Authorisation of an accumulator-processing plant in a Natura
2000 network’s special protection area (great bustard; Pannonic salt
steppes and salt marshes)
Facts
Applicant 1: natural person (neighbour), represented by a lawyer.
Applicant 2: local government, represented by a lawyer.
Defendant 1: natural person, represented by a lawyer
Defendant 2: public authority that issued the environmental permit for the project, represented by a lawyer
The defendant 1 would like to establish an accumulator-processing plant. The project is subject to environmental authorisation (which includes EIA) according to Governmental Decree No. 193/2001 (X.19.) and 20/2001.(II.14. (from 01/01/2006 the Governmental Decree No. 314/2005 (XII. 25) on environmental impact assessment and on integrated environmental usage permitting process.)
The real estate is part of the Natura 2000 network, as it is a “priority natural habitat type”, and a proposed “site of Community importance” pursuant to the Habitats Directive Art. 4. (1) (Directive 92/43/ECC on the conservation of natural habitats and of wild life fauna and flora). Additionally the area is a special protection area according to the Birds Directive (Directive 79/409/ECC on the conservation of wild birds), as it is habitat of the great bustard (otis tarda) listed in Annex I of the Birds Directive (no priority species!).
According to Governmental Decree No. 275/2004. (X. 8.) a proposed
“site of Community importance” is protected at the same level as an
approved SCI. (This is the Hungarian solution for the “appropriate
protective measures” from the C-117/03 “Dragaggi” case, however, if we
consider the Dragaggi regime stricter than the Directive’s regime, the
latter of which gives a possibility for derogation in Article 6 (3)-(4),
than the Hungarian regime is more permissive than the Dragaggi regime)
The
project is covered by the provisions of the Directive 2003/35 EC
(providing for public participation in respect of the drawing up of
certain plans and programs relating to the environment and amending with
regard to public participation and access to justice Council Directives
85/337/EC and 96/11/EC).
The public authority (Defendant 2), in view of the
environmental expert’s report and the environmental impact assessment,
alleges that the project would not affect the ecological integrity of
the special protection area concerned, and the flock of the great
bastards.
As
the great bustard is not listed as a priority species the authority did
not check if the project is justifiable on the ground of imperative
reasons of overriding public interest such as: human health or public
safety, to beneficial consequences of primary importance for the
environment (see Art 6. (4) second subparagraph).
The authority examined, however, the imperative reasons of overriding public interest in a wider sense (275/2004 Decree 4 § (2), which is a possible implementation of the Art 6 (4) first subparagraph, as “social or economic nature” is not defined there).
The authority has not examined the cumulative effects (EIA and Habitats Directive Art 6 (3). “ combination with other plans”) and the alternative solutions (Art. 6 (4) first subparagraph), but agreed in its decision on some compensatory measures, which had to be negotiated between the authority and the applicant to protect the species (like ensuring the monitoring activities, including financial support, as well as contribution to ensure the feeding of the species through rape-plantation etc.)
Applicants 1 and 2 brought an
action for annulment before the administrative court against the
authorisation for the accumulator-processing plant as the authority did
not take into account the site’s conservation objectives (noise, air
pollution, other disturbances of the habitat), and the alternative
solutions, cumulative effects, ie on the whole content of the EIA
concerning nature protection part.
However, according to the court of first instance’s (county court)
view, , the owner of the neighbouring property (applicant 1) has no
standing, as well as applicant 2 (local government) has no legal
standing according the provisions of the national law concerning the
protection, reservation, reparation of the environmental status of the
great bustards. Nevertheless, the court adopted a judgement about the
application and found the decision of the authority justified and
legally well-founded and rejected the appeal of the applicants.
(The main reason for the lack of legal standing is the approach of the Hungarian appeal system, as the actio popularis is not applicable. According the Civil Procedural Code the applicant must have legal standing in the administrative procedure, or the case must be related to the applicant’s right or righteous interest, or it has to be a breach against his/her request for environmental information according the Aarhus Convention (Civil Procedural Code § 327).
Applicant 2 requested exceptional review before the Supreme Court.
for
annulment of the decision concerning the authorisation of the
accumulator-processing plant as the authority did not take into account
the “priority natural habitat type” character of the site, and that the
project as it has a negative effect on the site should be justified the
interference with imperative reasons of overriding interest according §
10/A.(1) of the Decree No. 275/2004 (X. 8.) (which implements the
Habitat, and the Birds Directive). Also, Applicant 2 attacked the part
of the decision relating to its legal standing and maintained its
previously presented legal standpoint and declarations.
(These facts were already mentioned during the procedure before the county court, however, the court neglected the facts).
2. Legal Framework
EC Law: The Habitats Directive
Art. 1.
(d) priority natural habitat types means
natural habitat types in danger of disappearance, which are present on
the territory referred to in Article 2 and for the conservation of which
the Community has particular responsibility in view of the proportion
of their natural range which falls within the territory referred to in
Article 2; these priority natural habitat types are indicated by an
asterisk (*) in Annex I;
Article 6 of the Habitats Directive states :
(1)
For special areas of conservation, Member States shall establish the
necessary conservation measures involving, if need be, appropriate
management plans specifically designed for the sites or integrated into
other development plans, and appropriate statutory, administrative or
contractual measures which correspond to the ecological requirements of
the natural habitat types in Annex I and the species in Annex II present
on the sites.
(2)
Member States shall take appropriate steps to avoid, in the special
areas of conservation, the deterioration of natural habitats and the
habitats of species as well as disturbance of the species for which the
areas have been designated, in so far as such disturbance could be
significant in relation to the objectives of this Directive.
(3)
Any plan or project not directly connected with or necessary to the
management of the site but likely to have a significant effect thereon,
either individually or in combination with other plans or projects,
shall be subject to appropriate assessment of its implications for the
site in view of the site’s conservation objectives. In the light of the
conclusions of the assessment of the implications for the site and
subject to the provisions of paragraph 4, the competent national
authorities shall agree to the plan or project only after having
ascertained that it will not adversely affect the integrity of the site
concerned and, if appropriate, after having obtained the opinion of the
general public.
(4)
If, in spite of a negative assessment of the implications for the site
and in the absence of alternative solutions, a plan or project must
nevertheless be carried out for imperative reasons of overriding public
interest, including those of a social or economic nature, the Member
State shall take all compensatory measures necessary to ensure that the
overall coherence of Natura 2000 is protected. It shall inform the
Commission of the compensatory measures adopted.
Where
the site concerned hosts a priority natural habitat type and/or a
priority species, the only considerations which may be raised are those
relating to human health or public safety, to beneficial consequences of
primary importance for the environment or, further to an opinion from
the Commission, to other imperative reasons of overriding public
interest.’
Case law: C-117/03 (Dragaggi)
“In the case of sites eligible for identification as sites of Community importance which are included in the national lists transmitted to the Commission and, in particular, sites hosting priority natural habitat types or priority species, the Member States are, by virtue of Directive 92/43, required to take protective measures that are appropriate, from the point of view of the directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.”
b. National Law
(Comment: The relevant legislation has recently been modified,
both in the case of EIA and Natura 2000, therefore the legal dispute was
partially about which legislation should be applied.)
275/2004. Decree 4 § (2):
„other
development goals, specified in an Act or in a Governmental Decree like
the country’s main socio-economic development, or national security
considerations”
10 §
“
(1) Any plan or project not directly connected with or necessary to the
management of the site but likely to have a significant effect thereon,
either individually or in combination with other plans or projects,
shall be subject to appropriate assessment of its implications for the
site in view of the site’s conservation objectives.
(2) In the light of the conclusions of the assessment of the
implications for the site and subject to the provisions of paragraph 1,
the competent national authority shall agree to the plan or project only
after having established that it will not affect adversely the
integrity of the site concerned – with respect to Article 4 § (1)-(2)”
(3)
(….) a project, which has a negative effect on a priority natural
habitat type and/or a priority species, and on natural habitat types of
Community interest, and species of Community interest can be exempted
from the prohibition (to affect a site of Community interest) if the
exemption is demanded by imperative reasons of overriding interest”
(4) compensatory measures
(5) (….) after having obtained the opinion of the general public.”
10/A. § Governmental Decree No. 275/2004. (X. 8.):
The definition of imperative reasons of overriding interest is word by word implemented in the decree.
What is remarkable in the Hungarian legislation is that “if the project has negative effect on a Natura 2000 site it has to be justified by imperative reasons of overriding interest in the case of natural habitat types of Community interest, and species of Community interest” too, not just in the case of priority natural habitat type and/or a priority species.
Article 340(1) of Civil Procedural Code (Pp). states: “There is no appeal against the decision of the administrative court (...).”
Legal standing in the administrative procedure:
The Governmental Decree No. 314/2005. (XII. 25) and 275/2004. Decree 2. § p) grants legal standing to “concerned public” (is a natural person, legal person or organisation without legal personality
aa) that is affected or could be affected by the decision brought in the process determined by this Decree, or
ab) that is otherwise interested in the decision brought in the process determined by this Decree. The environmental organisation according to Article 98, Paragraph (1) of Kvtv. shall always be considered concerned.” ) in the administrative procedure.
Legal standing in the administrative court procedure
Parties PP. 327. §
“applicant
must have legal standing in the administrative procedure, or the case
must be related to the applicant’s right or righteous interest, or it
has to be a breach against his/her request for environmental information
according the Aarhus Convention”
Act CXL of 2004
on the General Rules of Administrative Proceedings and Services
Section 15.
(1)
’Client’ shall mean any natural or legal person and any association
lacking the legal status of a legal person whose rights or lawful
interests are affected by a case, who is subjected to regulatory
inspection, or who is the subject of any data contained in official
records and registers, including any data concerning the property,
rights and assets of the client.
(2)
Unless otherwise prescribed by legal regulation, in proceedings
relating to some facility or for the authorization of activities,
’client’ means all owners of properties located in the impact area, as
well as the legitimate users of such properties registered in the real
estate register.
(3)
An act or government decree may prescribe a more precise definition for
client in connection with certain specific types of cases.
(4) The rights of clients are also conferred upon the authorities participating in a case under vested competence.
(5)
In specific cases interest representation organizations may be vested
with the rights of clients, as well as non-governmental organizations
whose registered activities are oriented for the protection of some
basic rights or the enforcement of some public interest.
Article 109(1) of Ket. stipulates: “A person having standing and – in respect to a part of the decision that directly addresses him/her – any other participants of the procedure are entitled to ask the court competent in administrative cases by submitting a court complaint to revision the decision with legal force within 30 days from its communication”.
Solution:
County
level: the court has rejected the appeals on the ground that the
authorization of the project cannot be rejected just because of the fact
that it will be constructed on a Natura 2000 site, furthermore, the
court has decided that the project does not endanger the protection,
reservation, reparation of the environmental status of the great
bustards.
Supreme Court: the court repealed the decision of the county court,
and obliged the defendant public authority
(Defendant 2) to conduct a new procedure.
The Supreme Court stated that:
The local government has legal standing in the procedure (as the protection of environment falls under among its scope of authority and the case interferes with the interests of the resident population of the applicants
The authority did not take into account the “priority natural habitat type” character of the site and that the project, as it has a negative effect on the site, should be justified the interference with imperative reasons of overriding interest according § 10/A.(1) of the Decree No. 275/2004 (X. 8.) (which implements the Habitat, and the Birds Directive).
Additionally the authority did not examine the cumulative effects (EIA and Habitats Directive Art 6 (3) “combination with other plans”) and the alternative solutions (Art. 6 (4) first subparagraph) and the stated compensatory measures were not sufficient.
The judgement referred, because of the proposed site character, directly to the Dragaggi case, and the necessity of the appropriate protective measures.
Following the court’s instructions, the authority , shall take into
account the whole reasoning of the judgement during its new procedure
ie. by examining the above listed elements of the project.
Grounds:
1. Length of the procedure: 2005-2007
2005-2006. 13 March.: administrative procedure
2007- administrative court procedure
2. Costs: general rules Article 43(3) of Act XCIII of 1990 on fees: 16,500 HUF (66 Euro)
3. Frequency of control: the procedure was launched by a natural person not ex officio. The frequency of control emerges just when the authority has to control e.g. example an illegal landfill.
4. Evidence: EIA; the authority made the decision on the basis of the EIA
5. Represented by lawyer: yes, all the parties
6. Possibility of appeal:
The procedure concerned two levels of the court system (County level and the Supreme Court).
County level: no appeal is available against the decision
Supreme Court: exceptional review
Questions:
1. According to Governmental Decree No. 275/2004 (X. 8.) a proposed “site of Community importance” is protected at the same level as an approved SCI. How is it regulated in other countries?
2. Legal standing:
Legal standing of the owner of the neighbouring property?
Local government? In which circumstances?
3. “national security considerations” how is this aspect taken into account in other countries concerning Natura 2000 sites
4. Is there further possibility for an appeal after the decision of the Supreme Court ?
5. Connection between Natura 2000 and EIA legislation