Authorisation of an accumulator-processing plant in a Natura
2000 network’s special protection area (great bustard; Pannonic salt
steppes and salt marshes)
Applicant 1: natural person (neighbour), represented by a lawyer.
Applicant 2: local government, represented by a lawyer.
Defendant 1: natural person, represented by a lawyer
Defendant 2: public authority that issued the environmental permit for the project, represented by a lawyer
The defendant 1 would like to establish an accumulator-processing plant. The project is subject to environmental authorisation (which includes EIA) according to Governmental Decree No. 193/2001 (X.19.) and 20/2001.(II.14. (from 01/01/2006 the Governmental Decree No. 314/2005 (XII. 25) on environmental impact assessment and on integrated environmental usage permitting process.)
The real estate is part of the Natura 2000 network, as it is a “priority natural habitat type”, and a proposed “site of Community importance” pursuant to the Habitats Directive Art. 4. (1) (Directive 92/43/ECC on the conservation of natural habitats and of wild life fauna and flora). Additionally the area is a special protection area according to the Birds Directive (Directive 79/409/ECC on the conservation of wild birds), as it is habitat of the great bustard (otis tarda) listed in Annex I of the Birds Directive (no priority species!).
According to Governmental Decree No. 275/2004. (X. 8.) a proposed
“site of Community importance” is protected at the same level as an
approved SCI. (This is the Hungarian solution for the “appropriate
protective measures” from the C-117/03 “Dragaggi” case, however, if we
consider the Dragaggi regime stricter than the Directive’s regime, the
latter of which gives a possibility for derogation in Article 6 (3)-(4),
than the Hungarian regime is more permissive than the Dragaggi regime)
The project is covered by the provisions of the Directive 2003/35 EC (providing for public participation in respect of the drawing up of certain plans and programs relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EC and 96/11/EC).
The public authority (Defendant 2), in view of the
environmental expert’s report and the environmental impact assessment,
alleges that the project would not affect the ecological integrity of
the special protection area concerned, and the flock of the great
As the great bustard is not listed as a priority species the authority did not check if the project is justifiable on the ground of imperative reasons of overriding public interest such as: human health or public safety, to beneficial consequences of primary importance for the environment (see Art 6. (4) second subparagraph).
The authority examined, however, the imperative reasons of overriding public interest in a wider sense (275/2004 Decree 4 § (2), which is a possible implementation of the Art 6 (4) first subparagraph, as “social or economic nature” is not defined there).
The authority has not examined the cumulative effects (EIA and Habitats Directive Art 6 (3). “ combination with other plans”) and the alternative solutions (Art. 6 (4) first subparagraph), but agreed in its decision on some compensatory measures, which had to be negotiated between the authority and the applicant to protect the species (like ensuring the monitoring activities, including financial support, as well as contribution to ensure the feeding of the species through rape-plantation etc.)
Applicants 1 and 2 brought an
action for annulment before the administrative court against the
authorisation for the accumulator-processing plant as the authority did
not take into account the site’s conservation objectives (noise, air
pollution, other disturbances of the habitat), and the alternative
solutions, cumulative effects, ie on the whole content of the EIA
concerning nature protection part.
However, according to the court of first instance’s (county court) view, , the owner of the neighbouring property (applicant 1) has no standing, as well as applicant 2 (local government) has no legal standing according the provisions of the national law concerning the protection, reservation, reparation of the environmental status of the great bustards. Nevertheless, the court adopted a judgement about the application and found the decision of the authority justified and legally well-founded and rejected the appeal of the applicants.
(The main reason for the lack of legal standing is the approach of the Hungarian appeal system, as the actio popularis is not applicable. According the Civil Procedural Code the applicant must have legal standing in the administrative procedure, or the case must be related to the applicant’s right or righteous interest, or it has to be a breach against his/her request for environmental information according the Aarhus Convention (Civil Procedural Code § 327).
Applicant 2 requested exceptional review before the Supreme Court.
for annulment of the decision concerning the authorisation of the accumulator-processing plant as the authority did not take into account the “priority natural habitat type” character of the site, and that the project as it has a negative effect on the site should be justified the interference with imperative reasons of overriding interest according § 10/A.(1) of the Decree No. 275/2004 (X. 8.) (which implements the Habitat, and the Birds Directive). Also, Applicant 2 attacked the part of the decision relating to its legal standing and maintained its previously presented legal standpoint and declarations.
(These facts were already mentioned during the procedure before the county court, however, the court neglected the facts).
2. Legal Framework
EC Law: The Habitats Directive
(d) priority natural habitat types means natural habitat types in danger of disappearance, which are present on the territory referred to in Article 2 and for the conservation of which the Community has particular responsibility in view of the proportion of their natural range which falls within the territory referred to in Article 2; these priority natural habitat types are indicated by an asterisk (*) in Annex I;
Article 6 of the Habitats Directive states :
(1) For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
(4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’
Case law: C-117/03 (Dragaggi)
“In the case of sites eligible for identification as sites of Community importance which are included in the national lists transmitted to the Commission and, in particular, sites hosting priority natural habitat types or priority species, the Member States are, by virtue of Directive 92/43, required to take protective measures that are appropriate, from the point of view of the directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.”
b. National Law
(Comment: The relevant legislation has recently been modified,
both in the case of EIA and Natura 2000, therefore the legal dispute was
partially about which legislation should be applied.)
275/2004. Decree 4 § (2):
„other development goals, specified in an Act or in a Governmental Decree like the country’s main socio-economic development, or national security considerations”
“ (1) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives.
(2) In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 1, the competent national authority shall agree to the plan or project only after having established that it will not affect adversely the integrity of the site concerned – with respect to Article 4 § (1)-(2)”
(3) (….) a project, which has a negative effect on a priority natural habitat type and/or a priority species, and on natural habitat types of Community interest, and species of Community interest can be exempted from the prohibition (to affect a site of Community interest) if the exemption is demanded by imperative reasons of overriding interest”
(4) compensatory measures
(5) (….) after having obtained the opinion of the general public.”
10/A. § Governmental Decree No. 275/2004. (X. 8.):
The definition of imperative reasons of overriding interest is word by word implemented in the decree.
What is remarkable in the Hungarian legislation is that “if the project has negative effect on a Natura 2000 site it has to be justified by imperative reasons of overriding interest in the case of natural habitat types of Community interest, and species of Community interest” too, not just in the case of priority natural habitat type and/or a priority species.
Article 340(1) of Civil Procedural Code (Pp). states: “There is no appeal against the decision of the administrative court (...).”
Legal standing in the administrative procedure:
The Governmental Decree No. 314/2005. (XII. 25) and 275/2004. Decree 2. § p) grants legal standing to “concerned public” (is a natural person, legal person or organisation without legal personality
aa) that is affected or could be affected by the decision brought in the process determined by this Decree, or
ab) that is otherwise interested in the decision brought in the process determined by this Decree. The environmental organisation according to Article 98, Paragraph (1) of Kvtv. shall always be considered concerned.” ) in the administrative procedure.
Legal standing in the administrative court procedure
Parties PP. 327. §
“applicant must have legal standing in the administrative procedure, or the case must be related to the applicant’s right or righteous interest, or it has to be a breach against his/her request for environmental information according the Aarhus Convention”
Act CXL of 2004
on the General Rules of Administrative Proceedings and Services
(1) ’Client’ shall mean any natural or legal person and any association lacking the legal status of a legal person whose rights or lawful interests are affected by a case, who is subjected to regulatory inspection, or who is the subject of any data contained in official records and registers, including any data concerning the property, rights and assets of the client.
(2) Unless otherwise prescribed by legal regulation, in proceedings relating to some facility or for the authorization of activities, ’client’ means all owners of properties located in the impact area, as well as the legitimate users of such properties registered in the real estate register.
(3) An act or government decree may prescribe a more precise definition for client in connection with certain specific types of cases.
(4) The rights of clients are also conferred upon the authorities participating in a case under vested competence.
(5) In specific cases interest representation organizations may be vested with the rights of clients, as well as non-governmental organizations whose registered activities are oriented for the protection of some basic rights or the enforcement of some public interest.
Article 109(1) of Ket. stipulates: “A person having standing and – in respect to a part of the decision that directly addresses him/her – any other participants of the procedure are entitled to ask the court competent in administrative cases by submitting a court complaint to revision the decision with legal force within 30 days from its communication”.
County level: the court has rejected the appeals on the ground that the authorization of the project cannot be rejected just because of the fact that it will be constructed on a Natura 2000 site, furthermore, the court has decided that the project does not endanger the protection, reservation, reparation of the environmental status of the great bustards.
Supreme Court: the court repealed the decision of the county court,
and obliged the defendant public authority
(Defendant 2) to conduct a new procedure.
The Supreme Court stated that:
The local government has legal standing in the procedure (as the protection of environment falls under among its scope of authority and the case interferes with the interests of the resident population of the applicants
The authority did not take into account the “priority natural habitat type” character of the site and that the project, as it has a negative effect on the site, should be justified the interference with imperative reasons of overriding interest according § 10/A.(1) of the Decree No. 275/2004 (X. 8.) (which implements the Habitat, and the Birds Directive).
Additionally the authority did not examine the cumulative effects (EIA and Habitats Directive Art 6 (3) “combination with other plans”) and the alternative solutions (Art. 6 (4) first subparagraph) and the stated compensatory measures were not sufficient.
The judgement referred, because of the proposed site character, directly to the Dragaggi case, and the necessity of the appropriate protective measures.
Following the court’s instructions, the authority , shall take into
account the whole reasoning of the judgement during its new procedure
ie. by examining the above listed elements of the project.
1. Length of the procedure: 2005-2007
2005-2006. 13 March.: administrative procedure
2007- administrative court procedure
2. Costs: general rules Article 43(3) of Act XCIII of 1990 on fees: 16,500 HUF (66 Euro)
3. Frequency of control: the procedure was launched by a natural person not ex officio. The frequency of control emerges just when the authority has to control e.g. example an illegal landfill.
4. Evidence: EIA; the authority made the decision on the basis of the EIA
5. Represented by lawyer: yes, all the parties
6. Possibility of appeal:
The procedure concerned two levels of the court system (County level and the Supreme Court).
County level: no appeal is available against the decision
Supreme Court: exceptional review
1. According to Governmental Decree No. 275/2004 (X. 8.) a proposed “site of Community importance” is protected at the same level as an approved SCI. How is it regulated in other countries?
2. Legal standing:
Legal standing of the owner of the neighbouring property?
Local government? In which circumstances?
3. “national security considerations” how is this aspect taken into account in other countries concerning Natura 2000 sites
4. Is there further possibility for an appeal after the decision of the Supreme Court ?
5. Connection between Natura 2000 and EIA legislation