrastructure Development) List in the High Court, directions will be agreed or made by the court.

Administrative procedure

The time limit for a statutory administrative appeal will depend on the decision-making regime. In the case of appealing planning decisions to ABP, this is four weeks (s.37 PDA 2000). In the case of an appeal to the Commissioner for Environmental Information, the appeal must be brought within one month after receipt of the decision following the internal review (or where no decision was notified within one month from the time when the decision was required to be notified) (Article 12 of the European Communities (Access to Information on the Environment) Regulations 2007, S.I. 133 of 2007, as amended), which can be extended by the Commissioner under Article 12(4)(b). In the case of an appeal against an aquaculture licensing decision, the period is one month from the date of publication of the decision (s.40 of the Fisheries (Amendment) Act 1997 (as amended)). In the case of various consents related to forestry, the deadline for appealing to the Forestry Appeals Committee is 28 days from the date of the Minister’s decision (Article 5 of the Forestry Appeals Committee Regulations 2020, S.I. 2020/418). Unlike court applications for judicial review, where the court has discretion to extend time, statutory time limits generally cannot be extended.

1.7.2. Interim and precautionary measures, enforcement of judgments

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

Where a decision is made by a planning authority to grant planning permission, the grant itself may not be made until the period for an appeal expires (s.34(11) PDA 2000). If the decision is appealed, the grant of permission may not be made until the determination or withdrawal of the appeal. The same situation pertains in respect of aquaculture licences: s.14 of the Fisheries (Amendment) Act 1997. Whether an appeal of a forestry consent decision has suspensive effect is unclear from the legislation.

The initiation of judicial review proceedings in respect of any decision by the appellate body does not have automatic suspensive effect. This early stage is done on an ex parte basis (where the administrative authority and the beneficiary of the decision are not on notice or present for the initial hearing).

However, an applicant can apply at that stage for an interim Order known as a ‘stay’. This is not an injunction but is a temporary judicial order preventing any steps being taken in pursuit of the challenged licence or application until (a) either the first time that the matter is returned to Court and all parties are present or (b) indefinitely until the substantive proceedings are resolved.

In the case of (a) the beneficiary of the decision (i.e. the developer and not the administrative authority) may indicate that it wishes to have the stay removed. If it wishes to do so then it must bring an application by way of notice of motion grounded on an affidavit. That will take the form of a relatively brief subsequent hearing as to whether the stay should be lifted such as to allow the developer to take steps to develop the project pending the determination of the proceedings. In resolving any such application a Court will generally try and balance the degree of prejudice to both sides and/or whether irreversible damage (environmental or otherwise) will occur in the interim.

In the case of (b) the developer will be given the right to seek to have the stay lifted at any time on the basis of the considerations above.

In practice, it is very unusual for developers to seek to proceed with developments which are subject to judicial review and/or to seek to have a stay lifted. A developer in that situation will generally seek to have the matter entered into the Commercial List of the High Court, on payment of a fee of €5,000, which allows for rigorous case management and an expedited hearing as a way to have the matter heard as quickly as possible.

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

The benefit of a decision to grant planning permission or a licence does not vest in the beneficiary of a decision until an appeal has been determined. There is therefore generally no requirement or scope for any injunctive proceedings at the administrative stage.

It should be noted in the Irish system that the administrative authorities do not themselves institute appeals against first instance decision makers. The model is rather an adversarial one where an applicant applies for permission or to be awarded a licence. That application will be subject to public participation. Whatever decision is reached at first instance can be appealed by the proposed developer or (as explained above) the participants in the application process, provided an administrative appeal exists (this is not always the case – e.g. certain EPA licences can be challenged only by way of judicial review). The same parties can, in turn, seek to institute judicial review proceedings (and, if appropriate, seek injunctive relief) in respect of any decision by the appellate body. Generally neither the first instance nor appellate bodies themselves intervene in order to appeal a decision or to seek injunctive relief. However, very rarely a first instance decision-maker may intervene to challenge by way of judicial review the decision that the appellate body reaches on appeal: for a recent example, see Dublin City Council v An Bord Pleanála [2020] IEHC 557.

Furthermore, in general, administrative decision-making authorities in Ireland have no power to grant an injunction. That remedy is only available from the High Court, or in certain limited circumstances the Circuit Court, and is therefore typically only sought (if at all) once the appellate tribunal has made its decision and recourse for an aggrieved party is open for the initiation of court proceedings. It is worth noting that in certain cases the power to seek an injunction is given to the Minister: e.g. Regulation 38 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. 477/2011, as amended), provides for the relevant Minister to apply to a court of competent jurisdiction for an injunction requiring the taking of action or the refraining from taking of action, for the purposes of ensuring compliance with the Habitats or Birds Directives. A ‘court of competent jurisdiction’ means either the Circuit Court for the circuit in which the relevant lands or part of the relevant lands are situated or the High Court.

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?

For the reasons explained above, there is no possibility of an injunction being either sought or granted during the administrative procedure.

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

A decision from a first-instance decision maker automatically does not take effect if there is an appeal by any person (including the applicant in the case that they have been unsuccessful with their application at first instance). If the applicant has been successful and they have been granted permission or the licence requested and there is no appeal then the rights and obligations that accrue from that decision will accrue automatically on the day after the period for an appeal has expired.

In respect of a decision by the appellate body: if the applicant for development consent or a licence has been successful on appeal, the rights pursuant to that decision will accrue automatically on the day after the appropriate period for commencing a challenge has expired, where there is no challenge. Where there is such a challenge by way of judicial review then the rights pursuant to that decision will still accrue on the same day subject to any stay or interim injunctive relief having been granted by the Court in the course of the initial application stage.

If any such stay or application has been sought the Court may grant it on an interim short term basis or until the hearing of the substantive proceedings. Alternatively, the Court may grant no injunctive relief but afford to the applicant for judicial review the opportunity to apply for injunctive relief with representation from all sides. If this is the route taken this hearing is normally convened shortly after the initiation of the judicial review proceedings.

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

No. An applicant for judicial relief may apply for injunctive relief during the judicial phase. That application is determined on the basis of entirely different criteria from those that are used to assess the legality of the substantive decision.

First, the Court will consider whether it has been established that there is a fair question to be tried. If there is a fair issue to be tried the court will consider how best to strike a balance between the parties pending the hearing of the action, which involves a consideration of the balance of convenience and the balance of justice, including the degree of prejudice to both sides if relief is granted or refused and its assessment of the motivations and conduct of the parties. Both of these elements arise in environmental cases in a similar manner to the circumstances in which they might arise in commercial or general civil disputes.

However, the thirdly assessed factor in commercial disputes is whether damages would be an adequate remedy. That factor does not sit easily in the vast majority of environmental cases that are taken by community groups, private individuals or NGOs that typically do not have the resources to provide an undertaking as to damages in the event that they are unsuccessful – i.e. that the substantive proceedings are lost and loss or damage is caused to the beneficiary of the decision. The issue has not arisen substantively to date and the general practice of the Courts when determining the question of whether to grant injunctive relief is ordinarily determined by reference to the first two issues and to disregard the third in light of the decision of the CJEU in Case C-530/11 Commission v United Kingdom and/or by reference to public interest concerns (whether in favour of granting or refusing injunctive relief).

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?

Neither first instance nor appellate bodies may provide injunctive relief as described above. A Court, upon application for judicial review, may do so on whatever conditions it deems fit. This is a discretionary remedy in which the Court has a very broad latitude to grant or refuse.

As described above, there is ordinarily provision for an undertaking to pay any damages that might accrue if an injunction is granted but the proceedings are ultimately unsuccessful but that does not tend to factor in applications for injunctive relief in environmental cases. If applied it would preclude, in almost all cases, the grant of injunctive relief in environmental cases. Apart from that (at the time of writing) theoretical possibility, there is no scope for a deposit or other financial payment by applicants for judicial review.

In the event that an application for injunctive relief is refused or granted in the context of judicial review proceedings it is possible to appeal this decision to the Court of Appeal.

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.

Under section 150 of the Legal Services Regulation Act 2015 legal practitioners must as soon as practicable provide their clients with a notice written in clear language setting out what legal costs will be incurred in relation to the matter. There are specific obligations as to what the notice must contain in respect of litigation, including the likely costs of each stage – see here. Each barrister must provide a section 150 notice to their instructing solicitor.

Administrative review

Administrative fees: For a member of the public or NGO to participate at first instance before a planning authority costs €20, and to appeal a grant of planning permission to An Bord Pleanála costs €220. There is a reduced fee to appeal of €110 for certain prescribed bodies, including one NGO: An Taisce. To make a submission or observation on appeal (e.g. if you are not an appellant) costs €50 (certain bodies are exempt from this charge, including An Taisce). To request an oral hearing costs €50, and An Bord Pleanála’s practise is to retain these €50 request fees even where it decides not to hold an oral hearing.

For a member of the public or NGO to appeal an aquaculture licence decision costs €152, plus €76 if a request is made to hold an oral hearing. Again, the Aquaculture Licences Appeals Board’s stated practice is not to refund this request fee even where it decides not to hold an oral hearing.

In the case of forestry applications, to participate at first instance costs €20 plus €200 to appeal.

Legal fees: To draft an appeal document (with no oral hearing), the cost of legal representation could range from zero (entirely pro bono - rare) to say €5,000 (ex VAT) or more. The latter figure based on a lawyer with 5 years of post-qualification experience charging say €250 per hour (ex VAT) and spending 20 hours drafting an appeal.

To draft an appeal and represent a party at an oral hearing, the cost of legal representation could range from expenses only (i.e. travel costs, hotel costs, food costs, other outlay – this would be rare) to over €100,000 (see example below). This would depend to some extent on the complexity of the case and the length of the oral hearing. Oral hearings can last from a day to several weeks. A lawyer could easily charge €1,000-1,500 (ex VAT) per day to attend an oral hearing, in addition to preparatory work, expenses, outlays. To attend a seven day oral hearing could therefore give rise to costs of about €10,000 to €15,000 (including VAT) – this would cover fees (for one lawyer) and outlays.

An Bord Pleanála will almost never award any costs to an appellant in a normal (i.e. not strategic infrastructure/housing) planning appeal, despite typically awarding costs to itself and other parties after an oral hearing, and this even where the appellant succeeds with its appeal after a lengthy oral hearing. It is therefore typically not possible for NGOs to find lawyers willing to act on a “no win, no fee” basis at oral hearings at the administrative review stage.

In “strategic infrastructure” cases An Bord Pleanála has in a small number of cases been willing to award some costs to appellants or third parties. Such examples give an idea of the scale of costs involved in oral hearings: e.g. in Case reference PA0003, which related to a planning application for a container terminal in Cork, An Bord Pleanála’s oral hearing ran for 15 days. An Bord Pleanála awarded itself costs of €176,272 (the cost of the Inspector’s report was €88,309). It ordered that €48,617 be paid to the solicitors for the Cork Harbour Environmental Protection Association, which was successful in securing the refusal of permission for the development, but this was only a fraction of the €129,923 in legal costs that were incurred for the 15-day hearing (see the Inspector’s Report 1 and Order 1 in PA0003). As above, this relatively large costs award to an appellant is very much the exception rather than the rule at the administrative review stage.

Experts’ fees: Depending on the nature of the report, an expert could charge in the range of €1,000 to €3,000 per report. In a complex case, there might be between 3 and 5 reports.

If there is an oral hearing, the NGO’s expert(s) will likely have to attend and give evidence, including sitting through the opposing side’s expert evidence on the relevant issue. So in addition to the cost of producing a written report, the expert(s) may charge a fee for appearing at the oral hearing and giving evidence. This could be (say) €500-1000 per day plus travel and subsistence expenses.

Outlay costs: in particular photocopying, could be from tens of euros to several hundred euros for an oral hearing where the NGO/individual is represented by a lawyer.

Judicial review

Court fees: are about €350 in each of the High Court, Court of Appeal and Supreme Court (so about €1,150 if a case goes all the way to the Supreme Court). As described above, a fee of €5,000 is payable where a case is admitted to the Commercial List of the High Court; as such, this route is rarely pursued by individuals/NGO applicants.

Legal fees: by way of examples: in July 2011, the Taxing Master heard a claim for fees in a case taken by the Usk Residents Association against An Bord Pleanála and the Attorney General. The respondents challenged the costs claimed after they were awarded by the court to the applicant. This is therefore an example of the legal costs of the applicant, which were payable by the losing respondents. The fees included a brief fee of €60,000 for the senior counsel and €40,000 for the junior counsel, plus €4,000 per day in court for the senior and €2,666.66 a day for the junior. The Taxing Master allowed these fees, and allowed a solicitor’s instruction fee of €225,000. Garrett Simons (now a High Court judge) highlighted that these judicial review proceedings were very complex and had been at hearing for approximately eight days in the Commercial List of the High Court. He went on to contrast these fees with those payable in what he described as a “common-or-garden” (i.e. ordinary) judicial review, where an individual - Mr. Klohn - fell liable to pay €86,000 to An Bord Pleanála under the ‘loser pays’ rule, plus his own legal costs of €32,550, giving a total liability of >€118,000. This case ended in a judgment of the CJEU relating to prohibitive expense: C-167/17 Klohn.

These levels of legal fees are no doubt an important factor for applicants who seek out “no win, no fee” representation in planning/environmental litigation in Ireland.

Experts’ fees: as discussed in section 1.5(2), because the Court does not reassess the merits of the substantive conclusions reached by the administrative authority on the evidence that was before it (other than in the limited sense of reviewing the reasonableness or rationality of the decision on O’Keeffe/Keegan grounds – see section 1.2(4)), any new evidence is, by definition, unlikely to be relevant to the judicial review process. However, despite this difficulty, parties will nevertheless sometimes submit new expert evidence to the Court. Depending on the nature of the expert evidence, an expert could charge in the range of €1,000 to €3,000 per report. As mentioned above, environmental judicial review proceedings are almost always conducted without any expert evidence being given orally in court.

Outlay costs: thesewould include outlay expenses such as photocopying and stationery for producing documentation for court, serving that documentation on other litigants, couriers, taxis to/from court with boxes of documents, etc. These costs can be considerable and depend on various factors – e.g. the complexity, whether the court will permit electronic exchange of exhibits, etc. For an action for judicial review at first instance (High Court) with one affidavit exhibiting evidence, it is estimated that there would be outlay expenses of about €350 to obtain leave, and about €1,000 (including the earlier €350) by the time ‘books’ (i.e. folders of materials) are produced for the hearing. In a complex action for judicial review the outlay costs could be as high as €5,000 or more before each court (so a multiple of this for cases that go on appeal). Such costs will naturally increase where the case continues on appeal to the Court of Appeal and/or Supreme Court, and will depend in part on the number of parties and the number of judges who require copies of books.

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

As a condition for granting leave for judicial review in a planning law matter in Ireland, the court may require the applicant to give an undertaking as to damages (s.50A(6) PDA 2000). The considerations to be taken into account in this regard are not specified in the legislation. One might look, by analogy, to cases regarding undertakings required under what is now Order 84, rule 20(7) of the Rules of the Superior Courts, which remains the applicable rule in judicial review contexts other than planning law. As Ryall (2013) notes, the key consideration under that case law is whether the proceedings in question demonstrate a clear public law dimension which would preclude the court from granting an undertaking. Thus, an applicant in a planning/environmental case should generally not be required to give an undertaking as a condition for the grant of leave where the case raises public law issues and not private law interests, at least where the case is not one of a series of unsuccessful challenges by an applicant to stop a particular development (see Coll v Donegal County Council [2007] IEHC 110).

Separately there is the question of undertakings as to damages where an applicant seeks an interim/interlocutory injunction. Clearly any requirement to provide such an undertaking could amount to a prohibitively expensive barrier to pursuing injunctive relief, depending on the applicant’s means and the level of the required undertaking. Since judicial notice must be taken of the Aarhus Convention, and given the general position described above regarding cross-undertakings in public law cases, in practice an applicant should not be required to provide a cross-undertaking in damages in an environmental case. This is borne out by the authors’ experience in practice.

3) Is there legal aid available for natural persons?

There is legal aid available for natural persons but in practice not for environmental cases. As Clarke J commented in the Supreme Court at para 2.30 of Conway v Ireland, the Attorney General & Ors [2017] IESC 13, the evidence suggests that, at a very minimum, the grant of legal aid in environmental cases is an extreme rarity.

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?

Legal aid is available only to natural persons and not legal persons (or those who do not have legal personality but are not “natural persons”): seeFriends of the Irish Environment v Legal Aid Board [2020] IEHC 454. In that case an eNGO was not eligible to apply for legal aid on the basis that it is a company – the judgment has been appealed to the Court of Appeal.

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): see Ryall (2013).

Please see answer under 1.6 above regarding pro bono assistance.

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

There are no other financial mechanisms available to provide financial assistance.

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

The general rule for costs in respect of civil litigation in Ireland is that costs follow the event (i.e. the loser pays) (Order 99 of the Rules of the Superior Courts). This rule has been displaced in the case of certain environmental actions by special costs rules pursuant to the Aarhus Convention and EU law which provide that:

(a) as a starting principle, each side bears its own costs; and

(b) the court has discretion to award a winning applicant its costs or part thereof (see section 50B PDA 2000[1] and Part 2 of the Environment (Miscellaneous Provisions) Act 2011; EMPA 2011). (Under these rules a losing party may be awarded its costs 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.)

The result in both scenarios (i.e. ‘loser pays’ or the special cost protection rules) is that applicants in environmental cases can in some cases find lawyers willing to act on a “no win, no fee” basis. In such cases, the applicant will not pay its lawyers for their time, unless and until the applicant’s action is successful, at which point there may, at the court’s discretion, be an award of costs in the applicant’s favour, which will serve to pay the applicant’s lawyers for at least part of (and perhaps all of) their time.

The courts may award a winning applicant its costs under the special rules “to the extent that the applicant succeeds in obtaining relief” (see s.50B(2A) PDA 2000). In other words, if the applicant makes arguments alleging, say, three separate breaches of the EIA Directive by An Bord Pleanála in granting planning permission, and the court finds in favour of the applicant in respect of two of the arguments but against the applicant on one, the court may make a deduction in its award of costs on the basis that a certain amount of court time was spent arguing a losing point. Thus, in a successful EIA case taken against An Bord Pleanála regarding Edenderry power station, the eNGO An Taisce was awarded 65% of its costs for this reason.

While these special costs rules have certainly improved access to justice, there has been considerable uncertainty regarding their scope of application, and this has resulted in a significant volume of “satellite litigation” over the past decade. In brief, s.50B PDA 2000 appears aimed at giving effect to Article 9(2) and (4) of the Aarhus Convention (and related EU law), while EMPA 2011 appears aimed at giving effect to Article 9(1), (3) and (4) of the Convention (and related EU law). Since s.50B specifically lists provisions of certain EU directives – namely the EIA, SEA, and IPPC (IED) Directives and, since 2018, Art. 6(3)/(4) of the Habitats Directive – it appeared that cost protection under s.50B would apply only where and to the extent that a case raised issues relating to one or more of these Directives/provisions. Further to the CJEU’s judgment in Case C-470/16 NEPPC, in Heather Hill Management Company CLG v An Bord Pleanála [2019] IEHC 186 the High Court held that the special costs rules under s. 50B apply to the entirety of proceedings, i.e. to all grounds of challenge and not just those relating to the above-named directives. In other words, where the impugned decision is made pursuant to a statutory provision that gives effect to the relevant provision(s) of any of the four named EU Directives, then the special costs rules apply to all grounds of challenge. This judgment is under appeal to the Court of Appeal.

The cost protection provided under Part 2 EMPA 2011 has similarly resulted in satellite litigation. The CJEU’s judgment in Case C-470/16 NEPPC confirmed that the requirement in s.4 EMPA 2011 to demonstrate a link with existing or likely damage to the environment before cost protection would apply is unlawful. This requirement has not yet (as at February 2021) been removed from Ireland’s legislation. Most recently, in O’Connor v Offaly County Council [2020] IECA 72 the Court of Appeal appears to have limited the scope of cost protection under the EMPA 2011 by holding that the scope of proceedings within the meaning of s.4(1)(a), insofar as it relates to an applicant seeking to ensure compliance with or enforcement of a statutory requirement, is limited to cases in which the applicant seeks to ensure compliance with or enforce into the future an identified statutory requirement. In contrast, where the applicant is seeking to ensure compliance with a statutory requirement by arguing that that requirement was breached in a past decision, cost protection will not apply. The Court noted that whether this represents a breach of EU law as explained in C-470/16 NEPPC can only be properly determined in a case in which the issue arises.

As the Environmental Governance Assessment on Ireland concludes, Ireland’s special cost protection rules do not apply to all environmental litigation. Gaps and uncertainties remain. For example, environmental litigation raising constitutional and/or human rights – e.g. the right to life in the context of climate change; or judicial review outside the planning context, where it is unclear whether a rule akin to the one established by the High Court in the Heather Hill case would apply.

It should be noted that the courts have very broad residual discretion under Order 99 of the Rules of the Superior Courts as regards costs orders. This has proven important given remaining uncertainties re Ireland’s cost protection legislation and the CJEU’s judgment in C-470/16 NEPPC to the effect that where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, so that judicial procedures are not prohibitively expensive. See the High Court’s discussion in Heather Hill of the use of the court’s discretion under Order 99 in such circumstances.

Finally, it should be noted that outlay costs (photocopying, couriers, etc.) remain payable by the applicant in cases taken on a “no win, no fee” basis – these costs cannot be eliminated and can be relatively significant, as described above.

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 court cannot provide such an exemption other than as set out in legislation. There is an exemption from court fees for cases brought under the cost protection rules in Part 2 of EMPA 2011 (art. 8 of S.I. 492/2014), but not for cases under the cost protection rules in s.50B PDA 2000. It is unclear why there is this difference between s50B cases and Part 2 EMPA 2011 cases.

Information on court fees and exemptions can be found here.

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?

As the Department responsible nationally for the Aarhus Convention, the Department of the Environment, Climate and Communications provides this general information on access to justice. The Citizens’ Information website also provides general information on the Aarhus Convention and specific information about planning/environmental judicial review.

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

Normally the information is provided by way of a statement in a notice publicising the relevant competent authority’s licensing decision (more on these notices in (4) below). For example, a planning authority must publish a notice stating inter alia that a person may question the validity of any decision of the planning authority by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986, as amended), in accordance with section 50 of the Planning and Development Act 2000.

These statutorily-required notices normally contain the above-mentioned basic information regarding access to justice; they do not, for example, provide information regarding whom an applicant should contact for further information on access to justice. It is then for an applicant to seek out further information themselves, for example by looking on the internet, where they may find the Citizens’ Information webpage on planning/environmental judicial review, or perhaps by consulting a lawyer.

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

In reaching administrative decisions (e.g. on licences/permits in different sectoral areas), many consent regimes in Ireland require the inclusion of specific wording relating to access to justice. More in section (4) immediately below.

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

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.

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.

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. If no decision is made on an applicant’s internal review request within one month, this non-reply is deemed to be a refusal and the applicant may proceed with an appeal to the Commissioner.

The Regulations set out that following receipt of an appeal, the Commissioner shall (a) review the decision of the public authority, (b) affirm, vary or annul the decision concerned, specifying the reasons for the decision, and (c) where appropriate, require the public authority to make available environmental information to the applicant.

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.

Beyond access to information on the environment, various pieces of domestic legislation require that access to justice information be provided alongside a permitting decision. For example, in EIA cases a planning authority must publish notice of its permission decision, which notice must state inter alia that a person may question the validity of any decision of the planning authority by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. 15 of 1986), in accordance with section 50 of the PDA 2000 (see section 34(1A) PDA 2000). The same is true in respect of strategic housing development, where the applicant for permission must give notice that judicial review lies as a remedy against the decision of ABP (see the Planning and Development (Strategic Housing Development) Regulations 2017, S.I. 271/2017). The same is also true in respect of IED and IPC licensing decisions by the EPA, where the EPA must give notice of its licensing decisions, including giving notice that a person shall not question the validity of the EPA’s decision other than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (see the Environmental Protection Agency (Integrated Pollution Control) (Licensing) Regulations 2013 (S.I. 283/2013) and the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 (S.I. 137/2013)). This is also the case in respect of aquaculture licensing decisions by the Aquaculture Licenses Appeals Board, which must publish notices of its appeal decisions, including a statement that a person may question the validity of the determination or decision by way of an application for judicial review (see the Aquaculture (Licence Application) (Amendment) (No. 2) Regulations 2010 (S.I. 369/2010). More generally, the European Communities (Public Participation) Regulations 2010 (S.I. 352/2010) inserted a requirement for such notice to be given in a range of other consent regimes in Ireland.

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

Public authorities have an obligation under the AIE Regulations (Articles 7(7) and 7(8)) to provide assistance to applicants to make valid access to information requests and to provide applicants with information regarding the rights of internal review and appeal (Articles 7(4)(d) and 11(4)(b)). There is nothing in the Regulations relating specifically to foreign participants.

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)

In Ireland, EIA is governed by different statutory regimes depending on the subject matter. It is possible to judicially review an EIA screening decision. The time limits are the same as with challenging any decision by way of judicial review: generally three months to apply for leave, but 8 weeks in the case of planning/IED.

Planning/development: an application for leave to apply for judicial review of any planning decision is required to demonstrate that the applicant has a sufficient interest. Under section 50A of the Planning and Development Act 2000 (PDA 2000), environmental NGOs are deemed to have standing for EIA purposes where they (I) are a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection and (II) have, during the period of 12 months preceding the date of the application, pursued those aims or objectives.

Other consent regimes: for non-planning judicial review in the area of environmental law, the standing threshold is generally a sufficient interest: see Order 84, r.21 of the Rules of the Superior Courts and S.I. No. 352/2014 (more below).

In some cases, eNGOs are deemed to have standing – see e.g. S.I. No. 352/2014. By way of example, s.43(5)(ba) of the Waste Management Act 1996, as inserted by the European Union (Access to Review of Decisions for Certain Bodies or Organisations promoting Environmental Protection) Regulations 2014 (S.I. No. 352 of 2014), provides that the High Court shall not grant leave for judicial review unless it is satisfied that— (i) the applicant has a sufficient interest in the matter which is the subject of the application, or (ii) the applicant— (I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, and (II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives

These 2014 Regulations similarly define the standing threshold as a sufficient interest, with deemed standing for eNGOs that meet the above-mentioned conditions, for challenges under:

• s.7 of the Arterial Drainage Act 1945
• s.87(10) of the Environmental Protection Agency Act 1992: IED licensing
• reg.29 of the European Communities (Assessment and Management of Flood Risks) Regulations 2010 (S.I. No. 122 of 2010)
• s.73 of the Fisheries (Amendment) Act 1997
• s.13A and s.21B of the Foreshore Act 1933
• s.40A of the Gas Act 1976
• s.14E of the National Monuments Act 1930
• s.13A of the Petroleum and Other Minerals Development Act 1960
• s.47A of the Transport (Railway Infrastructure) Act 2001.

Separately:

• reg 17 of the Forestry Regulations 2017 provides standing to challenge forestry decisions by way to judicial review to (a) those who have a sufficient interest, (b) “consultation bodies” (which includes various State bodies and one eNGO: An Taisce), or (c) bodies or organisations (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, that have, during the period of 12 months preceding the date of the application, pursued those aims or objectives;
• reg 15 of the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 (S.I. No. 456 of 2011, as amended) creates a similar standing rule (minus the consultation bodies) in respect of decisions relating to various agricultural activities;
• s.205 of the Minerals Development Act 2017 creates a similar standing rule (minus the consultation bodies) in respect of consents under that Act;
• reg. 7G of the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations 2019 creates a similar standing rule (minus the consultation bodies) in respect of decisions relating to EIA drainage schemes.

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

The standing rules relating to scoping are the same as are described under 1) for screening.

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

In principle, the public is entitled to challenge screening and scoping decisions on administrative appeal or in court. In consent regimes with an administrative appeal (such as planning permission, forestry licensing, aquaculture licensing), such a challenge could be raised on appeal. An example of a court challenge is An Taisce v Minister for the Environment, Community and Local Government & Ors 2012 No. 1048 JR, in which the applicant commenced judicial review proceedings relating to the grant of a licence to test-drill for oil off the coast of Dublin, in circumstances where the respondent had unlawfully “screened out” the need for EIA. The case settled with a voluntary surrender of the licence by Providence Oil.

As above, deadlines for judicial review of screening and scoping decisions are the same as the standard judicial review deadlines: three months to apply for leave in most environmental law cases; 8 weeks in planning law/IED cases.

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

It is possible for anyone to challenge a final authorisation, provided they are held to have a sufficient interest or deemed to have standing. Also see the paragraphs on standing under 1) above.

For individuals, as a rule, participating in the administrative procedure will confer standing.

In the planning context, the Supreme Court in Grace and Sweetman v An Bord Pleanála [2017] IESC 10 held that a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. In that context the Court emphasised that participation in the process will undoubtedly confer standing. On the facts, standing was accorded to Ms. Grace even though she had not participated at all in the administrative process. It should be noted, however, that she lived within 1 km of the proposed development, had a long history of activism in relation to the development and was certainly directly affected. The decision of the Court should not therefore be regarded as authority for the proposition that the prior participation rule has been dispensed with. That said, the Court indicated that had Mr. Sweetman (the other challenger, who did not live near to the wind farm in question) participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour (ultimately the Court did not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing).

Subsequently, the High Court held in Conway v An Bord Pleanála [2019] IEHC 525 that there is nothing in Article 11 of the EIA Directive or in C-263/08 Djurgården or C-137/14 Commission v. Germany which would preclude a national court, as a matter of EU law, from considering as among the factors to be taken into account in determining standing, the non-participation by the applicant in the prior administrative or planning process which led to the impugned decision and any explanation for that non-participation (factors which, as the Supreme Court in Grace and Sweetman confirmed, can be considered under Irish national standing rules). Indeed, the Court held, C-664/15 Protect Natur suggests that a prior participation requirement may not infringe the right of access to effective judicial mechanisms, at least under Article 9 of the Aarhus Convention and potentially also under Article 11 of Directive 2011/92. However, the Court did not reach a definitive conclusion on that point. Subsequently, in January 2021, the CJEU in Case C-826/18 Stichting Varkens in Nood held that Article 9(2) of the Aarhus Convention precludes a prior participation requirement in respect of proceedings within the scope of Article 9(2) brought by eNGOs which are part of the “public concerned”. The CJEU further held that Article 9(3) of the Convention does not preclude a prior participation requirement, unless the applicant cannot reasonably be criticised, in light of the circumstances of the case, for not having intervened in the earlier procedure.

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

In Sweetman v An Bord Pleanála [2008] 1 IR 277, the High Court held that the EIA Directive allows persons to challenge “the substantive or procedural legality of decisions” and that, while it is clear that Irish judicial review law allows an extensive review of the procedural legality of decisions, the Directive does not require that there must be a judicial review of the substance of the decision itself but rather the “substantive legality” of the decision, i.e. the Directive does not require a complete appeal on the merits but rather requires a review of the procedures followed, to determine whether they were in accordance with law, as well as a review of the “substantive legality” of the decision. The High Court concluded that current Irish judicial review law goes a long way towards (and indeed may well meet) that requirement.

Judicial review proceedings can review whether it was, as a matter of law, open to the decision maker to come to the decision taken. It can review whether statutory obligations were complied with, whether all proper matters were taken into account and no improper matters taken into account. The limitation on the review is that the court is not permitted to “second guess” a judgment made by the decision maker on the basis of materials which could allow such a judgment to be reached.

The Irish courts defer to the technical expertise of decision-makers such as planning authorities, ABP and the EPA and apply curial deference since the courts are not themselves experts on planning and environmental matters. As such, the courts will generally not review the scientific accuracy or validity of an environmental statement and will be deferential to the decision-maker, provided that the procedural requirements are met.

Where the substance of a planning or environmental decision is challenged in judicial review proceedings, the High Court may quash such a decision where the decision in question is found to be “unreasonable” or “irrational,” applying either the general test in The State (Keegan) v. Stardust Victims' Compensation Tribunal [1986] IR 642 (whether the decision is “fundamentally at variance with reason and common sense”) or the narrower test in O’Keeffe v An Bord Pleanála [1993] 1 IR 39, which applies where the review is of a decision of a technical or skilled or professional decision maker in the area of that special technical or skilled knowledge (see Denham J in the Supreme Court in Meadows v Minister for Justice, Equality and Reform [2010] 2 IR 701). Under this O’Keeffe test, the onus is on an applicant for judicial review to establish that the public authority decision-maker had “no relevant material” (cf. the mention of the Halpin case in 1.2(3) above) before it to support its decision and in default of the applicant so establishing, the court cannot reach a conclusion that the decision was unreasonable/irrational.

It has been determined in a number of cases that a greater level of scrutiny than O’Keeffe may potentially apply in planning/environmental cases, albeit accommodated within the existing judicial review regime: see Sweetman v An Bord Pleanála [2007] 2 ILRM 328, at 6.16 and 6.21; Klohn v An Bord Pleanála [2008] 2 ILRM 435, at 458; Keane v. An Bord Pleanála [2012] IEHC 324, paras 18 and 19.

In cases relating to fundamental rights, the courts apply a proportionality test (see Meadows v Minister for Justice, Equality and Reform [2010] 2 IR 701 and AAA & anor -v- Minister for Justice & ors [2017] IESC 80), providing for a more intensive form of review.

Regarding whether the court can act of its own motion, 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 occurs relatively rarely 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.

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

The general rule in judicial review is set out in Order 84 of the Rules of the Superior Courts, to the effect that an application for leave to apply for judicial review must be made within three months from the date when grounds for the application first arose. Thus, as a general rule a decision, act or omission may be challenged by way of judicial review within three months.

Section 50(2) of the PDA 2000 provides that a person shall not question the validity of any decision made or other act done by a planning authority, a local authority or ABP in the performance or purported performance of a function otherwise than by way of an application for judicial review. This means that, in principle, any decision made or act done by a local authority, planning authority or An Bord Pleanála may be challenged by way of judicial review, within the required deadline, which is 8 weeks for planning permission decisions and acts (s.50).

In North East Pylon Pressure Campaign Ltd. v An Bord Pleanála [2016] IEHC 300, it was held by the High Court that section 50 PDA 2000 must be interpreted as meaning that substantive and determinative acts and decisions of a local or planning authority or the Board which are not capable of being substantively revisited in the final decision are the type of acts and decisions to which the section applies. Administrative, subordinate, minor, tentative, provisional, instrumental or secondary steps taken are not acts or decisions to which s.50 applies. In general, the date on which time begins to run must be taken to be the date of the final decision complained of, although there may be exceptional cases where an interim decision is so substantive and determines rights and liabilities irreversibly and to such an extent as to warrant its being regarded as a decision to which s.50 applies. Thus only a formal decision having irreversible effects triggers the start of the running of time for the purposes of s.50.

For example, it was held that s.50 has no relevance to decisions such as steps in the pre-statutory process or decisions to accept and process an application, or to convene or conduct an oral hearing. The occurrence of a matter, an applicant's knowledge of it, or the taking of a formal step, does not trigger the running of time, unless the decision is crystallised by being embodied in a substantive decision having irreversible effect, normally the final decision. In addition, it was held that time for the purposes of a challenge to such a public law measure of general application does not therefore commence to run until the impact of the measure on an applicant has been crystallised in the form of an ultimate decision. Time does not run from the adoption of the measure, or the applicant's knowledge of it, or any interim step in the process.

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

There is a doctrine that one must generally exhaust administrative remedies before leave will be granted by the High Court to pursue judicial review proceedings (for a discussion, see Simons 2014). While it is possible for an applicant to pursue judicial review proceedings without first exhausting administrative appeal possibilities, often an applicant would be advised to pursue the administrative route first owing to the risk of being refused leave to bring the action for judicial review (or ultimately refused relief by the court exercising its discretion) for failing to exhaust administrative remedies before resorting to court.

However, if for example the available administrative review procedure is not capable of addressing the particular issue(s) arising, then there is nothing to prevent an individual/NGO from proceeding directly to judicial review.

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 courts will not grant leave to bring judicial review proceedings unless they are satisfied that the applicant has a “sufficient interest” in the matter to which the application relates (the special standing rules applicable to eNGOs in this context have already been discussed, namely eNGOs don’t have to show “sufficient interest” where certain conditions are met).

In the planning permission context, in Grace and Sweetman v An Bord Pleanála [2017] IESC 10, the issue of standing arose in circumstances where neither applicant had not participated in the planning permission process at all before bringing judicial review proceedings. The Supreme Court held that as a matter of national law, a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. The Court added that participation in the process will undoubtedly confer standing.

Subsequently, the High Court held in Conway v An Bord Pleanála [2019] IEHC 525that there is nothing in Article 11 of the EIA Directive or in C-263/08 Djurgården or C-137/14 Commission v. Germany which would preclude a national court, as a matter of EU law, from considering as among the factors to be taken into account in determining standing, the non-participation by the applicant in the prior administrative or planning process which led to the impugned decision and any explanation for that non-participation (factors which, as the Supreme Court in Grace and Sweetman confirmed, can be considered under Irish national standing rules). Indeed, the Court held, C-664/15 Protect Natur suggests that a prior participation requirement may not infringe the right of access to effective judicial mechanisms, at least under Article 9 of the Aarhus Convention and potentially also under Article 11 of Directive 2011/92. However, the Court did not reach a definitive conclusion on that point. Subsequently, in January 2021, the CJEU in Case C-826/18 Stichting Varkens in Nood held that Article 9(2) of the Aarhus Convention precludes a prior participation requirement in respect of proceedings within the scope of Article 9(2) brought by eNGOs which are part of the “public concerned”. The CJEU further held that Article 9(3) of the Convention does not preclude a prior participation requirement, unless the applicant cannot reasonably be criticised, in light of the circumstances of the case, for not having intervened in the earlier procedure.

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

Order 84, r.24(3) of the Rules of the Superior Courts provides that on the hearing of an application for leave directed to be on notice or for judicial review (or on any adjournment of such hearing), the Court may give directions and make orders for the conduct of the proceedings as appear convenient for the determination of the proceedings in a manner which is inter alia just. There is no statutory guidance on what is meant by just (or fair and equitable) but there are of course many instances where the principle is applied in practice.

In Coffey and others v. Environmental Protection Agency [2013] IESC 31, the Supreme Court considered a series of appeals in which applicants had sought a protective costs order at the outset of their cases on an ex parte basis (i.e. without the respondent or notice parties present, in order to avoid the possibility of the applicants being ordered to pay the other parties’ costs arising from the hearing to determine if a protective costs order would apply). The High Court had refused to grant such an order on an ex parte basis, holding that it would be unfair to make a final order of this kind without having given the EPA and any notice parties the opportunity to have been heard on the matter. The Supreme Court upheld the High Court’s conclusion.

In An Taisce v An Bord Pleanála [2015] IEHC 604, the applicant argued that it was not fair that the respondent public body was permitted by the court to raise a key legal issue only in person at the hearing, without having made the argument in the prior written procedure. An Taisce argued that Article 11(4) of the EIA Directive imports fairness and equity into planning decision review procedures. The High Court held (at para 50), however, that Article 11(4) applies only to review processes prior to any judicial review and not to judicial review itself, such that there is no requirement for Irish judicial review to be fair and equitable pursuant to the EIA Directive. This is contradicted by, for example, the CJEU’s judgment in Case C-470/16 NEPPC. To the authors’ knowledge, the An Taisce judgment is the only Irish judgment to have considered the question of fairness/equity for Aarhus Convention/related EU law purposes outside the context of costs. While the judgment was not appealed and could be cited by litigants in future cases, it is fair to say that the relevant part of the judgment is widely considered to have been wrongly decided, may in any event be obiter, and has not been applied since. Further, the judgment does not reflect the treatment or practical application of Article 11(4) of the EIA Directive in Irish legislation or in other case law at the national level (e.g. application of Ireland’s special costs rules to judicial review raising EIA issues via s.50B PDA 2000).

Aspects of fairness/equity remain of concern to applicants in environmental cases: e.g. applicants for judicial review have to meet tight, strictly-applied deadlines in order to commence proceedings: e.g. 8 weeks in the case of challenges to planning permission decisions. Thereafter, parties are not routinely required to keep to the statutory timelines as set down in the Rules of the Superior Courts - this flexibility after leave has been granted is applied equally to applicants as it is to respondents and notice parties.

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

The meaning of “timely” for EIA purposes has not been specifically transposed into Irish law for administrative review or judicial review purposes. Nor does guidance cover the point.

Administrative review

Planning permission: An Bord Pleanála has a statutory objective to reach decisions on appeals within 18 weeks (s.126 PDA 2000).

Forestry: the relevant legislation does not record a deadline for the Forestry Appeals Committee to determine appeals. A review of the afforestation approval process recorded that, in 2018, 26 of the 66 appeals decided by the Forestry Appeals Committee took over 53 weeks to determine – almost 40% of the total.

IED: the EPA must issue its proposed determination within 8 weeks (s.87(3) Environmental Protection Agency Act 1992; and the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 (S.I. 137/2013)). There is no administrative appeal mechanism akin to an appeal to ABP in the planning context; however, as set out above, the proposed determination may be objected to, and the EPA’s decision may be judicially reviewed before the High Court. The EPA’s decision must be given “as expeditiously as may be” (s.85).

Aquaculture licensing: on appeal, the Aquaculture Licences Appeals Board must endeavour to ensure that appeals are dealt with within four months.

Judicial review

The general time limit for judicial review applications in environmental law matters is three months (Order 84 of the Rules of the Superior Courts). The time limit for judicial review applications in planning law matters and in cases relating to IED decisions is eight weeks (s.50 PDA 2000 and s.87(10) of the Environmental Protection Agency Act 1992). In Irish Skydiving Club Ltd. v An Bord Pleanála [2016] IEHC 448 Baker J. noted that, in planning judicial review, the time limit is strict, and one in respect of which the power to grant an extension is also to be strictly construed. The time for challenging a planning decision runs from the date of the decision and not from the date on which the applicant first becomes aware of or fully understands the substance of the relevant decision: seeSC SYM Fotovoltaic Energy Srl -v- Mayo County Council & Ors (No.1) [2018] IEHC 20 at para.72.

There is no statutory requirement that judicial review procedures, once commenced, must be timely although:

• Order 84, r.24(3) of the Rules of the Superior Courts provides that on the hearing of an application for leave directed to be on notice or for judicial review (or on any adjournment of such hearing), the Court may give directions and make 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. This applies to judicial review generally and would include decisions outside the scope of the EIA Directive.
• In the planning law context, encompassing EIA (development projects) and SEA (development plans), amongst other things, s.50A(10) Planning and Development Act 2000 provides that the Court shall, in determining an application for leave or an application for judicial review on foot of such leave, act as expeditiously as possible consistent with the administration of justice; and s.50A(11) provides that on an appeal from a determination of the Court in respect of an application referred to in s. 50A(10), the Court of Appeal shall in determining the appeal, act as expeditiously as possible consistent with the administration of justice (cf. s.74 of the Court of Appeal Act 2014). Similar provisions are included in a range of other environmental legislation: e.g. see the Forestry Regulations 2017 and the European Union (Access to Review of Decisions for Certain Bodies or Organisations promoting Environmental Protection) Regulations 2014.

The Courts Service’s latest statistics reveal the following:

• In the High Court, judicial review cases in 2019 lasted on average 392 days from issue to disposal (p.100). (In the Commercial List, where cases are expedited, 1 week to 6 months for a hearing in the High Court from the first return date.)
• In the Court of Appeal, in 2019 the average wait from when the appeal was entered in the court list to the hearing was 20 months (p.110). There is then of course a wait after the hearing for judgment.
• In the Supreme Court, in 2019 the average wait from the determination of the leave application to the hearing of the appeal was 55 weeks (p.110). There is then of course a wait after the hearing for judgment.

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?

Injunctive relief is available as a matter of general judicial review under Order 84 of the Rules of the Superior Courts but there are no special procedures or requirements for decisions under the EIA Directive. Order 84, r.18(2) of the Rules of the Superior Courts provides that an application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to:

1. the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition, certiorari, or quo warranto,
2. the nature of the persons and bodies against whom relief may be granted by way of such order, and
3. all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

Order 84, r.20(8) also provides that where leave to apply for judicial review is granted then the Court, should it consider it just and convenient to do so, may, on such terms as it thinks fit:

1. grant such interim relief as could be granted in an action begun by plenary summons,
2. where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders.

Section 160 PDA 2000 provides a general injunctive power in the planning law context. This is available where an unauthorised development has been, is being or is likely to be carried out or continued. In such circumstances, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order.

A similar enforcement power is available under s.99H of the Environmental Protection Agency Act 1992, where, on application by any person to the High Court or the Circuit Court, the Court is satisfied that an activity is being carried on in contravention of the requirements of this Act. In such circumstances the Court may by order require the person in charge of the activity to do, refrain from or cease doing any specified act (including to refrain from or cease making any specified emission), and make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate. The High Court or the Circuit Court when considering the matter may make such interim or interlocutory order as it considers appropriate.

More generally, the Supreme Court has set out the relevant principles for injunction applications in judicial review cases in Okunade v Minister for Justice, Equality and Law Reform [2012] 3 IR 152. It was held in that case that, in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings, the court should apply the following considerations:

1. the court should first determine whether the applicant had established an arguable case; if not the application must be refused, but if so, then;
2. the court should consider where the greatest risk of injustice would lie. The court set out a range of factors to consider in this regard;
3. the court should, in those limited cases where it was relevant, have regard to whether damages were available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and
4. subject to the issues arising in the judicial review not involving detailed investigation of fact or complex questions of law, the court could place all due weight on the strength or weakness of the applicant’s case.

Although this decision was applied in the field of immigration law, it also applies in the area of environmental law. In Friends of the Irish Environment Ltd. v. Minister for Communications, Climate Action and Environment [2019] IEHC 555 the High Court noted that some limited assessment should be made of the strength of the defence to the proceedings in the context of an EU law claim. The Okunade principles were also applied in Irish Coastal Environment Group Coastwatch CLG v The Sea Fisheries Protection Authority & Ors. [2019] IEHC 677 where an injunction application on notice was brought to restrain dredging for razor clams (Ensis siliqua) in Waterford estuary.

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

Decisions on applications for IED licences are made by the EPA. Sections 87(2) and (3) of the Environmental Protection Agency Act 1992 (as amended) require the EPA to notify the public of its proposed determination of a licence application within 8 weeks from the date of receipt of the application. The EPA’s final decision, following any objections and any oral hearing, must be given “as expeditiously as may be” (s.85).

Regulation 20 of the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 requires the notice to inform the public of the proposed determination and where and how an objection can be lodged.

Any person or body (including the applicant for a licence or a licensee) can make an objection within 28 days of the proposed determination being issued on payment of a fee of €126 (reduced to €63 for certain bodies). A person making a valid objection can request an oral hearing. A request must include the €100 fee and be received within the 28-day objection period. The EPA has absolute discretion to hold (or not) an oral hearing, whether or not a request has been made.

Regulation 37(2) and (3) of the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 (S.I. No. 137 of 2013) requires the EPA to publish its final decision and the reasons for its decision. Under regulation 37(3)(l), the notice of the final decision published by the EPA must state that leave for judicial review has to be instituted within 8 weeks of the date the final decision is made, in accordance with section 87(10) of the Environmental Protection Agency Act 1992 (as amended).

Under section 87(10) of the Environmental Protection Agency Act 1992 a person may question the validity of a decision of the EPA to grant or refuse a licence or revised licence by instituting proceedings within 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made.

Section 87(10)(c) and (d) go on to provide the relevant standing rules: the High Court will not grant leave for judicial review unless it is satisfied that either the applicant has a sufficient interest in the matter (this is not limited to an interest in land or other financial interest) or, in the case of an environmental NGO, that the NGO has pursued environmental protection aims or objectives during the period of 12 months preceding the date of the application for leave.

Separately, section 99H of the Environmental Protection Agency Act 1992 provides a broad third party enforcement power in respect of IED/IPC licences, enabling “any person” to apply to the High Court or the Circuit Court where an activity is being carried on in contravention of the requirements of the Act, seeking an order—

1. requiring the person in charge of the activity to do, refrain from or cease doing any specified act (including to refrain from or cease making any specified emission),
2. making such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.

The High Court or the Circuit Court when considering the matter may make such interim or interlocutory order as it considers appropriate. The effect is that anyone may at any time after a permit has been issued challenge the activity if it contravenes the rules contained in the Act.

The special costs rules set out in Part 2 of the Environment (Miscellaneous Provisions) Act 2011 (and also arguably section 50B PDA 2000) will in principle apply to proceedings under section 87 or 99H of the Environmental Protection Agency Act 1992 (see section 1.7.3(6) above).

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?

There is no administrative appeal available in respect of IED decisions in Ireland. Rather, judicial review is the only means of challenge.

No specific definition of “the public” or “the public concerned” has been included in Ireland’s legislation. Any person (individuals, NGOs, other legal entities, ad hoc groups, as well as (it would seem) non-resident individuals and NGOs) may make submissions to the EPA on an application for an IED licence (or a review of a licence). Any person may also challenge the validity of an EPA licensing decision by way of judicial review within 8 weeks, provided they have a “sufficient interest” (cf. the Supreme Court’s decision in the Grace and Sweetman case in the planning context, discussed in 1.1(4) above). However, as described above, environmental NGOs that have been active over the previous 12 months are effectively deemed to have such an interest by statute for the purposes of certain consent regimes. Further, “any person” - without any standing requirement - may seek to enforce the requirements of the Environmental Protection Agency Act 1992 in court under section 99H, e.g. where an activity is ongoing without an IED/IPC licence or in breach of the conditions of such a licence.

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

There is no administrative appeal available in respect of IED decisions in Ireland. Rather, judicial review is the only means of challenge.

The European Union (Access to Review of Decisions for Certain Bodies or Organisations promoting Environmental Protection) Regulations 2014 (S.I. No. 352 of 2014) define the standing threshold for IED licensing purposes as a sufficient interest, with deemed standing for eNGOs whose aims and objectives relate to the promotion of the environment and who have pursued that objective over the previous 12 months. This relates to challenges by way of judicial review pursuant to s.87(10) of the Environmental Protection Agency Act 1992, which covers a decision of the EPA to grant or refuse an IED licence or revised licence; challenges must be brought within 8 weeks. Thus, this is the standing rule where a decision relating to screening is challenged as part of a challenge to decision to grant or refuse an IED licence.

Where a screening decision is challenged outside the scope of a challenge to a decision to grant or refuse an IED licence, the standing test would be sufficient interest under Order 84 of the Rules of the Superior Courts, and as a general rule an application for leave to apply for judicial review must be made within three months from the date when grounds for the application first arose.

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

The same rules apply as are described immediately above in the context of screening challenges.

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

Any person or body can make an objection within 28 days of the proposed determination on the IED licence being issued by the EPA, on payment of a fee of €126 (reduced to €63 for certain bodies). A person making a valid objection can request an oral hearing. A request must include the €100 fee and be received within the 28-day objection period. This period commences on the date of notification of the proposed determination by the EPA. The EPA has absolute discretion to hold (or not) an oral hearing, whether or not a request has been made.

In arriving at its final determination the EPA will consider the application and all objections, submissions received and, where an oral hearing has been held, the report and recommendation of the person/s who conducted the hearing.

No provision is made in the legislation for an administrative appeal in respect of the EPA’s decisions (also known as the “final determination”) on IED licence applications. Such decisions may however be challenged by way of judicial review within 8 weeks under section 87(10) of the Environmental Protection Agency Act 1992, as described above.

6) Can the public challenge the final authorisation?

No provision is made in the relevant legislation for an administrative appeal in respect of EPA decisions on IED licence applications. As described above, such decisions may however be challenged by way of judicial review. 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 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.

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: section 87(10) of the Environmental Protection Agency Act 1992. As discussed above, environmental NGOs that have been active over the previous 12 months are effectively deemed by section 87(10) to have such an interest.

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?

In Sweetman v An Bord Pleanála [2008] 1 IR 277, the High Court concluded that current Irish judicial review law goes a long way towards (and indeed may well meet) the requirement to provide for a review of substantive legality as well as procedural legality. Judicial review proceedings can review whether it was, as a matter of law, open to the decision maker to come to the decision taken. It can review whether statutory obligations were complied with, whether all proper matters were taken into account and no improper matters taken into account. The limitation on the review is that the court is not permitted to “second guess” a judgment made by the decision maker on the basis of materials which could allow such a judgment to be reached.

The Irish courts defer to the technical expertise of decision-makers such as planning authorities, ABP and the EPA and apply curial deference since the courts are not themselves experts on planning and environmental matters. As such, the courts will generally not review the scientific accuracy or validity of an environmental statement and will be deferential to the decision-maker, provided that the procedural requirements are met.

Where the substance of a planning or environmental decision is challenged in judicial review proceedings, the High Court may quash such a decision where the decision in question is found to be “unreasonable” or “irrational”, applying either the general test in The State (Keegan) v. Stardust Victims' Compensation Tribunal [1986] IR 642 (whether the decision is “fundamentally at variance with reason and common sense”) or the narrower test in O’Keeffe v An Bord Pleanála [1993] 1 IR 39, which applies where the review is of a decision of a technical or skilled or professional decision maker in the area of that special technical or skilled knowledge (see Denham J in the Supreme Court in Meadows v Minister for Justice, Equality and Reform [2010] 2 IR 701). Under this O’Keeffe test, the onus is on an applicant for judicial review to establish that the public authority decision-maker had “no relevant material” (cf. the mention of the Halpin case in 1.2(3) above) before it to support its decision and in default of the applicant so establishing, the court cannot reach a conclusion that the decision was unreasonable/irrational.

It has been determined in a number of cases that a greater level of scrutiny than O’Keeffe may potentially apply in planning/environmental cases, albeit accommodated within the existing judicial review regime: see Sweetman v An Bord Pleanála [2007] 2 ILRM 328, at 6.16 and 6.21; Klohn v An Bord Pleanála [2008] 2 ILRM 435, at 458; Keane v. An Bord Pleanála [2012] IEHC 324, paras 18 and 19.

In cases relating to fundamental rights, the courts apply a proportionality test (see Meadows v Minister for Justice, Equality and Reform [2010] 2 IR 701 and AAA & anor -v- Minister for Justice & ors [2017] IESC 80), providing for a more intensive form of review.

Regarding whether the court can act of its own motion, 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 occurs relatively rarely 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.

8) At what stage are these challengeable?

The usual remedy where an administrative decision of the EPA is believed to be unlawful would be for the court to quash the invalid decision in judicial review proceedings. Under section 87(10) of the Environmental Protection Agency Act 1992, proceedings to challenge a decision to grant or refuse a licence or revised licence must be instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made.

In terms of other acts or omissions, the court has inherent jurisdiction in judicial review matters under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986, as amended), and as a general rule an application for leave to apply for judicial review must be made within three months from the date when grounds for the application first arose.

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

Not applicable: there is no provision for an administrative review/appeal in the case of EPA decisions on IED/IPC licence applications.

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?

As discussed, the courts will not grant leave to bring judicial review proceedings unless they are satisfied that the applicant has a “sufficient interest” in the matter to which the application relates (NGOs are deemed to have automatic standing if they meet the statutory criteria: namely that the NGO’s aims or objectives relate to the promotion of environmental protection and it has, during the 12 months preceding the date of the application, pursued those aims or objectives): see section 87(10) of the Environmental Protection Agency Act 1992.

In the planning permission context by way of parallel, in Grace and Sweetman v An Bord Pleanála [2017] IESC 10 the issue of standing arose in circumstances where neither applicant had participated in the planning permission process at all before bringing judicial review proceedings. The Supreme Court held that as a matter of national law, a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. In that context the Court emphasised that participation in the process will undoubtedly confer standing. On the facts, the Court emphasised that participation in the process will undoubtedly confer standing. On the facts, standing was accorded to Ms. Grace even though she had not participated at all in the administrative process. It should be noted, however, that she lived within 1 km of the proposed development, had a long history of activism in relation to the development and was certainly directly affected. The decision of the Court should not therefore be regarded as authority for the proposition that the prior participation rule has been dispensed with. That said, the Court indicated that had Mr. Sweetman (the other challenger, who did not live near to the wind farm in question) participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour (ultimately the Court did not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing). In January 2021, the CJEU in Case C-826/18 Stichting Varkens in Nood held that Article 9(2) of the Aarhus Convention precludes a prior participation requirement in respect of proceedings within the scope of Article 9(2) brought by eNGOs which are part of the “public concerned”. The CJEU further held that Article 9(3) of the Convention does not preclude a prior participation requirement, unless the applicant cannot reasonably be criticised, in light of the circumstances of the case, for not having intervened in the earlier procedure.

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

Order 84, r.24(3) of the Rules of the Superior Courts provides that on the hearing of an application for leave directed to be on notice or for judicial review (or on any adjournment of such hearing), the Court may give directions and make orders for the conduct of the proceedings as appear convenient for the determination of the proceedings in a manner which is inter alia just. There is no statutory guidance on what is meant by just (or fair and equitable) but there are of course many instances where the principle is applied in practice.

In Coffey and others v. Environmental Protection Agency [2013] IESC 31, the Supreme Court considered a series of appeals in which applicants had sought a protective costs order at the outset of their cases on an ex parte basis (i.e. without the respondent or notice parties present, in order to avoid the possibility of the applicants being ordered to pay the other parties’ costs arising from the hearing to determine if a protective costs order would apply). The High Court had refused to grant such an order on an ex parte basis, holding that it would be unfair to make a final order of this kind without having given the EPA and any notice parties the opportunity to have been heard on the matter. The Supreme Court upheld the High Court’s conclusion.

In An Taisce v An Bord Pleanála [2015] IEHC 604, the applicant argued that it was not fair that the respondent public body was permitted by the court to raise a key legal issue only in person at the hearing, without having made the argument in the prior written procedure. An Taisce argued that Article 11(4) of the EIA Directive imports fairness and equity into planning decision review procedures. The High Court held (at para 50), however, that Article 11(4) applies only to review processes prior to any judicial review and not to judicial review itself, such that there is no requirement for Irish judicial review to be fair and equitable pursuant to the EIA Directive. This is contradicted by, for example, the CJEU’s judgment in Case C-470/16 NEPPC. To the authors’ knowledge, the An Taisce judgment is the only Irish judgment to have considered the question of fairness/equity for Aarhus Convention/related EU law purposes outside the context of costs. While the judgment was not appealed and could be cited by litigants in future cases, it is fair to say that the relevant part of the judgment is widely considered to have been wrongly decided, may in any event be obiter, and has not been applied since. Further, the judgment does not reflect the treatment or practical application of Article 11(4) of the EIA Directive in Irish legislation or in other case law at the national level (e.g. application of Ireland’s special costs rules to judicial review raising EIA issues via s.50B PDA 2000).

Aspects of fairness/equity remain of concern to applicants in environmental cases: e.g. applicants for judicial review have to meet tight, strictly-applied deadlines in order to commence proceedings: e.g. 8 weeks in the case of challenges to planning permission decisions. Thereafter, parties are not routinely required to keep to the statutory timelines as set down in the Rules of the Superior Courts - this flexibility after leave has been granted is applied equally to applicants as it is to respondents and notice parties.

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

The meaning of “timely” for IED purposes has not been specifically transposed into Irish law for administrative review or judicial review purposes. Nor does guidance cover the point.

Administrative review

The EPA must issue its proposed determination within 8 weeks (s.87(3) Environmental Protection Agency Act 1992; and the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 (S.I. 137/2013)). There is no administrative appeal mechanism akin to an appeal to ABP in the planning context; however, as set out above, the proposed determination may be objected to, and the EPA’s decision may be judicially reviewed before the High Court.

Judicial review

There is no statutory requirement that judicial review procedures must be timely although Order 84, r.24(3) of the Rules of the Superior Courts provides that on the hearing of an application for leave directed to be on notice or for judicial review (or on any adjournment of such hearing), the Court may give directions and make 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. This applies to judicial review generally and would include decisions outside the scope of the IED Directive.

The Courts Service’s latest statistics reveal the following:

• In the High Court, judicial review cases in 2019 lasted on average 392 days from issue to disposal (p.100). (In the Commercial List, where cases are expedited, 1 week to 6 months for a hearing in the High Court from the first return date.)
• In the Court of Appeal, in 2019 the average wait from when the appeal was entered in the court list to the hearing was 20 months (p.110). There is then of course a wait after the hearing for judgment.
• In the Supreme Court, in 2019 the average wait from the determination of the leave application to the hearing of the appeal was 55 weeks (p.110). There is then of course a wait after the hearing for judgment.

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?

An applicant seeking leave to bring judicial review proceedings to challenge a decision of the EPA to grant, or to refuse to grant, an IED licence, may seek interim or interlocutory relief from the High Court. The Rules of the Superior Courts provide that where leave for judicial review 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: Order 84, rule 20(8).

Separately, section 99H of the Environmental Protection Agency Act 1992 provides a broad third party enforcement power in respect of IED/IPC licences, enabling “any person” to apply to the High Court or the Circuit Court where an activity is being carried on in contravention of the requirements of the Act, seeking an order—

(a) requiring the person in charge of the activity to do, refrain from or cease doing any specified act (including to refrain from or cease making any specified emission),

(b) making such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.

The High Court or the Circuit Court when considering the matter may make such interim or interlocutory order as it considers appropriate.

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

The EPA provides information regarding judicial review of its decisions on its website - Licensing Process Explained.

1.8.3. Environmental liability[2]

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?

Regulation 16 of the European Communities (Environmental Liability) Regulations 2008 (S.I. 547/2008) (“the ELD Regulations”) provides that a person shall not question the validity of a decision of the EPA relating to—

(a) existence of environmental damage or whether Regulation 15 (2)(a) or (b) applies to a person (i.e. whether the person is affected or likely to be affected by the instance of environmental damage, or has a sufficient interest in the decisions relating to the environment made by the EPA or any other person), or

(b) whether or not to perform its functions under the Regulations pursuant to Regulation 15(6), unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the decision is made.

Where, on application to the High Court, the Court considers that in the particular circumstances there is good and sufficient reason for doing so, the Court may extend this period.

Applications for leave must be made to the High Court in accordance with ordinary judicial review procedures under Order 84 of the Rules of the Superior Courts, which requires an applicant to have a “sufficient interest” in order to be granted leave. The Art 13(1) ELD requirement to provide access to a review procedure to the “persons referred to in Article 12(1)” (which includes persons with deemed standing as an eNGO) has not been transposed in Ireland in this context, in that Order 84 simply refers to a sufficient interest and does not in addition deem eNGOs to have standing in the circumstances described in the ELD.

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

There is no administrative appeal/review mechanism in Ireland in this context. Judicial review is the only method of recourse. As noted under 1) above, the deadline for instituting judicial review in respect of ELD decisions by the EPA is generally 8 weeks, with the court having discretion to extend this period.

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

Under regulation 15(4) of the ELD Regulations, where a person submits observations and requests the performance by the EPA of its functions, he or she shall also furnish a report to the EPA containing “all information and data relevant to the environmental damage.”

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

There are no specific requirements regarding ‘plausibility’, though as noted above the person requesting action must furnish a report containing all information and data relevant to the environmental damage.

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)?

The decision must be notified in writing, giving reasons and advising the person of the period for bringing review or other legal proceedings in relation thereto pursuant to Regulation 16. No time limit is set for the EPA to notify its decision.

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?

Ireland’s ELD Regulations provide in Regulation 15(1) for the possibility of a request for action to be made in cases of imminent threat. In other words, Ireland has not exercised the option in Art 12(5) ELD to exclude cases of imminent threat from the scope of the national ELD regime in this regard.

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

The EPA is the competent authority.

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

There is no administrative review procedure in Ireland in the ELD context.

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?

It should be noted that because of Ireland’s location and industrial/infrastructural profile the number of projects that involve transboundary consultation is very small. The jurisprudence around the questions raised under this heading 1.8.4 is therefore notably underdeveloped by comparison with continental Member States.

Ireland’s Planning and Development Regulations 2001 (as amended) (“PDR 2001”) provide for a process by which any transboundary State (EU Member State or other party to the Espoo Convention) is informed of a proposed development project (Art 124 et seq) or a development plan (Art 13F), local area plan (Art 14F) or regional planning guidelines (Art 15E) likely to have significant transboundary impacts on that State, before the consent decision is taken. (For simplicity, the remainder of this section discusses the case of development plans as representative of the rules for local area plans and regional planning guidelines.) If a submission is made by a person, NGO or other interested party in a transboundary State to the planning authorities in Ireland those submissions are treated in exactly the same way as if they had been made by a person living or based in Ireland.

In the IED regime reg. 15 of the Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013 (S.I. 137/2013, as amended)(“the IED Regulations”) provides for transboundary consultation where required.

Generally speaking all procedural rights which accrue apply equally to participants in the consent process that are based in a potentially affected transboundary State. Thus, the possibility to challenge environmental decisions arises as soon as the relevant decision is taken.

2) Notion of public concerned?

Insofar as consent for a development project is concerned the PDR 2001 frames the participation exercise in terms of the “views of the transboundary State” (art. 126(2)(e)) rather than the views of the public concerned.

In the context of development plans, Art 13F PDR 2001 cross-refers to the public referred to in Art 6(4) of the SEA Directive; that is, “Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned.”

The IED Regulations use the (undefined) expression “the public concerned” to define those who may wish to participate.

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)?

The standing rules for an NGO in an affected country are the same as for an NGO based in Ireland. These are that any such NGO with aims and objectives relating to the promotion of the environment and who have pursued those aims over the previous 12 months have a right of standing in the case of development subject to EIA. There is no requirement, for example, that the NGO has to be incorporated in Ireland, and the standing rules are identical.

Such an NGO would be in precisely the same position as an Irish NGO and could appeal or institute judicial review proceedings within the statutory time-limit. An NGO would not be eligible for legal aid on the basis that only natural persons are eligible: seeFriends of the Irish Environment v Legal Aid Board [2020] IEHC 454. In that case an eNGO was not eligible to apply for legal aid on the basis that it is a company – the judgment has been appealed to the Court of Appeal.

An NGO in an affected country would be in precisely the same position as an Irish NGO in seeking injunctive relief and/or a stay on any development or other actions taking place in furtherance of the grant of development consent or licence. There is no reason in principle why such an NGO would not equally be entitled to seek pro bono assistance or “no win, no fee” representation from solicitors and barristers.

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)?

The standing rules for an individual in an affected country are the same as for an individual based in Ireland – in each case, the test is sufficient interest.

As a rule, participating in the administrative procedure will confer standing.

The Supreme Court in Grace and Sweetman v An Bord Pleanála [2017] IESC 10 held that a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account.In that context the Court emphasised that participation in the process will undoubtedly confer standing. On the facts, standing was accorded to Ms. Grace even though she had not participated at all in the administrative process. It should be noted, however, that she lived within 1 km of the proposed development, had a long history of activism in relation to the development and was certainly directly affected. (This aspect could pose difficulties for an individual in an affected country.) The decision of the Court should not therefore be regarded as authority for the proposition that the prior participation rule has been dispensed with. That said, the Court indicated that had Mr. Sweetman (the other challenger, who did not live near to the wind farm in question) participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour (ultimately the Court did not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing).

Subsequently, the High Court held in Conway v An Bord Pleanála [2019] IEHC 525 that there is nothing in Article 11 of the EIA Directive or in C-263/08 Djurgården or C-137/14 Commission v. Germany which would preclude a national court, as a matter of EU law, from considering as among the factors to be taken into account in determining standing, the non-participation by the applicant in the prior administrative or planning process which led to the impugned decision and any explanation for that non-participation (factors which, as the Supreme Court in Grace and Sweetman confirmed, can be considered under Irish national standing rules). Indeed, the Court held, C-664/15 Protect Natur suggests that a prior participation requirement may not infringe the right of access to effective judicial mechanisms, at least under Article 9 of the Aarhus Convention and potentially also under Article 11 of Directive 2011/92. However, the Court did not reach a definitive conclusion on that point. Subsequently, in January 2021, the CJEU in Case C-826/18 Stichting Varkens in Nood held that Article 9(2) of the Aarhus Convention precludes a prior participation requirement in respect of proceedings within the scope of Article 9(2) brought by eNGOs which are part of the “public concerned”. The CJEU further held that Article 9(3) of the Convention does not preclude a prior participation requirement, unless the applicant cannot reasonably be criticised, in light of the circumstances of the case, for not having intervened in the earlier procedure.

As noted above, in order to have standing an individual must demonstrate that they have a sufficient interest in the decision. That interest does not need to relate to a financial or land-based interest but some degree of physical proximity or impact is one of the elements assessed, as described above. Equally, a Court will look at the reasons for the individual seeking judicial review of the administrative decision. Courts will generally look to identify either a personal and proximate interest and/or a genuine environmental concern and give standing if those factors are present. If, on the other hand, the proposed development does not engage any personal interest of the individual, they are not directly impacted and the Court perceives that a professed environmental concern is simply a proxy to interfere in the development process, standing may be refused. The absence of any definition of “sufficient interest” makes predicting in advance whether an individual will have standing a difficult exercise at times, and particularly so in the context of an individual in another country. However, as the Supreme Court emphasised in Grace and Sweetman, participation in the earlier process will undoubtedly confer standing.

To the authors’ knowledge, no cases have been brought by individuals overseas in this context so it is not possible to provide any definitive information from practical experience in relation to the standing of such persons.

Any individual in an affected country accorded standing would, however, be in exactly the same position as an individual in Ireland in relation to their entitlement to apply for injunctive relief and to seek to access, for example, pro bono or “no win, no fee” representation. Individuals based outside Ireland are eligible to apply for legal aid – see here. That said, as Clarke J commented in the Supreme Court at para 2.30 of Conway v Ireland, the Attorney General & Ors [2017] IESC 13, the evidence suggests that, at a very minimum, the grant of legal aid in environmental cases is an extreme rarity in Ireland.

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

In the case of consent for development projects, the PDR 2001 treats the transboundary State rather than the public concerned as the Irish authorities’ interlocutor. The relevant planning authority or An Bord Pleanála as appropriate must provide information on a proposed development referred to in articles 124 or 125 to the transboundary State concerned and shall enter into consultations with that State in relation to the potential transboundary effects of the proposed development: (a) at the same time as notifying the Minister under article 124(1) that, in its opinion, the proposed development would be likely to have significant effects on the environment in a transboundary State (this obligation arises “as soon as may be after receipt of a planning application”), or (b) upon request for such information by the transboundary State under article 125.

In the case of a development plan, a planning authority must, following consultation with the Minister, forward a copy of the draft development plan and associated environmental report to a Member State—(a) where the planning authority considers that implementation of the plan is likely to have significant effects on the environment of such Member State, or (b) where a Member State, likely to be significantly affected, so requests.

In the case of IED licensing, the EPA must, “as soon as may be after receipt of the application or request,” notify the appropriate competent authority in the Member State concerned.

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

In the case of development projects, the PDR 2001 (reg 130) specify that a planning authority shall, notwithstanding the 8 week deadline for a decision specified section 34(8) of the PDA 2000, not decide to grant or refuse permission in respect of a planning application to which transboundary consultation applies, or An Bord Pleanála shall not determine an appeal, an application for approval to which transboundary consultation applies or an application for strategic infrastructure development, until after (a) the views, if any, of any relevant transboundary State have been received in response to consultations under article 126(1), or (b) the consultations are otherwise completed.

In the case of development plans, the PDR 2001 (reg 13F) require that the authority must agree with the other State (i) a reasonable timeframe for the completion of the consultations and (ii) detailed arrangements to ensure that the environmental authorities and the public likely to be affected in the other Member State are informed and given an opportunity to forward their opinion within a reasonable timeframe.

In the case of IED licensing, where a Member State indicates that it intends to participate, the EPA must, before giving any notification indicating the manner in which it proposes to determine the IED application, consult with the Member State for the purposes inter alia of making arrangements, including the establishment of time-frames for consultations to inter alia enable the members of the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedure (reg. 15 of the IED Regulations, as amended).

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

As regards development projects, reg 131 of the PDR 2001 requires any relevant transboundary State to be sent various notices issued by planning authorities where they have approved development. How the transboundary State communicates this information onwards to the public concerned in that State is not addressed. In the case of planning permission granted by a planning authority, reg 31(k) PDR 2001 requires the notice to specify inter alia that an appeal against the decision may be made to An Bord Pleanála within the period of 4 weeks beginning on the date of the decision of the planning authority. In the case of An Bord Pleanála’s decisions on ordinary planning appeals, reg 74 does not require the notice to mention the possibility of judicial review. However, in the case of its decisions relating to strategic infrastructure (art. 220 PDR 2001) and strategic housing (s.10(2) of the Planning and Development (Housing) and Residential Tenancies Act 2016, the relevant notices are required to mention the possibility of questioning the validity of the decision by way of judicial review.

As regards development plans, following any transboundary consultations, reg 13I(2) PDR 2001 requires that any Member State consulted must be sent the plan and a statement summarising inter alia how any transboundary consultations have been taken into account in the making of the plan. However, there is no requirement to provide information on access to justice – e.g. how the decision may be challenged.

As regards IED licensing, under reg 21(1) of the IED Regulations the EPA must notify the competent authority of a potentially affected Member State of its proposed determination within 3 working days of the giving of the notification of the proposed determination. The notification must state that objections can be made and must specify the timeframe. Thereafter, once the EPA finally determines the application the EPA must notify the competent authority in the potentially affected Member State and this notice must mention the possibility of challenging the decision by way of judicial review (reg 37).

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

The detailed rules in relation to how transboundary consultation will take place are not prescribed in the PDR 2001 or as regards IED licensing. There is therefore no prima facie requirement that the notices informing the potentially affected country and the substantive underlying documentation are provided in the national language(s) of the potentially affected Member State.

This issue may however be less proximate in Ireland owing to its geographic position and the common language as between Ireland and the United Kingdom. The authors are unaware of any transboundary consultation that has been undertaken further afield in respect of an Irish project or plan. It is worth noting in this regard that the use of nuclear fission for electricity generation is effectively prohibited in Ireland by section 18 of the Electricity Regulation Act 1999.

9) Any other relevant rules?

There are no other relevant rules.

[1] Cost protection via s50B has been specifically applied to two consent regimes outside the planning law context: judicial review of forestry development involving EIA (cost protection under s50B PDA by virtue of reg 18 of the Forestry Regulations 2017), and judicial review in respect of certain on-farm impact assessment decisions/acts/omissions (cost protection under s50B PDA by virtue of Regulation 22 of the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011, S.I. 456/2011. Whether this was necessary is unclear given that s50B appears to apply to any statutory provision that gives effect to the relevant provision(s) of one of the listed Directives.