LITHUANIAN CASE
Applicant: Association Kazokiskes Community, representing the public interest
Defendant: Vilnius regional department for environmental protection
The case concerns a proposed landfill with a projected total capacity of 6.8 million tons of waste over a period of 20 years, which is meant to serve as a regional landfill serving the waste management needs of the Vilnius region. The landfill is located in the immediate proximity of the residential area (with some of the installations within 500 m of residential houses) in the village of Kazokiskes in the municipality of Elektrenai near Vilnius.
The national legal framework for approving a landfill consists of several consecutive procedures, including:
(a) A waste management plan;
(b) A detailed plan;
(c) An EIA (Environmental impact assessment) decision;
(d) Approval of the technical project and construction permit;
(e) An IPPC (Integrated Pollution Prevention and Control) permit.
Association Kazokiskes Community, representing the public interest, alleged that nearly all of them were carried out improperly. Several cases were brought to the administrative courts.
One of the last cases was concerning the IPPC permit for the above mentioned landfill (decision of the Supreme Administrative Court of Lithuania 15-01-2009 in the administrative case No. A-822-50-09).

Facts of the case:
The application for the IPPC permit was accepted by Vilnius regional department for environmental protection on 13 June, 2007.
Association Kazokiskes Community was informed about the acceptance of the application on 18 June, 2007. The information about it was also published in the local newspaper, internet (15 June, 2007).
Association Kazokiskes Community expressed an interest in access to documents concerning the application for the IPPC permit on 20 June, 2007. The requested documents were submitted to the Association on 23 June, 2007.
On 28 June, 2007 Association Kazokiskes Community submitted a request to extend the deadline for comments and proposals up to three months, because 14 days, envisaged in the national legislation, were not enough in order to investigate all the documents and prepare the motivated proposals.
The deadline was not extended, because the possibility of such extension was not regulated by national laws.
It was considered, that the public concerned did not submit any motivated proposals or comments.
The IPPC permit was issued on 10 September, 2007. (Information about the IPPC permit was published on 19-21 September, 2007) .

Alongside with other arguments Association Kazokiskes Community in this case alleged that:
the public concerned had no real access to the application for the IPPC permit and could not submit motivated proposals and comments, i. e. its right to information and participation in the decision making process, envisaged by the Aarhus convention and national legislation, was violated.
Party concerned maintained that:

 the public concerned had all possibilities to participate and challenge the IPPC permit decision;

 the IPPC permit was issued in compliance with all legal requirements.

The Administrative Court of Vilnius County in its decision rejected the complaint and considered, that:

 the procedure of issuance of the IPPC permit was carried out in compliance with national legislation;

 the deadline of 14 days for comments and proposals could not be extended, because the possibility of such extension was not foreseen in national legislation.

Legal Framework
a. EC Law:
COUNCIL DIRECTIVE 96/61/EC concerning integrated pollution prevention and control;
CONVENTION on access to information, public participation in decision-making and access to
Justice in environmental matters (Aarhus convention, 1998).

b. National Law:
Lithuanian Law on Administrative Proceedings;

Decree of the Minister of Environment No. 80/2002 concerning the issuance, renewal and cancellation of IPPC permits.
Comments:
What should be the decision of the Supreme Administrative Court of Lithuania?
Discussion on the right of Association Kazokiskes Community to represent the public interest in court could also be raised.

[The question of the right of Association Kazokiskes Community to represent the public interest in court was raised in one of the previous cases. It was claimed that:

 Association Kazokiskes Community is representing only the private interests of several inhabitants of the Kazokiskiu village, and

 the public interest of 850 100 people, living in the Vilnius district, is to have a suitable waste management system.]

Relevant legislation [1]

Constitution of the Republic of Lithuania
Article 30
The person whose constitutional rights or freedoms are violated shall have the right to apply to court.
Compensation for material and moral damage inflicted upon a person shall be established by law.

Article 53
The State shall take care of people’s health and shall guarantee medical aid and services for the human being in the event of sickness. The procedure for providing medical aid to citizens free of charge at State medical establishments shall be established by law.
The State shall promote physical culture of society and shall support sport.
The State and each person must protect the environment from harmful influences.

Article 54
The State shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase.
The destruction of land and the underground, the pollution of water and air, radioactive impact on the environment as well as depletion of wildlife and plants shall be prohibited by law.

Lithuanian Law on Administrative Proceedings
Article 5. Right to Apply to the Court for Remedy
1. Every interested entity shall be entitled to apply to the court, in the manner prescribed by law, for the protection of his infringed or contested right or interest protected under law.
2. Waiver of the right to apply to the court shall be inadmissible.
3. The court shall accept an administrative case for consideration:
1) on the complaint or petition of the person or his representative, applying for the protection of his right or interest protected under law;
2) on the petition for the protection of the rights of other persons lodged by the institutions or agencies specified by laws or by the employees thereof;
3) on the petition for the protection of state or other public interests lodged in the cases established by law by the prosecutor, entities of administration, state control officers, other state institutions, agencies, organisations or natural persons;
4) on the petition for the protection of the rights of municipalities in the sphere of public administration; lodged by municipal institutions, agencies, services
5) in the cases established by law, on the petition for the resolution of administrative disputes lodged by entities of public administration.
Article 56. Procedural Rights of the Prosecutor, Entities of Administration, State Institutions, Agencies, Organisations, Services and Natural Persons Protecting the Rights of the State, Municipality and Persons
1. In the cases established by law the prosecutor, the entities of administration, State institutions, agencies, organisations, services, or natural persons may apply to the court with a petition for the protection of the public interest or protection of the rights of the state, municipality and persons as well as the interests protected by laws.
2. The entities specified in paragraph 1 of this Article shall have the procedural rights and duties of the party to the proceedings. Withdrawal by the above-stated persons of the petition filed by them shall not deprive the person, for the protection of whose rights and interests the petition was filed, of the right to demand that the court should hear the case on the merits. The court may not accept the withdrawal of the petition filed by the entities specified in paragraph 1 of this Article, if this is contrary to law or public interest or infringes anyone’s rights or interests protected by law.
Article 79. Impartiality of the Hearing of the Case in the Court
1. When hearing the case, the court of the first instance must examine the evidence in the case; hear the explanations by the parties to the proceedings, the testimony of the witnesses, explanations by the specialists and the opinion of the experts, examine the written evidence and review the physical evidence.

Article 81. Comprehensive and Objective Review of the Circumstances of the Case
When hearing administrative cases the judges must actively participate in the examination of evidence, establishing all the circumstances material for the case and make a comprehensive and objective review of the said circumstances.
Article 136. Scope of Hearing of the Case
1. While hearing the case on appeal, the court shall review the legality and validity of both the contested and uncontested parts of the decision as well as the legality and validity of the decision in respect of the persons who did not file the appeal.
2. The court shall not be bound by the arguments of the appeal and it must review the case in full.
Article 127. Appealing against the Decisions of Regional Administrative Courts
1. The decisions of Regional administrative courts, adopted when hearing the cases in the first instance, may be appealed against to the Supreme Administrative Court of Lithuania within fourteen days from the pronouncement of the decision.
2. In case of failure to observe the set time limit for filing an appeal, the appellant may be granted at his request restoration of the status quo ante for filing the appeal, provided it is recognized that the failure to observe the time limit has been caused by a valid reason.
Article 140. Rights of the Appellate Court
1. Having heard the case, the appellate court shall have the right to:
1) uphold the decision of the court of the first instance and reject the appeal;
2) reverse the decision of the court of the first instance and adopt a new decision ;
3) amend the decision of the court of the first instance;
4) reverse the decision of the court of the first instance fully or in part and refer the case to the court of the first instance for holding a de novo hearing;
5) reverse the decision of the court of the first instance and dismiss the case or leave the appeal unconsidered if the circumstances specified in Articles 101 and 103 of this Law have been established.
2. A court decision shall be adopted in the case provided for in this Article paragraph 1 subparagraph 2, while in the cases provided for in subparagraphs 1, 3, 4 and 5 the court shall make a motivated order.
Article 141. The Right of the Appellate Court to Reverse the Challenged Court Decision and Refer the Case to the Court of the First Instance for de novo Hearing or for Adopting a New Decision
1. Having reversed the challenged court decision , the appellate court shall have the right to refer the case to the court of the first instance for de novo hearing if:
1) the decision is reversed for reasons specified in Article 142 of this Law;
2) a large amount of new evidence has to be collected in order to disclose the circumstances of the case;
3) not all claims have been investigated by the court of the first instance.
2. In the cases specified in paragraph 1 of this Article the appellate court shall adopt a new decision if de novo hearing of the case at the court of the first instance may delay the adopting of the final decision .
Article 142. Reversal or Amendment of the Decision in the Event of Violation of or an Error in Applying the Procedural Legal Norms
1. Violation of the procedural legal norms or an error in applying the norms shall constitute the grounds for reversing the decision only when the violation could have been the cause of erroneous disposition of the case.
2. The following cases shall be recognized as furnishing grounds for declaring the decision void:
1) where the case has been heard by a court of unlawful composition or in violation of the rules according to which cases are subject to functional jurisdiction, subject matter jurisdiction or exclusively territorial jurisdiction of the appropriate courts;
2) the court of the first instance has made a determination as regards the rights and duties of the persons not included among the participants in the proceedings;
3) the decision of the court of the first instance has not been signed by the judge or if the decision has been signed not by the judge who is named in the decision ;
4) the decision of the court of the first instance has been adopted not by the judge who heard the case;
5) the decision , order is unmotivated;
6) the minutes of the court hearing have not been attached to the case file, except in cases where the proceedings have been in writing;
7) the court of the first instance has heard the case in the absence of at least one of the participants in the proceedings who has not been duly notified of the time and venue of the court hearing and the said person has used the circumstance as the grounds for his appeal;
8) the rules of language in the proceedings have been grossly violated during the hearing of the case by the court of the first instance and the person whose rights have been infringed has referred to the above-cited circumstance as ground for his appeal.
Article 143. Reversal or Modification of the Decision after the Violation of Substantive Law
Violation of norms of substantive law shall be ground for reversing or modifying the decision of the court of the first instance in the event of incorrect petition or construction of the norms by the court of the first instance.

Decree of the Minister of Environment No. 80/2002 concerning the issuance, renewal and cancellation of IPPC permits:

Public awareness and participation of public concerned in the permit issuance and renewal process must be ensured.

Public awareness and participation of public concerned in the permit issuance must be organised by the Regional department for environmental protection.

Regional department for environmental protection must inform society about the acceptance of application for the IPPC permit in the period of not more than 10 days, using available information dissemination techniques (newspapers, electronic means, etc.)

Public concerned has a right to submit their motivated proposals and comments during 14 days after the publication of the information on the application for the IPPC permit.

COUNCIL DIRECTIVE 96/61/EC concerning integrated pollution prevention and control
(amended by Directive 2003/87/EC )

Article 15
Access to information and public participation in the permit procedure
1. Member States shall ensure that the public concerned are given early and effective opportunities to participate in the procedure for:
— issuing a permit for new installations,
— issuing a permit for any substantial change in the operation of an installation,
— updating of a permit or permit conditions for an installation in accordance with Article 13, paragraph 2, first indent.
The procedure set out in Annex V shall apply for the purposes of such participation.
2. The results of monitoring of releases as required under the permit conditions referred to in Article 9 and held by the competent authority must be made available to the public.
3. -
4. Paragraphs 1, 2 and 3 shall apply subject to the restrictions laid down in Article 3 (2) and (3) of Directive 90/313/EEC.
5. When a decision has been taken, the competent authority shall inform the public in accordance with the appropriate procedures and shall make available to the public the following information:
(a) the content of the decision, including a copy of the permit and of any conditions and any subsequent updates; and
(b) having examined the concerns and opinions expressed by the public concerned, the reasons and considerations on which the decision is based, including information on the public participation process.

Article 15a
Access to justice
Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any nongovernmental organisation meeting the requirements referred to in Article 2(14) shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.
The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.

ANNEX V
Public participation in decision-making
1. The public shall be informed (by public notices or other appropriate means such as electronic media where available) of the following matters early in the procedure for the taking of a decision or, at the latest, as soon as the information can reasonably be provided:
(a) the application for a permit or, as the case may be, the proposal for the updating of a permit or of permit conditions in accordance with Article 15(1), including the description of the elements listed in Article 6(1);
(b) where applicable, the fact that a decision is subject to a national or transboundary environmental impact assessment or to consultations between Member States in accordance with Article 17;
(c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;
(d) the nature of possible decisions or, where there is one, the draft decision;
(e) where applicable, the details relating to a proposal for the updating of a permit or of permit conditions;
(f) an indication of the times and places where, or means by which, the relevant information will be made available;
(g) details of the arrangements for public participation and consultation made pursuant to point 5.
2. Member States shall ensure that, within appropriate timeframes, the following is made available to the public concerned:
(a) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned were informed in accordance with point 1;
(b) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information, information other than that referred to in point 1 which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with point 1.
3. The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken.
4. The results of the consultations held pursuant to this Annex must be taken into due account in the taking of a decision.
5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States. Reasonable timeframes for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Annex.

CONVENTION on access to information, public participation in decision-making and access to justice in environmental matters

Article 2
DEFINITIONS
For the purposes of this Convention,
4. “The public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;
5. “The public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

Article 6
PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES
1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and
(c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.
2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure, including, as and when this information can be provided:
(i) The commencement of the procedure;
(ii) The opportunities for the public to participate;
(iii) The time and venue of any envisaged public hearing;
(iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;
(v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and
(vi) An indication of what environmental information relevant to the proposed activity is available; and
(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.
3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their application before applying for a permit.
6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that
is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:
(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the environment;
(c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;
(d) A non-technical summary of the above;
(e) An outline of the main alternatives studied by the applicant; and
(f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.
7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.
8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.
9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.
10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.
11. 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.

Article 9
ACCESS TO JUSTICE
1.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. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law. Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.
2.Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest
or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any
non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
3.In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4.In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair,equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5.In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on Access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.