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Home > Environmental law > Vilnius 22 September 2011 : Interim relief in environmental (...) > Workshop in Vilnius (Lithuania) on 22 September 2011 : Summary

8 March 2012
Werner Heermann

Workshop in Vilnius (Lithuania) on 22 September 2011 : Summary

Foreword

The 4th annual workshop of the AEAJ working group was held back to back with an international conference next day on “Administrative Courts in the European Administrative System” [1]. This conference was organized by the University of Vilnius, Faculty of Law and the Supreme Administrative Court of Lithuania in co-operation with the Division of Administrative Courts of the Lithuanian Association of Judges and AEAJ.

The workshop was dedicated to interim relief in cases with an environmental background (see appendix 1). The participants (all in all 37) came from the following countries: Austria (A), Estonia (EST), Finland (FIN), France (F), Germany (D), Italy (I), Lithuania (LT), Slovenia (SLO), Sweden (S), United Kingdom (GB). Furthermore the European Commission and the European Law Academy each sent a participant. One guest came from the Osaka University (Japan). A simultaneous translation English – Lithuanian was provided. From Lithuania 16 judges and two academics attended the workshop. The Bulgarian (BG) members of the working group were not able to attend the meeting but they had sent answers to the first case study which are considered in this summary too.

The workshop started with two short lectures and continued with the discussion of case studies (see the agenda, appendix 1). The cases concerned the suspension of permits for undertakings which are likely to have an impact on the environment. The solution of the first case (see appendix 2) was prepared in writing beforehand and presented to the plenary by a speaker from each represented country. The second case (see appendix 3) was discussed spontaneously in subgroups. Each group submitted the outcome of the cases later on to the plenary.

Discussing cases which happened in one jurisdiction presents the problem of establishing a common basis for the questions to be answered. Depending on the respective national administrative or judicial system certain questions can not arise at all in some countries. For example, unlike the German law system from which the first case was prepared; in some countries a previous planning act, issued in a separate procedure is a precondition for such a project, or there is a requirement for subsequent permits firstly for the construction secondly for the operation. Apart from these difficulties there is always a certain risk of misunderstanding because of translation problems and different content of terms. Despite of these problems the discussion of case studies in small groups proved again as the best method of interactive learning and exchange of experience.

The following summary of the outcome will focus on the guidelines for interim relief neglecting the problems of general procedural law and substantial law.

The findings

1. Parties

The parties are generally the same as in the main proceedings. These are the appellants, the public authority issuing the permit and the operator.

In Sweden the consent to undertakings of major importance like a coal power plant is issued by the Land and Environment Court . If its decision is appealed against, the counterpart is the operator. In Sweden the municipality affected is also regarded as a party.

In France a so called amicus curiae” (friend of the court") may take part in the proceedings. An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court [2].

The initiation of an interim relief procedure

In some countries only (EST, LT, S) interim measures may be initiated ex officio by the court. In these countries interim measures are incorporated to the main proceedings.
In Sweden the appeal court can order an interim relief, if it finds that the verdict is obviously wrong and the operator has an order of immediate execution.

Suspensive effect by virtue of law or special order

In some countries only (A, BG, D, FIN, S) the action has suspensive effect in the presented cases. In the other countries a procedural situation like in the first (German) case may not happen. In these countries it was up to the appellant to apply for an order of suspensive effect and the court only is empowered to deliver such an order. In Germany many legal exceptions from the principle of automatic suspensive effect of an action are provided. Under the German law the public authority may order the suspension too and thus stop the project temporarily.

In the first mentioned countries the operator may apply for the order of immediate execution which means the right to start the project before the permit is final (incontestable). The decision is conferred both to the administrative authority and the court.

Concerning the outcome of the review a substantial difference between the two designed systems can not be stated under the German and Finnish law. Regardless whether the operator applies for immediate execution or the appellant applies for suspension, the criteria for the court‘s decision are deemed to be equal. Under the Bulgarian law strict legal conditions exist for the order of immediate execution, but such a decision delivered by the public authority may be appealed solely on the basis of new circumstances, otherwise the administrative decision is binding for the court.

4. Time limits

a) Submission of the request for interim relief

In some countries only (BG, FIN, F) a time limit for provisional legal protection is provided.

b) Decision of the court

In Lithuania the decision is to render within one day after the receipt of the request for interim measures [3] irrespective of the complexity of the case and without the possibility of prolongation.
The Slovenian law stipulates a deadline of 7 days for the suspension of the administrative decision.
In Finland time limit applies to applications for execution despite appeals, not to applications for a suspensive order.

5. Characteristics of the procedure

The questions to be answered by the participating countries did not address the course of the interim proceedings in detail. Even if the proceedings are governed by ex officio investigation it is up to the claimant to present facts and arguments in order to enable the court to get an overview within a short time. In Finland the operator is generally heard, but if the matter is compellingly urgent, it is possible to issue a suspensive order before hearings and then reconsider the interim measures at a later stage, if there is need.

Legal criteria for the decision

Admissibility

Generally the same rules for admissibility are applicable like in the main proceedings. But in the northern European countries (S, FIN) an exception is made for legal standing. In Finland it is possible, although not common for the court to decide on interim rulings before standing is definitively resolved. In Sweden the courts find a pragmatic way when a permit is challenged by different plaintiffs and when in some cases standing is clear in others not. Then the court needs not to conduct a thorough examination of standing in unclear cases.

In the coal power plant case legal standing for the non governmental association (NGO) is granted in all countries. Legal standing of neighbours depends on a case by case examination taking in account the distance to the plant and the extent of pollution.

Guidelines for the court‘s decision

In all countries the decision lies in the discretion of the court which has to weigh competing interests. The main criterion is whether there is the threat of creating irreversible facts, which would make a final success in the main proceedings meaningless. When a permit for a major project is challenged, the strict observing of this principle should normally lead to suspension. In a few countries only (A, BG, FIN) the probable outcome of the action in the main proceedings is of no relevance. According to the settled case law of the European Court of Justice [4] (ECJ) a prima facie analysis on facts and law is carried out. But this case law applies to proceedings on European level only and has no binding effect for the proceedings on national level. Under the German doctrine the court is all the more obliged to an in depth examination on the merits since the ruling substitutes more or less the decision in the main proceedings. In such a situation the procedure lasts longer and gets similar to shortened main proceedings as provided in some foreign legal systems. In this context the late lodging of the request for interim relief must to be taken into consideration, if a legal time limit does not exist [5]. The appellant is obliged to act as soon as possible in order to avoid completed facts. In Italy it is provided by law that the court can grant interim relief only in case of serious and irreparable damage (periculum in mora) and if it is foreseen that the final judgement will be favourable for the claimant (fumus boni iuris).

Scope of judicial review

The scope of judicial review in the main proceedings has an influence on the decision in the interim procedure if an (prima facie) analysis of law is to carry out here.

Legal standing must not lead automatically to an overall examination under all legal aspects. In continental Europe two different systems exist. In the French system, administrative jurisdiction is an instrument to ensure the legality of any administrative measure. The applicant induces a kind of self control by an independent body. As a consequence the scope of judicial review is not limited. The other system, prevailing in Austria and Germany, has a very different base namely the protection of the citizens’ rights. The applicant must claim the infringement of his/her rights relating to a legal provision intending the individual’s protection (Schutznormtheorie/protective norm doctrine). Of course in the latter system exceptions are recognized, but they must be provided by law. The inquiry revealed that except in Austria, Germany and Slovenia the neighbour can invoke the infringement of nature protection law.

The German Law on supplementary provisions governing actions in environmental matters under Directive 2003/35/EC (Umwelt-Rechtsbehelfsgesetz) limited even the review of a NGO action according to the protective norm doctrine. But this rule was overturned by the ECJ’s Trianel judgement [6] . Due to the direct effect of Article 10(a) Directive 85/337/EEC as amended by Directive 2003/35/EC, the judicial review is not limited to the compliance with provisions intended to protect the individual [7].

In the German case study the neighbour and the NGO complained the lack of a land use plan. The question is, if land use planning falls under the scope of environmental law. In this field no prevailing EU law exists. Under the German doctrine the NGO can not invoke the infringement of general city planning and land use law. In Italy the courts made an exception when a municipal development plan may have direct negative effect on environmental values (Council of State, sect.IV, 2004 November 9, No 7246).

The kind of decision

There is a range of possible decisions apart from granting suspension or rejecting the request.

In some countries (BG, D, FIN) the court may order the deposit of a security as a condition for immediate enforcement. In Bulgaria and Germany such an order happens very rarely. In Finland a security deposit is generally mandatory. It is required by the authority issuing a permit for enforcement, while the court is competent to review the authorities order including the security. The security is in favour of the public authority not of the operator. Starting a project before the permit is final (incontestable) is always the risk for the operator. The security shall cover the costs of appropriate administrative measures if the permit is finally annulled.

The rescission of implementation is partly provided by law (BG,D). In Germany the courts very rarely use this authorisation.

In a few countries only (FIN, F,S) the courts are authorized to addition of further conditions.

The suspension by the court is principally retroactive under the German and Italian law.

Liability

The liability of the plaintiff for the damage caused by delay if suspension was granted but the appeal is rejected in the main proceedings is a serious problem. The most legal systems do not provide such a responsibility of the appellant. But in Lithuania a civil claim for compensation of the damage is possible in such a case.

In the United Kingdom the requirement that an applicant give a cross-undertaking [8] in damages when seeking an interim injunction is an area of key concern at the moment. The civil procedure rules (CPR) provides that where the court faces an application for interim relief there is an expectation that there will be a cross-undertaking as to damages unless the judge decides otherwise; i.e. it is an active step of judicial discretion not to require the cross undertaking. The issue has also been raised by the European Commission, which argued that the UK had failed to transpose fully and apply correctly Directive 2003/35/EC partly due to the requirement on applicants to provide a cross-undertaking on damages when seeking interim relief. In addition, following a recent complaint the Aarhus Compliance Committee adopted its findings on 18 October 2010 [9].
The Committee recommended that the UK review its system for allocating costs in environmental cases within the scope of the Convention and undertake practical and legislative measures to overcome the problems identified. The British Government consulted on steps it should take [10].

Conclusion

In environmental matters interim relief is both a tool for an effective enforcement of substantial law and an obstacle for investments. Two different systems of interim procedure can be found in the national law of member states. One the one hand an approximate review as a preliminary step in the main proceedings whether it is on request or ex officio and within very short time frames partly, on the other hand a separate procedure sometimes anticipating the result of the main proceedings and characterized by a scrutiny, the depth of which depends on the importance and complexity of the case. In the latter system the review includes as a consequence a prognosis of the outcome in the main proceedings. In simple cases the first mentioned system may be satisfying. In cases where a permit for a greater project is challenged the latter system seems better for finding a balanced solution. A discretionary power of the court is provided generally. Additional rulings like imposing conditions or deposit of a security are provided in some domestic law but do not play a significant part. Liability of the appellant if the court decides adversely in the main proceedings affects the right to effective legal protection as set out in Article 19 TEU and Article 47 Charter of Fundamental Rights of the EU.

The workshop revealed again significant differences as to legal standing and scope of judicial review when individuals challenge a permit which is likely to have an impact on the environment. This may entail a different level of environment protection by the courts and different competitive conditions for the operators.

Appendix 1

Workshop Agenda

Venue: Vilnius University (Universiteto g. 3, Vilnius) Senato sale

Languages: English/Lithuanian (simultaneous interpretation)

9:00 – 9:30 Welcome address, presentation of the participants

9:30 – 10.15 Interim measures and technical expertise in EU
environmental case-law
by Marc CLEMENT (EU Commission, DG Environment)

10:15 – 10:30 The influence of EU law on the national interim relief procedure
by Werner HEERMANN

10.30 – 11:00 Coffee break

11:00 – 12:30 Case study, „Extension of a coal power plant“
(drafted by Klaus LERNHART)
Each country presents the premade solution under its domestic law including an overview on the national rules on interim relief. Finally explanation of the German court‘s judgement.

12.30 – 13.30 Lunch

13.30 – 15.00 Resumption case study „Extension of a coal power plant“

15.00 – 15:30 Coffee break
15:30 — 17:30 Case study “Spreading of manure”

(drafted by Anders BENGTSSON)

Discussion on the solution in sub groups. Afterwards presentation of the outcome in the plenary by each group. Finally explanation of the Swedish court’s judgement.

17:30 – 18:30 Visit of the Old Vilnius University, Library, Observatory

19:30 Common dinner

Appendix 2
German case

Extension of a coal power plant

Facts

In the year 2009 the operator (a private company) of a coal-fired power plant situated in a German city alongside the eastern bank of River Rhine applied for a permit with the competent administrative authority (AA) to extend the plant by a new unit (Block 6), with calculated costs of 1200 Mio EURO. The plant started in 1925 with one unit and developed since then by adding 4 more units until 1996. Block 6 shall with a total rated thermal input of 2100 Megawatt (MW) produce 900 MW electrical power and 500 MW for district heat supply, thus almost doubling the productive capacity of the older units; two of these are to be shut down at the time Block 6 will be put into operation (planned for July 2013). Coal from countries all over the world, with varying substance of content (particularly different fractions of fine dust), will as before be delivered by ships unloaded as they arrive, day and night.

The space needed for Block 6 including coal storage amounts to about 17 hectares (170.000 square meters), forming a stretched rectangle (1360 x 125 m) between the old units to the north, industrial areas to the south, a commercial area to the east, and River Rhine to the west. In the past it was partly used for commercial purposes and as coal deposit. In the neighbourhood there exist housing areas at a minimum distance of 300 meters on both sides of the river, and beyond the river Natura 2000 areas and bird protection areas.

The AA performed an environmental impact assessment (EIA) and public participation, during which an accredited environmental association (NGO) and a neighbour living on the opposite bank of the river made certain objections against the project. In the year 2010 the operator received a permit under the Federal Immission Control Law (FICL) combined with numerous additional conditions aiming at reduction of environmental impacts of Block 6. However there was no land-use plan established relating to the area of Block 6.

The NGO and the neighbour challenged the permit by lodging actions with the competent administrative court. Hereafter the operator applied with the AA for an order of immediate execution of the permit which the AA at first refused to release. Then the operator addressed the administrative court for help. After a legal hint of the court the AA rendered the order of immediate execution of the permit. Thereupon the operator started to carry out the project.

Several months after the NGO and the neighbour noticed beginning works on the building site, they challenged also the order of immediate execution by lodging additional actions with the competent administrative court for interim injunctions, demanding suspension of the permit and rescission of its implementation. They claimed illegality of the order of immediate execution and of the permit, for the following reasons:

- no overriding interest of the public or of the operator in immediate execution of the permit

- lack of a land use-plan which is necessary because of the sheer size of the site and because administrative planning alone facilitates a balanced choice between different combustible materials

- disregard of climate protection requirements by choosing coal-fired unit instead of gas-fired, in view of 3 Mio tons Carbon dioxide (CO2) emission per year emitted by coal-fired Block 6

- insufficiency of considering only the probable air pollution and noise impact of the new unit (Block 6) instead of the whole plant including Block 6

- Carbon monoxide emissions will exceed the level of guidelines (BAT – Best available techniques, and B.R.E.F. – BAT Reference documents) of Directive 2010/75/EU (in force since 06.01.2011, to be transposed by member states until 07.01.2013)


- insufficient investigation and public participation as to the safety of the steam boiler, referring to recent press reports (appeared after the date of the permit) on detection of fault in the high tech steel (“T 24”) designed for Block 6 (cracks along the welded junctions of different steel components)

- Several conditions added to the permit are unlikely if not impossible to be complied with, like noise level not to exceed 37 dB(A), and content of fine dust in South African coal not to exceed a certain percentage

The AA argues, assisted by the operator:

- urgent need for Block 6 with regard to the expected power supply gap after closing down several nuclear power stations

- binding effect of the court’s legal hint to the AA for order of immediate execution of the permit

- abuse of procedural rights by lodging the actions for interim injunctions months after the start of building activities

- no legal standing of the NGO at least as regards the non-establishment of a land-use plan; insofar no competence of the EU because of national sovereignty as to procedural rules of administration

- no legal standing of the neighbour as far as no subjective rights are concerned, like in nature protection law

- NGO and neighbour are precluded with all objections not submitted during public participation procedure, particularly as to fallout of fine dust and radioactivity, and to the safety of the steam boiler

- only the additional pollution caused by Block 6 has to be calculated, not the pre-pollution of the older units which remains unchanged by operating of Block 6, apart from reduction of total environmental impacts of the older units by closing down 2 of them after start of operation of Block 6


Relevant
German legislation in brief:

I. Immission control law

- Art. 5 and 6 FICL state a direct right to a permit for erecting and operating technical facilities requiring a license, roughly if the following conditions are cumulatively fulfilled:

1. adverse environmental impacts and other hazards, significant disadvantages and significant nuisances to the general public and the neighbourhood cannot be caused;
2. precautions against harmful environmental impacts and other hazards, significant disadvantages and significant nuisances, in particular by state of the art measures, are taken;
3. requirements of regulations for emission control are met,
4. other provisions of public law and requirements of occupational safety are not opposed to building and operating of the project.

- The permit principally comprises all other legally necessary licences for building and operating (Art. 13 FICL, “concentrating effect”), e.g. a building permit.

- Objections against a project under FICL have to be submitted to the AA within 1 month and 2 weeks after public announcement of the project, otherwise they are precluded, also in a subsequent lawsuit (Art. 10 Para 3 FICL, Art. 2 Para 3 Environmental Legal Remedies Act)

II. Land-use law:

According to the German Federal Building Code (FBC) the municipalities have to establish land-use plans as soon and as far as it is necessary for urban development and order; there is no subjective right to the establishment of such plans (Art. 1 Para 3). If land-use plans are established, all relevant public and private aspects including environmental impacts have to be considered and weighed for the final decision on the contents of the plan (Art. 1 Para 7).

In case there is no land-use plan, a project situated within coherently built-up districts has to be permitted if with regard to type and degree of the land-use the project fits into the character of the neighbourhood and the infrastructural development is secured (Art. 34 Para 1 FBC).

QUESTIONS:

What is the solution of your domestic law (in conformity with applicable EU law) as to the actions for interim relief, in particular with regard to the following questions:

1. Who are the parties in the proceedings for interim injunction (mandatory or at discretion of the court)?

2. Did the actions of the NGO and the neighbour against the permit initially have suspensive effect?

3. If so: Is there a legal remedy for the operator to reach and a competence of the administrative court to release an order of immediate execution of the permit or to oblige the administrative authority to render such an order?

4. Is the previous legal hint of the court of any relevance within the following proceedings on the actions for interim injunction (binding effect?, suspicion of bias?)?

5. What are the legal criteria for the decision on the action for interim injunction? In particular:

5.1 Weighing of interests of the parties?

- Discretion of the court?

- Relevance of probable outcome of the action in the main proceedings?

- Relevance of late lodging of the actions for interim injunction and of progress in erecting of Block 6?

- Relevance of changing national policy towards energy sources?

5.2 Legal standing of the claimants?

5.2.1 NGO

- independent of rights of third parties?

- restricted to invoking EU environmental law and respective national law dedicated to transpose EU environmental law?

- if so: legal standing from direct application of Aarhus Convention as to purely national environmental law reaching farther than EU environmental law?

- can the NGO invoke the (according to national law possibly given) necessity of a land-use plan?

5.1.2 Neighbour

- including invoking nature protection law?

5.3 Aspects of the merits in main proceedings

- Which factual and legal situation has the court to consider in main proceedings (relevant point of time)?

- Is the Directive 2010/75/EU relevant?

- Are the recently detected technical problems of the steam boiler relevant?

- Are certain objections precluded in lawsuit because they were not submitted in due time during administrative procedure (public participation)? - Is preclusion as such in conformity with EU law, especially with Directive 2003/35/EC (amending Dir. 85/337/EEC, Art. 10a)?

- Necessity of a land-use plan? If so: legal consequences?

- Emission assessment only for Block 6 sufficient?

- Validity of the argument that certain conditions (e.g. concerning noise level and percentage of fine dust in delivered coal) might not be complied with?

5.4 Which decisions can the court take?, e.g.:

- suspension of the permit, rescission of accomplished implementation?

- impose conditions on the parties along with its decision (e.g. additional monitoring duties, measures for further reduction of immissions)?

5.5 Liability of the claimants for damages if they win the actions for interim relief, but finally lose in the main proceedings?

Appendix 3

Swedish case


Spreading of manure

Facts

In March 2008 a company notified the local environmental authority that it planned to conduct milk production; 322 animal units (originally 398 units), in the existing facilities. The operator was also going to build a new cow stable. The facilities were, or were going to be, situated 500 meters from lake Ekasjö, a Natura 2000 area. The nearest neighbors lived 200, 300, 400, 450, 450 and 480 meters from the facilities, but closer to fields where manure would be spread, no one closer to Ekasjö than 1 kilometer.

The description of the Natura 2000 area: Ekasjö has no visible in- or outlets and water supply is based on ground water. The lake is deep (max depth 25-30 m) and very clear (water colour 5 mg PtL -1, secchi depth approx. 10 m). Habitat code 3110 : Oligotrophic waters containing very few minerals of sandy plains.

Briefly about the Swedish rules (regulated in the Environmental Code and in an ordinance under the Code): Prior to establishing, enlarging or other altering of an operation listed in an annex to the ordinance as A or B the operator has to apply for permit in some cases. If the operation is listed as C in the annex a notification procedure is required.

As B- listed are i.a.:
400 animal units – 1 unit defined as i.a.
1 milk cow (includes dry cow)
6 calves (aged one month or older)
3 bovine animals of any other kind(aged six months or older)

As C-listed are i.a.:
Facility for livestock management with more than 100 animal units, 1 unit defined as i.a.:
1 milk cow (includes dry cow)
6 calves (aged one month or older)
3 bovine animals of any other kind (aged six months or older)

In a notification procedure the Environmental Authority has to make its decision within six weeks. If the Authority has not decided within the time limit the operator can start the operation but at his or her own risk. (If it is a permit procedure no such time limit is fixed.) The Authority can prohibit the operation, approve blankly or in form of an order add conditions to its approval. In contrast to conditions connected to a permit, it is in principle no criminal offense to violate these conditions but the authority can combine the order with a penalty sum. The Authority can decide that its decision shall be directly legally binding. In this procedure an environmental impact assessment is not mandatory, as it is in a permit procedure.

In a permit procedure the Authority or the Court also decides in matters related to Natura 2000. In a notification procedure these questions are handled separately by the County Administrative Board.

In this case the local Authority approved of the operation in May 2008. The decision was appealed by the neighbors and reversed by the County Administrative Board because the neighbors had not been informed of the matter. In the meantime the operation started and, according to the plans in the notification, a new cow stable was built. - Another operator (a company) notified its plans to build one stable for pigs (590 sows) 3 kilometers from the cow stable and another stable for 1 500 sows, around 1 500 meters from the cow stable and 500 meters from Ekasjö.

After informing the neighbors, within 500 meters from the facility, and giving them opportunity to give their opinion, the Authority made a new decision in July 2009. The Authority approved again and combined the decision with a number of conditions that had to be met during the operation; i.a. handling and storing of chemicals, size of fertilizer tank, size of areas for spreading manure (own fields or contracted) and fixed distances if spreading near open water or wells. The Authority did not decide that the order should be binding directly - thus binding first when it had gained legal force.

The decision was challenged by a great number of neighbors, first to the County Administrative Board. The board attached a supplementary condition in order to reduce evaporating of ammonium; a special equipment should be used when spreading manure closer than 200 meters to the lake Ekasjö. The permissibility as such was approved.

The neighbors later appealed to the Environmental Court (in March 2010). They claimed that the decision should be quashed and that the decision should be immediately suspended. (The County Administrative Board dismissed that claim on grounds that the decision was not directly enforceable).

The neighbors claimed that
the operation had started without an enforceable permit or consent from the Authority.
the size of the facilities allows that around 400 animal units are kept there and thus require a permit as a B-listed operation.
the place chosen is not suitable because it is located near a Natura 2000 area. The operation needs a special permit under that scheme, there is no EIA and the investigations are not sufficient for such a decision. There is a risk for fallout of nitrogene and the area is vulnerable to eutrophication.
the cumulative effects should be regarded - the operation and the disturbances (smell and fallout of nitrogene) should be considered in relation to those from numerous other existing and planned facilities for animal production in the neighborhood.
the examination does not take this broader view and an environmental impact assessment is needed.

The operator claimed that the neighbors lived at such distances from the facility that their claims should be dismissed. If they should be regarded as having legal standing, the decision should still be upheld.

Questions
Please give an answer to the following questions from the point of view of your domestic law:

1. Who are the parties in such a case?

2. Which grounds can the neighbors invoke for their appeal - the Natura 2000 issues?

3. How free are you to interpret the claims from the parties?

4. Under which circumstances is your Court ready to decide on interim measures in environmental cases?

5. When regarding disturbances from the operation in the specific case, do you relate it to other operations in the area or do you look only at the specific operation as such?

6. Referring to the neighbors: - Does the Court ex officio, or after invocation of the operator, have to make a thorough examination regarding who has standing? Does it make any difference whether some of the appellants obviously have standing and the case shall be scrutinized anyway?

Footnotes

[3 Law on administrative proceedings
§ 71 Measures securing the claim
...
3. The judge or the court shall hear the petition for securing the claim within one day from the receipt thereof, without notifying the respondent and other participants in the proceedings. If such a petition is filed together with the complaint/petition, it shall be heard within one day from the acceptance of the complaint/petition. The court or the judge shall make an order on securing the claim, in which the procedure and manner of the execution thereof shall be indicated.

[4 Se e.g. decision of 24 April 2008, C-76/08R

[5 In the real case, on which the first case study is based, a request for interim relief was not lodged at all and the project was nearly completed, when the Administrative Court of Appeal of Baden-Württemberg rendered its judgment from 20 July 2011 (10 S 2102/09).

[6 From 12 May 2011, C – 115/09

[7 See the judgement in the coal power plant case, footnote 3

[8 A cross-undertaking in damages is an agreement by a claimant requesting an injunction to pay compensation to the party subject to the injunction (in the workshop cases, the developer) if the court subsequently decides that the injunction should not have been given and the party subject to the injunction suffers a quantifiable financial loss as a result of complying with that injunction.

[9 http://www.unece.org/env/pp/compliance/C2008-33/Findings/C33_Findings.pdf
Paragraph 133:
“A particular issue before the Committee are the costs associated with requests for injunctive relief. Under the law of E&W, courts may, and usually do, require claimants to give cross-undertakings in damages. As shown, for example, by the Sullivan Report, this may entail potential liabilities of several thousands, if not several hundreds of thousands of pounds. This leads to the situation where injunctive relief is not pursued, because of the high costs at risk, where the claimant is legitimately pursuing environmental concerns that involve the public interest. Such effects would amount to prohibitively expensive procedures that are not in compliance with article 9, paragraph 4.”