Summary

Foreword

The 5th annual workshop of the AEAJ working group Environmental Law (see the programme appendix 1) was divided into two parts. On the first day we dealt with mmediation and amicable settlement before the court in environmental cases. The second day was dedicated to the rights of the parties in the environmental lawsuit .

This summary compiles the result of the second part.

The participants (all in all 38) came from the 14 countriessuch as: Austria (AT), Bulgaria (BG), Estonia (EE), Finland (FI), Germany (DE), Greece (GR), Italy (IT), Latvia (LV), Lithuania (LT), Romania (RO), Slovenia (SLO), Sweden (S), Ukraine (UA), United Kingdom (GB).

Furthermore the European Commission and the European Law Academy each had sent a participant. One guest came from the Osaka University (Japan) and two academics from Italy attended the workshop.

The subject “Rights of the parties in the environmental lawsuit” was subdivided into 3 chapters.

Role and rights of the parties in the oral hearings

Support of the parties by the court

Right on investigation and taking evidence by the court

The second topic (support of the parties) had references to the subject of the first part of the workshop (mediation and amicable settlement).

For each chapter a questionnaire (see appendix 2 – 4) was sent to the participants.

We got answers from 12 countries. The answers were presented and discussed on the second day of the workshop

Comparative law studies based on filled questionnaires face the problem that the questionnaire is drafted from the point of view of its author respectively the author’s domestic legal system. As a consequence misunderstandings may occur. Furthermore it is not possible to meet all special features. Sometimes broader explanations on the national law in general are needed. But it is not possible, to explain all the details in the context of this summary. The target of this summary is to find common trends, to show significant differences and to get a base for proposals on good or best practice.

The findings

Role and rights of the parties in the oral hearings

The necessity of an oral hearing

Article 6 (1) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (ECHR) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

In the countries having participated in the enquiry (hereinafter: countries) at least one oral hearing is ensured in the main proceedings. In interim relief proceedings oral hearing is not mandatory (except IT, RO), in some countries (DE, SE, SI) specific rules do not exist.

According to the case law of the European Court of Human Rights (see Rippe v. Germany, decision of 2 February.2006) the manner in which Article 6 of the Convention applies to proceedings before courts of appeal depends on the special features of the domestic proceedings viewed as a whole. Even where the court of appeal has jurisdiction both over the facts and in law, Article 6 does not always require a right to a public hearing.

In some countries (BG, DE, EE,IT) for all instances the same rules apply. But in the other countries oral hearings at upper instances seem to be the exception.

As to abstaining from an oral hearing different conditions exist:

Consent of the parties (DE, EE, RO) or of the applicant and a third party (LV)

When the claim is not admissible or obviously unfounded/founded (AT,, FI, SE –unless hearing is nevertheless requested - ,SI,) or if there is no reason for the party to request an oral hearing (EE)

When the parties do not appear (LT, RO)

Concerning the necessity of an oral hearing (main proceedings at first instance) the following systems can be found:

Oral hearing is mandatory (BG, IT, LT, UA)

Oral hearing is the rule (AT,DE, EE, LV,RO,SI)

Written procedure is the rule (FI, SE)

Documentation of the oral hearing

In most countries the oral hearing is documented by a protocol. In Romania the testimony of witnesses is written, printed and signed by the witness in the session. In some countries audio recording is required (LT, UA), in others it is possible but not usual. In Lithuania a written protocol is not produced.

Exclusion of the public

The exclusion of the public does not play a significant role in environmental cases.

In Italy only the public cannot be excluded in the main proceedings. The other countries have provided exceptions such as listed in Article 6 (1) ECHR [1].

Time and frequency of oral hearings

In t most countries the judge schedules a public hearing when it is considered appropriate. That happens in some countries after clearing of procedural issues like admissibility (BG,LT,RO), in other countries (AT, DE, EE,IT, SI, UA) the oral hearing normally takes place at the end of the proceedings.

Several hearings are usual in Romania, in Austria not at all. In the other countries the frequency of oral hearings depends on the complexity of the case.

An initial (preparatory) hearing is usual in Romania, in other countries it is possible but happens more or less rarely. The aim of such a hearing is to clarify the factual and legal situation. In Estonia and Germany a further purpose may be the finding of an amicable settlement.

A final (main) hearing is partly explicitly provided (DE, IT,) or usual (LT, RO, SE –in the first instance). In Germany it is the highlight o f the administrative court procedure.

Presentation of new facts and legal arguments

Restrictions exist in several countries (BG, EE, IT, SI) for the presentation of new facts. The extent of these restrictions is different. In Finland such a restriction is provided for “municipal appeals” only, in which an “actio popularis” is recognized.

New legal arguments in an oral hearing are excluded in Italy only.

In some countries (DE, EE, LT, RO, SI, UA) the court is empowered to set deadlines for the presentation of new facts and arguments. In Lithuania the parties may nevertheless present new facts and arguments later. In Germany the rejection of delayed submissions is allowed under certain conditions only. In Italy general rules exist (40 days before the oral hearing, in interim relief proceedings 2 days before).

Taking evidence in oral hearings

In Italy evidence by witnesses and experts is taken down in writing. In the other countries taking evidence is possible in oral hearings.

Discussion of factual and legal issues with the parties

A dialogue with the parties on factual and legal issues is nowhere forbidden, but the legal background and the practice is different. Partly the national legislation provides an obligation of the judge, to do so (BG, DE, EE, LT, RO). In Slovenia the practice is restrictive because of the danger of being accused of partiality. Italian courts seem to abstain of a dialogue with the parties too. Otherwise such discussions may occur, but rarely in northern Europe.

Announcement of the decision and oral reasoning

The announcement of the final decision in a public session is partly prescribed by law without exceptions (LT, RO, UA), partly service is admitted too (AT, DE) or the rule in practice (SE). In all other countries the final decision is sent to the parties in writing.

Oral reasoning is common, if the decision is announced after the final hearing.

Support of the parties by the court

Elimination of formal deficiencies of the appeal

In case of formal deficiencies , which can still be rectified by the appellant, the judge may order the completion or rectification and set a deadline in most countries. An obligation to do so is assumed in some countries (AT, BG, DE, EE, LT, RO, SI, UA). If minimum requirements have to be met within the time limit for an appeal the question is whether the judge must issue an order before the expiration of the time limit. Such a responsibility seems to exist nowhere.

Inspection of the court files

The right of the parties to inspect the court files (including the files which were produced in the previous administrative proceeding) is guaranteed in all countries.

The refusal of opening files happens quite rarely. In Germany submission of files was refused by the public authority in nuclear power plant cases for alleged safety reasons. Another field of secrecy is the employment of under cover agents in extremist circles. In such cases in Germany a special procedure applies with jurisdiction of a special chamber for the decision whether the refusal is justified. The public authority must submit the files regarded to be kept secret to the special chamber of course. But if the special chamber decides in favor of the public authority the judge in the main proceedings does not get to know the secret files.

Time limits for submissions of the parties

Difference is to be made between deadlines stated by law and those set by the judge. Statutory time limits usually (except BG) can not be prolonged. There is the possibility of restoration of the status quo ante only.

In general (except IT) prolongation of time limits set by the court is granted under not too strict conditions. If the prolonged time limit is not kept the consequences are different: Return of the document to the party, which had filed it (UA), preclusion (BG, RO, SI). In some countries (DE, FI, SE) feventually submitted documents usually are considered nevertheless.

Hints of the court to the public authority

If the contested administrative act is afflicted with a remediable fault, the question arises whether the court is obliged or entitled to give the opportunity for rectification. The practice seems to be reserved. In some countries such an intervention is not possible (AT, BG, LT,SI, A) or unusual (FI, IT). In Germany once such an entitlement was explicitly introduced by law. The purpose of that provision was avoiding a follow up proceeding, after the fault is rectified feventually. But this provision was repealed later again. Nevertheless German law provides the obligation of the court to address legal doubts on the lawfulness of the contested administrative act when discussing factual and legal aspects with the parties in the oral hearing. Thus the court may give a respective hint even before the oral hearing (with simultaneous information of the other parties). In Latvia legal background and practice is similar.

Hints to the applicant

In most countries hints on the merits are not allowed or not practiced anyway. In Finland such hints are made in utmost cases only. However if all factual and legal issues have to be addressed in the oral hearing (DE, EE) hints are the consequence of this obligation. In Germany it sometimes happens that the plaintiff withdraws the appeal after the discussion of all legal issues in the oral hearing.

Clarification of the parties’ submissions and motions

In general the court is obliged to ask for clarification of unclear requests and to propose proper motions. But the procedure is governed by the ne ultra petita principle. So in general the court gives no advice concerning the initiation of separate proceedings like a request for interim relief. Otherwise suspicion of bias may be founded.

Contacting parties by phone

Discussion of legal issues by phone with one party only is generally regarded as inappropriate, except in case of urgency. In principle phone talk must be limited on administrative issues like time schedule for the proceeding. If any issue is addressed which can be interesting for the other parties the contact has to be documented in writing and made known to the other parties (DE, LV, SE). Estonia has introduced so-called simplified proceedings in which phone contact is allowed on legal issues too. But the positions of the parties have to be fixed in a simple protocol by the judge.

Endeavour to an amicable settlement

The judicial culture is quite different in that matter. In Finland an amicable settlement is regarded as a strange element in the administrative court procedure. In Sweden the court normally encourages the parties to an agreement only when compensation for environmental damage is requested. In Estonia the court shall do everything to encourage the parties to an amicable settlement. In other countries (except AT, IT, RO) the court is entitled to do so anyway.

Right on investigation and taking evidence by the court

Investigation method

Ex officio investigation is provided in most countries as a duty of the court. In Finland an exception exists for “municipal appeals”. In these lawsuits the judge is bound to the grounds the appellant has presented. In Ukraine the obligation to prove is imposed on the parties. In Romania the judge may act ex officio but is not strictly obliged to do so. In Slovenia the ex officio investigation does not apply.

Means of investigation

In all countries the administrative authority must submit the files which were produced in the previous administrative procedure. In Romania the chief of the public authority is held accountable for failure of submission of files and risks a fine of 10 % of the minimum wage for each day of unjustified delay.

The courts usually rely on the administrative files and the explanations and statements of the parties. The courts use the classical means of evidence taking (inspection, testimony, expertise) if facts are disputed. In Bulgaria and Germany duly collected evidence in the proceedings before the administrative authority is accepted by the court.

Evidence presented by the parties

The parties may themselves administer evidence (except BG). But in some countries such evidence is considered as the party’s opinion only (AT, IT, RO). In general there is no preference of evidence presented by the public authority. But the court must take into account that the public authorities do not pursue proper interests. A particular rule applies in Italy where documents of public authorities have a special legal validity.

In some countries (DE,EE, IT, LT, RO, UA) the expenses for evidence may be awarded to the winning party. In Sweden reimbursement is possible in cases on environmental damage only. In Latvia only the plaintiff may claim the reimbursement of expenses, and such a claim is assumed to be the claim for damages caused by the unlawful administrative decision. I.e., the court dealing with the claim against an administrative act will not make an automatic decision of reimbursement of any expenses for evidence gathering, but only if the plaintiff has filed a general claim for damages, which may include expenses for evidence. The state authority (the defendant) may not claim the reimbursement of any expenses even if it wins the case. Under the German law the expenses must have been necessary to properly pursue or defend rights. In Germany public authorities usually do not request the costs of expertise produced by their technical service in the course of a lawsuit. In Finland basically the parties have to bear their costs. But the court may order that a party shall be liable to compensate the legal costs of the other party in full or in part.
In Austria generally every party has to bear its own costs.

Motion for taking evidence by the court

The parties are free to ask the court for taking evidence.

Some restrictions exist as to the time of such a motion (BG, IT, LT, LV,RO, UA).

In some countries the court must decide on such a motion separately (BG, EE, TL, RO). In Slovenia and Germany (in case of refusal) such a decision is mandatory only if the motion for evidence is submitted in an oral hearing.

The rules for refusal or accordance of requested evidence seem to be similar. The main reason for refusal is missing relevance to the case. But there are other reasons too: The motion is not substantiated, the fact is not disputed or may be assumed for true, the fact is already proved/disproved, the evidence is not accessible, e.g. domicile of a witness is unknown (see the Estonian law and the case law of German courts).

A separate remedy against the decision on a motion for taking evidence is not provided in the countries, but the decision may be challenged with an appeal against the final decision on the case.

The burden of costs for evidence

The costs of evidence are to be born mostly by the loosing party (BG, DE, EE, LT, UA). In some countries (IT, SI) the court decides by a case by case assessment.

Selection of experts by the court

Special rules on the selection of experts seem to exist in Romania only. Usually the court endeavors an agreement of the parties. But a common proposal of the parties is binding in Ukraine only. In the countries official lists of experts are established. But the courts may select specialists who are not on the list. The Finnish courts usually favor experts from state authorities. Such experts are accepted too in the other countries. The participation of those experts may be free of charge (DE, SE).

If a party has objections against a selected expert, usually the court has to decide in an interim procedure. Concerns of partiality may be based on the same grounds such as for the recusal of a judge from a case (e.g. relationship to a party, own interest).

Evaluation of evidence

As to the evaluation of evidence the principle of unfettered consideration by the court applies. The parties may present a counter expertise, but in some countries that must happen in time (EE, LV,SI). In Bulgaria such a counter expertise is not admissible.