Upcoming events
The possibility to reopen administrative cases is often discussed, inter alia in the context of old, not updated licenses for environmental harmful operations. Opposite interests are involved. The license-holder/the industry needs to make investments and work under stable conditions. On the other hand new legislation, new knowledge and a different view on health and environmental issues, the influence of the precautionary principle are forces that put pressure on the operators and the public authorities to revise licenses allowing actions or operations detrimental for health or the environment.
In order to start a reopening procedure, a number of questions have to be answered:
Who has the right to initiate a procedure for revision?
Under which conditions may a revision be initiated and are those conditions fulfilled?
Who is responsible for investigations and has to pay for such costs?
Who has the burden of proof in a revision procedure?
Who has to pay the procedural costs?
Which are the consequences for negligence to act?
The answers will show who is responsible for initiating a procedure, whether a revision is judicial and economical possible and also how determined the responsible party is to start a procedure to reopen the matter.
In this paper I will mainly refer to the general approach and preconditions for reopening administrative cases and how these matters are dealt with in Sweden. The focus will be on the limits for reopening procedures where an operator has a license under the Environmental Code, giving the right to start and maintain operations that negatively affects the environment. I will finish with some references to EU-law and the implementation of EU-Directives that trigger the revision of permits already issued.
The general rules - links to criminal law and civil lawManual word wrap
In criminal matters as well as in civil matters, a judgment that has legal force may be reopened or challenged only by extraordinary remedies (the principle of res judicata). There is a very strong need for legal certainty in these matters – the parties must be able to rely that a final judgment will stand. The procedure is thorough, costly and very restricted and in this situations the state and courts in principle has a monopoly to act.
The principle of res judicata means that a final judgment or the time-limit for appeal has expired, the judgment on the same matter can no longer be challenged in ordinary way. It is no longer to in an ordinary way open up a new process on what is covered by the judgment.
When it comes to administrative matters, the situation is somewhat different.
Some cases, where the dispute is closely linked between two parties – e.g. a decision to a reclaim a subsidy or to issue a fee for an application – it may in this sense be regarded as very close to a civil lawsuit and, after the decision has legal force, it is irrevocable and in principle not possible to reopen in ordinary way.
Administrative sanction fees may be regarded as criminal matters under the European Convention on human rights [1]. These situations does not differ from the view on “ordinary” criminal matters – the same high threshold has to be applied regarding legal certainty and legal security (prohibition of being punished twice for the same offence /ne bis in idem/, safeguarding that individuals shall not be forced to self-incrimination, burden of proof etc.).
After such a decision (to issue a fee or a decision from a court to annul a fee) has legal force, it is not possible for the authority to reopen the case in ordinary way, in order to increase the sum or, if the decision has been appealed and annulled, reissue the fee – as long as it is regarded as a reaction on the same offence. On the other hand there is no legal obstacle for the individual to ask the authority to revise its decision. A decision of the authority to annul or reduce a decided sanction fee may be done rather informally.
Other decisions to enforce obligations on individualsManual word wrap
A decision from a supervisory authority to order an individual that he/she shall do or abstain from doing something, has, after the decision has legal force or if the decision contains a go ahead clause, a binding effect for the individual. Such an order is often combined with a conditional fine. The addressee has to follow the order but may at any time and repeatedly ask the authority to reconsider the decision. The authority may also in principle at any time and by its own initiative revise; annul, soften or sharpen the decision.
“Negative” decisionsManual word wrap
Other, for the individual, negative decisions (e.g. denying an application for a permit) has no binding effect at all. The individual may at any time send in a new application and then another and another, or ask the authority to reconsider its negative decision.
“Positive” decisionsManual word wrap
Usually the abovementioned general rules for negative decisions are easy to apply and are not problematic in practice. But when it comes to so called positive decisions (decisions to grant a license or a subsidy), the situation is more complicated. Here the main rule says that the decision has “negative force” and may not be altered by the deciding authority, unless certain conditions are fulfilled:
The reopening procedure is regulated by law or by a clause in the decision,
the individual has misled the authority by false information, or
it is motivated by reasons of safety.
The possibilities to reopen a case must according to Swedish jurisprudence be based on one or more of the abovementioned principles, often invoked as fundamental principles of administrative law.
The fact that stricter requirements may have been issued by new legislation, is not sufficient to reopen a case. Neither is the negligence by the authority to originally make a thorough investigation or otherwise to simply make a fault decision (issue a license when it should not have or did not combine a license with sufficient conditions) acceptable reasons to reopen a case.
The purpose of these rules is the idea of legal certainty. The conditions shall be foreseeable and in order to make investments, the operator needs to rely that the decision will stand.
This scheme is also linked to the Swedish constitution, Instrument of Government, chapter 2 article 15, that states that the property of every “individual shall be so guaranteed…. Compensation shall also be guaranteed to a person whose use of land or buildings is restricted by the public institutions in such a manner that ongoing land use in the affected part of the property is substantially impaired, or injury results which is significant in relation to the value of that part of the property. Compensation shall be determined according to principles laid down in law. In the case of limitations on the use of land or buildings on grounds of protection of human health or the environment, or on grounds of safety, however, the rules laid down in law apply in the matter of entitlement to compensation.”
A bit outside this regulation is the possibility to rectify mistakes in a decision. This possibility may be regarded as a way to partly reopen an otherwise closed procedure. Section 26 of the Swedish Administrative Procedure Act states that “(a) decision that contains a manifest error in writing, calculation or any other similar oversight by the authority or someone else may be corrected by the authority, which made the decision. Before a correction takes place the authority shall give the parties an opportunity to express themselves on the issue, provided that the matter concerns the exercise of public power in relation to someone and the measure is not unnecessary.” – A similar regulation is applicable when the matter is handled by a court. A decision to correct an error may be taken irrespective if it is to the benefit or detriment of a private party.
Applicable only to matters handled by administrative authorities is section 27 of the Administrative Procedure Act states: “When an authority because of new circumstances or for some other reason finds that a decision that it has made as first instance is manifestly wrong, it shall correct the decision, provided that this can take place rapidly and simply and without detriment to any private party. This duty also applies if the decision is appealed against, unless the appellant demands that the decision shall be suspended until otherwise ordered (inhibition). The duty shall not apply if the authority has sent the case-documents to a superior instance or if there are other special reasons against the authority altering the decision.”
These provisions are completed by section 28 of the same act which states: “An appeal against an authority’s decision will lapse, if the authority itself alters the decision in accordance with the appellant’s request…. If the authority alters the decision in another way than the appellant requested, the appeal shall be deemed to include the new decision, unless summary rejection shall take place under to Section 24.”
This procedure is rather informal and gives an opportunity for the authority to reopen a case after the matter is decided and also after the decision has legal force, but only if the new decision is without detriment to a private party.
Licenses under the Environmental Code
A Governmental ordinance under the Environmental Code regulates which kind of operations that needs a license for the establishing and operation. The ordinance also points out at which instance the matter shall be handled. Major industrial plants etc. are marked “A” and applications for such operations are tried by the land and environment courts. Here the court acts in a role similar to that of an authority.
Applications for operations marked “B” are handled by a licensing board at certain county administrative boards. These licensing boards also handle matters when the operator voluntarily, when it’s not mandatory, applies for a license, or when an authority orders an operator to apply for a license for such an operation. Operations marked “C” only needs a prior notification to the local supervisory authority.
The Administrative Procedure Act contains the main and general procedural rules applicable for the licensing boards and the supervisory authorities. The Environmental Code and Governmental ordinances under the Code contain procedural rules applicable to environmental matters handled by the authorities but also at the land and environmental courts. Applicable to cases handled by the land and environment courts are also general rules in the Code of Judicial Procedure, in the Court Matters Act (depending on the kind of case) and also certain procedural rules established in the Act on Land and Environment Courts.
Licenses - for the future or for a limited time
With a valid license, the operator is rather well protected against further or stricter requirements. In order to break this shield without attacking the license as such, there must be an urgent situation (prescribed below). Otherwise a formal procedure has to be initiated in order to revoke or revise the license.
Under the Environmental Code, the manifest practice in Sweden has been to issue licenses that are valid for the future. This is motivated by the need for the industry to work under stable and foreseeable conditions.
Under certain circumstances, the licensing authority may grant a license for a limited time. This practice is used mainly regarding operations using equipment that is regarded to last only for a limited time (e.g. wind mills), where there is public land use plans showing that the area will be needed for a different purpose in the future, the technique is evolving fast or the environmental effects are regarded as more severe (e.g. quarries), where you can foresee future competition of the resources (water), or due to requirements in EU-directives.
In such cases the initiative for prolongation of the licensed operation is placed upon the license-holder and not on the public parties. – If the validity for the license has expired, the operation will be unlawful, that is if it is an operation still requiring a license under the Environmental code. In such a situation it is a criminal offense to operate further. - Thus in advance (often at least one year) and depending on how complicated and controversial the license procedure may be, the operator has to apply for a new permit. In these cases a full procedure is required, including EIA and other investigations. As this will apply to existing operations though, normally much of the original material is still relevant and the survey for example of alternative locations is less thorough compared to an application for a new operation.
The strength of the license
As already mentioned, with a valid license the operator is well protected against further requirements for the operation. The Environmental Code states that, “after a license has gained legal force, the permit shall be valid against all other parties as far as the matters examined in the judgment or decision are concerned” (Chapter 24 Section 1).
In which situations a supervisory authority may act and put stricter requirements on an operation than the license states (e.g. to reduce the noise more than is regulated by conditions in the license) is regulated in the Environmental Code (chapter 26 section 9). This possibility is restricted only to urgent situations where the supervisory authority has to act in order to stop or limit an operation from causing detriment to health or serious damage to the environment (so called “epidemic cases”). This is an exception from the main rule, the threshold for the authority to act is quite high and is shown by the lack of courts practice.
If the problem is not regulated at all by the license, the authority is free to act (though regarding inter alia the principle of proportionality) and may issue an order on how to operate in that sense, e.g. order the operator to reduce certain emissions. This question was discussed and recognized in the preparatory works to the Environmental Code but the limits are rather hard to determine in practice. A few cases has been appealed to the Land and Environmental Court of Appeal and that court has so far made a rather broad interpretation of what is regarded to be covered by the license [2].
When the matter is covered by a license or by its conditions, the scope for the supervisory authority to act is rather limited by procedural and substantial rules, see the subsequent section. The Environmental Code, covering most issues related to environmental law, contains a rather comprehensive regulation in which situations the public authorities may act in order to alter or revoke a license and also how a supervisory authority otherwise may act against an operation that has a license under the Environmental Code.
As the license gives the right to affect opposing interests, third parties and the environment, the possibilities for a license holder to ease the requirements in a decision are also restricted and is only open for certain situations, e.g. that it is obvious that the condition is stricter than needed or the alteration is motivated by circumstances that was not possible to foresee when the license was issued (chapter 24 section 8). - To operate in breach with a license or its conditions is a criminal offense under chapter 29 of the Environmental Code.
Revocation or revision of a license under the Environmental Code
The Environmental code (chapter 24 section 3) contains a catalogue of situations which opens up for a withdrawal of a permit, wholly or in part, and prohibit further activity, the most important are mentioned here:
The applicant has misled the licensing authority by supplying incorrect information or has omitted to supply information of importance for issuing the license.
The operation has been performed in breach with the permit or its conditions and the breach is not negligible.
The operation has led to significant nuisances or disturbances not foreseen when the license was issued.
The operation has seized to exist.
A new license has replaced the previous.
It is needed in order to fulfill Sweden’s obligations as a Member State of the EU.
The maintenance of a water operation has been fundamentally neglected.
A license for an operation to affect water has not been used under a long time and it is not likely that it will be used again.
A permit for extraction operations may be revoked in total or partly ten years from the license gained legal force.
In practice cases where an authority starts a revocation procedure, occur rather seldom and cases where misbehavior of the operator, during the application process or during the actual operation, are even more unique. Situations where in practice question of revocation arises more often is when the operation has seized to exist or in application procedures, when a new license is issued and replaces the old one, situations that are rather uncontroversial.
More often used is the procedure for revision, not at least the ten years principle and situations where there has been changes in the surrounding. The implementation of the IPPC-Directive initiated a major campaign to revise large number existing licenses. Probably the implementation of the IED-Directive and the framework directive on water will lead to the same consequence.
The list of situations that may motivate a revision of size of the operation or the conditions to the license is rather similar to that for a revocation (an excerpt from chapter 24 section 5):
Ten years after the license was issued (after legal force) or shorter period due to Sweden’s obligations as a Member State of the EU.
Emissions from an operation contribute to the exceeding of values stated in an environmental quality standard.
The applicant has misled the authority by supplying incorrect information or has omitted to forward information of importance for issuing the license.
The operation has been performed in breach with the permit or its conditions and the breach is not negligible.
The operation has led to significant nuisances or disturbances not foreseen when the license was issued.
The conditions in the surrounding have changed significantly.
From the point of view of health or environment, a significant improvement may be reached by the use of a new process or treatment technique. The use of a new technique for measuring or estimating pollution levels or other environmental impacts would significantly improve the possibility of controlling the activity.
The operation partly or in total is located in an area, by special decision is pointed out as especially vulnerable for pollutions.
The scope of the revision is limited and it is stated that “the licensing authority must not impose conditions or other rules pursuant to this section that are so intrusive that the activity can no longer be pursued or is significantly hampered”.
If the license has been issued by an authority, that authority may by its own initiative start a revision procedure and, if environmentally harmful operations, order the operator to make investigations on his/her costs, communicate the investigation and arguments from the parties (the operator and certain authorities). Then the authority decides to annul or alter the license or its conditions. Such a decision may be appealed within the system of land and environment courts.
If the license has been issued by a land and environment court, a case on annulment or revision starts with an application from authorities explicably pointed out in Code; the National Environmental Protection Agency, The Swedish Agency for Marine and Water Management, the Legal, Financial and Administrative Services Agency, the County Administrative Board and the Municipality, if responsible for the supervision of the operation (chapter 24 section 7).
In the Environmental Code, there is no provision giving NGOs or individuals the right to apply for a revision or revocation. According to the preparatory works, a private person may only try to initiate an authority to act but they have no right to apply for a revision and formally start such a procedure. – On the other hand and according to recent courts practice (from the Land and Environment Court of Appeal), a private person may appeal a decision from an authority not to initiate a revision process [3].
In cases related to environmentally harmful operations (e.g. industries or energy power stations) the operator may be ordered to on his/her own expense make investigations needed for the revision. On the other hand, in cases related to water operations, the obligation to forward investigations lies on the applicant, which in revision cases means, on the authority. – In a judgment (12/2-2014, M 1423-13) the Land and Environment Court of Appeal states a responsibility of the operator to cooperate and inter alia forward information needed for the revision.
One other important difference between the procedures regarding licenses for environmental harmful operations and water operations is the absence of litigation costs in the former case. – In a procedure regarding environmental harmful operations the parties has to cover their own costs and does not risk pay the costs for opposite parties. In cases related to water operations, it is the applicant in the first instance, and irrespective of the outcome, that has to pay the (reasonable) costs for the opposite parties. These differences explain the very few cases initiated by authorities on revision of licenses for water operations.
A sketch over the different situations and the possibilities for a supervisory authority to act:
The operation is not licensed - 1
The operation is licensed - 2
The matter is not regulated in the license decision - 1
The matter is regulated in the license decision - 2
The operator does not follow the permit or its conditions - 1
The operator follows the permit and its condition - 2
The situation is urgent - 1
The situation is not urgent - 2
Preconditions for revoking or revision is fulfilled - 3
Preconditions for revoking or revision is not fulfilled - 2
Possibility for extraordinary process (new trial) - 2
No possibility for extraordinary process - 4
1= The supervisory authority may act and directly issue an order. There is no immediate need for reopening and revising the original decision.
2= The supervisory authority needs to take other considerations/formal steps in order to act.
3= The supervisory authority may initiate a reopening procedure.
4= No other steps currently possible. – The authority has to wait, maybe till the ten years limit from the issuing of the license has expired.
The reopening process comes to court
In Sweden a procedure for reopening a case related to a license under the Environmental Code may come under the scrutiny of a court mainly in two situations; when after an application the court acts as the first instance and when a decision from an authority is appealed to the court:
The license concerns an A-listed operation or a water operation. The land and environment courts handle the reopening process, have the role similar to an authority and take the first decision. Such a process will be initiated by an application from certain authorities pointed out by law.
The licensee may also initiate a reopening procedure in order to alter conditions attached to the license or otherwise revise an existing license.
Private persons or NGOs may not by themselves apply for a reopening process. They may initiate a competent authority to start a process and at least private persons have the right to challenge a decision not to apply for a reopening. If a revision process has commenced, private persons concerned by the operation may be regarded as parties and have the right to make statements and claims. They have the right to challenge a decision that is contravening their interests and claim for stricter measures. NGOs have similar rights but are not in the first instance regarded as parties and may formally not make claims.
The revision concerns another kind of licensed operation. A case may in this situation be opened at court after a decision from an authority has been challenged by appeal. In this situation, the court acts as a traditional administrative court.
A. The competent authority has decided on stricter conditions. The operator has the right to challenge that decision at court. NGOs and probably private persons concerned have the right to challenge the decision in order to claim for even stricter measures.
B. The authority has decided not to start a revision process for stricter measures or a prohibition (a so called zero-decision). According to court practice, private persons (probably also NGOs) have the right to challenge such a decision at court. - If the authority omits to act, there according to Swedish jurisprudence however is no decision to challenge and the only way is to via complaint to the Parliamentary ombudsman set pressure on the authority (risk of criminal or disciplinary punishment for breach of duty). A civil law-suit for damage may also be an alternative.
C. The operator has applied at the licensing authority for less strict measures, or for a revision of the license, e.g. in order to alter the process or increase the production [4]. If the authority agrees and alters the license, NGOs and private persons concerned by the operation has the right to challenge the decision at court.
D. If the authority after application from the operator decides not to alter the decision, the licensee has the right to challenge that decision at court. NGOs, certain authorities and private persons concerned may then act as opposite parties in the court.
A third situation can be recognized and that is when a non-licensed operation, though requiring a license, or when an expansion or alteration of the operation or a process requires a license or a notification. – In these situations, the burden to act (to notify the authority or to apply for an alteration of the license) lies on the operator. If the operator does not act, private persons may try to initiate the supervisory authority to act and decide on measures to minimize disturbances or to prohibit the alteration.
If the authority then omits to act, as mentioned above, according to Swedish jurisprudence there is no decision to challenge. A discontent party may via complaint to the Parliamentary ombudsman set pressure on the authority to act (risk of criminal or disciplinary punishment for breach of duty). As it is a criminal offence in these situations to alter the operation (falls under public prosecution), he or she may also report the offence to the police or the prosecutor.
A civil law-suit for damage may also be an alternative for individuals to act [5]. In a case when the operation has no license, a civil law-suit for prohibition of the operation is also possible [6]. These last two alternatives are only open for individuals, not for NGOs, unless the organization can invoke that it acts in the position as an individual.
If the authority acts and starts a procedure, NGOs will be able to give their view during the drafting of the matter and after the authority has delivered a decision they regard is to lean, they have the right to challenge it at the land and environment court (in some matters from an authority at municipality level via the county administrative board). Private persons though must be regarded as affected by the decision in order to have standing at court. If it is a notification procedure and according to recent case law from the Environmental Court of Appeal, NGOs in cases when the matter is covered by EU-law, have the right to standing.
Some references to EU-lawManual word wrap
The implementation of the IPPC-Directive into national law
The implementation of EU-Directives to domestic legislation is not always easy. The first problem is how to make the legislation comply with the relevant directive. The second problem for the Member State is how to in practice fulfil the obligations from the directive, as regards the IPPC- and now the IED-Directive, to make the system of licensing and planned and existing operations comply with the requirements in the directives.
The IPPC-Directive and the IED-Directive have for example caused problems for the Swedish system. Since 1969 we have had an integrated system of licensing environmentally harmful operations; many now covered by the now mentioned directives. This system has evolved during the years and the adaption to the directives has not been without obstacles. The main rules on the licensing are now regulated in the Environmental Code. To the Code are linked numerous Governmental ordinances containing a more detailed regulation on the procedure and also substantial rules. These rules has been amended and the number of ordinances each covering certain questions (pointing out which kind of operation that needs a permit, which authority that shall decide in the case, ordinances with special regulation for certain kinds of industry and an ordinance on emissions from industrial plants) has been growing during the recent years.
To illustrate the problem the European Court of Justice in case C-607/10 declared that, “by failing to take the necessary measures to ensure that the competent national authorities see to it, by means of permits issued in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that all existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) of that directive, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(1) of that directive”.
The facts of the case:
The 13 November 2007 the Commission asked the Member States to give information on the total ongoing operations and how many of these that had their licenses updated in accordance with the requirements in the IPPC-Directive.
The 8 February 2008 Sweden answered that there were 1073 existing operations under the directive and 191 of these remained to have their conditions revised.
The 18 February 2008, the IPPC Directive went into force.
In July 2009 Sweden informed the Commission that still 73 operations remained to be revised.
In November 2009 the Commission sent a letter of formal notice.
In a letter from December 2009 Sweden informed that 51 operations remained.
At a meeting in February 2010 Sweden informed that 50 remained.
The Commission sent a reasoned opinion (March 2010) to the Kingdom of Sweden and Sweden replied by letter in May 2010 that 33 operations remained.
At a later meeting Sweden informed that 23 remained.
The Commission took the view that the situation remained unsatisfactory and decided to bring action to the European Court of Justice and during that procedure Sweden informed that now only 5 operations remained.
The court found that, in order to establish whether there had been a breach of EU law, the relevant time is the end of the period prescribed in the reasoned opinion.
It may be appropriate to point out that the problem to comply with the requirements in the IPPC-Directive is not only a Swedish issue, see for example case C-48/10 against Spain, case C 49/10 against Slovenia and case C 352/11 against Austria.
Also the IED-Directive, replacing the IPPC-Directive, has caused problems and in March 2014 the Commission sent a reasoned opinion to the Kingdom of Sweden regarding the implementation of a number of Articles in that Directive.
The Wells-case
In the Wells-case, C-201/02, the question was raised how to regard a license granted when the EIA-procedure according to directive 85/337/EEC, was not carried out.
The history started in 1947 when an old mining permission was granted for Conygar Quarry. The area for the operations was divided into two sections, of slightly more than 7.5 hectares, each separated by a road on which Mrs Wells’s house is situated. Mrs Wells bought her house in 1984, 37 years after the permission had been granted, but at a time when the quarry had long since been dormant. However, in June 1991 operations recommenced for a short period.
At the beginning of 1991, the owners of Conygar Quarry applied to the competent MPA for registration of the old mining permission under the Planning and Compensation Act 1991. Registration was granted by a decision of 24 August 1992, which stated that no development could lawfully be carried out unless and until an application for the determination of new planning conditions had been made to the MPA and finally determined (’the registration decision’). The owners of Conygar Quarry therefore applied to the competent MPA for determination of new planning conditions. After the MPA, by decision of 22 December 1994, had imposed more stringent conditions than those submitted by the owners of Conygar Quarry, the latter appealed to the Secretary of State.
By decision of 25 June 1997 (hereinafter, together with the decision of 22 December 1994, ’the decision determining new conditions’), the Secretary of State imposed 54 planning conditions, leaving some matters to be decided by the competent MPA. Those matters were approved by the competent MPA by decision of 8 July 1999 (hereinafter ’the decision approving matters reserved by the new conditions’). Neither the Secretary of State nor the competent MPA examined whether it was necessary to carry out an environmental impact assessment pursuant to Directive 85/337. At no time was a formal environmental statement considered.
By letter of 10 June 1999, Mrs Wells requested the Secretary of State to take appropriate action, namely revocation or modification of the planning permission, to remedy the lack of an environmental impact assessment in the consent procedure. Since she received no reply to her request, she brought proceedings before the High Court of Justice. Pursuant to an undertaking given to the High Court at the first hearing, the Secretary of State, by letter of 28 March 2001, provided a reasoned response to Mrs Wells’s letter, in which he declined to revoke or modify the planning permission.
Mrs Wells then amended her initial application to include a challenge to the decision contained in the letter of 28 March 2001. Since the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), considered that interpretation of Community law was needed in the case before it, it decided to stay proceedings and questioned the European Court of Justice inter alia: whether an approval of a new set of conditions on an existing permission granted by an Interim Development Order ("old mining permission") was a "development consent" for the purposes of the EIA Directive and if so, whether the Member State has a duty to remedy its failure to require EIA.
The Court stated in short that the consents were given after the time-limit for implementation of the EIA-Directive had expired, the consents were a precondition in order to lawfully resume working of the quarry and thus there had been an obligation to carry out an EIA. The Court found that “under Article 10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337. The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favorable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness). In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.”
To concludeManual word wrap
In these matters different and sometimes colliding interests are involved. In order to make investments the operator is urgent to have stable conditions for the operation and a possibility to in a reasonable way foresee the future requirements. Interests based on protecting the environment, health or public safety may instead argue for quick adjustments and restrictions for or a prohibition of existing operations. Sometimes the latter interests are backed up by EU legislation and thus a reopening procedure is triggered also by the obligations for the Member State towards EU.
A revision of existing licenses is a process that requires a lot of resources and a high level of competence at the responsible authorities. As is shown by the Swedish IPPC-case, even with a rather obvious task for the authorities, the pressure from the EU and a situation where the authorities can order the operator to forward relevant investigations, it took years from the start of the campaign till the goal was reached; all existing licenses scrutinized and when regarded needed, new licenses or conditions were issued for the operations.
The above-mentioned IPPC-case, C-607/10, shows some of the difficulties with a system as the Swedish with a general practice to issue licenses that are un-limited to time. The same and even worse problems Sweden will meet in order to comply with the requirements in the Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy", the EU Water Framework Directive. A Governmental committee has proposed amendments and clarifications in the Swedish legislation in order to reopen old licenses and clarify which kind of ancient decisions that ought to be regarded as licenses under the Environmental Code [7]. The report has met very strong opposition from the energy sector and the industry, arguing that the proposal interfere in existing licensed operations and goes way beyond what is acceptable from the operator’s point of view. The interest organizations for environment and fishery are likewise discontent, but from the opposite point of view, meaning inter alia that the referred ancient decisions and royal letters in this context should not be regarded as licenses under the Environmental Code and that their interest has not been acceptable taken care of.
The domestic procedures leading to the Wells-case had as a result that the requirements in the EIA-Directive were set aside and hence a license was granted for an operation in breach of EU-law. Normally and applying Swedish national legislation such a decision, according to the main rule, would have a binding effect in the relation authority and licensee. The authority would not be able to invoke its own mistake and reopen the procedure for a revision. As the failure was based on a deficit in the domestic legislation however the situation is not that clear. In this case, the angle towards EU-law and the binding effect of provisions in the EIA-Directive, would maybe open up for a revision but again probably only by extraordinary remedies; then invoking the fundamental procedural failure the original decision was based on.
The weighing and balancing of the different interests can be rather delicate and a true challenge for the practitioner. The operator invokes his/her right of possession and interest of legal certainty and the need to rely on existing decisions – an individual interest but also based on interests of economic growth in a larger sense. On the other hand there may be overriding opposing public and private interests regarding inter alia health, environment, safety but also economy. [8]
In order to update decisions allowing actions or operations that are detrimental to opposing interests, it first has to be determined which interests that are relevant to take into consideration, how to weigh these interests and then decide whether a case needs to be reopened or not, if it´s possible to act anyway but also the consequences from abstaining to act. If a reopening is needed, it has to be considered the set of rules for that procedure and further on, the resources required and also the possible outcome. So it may be a rather time- and resource-consuming process, from the point where the competent authority becomes aware of an operation negatively affecting the environment, to where the operation actually has a set of rules that makes it comply with new and relevant requirements.
/Anders Bengtsson
Footnotes
[1] See e.g. European Courts judgment 20 May 2014, Nykänen v. Finland (11828/11) and judgment from the European Court of Justice C 617/10, Åkerberg Fransson, NJA 2013 p. 502.
[2] See e.g. MÖD 2002:34 and MÖD 2007:23.
[3] MÖD 2011:46
[4] Chapter 24 Section 8: “The licensing authority may, at the request of the holder of a permit, cancel or alter rules and conditions in a judgment or decision granting a permit other than those relating to the compensation amount. However, conditions may be cancelled or made more lenient only if they are obviously no longer necessary or are more stringent than necessary, or if the alteration is justified in view of circumstances that were not anticipated when the permit was granted.”
[5] Environmental Code Chapter 32 Section 1.
[6] Environmental Code Chapter 32 Section 12. “Apart from actions relating to compensation for damage and compulsory purchases, a private individual may also bring an action against a person who pursues or has pursued an environmentally hazardous activity without permission for prohibition of further activity or for the taking of protective measures or other precautions.”
[7] SOU 2013:69
[8] In C 416/10 the European Court of Justice discusses whether a decision of a national court, which annuls a permit granted in infringement of the provisions of a directive, is capable of constituting an unjustified interference with the developer’s right to property enshrined in Article 17 of the Charter of Fundamental Rights of the European Union. The Court states (paragraph 113 -115): However, the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 355, and Joined Cases C-379/08 and C-380/08 ERG and Others [2010] ECR I‑2007, paragraph 80).
As regards the objectives of general interest referred to above, established case‑law shows that protection of the environment is one of those objectives and is therefore capable of justifying a restriction on the use of the right to property (see Case 240/83 ADBHU [1985] ECR 531, paragraph 13; Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8; Case C‑213/96 Outokumpu [1998] ECR I‑1777, paragraph 32; and ERG and Others, paragraph 81).
As regards the proportionality of the infringement of the right of property at issue, where such an infringement may be established, it is sufficient to state that Directive 96/61 operates a balance between the requirements of that right and the requirements linked to protection of the environment.
Reopening of administrative procedures
The possibility to reopen administrative cases is often discussed, inter alia in the context of old, not updated licenses for environmental harmful operations. Opposite interests are involved. The license-holder/the industry needs to make investments and work under stable conditions. On the other hand new legislation, new knowledge and a different view on health and environmental issues, the influence of the precautionary principle are forces that put pressure on the operators and the public authorities to revise licenses allowing actions or operations detrimental for health or the environment.
In order to start a reopening procedure, a number of questions have to be answered:
Who has the right to initiate a procedure for revision?
Under which conditions may a revision be initiated and are those conditions fulfilled?
Who is responsible for investigations and has to pay for such costs?
Who has the burden of proof in a revision procedure?
Who has to pay the procedural costs?
Which are the consequences for negligence to act?
The answers will show who is responsible for initiating a procedure, whether a revision is judicial and economical possible and also how determined the responsible party is to start a procedure to reopen the matter.
In this paper I will mainly refer to the general approach and preconditions for reopening administrative cases and how these matters are dealt with in Sweden. The focus will be on the limits for reopening procedures where an operator has a license under the Environmental Code, giving the right to start and maintain operations that negatively affects the environment. I will finish with some references to EU-law and the implementation of EU-Directives that trigger the revision of permits already issued.
The general rules - links to criminal law and civil lawManual word wrap
In criminal matters as well as in civil matters, a judgment that has legal force may be reopened or challenged only by extraordinary remedies (the principle of res judicata). There is a very strong need for legal certainty in these matters – the parties must be able to rely that a final judgment will stand. The procedure is thorough, costly and very restricted and in this situations the state and courts in principle has a monopoly to act.
The principle of res judicata means that a final judgment or the time-limit for appeal has expired, the judgment on the same matter can no longer be challenged in ordinary way. It is no longer to in an ordinary way open up a new process on what is covered by the judgment.
When it comes to administrative matters, the situation is somewhat different.
Some cases, where the dispute is closely linked between two parties – e.g. a decision to a reclaim a subsidy or to issue a fee for an application – it may in this sense be regarded as very close to a civil lawsuit and, after the decision has legal force, it is irrevocable and in principle not possible to reopen in ordinary way.
Administrative sanction fees may be regarded as criminal matters under the European Convention on human rights [1]. These situations does not differ from the view on “ordinary” criminal matters – the same high threshold has to be applied regarding legal certainty and legal security (prohibition of being punished twice for the same offence /ne bis in idem/, safeguarding that individuals shall not be forced to self-incrimination, burden of proof etc.).
After such a decision (to issue a fee or a decision from a court to annul a fee) has legal force, it is not possible for the authority to reopen the case in ordinary way, in order to increase the sum or, if the decision has been appealed and annulled, reissue the fee – as long as it is regarded as a reaction on the same offence. On the other hand there is no legal obstacle for the individual to ask the authority to revise its decision. A decision of the authority to annul or reduce a decided sanction fee may be done rather informally.
Other decisions to enforce obligations on individualsManual word wrap
A decision from a supervisory authority to order an individual that he/she shall do or abstain from doing something, has, after the decision has legal force or if the decision contains a go ahead clause, a binding effect for the individual. Such an order is often combined with a conditional fine. The addressee has to follow the order but may at any time and repeatedly ask the authority to reconsider the decision. The authority may also in principle at any time and by its own initiative revise; annul, soften or sharpen the decision.
“Negative” decisionsManual word wrap
Other, for the individual, negative decisions (e.g. denying an application for a permit) has no binding effect at all. The individual may at any time send in a new application and then another and another, or ask the authority to reconsider its negative decision.
“Positive” decisionsManual word wrap
Usually the abovementioned general rules for negative decisions are easy to apply and are not problematic in practice. But when it comes to so called positive decisions (decisions to grant a license or a subsidy), the situation is more complicated. Here the main rule says that the decision has “negative force” and may not be altered by the deciding authority, unless certain conditions are fulfilled:
The reopening procedure is regulated by law or by a clause in the decision,
the individual has misled the authority by false information, or
it is motivated by reasons of safety.
The possibilities to reopen a case must according to Swedish jurisprudence be based on one or more of the abovementioned principles, often invoked as fundamental principles of administrative law.
The fact that stricter requirements may have been issued by new legislation, is not sufficient to reopen a case. Neither is the negligence by the authority to originally make a thorough investigation or otherwise to simply make a fault decision (issue a license when it should not have or did not combine a license with sufficient conditions) acceptable reasons to reopen a case.
The purpose of these rules is the idea of legal certainty. The conditions shall be foreseeable and in order to make investments, the operator needs to rely that the decision will stand.
This scheme is also linked to the Swedish constitution, Instrument of Government, chapter 2 article 15, that states that the property of every “individual shall be so guaranteed…. Compensation shall also be guaranteed to a person whose use of land or buildings is restricted by the public institutions in such a manner that ongoing land use in the affected part of the property is substantially impaired, or injury results which is significant in relation to the value of that part of the property. Compensation shall be determined according to principles laid down in law. In the case of limitations on the use of land or buildings on grounds of protection of human health or the environment, or on grounds of safety, however, the rules laid down in law apply in the matter of entitlement to compensation.”
A bit outside this regulation is the possibility to rectify mistakes in a decision. This possibility may be regarded as a way to partly reopen an otherwise closed procedure. Section 26 of the Swedish Administrative Procedure Act states that “(a) decision that contains a manifest error in writing, calculation or any other similar oversight by the authority or someone else may be corrected by the authority, which made the decision. Before a correction takes place the authority shall give the parties an opportunity to express themselves on the issue, provided that the matter concerns the exercise of public power in relation to someone and the measure is not unnecessary.” – A similar regulation is applicable when the matter is handled by a court. A decision to correct an error may be taken irrespective if it is to the benefit or detriment of a private party.
Applicable only to matters handled by administrative authorities is section 27 of the Administrative Procedure Act states: “When an authority because of new circumstances or for some other reason finds that a decision that it has made as first instance is manifestly wrong, it shall correct the decision, provided that this can take place rapidly and simply and without detriment to any private party. This duty also applies if the decision is appealed against, unless the appellant demands that the decision shall be suspended until otherwise ordered (inhibition). The duty shall not apply if the authority has sent the case-documents to a superior instance or if there are other special reasons against the authority altering the decision.”
These provisions are completed by section 28 of the same act which states: “An appeal against an authority’s decision will lapse, if the authority itself alters the decision in accordance with the appellant’s request…. If the authority alters the decision in another way than the appellant requested, the appeal shall be deemed to include the new decision, unless summary rejection shall take place under to Section 24.”
This procedure is rather informal and gives an opportunity for the authority to reopen a case after the matter is decided and also after the decision has legal force, but only if the new decision is without detriment to a private party.
Licenses under the Environmental Code
A Governmental ordinance under the Environmental Code regulates which kind of operations that needs a license for the establishing and operation. The ordinance also points out at which instance the matter shall be handled. Major industrial plants etc. are marked “A” and applications for such operations are tried by the land and environment courts. Here the court acts in a role similar to that of an authority.
Applications for operations marked “B” are handled by a licensing board at certain county administrative boards. These licensing boards also handle matters when the operator voluntarily, when it’s not mandatory, applies for a license, or when an authority orders an operator to apply for a license for such an operation. Operations marked “C” only needs a prior notification to the local supervisory authority.
The Administrative Procedure Act contains the main and general procedural rules applicable for the licensing boards and the supervisory authorities. The Environmental Code and Governmental ordinances under the Code contain procedural rules applicable to environmental matters handled by the authorities but also at the land and environmental courts. Applicable to cases handled by the land and environment courts are also general rules in the Code of Judicial Procedure, in the Court Matters Act (depending on the kind of case) and also certain procedural rules established in the Act on Land and Environment Courts.
Licenses - for the future or for a limited time
With a valid license, the operator is rather well protected against further or stricter requirements. In order to break this shield without attacking the license as such, there must be an urgent situation (prescribed below). Otherwise a formal procedure has to be initiated in order to revoke or revise the license.
Under the Environmental Code, the manifest practice in Sweden has been to issue licenses that are valid for the future. This is motivated by the need for the industry to work under stable and foreseeable conditions.
Under certain circumstances, the licensing authority may grant a license for a limited time. This practice is used mainly regarding operations using equipment that is regarded to last only for a limited time (e.g. wind mills), where there is public land use plans showing that the area will be needed for a different purpose in the future, the technique is evolving fast or the environmental effects are regarded as more severe (e.g. quarries), where you can foresee future competition of the resources (water), or due to requirements in EU-directives.
In such cases the initiative for prolongation of the licensed operation is placed upon the license-holder and not on the public parties. – If the validity for the license has expired, the operation will be unlawful, that is if it is an operation still requiring a license under the Environmental code. In such a situation it is a criminal offense to operate further. - Thus in advance (often at least one year) and depending on how complicated and controversial the license procedure may be, the operator has to apply for a new permit. In these cases a full procedure is required, including EIA and other investigations. As this will apply to existing operations though, normally much of the original material is still relevant and the survey for example of alternative locations is less thorough compared to an application for a new operation.
The strength of the license
As already mentioned, with a valid license the operator is well protected against further requirements for the operation. The Environmental Code states that, “after a license has gained legal force, the permit shall be valid against all other parties as far as the matters examined in the judgment or decision are concerned” (Chapter 24 Section 1).
In which situations a supervisory authority may act and put stricter requirements on an operation than the license states (e.g. to reduce the noise more than is regulated by conditions in the license) is regulated in the Environmental Code (chapter 26 section 9). This possibility is restricted only to urgent situations where the supervisory authority has to act in order to stop or limit an operation from causing detriment to health or serious damage to the environment (so called “epidemic cases”). This is an exception from the main rule, the threshold for the authority to act is quite high and is shown by the lack of courts practice.
If the problem is not regulated at all by the license, the authority is free to act (though regarding inter alia the principle of proportionality) and may issue an order on how to operate in that sense, e.g. order the operator to reduce certain emissions. This question was discussed and recognized in the preparatory works to the Environmental Code but the limits are rather hard to determine in practice. A few cases has been appealed to the Land and Environmental Court of Appeal and that court has so far made a rather broad interpretation of what is regarded to be covered by the license [2].
When the matter is covered by a license or by its conditions, the scope for the supervisory authority to act is rather limited by procedural and substantial rules, see the subsequent section. The Environmental Code, covering most issues related to environmental law, contains a rather comprehensive regulation in which situations the public authorities may act in order to alter or revoke a license and also how a supervisory authority otherwise may act against an operation that has a license under the Environmental Code.
As the license gives the right to affect opposing interests, third parties and the environment, the possibilities for a license holder to ease the requirements in a decision are also restricted and is only open for certain situations, e.g. that it is obvious that the condition is stricter than needed or the alteration is motivated by circumstances that was not possible to foresee when the license was issued (chapter 24 section 8). - To operate in breach with a license or its conditions is a criminal offense under chapter 29 of the Environmental Code.
Revocation or revision of a license under the Environmental Code
The Environmental code (chapter 24 section 3) contains a catalogue of situations which opens up for a withdrawal of a permit, wholly or in part, and prohibit further activity, the most important are mentioned here:
The applicant has misled the licensing authority by supplying incorrect information or has omitted to supply information of importance for issuing the license.
The operation has been performed in breach with the permit or its conditions and the breach is not negligible.
The operation has led to significant nuisances or disturbances not foreseen when the license was issued.
The operation has seized to exist.
A new license has replaced the previous.
It is needed in order to fulfill Sweden’s obligations as a Member State of the EU.
The maintenance of a water operation has been fundamentally neglected.
A license for an operation to affect water has not been used under a long time and it is not likely that it will be used again.
A permit for extraction operations may be revoked in total or partly ten years from the license gained legal force.
In practice cases where an authority starts a revocation procedure, occur rather seldom and cases where misbehavior of the operator, during the application process or during the actual operation, are even more unique. Situations where in practice question of revocation arises more often is when the operation has seized to exist or in application procedures, when a new license is issued and replaces the old one, situations that are rather uncontroversial.
More often used is the procedure for revision, not at least the ten years principle and situations where there has been changes in the surrounding. The implementation of the IPPC-Directive initiated a major campaign to revise large number existing licenses. Probably the implementation of the IED-Directive and the framework directive on water will lead to the same consequence.
The list of situations that may motivate a revision of size of the operation or the conditions to the license is rather similar to that for a revocation (an excerpt from chapter 24 section 5):
Ten years after the license was issued (after legal force) or shorter period due to Sweden’s obligations as a Member State of the EU.
Emissions from an operation contribute to the exceeding of values stated in an environmental quality standard.
The applicant has misled the authority by supplying incorrect information or has omitted to forward information of importance for issuing the license.
The operation has been performed in breach with the permit or its conditions and the breach is not negligible.
The operation has led to significant nuisances or disturbances not foreseen when the license was issued.
The conditions in the surrounding have changed significantly.
From the point of view of health or environment, a significant improvement may be reached by the use of a new process or treatment technique. The use of a new technique for measuring or estimating pollution levels or other environmental impacts would significantly improve the possibility of controlling the activity.
The operation partly or in total is located in an area, by special decision is pointed out as especially vulnerable for pollutions.
The scope of the revision is limited and it is stated that “the licensing authority must not impose conditions or other rules pursuant to this section that are so intrusive that the activity can no longer be pursued or is significantly hampered”.
If the license has been issued by an authority, that authority may by its own initiative start a revision procedure and, if environmentally harmful operations, order the operator to make investigations on his/her costs, communicate the investigation and arguments from the parties (the operator and certain authorities). Then the authority decides to annul or alter the license or its conditions. Such a decision may be appealed within the system of land and environment courts.
If the license has been issued by a land and environment court, a case on annulment or revision starts with an application from authorities explicably pointed out in Code; the National Environmental Protection Agency, The Swedish Agency for Marine and Water Management, the Legal, Financial and Administrative Services Agency, the County Administrative Board and the Municipality, if responsible for the supervision of the operation (chapter 24 section 7).
In the Environmental Code, there is no provision giving NGOs or individuals the right to apply for a revision or revocation. According to the preparatory works, a private person may only try to initiate an authority to act but they have no right to apply for a revision and formally start such a procedure. – On the other hand and according to recent courts practice (from the Land and Environment Court of Appeal), a private person may appeal a decision from an authority not to initiate a revision process [3].
In cases related to environmentally harmful operations (e.g. industries or energy power stations) the operator may be ordered to on his/her own expense make investigations needed for the revision. On the other hand, in cases related to water operations, the obligation to forward investigations lies on the applicant, which in revision cases means, on the authority. – In a judgment (12/2-2014, M 1423-13) the Land and Environment Court of Appeal states a responsibility of the operator to cooperate and inter alia forward information needed for the revision.
One other important difference between the procedures regarding licenses for environmental harmful operations and water operations is the absence of litigation costs in the former case. – In a procedure regarding environmental harmful operations the parties has to cover their own costs and does not risk pay the costs for opposite parties. In cases related to water operations, it is the applicant in the first instance, and irrespective of the outcome, that has to pay the (reasonable) costs for the opposite parties. These differences explain the very few cases initiated by authorities on revision of licenses for water operations.
A sketch over the different situations and the possibilities for a supervisory authority to act:
The operation is not licensed - 1
The operation is licensed - 2
The matter is not regulated in the license decision - 1
The matter is regulated in the license decision - 2
The operator does not follow the permit or its conditions - 1
The operator follows the permit and its condition - 2
The situation is urgent - 1
The situation is not urgent - 2
Preconditions for revoking or revision is fulfilled - 3
Preconditions for revoking or revision is not fulfilled - 2
Possibility for extraordinary process (new trial) - 2
No possibility for extraordinary process - 4
1= The supervisory authority may act and directly issue an order. There is no immediate need for reopening and revising the original decision.
2= The supervisory authority needs to take other considerations/formal steps in order to act.
3= The supervisory authority may initiate a reopening procedure.
4= No other steps currently possible. – The authority has to wait, maybe till the ten years limit from the issuing of the license has expired.
The reopening process comes to court
In Sweden a procedure for reopening a case related to a license under the Environmental Code may come under the scrutiny of a court mainly in two situations; when after an application the court acts as the first instance and when a decision from an authority is appealed to the court:
The license concerns an A-listed operation or a water operation. The land and environment courts handle the reopening process, have the role similar to an authority and take the first decision. Such a process will be initiated by an application from certain authorities pointed out by law.
The licensee may also initiate a reopening procedure in order to alter conditions attached to the license or otherwise revise an existing license.
Private persons or NGOs may not by themselves apply for a reopening process. They may initiate a competent authority to start a process and at least private persons have the right to challenge a decision not to apply for a reopening. If a revision process has commenced, private persons concerned by the operation may be regarded as parties and have the right to make statements and claims. They have the right to challenge a decision that is contravening their interests and claim for stricter measures. NGOs have similar rights but are not in the first instance regarded as parties and may formally not make claims.
The revision concerns another kind of licensed operation. A case may in this situation be opened at court after a decision from an authority has been challenged by appeal. In this situation, the court acts as a traditional administrative court.
A. The competent authority has decided on stricter conditions. The operator has the right to challenge that decision at court. NGOs and probably private persons concerned have the right to challenge the decision in order to claim for even stricter measures.
B. The authority has decided not to start a revision process for stricter measures or a prohibition (a so called zero-decision). According to court practice, private persons (probably also NGOs) have the right to challenge such a decision at court. - If the authority omits to act, there according to Swedish jurisprudence however is no decision to challenge and the only way is to via complaint to the Parliamentary ombudsman set pressure on the authority (risk of criminal or disciplinary punishment for breach of duty). A civil law-suit for damage may also be an alternative.
C. The operator has applied at the licensing authority for less strict measures, or for a revision of the license, e.g. in order to alter the process or increase the production [4]. If the authority agrees and alters the license, NGOs and private persons concerned by the operation has the right to challenge the decision at court.
D. If the authority after application from the operator decides not to alter the decision, the licensee has the right to challenge that decision at court. NGOs, certain authorities and private persons concerned may then act as opposite parties in the court.
A third situation can be recognized and that is when a non-licensed operation, though requiring a license, or when an expansion or alteration of the operation or a process requires a license or a notification. – In these situations, the burden to act (to notify the authority or to apply for an alteration of the license) lies on the operator. If the operator does not act, private persons may try to initiate the supervisory authority to act and decide on measures to minimize disturbances or to prohibit the alteration.
If the authority then omits to act, as mentioned above, according to Swedish jurisprudence there is no decision to challenge. A discontent party may via complaint to the Parliamentary ombudsman set pressure on the authority to act (risk of criminal or disciplinary punishment for breach of duty). As it is a criminal offence in these situations to alter the operation (falls under public prosecution), he or she may also report the offence to the police or the prosecutor.
A civil law-suit for damage may also be an alternative for individuals to act [5]. In a case when the operation has no license, a civil law-suit for prohibition of the operation is also possible [6]. These last two alternatives are only open for individuals, not for NGOs, unless the organization can invoke that it acts in the position as an individual.
If the authority acts and starts a procedure, NGOs will be able to give their view during the drafting of the matter and after the authority has delivered a decision they regard is to lean, they have the right to challenge it at the land and environment court (in some matters from an authority at municipality level via the county administrative board). Private persons though must be regarded as affected by the decision in order to have standing at court. If it is a notification procedure and according to recent case law from the Environmental Court of Appeal, NGOs in cases when the matter is covered by EU-law, have the right to standing.
Some references to EU-lawManual word wrap
The implementation of the IPPC-Directive into national law
The implementation of EU-Directives to domestic legislation is not always easy. The first problem is how to make the legislation comply with the relevant directive. The second problem for the Member State is how to in practice fulfil the obligations from the directive, as regards the IPPC- and now the IED-Directive, to make the system of licensing and planned and existing operations comply with the requirements in the directives.
The IPPC-Directive and the IED-Directive have for example caused problems for the Swedish system. Since 1969 we have had an integrated system of licensing environmentally harmful operations; many now covered by the now mentioned directives. This system has evolved during the years and the adaption to the directives has not been without obstacles. The main rules on the licensing are now regulated in the Environmental Code. To the Code are linked numerous Governmental ordinances containing a more detailed regulation on the procedure and also substantial rules. These rules has been amended and the number of ordinances each covering certain questions (pointing out which kind of operation that needs a permit, which authority that shall decide in the case, ordinances with special regulation for certain kinds of industry and an ordinance on emissions from industrial plants) has been growing during the recent years.
To illustrate the problem the European Court of Justice in case C-607/10 declared that, “by failing to take the necessary measures to ensure that the competent national authorities see to it, by means of permits issued in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that all existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) of that directive, the Kingdom of Sweden has failed to fulfil its obligations under Article 5(1) of that directive”.
The facts of the case:
The 13 November 2007 the Commission asked the Member States to give information on the total ongoing operations and how many of these that had their licenses updated in accordance with the requirements in the IPPC-Directive.
The 8 February 2008 Sweden answered that there were 1073 existing operations under the directive and 191 of these remained to have their conditions revised.
The 18 February 2008, the IPPC Directive went into force.
In July 2009 Sweden informed the Commission that still 73 operations remained to be revised.
In November 2009 the Commission sent a letter of formal notice.
In a letter from December 2009 Sweden informed that 51 operations remained.
At a meeting in February 2010 Sweden informed that 50 remained.
The Commission sent a reasoned opinion (March 2010) to the Kingdom of Sweden and Sweden replied by letter in May 2010 that 33 operations remained.
At a later meeting Sweden informed that 23 remained.
The Commission took the view that the situation remained unsatisfactory and decided to bring action to the European Court of Justice and during that procedure Sweden informed that now only 5 operations remained.
The court found that, in order to establish whether there had been a breach of EU law, the relevant time is the end of the period prescribed in the reasoned opinion.
It may be appropriate to point out that the problem to comply with the requirements in the IPPC-Directive is not only a Swedish issue, see for example case C-48/10 against Spain, case C 49/10 against Slovenia and case C 352/11 against Austria.
Also the IED-Directive, replacing the IPPC-Directive, has caused problems and in March 2014 the Commission sent a reasoned opinion to the Kingdom of Sweden regarding the implementation of a number of Articles in that Directive.
The Wells-case
In the Wells-case, C-201/02, the question was raised how to regard a license granted when the EIA-procedure according to directive 85/337/EEC, was not carried out.
The history started in 1947 when an old mining permission was granted for Conygar Quarry. The area for the operations was divided into two sections, of slightly more than 7.5 hectares, each separated by a road on which Mrs Wells’s house is situated. Mrs Wells bought her house in 1984, 37 years after the permission had been granted, but at a time when the quarry had long since been dormant. However, in June 1991 operations recommenced for a short period.
At the beginning of 1991, the owners of Conygar Quarry applied to the competent MPA for registration of the old mining permission under the Planning and Compensation Act 1991. Registration was granted by a decision of 24 August 1992, which stated that no development could lawfully be carried out unless and until an application for the determination of new planning conditions had been made to the MPA and finally determined (’the registration decision’). The owners of Conygar Quarry therefore applied to the competent MPA for determination of new planning conditions. After the MPA, by decision of 22 December 1994, had imposed more stringent conditions than those submitted by the owners of Conygar Quarry, the latter appealed to the Secretary of State.
By decision of 25 June 1997 (hereinafter, together with the decision of 22 December 1994, ’the decision determining new conditions’), the Secretary of State imposed 54 planning conditions, leaving some matters to be decided by the competent MPA. Those matters were approved by the competent MPA by decision of 8 July 1999 (hereinafter ’the decision approving matters reserved by the new conditions’). Neither the Secretary of State nor the competent MPA examined whether it was necessary to carry out an environmental impact assessment pursuant to Directive 85/337. At no time was a formal environmental statement considered.
By letter of 10 June 1999, Mrs Wells requested the Secretary of State to take appropriate action, namely revocation or modification of the planning permission, to remedy the lack of an environmental impact assessment in the consent procedure. Since she received no reply to her request, she brought proceedings before the High Court of Justice. Pursuant to an undertaking given to the High Court at the first hearing, the Secretary of State, by letter of 28 March 2001, provided a reasoned response to Mrs Wells’s letter, in which he declined to revoke or modify the planning permission.
Mrs Wells then amended her initial application to include a challenge to the decision contained in the letter of 28 March 2001. Since the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), considered that interpretation of Community law was needed in the case before it, it decided to stay proceedings and questioned the European Court of Justice inter alia: whether an approval of a new set of conditions on an existing permission granted by an Interim Development Order ("old mining permission") was a "development consent" for the purposes of the EIA Directive and if so, whether the Member State has a duty to remedy its failure to require EIA.
The Court stated in short that the consents were given after the time-limit for implementation of the EIA-Directive had expired, the consents were a precondition in order to lawfully resume working of the quarry and thus there had been an obligation to carry out an EIA. The Court found that “under Article 10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337. The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favorable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness). In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.”
To concludeManual word wrap
In these matters different and sometimes colliding interests are involved. In order to make investments the operator is urgent to have stable conditions for the operation and a possibility to in a reasonable way foresee the future requirements. Interests based on protecting the environment, health or public safety may instead argue for quick adjustments and restrictions for or a prohibition of existing operations. Sometimes the latter interests are backed up by EU legislation and thus a reopening procedure is triggered also by the obligations for the Member State towards EU.
A revision of existing licenses is a process that requires a lot of resources and a high level of competence at the responsible authorities. As is shown by the Swedish IPPC-case, even with a rather obvious task for the authorities, the pressure from the EU and a situation where the authorities can order the operator to forward relevant investigations, it took years from the start of the campaign till the goal was reached; all existing licenses scrutinized and when regarded needed, new licenses or conditions were issued for the operations.
The above-mentioned IPPC-case, C-607/10, shows some of the difficulties with a system as the Swedish with a general practice to issue licenses that are un-limited to time. The same and even worse problems Sweden will meet in order to comply with the requirements in the Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy", the EU Water Framework Directive. A Governmental committee has proposed amendments and clarifications in the Swedish legislation in order to reopen old licenses and clarify which kind of ancient decisions that ought to be regarded as licenses under the Environmental Code [7]. The report has met very strong opposition from the energy sector and the industry, arguing that the proposal interfere in existing licensed operations and goes way beyond what is acceptable from the operator’s point of view. The interest organizations for environment and fishery are likewise discontent, but from the opposite point of view, meaning inter alia that the referred ancient decisions and royal letters in this context should not be regarded as licenses under the Environmental Code and that their interest has not been acceptable taken care of.
The domestic procedures leading to the Wells-case had as a result that the requirements in the EIA-Directive were set aside and hence a license was granted for an operation in breach of EU-law. Normally and applying Swedish national legislation such a decision, according to the main rule, would have a binding effect in the relation authority and licensee. The authority would not be able to invoke its own mistake and reopen the procedure for a revision. As the failure was based on a deficit in the domestic legislation however the situation is not that clear. In this case, the angle towards EU-law and the binding effect of provisions in the EIA-Directive, would maybe open up for a revision but again probably only by extraordinary remedies; then invoking the fundamental procedural failure the original decision was based on.
The weighing and balancing of the different interests can be rather delicate and a true challenge for the practitioner. The operator invokes his/her right of possession and interest of legal certainty and the need to rely on existing decisions – an individual interest but also based on interests of economic growth in a larger sense. On the other hand there may be overriding opposing public and private interests regarding inter alia health, environment, safety but also economy. [8]
In order to update decisions allowing actions or operations that are detrimental to opposing interests, it first has to be determined which interests that are relevant to take into consideration, how to weigh these interests and then decide whether a case needs to be reopened or not, if it´s possible to act anyway but also the consequences from abstaining to act. If a reopening is needed, it has to be considered the set of rules for that procedure and further on, the resources required and also the possible outcome. So it may be a rather time- and resource-consuming process, from the point where the competent authority becomes aware of an operation negatively affecting the environment, to where the operation actually has a set of rules that makes it comply with new and relevant requirements.
/Anders Bengtsson
Footnotes
[1] See e.g. European Courts judgment 20 May 2014, Nykänen v. Finland (11828/11) and judgment from the European Court of Justice C 617/10, Åkerberg Fransson, NJA 2013 p. 502.
[2] See e.g. MÖD 2002:34 and MÖD 2007:23.
[3] MÖD 2011:46
[4] Chapter 24 Section 8: “The licensing authority may, at the request of the holder of a permit, cancel or alter rules and conditions in a judgment or decision granting a permit other than those relating to the compensation amount. However, conditions may be cancelled or made more lenient only if they are obviously no longer necessary or are more stringent than necessary, or if the alteration is justified in view of circumstances that were not anticipated when the permit was granted.”
[5] Environmental Code Chapter 32 Section 1.
[6] Environmental Code Chapter 32 Section 12. “Apart from actions relating to compensation for damage and compulsory purchases, a private individual may also bring an action against a person who pursues or has pursued an environmentally hazardous activity without permission for prohibition of further activity or for the taking of protective measures or other precautions.”
[7] SOU 2013:69
[8] In C 416/10 the European Court of Justice discusses whether a decision of a national court, which annuls a permit granted in infringement of the provisions of a directive, is capable of constituting an unjustified interference with the developer’s right to property enshrined in Article 17 of the Charter of Fundamental Rights of the European Union. The Court states (paragraph 113 -115): However, the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 355, and Joined Cases C-379/08 and C-380/08 ERG and Others [2010] ECR I‑2007, paragraph 80).
As regards the objectives of general interest referred to above, established case‑law shows that protection of the environment is one of those objectives and is therefore capable of justifying a restriction on the use of the right to property (see Case 240/83 ADBHU [1985] ECR 531, paragraph 13; Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8; Case C‑213/96 Outokumpu [1998] ECR I‑1777, paragraph 32; and ERG and Others, paragraph 81).
As regards the proportionality of the infringement of the right of property at issue, where such an infringement may be established, it is sufficient to state that Directive 96/61 operates a balance between the requirements of that right and the requirements linked to protection of the environment.