Recommandation on Interim Relief in Environnmental Matters adopted in Vilnius (2011)

Following a workshop in Vilnius (Lithuania) on 22 September 2011

There are different types of environmental cases the administrative courts have to deal with. The workshop focussed on the challenge of a permit, granted to an operator which affects a third party, which may be an individual or a non governmental association (NGO) or – in a few countries – a public authority entitled to defend environmental concerns. In this type of lawsuit interim relief raises specific problems.

The following recommendations reflect the majority of opinions submitted by workshop participants.

In some countries the action has suspensive effect in such a case, in others not. Each system has its pro and cons. But if suspensive effect of an appeal is not provided by virtue of law the right to an effective remedy as laid down in Article 47 of The Charter of Fundamental Rights of the EU requires a way to get an order of suspension either by the public authority or the court under not too strict conditions.

The basic rights of the operator and the public interest in the execution of the project have to be taken into consideration too. The principle of equality of arms requires equivalent legal remedies against a suspension. In case of suspensive effect by virtue of law the operator must be entitled to require an order of immediate execution under not too strict conditions.

In interim proceedings the court has to balance opposing interests. This may be regarded as an exception from the principle of separation of powers. As a rule discretion is conferred to the administration only and the court is entitled to control the exercising of discretion in terms of legality only, not of expediency. Concerning interim measures a discretionary power of the court must be recognized having regard to the special conditions under which a timely decision has to be made even in complex cases.

A limitation on weighing the interests only would usually lead to suspension in order to avoid the creation of irreversible facts. That is why a provisional merits test should not be excluded. At least in cases where the merits of the case are fairly clear to be assessed it would be unsatisfactory to neglect the probable outcome of the main proceedings.

Time limits for lodging a request for interim relief may be in favour of certainty of law but are not regarded as essential. If legal time limits do not exist late lodging of a request for interim relief will weaken the appellant’s position however in case the delay is not explicable or even abusive.

As to time limits for the decision of the court a common opinion could not be found. In some countries very short time limits exist. Of course a quick response from the court is sometimes essential. But in environmental matters factual and legal problems may be manifold. For that reason in the above mentioned countries the court must at least be empowered to revise its decision later.

The working group objects any liability of the appellant, when interim relief is granted and the court decides adversely in the main proceedings. Such a liability affects the right of effective legal protection. According to the Aarhus Convention and the Directive 2003/35/EC legal remedies shall not be prohibitively expensive.