Janus-faced Supreme Court: Two recent rulings impact on Hungary’s environmental case law

Csaba Kiss is an environmental attorney at EMLA, part of Justice & Environment network

Two judgments handed down by the Hungarian Supreme Court (Kúria) in February will affect environmental cases going forward. These decisions were made in a somewhat balanced way: while the first judgment represents a negative, restrictive trend in environmental access to justice, the second one is a more liberal, more forward-looking decision from the highest judicial authority of Hungary.

On the one side: Hurdles to challenge procedural errors

In a case concerning the legality of an IPPC (IED) permit, the court made a clear distinction between the existence and the content of legal standing. The court held that the legal standing established in the administrative procedure does not automatically guarantee that the plaintiff can raise any points in the judicial remedy phase of the case.

The latter right, which entitles a plaintiff to challenge certain issues, is in Hungary referred to as “active legitimacy”. In the construction of the Kúria, there must exist a direct link between the harm to the right or legal interest of a person and the breach of a substantive law. According to the Kúria, a breach of procedural law by the defendant public authority without a substantive legal effect on the plaintiff cannot serve as a basis for challenging the underlying administrative decision.

Unfortunately, this case represents a step backwards for Hungarian judicial practice which was, until now, quite open to arguments claiming breaches of procedural requirements in environmental cases. This is in contrast to the Czech Republic, where procedural legal breaches were not eligible for challenge by NGOs until recently. In this way, Hungary seems to be entering exactly the same dead end street that Czechia has escaped.

On the other side: Government liability for nuisance

However, there are also positive signs in the development of environmental case law of the Kúria, as shown by the following judgment from the beginning of February.

The Kúria quashed a second-instance judgement in a case involving asbestos use. Between 1971 and 1996, a number of companies produced asbestos based cement products in the town of Lőrinci on premises owned by the State. The successor company of these enterprises has gone bankrupt and was removed from the company register on 6 April 2017. The plaintiff, who was born in 1976 and lived nearby until his death in 2014, was diagnosed with lung cancer in 2013. The plaintiff’s claim against the Hungarian State amounted to 100 million HUF which was dismissed by the first and second instance courts. Both courts concluded that the Hungarian State is not liable for the damage as its only role was to set up companies and own the real estate where these companies operated.

The Kúria, in an extraordinary remedy procedure, concluded differently and held that while the actual user of the real estate is primarily liable for its activities, the owner of the land may also be held liable, on a legal basis of nuisance. According to this construction, it must be assessed if the owner of the land noticed that the air pollution originating from the land in question caused health damage to neighbors. In addition, because of the dominance of state-owned property for a certain period of time before 1990, the public law role of the State must be adjudicated as well.