Comments on access to judicial review in environmental matters in Poland

1. Introduction

Access to justice in Poland is regulated mainly by provisions concerning administrative and judicial-administrative proceedings. There are, however, some exceptions and one can also find particular regulations connected with this subject in substantial law.

2. The administrative procedure

Administrative authorities act in various forms, but it’s no doubt that mostly by issuing administrative decisions in individual cases. The Administrative Procedure Code of 14th June 1960 (APC) allows challenge each decision to the authority of the second instance and then – the final one – to the administrative court.
The right to participate in the proceedings (and of course challenging the decision) is granted to parties and subjects (organizations) participating with the rights of a party (also public prosecutor and ombudsman but this problem we may put aside). According to Article 28 of APC party “status” has a person whose legal interest or duty is affected by the proceedings or who demands activities of authority because of this legal interest or duty.
One of the subjects “participating with the rights of a party” is “social organization” (Article 31 § 3 APC). The term “social organization” is defined in Article 5 § 2 APC as a “professional, self-governmental, co-operative and other social organization”.
According to the Article 31 § 1 APC, social organization in cases concerning other persons, may demand (1) initiation of proceedings; (2) admission of these organization to the proceedings, where this is justified by statutory objectives of the organization and where the interests of the society (public interest) so requires.
Challenging the first instance decision has in general suspending effect, but there are several exceptions.
Very special regulation concerning this matter was placed in Article 33 of Environmental Protection Law Act of 27th April 2001 (EPLA). After this provision environmental organizations may take part in the proceedings with a right of a party, without having to prove that public interest requires their participation.
The term “environmental organization” is defined by Article 3 point 16 EPLA, which states that “environmental organization shall mean social organizations the statutory purpose whereof is to protect the environment”. So, one can generally say that environmental organization is a kind of “social organization”.
After the Article 33 of EPLA the environmental organization has (1) to prove that environmental protection is one of the statutory goals of the organization (2) to prove that geographical area of the organizations activity encompasses the place to which the proceedings refers (3) to submit comments or opinions within the period indicated within the public participation procedure (4) to express a willingness to take part in the proceedings with the rights of a party.
As mentioned above, there are some exceptions. An example could be Article 28 of The Building Law Act (The Construction Law), which says that parties to the proceedings regarding a construction permit are only the applicant and owners and administrators of the properties situated in the area affected by the building structure.

3. The judicial procedure

The judicial procedure is regulated in Poland by the Act of 30th August 2002 – Law on proceedings before administrative courts (LAC). The courts of first instance are the voivodship (regional) administrative courts. The second instance is the Supreme Administrative Court. Voivodship administrative court shall hear all administrative court matters, except for matters reserved for the jurisdiction of the Supreme Administrative Court (Article 13 § 1 LAC).
After Article 50 § 1 of LAC, everyone who has a legal interest therein is entitled to lodge a complaint. The “legal interest” means that it must be based on substantial law; however, there are several doubts in particular cases.
After the same art. 50 § 1 of LAC the complaint to the voivodship administrative court may be lodged by a social organization (NGO), within the scope of its statutory activity, and in matters affecting legal interests of other persons, in case it has taken part in administrative procedure. Besides this a social organization, in matters of other persons, if the case relates to the scope of its statutory activity, may apply to be admitted in the capacity of participant. An order rejecting admittance to participate in the case shall be subject to interlocutory appeal (Article 152).
One can complain against:

administrative decisions,

orders made in administrative proceedings, which are subject to interlocutory appeal of those concluding the proceeding, as well as orders resolving the case in its merit,

orders made in enforcement proceedings or proceedings to secure claims, which are subject to interlocutory appeal,

act or actions, other than specified in points 1-3, made within the area of public administration concerning the rights or obligations ensuring from provisions of law,

local enactments issued by local government authorities and territorial agencies of governmental administration,

enactments issued by units of local government and their associations, other than those specified in point 5, in respect of matters falling within the scope of public administration,

act of supervision over activities of local government authorities,

failure to act by the agencies in instances specified in points 1-4.

All these points could be – more or less – connected with “environmental matters”, however in practice the complaints are lodged mostly against decisions (point 1) and omissions (point 8).
Initiating proceeding by complaint one must pay a filing fee, which can be – depending on case – proportional or fixed. A proportional filing fee shall be charged in matters, in which receivables are the subject of the challenge A fixed filing shall be paid in other matters. At the moment the fixed filing in “environmental matters” is generally 200,00 Polish Zlotys (that means approximately 60.00 Euro). One must concern, however, that there are many different environmental matters in which receivables (environmental fees, fines etc.) are the subjects. Then one has to pay the proportional filing. It depends on the value of the object of the litigation and shall be no less than 100 Zloty (appr. 30 Euro) and may not exceed 100 000 Zloty (30 000 Euro).
The lodging of the complaint shall not stay the execution of an act or action. After the complaint has been transferred to the court, the court may, at the request of the complainant, issue an order staying in whole or in part the execution of an act or action (Article 61 LAC). If the complain is granted, the court shall specify in the verdict whether, and to what extent, the challenged act or action cannot be executed.
After the article 173 § 1 LAC against each judgment or an order concluding proceedings in the case taken by voivodship administrative court may be lodged a cassation appeal to the Supreme Administrative Court. This appeal is also charged with filing fee, which is a half filing fee of first instance