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Case study : Polish case

The President of Warsaw issued a decision determining the conditions of building and real estate spatial development for the investment consisting in complex rebuilding of the stretch of the street. The investment comprised the building of lighting and modernisation of energetic net and savage system. The President of Warsaw confirmed also a building project and conferred a building permit in the form of administrative decision, what is required by the Polish Construction (Building) Law (the act of 7th July 1994).
A non-governmental organisation, an association dealing with environmental protection, applied to be admitted in the capacity of a participant of this administrative proceeding and appealed against the latter decision.
The Mazovian Voivode, as an administrative review authority, discontinued – in the form of decision – the revising proceeding. In the reasons /reasoning/ of this decision he underlined first of all that the organisation has no status of the party of the proceeding concerning the building permit. The Voivode evoked art. 28 of the Construction Law, which defines the group of subjects, who is entitled to act as the party of this proceeding (it statutes that parties to the proceedings regarding a construction permit are only the applicant and owners or administrators of properties situated in the area affected by the building structure), and which excludes the application of art. 31 of The Administrative Procedure Code (the act of 14th June 1960.). This prescription provides for the participation of social organisations in administrative proceeding, namely according to it:

§ 1 Social organisation, in cases concerning other persons, may demand: initiation of proceedings, admission of these organisations to the proceedings, where this is justified by statutory objectives of the organisation and where the interest of the society so requires.

§ 2 State administration authorities, having found the demand of the social organisation justified, shall initiate the proceeding ex officio or shall admit the organisation thereto. The organisation may appeal against the refusal to initiate the proceedings or to admit to the proceedings.

§ 3 Social organisations may participate in the proceedings with the rights of a party.
The Voivode claimed also that the organisation may not be recognised as a party on the ground of art. 32 and 33 of the Law on the Environmental Protection (the act of Parliament from 27 April 2001). According to art. 53 of this Law the ecological organisation may take part in proceeding concerning a building permit only on the condition that there is the obligation of drawing up a report on an environmental impact of an undertaking. However, investment consisting in a rebuilding of a street with road infrastructure was not mentioned in the regulation of the Council of Ministers from 9 November 2004 regarding defining kinds of undertakings, which may significantly influence on environment and detailed conditionalities connected with qualification the undertaking for preparing the report on the environmental impact.

The organisation lodged the complaint against this decision to the Voivodship Administrative Court in Warsaw. One of the main charges of the complaint was the violation of art. 6 and 9 of the Aarhus Convention. The complainant pleads that the specific provision of Polish national law, which limit a circle of parties only to some subjects, must be identified as contrary to the Convention. In addition the complainant expressed the opinion that this regulation confers on the non-governmental organisation the right to be participant of each proceeding, which refers the environment. The organisation paid attention on the art. 91 of the Constitution of the Republic of Poland. According to this prescription:

1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.

3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.

Referring to the complaint the Administrative Court at the beginning reminded that the range of its control was limited to the review of the decision of the Mazovian Voivode and was performed from the point of view of conformity with law (art. 1 of the act of 25th July – Law on the system of administrative courts).
Afterwards the court also agreed with the opinion that in the light of Polish law the organisation was banned of the status of the party of the proceeding in the case. However, the court did not comply with the allegation that the regulation of the Aarhus Convention conferred this right on organisation, unindependently of Polish law. Namely the convention cannot be regarded as an agreement (international treaty), which may be applied directly (that is without the necessity of amendments in the legal system of the state, which ratified this convention) on the base of art. 91 of the Constitution, although, naturally, it must be regarded as a part of Polish law. The court paid attention to the way the prescriptions of the Convention were formulated, evoking art. 1, art. 3 point 1 and 4, art. 6 point 11 and art. 9 of the Convention. The court pointed out few expressions, which occur in these prescriptions:

“each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention” (art. 1),

“each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention” (art. 3 point 1),

“each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection and ensure that its national legal system is consistent with this obligation.” (art. 3 point 4)

each Party shall, within the framework of its national law, apply, to the extent feasible and appropriate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment” (art. 6 point 11)

“each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law” (art. 9 point 1).
In a result the court came to the conclusion that the regulation of the Convention cannot be applied directly, but only obliged the authority of the state, which ratified this agreement, to necessary action and to legislating the law, realising the norms provided in the Convention. To recapitulate it, the Convention is not a legal basis for recognition (declaration) the organisation as a party of proceeding.

* The case was solved by Voivod Administrative Court in Warsaw (Warszawa) in verdict of 10th April 2006 (case number VII Sa/Wa 16/2006).