I. Introduction

The AEAJ has established a working group Environmental Law. The working group held a workshop in Brussels on 14 March 2008. The topic of this workshop was the transposition of the third pillar of the Aarhus Convention (Access to justice). The working group elaborated a statement [1] which was presented by its chair (Werner Heermann) at the conference in Brussels on “The Aarhus Convention: how are its access to justice provisions implemented?” on 2 June 2008 which was organized by the European Commission [2].

The admissibility of a legal remedy is the first hurdle only. But what happens afterwards? Article 47 of the Charter of Fundamental Rights of the European Union provides a right to an effective remedy. The effectiveness of a remedy depends on many factors some of which are the domestic procedural rules and their application in practise. The workshop in Águilas on 1 – 2 October was mainly dedicated to the question of whether the different systems of administrative jurisdiction lead to different solutions in a given case. For this purpose 3 case detailed studies (see appendix 1 – 3) were prepared which were where considered through the mechanism of a workshop. In this work participated judges from Austria, Bulgaria, Estonia, Finland, Germany, Greece, Hungary, Italy, Slovenia, Spain, Sweden, Ukraine and United Kingdom. While the case studies did not cover the whole spectrum of procedural problems they provided a means for exploring the impact of domestic procedures on access to justice and the outcome in environment cases.

II. General remarks

Comparative law studies face often the problem that a case can not happen in other countries or can not raise a certain question because of a different approach in the administrative procedure. In the biogas plant case (appendix 1) the permit depends in some countries (Bulgaria, Slovenia, Finland) on a precedent planning act. In these countries the crucial problem of environmental impact can sometimes be solved in the planning procedure. [3] Therefore when the municipality is responsible for setting up a plan the question of whether it can hinder a project by a legal remedy does not arise. The municipality may be able to more or less introduce the precautionary principle on behalf of its citizens by refusing the necessary planning act. In other countries such a legal power is not vested in the municipality and accordingly this mechanism for addressing the environmental question does not exist.

The working group stated that the procedural problems are sometimes linked with general rules of the administrative procedure. In the windmill case (appendix 2) the question (no 6) is put, if the decision can be upheld which will result in higher than acceptable emissions, but the operator is able to actions which are not included in the application for permit but which would avoid a harmful environmental impact. The first question is, whether the permit is unlawful in a situation when technical amendments are necessary. In Finland and Sweden the court is empowered to amend the administrative decision. In the given case it might be able to add new conditions to the permit and thus sort out the legal error. In the other countries such a power is not conferred to the court. In the mobile antenna case (appendix 3) the question is, if the administrative authority may take into consideration alternative locations. If so, the subsequent question is, if it must examine the possibility of another location and to what extend the court can or has to respect administrative discretion. In most of the represented countries was this not possible. This does not meet the expectations of the concerned local interests which argue for the precautionary principle and demand longer safety distances which therefore press for another location.

III. The findings

Preliminary administrative review

There are various rules in the represented countries. In some countries an administrative review procedure is necessary, in others it is optional and in others it is not provided at all. Opposite to the judicial review an administrative review allows in principle the control of expediency. But in environmental matters discretion is generally not given to the administrative authorities. That is why a preliminary administrative review is not regarded as essential in this field. In countries where the judicial review is limited on legal questions and fact finding is not conducted at this stage a preliminary administrative review is indispensable and must meet the criteria for an “independent and impartial tribunal” set out in Article 6 par. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (see ECtHR, le Compte and Others judgement of 23 June 1981, par. 51 and 54).

Parties

In case 2 the question was put who the parties are. The answers mostly did not make a distinction to legal standing. In each country the operator is involved in the proceedings as or like a party. The landowner is involved only in the capacity of operator.

In case 3 different systems of participation of persons whose interest is affected were found. In Finland a formal participation with attribution of procedural rights is generally not possible for neighbours in a case where the permit has been refused. This was considered non economic by the majority of the participants because the judgment is not binding for the interested person in a new round of litigation where a subsequently granted permit is challenged. In no country was the summoning of a third party mandatory in such a case. In some countries (e.g. Italy, Sweden) the interested person may decide whether to participate. In other countries (e.g. Germany) an order of the court is provided.

Legal standing

The national rules on legal standing are quite various. This was stated in many reports [4] and was found in the previous workshop on 18 March 2008 too. In the case studies for the Águilas workshop the differences were not so significant because no non-governmental association was involved and the plaintiffs were able to argue an impairment of their own rights.

Nevertheless differences occurred. The solutions on the right to sue of the municipalities in case 1 were not uniform. In some countries tenants have not legal standing at all.
In Bulgaria the public authority which had rendered the challenged decision has no legal standing in the court proceedings. In Bulgaria the landowner who is not the operator also has legal standing.
The legal standing of more distant neighbours is to determine in all countries with regard to the specific circumstances by a case by case examination. Concerning windmills in some countries guidelines or case law has been developed on the distance to dwelling houses below which legal standing is assumed (Finland: 800 m, Italy: 500 m, Sweden: 300 – 400 m).

Technical provisions

General technical provisions are of benefit to the certainty of law as well as to a timely and not prohibitively expensive proceeding, because expert evidence is not needed within the scope of these provisions. The case studies concern
Thresholds for noise emissions and
Thresholds for smell emissions
Security zones

Technical provisions can be set up as legally binding rules, soft laws or recommendations. There is no clear preference of any type in the different countries and for the different kinds of environmental impact. The formal legal character of these rules is not as important as was expected. The key principle is that the court can rely on a generally recognized rule and need not order expert evidence. The ECJ however held in the judgment from 30 May 1991(C-59/89, Commission v. Germany, para. 23) that the “Technical Circular Air”, which is binding for the administrative authority, was not an appropriate means for the transposition of the Directive 82/884/ECC on a limit value for lead in the air, because the mandatory nature of the administrative provision was not undeniable. In the field of noise and smell European limit values do not exist. The Directive 2002/49/EC relating to the assessment and management of environmental noise is of a programmatic nature. In the workshop differing noise limit values were found. In Finland limit values are determined in guidelines of the Council of State. According to these provisions in residential areas, recreational areas in or near population centres as well as areas used by care or educational institutions the noise shall not outside exceed a daytime (7-22) value of 55 dB (LAeq) or night time (22-7) value of 50 dB (LAeq). For “new areas” the night time value is 45 (LAeq). For areas used by educational institutions the night time value is not

applied. In Germany noise limit values are determined by the Technical Instructions on Noise Control. For the night time an equivalent continuous sound level of 40 dB(A) is provided, which is much more stronger than the Finnish limit value.
Technical guidelines for the assessment of smell pollution were found in Germany only. However the suitability of these guidelines, which partly cover a special kind of smell only, is uncertain. In Spain some Autonomous Communities are bringing forward new controls on smell pollution. Autonomous Communities have a high degree of competence on environmental matters. As a result 17 different regimes can be found.

Security zones are not in any country legally provided for a windmill/windfarm. In Bulgaria by virtue of an ordinance a biogas plant must keep a distance of 500 m to residential areas. The protection from radiation is in some countries (e.g. Germany, Spain) provided by a binding regulation.

In the context of technical provisions two further questions arise. What happens if a law or a regulation is considered unconstitutional or a regulation is considered not to be in compliance with the respective law? This problem was not directly explored in case 3, but some answers touched on this. In Germany the court is empowered to set aside a regulation (but not a parliamentary act) if the regulation is considered unlawful. In Sweden the court is allowed to set aside both regulations and parliamentary acts if the court considers them unlawful under the constitution. In Finland courts are not to apply lower statutes in conflict with a parliamentary act or acts in evident conflict with the constitution. In Austria however the court must refer to the constitutional court for an annulment.
If the technical provision is not legally binding the court can set it aside in principle.

Another question concerns the right of municipalities to pursue a stronger health policy by own regulations. If a municipal planning act is a precondition for permitting a project this is not deemed to be a problem. Otherwise, as in the mobile antenna case, such a right was doubted in the discussions.

Investigation

The role of the court in the fact finding procedure differed. In a few countries (Finland, Germany, Sweden) an ex officio investigation [5] is mandatory. In the other countries (except Greece) the court can but must not act of its own motion.

Taking of Evidence

In all countries the public authorities employ technical experts. This assists the citizen who challenges an administrative decision, because the costs of the work of such a civil servant in the context of litigation are not in any country likely to be awarded against the plaintiff even when unsuccessful in the court.
There are different evidence gathering methods: The operator who applies for a permit must or may be requested to submit a technical report with the application. In this case the technical civil service of the public authority granting the permit is confined to an evaluation of this report. Otherwise the civil service has to conduct the technical assessment itself. If it does not have the necessary knowledge it must order an expert witness by an independent expert. In case of a subsequent litigation the established facts are subject to the judicial review.

The crucial problem is what to do if the fact findings are challenged in the court proceedings. Ordering evidence by an independent expert is usually time-consuming and very expensive. Under the loser pays principle, which is, with modifications partly, introduced in most countries [6], access to justice may be affected. On the other hand the court is obliged to adjudicate on a clear factual basis. In practise the courts try to avoid such evidence taking if possible. The participants of the workshop stated that they have ordered evidence by independent experts very rarely. The first tool is hearing the expert or authority who was involved in the administrative procedure and asking for clarification or an additional statement. In this context the problems arises of whether a civil technical servant who was already acting in the administrative procedure may be held as unbiased. It must be noted that such a person has not a personal interest in the outcome of the litigation. The majority of the participants answered principally in the affirmative to the question, whether experts from the public authority, which is defender, are accepted as impartial by the parties. It is up to the claimant to raise reasonable doubts on the correctness of the technical assessment.

The burden of proof was not found a crucial problem. In most represented countries the general rules of burden of proof are applicable and are regarded as sufficient. Pursuant to the general rules the burden of proof meets the party who refers to a rule in its favour, i.e. the operator who applies for a permit which was refused or somebody who challenges a permit which has been granted to an operator. But in Sweden the operator has the burden of proof in the latter case too.

The northern European system is worth to a detailed presentation here. In Finland and Sweden in certain environmental matters expert judges are member of the panel with full rights. In a report on a world wide inquiry on Environmental Courts and Tribunals, conducted on behalf of the “The Access Initiative” [7] a decisional body combining law trained judges with expert scientific-technical judges is recommended as an ideal. There is another northern European speciality. The courts sometimes ask technical public agencies [8] (e.g. National Environment Institute) which did not deal with the case in question, for advice. This may counteract some of the mentioned arguments with regard to the partiality of the public expert. It can also be noted that in these countries public authorities, representing a certain public interest, may have standing for challenging the decision of another administrative body. That is why the problem of impartiality normally does not arise in these countries. In the workshop a common opinion on this method was not found. But the majority held that this kind of evidence taking is usually accepted by the parties, that the advice mostly is of high quality and the courts may rely on the advice, although the courts are free in the evaluation of course.

In cases which are complicated or which arouse strong emotions a party may ask for new evidence to be accepted when the result of earlier fact finding exercise is to its detriment. In such a case under each national system the decision is at the court’s discretion.

Extend and scope of judicial review

While the court may not go beyond what is requested in the action (“ne ultra petita”); the first question is, if judicial review is limited to the legal aspects invoked by the parties [9] . Such a limitation, which exists in Hungary, was considered not to comply with the particular situation in an administrative litigation, where the plaintiff is often in a weaker position than the defendant.

In most countries, the scope of judicial review is linked with the legal standing. The plaintiff may invoke only an infringement of his own rights or an impairment of his own interests, unless an actio popularis is recognised in the respective field of law. In Finland, plaintiffs can generally invoke any illegality of the challenged decision.

In all represented countries in principle no discretionary power is conferred to the court when giving the final decision. As mentioned before, in Finland and Sweden the court may amend the administrative act, which seems to have been passed on by the previous administrative review system. However such a power has advantages in terms of simplicity and economy. On the other hand there are concerns as to the separation of powers principle. But this principle is not strictly applied in legal systems rather than a system of checks and balances is recognized. Furthermore a discussion on practical cases approved that an amendment can often compared to a partial annulment.

A difference was found as to the applicable legal position which depends on the different action systems. In case 3 during the court proceedings a new community regulation was set into force. In countries where an action on issue of a rejected administrative act (the German “Verpflichtungsklage”) is recognized the new regulation is applicable, in other countries not, unless the regulation had retroactive effect, what was regarded unlawful in case 3.

Conclusions

Having regard to the ongoing development of EU law especially in environmental matters the question is, whether the different systems of administrative judicial procedure are an obstacle for a uniform application of the substantial law and harmonization is needed in future in order to comply with the principle of “effectiveness”. The case studies prepared for the workshop could not cover all problems. For example they did not deal with judicial interim measures. The next workshop will be dedicated to this topic. The contributions from the different countries in their preparatory notes for the workshop and in the discussions provide a general overview. The broad conclusion was that a different procedural approach in the represented countries does not, in general, cause a different outcome.

The purpose of the workshop was not only the identification of the differences that exist but also the recommendation of good or best practise. The following requirements are each already met in the majority of the represented countries:

In environmental matters the court of first instance should not be limited on the review of legal questions.

In environmental matters the court should be obliged or at least empowered to conduct an ex officio review of legal aspects (“jura novit curia”) and an ex officio investigation irrespective the interventions of the parties.

In environmental matters the costs of evidence by independent experts may constitute a serious obstacle for access to justice when the loser pays principle is applicable or when parties bear the costs of expertise they need to admit for themselves. Therefore the witness of technical public servants, even if they had made an assessment in the precedent administrative procedure, and the advice of technical public agencies should be accepted unless there are reasonable doubts about their impartiality.

General technical provisions, best set up as legal binding regulations, are essential for certainty of law in environmental matters. In particular they reduce the risk of high costs because expert evidence on some fundamental issues is then unnecessary.