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WG Environmental Law > Meetings > Brussels, Meeting 14 March 2008 with the European Commission > Fundamentals on access to administrative justice in environmental matters according to Greek Law

Fundamentals on access to administrative justice in environmental matters according to Greek Law

1) Introductory Remarks

a) According to Greek legislation, (articles 94 and 95 of the current Constitution and article 14, par. 8 of Presidential Decree 18/89 “Codification of provisions of law for the Council of State”), a special section of the Council of State, the 5th Section, is competent to judge, in the first and last instance, environmental disputes, arising from administrative acts (individual or regulatory) or omissions. These disputes are introduced before the Council through the legal mean of “writ of annulment” (annulment disputes) with which the Council judges only the legal aspects of the case and not the facts. The Council’s decision, by which the relevant writ of annulment is granted or rejected is not appealed through a legal remedy (irrevocable decision).
b) The ordinary administrative courts (administrative courts of the first instance and the administrative courts of appeal), are competent to judge only specific disputes arising from administrative fines (individual executive acts), imposed because of violations to environmental legislation, which are introduced before them, through the legal mean of recourse. These courts are mostly empowered to judge on the facts and on the law of the case (substantial administrative disputes). The decisions of the first instance administrative court are subject to an appeal before the administrative court of appeal and eventually, to a cassation before the Council of State.

2) The development of legislation on access of NGO’s to administrative justice in environmental matters
a) According to existing legal provisions, (article 47 of presidential decree 18/1989), application for annulment is generally admissible if a legal interest of the petitioner (natural or legal person) is affected. Legal interest is the condition for natural or legal persons to be granted legal standing in administrative judicial proceedings and its notion (material or moral benefit from the annulment of the administrative act or omission being appealed) is wider than the notion of a right.
b) Legal interest has been interpreted by the Council of State to be broader in environmental disputes than in other matters. Therefore by standard jurisprudence of the Council, non-governmental organizations with legal entity,have legal interest in exercising a writ of annulment with regard to environmental disputes, provided that, environmental protection is included in the scope of their charter, not necessarily as the primary scope but as the secondary one.
c) Legal interest, however, is also recognized by jurisprudence, for non-governmental organizations that have not acquired legal entity, provided that, these are recognized by public order as owners of rights and obligations in a defined circle of relations or activities, upon which, the environmental issue, comprising the object of the act being appealed, falls.
d) The Aarhus Convention was ratified by Greece in December 2005 by virtue of Law 3422/2005 and consequently, in accordance with article 28, par. 1 of the Constitution, forms an integral part of the national legislation, having legal force superior to national law, but inferior to the Constitution. Moreover, Directive 2003/35/EC was already incorporated into domestic law, initially through Joint Ministerial Decision 37111/2021/2003 and upon ratification of the Aarhus Convention, by virtue of Joint Ministerial Decision 9269/470/2007. By virtue of the latter, non-governmental organizations that “promote protection of the environment” are granted the right to appeal against acts or omissions of Administration that are related to matters of awareness and their participation during the process for approving environmental terms of specific projects and activities, both within the context of administrative control, by exercising administrative recourses provided for but also within the context of judicial protection by exercising (i) an action for damages before the competent administrative court in accordance with the provisions on civil liability of the State and (ii) filing a writ of annulment before the Council of State.
e) After ratification of the Aarhus Convention, the issue arises, as to whether, the practice of issuing permits to perform works or activities, by the very legislator, in lieu of the competent administrative authorities, is compatible with said convention. This is so, since the parliamentary procedure of passing laws, does not provide the possibility of real participation, of the public, in the evaluation of relevant studies, regardless of the further problem, that, in this way, access to justice is hindered or, in any event, is encumbered for the challenging the legality of the respective plans. Thus, this matter, which has concerned the Council of State with regard to the Constitution and Community law (C of S 1567 - 68/2005,) is therefore placed on a new legal basis.

3) The Judicial Procedure – Judicial control
a) As to admissibility of the writ of annulment, requirements are inter alia a deposit bond and the appearance of a lawyer (articles 26, 27 and 32 of P. D. 18/89). The defeated litigant is sentenced by ruling to disburse the court costs of the litigant that won. The court may, by examining the circumstances, exempt the defeated litigant wholly or partially from paying the court costs.
b) The deadline and the londing of the writ of annulment do not , automatically, suspend the execution of the appealed administrative act. However, the competent administrative authority, may decide on its own motion, to suspend the execution of the appealed administrative act. At any rate, the applicant may apply to the Council of State for a stay of execution. (article 52 of P.D.18/89).
c) The judicial control of acts or omissions by administration with regards to environmental protection has to do with their formal and substantive legitimacy. Reasons for annulment are: (i) lack of competence of the administrative organ that issued the appealed act, (ii) breach of an essential formality of the procedure for issuing the administrative act, (iii) violation of law and (iv) abuse of authority.

i) The impressive expansion of the legal interest in environmental disputes by the jurisprudence of Council of State, ensures access to administrative justice for the protection of the environment to a very wide circle of persons and non-governmental organizations.
ii) With the ratification of the Aarhus Convention and the incorporation of the respective Directives, the right of individuals and collective organizations, among which are non-governmental organizations, is recognized and safeguarded in domestic law to have access to information and to participate in decision-making procedures regarding environmental matters. Thus, a satisfactory statutory framework is established which specializes and specifies the general right to the environment. However, it will depend on the practice of Greek courts whether the clauses of the Convention will remain in the domain of soft law or whether they will be elevated to binding rules with specific consequences in the event of their being violated.