Developments on Access to Justice in 2017: focus on Austria, Germany, Estonia, Hungary, Slovakia and Spain

As 2018 has just begun let's step back a little and see how the situation on access to justice in environmental matters developed last year, focussing on six (out of eight) European member states involved in the "Access to Justice for a greener Europe" project : Austria, Germany, Estonia, Hungary, Slovakia and Spain.

Austria

By Summer Kern, Ökobüro

Access to justice in environmental matters has been a frustrating experience in 2017. There is cause for hope in the the form of a judgment from the CJEU in case C-664/15 (concerning the rights of NGOs with respect to procedures that fall under the Water Framework Directive) which was delivered on 20 December 2017 (see separate news story on this case).

Following on the heels of a disappointing decision from Austria’s Constitutional Court in late 2016 in which NGOs were denied the ability to challenge regulations under environmental law, multiple decisions from the Highest Administrative Court, regional administrative courts, and administrative authorities have consistently denied NGOs access to justice in environmental matters, despite major developments at the EU level (such as the Commission’s Notice on Access to Justice, and the CJEU decision in C-243/15). However, the CJEU’s ruling in case C-664/15, which essentially follows Advocate General Sharpston’s Opinion released in October of this year, means that Austria will indeed have to take clear and determined steps to finally fulfilling its obligations under both EU and international law. That Austria fails to adhere to the latter was established already in December 2013, and was confirmed in September of this year for the second time at the 6th Meeting of the Parties to the Aarhus Convention.

Germany

By Karl Stracke, Unabhängiges Institut für Unweltfragen 

In Germany the major issue for access to justice in environmental matters has been the amendment of the national Environmental Appeals Act on 23 August 2017. The amendment was obligatory due to Germany’s non-compliance with the Aarhus Convention, according to Decision V/9h of 14.10.2014 adopted at the Meeting of the Parties to the Aarhus Convention at its 5th session and the ECJ judgement of 15.10.2015 in case C-137/14. In summary, despite the fact that for acknowledged environmental associations, the right to appeal against violations of environmental law was enlarged, the amendment has not fully implemented the provisions of the Aarhus Convention into the national legal order.

Estonia

By Kadi-Kaisa Kaljuveer, Estonian Environmental Law Center

This year, the Supreme Court of Estonia made two judgments, which conclude that courts can only dismiss environmental actions without reviewing their content in exceptional cases. This can only be done by courts if the contested act obviously does not in any way affect the applicant’s rights. In this regard, while assessing an action, the court must assume that the facts presented in the action are true. Alternatively, the court can refuse to open proceedings if an action is not prospective, ie. the applicant's desired goal can’t be achieved, but even then it should be obvious. Consequently, the judgment of the Supreme Court summarizes – in case of doubt, actions must be assessed even if the infringement of rights (for example through environmental disturbances) seem to be insignificant.

Hungary

By Csaba Kiss, Environmental Management and Law Association 

The year 2017 marked no dramatic changes in access to environmental justice in Hungary. However, with small steps, the regime of environmental law enforcement and litigation is changing. First of all, from 1 January 2017, environmental authorities were relocated and moved one level lower in the state administration. While previously there were 10 regional environmental agencies in Hungary whose areas of competence aligned with the major watersheds in the country, following a natural rather than an administrative logic, this year these agencies were moved to a county level. As a result, the country now has 19 environmental agencies that work within their own counties. Another change will come into effect from 1 January 2018 when three major procedural codes will enter into force: the administrative procedural code, the civil procedural code and a separate code of procedure for administrative lawsuits. Their significance for environmental matters is that in most of the cases there will be no administrative appeal (unlike until 31 December 2017). Therefore any administrative decision on the first instance will have to be taken to the court already, with no superior level of administrative review. This will most probably hinder environmental access to justice since starting a lawsuit is always more burdensome than filing a regular administrative appeal.

Slovakia

By Ivana Figuli, Via Iuris

Since July 1st 2016 a new Code of the Administrative Judicial Procedure (Act no. 162/2015 Coll.) has entered into force in Slovakia. This new code regulates procedural rules before courts when an unlawful administrative decision or measure is challenged.

This new code has strengthened the rights of the public to protect the environment. First of all, with this new code, access to justice in environmental matters is guaranteed to a broad public. The code enables the so called "interested public" to bring a case before the court. The "interested public" is defined as persons that have the right to participate in the administrative proceedings concerning environmental affairs, according to sectorial laws. However, the use of this right (participation in the administrative proceeding) is not an exclusive condition to bringing a case to court. The "interested public" has to claim that the public interest in the field of environmental protection has been impaired. According to this procedural code, the "interested public" can bring an action before the court against administrative decisions, measures, and generally binding acts, for instance land use plans. An action may also be brought against inaction of an administrative body.

Another positive change brought about by this code relates to the suspensory measures that a claimant may ask the court to adopt. Suspensory effect of the case may be asked when there exists a risk that the contested administrative decision, if executed during the court proceedings, could cause serious harm to the environment. If the measure is granted, the whole case has to be decided within 6 months from when the suspensory measure was granted.

This new procedural code also lays down requirements for the content and quality of the reasoning of the judgements. In the past, poorly reasoned decisions have been the most frequent reason for the annulment of 1st instance decisions by the second instance courts or by the Constitutional Court of the Slovak Republic.

With the current procedural rules in Slovakia, the access to justice provisions of the Aarhus Convention are almost fully implemented. Nevertheless, it is still difficult to evaluate the effect of these new provisions and their application in practice, given the short time frame since their adoption. VIA IURS has several pending cases which were brought before courts under this new procedural code. Among these pending cases, VIA IURIS legally represents 13 claimants who are suing the District Office in Bratislava for having prepared very imprecise, unmeasurable and non-concrete Air Quality Plans which violate national and EU legislation.

Of significance in 2017,  VIA IURIS represented several civil associations in a case regarding the construction of a hydro power plant on the river Hron in Iliaš (Banská Bystrica, Central Slovakia). In the EIA process, the District Office, department of the environment in Banská Bystrica, decided that the project of the hydro power plant would not have to be environmentally assessed. This case falls under the old legal regime, when it was not obligatory for the environmental impact of hydro power plants to be assessed as is the case nowadays. Civil society associations legally represented by the VIA IURIS brought the case before the regional court in Banská Bystrica which initially found the case inadmissible because such screening decisions were not judicially reviewable. On appeal, the Supreme Court overturned the regional court's decision and ordered it to review the screening decision. In October 2017, the regional court annulled the decision of the district office because it had failed to provide sufficient reasons and had not dealt with the objections of the parties to the proceeding in a sufficient manner. The court ordered the district office to adopt new decisions on the matter.

Spain

By Alba Iranzo, Instituto Internacional de Derecho y Medio Ambiente 

In general, access to justice in environmental matters in Spain does not represent major shortcomings. However, while the fulfillment of national standing requirements on access to justice by NGOs does not present any major problem, in 2017 there has been evidence of the existence of dilatory manoeuvres by the Spanish public administration, undermining the right to adequate, expeditious and timely access to administrative and judicial review procedures.

This was the case in the legal action brought by IIDMA in January 2017 before the Spanish Supreme Court challenging the Spanish Government´s Transitional National Plan (TNP) for large combustion plants. According to Spanish Administrative Judicial Procedure Law, once the Court accepts the complainant's written submission announcing its intention to file a case, it will request the Spanish Administration to provide the administrative file within a period of 20 working days and to notify any interested parties which may want to appear as co-defendants in the proceeding. In fact, receiving the administrative file is a necessary condition for the complainant to be able to prepare the lawsuit and file it within the next 20 working days. In the TNP case, the Spanish Administration completely circumvented these legal requirements. It took more than 3 months to submit the file to the Supreme Court and failed to promptly notify whether there were any interested parties in the case. This resulted in serious delays, as IIDMA was not able to file the lawsuit until last October, that is, almost 6 months after the Supreme Court had requested the Administration to send the file.

Another matter of interest is the need for further improvement when implementing the right to Legal Aid by environmental NGOs in Spain. Article 9 of the Aarhus Convention calls for appropriate assistance mechanisms to remove or reduce financial barriers to access to justice. However, such a barrier was brought to light with the call to Spain last September 2017 at the Sixth session of the Meeting of the Parties of the Aarhus Convention held in Budva to urgently undertake all measures for ensuring the correct implementation of article 9, paragraphs 4 and 5.

Barriers to access to justice in Spain depend on each Autonomous Community (A.C). An example was seen in the case IIDMA filed before the Supreme Court of the A.C of Aragón challenging the refusal by the regional administration to grant IIDMA information concerning the baseline report of the coal power plant Teruel. IIDMA´s request for legal aid was rejected by both the Commission for Legal Aid and the Supreme Court of Aragón. The reason was the lack of accreditation by IIDMA of insufficient economic means to litigate. IIDMA argued that this was not a requirement of the Aarhus Convention and especially by the Aarhus Law, since environmental NGOs meeting the national requirements on standing should automatically be granted the right to legal aid. Thus, it is not necessary to prove the lack of financial resources as required by Law 1/1996, of January, on Legal Aid. Given the disparity of interpretations between the different Provincial Commissions on legal aid in Spain, the Spanish Aarhus Focal Point expressed at the beginning of 2017 their support for reviewing the current provisions on legal aid. At the moment, it seems that the Spanish Ministry of Agriculture, Fisheries, Food and Environment is working to impel the necessary legal amendments although there is no information on when this might happen.