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WG Environmental Law > Meetings > Sevilla 2014 > AEAJ working group on environmental law Workshop on Industrial emissions and the IED-Directive, Seville 2014

AEAJ working group on environmental law Workshop on Industrial emissions and the IED-Directive, Seville 2014

Questionnaire – IED-Directive and some current issues


The IED-Directive is rather new and the practice so far is limited. The purpose of the workshop was to give a more general view of the Directive and its rather complicated system of licenses and supervision. One idea for the questionnaire was to prepare the participants for the workshop by analyzing the different national approaches on the implementation but also to get a view of what is going on in the participants’ home countries. Some issues raised here may be elaborated at future workshops.

In this summary I will focus on some issues of more principal nature that characterizes the different legal systems in the countries represented at the workshop: Germany, Slovenia, Bulgaria, Romania, Belgium, Italy, Sweden, Finland, Lithuania, Spain, Latvia and Estonia. In the attached compilation the answers can be found in extensio.

The task was to give a short description of the most important issues on environmental law that is on the agenda in respective country.

From the answers, it is obvious that in principle every country has a number of pending cases related to EU-law, including the Aarhus Convention; Environmental Impact Assessments, participation in EIA-processes, access to justice, the role of NGOs and Natura 2000.

Cases related to certain kinds of operations seem to be rather numerous in several countries; establishing of wind mills or other energy projects, infrastructure projects and expansion of the mining industry (in the northern countries).

Regarding more structural issues worth mentioning is the reconstruction of the Belgium organization of environmental courts and in Estonia a new Law on General Part of the Environmental Code is the number one issue.

Not very surprisingly, all countries have amended their legislation in order to implement the IED-Directive. The measures however differ regarding on which level the legislation is issued; by the parliament, altering existing legislation or issuing completely new.

In most countries this legislation is completed by more detailed provisions in Governmental ordinances. In some countries, as in Spain and Belgium the federal legislation in this field is completed by regional legislation. Åland, though part of Finland, has its own competence in the field of environmental law and has issued its own legislation but similar to Finland’s.

The procedure for issuing licenses for new operations in the countries is in principle the same as for altering existing. The level that triggers the obligation to have a permit for alteration is described in terms of “if not unimportant”, “substantial” or “notable”. In Romania the procedure starts by the applicant making an on-line application.

Depending on the category of operation the licensing procedure differs in a normal and a simplified procedure as in Lithuania, Germany and Sweden.

An integrated approach, covering in principle all aspects in one procedure at one authority is practiced in Slovenia, Germany and Sweden (authority/court) but in some countries, as in Italy and Latvia, several authorities may be involved depending on the polluting activities. Often separate building permits are required as in Sweden. In Sweden a license under the Environmental Code for windmill parks, takes over the otherwise mandatory requirement for building permit for such projects.

In Germany, Romania, Sweden, Spain and Latvia the license- and the EIA-procedures are integrated into one. In Slovenia, Bulgaria, Belgium, Italy, Finland/Åland, Lithuania these procedures are handled separately.

Regarding the appellant, Germany applies the “protective norm doctrine”, that is the appellant must show individual interest/harm in order to have the right to standing. Most countries have a similar restriction pointing out “interested” or “concerned” persons as in Bulgaria, Sweden Italy and Romania. Only Latvia seems to have actio popularis in these cases, what means that anyone has the right to challenge a permit.

In Sweden an NGO does not have to show individual interest, only the formal criteria pointed out in the Environmental Code are relevant.

In most countries the court may handle all aspects in appealed cases; procedural as in substance. In Belgium the focus is put on legality and formal aspects though.

If neighbors are regarded as concerned, they have the right to have a permit revised; in Germany (“protective norm”), Belgium, Italy, Finland and Romania. In Slovenia in principle the neighbors don’t have such right. In Lithuania and Sweden they may notify the authority and then the authority decides. According to recent Swedish case law, concerned neighbors now are given the right to in Court challenge a decision from an authority not to revise a permit – earlier case law, based on statements in the preparatory works of the Environmental Code, stated the opposite.

In Germany a supervisory authority may decide on stricter requirements than is regulated by the license. In Finland and Sweden this is possible but only in severe situations or when there is an immediate need of measures, otherwise the conditions in the license has to be revised. In Belgium, Italy, Spain and Lithuania there is no opening for the authorities to act otherwise then to first have the license revised.

In all countries the Courts are free to ask questions in order to clarify uncertainties. But the possibility to order investigations in a case are in most countries (Germany, Romany, Slovenia, Italy, Spain and Finland) pointing at the authority. In Lithuania and Sweden (reversed burden of proof) the court also can order the operator to make investigations.

In some countries there is a reformatory process meaning a right for the court to alter a decision that has been challenged (Romania, Slovenia /theoretically/, Belgium /minor possibilities/, Sweden, Spain and Finland. In Germany, Lithuania and Latvia the process is cassatory and the court is not allowed to alter the decision; either reject the claims or reverse the decision back to the authority.


/Anders Bengtsson


Compilation of national answers

Initial remarks:

Finland/Åland: Since my assignment to the Administrative Court of Åland, I am dealing with environmental cases under the regional legislation of the autonomic Åland Islands. I.e. Åland has legislative competence in the field of environmental law, under which the regional parliament has passed its own legislative acts. Fortunately, the systematic approaches are usually the same as in corresponding state legislation, but there are exceptions as well. I will attempt to consider both legal systems in my answers, pointing out differences where relevant. The autonomy with regard to environmental law also means the environmental protection and water law cases are dealt with by the Åland Administrative Court, instead of following the concentration to the Vaasa Administrative Court, as in the rest of Finland.


Belgium: The answers focus mainly on the legislation of the Flemish Region.


Spain: In Spain there is a national level but also a regional level (Autonomous Communities) with different procedures.

  • Give a short description of the most important issues on environmental law that you are dealing with or that are currently discussed in your country.


Germany: Minimum distance of windmills to dwelling areas.

 - actions of neighbours against permission for removal of a nuclear power plant, arguing contaminated stuff endangering their health being released during works

- soil protection cases: actions of land owners against administrative orders to cleanup contaminated former industrial sites

- actions of NGOs and municipalities against plans for flood prevention by broadening riversides in upper sections, e.g. of River Rhine

- actions of NGOs against permission of extending quarries in landscape conservation area when economic need is doubtful

- actions of neighbours against permissions of biogas plants because of smell nuisance

- actions of municipalities for implementing noise protection plans by competent authorities or agencies (e.g. German railway) 

- actions of private persons or firms collecting and trading old clothes against prohibition orders because of alleged unreliability or harming municipal collecting and recycling schemes under the recycling and waste law


Bulgaria: We deal mainly with cases relating to environmental impact assessments.


Slovenia: There is an extreme variety of public interest as well as current court cases. Recently, we have been discussing (and subsequently deciding on) methane (manure) power plants, a large cement factory and its emissions, locations of waste processing plants and relationship between inclusion in the CO2 trading mechanism and national pollution tax.


Romania: The issue with the ongoing trials with the pollution/environmental tax paid by importers, either companies or persons buying second hand cars from the EU, although the European Court of Justice said such a tax is prohibited by the Treaty for the functioning of the European Union.


Belgium: My court deals exclusively with appeals against administrative decisions imposing administrative fines and administrative forfeitures of illegal benefits for environmental offences at large (industrial pollution, pollution and nuisance in general, breaches of nature conservation, hunting and forestry legislation).

Important environmental law issues discussed in my country nowadays are

  • ‘green’ justice: specialized courts (and prosecutors), within ‘regular’ justice (including criminal courts) as well as within administrative justice
  • The merging of so-called integrated environmental permits (covering all kinds of pollution and nuisance) and building permits
  • Access to justice (Aarhus, EU)


Italy: In Italy environmental law is comprised of three other specific and individual areas of law: planning law, pollution law (relating to the protection of water, soil and air), and “natural beauty” law.

By following this idea in order to describe what we traditionally consider as environmental law, it would be necessary to use three different groups of principles. Regardless of this, in the Seventies, some lawyers tried to base his idea on constitutional provisions that appeared to be more closely connected with the principles: planning law (which was a competence vested at the regional level), health (since pollution could affect the health of people, the same who had previously attacked the environment) and preservation of natural beauty (which must be promoted by the Republic). All these topics were subjects for which some public powers did exist or, in any case, were submitted to a constitutional discipline.

According to this framework, in the courts we deal with several issues (planning law, pollution law, “natural beauty” law): sometimes the same project has to be evaluated from all these points of view.


Sweden: Issues relating to standing has been on the agenda for some time and the case-law from the Land and Environment Court of appeal, the Supreme Court and the Supreme Administrative Court is evolving and slowly opens up for NGOs and private persons to challenge decisions affecting the environment, sometimes contrary to the thoughts and restrictive view of the legislator (statements in the preparatory works).

Still windmill cases are rather frequent and such permit decisions are almost always contested. In southern of Sweden the lack of (endless supply of) water creates a problem for the farmers. In order to avoid a prohibition to sprinkle the crops in dry summers, many of them wants to rely on the security of a license under the Environmental Code. During the last four – five years, we have had loads of such cases at our court, around 100 per year. In Stockholm some major and infrastructure projects create work at the Land and Environment Court (appealed planning decisions, and first instance decisions on permit for some of the operations). In the north of Sweden major mining projects in a way characterizes the work in the Court.


Finland/Åland: On the Finnish mainland, the topics of interest at the moment are at least the mining industry (there has been something of a mining boom in Northern Finland as of late) and expanding wind energy production. The first mentioned entails questions of expropriatory character as well as landscape and natural habitat tensions, together with more typical emission regulation. A specific mine causing head brew is the now infamous Talvivaara mine, which has caused concerns with regard to failures in damage prevention measures. Wind power, on the other hand, is seen in the administrative courts as appeals against both land use planning and environmental permit decisions.

Due to the relatively small jurisdiction of the Åland Administrative Court (population of approx. 28 000; around 100 cases/year total) the court faces a heterogenous and variable case load. In the field of the environment, one reoccurring source of disputes are environmental permits and permit renewal for fish farms.


Lithuania: The most discussed environmental issues in Lithuania are: public participation in EIA process; the relation between EIA and SEA processes; fixing the amount of the payment for municipal waste treatment; application of criminal liability for violations of environmental law, etc. Also the new possibilities for defending the right to healthy and clean environment are being developed by the case law of the Supreme Court of Lithuania.


Spain: Most often we deal with cases on EIA. There are also many cases on infringements for waste water discharge.


Latvia:

1) Riga Airport spatial planning and Riga Airport infrastructure (i.e. runway, lighting etc.) construction – case is based on the procedural aspects

2) Sewage treatment plant construction – I’ve ordered expert-examination on eventual pollutions

3) Pork farm and biogas plant construction – eventual pollution


Estonia: Issue number one is certainly implementation of the new Law on General Part of the Environmental Code

•Issues related to the mining rights on oilshale

•Issues related to the LNG terminal construction

•Issues related to the Natura 2000 regime

•Several cases with animal farms (fur)

•Most probably in close future a new wave of cases related to the hunting as new hunting law was passed last year

  • Give a short description on how the IED-Directive is implemented into your domestic legislation.


Germany: Federal Act on Implementation of the IED-Directive of 8 April 2013, the focus of which is the amendment of the Federal Immission Control Act (Bundes-Immissionsschutzgesetz, hereinafter: BImSchG).


Slovenia: In principle, it is implemented through the law (Law on Protection of the Environment, Zakon o zaščiti okolja). However, because of the a) rather technical nature of the IED and b) protracted legislative procedure, the Government tends to complement this implementation by by-laws rather heavily. In some comparable cases, this lead the parties to request of the court to disregard by-laws which they considered not to have sufficient legal basis (exceptio illegalis).


Bulgaria: At a national level EU Directive 2010/75/EC is transposed in the Environmental Protection Act /EPA/, amended State Gazette 32/24.04.2012, effective since 7 January 2014.


Romania: There are several institutions involved in the implementation of this Directive in domestic legislation. There have been several changes to existing domestic laws. The two institutions are the Agency for Environmental protection and the Guard for environmental protection. The first one sets out to give out authorizations and check on the functioning of companies that have to respect the legislation and the second one functions as a safeguard issuing fines and being aware of all trespassing of the law.


Belgium: Belgium is a federal country, encompassing three regions: the Flemish Region (‘Flanders’), the Walloon Region (‘Wallonia’) and the Brussels-Capital Region (‘Brussels’).

Environmental issues belong to a large extent to the realm of the regions, but the federal level remains competent for some important issues such as product standards, the protection against radioactivity and the protection of the marine environment in ‘Belgian’ waters (territorial waters but also EEZ).

Therefore the implementation of the IED-Directive happens to a large extent at regional level but also at the federal level (radioactivity and marine environment).

The three regions have a so-called integrated environmental permit system since the past century (Flanders, 1991; Brussels 1997; Wallonia 1999), where all possible pollutions and nuisances (water, air ,soil, groundwater, noise, GMO’s …) are managed together within permitting applications/procedures and their outcome (permits, permit conditions, modifications of permits, of permit conditions, suspension and withdrawal of permits). All three environmental permit systems combine exploitation conditions that are imposed by regulations (Government Acts) with exploitation conditions imposed by the individual permit. The last ones are said to allow for the ‘tailoring’ of the exploitation conditions to the individual situation.

As mentioned previously, a move toward the integration of environmental and building permits is going on. The so-called ‘Omgevingsvergunning’ (literally: surroundings permit) will enter into force in Flanders in 2017.

The IED-Directive was mainly implemented through the existing regional environmental permit systems.

Flanders: Flemish Decree of 28 June 1985 concerning environmental licenses, as (repeatedly) modified, and its government orders, Vlarem I and Vlarem 2, as (repeatedly) modified.

See, for an English language translation of these laws: http://navigator.emis.vito.be/milnav-consult/consultatie;jsessionid=E32A8FA6D3195D2C92F42D25AE7D2284?language=en

http://navigator.emis.vito.be/milnav-consult/consultatie;jsessionid=E0A04E9C85C6E6B4482E1AD13B056F75?language=en

http://navigator.emis.vito.be/milnav-consult/faces/doorlopendeTekstPdf.jsp?print=false

http://navigator.emis.vito.be/milnav-consult/faces/doorlopendeTekstPdf.jsp?print=false

Brussels: Ordinance of 5 June 1997 concerning the environmental permit, repeatedly modified, and its extensive set of Government orders, whereof most provide in exploitation conditions

Wallonia: Walloon Decree of 11 March 1999concerning the environmental permit, and its set of Government orders.

I just noticed that a regulatory order issuing exploitation conditions that specifically aim at IPPC-installations were published in our Belgian Moniteur on September 22 and entered into force on October 2…


Italy: The IED-Directive is implemented in Italy by the Decreto Legislativo n. 46/2014, entered into force on 11th april 2014.

The Decreto Legislativo n. 46/2014 abrogated several sections of the Italian environmental code.


Sweden: The IED-Directive is implemented in Swedish law by changes in the Swedish Environmental

Code and by six new regulations. The new regulations have similar topics as the directives that were replaced by the

IED, and the chapters of Directive itself. The regulations are:

• The Industrial Emissions Regulation (SFS 2013:250)

• The Environmental Assessments Regulation (SFS 2013:251)

• The Regulation on Large Combustion Plants (SFS 2013:252)

• The Regulation on the Incineration of Waste (SFS 2013:253)

• The Regulation on the use of Organic Solvents (SFS 2013:254)

• The Regulation on the Production of Titanium Dioxide (SFS 2013:255)

The system is still based on permits issued by the Environmental court. The conclusions on best available technique

are implemented through general regulations, and are thereby made legally binding. But it should be

noted that IED’s term best available technique is not per definition equivalent to the

requirements of the best possible technique as set out in the Environmental Code.

The IED is a minimum directive where Member States may impose more stringent

conditions. This is why the requirements in the Environmental Code may be more far reaching. And the exact regulation for an individual operator is decided by the Environmental Court in the license procedure.


Finland: In mainland-Finland the IED har been implemented as part of a complete revision of the Environmental Protection Act (EPA). The new act has entered into force as late as 1 september 2014. Although the aim of the new act has in part been simplification of procedures, the basic system remains the same with regard to EU-regulated operations, which are covered by provisions of a specific chapter of the act. IED-operations require an environmental permit, which is granted by the Regional State Administrative Agencies (RSA-agency; AVI/RFV). (Permits for lesser activities are instead granted by municipal authorities.) Enforcement is the task of the regional Centres for economic development, transport and the environment (ETE-centre; ELY-keskus/NTM-central). The Ministry of the Environment communicates adopted BREFs in Finland.

In Åland, the IED is to be implemented by an amendment of the regional Environmental Protection Act (ÅEPA). The amendment has been passed by the regional parliament, but is yet to enter into force. The legislative approach is similar to the mainland one, major operations require an environmental permit issued by the Environmental and health protection authority of Åland (ÅEHPA; ÅMHM), which is also tasked with enforcement. According to the amendment bill, there are currently no industrial operations on Åland within the scope of the IED.


Lithuania: The general provisions are established in the Law on Environmental Protection. Detailed procedures are described by the Order of the Minister of Environment No. D1-528 of 15 July 2013 and the Order of the Minister of Environment of 6 March 2014 No. D1-259.


Spain: Spanish Law has implemented IED Directive by act passed by the Parliament (Ley 5/2013, june 11, amending Ley 16/2002, which implements IPPC Directive, and Ley 22/2011 on waste and polluted soils)Manual word wrap

The aforementioned act has been complemented by regulation (Real Decreto 815/2013, October 19)


Latvia: Transposed into:

1)Law On Pollution;

2)Cabinet Regulation on Procedure by which polluting activities of Category A, B and C shall be declared and permits for the performance of Category A and B polluting activities shall be issued;

3)Cabinet Regulation on Procedure by which emission of air polluting substances from incineration installations shall be prevented, limited and controlled;

4)Cabinet Regulation on Procedure by which the baseline report of pollution of soil and groundwater by dangerous chemical substances in the territory of the installation shall be issued;

5)Cabinet Regulation on Requirements for incineration of waste and operation of waste incineration plants;

6)Cabinet Regulation on Procedure by which emission of volatile organic compounds from installations, in which organic solvents are used, shall be limited.


Estonia: IED –Directive is implemented through the Industrial Emission Act (IAE) which entered into force on 1 June 2013. There are several governmental regulations which deal with details connected For example - The forms of applications for integrated permits and any annexes thereto are established by a Regulation nr 36 of the Minister of the Environment passed on June 19 2013.

  • Give a short description on how an application for a license to
    • open a new, or
    • alter or expand an existing industry is dealt with in your country – for example a large combustion plant or a waste disposal plant (covered by the IED-Directive).

- How is the EIA-procedure and the license-procedure linked in your country? Do you have separate procedures for the EIA and the application for a license or are the procedures handled simultaneously in the same instance?

- Are all aspects of the operation related to the IED-Directive, such as different kinds of emissions to water, noise, waste, air etc., covered by one procedure at one authority or by several procedures in several authorities?


Germany: a. b. In case of a material alteration or extension the approval procedure is the same as for the establishment. Industrial installations are covered by the BImSchG, waste disposal sites are covered by the Waste Act.

The EIA is included in the licensing procedure.

The license (for an industrial installation) as well as the planning approval (for a waste disposal site) comprises other administrative decisions, in particular consent issued under public law, grants, permissions, authorizations (so called “concentration effect”).


Slovenia:

a. The main stages of the procedure would be obtaining EIA (if required), informing and involving the public concerned (including NGOs) and issuing the permit.

If there is any kind of construction required, obtaining an environmental permit is prerequisite for issuance of the construction permit.

b: If the alteration can be considered substantial, the procedure is the same as for construction of a new plant. For non-substantial alterations (if the plant can still be considered as the “existing” plant), a simplified procedure is available, mainly in regard of the involvement o the public.

c: EIA is a basis for obtaining a separate permit administrative decision, an environmental consent. Where EIA is required, this decision is prerequisite for obtaining an environmental permit. It is issued in a separate procedure, by the same authority as the environmental permit, but with wide involvement of other concerned authorities.

d: All those aspects are covered by one procedure.


Bulgaria: An integrated permit must be obtained for the development, operation and substantial change to new and existing plants (facilities and installations) that conduct highly polluting industrial activities (e.g., in the energy, metal, mining and chemical industries, waste management). The last amendments of the Environmental Protection Act (EPA) extend the circle of activities for which an integrated permit shall be obtained, including production of chemical substances through biological processing, interim pharmaceutical products, explosives, etc. (Appendix 4 to the EPA).

The competent authority – the director of the Executive Environment Agency – issues the integrated permit which must contain the obligatory measures for protection of the air, the water and the soil, and must be based on the concept of best available techniques (BAT). The implementation of BAT aims to reduce the impact on the environment, and to guarantee that the operator applies the best international practice in the respective industrial field when the plant commences operations.

The integrated permit is issued for an indefinite term except in cases where environmental regulations provide specific deadlines for termination of installations’ activity. The competent authority (the director of the Executive Environment Agency), is authorised to review the conditions of issued permits at any time in certain cases (significant pollution caused by the installation or planned changes in its operation, or substantial changes occurring to the BAT, published BAT conclusion adopted with a decision of the European Commission related to the core business of an installation, etc).

In any case of planned changes in the operation of the installation, the operator has the obligation to inform the minister of environment and waters and the director of the Executive Environment Agency. Thus, the competent body shall review the conditions and terms of the permit and further issue amended requirements or conditions for operating the installation pursuant to the planned new circumstances of operation.

In case an operator of a plant (facilities and installations) performs its activity without permit (if the activity falls within the scope of attachment 4 to the EPA) a pecuniary sanction of 50,000 BGN /25 000 €/ may be imposed on the respective operator.

If the installations have obtained a positive decision on the environmental impact assessment confirming the application of ’best available techniques’ the permit is required at a later stage, before putting the facilities and installations into operation.

By obtaining the integration permit the operators can avoid applying for separate permits needed pursuant to the Waste Management Act and Waters Act in order to perform waste treatment activities, discharge water and discharge wastewater into surface waters.

The integrated permit is a mandatory condition for the issuance of a construction permit for development of the facilities or installations.


Romania: For example the application for a license starts with the creation of an online application that requires basic information about the company and the project. Then the company representatives have to complete and answer several questions and give an exact pinpoint on a geo spatial map. The next step is to go to the Agency for Environmental protection and submit a complete application after having received a registration number. Then, depending on the project there are several steps that involve the publication in a local newspaper, a visit from a competent worker from the Agency, and other proof that the project is legally enacted. After another period for another publication in a paper and on the website of the authority, usually the authorization is given out for an established time frame and periodic controls are done. Sometimes part of the operation, especially those regarding water emissions are governed also by other institutions that can make joint procedures, or several procedures.


Belgium: application – control if complete and admissible – public consultation – consultation of all authorities with relevant expertise within one advisory board (aiming at the integration of the aspects highlighted within the sub-opinion of the different authorities) – decision – possibility of administrative appeal – if appeal, idem but without public consultation – the definitive decision can be appealed at the Council of State (federal administrative court)

alter or expand an existing industry:

The application will go through the same procedure as en new an application for a new industry whenever the alteration or expansion is not considered as relatively unimportant. A modification that implies an additional risk for man (human health) or somehow harms the environment cannot be ‘unimportant’.

How is the EIA-procedure and the license-procedure linked in your country?

In Flanders, the EIA-study (project EIA) has to be joined to the application of the environmental permit. Thus, in time the EIA-process precedes the permitting procedure. The EIA-study is part of the file open to the public during the public inquiry that is a standard part of each permit procedure.

Are all aspects of the operation related to the IED-Directive covered by one procedure at one authority or by several procedures in several authorities?

Yes, see above, sub 2, the information about integrated environmental permitting.


Italy: In case of application for a new license, or in case of renewal/replacement, the operator must produce a report on ground and water impact.

- How is the EIA-procedure and the license-procedure linked in your country? Do you have separate procedures for the EIA and the application for a license or are the procedures handled simultaneously in the same instance?

We have two separate procedures, but the procedures are handled simultaneously in the same instance

- Are all aspects of the operation related to the IED-Directive, such as different kinds of emissions to water, noise, waste, air etc., covered by one procedure at one authority or by several procedures in several authorities?

In Italy there are different authorities charged of different competences, so there are several procedures in several authorities.


Sweden: An application, including an environmental impact assessment, for a permit for environmentally hazardous activities is submitted to the court of first instance that functions as the regional Environmental Court of the area of the activity. The court makes a formal overview of the case

And then send it to authorities for an opinion of the material as such. If the authorities have proposals to complement the application the court may decide that the applicant has to do so. When the application is complete, information on the application (and EIA) is advertised in local newspapers covering the area of the operation. A copy of all documents are sent to an appointed keeper near where the action shall take place. Authorities as well as anybody else that has an interest in the matter are allowed to give written opinions to the court on the case. The applicant is the given the opportunity to give its view on the opinions. Normally there is the a main hearing in the court house or more often nearby the actual location of the operation. When the court finally decides its judgement the Environmental Code states that the permit should regulate issues like BAT and other limitations that follows the IED-Directive.

The Environmental Court of Appeal hears appeals from the five regional environmental courts. The Supreme Court of Sweden is then the final instance if the environmental court – as in these cases - was the first instance.


Finland: The following application procedure applies for IED-operations:

- after an application is made, the permit authority informs the public and specifically

concerned parties and certain authorities;

- the public, parties as well authorities can give their opinions;

- the authority considers the matter, including applicable BREFs and issues it’s decision.

The alteration or expansion of an operation licensed by permit requires a new permit if it leads to added environmental impact or the alteration is otherwise notable (an alteration is always considered notable if a non-IED-operation is altered to an IED-operation).

EIA procedure is regulated by a separate act (EIA Act). The assessment procedure takes place before permit procedure and is coordinated by a state authority (usually the ETE-centres). This coordinating authority is also competent to decide whether EIA is required or not for activities under explicit obligation (screening decision). The assessment itself (essential procedural or substantial shortcomings) cannot be challenged separately, but instead invoked in appeals against any final decision taken based on the EIA - i.e. against an environmental permit, for example. A positive screening decision can be appealed separately, but a negative one can be challenged in the context of said final permit/consent decision. The same goes for altogether omitting EIA.

In the Åland Islands, the environmental permit procedure for IED-operations follows what has been said above. The amendment of the ÅEPA adds a new chapter covering licensing of IEDoperations. Also the EIA procedure resembles the above, with the difference that there is no separate coordinating authority. Instead, the EIA takes place in the context of the permit/consent procedure, under supervision of the permit authority in question.

All aspects of pollution are covered by the environmental permit procedure. This does not mean the operation may not require other procedures. In addition to EIA procedure, placement may require a land use plan. If impacts to protected nature cannot be avoided, the project may require consideration of a derogation under the Nature Protection Act (NPA).


Lithuania: The Environmental Protection Law foresees two types of pollution permits: Integrated pollution prevention and control permits (hereinafter – IPPC permits) and Pollution permits. The rules for issuance, modification and revocation of IPPC permits are approved by the order of the Minister of Environment [1]. The system of issuance, modification and revocation of IPPC permits set forth in this order aims at ensuring the avoidance of greenhouse gas emissions and the release of pollutants into the air, water, soil, or, if this is not possible, the reduction of the quantity thereof and the prevention of generation of waste, achieving a high level of environmental protection. The above mentioned rules establish the procedure of preparation, presentation and coordination of application for a permit or change of it, the preparation of the draft permit, the procedure for issuance, modification and revocation of IPPC permits, the rights and duties of public concerned, as well as the provisions about informing another EU Member State, consultation with it, informing it about the decision to issue an IPPC permit, the procedure for informing the public of another EU Member State. The Annex of the rules provides for the list of activities, according to which it is determined whether the device will need the IPPC permit. For example activities such as: oil and gas refining; production of pharmaceutical products, including intermediate products; landfills, as defined in the Law on Waste Management, receiving more than 10 tons of waste per day or with a total capacity exceeding 25 000 tons, excluding landfills of inert waste; production of paper or carton with a production capacity exceeding 20 tons per day; intensive rearing of poultry or pigs when there are more than 40 000 places for poultry, or more than 2 000 places for production pigs (over 30 kg), or more than 750 places for sows; combustion installation with a total rated (nominal) thermal capacity equal to or greater than 50 MW; etc. are subject to IPPC permits. Rules do not apply to scientific research and development thereof, as well as activities of testing new products or processes. IPPC permits are issued, modified and revoked, the conditions of the permit are reviewed by Environmental Protection Agency (EPA). The control of compliance with the conditions of IPPC permit (except for the control of spreading of noise and smells) is carried out by Regional Environmental Protection Departments (REPD), depending on the territory in which the controlled installation (or part thereof or more installations or parts thereof) is. The IPPC permit is usually issued for an indefinite period of time, but while setting the conditions of the permit, EPA may establish the conditions for a specified period, after which it is necessary to modify the permit and set new conditions. IPPC permit for a new installation (part thereof) or for substantial changes to existing installations may be issued only after EIA of the proposed economic activity (screening for EIA and (or) EIA), when such procedures are obligatory according to the Law on Environmental Impact Assessment of the Proposed Economic Activity.

Similar, but simpler procedure is foreseen in the Rules for issuance, modification and revocation of pollution permits, approved by the order of the Minister of Environment of 6 March 2014 No. D1-259 [2]. These permits are required for the less dangerous activities and the activities of the smaller scale. The criteria of such activities are listed in the Annex of the mentioned rules. For example, pollution permit is necessary for operation of combustion installations with a rated thermal capacity equal to or greater than 20 MW but less than 50 MW; extracted (planned to extract) 100 m3 per day (average annual intake) or more of water from a one surface water body (other than water used for amateur gardening needs and the water used for hydropower production of hydro power plants with a capacity of 10 MW), etc. Pollution permits are issued, modified and revoked by EPA. As well as IPPC permits, these permits usually are issued for an indefinite period of time, but while setting the conditions of the permit, EPA may establish the conditions for a specified period, after which it is necessary to modify the permit and set new conditions, or the permit might be revoked according to the procedure described in the above mentioned rules. As mentioned before, the procedure of issuing Pollution permits though similar to the one of issuing IPPC permits is simpler. For example, the coordination of application for permit with public health protection institutions, municipalities or public is not required, only EPA is required to give information on its website about the issued and revoked Pollution permits.

The described schemes for issuing IPPC permits and Pollution permits are rather new, so it is impossible to draw any conclusions on their coexistence in practice yet. However, for example, the fact that the procedure of issuing pollution permits does not involve society, might already raise doubts and discussions.

- How is the EIA-procedure and the license-procedure linked in your country? Do you have separate procedures for the EIA and the application for a license or are the procedures handled simultaneously in the same instance?

Permits might be issued only after carrying out EIA procedure (when this procedure is necessary according to the Law on EIA). Separate procedures are foreseen, however data from EIA reports are used when issuing permits.

- Are all aspects of the operation related to the IED-Directive, covered by one procedure at one authority or by several procedures in several authorities?

See the answer above.


Spain:

A. The procedure will depend very much on the Region. In Spain there are 17 different Regions (Autonomous Communities) and each one is entitled to develop their own environmental law provided they respect the minimum established at national level (basic legislation) This way they may introduce additional levels of protection and create new procedures outside the grounds covered by the Law at national level.

Taking all this into consideration, there are two different levels:

  • National level, common in the whole country.- IPPC is required for developing any activity included within annex I of the Act implementing IPPC Directive (Ley 16/2002, amended by Ley 5/2013)
  • Regional level. 17 different models may exist. However the tendency aims to simplify procedures. Some Regions have opened two different stages:
    • Regional level. According to another annex in the Regional Law a series of activities are listed and those activities require what is called a Single Environmental Permit (kind of clone of the IPPC)
    • Local level (municipalities). There are some low environmental aggressive activities free of any environmental permit and others that need just a local permit called environmental evaluation (calificación ambiental) different from IEA, IPPC or Single Environmental Permit.

B: The procedure will go through the same stages as the opening of a new activity if the alteration is considered substantial.

C: Two situations:

  • If IPPC applies, EIA is integrated within the IPPC procedure.
  • If not. Then two possibilities, depending on the Autonomous Community:
    • If Single Environmental Permit applies, EIA is integrated into the procedure.
    • If not. The procedure for EIA is placed into the substantive procedure for authorization as a stage of it. EIA decision may not be challenged autonomously but by challenging the final substantive decision. D: Yes, all those aspects are covered by one procedure.


Latvia:

A. In order to initiate or continue operation of the plant, a permit for the Category A or B polluting activity is necessary which has been issued by a relevant Regional environmental board in compliance with regulatory enactments in the field of pollution prevention and control.

If several polluting activities are performed in an installation that correspond to different categories of polluting activities, an operator shall file only one submission to the Board for the performance of polluting activities of such category for which more stringent environmental protection requirements have been specified. Within the meaning of this Regulation the most stringent environmental protection requirements have been put forth for Category A polluting activities, followed by Category B and Category C polluting activities. All the polluting activities shall be described in the submission.

If the operator got a permit for the Category A or B polluting activity including conditions for waste collection, transportation, handling, sorting and storing no special other permit is required.

B. Objects Requiring Impact Assessment (Annex I): 1) combustion installations with a heat output of 100 megawatts or more; 2) sites for the storage and disposal of hazardous waste, as well as installations for the incineration and chemical treatment thereof; 3) municipal waste disposal sites and 4) municipal waste disposal installations for the incineration and chemical treatment thereof if the treatment amount is ten or more tons per twenty-four hours. Procedure is provided by Environment State Bureau.

Activities requiring an Initial Assessment (Annex II): 1) installations for the disposal and treatment of waste (all activities to which Annex 1 does not apply); 2) areas for the sorting of hazardous waste and 3) any changes in activities which are already authorised, are in the process of being executed or are executed and which are related to the objects referred to in Annex I and Annex II and may have significant adverse affects on the environment. Procedure is provided by a relevant Regional environmental board.

C. A construction permit by the building authority. A local government shall, prior to taking a decision on construction, ensure public discussion regarding the intended construction, if the construction substantially affects the environment, but it does not require the environmental impact assessment. A local government may provide other preconditions to ensure public discussion. The public discussion of the construction shall not be organised, if a detailed plan is in force in the territory where the construction is intended.


Estonia: A. It is regular integrated permit procedure for this which is open procedure according to the Administrative Procedure Act. According to the IEA the integrated permit should be issued at least in 1 year.

§ 37. Processing of applications for integrated permits

(1) The issuer of permits shall decide on issue of an integrated permit within 180 days as of the acceptance of an application for processing.

(2) If the making of a decision takes more time due to technical complexity of an installation, the issuer of permits may extend the term for the processing but not for a longer period than one year as of the acceptance of the application for processing. The applicant for an integrated permit and other parties to the processing shall be notified in writing of the extension of the term, the reasons thereof and the proposed term for the making of the decision.

B. Basically the same procedure, in case of large combustion plants specific regulation is in IEA - Chapter 3. Large Combustion Plants - are also relevant here

How is the EIA-procedure and the license-procedure linked in your country? Do you have separate procedures for the EIA and the application for a license or are the procedures handled simultaneously in the same instance?

These procedures can be combined or separate EIA EMS Act supports generally combined procedures. Article 33 paragraph 2 IEA: (2) Where environmental impact is assessed upon processing of an application for an integrated permit, the issuer of permits may publish a notice of acceptance of an application for an integrated permit for processing together with a notice regarding initiation of an environmental impact assessment in accordance with clause 12 (1) 1) of the Environmental Impact Assessment and Environmental Management Systems Act.

Basically there are specific acts also on these topics, but IEA covers these issues related to the mandatory integrated permit procedures. IEA :

§ 25. Mandatory integrated permit

(1) An operator shall not operate without an integrated permit in an area of activity for which an integrated permit is required in accordance with § 19 of this Act.

(2) An integrated permit is required for the operation of an installation as a whole if the activities exceed in at least one area of activity of the installation, for which an integrated permit is required, the threshold capacity for the subcategory of activities established on the basis of subsection 19 (3) of this Act. In such case the integrated permit shall replace the permits in accordance with the Water Act, Waste Act and Ambient Air Protection Act.

  • Which aspects of a license related to the IED-Directive may be challenged in court in your country in a situation where
    • the operator appeals a decision to dismiss/reject an application for a license, or
    • a decision to grant a license but with stricter conditions than the operator applied for or wanted, or
    • a neighbor/NGO/authority challenges a granted license claiming that the license should be annulled or combined with stricter conditions?


Germany:

a. All aspects.

b. All aspects.

c. The neighbor can rely only on provisions intending the protection of his rights (so called “protective norm doctrine”).

Within the scope of the Environmental Appeals Act (i.e. when an EIA is required and in certain other cases) the NGO can rely on all provisions that protect the environment.


Slovenia: All those aspects may be challenged before the court.


Bulgaria: The decision for granting, refusal, modification, updating or revocation of an integrated permit shall be communicated through the mass media within 14 days from the date of issuance. The applicant shall be notified in writing. The interested persons can appeal the permit within 14 days after its communication by the order of the Administrative procedure code.

The general provision of Article 147 of the Administrative Procedure Code defines as “interested persons” those individuals and organizations whose rights, freedoms or legitimate interests are violated or jeopardized by the contested administrative act or in respect of whom the said act gives rise to obligations.

The operator may appeal a decision to dismiss/reject his application for a license, or a decision to grant a license but with stricter conditions than the operator applied for or wanted. Neighbors ang NGOs may challenge a granted license claiming that the license should be annulled or combined with stricter conditions. NGOs are granted legal standing in all environmental cases under the Environmental Protection Act. The non-governmental organizations promoting environmental protection which are established in accordance with national legislation are regarded as an authorized representative of the „public concerned“.


Romania: A. yes B. Yes C. Yes. Anyone that can prove that he/she/it will suffer damages.


Belgium: Legality aspects, of course, very often zooming in on formal motivation issues. Typically, the grief would be that pertinent information has not or not properly been taken into account.

The procedure as such is explored and settled by case law since the midst 1990’ies and doesn’t ground too many appeals (any more).

EIS-aspects (flaws in the implementation of an EIS-obligation or in the handling of the EIS-results within the decision making process) keep causing a fraction of appeals. EIS’es covering large scale infrastructure projects are vulnerable to successful appeals, thus flaws, involving specific issues that raise questions about the structure of the instrument as conceived in our law nowadays, such as issues about ‘flanking’ measures, for instance mobility issues in surrounding areas.

It is an aspect of the discussion concerning specialized environmental courts, that today not-specialized courts work too much by judging on formal aspects and not enough on aspect of content. It is a factor of frustration of the population with administrative justice and as such ill-biding for trust in justice.


Italy: All these three aspects can be challenged in court. In case of c), the neighbor/NGO/authority musts have direct (i.e. local) interest in the area where the industry is located.


Sweden: 4. a) Every aspect can be challenged.

b) If only the operator appeals such a decision the court can only deal with the question of granting the conditions that the operator has petitioned for. The court cannot decide to the operator’s disadvantage.

c) If the neighbor/NGO/authority claims in the first hand that the license should be annulled or secondly that the conditions should be stricter, the court can deal with every aspect of the license. If the neighbor/NGO/authority claims only that the conditions should be stricter the court can only deal with these questions.


Finland: In principle, all aspects of a permit can be challenged in appeals against the decision. The administrative court is competent to review both procedural and material legality of the decision. As noted above, shortcomings in a prior EIA bust be essential in order to be invoked against the final consent).

The administrative court is free to independently evaluate the evidence and reassess the facts, including technical or other scientific basis of the challenged devision. The Vaasa Administrative Court, as well as the Supreme Administrative Court (SAC) makes use of judges trained in natural and technical science in order to ensure sufficient expertise for such consideration. The Åland Administrative Court lacks such non-lawyer judges, however. The appeals procedure under the state EPA also includes a stage of public consultation.

In a case where an operator (applicant) appeals a negative permit decision, the court is naturally not competent to issue a permit, but it can review all aspects of the rejection. If the court arrives at a different conclusion than the authority on the grounds of refusal, the typical result would be to reverse the decision and remand the case so the authority can consider of any remaining prerequisites in a new decision.

When dealing with an operator challenging the permit conditions, the administrative court is competent to amend the decision with regard to said conditions, if it finds them stricter than what the legislation requires. This is true for both the Vaasa and Åland court, as well as the SAC.

Also when a permit decision is challenged by a neighbor/NGO or other authority the same applies for the court’s competence. As long as the appellant has right of appeal, he/she can invoke public interests, i.e. review is not restricted to impairment of subjective rights. The court is competent to annul a permit decision or to amend the decision, imposing stricter permit conditions as required by law.


Lithuania: According to the Law on Administrative Proceedings every interested person can apply to a court for the protection of his/her infringed or contested right or interest protected under law. Every applicant who challenges an administrative act has to demonstrate a particular interest in the annulment of this act. Only an application to an administrative court of an individual in order to protect his/her own infringed or contested right or interest is admissible (Art. 5 of the Law on Administrative Proceedings). These main rules are applicable for different types of procedures and different actors.

About the application for the licence the EPA can adopt the decision to admit an application or to return an application to the operator with the reasons for return. If the operator doesn’t agree with the decision to return an application he could challenge this decision. In this case the court would check if the procedures were held and if the reasons for return are substantiated.

a decision to grant a license but with stricter conditions than the operator applied for or wanted, or

In this case the court would check if the procedures were held and if the reasons for stricter conditions are substantiated.

a neighbor/NGO/authority challenges a granted license claiming that the license should be annulled or combined with stricter conditions?

In this case the court would check if the procedures were held and if the reasons for annulment of the license or for stricter conditions are substantiated. Additional the court would check if the claimant has legal standing.


Spain: All those aspects may be challenged before the court.


Latvia: A.An operator or natural or legal persons, also public organisations may dispute a decision taken by a regional environmental board in relation to Category A or B permits for the performance of polluting activities. Decisions taken by the Environment State Bureau may be appealed to a court (an application to a court shall not suspend the operation of the administrative act).

a) The operator may dispute a decision to dismiss an application for a license.

b) The operator may dispute a decision on specification of binding restrictive conditions on polluting activity, the suspension of operation of the installation, the partial renewal of operation of the installation or a refusal to renew operation of the installation.

The warning regarding the possible suspension of operation of the installation if the violations referred to in the warning are not rectified is not disputable and cannot be appealed.

c) The operator may dispute a decision which revokes the decision regarding the issuing of the relevant permit or revoking part of the conditions of the permit; changing part of the conditions of the permit; supplementing the conditions of the permit or issuing a permit with different content.

d) Any person may apply with a submission also when the requirements specified in regulatory enactments in relation to the right of public participation and the right to environmental information has not been observed.

e) A natural or legal person whose health, security or property may be affected by a decision may dispute such decision regarding the necessity for an investigation or remediation of a polluted or potentially polluted site or regarding the covering of the expenses of investigation or remediation.


Estonia: a decision to dismiss/reject an application for a license,

can be challenged

a decision to grant a license but with stricter conditions than the operator applied for or wanted, or

can be challanged

a neighbor/NGO/authority challenges a granted license claiming that the license should be annulled or combined with stricter conditions?

yes, it can happened

  • An industry producing plastic ducks (an important industry and assumingly covered by the IED-Directive) has a license for its operation. The license doesn´t contain an explicit condition related to disturbances of smell. After some time the emissions to air start causing nuisances (significant smell) in the neighborhood (15 dwellings are located around 300 m from the plant) and when the disturbances increase a number of neighbors submit a complaint to the local supervisory authority. The authority finds that the emissions of substances are in compliance with the conditions in the license and dismisses the complaint. The neighbors disagree and want the whole operation to be stopped or at least the disturbances to be minimized. What can they do in order to have the emissions reduced? – Can they have the license and/or its conditions revised or can they make the authority act anyway?
    • If it´s possible to reopen the license procedure and have the license revised, which are the preconditions in order to do this?
    • Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision? At what stage may such a dispute be challenged at court?
    • At what stage may such a dispute be challenged at court?
    • If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:
      • To ask questions in order to clarify uncertainties.
      • To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always?
      • To alter the challenged decision regarding the outcome?


Germany: Under German law a distinction must be made between:

  • The right of a public authority to act and
  • The right of an individual (or organization) that the public authority acts.

If the public authority is empowered to act, an automatically corresponding right that the authority must act in favor of a third party is not recognized, even in case of violation of a provision intending the protection of individual rights. In such a case still a margin of discretion is to be respected.

In the given case the public authority might act in different ways:

  • Revocation of the license or
  • Order of additional conditions.

The public authority could reflect upon the revocation of the license. In the given case the conditions set out in Section 21 (1) 3. BImschG could be met. This provision reads as follows:

“A lawful license may, even when it has become non-appealable, be revoked in wholly or in part with effect for the future only when the authority would be entitled, as a result of a subsequent change in circumstances, not to issue the administrative act and if failure to revoke it would be contrary to the public interest.”

If the license is to be regarded as unlawful from the outset, a withdrawal can be considered. Section 48 Administrative Procedure Act provides: “An unlawful administrative act may, even after it has become non-appealable, be withdrawn wholly or in part either retrospectively or with effect for the future.”

It must be noted that the revocation or the withdrawal of the license for the plant seem to be rather a theoretical way than a realistic option. In both cases compensation must be taken into account. The public authority shall upon application make good the disadvantage to the person affected deriving from his reliance on the continued existence of the act to the extent that his reliance merits protection. Even if the legal preconditions are fulfilled, both the revocation and the withdrawal are nevertheless a discretionary act. The right on property of the operator and the doctrine of legitimate expectations are to be respected. Furthermore the principle of proportionality forbids a revocation, if a less stringent measure is possible to reach the desired aim. The question is here, whether an order of additional conditions to the license, as provided in Section 17 BImSchG, is sufficient to reduce the smell pollution. The answer depends on an assessment of the factual situation. It shall be assumed that additional conditions may reduce the smell pollution to a reasonable level.

It must be distinguished between the procedural right on reopening the license procedure and the substantial right on amendment of the license.

In the given case the public authority has not (completely) reopened the administrative procedure because it had checked only whether the operation is in compliance with the conditions to the license.

Under German law a right of the neighbours on a full investigation and an asessment of the smell pollution should be recognized in such a case. The claimant may lodge an action on the issue of a new decision on his complaint.

    • If it´s possible to reopen the license procedure and have the license revised, which are the preconditions in order to do this?

The public authority may check at any time ex officio, whether the conditions to a license are sufficient to avoid harm for the neighborhood. Such a proceeding is not to be classified as a new license procedure.

If a complaint is submitted by a neighbor not being obviously unfounded, the public authority has to carry out an investigation. A precondition for such an obligation is that the complainant invokes the violation of a “protective norm” (see above 4. c.).

    • Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision?

Such a decision is possible. The preconditions are laid down in section 17 BImSchG (“Subsequent orders”) which provides a sophisticated regulation. As a rule a subsequent order shall be made if it is proved that the general public or the neighbourhood is not sufficiently protected against harmful effects on the environment or other hazards, considerable disadvantages and considerable nuisance.

Under those circumstances a right of the neighbors on an order to reduce the smell pollution is to be assumed. The neighbors may lodge an action on the issue of a subsequent order.

    • At what stage may such a dispute be challenged at court?

When the public authority has made an order or has refused to do so.

    • If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:
      • To ask questions in order to clarify uncertainties. According to section 86 (1) Administrative Court Procedure Act the court shall investigate the facts ex officio; those concerned shall be consulted in doing so.
      • To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always? The burden of proof meets the public authority in this case. In general it is up to the public authority to carry out an appropriate investigation. The operator is obliged to cooperation as information giving ect.
      • To alter the challenged decision regarding the outcome? An alteration of the administrative decision is not allowed.

The court checks, whether the legal preconditions for a subsequent order or its refusal are fulfilled and whether the legal limits to the discretionary power are respected. According to the “ne ultra petita” principle as laid down in section 88 Administrative Court Procedure Act the court may not go beyond what is requested in the action.


Romania: Yes. They can go to court.

a.If it´s possible to reopen the license procedure and have the license revised, which are the preconditions in order to do this? Manual word wrap
They will not reopen the procedure, only challenge it in court, after receiving a refusal from the authority.

b.Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision?Manual word wrap
Usually a license is not revisable, only if it comes under new scrutiny by new enacted laws, and that only after a prescribed time in which they can enact the changes required by the new law.

c.At what stage may such a dispute be challenged at court?

d.At what stage may such a dispute be challenged at court?

e.If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:

i.To ask questions in order to clarify uncertainties. Manual word wrap
At any length, as much as you desire.

ii.To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always? Manual word wrap
Also to the authority but also to a third party, a court expert paid by the plaintiff or the defendant to check and make further investigations.

iii.To alter the challenged decision regarding the outcome? Manual word wrap
Yes.


Slovenia: In principle no, except for the same reasons as any administrative decision. It is considered that all legal conditions were taken into account in the procedure of issuance of the environmental permit. From here on, meeting of the conditions stipulated by the permit as well as general environmental standards are subject to control by environmental inspection.

b.Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision?

No, except if it is a question of meeting general environmental standards.

c.At what stage may such a dispute be challenged at court?

As mentioned above, it is highly unlikely for such a dispute to occur at all. However, a decision by an environmental inspector to close the procedure because no violation has occurred, could theoretically be challenged in court.

d.If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:

i.To ask questions in order to clarify uncertainties:

...

ii.To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always?:

...

iii.To alter the challenged decision regarding the outcome?

Such a case would be no different to any other administrative case. The court would be free to take any evidence it deems important to clarify the facts. Any further investigations, however, would not be requested by the operator, but rather by the authority or eventually by an expert. Theoretically, the challenged decision could be altered by the court, but in practice, because of the technical complexity of such cases, it would more likely be quashed and the case returned to the authority for a new procedure.


Bulgaria: There are not many cases relating to integrated permits and the respective directives. We have examined appeals against integrated permits for landfills and installations for storage and treatment of all type of waste /solid household waste, oil waste etc. /. One of the recent decision was rendered on appeal brought before the court by an environmental NGO. Some time ago we had cases on activities for recycling old out of use vehicles, building and exploitation of installations for pigs breeding.


Belgium: Yes, it is possible to modify the exploitation conditions.

Here the Flemish law.

The issue raised will typically be solved through a modification of individual exploitation conditions (imposed in the permit itself, in addition to the ground-layer of regulatory exploitation conditions). The initiative can be taken by the permitting authority, eventually on demand of advisory instances, by the permit-holder himself, and by each person (legal person, natural person) that can suffer, directly or indirectly, hindrance because of the exploitation of the plant. The modification has to respect the relationship with the regulatory exploitation conditions. In essence, this means that the new standards, for instance emission standards, should be or additional (i.e. vibrations) or more severe than the regulatory standards.

  • Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision? No, the way to stricter conditions goes through a modification of license conditions.

Next to this solution, of course, situational sanctions are possible whenever there is a formal detection of breaches of exploitation conditions (for instance, a remedial order) and security measures are possible whenever, without formal detection of breaches of exploitation condition, a security issue happens to raise.

  • At what stage may such a dispute be challenged at court? The procedures for a modification of individual exploitation conditions, situational sanctions and security measures all have an administrative appeal level. The definitive administrative decision can be appealed at the Council of State.

When severe breaches of the law or risks of such breaches occur, it is possible to ask at a ‘regular’ court an order in ‘kortgeding’ (fast-track justice) to prevent damage to the environment. A specific law, from 12 January 1993, opens this possibility in environmental matters. This law is not open to natural persons, only public prosecutors, administrative authorities and legal persons (environmental NGO’s, typically) meeting specific pre-requirements.

  • If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:
      • To ask questions in order to clarify uncertainties. My court doesn’t handle such disputes, but yes, we can ask questions to the parties, and any third person, for information to clarify uncertainties. We also can involve experts, but this is more time and money consuming.

The Council of state, who handles such disputes today, can probably do so too,

      • To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always? No, this is not possible for administrative justice under current law.
      • To alter the challenged decision regarding the outcome? Altering decisions is a very touchy issue in administrative justice (constitutional principle of the separation of power). But yes, within our case load we have such power, limited to the altering (lowering) of the amount of a fine and the amount of forfeited illegal benefits.


Italy: The neighbors can ask to the authority:

  • to control if the activity respects the limits and the conditions of the license; or
  • to abrogate the license, if its conditions are too week; or
  • to substitue the license with a new one, with more stricted condition If it´s possible to reopen the license procedure and have the license revised, which are the preconditions in order to do this?

A new fact (e.g. a new study on emissions)

b.Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision?

The authority must open a new procedure, informing the operator.

c.At what stage may such a dispute be challenged at court?

At the end of the new procedure.

d.At what stage may such a dispute be challenged at court?

e.If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:

i.To ask questions in order to clarify uncertainties.

ii.To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always?

iii.To alter the challenged decision regarding the outcome?

We can investigate if the outcome of the challenged decision is reasonable or not (i.e. from a scientific point of view); if data are correct; if the decision respect the substantial and procedural law.

We can do expertise, or ask the authority to repeat the evaluation.


Sweden: 5. a) The neighbors can appeal the authority’s so called “null decision”, i.e. the decision not to act on the complaint from the neighbors. The neighbors can also petition the court to stop the operation as an interim measure. If the court finds that the emissions are not in compliance with the license the court can send the case back to the authority and order the authority to act. The authority can then either decide on conditions (since the license doesn’t contain explicit conditions related to disturbance of smell) or initiate a reopening of the license procedure in court. - If, on the other hand, the court dismisses the neighbors complaint nothing can be done.

b) If there is an immediate need of measures the authority can decide on stricter conditions. This decision can of course be appealed to court.

c) and d), see a) and b) above.

e)i. ok

ii. ok. Yes, always.

iii. ok.


Lithuania: At first they should send the notice to the competent authority about the emissions and to ask to revise the license. It is directly foreseen in Order of the Minister of Environment No. D1-528 (point 92). If the authority receive such notice it is obliged to decide about that.

    • Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision? If the authority needs to state stricter conditions it is possible only by revising the license.
    • At what stage may such a dispute be challenged at court? After the control if there are grounds to revise the license the authority must inform the operator about the duty to change the license and to set the date for an application to change the license. This action of the authority could be challenged at court.

If the authority thinks that it is not necessary to set stricter conditions and to change the license it must admit the decision and to inform the neighbors about it (according Law on Public Administration. This decision could be challenged at court.

    • If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:
      • To ask questions in order to clarify uncertainties. The judge is free to ask any questions and to collect any evidences in order to clarify uncertainties.
      • To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always? The judge can order the operator to bring all evidences about some particular issue. If it’s necessary the judge can order an expertise or invite a specialist. On the basis of these evidences the judge can decide that an authority must decide newly.
      • To alter the challenged decision regarding the outcome? If the judge decides that the neighbors are right he can annul a decision and obligate the authority to decide newly.


Spain:

a.If it´s possible to reopen the license procedure and have the license revised, which are the preconditions in order to do this?

Yes. Two different ways:

i.Renewal: At least each 8 years, since the permit has been granted, a renewal procedure will be opened (IPPC decision must specify the period for renewal with that 8 year maximum period)

ii.Revision. The environmental authority is entitled to open a revision procedure if:

•Bests Available Technology (BAT) appears.

•There are signs of polluting activity

•In case water protection law or any other specific legislation requires an amendment.

•Appearance of new rules on environmental quality.

b.Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision?

No. It is not possible without going through an administrative procedure for revision.

c.At what stage may such a dispute be challenged at court?

When the administrative decision is final (there is no existing remedy before the Administration and the action has to be brought before the court)

d.If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:

i.To ask questions in order to clarify uncertainties:

Administrative Judges in Spain own wide latitude to enquire the experts giving evidence and even to open now grounds for evidence if doubts remain.

ii.To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always?:

we always review an administrative decision so any order would be directed to the administrative authority.

iii.To alter the challenged decision regarding the outcome?

Yes, in case we have enough deciding elements to give such a judgment.


Latvia: A.Yes. If in accordance with Category A or B permit conditions it is possible to initiate or continue such polluting activity which may substantially negatively affect human health or the environment, or the environmental quality objectives specified in accordance with the regulatory enactments regulating the field of environmental protection, as well as other requirements of regulatory enactments, the conditions of the permit may be disputed at the Bureau any time while the relevant permit is in effect. Dispute of the decision shall not suspend the operation of the permit.

B.Yes. A regional environmental board shall, in accordance with the procedures prescribed by the Cabinet, review permit conditions and, if necessary, renew or supplement them.

The matter regarding the issue of a permit or permit conditions shall be reviewed in the following cases:

1) when information regarding the negative effects of pollution on human health or the environment have been received, the limit values of environmental quality requirements have been exceeded or amendments to the regulatory enactments determining the environmental quality requirements have been made;

2) the European Commission has issued new conclusions regarding the best available techniques for the polluting activities (installations);

3) when in accordance with an opinion of State institutions the use of another technology is required in order to guarantee the safety of the process;

4) prior to changes to the polluting activity;

5) if it is provided for in the conditions of the permit;

6) if the pollution created by the installation is so substantial that it is necessary to review the conditions of the permit or the emission limits specified therein, or to specify new emission limits in the permit

7) etc.

C.D. A decision taken by the Bureau may be appealed to a court in accordance with the procedures prescribed by law.

E.Judge ex-officio deals with the case, therefore it is allowed to ask whatever questions judge decides to be important to solve the case. In assessing the legality of an administrative act, the court in its judgment shall have regard only to those facts referred to by the institution as the basis for the administrative act (exception – issue of favourable act). Judge control whether the authoritie’s decision includes discretion mistakes. If a court finds an application for setting aside an administrative act or declaring it invalid as well-founded, it shall set aside the relevant administrative act in full or in part or declare it invalid. In cases provided for by law a court may vary an administrative act and determine the specific substance thereof. But that is is not the case. As far as I check the law on pollution I didn’t find any discretion. But I must mention, my answers are very hypotetical. My consideration on issue, possibly, could be different dealing with real case.


Estonia: According to the new Law on the General Part of the Environmental Code art. 23 they can demand administrative authority to act to guarantee their living condition and healthy environment and if it does not initiate case in court.

This so new regulation that we don’t have yet an implementation practice

  • If it´s possible to reopen the license procedure and have the license revised, which are the preconditions in order to do this?
  • Is it possible, without revising the license, for an authority to decide on binding requirements (conditions) for the operator that are stricter than the conditions stated in the license? Which are the preconditions for such a decision? These are rather complicated issues to answer yes or no. SO I bring the relevant art of the IEA.

4. subdivision Review, Conversion, Suspension and Revocation of Integrated Permits

§ 49. Review of requirements of integrated permits

(1) The issuer of permits shall review the requirements of integrated permits in the following cases:

1) if this is caused by the results of the regular inspection of an installation required to hold an integrated permit provided for in section 158 of this Act;

2) after the publication of a decision on the BAT conclusions relating to the main activity of an installation;

3) where an installation is not covered by any of the BAT conclusions, in the case the developments in the best available techniques allow for the significant reduction of the amount or hazard of emissions;

4) where the contamination caused by the installation is of such significance that the emission limit values need to be reduced or additional emission limit values have to be set;

5) where other measures besides the ones determined in the integrated permit have to be used for ensuring safety of the operation of the installation;

6) where the environmental quality standards are amended or new environmental quality standards are established;

7) where the legal provisions provided by legislation on which the requirements of the permit are based are changed;

8) where substantial changes in the nature or functioning of an installation have been imposed or are proposed.

(2) Upon review of the requirements of an integrated permit in the case specified in subsection (1) of this section, the issuer of permits shall initiate a procedure for amendment of the integrated permit, if necessary.

(3) In the case specified in subsection (1) of this section and upon amendment of the requirements of the permit, the issuer of permits shall require the operator to make the operation of the installation comply with the amended requirements within four years after the publication of the decision on the BAT conclusions.

(4) The issuer of permits shall compare the operation of an installation upon review of the requirements of an integrated permit on the basis of all the available monitoring and inspection information and other necessary information with the best available techniques described in the BAT conclusions and the emission levels associated therewith.

(5) If the issuer of permits finds as a result of reviewing the requirements of an integrated permit that the conversion of the integrated permit is unnecessary, it shall made a decision on it. The decision shall contain the reasons for making the decision, including the results of the consultations held before the decision was made and an explanation of how they were taken into consideration.

(6) An operator is obliged to render all possible assistance to the representatives of the issuer of permits reviewing the requirements of the permit in the installation, to provide access for them to the site of the installation and enable them to take samples and gather information concerning the performance of the duties provided for in this Act.

(7) An operator shall pay a state fee for the review of the requirements of an integrated permit.

§ 50. Grounds for conversion of requirements for integrated permits

() The requirements of an integrated permit shall be converted if:

1) the provisions provided by legislation on which the requirements of the permit are based are changed;

2) the contamination is of such significance that adverse changes are caused to the site of the installation, wherefore the existing emission limit values need to be reduced or additional limit values need to be determined;

3) changes in the best available techniques make it possible to substantially reduce emissions or the hazard created thereby without imposing excessive costs;

4) in order to prevent accidents, techniques different from those determined by the integrated permit are required;

5) substantial changes in the nature or functioning of the installation have been imposed or are proposed.

§ 51. Procedure for amendment of integrated permits

(1) If amendment of an integrated permit is initiated by an operator in connection with the amendment or extension of the operation of an installation which volume exceeds the threshold capacity for the subcategory of activities established on the basis of subsection 19 (3) of this Act or if the significant risk involved in this causes a significant negative impact on the environment or human health, the procedure shall be conducted pursuant to §§ 28 - 40 of this Act.

(2) In the cases where amendment of an integrated permit is initiated by the issuer of permits, the issuer of permits shall inform the operator by post or electronic means of the grounds for conversion of the requirements of the permit, request submission of the information necessary for the conversion of the integrated permit, and set a term for submission of the information. When determining the term, the issuer of permits shall take into consideration the extent and availability of the information.

(3) If the extent of conversions made to an integrated permit might interfere with effective monitoring of the production of the installation, the issuer of permits may require the operator to apply for an integrated permit where such conversions would be taken into consideration.

(4) Clause 67 (4) 2) of the Administrative Procedure Act does not apply to amendments of integrated permits.

(5) The provisions of the Administrative Procedure Act concerning open proceedings or the provisions of §§ 34 - 36 of this Act do not apply to amendments of integrated permits by the issuer of permits, except where the permit is converted:

1) because the contamination caused by the installation is of such significance that more strict emission limit values or additional emission limit values need to be set in the integrated permit in accordance with clause 49 (1) 4) of this Act;

2) in such a way that the integrated permit determines less strict emission limit values in accordance with subsection 44 (6) of this Act;

3) upon substantial changes of the installation or any part thereof for the purposes of § 56 of this Act.

(6) The issuer of integrated permits shall make a decision in compliance with the requirements of § 38 of this Act when amending the requirements of the integrated permit.

(7) The decision of conversion of an integrated permit shall be notified publicly in accordance with the provisions of § 40 of this Act.

§ 52. Change of integrated permits under simplified procedure

(1) The issuer of permits has the right to change an integrated permit without conducting a procedure after receipt of a relevant notice from an operator, if:

1) the operator is changed;

2) the contact details of the operator have changed;

3) the code numbers or names of chemicals used in the installation have changed, but not the composition thereof;

4) the units of measurement used for calculation of the consumption of resources have changed;

5) the names of auxiliary equipment or the number thereof have changed but such change does not cause any change in the requirements of the integrated permit;

6) the method of presentation of information to the issuer of permits has been changed.

(2) The issuer of permits shall send a notice about the changes made in subsection (1) of this section by electronic means within seven days as of the receipt of the notice to an operator and the city government or rural municipality government of the location of the installation and the Environmental Inspectorate.

§ 53. Suspension of integrated permits

(1) The issuer of permits may suspend an integrated permit in part or in full for up to one year on the bases provided for in clauses 50 2) - 5) of this Act.

(2) Suspension of an integrated permit shall be decided without conducting an open procedure.

§ 54. Revocation of integrated permits

(1) The issuer of the permit shall revoke an integrated permit, if:

1) the operator requests it;

2) the operator has not commenced the activities authorized by the integrated permit within 12 months after the date for commencement of the operation specified in the integrated permit and has not submitted an application for the amendment of the date for commencement of the operation of the installation;

3) it has become evident that, upon application for the integrated permit, the operator submitted false information which was of material importance in the decision to issue the integrated permit, or submitted falsified documents;

4) it has become evident that the issuer of permits or the Environmental Inspectorate has been submitted false information or falsified documentation;

5) the contamination caused by the installation is of such significance that the significant adverse impact caused thereby on the environment, human health, well-being, property and cultural heritage cannot be prevented without fundamental technological restructuring which requires application for a new integrated permit;

6) the operator has repeatedly or significantly violated the safety requirements in a dangerous enterprise or an enterprise liable to be affected by a major accident and thereby caused a risk of accidents or an accident and the Technical Surveillance Authority or the Rescue Board has proposed to the issuer of permits to revoke the integrated permit;

7) the operator is bankrupt or liquidated as a legal person, and the operation is not continued prior to the date prescribed for the next regular environmental inspection based on the same integrated permit by another operator or the operation of the installation is not continued under the control of a trustee in bankruptcy;

8) it has become evident that the techniques used in the installation do not allow to achieve the emission level associated with the best available techniques or the emission level provided for in the BAT conclusions.

(2) The issuer of the permit may revoke the integrated permit:

1) if the grounds provided for in clauses 50 2) - 5) of this Act exist and the interests of a person in public law or a third person cannot be protected efficiently by means of converting the integrated permit;

2) if the operator fails to comply with the requirements provided for in the integrated permit or the legislation and revocation of the integrated permit is required by predominant public interest or the operator has been previously punished for such violation or suspension of the validity of the integrated permit has not expired based on compliance with the requirements of the permit;

3) if the operator has failed to submit the documents required for converting the integrated permit at the request of the issuer of permits.

(3) Clause 67 (4) 2) of the Administrative Procedure Act does not apply to revocation of an integrated permit.

§ 55. Procedure for revocation of integrated permits

(1) Revocation of an integrated permit may be applied for by parties to the procedure and the Environmental Inspectorate.

(2) An integrated permit revocation procedure is initiated by the issuer of permits.

(3) If an integrated permit revocation procedure is initiated by the issuer of permits on its own initiative or the Environmental Inspectorate or based on the request of other parties to the procedure, it shall notify the operator thereof by post or by electronic means within three days as of the initiation of the procedure and indicate the reasons for initiation of the integrated permit revocation procedure.

(4) The operator has the right to submit objections, explanations or additional documentation to the issuer of permits and require to be heard by the issuer of permits within 14 days as of the receipt of the notice pursuant to subsection (3) of this section.

(5) The issuer of permits shall make the decision to revoke an integrated permit or to terminate the procedure within 30 days after the receipt of the explanations and additional information or after the hearing of the operator as specified in subsection (4) of this section.

(6) The issuer of permits shall inform an operator of a decision on revocation of an integrated permit or on termination of the procedure by post or electronic means within seven days as of the day on which the decision is made. The issuer of permits shall send transcripts of the decision to the city or rural municipality government of the location of the installation and the Environmental Inspectorate and in the case of a dangerous enterprise or an enterprise liable to be affected by a major accident to the Technical Surveillance Authority and to the rescue centre of the location of the enterprise.

(7) The provisions of the Administrative Procedure Act concerning open proceedings do not apply to any integrated permit revocation procedure.

5. subdivision Changes to Installations, Preparation of Baseline Reports and Site Closures

§ 56. Change in nature and functioning of installation

(1) An operator shall notify the issuer of permits of every change in the nature or functioning of an installation, including an extension of the installation, which might affect the environment or human health.

(2) If an operator has notified the issuer of permits of proposed changes in the nature or functioning of an installation, including an extension of the installation, or the issuer of permits has become aware of such changes in any other manner, the issuer of permits shall determine the significance of the changes within 21 days and, if necessary, initiate the procedure for issue or conversion of an integrated permit.

(3) The issuer of permits deems substantial any change in the operation or extension of an installation, combustion plant, waste incineration plant or waste co-incineration plant, which volume exceeds the threshold capacity for the subcategory of activities established on the basis of subsection 19 (3) of this Act or if the significant risk involved in this causes a significant adverse impact on the environment or human health.

(4) Any change in the nature or functioning of an installation, including an extension of the installation may be implemented only after the issuer of permits has informed the operator in writing that amendment of the requirements of the integrated permit is not required for implementation thereof or if the requirements of the integrated permit have already been converted.

  • At what stage may such a dispute be challenged at court? After refusal of act, undue delay in acting or after passing non-satisfactory or too strict decision on measures to be taken.
  • If a case related to the abovementioned dispute is opened at your court, what issues may you judge upon and how free are you:
      • To ask questions in order to clarify uncertainties. YES
      • To order the operator to make further investigations. If so, are such investigations referred back to the issuing authority - always? Usually not for the operator. Judge can order administrative authorities.
      • To alter the challenged decision regarding the outcome? Judge can nullify it (to declare it partially or fully void or unlawful) but not to alter.


Finland: According to the EPA, the permit authority must, on application by the permit holder, supervisory authority, the relevant authority protecting the public good, a party suffering harm or an NGO, amend the permit if:

1) the pollution or risk thereof caused by the activity is substantially different than was expected;

2) the activity has a consequence prohibited in the Act;

3) emissions may be reduced considerably without undue cost due to advances in best available technology;

4) the grounds for a permit condition are found to be incorrect and amending the condition does not create the need to reconsider the preconditions for granting the permit;

5) circumstances outside the activity have changed substantially since the granting of the permit and amending the permit is therefore required; or

6) amending the permit is necessary in order to meet a specific binding requirement for the prevention of pollution in an act, government decree or in EU law, adopted after granting of the permit.

It is also possible for the supervisory authority to issue compulsory orders, including interim ones, based on binding obligations provided directly by the EPA. The situation would likely have to be quite severe in order to justify such orders instead of waiting for a review of the permit. Concerned parties as well as NGO:s have an explicit right to initiate such enforcement procedure with the supervisory authority.

The provisions of the ÅEPA more or less resemble the above, but it does not expressly mention the right of NGO:s to initiate permit amendment or enforcement procedure. This does not mean the authority would not issue a decision on the matter, however.

A first instance authority decision would have to be obtain in order to gain access to court though appeal. Even a decision not to take measures (amend the permit or issue an order) can be challenged by appeal. There is currently no fully effective remedy against total passivity, i.e. refusing to issue a challengeable decision. Such passivity is not generally an issue in Finland, however.

In administrative court procedure, the court has quite far-reaching investigatory competence, i.e. the court has the option of requesting additional expert (authority) statements ex officio or asking clarifying questions if there is an oral hearing (unusual in environmental cases). The court can also decide to conduct a site viewing ex officio. Naturally, investigatory powers must be used impartially, taking into account the setting of the case etc. In principle, further evidence requiring new investigation could be requested from the authority during the court proceedings, but if the authority’s investigation is found essentially insufficient or faulty, the more likely measure would be to reverse the decision and remand the case to the authority for a new first instance decision. The administrative court is competent to alter the authority’s decision. This could mean modifying amendments to the permit or, depending on the circumstances, even deciding to grant an amendment the authority has refused. If the authority has decided not to use compulsory measures in an enforcement case and the court makes a different assessment, the more likely outcome would be reversal and remandment, in order to have the authority reconsider the case or formulate the compulsory order. The administrative courts usually exercise considerable selfrestraint in employing the power of altering authority decision, but environmental permit cases are an example of where this option is more commonly used to reach a lawful end-result while observing greater process economy. The non-jurist specialist judges employed by the Vaasa administrative court and the SAC advance the use of altering powers.

  • In your country, do you have a national case law related to questions under the IPPC-Directive or the IED-Directive? Which aspects have been dealt with by courts in your country?


Slovenia: Yes. There is case law concerning the status of “existing installation”, waste dumps and involvement of general public.


Bulgaria: -


Romania: Usually all the cases are dealt by means of national legislation. Courts in Brasov, Romania have dealt with the annulment of environmental authorization given out to Kronospan (the producer of wood byproducts).


Belgium: Yes, merged general permitting case law.


Italy: Not yet.


Sweden: There are many judgments from the land and environment courts related to IPPC/IED-issues. If you read the judgments sometimes the parties (the applicant ./. public authorities) argue about the compliance of BREFs and BAT. In their reasoning the courts mainly refers to national legislation implementing the Directives. (Private persons and NGOs do not often discuss these questions, instead and when referring to EU-legislation, they often concentrate on issues related to EIA and Natura 2000).

Some examples from the Land and Environment Court of Appeal: Judgment the 30 June 2014, M 740-14 on an appealed license to an oil-refinery and the emissions of VOC (volatile organic compounds). In this case there was a rather thorough discussion on IED-matters in the first instance.

Judgment the 28 February 2014, M 4407-13, regarding conditions for emissions of sulphur to air from an oil-refinery. Here the court of appeal discusses BAT and BREF-document for refineries, the applicability of a not yet decided BREF-document and the possibilities to decide on stricter conditions than according to the BREFs. Judgment the 7 October 2014, M 75-14 regarding a paper mill and emissions of TOC (total organic carbon) to water. Judgment the 16 March 2010, M 6467-08 on emissions of COD (chemical oxygen demand) from a paper mill to water. One of many cases on revising old permits to IPPC-standard.


Finland: There is a comprehensive case law relating to licensing IPPC-operations by environmental permits, covering both procedural and material questions. Especially the SAC has published yearbook and other decisions under the EPA, but due to it’s specialisation the case law of the Vaasa Administrative Court is followed by stakeholders as well. Some decisions even involve the interpretory implications of the IPPC Directive in applying the EPA. Due to the novelty of the legislation implementing the IED, case law on this part has not had time to evolve. A decision that can be mentioned is yearbook decision 2011:12 of the SAC. In it the SAC found that the scope of the EPA could not be construed in a manner that would enable issuing a permit condition directly related to energy use efficiency, even with consideration the IPPC Directive. However, with the revised EPA, the decision is outdated.


Lithuania: National courts, and especially administrative courts, analyse questions falling within the scope of the IPPC-Directive and IED-Directive.

The key aspects of judicial review are related to: 1) annulment or correction of Integrated pollution prevention and control permit (hereinafter – the Permit), 2) duty to take into consideration the information collected during Environmental impact assessment procedures (Article 9 (2) of the IPPC-Directive), 3) access to information and public participation in the Permit procedure (Article 15 of the IPPC-Directive), 4) interim measures aiming to suspend validity of a contested act (suspension of the decision whereby annulled the Permit), 5) compensation for pecuniary and non-pecuniary damage concerning infringements of procedures for issuing Permit 6) right of the public concerned to access to justice (Article 16 of the IPPC-Directive).

In addition, it is worthy to note that the national case law usually do not use direct links to the provisions of the IPPC-Directive or the IED-Directive.


Administrative case No. A525-844/2010. A permit to operate the Kazokiškiai landfill was repealed by the Court after concluding that an Permit to operate the landfill was issued without the necessary Environmental impact assessment, also before a new positive decision was adopted concerning the possibilities of developing the planned economic activities in the chosen area, or a decision concluding that such an assessment was not necessary in the case. The execution of the latter ruling of the Court (repealing the permit to operate the landfill) was stayed for one year, so as to ensure the possibility to resolve the question of disposal of waste, forming in the municipalities of the Vilnius region.


Administrative case No. A822-989/2013. The dispute in the main proceedings concerned the authorization relating to integrated pollution prevention and control issued by Vilnius Region Environmental Protection Department, whereby allowed to operate Vilnius District municipal waste landfill sites. The applicants alleged that this authorisation was issued without a compulsory procedure of the Environmental impact assessment. The extended panel of judges of the Supreme Administrative Court of Lithuania (hereinafter – the Court) observed that, first of all, according to the Law on Environmental Impact Assessment, the object of environmental impact assessment shall be the proposed economic activity, however, the fact that the authorization is issued for the landfills which operates economic activities for more than one year, does not mean that the aforementioned law is not applied to this activity, and the obligations related with the procedure of environmental impact assessment have not to be fulfilled. The Supreme Administrative Court of Lithuania noted that the economic activity of the dispute is attributed to activities which have significant negative consequences on the environment, and which should be assessed in a course of a specific screening. The purpose of this screening shall have the objective of determining whether a proposed economic activity is subject to an environmental impact assessment. Having examined the case, the extended panel of judges of the Supreme Administrative Court of Lithuania ruled that the information of a conducted screening involved only certain aspects in the question of the landfills modernisation and excluded some parts of activities relating to waste disposal in landfills which was issued in the authorisation. Having regard to the referred circumstances, the Court held that the authorisation to operate the landfills was issued without the Environmental impact assessment in relation to this economic activity. Therefore, the authorisation was annulled as being unlawful.


Administrative case No. A502-192/2013. In the case under review the dispute occurred because of the refusal of Klaipėda Region Environmental Protection Department (hereinafter – the REPD) to correct the Permit issued to the applicant. It was determined that making the use of the right of initiative established in Paragraph 61 of the Rules on the Issuance, Renewal and Revocation of the Integrated Pollution Prevention and Control Permits the applicant addressed the REPD with regard to the adjustment of the part of the Permit asking to amend pollution limit values for the discharges of water used in technological cooling processes to a river. Having examined the case the panel of judges of the Supreme Administrative Court of Lithuania determined that neither when addressing the REPD nor during the judicial proceedings did the applicant prove the existence of any actual circumstances, which changed (emerged) in essence after the last correction of the Permit issued to the applicant. The Supreme Administrative Court of Lithuania concluded that the refusal of the REPD to satisfy the request of the applicant was reasonable and lawful.


Administrative case No. A525-1471/2013. In the case under review, the dispute occurred because of the refusal of Utena Region Environmental Protection Department (hereinafter – the REPD) to correct the Permit issued to the applicant. The applicant asked to reduce the permitted cost of waste management. The Supreme Administrative Court of Lithuania noted that the defendant did not have not only a duty but also a right to correct the Permit because of lack of any evidentiary material substantiating the asked cost of waste management. The Supreme Administrative Court of Lithuania concluded that the refusal of the REPD to satisfy the request of the applicant was reasonable and lawful.


Administrative case No. A14-947/2007. In the case under the examination, the dispute concerned the authorization related to integrated pollution prevention and control. The Supreme Administrative Court stated that the competent institution substantially infringed public participation in the Permit procedure. The contested authorization was therefore annulled.


Administrative case No. I662-11/2013. In the case under review, the panel of judges of the Supreme Administrative Court of Lithuania examined the lawfulness of the Rules on the Issuance, Renewal and Revocation of the Integrated Pollution Prevention and Control Permits (hereinafter – the Rules). The Court concluded that the Paragraph 64.6 of the Rules, which allows the annulment of the Permit was inconsistent with the Article 35 of the Law on Waste Management. According to the Court, measures having substantial economic effect shall be legitimate, while contested provision does not have sufficient legal basis.


Administrative case No. AS556-613/2012. In the case under examination, the applicant asked to apply the measures securing the claim. In other words, he sought the suspension of the decision issued by Utena Region Environmental Protection Department, whereby annulled the Permit. The Supreme Administrative Court of Lithuania acknowledged this request of the applicant to be reasonable. The Court stated that cancellation of the applicant’s economic activity entails a direct threat to the applicant’s business continuity. The main reasons of this statement were large loss of the applicant and significantly declining taxes.


Administrative case No. A438-531/2013. The applicant asked to oblige competent institution to allow the application for Permit and to compensate pecuniary and non-pecuniary damage. The Supreme Administrative Court concluded that the defendant neglected the terms of application‘s allowance by not taking any decision regarding the aforementioned application. Concerning the application, the Court obliged the defendant to come to a decision within twenty working days. The panel of judges concluded that the applicant had to be compensated for non-material damages, which he incurred for deterioration of his reputation.


Civil case No. 3K-3-112/2013. The plaintiffs asked to annul the Permit issued to the defendant, to declare the contested economic activity unlawful and to oblige to suspend it. This request was acknowledged to be lawful and reasonable. According to the Supreme Court of Lithuania, persons who bring an action to the judiciary court concerning infringed constitutional right to a clean environment should be guaranteed judicial protection following not only from the Private law, but also from the Public law. Taking into consideration the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, the jurisprudence of the Court of Justice of the European Union and the fact that applicants fall under the sphere of environmental protection, the Supreme administrative court concluded that the aforementioned circumstances are sufficient to recognize their right to access to justice. The Court stated that because of infringements of the Permit procedures and not fulfilled obligations related to the procedure of Environmental impact assessment the contested Permit should be annulled. Having regard to the referred circumstance, the Court acknowledged the economic activity of the defendant unlawful.


Spain: Yes. There are judgments on procedural infringements, inclusion of activities as one of those listed in annex I of the Ley 16/2002 (IPPC Directive), compatibility with city planning and land use, cumulative effects, corrective measures…


Latvia: There are cases dealt within scope of Directives, concerning submission for, issue, review and revocation of permits, as well amendments to the conditions. But I’m not sure if the list is complete.


Estonia: I don’t know yet.

  • Do you have any suggestions for new AEAJ workshops?
    • topics for new workshops
    • locations for new workshops – places to study/visit etc.


Romania: Locations: Brașov, Romania.


Belgium: Administrative fining.

Effective administrative justice: tools beyond annulation and suspension


Italy: I don’t have suggestions: I trust in the co-chairs!


Sweden: Stockholm – visit at the Stockholm Resilience Center

Copenhagen – visit at the European Environment Agency

Helsinki, visit at the ECHA (European Chemicals Agency)

Brussels – Europarc Federation

Tilburg, Netherlands –

Eurosite:


Finland: Perhaps a workshop centring solely wound decision-making with regard to land use plans? These have often been touched upon during previous workshops, but no coherent comparisons have been made of national solutions and access to justice.


Lithuania: We suggest the workshop together with the General Assembly of AEAJ in 2016 in Palanga at the Baltic Sea or in Vilnius.

The topic of this workshop could be “Assessment of plans and projects affecting Natura 2000 sites: Environmental Impact Assessment, Strategic Environmental Assessment and Appropriate Assessment”


Estonia: Topics: Expertise in environmental matters

Locations for new workshops – places to study/visit etc.: Germany, some environmental expert body or expertise institute.


/Anders Bengtsson


Footnotes


[1] Order of the Minister of Environment No. D1-528 of 15 July 2013 on the Rules for Issuance, Modification and Revocation of Integrated Pollution Prevention and Control Permits (Taršos integruotos prevencijos ir kontrolės leidimų išdavimo, pakeitimo ir galiojimo panaikinimo taisyklės).


[2] Order of the Minister of Environment No. D1-259 of 6 March 2014 on approval of the Rules for issuance, modification and revocation of pollution permits (Taršos leidimų išdavimo, pakeitimo ir galiojimo panaikinimo taisyklės).