Environment workshop in Sofia, Bulgarian case

1.Background

Rilska Sveta Obitel, Rila Monastery , a non-profit legal person - in the capacity of a project contractor has put in a public notice for investment proposals on the construction of a small waterpower plant (SWP) on the river Iliyna.

Regarding this, the director of the Regional Inspection on the Environment and Water, Sofia, has notified the contractor of the project that the intended activity is subject to Environmental Impact Assessment (EIA). It is stipulated that the Minister of Environment and Water is competent to decide upon it since the investment proposal falls entirely within the protected area of Natural Park Rilski Monastery.

In a letter to Ministry of Environment and Water, the contractor - Rilska Sveta Obitel, Rila Monastery - has presented information about the declared proposal concerning the necessity of Environmental Impact Assessment (EIA). The notice, the characteristics of a potential impact and a copy of the receipt for a charge paid have been attached.
In a letter as of 2007, Rilska Sveta Obitel substantiated the need to construct a small waterpower plant on the river Iliyna before the administrative body, attaching three possible alternative projects for the implementation of the investment intention. In the opinion of the Directorate National Nature Protection Service at Ministry of Environment and Water, the investment proposal falls entirely within the boundaries of the Natural Park Rilski Monastery as well as on the territory of an area proposed under the Biological Diversity Act. It was specified that the second of the three proposed projects on the construction of the waterpower plant did not conflict with the existing set of rules for the Natural Park and is quite unlikely to have a significant impact over the subject of protected area preservation.
A decision against the necessity of conducting Environmental Impact Assessment (EIA) of the investment proposal “Construction of a small waterpower plant Iliyna”, on the river Iliyna, with a contractor Rilska Sveta Obitel - Rilski Monastery, was made by the Minister of Environment and Water of Bulgaria on 16 July, 2007.

The Balkani Association for wild nature, city of Sofia, has lodged a complaint to the Supreme Administrative Court for an action of setting aside of the administrative act on account of irregularity and conflict with the substantive provisions and object of the law. It is their contention that the project implementation will endanger the said protected area where alluvial forests and the stream crab are subject to preservation.
The respondent, Minister of Environment and Water has challenged the complaint as inadmissible and unfounded. The interested party, Rilska Sveta Obitel, Rilski Monastery has contested the complaint on the same grounds.

Legal Framework:

a/ International law
UNECE Convention on Access to information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Århus Convention)

b/ National law

The Constitution of the Republic of Bulgaria
Article 120. (2) Citizens and legal persons may appeal against any administrative act which affects them except such as is expressly specified [as unappealable] by statute.

Environmental Protection Act, Promulgated, State Gazette No. 91/25.09.2002
Article 92 Environmental Impact Assessment shall mandatorily be conducted of:

1. any development proposals for execution of construction, activities and technologies listed in Annex 1 hereto;
2. any development proposals for construction, activities and technologies likely to cause significant adverse transboundary impact according to Appendix I to Article 2 of the Convention on Environmental Impact Assessment in a Transboundary Context.

Article 93 (1) The need of environmental impact assessment shall be determined for:
1. any development proposals for construction, activities and technologies listed in Annex 2 hereto;
2. any development proposals for extension and/or change in the production activity according to Annex 2 hereto;
……
5. any development proposals for new construction, activities and technologies in protected areas according to the provisions of Annex 2 hereto, and any proposals for extension and/or change in the production activity within protected areas.
(5) The authorities referred to in Paragraphs (2) and (3) shall determine the need of conduct of EIA within one month after a request for determination is made by the initiator of the proposal referred to in Item 2 of Article 81 herein. The reasoning for the determination shall be declared to the general public.

Article 99 (1) Within seven days after holding a discussion under Article 97 herein, the initiator shall submit to the competent authority the results of the said discussion, including the opinions and a minutes of proceedings.
(2) The competent authority shall make an EIA decision within three months after the discussion, taking into account the results thereof.
(3) The EIA decision shall contain:
1. the name of the issuing authority;
2. the name, place of residence/registered office of the initiator;
3. the grounds of fact and law on which the decision is delivered;
4. reasoning;
5. operative part;
6. conditions for implementation, including measures to prevent, reduce or offset significant adverse effects on the environment, as well as deadlines for compliance, where necessary;
7. appellate authority and time limit for appeal;
8. liability for non-compliance with the conditions set in the decision;
9. date of issue and signature.
(5) (Supplemented, SG No. 77/2005) The competent authority under Paragraph (1) shall ensure access to the content of the EIA decision following the delivery thereof, including access to the annexes to the said decision.
(6) (Supplemented, SG No. 77/2005, amended, SG No. 30/2006) The persons concerned may appeal against the EIA decision according to the procedure established by the Administrative Procedure Code within fourteen days after the announcement under Para (4).

SUPPLEMENTARY PROVISIONS

24. "Public" shall be one or more natural or juristic persons and the associations, organizations or groups thereof, established in accordance with national legislation.
25. (Supplemented, SG No. 77/2005) "The public concerned" shall be the public referred to in Item 24, which is affected or is likely to be affected by, or which has an interest in, the procedures for approval of plans, programmes, development proposals, and in the decision-making process on the issuance or updating of permits according to the procedure established by this Act, or in the conditions set in the permits, including the non-governmental organizations promoting environmental protection which are established in accordance with national legislation.

Annex 2 to Items 1 and 2 of Article 93 (1) (Amended, SG No. 77/2005
3. Energy industry
(h) installations for hydroelectric energy production;

Protected Areas Act
Promulgated, State Gazette No. 133/11.11.1998
Article 21
The following activities shall be prohibited in national parks:
1. (amended, SG No. 48/2000) any construction, with the exception of hikers’ shelters and chalets, water catchments for drinking purposes, treatment facilities, park management and visitor service buildings and facilities, underground communications, repair of existing buildings and roads, and sports and other facilities;
9. disturbing the natural state of aquatic areas, watercourses, the banks thereof and the riparian lands and littoral zones;
14. interfering with biological diversity;
Natural Parks
Article 29
(1) Areas hosting various ecosystems with diverse plant and animal species and the habitats thereof, with typical and remarkable landscapes and non-living natural features, shall be designated natural parks.
(2) Natural parks shall be managed for the purpose of:
3. sustainable use of renewable natural resources while preserving traditional forms of livelihood, and ensuring conditions for the development of tourism.lan.

TRANSITIONAL AND FINAL PROVISIONS
§ 2. (2) (Amended, SG No. 28/2000) The provisions of Article 21 herein shall be applied in the management plan of the Rila Monastery Natural Park.

3. Legal issues
1. Is the decision against conducting of Environmental Impact Assessment (EIA) subject to appeal since Art.93, para.5 of Environmental Protection Act only refers to appealable positive decisions with a judgment passed on conducting EIA?
2. Has the complainant legal interest to appeal?
3. Whereas the investment proposal is under Annex 2 of the Environmental Protection Act, what are the conditions under which the administrative body shall act - under binding competence or under operative independence and what are the powers of the court? What are the requirements to the motives of the administrative act?
4. Is the construction of a small waterpower plant in the protected territory of a national park legally permissible?
5. What shall be the instruments of evidence with which the complainant shall duly prove their allegation about any potential danger of injury to the alluvial forests and the stream crab subject to preservation in the protected zone of the Rila Monastery.

5. Jurisprudence of the Bulgarian law courts in the field of environmental law

The modern Bulgarian legislation in the field of public relations connected with protection of the environment started its development after initiating the talks of accession of the country to the European Union. During the process of accession the primary and secondary legislation were gradually harmonized with the law of the European communities.

The obligation of the state to provide protection of the environment is laid down in the Constitution of the Republic of Bulgaria. Under Article 15 the Republic of Bulgaria shall ensure the protection and reproduction of the environment, the maintenance and diversity of wildlife and the rational utilization of the natural wealth and resources of the country. Respective to this obligation Article 55 consolidates the right of citizens to a healthy and favourable environment in accordance with the established standards and norms as well as their obligation to protect the environment.

The first trial cases in the field of environmental law date from the 1997/1998 to 2000 and their number has considerably increased after 2002. Some of the first cases make the impression of being related to the environmental protection issues when the urban development plans were worked out under the pre-2000 valid Environment Act of 1991 and the Regional and Urban Planning Act (promulgated in the State Gazette No.29/1973).

Since 2002 and up to now the most often enforced by the administrative courts acts have been: the Environmental Protection Act adopted in 1998 and the Biological Diversity Act adopted in 2002. The arguments are under the jurisdiction of the respective regional administrative court, where bylaws of the local authorities are appealed, and under the competence of the Supreme Administrative Court, where legislative acts issued by the Council of Ministers and by ministers are appealed. Under article 131 of the Administrative Procedure Code the legal procedure consists of two instances.

1. The first group of cases refers to the access to information related to the environment.

The subject matter is arranged in Chapter 2 ‘Information relating to environment’ of the Environmental Protection Act.

The provision of art. 17 provides everyone with the right of access to available information relating to the environment without having to prove a specific interest.
Any refusal to provide information to a party that needs to prepare the case for the defence therein in any proceeding provided for in this Act or in another law shall be appealable according to the procedure established by the Administrative Procedure Code.
Within this clear normative regulation the court practice of dealing with complaints about denial of providing access to information is also stable.
The court assumes that the order and conditions of providing access to information about the environment, which is laid down in the Environmental Protection Act, is specific in relation to the general Law of Access to public information.
The court has respected claims of foreign persons whose interests in information are related to the investment proposal for the ‘Belene Nuclear Power Station Construction’. So, for instance, a Dutch citizen has complained against the refusal of providing a protocol of the meeting of the Supreme Environmental Council of Experts held in relation to the discussions and recommendations about the report for Assessment of the Environmental Impact, and ‘Eco-svest’ – a non-profit association of citizens of the Republic of Macedonia – refusal of information about environmental protection.

In some of its rulings the court has justified the appellants’ legal interest by referring directly to the Aarhus Convention (Convention on access to information, participation of the public in the decision-making process and access to justice in environmental issues ratified by law, which is valid for Bulgaria as of 16.03.2004 (promulgated in the State Gazette No. 33 of 23.04.2004) and is part of the domestic legislation. In such argument the court repealed the refusal of the Minister of Environment and Water to provide the environmental association ‘About the Earth’ with information of decisions concerning the environment, to submit copies of the public discussions and points of view presented by the participants in particular projects in the 1999-2004 period.

2. The second and most significant group of cases involves assessment of the environmental impact under the Environmental Protection Act and the related with them protection of certain declared protected areas and biological species, which imposes the enforcement of the Biological Diversity Act and the Protected Areas Act.

a/ It is essential to note that the Bulgarian courts recognize the legal interest of non-government organizations to complain against the legislative acts with which assessment of the environmental impact is made, or is assessed as unnecessary. It is assumed that the legal interest of the non-government organizations to contest the decision of the environmental impact assessment is ensuing from the subject and aims underlying their establishment. The court applies the special supplementary provision of para. 1, item 25 of the Environmental Protection Act that defines as ‘concerned public’ by presumption the environmental non-government organizations established in accordance with the national legislation. In some decisions the interest of the environmental organization to complain follows directly from the clauses of the Aarhus convention of access to information, the participation of the public in the decision-making process and the access to justice on environmental issues.

b/ In a big number of cases the NGOs complain against the administrative determinations which decide that there is no necessity of carrying out an environmental impact assessment. Usually, the administrative authority replies that these determinations are not subject to appeal, as art. 93, paragraph 5 of the Environmental Protection Act explicitly provides for the appealability only of the determination to carry out environmental impact assessment.
The court accepts that the decision of refusal to carry out environmental impact assessment terminates the procedure of the investor’s statement and materializes an authoritative declaration of intent with specific legal consequences, which concern a specific circle of legal subjects. In case of absence of regulation in the specific law, which stipulates the authority and the time these determinations are subject to appeal, the general clause of art. 120 of the Constitution of the Republic of Bulgaria of appealability of all legislative acts except those explicitly ruled out by law shall be applicable in their case.

3. The third problem arises when defining the investment proposals as such under Annex No 1 or Annex No 2 of the Environmental Protection Act.

The complaints of the appellants often result from the statement that the authority has wrongly defined the investment proposal as such under Annex 2, for which it is not mandatory to make an Environmental Impact Assessment.

In many cases the court has respected the complaints after accepting that it is mandatory to make an environmental impact assessment. Such is the decision on the complaint of the NGO ‘Ecozdrujenie’ against the decision of the Minister of Environment and Water not to make an environmental impact assessment of an investment proposal to build an equipment for treating, baling, packing and a site for temporary storage of domestic waste on the territory of ‘Kremikovtsi’ region (metallurgical manufacturer) for a three-year usage period. The court has accepted that the investment proposal is not for expansion or change of the production activity of existing projects, but for building of a new equipment and for that reason shall be referred to Annex No1, not to Annex No2.

4. The complainants against the decisions on environmental impact assessment usually claim that the investment proposal runs the potential risk of endangering the flora and fauna if the project is carried out. In order to check whether there is such a risk, the court has to apply the Protected Areas Act and the Biological Diversity Act.

In order to establish the relevant facts, the court accepts written evidence and assigns, where necessary, experts to testify.

a) Such is the case with the lawsuit on the complaint of the Bulgarian Bird Protection Association against a decision of the director of the Regional Inspection for Environment and Water – Haskovo, which estimates not to carry out an environmental impact assessment of the investment proposal for ‘Building a wind power park 20 units wind generators’. The Supreme Administrative Court in a cassation procedure has accepted that the collected evidence material, including the expert’s conclusion, refute the findings of the administrative authority. It relied on the information of the on spot-carried out inspection protocol, which defines that the investment proposal concerns Krumovitsa protected area within the meaning of the Biological Diversity Act, proposed for protection of bird species and included in Annex 1 of Directive 79/409 (EU) of the Council for protection of wild birds. According to the conclusion of the legal and technical expertise the wind power park falls also within a potentially protected area ‘Eastern Rhodopes’, proposed for habitat protection under Directive 92/43 (EU) of the Council for protection of natural habitats and wild flora and fauna. The property, subject of the investment proposal, is situated on an original air route used by the whiteheaded vultures and black vultures as well as on the spring migration route of perns, two kinds of kingfisher and common buzzards. According to the expert’s conclusion the execution of the project can destroy irreparably a number of protected habitats and species. Given this information, the Supreme Administrative Court has accepted that the facts were not clarified in the administrative procedure and in the first instance judicial procedure has repealed the first instance court order and has referred the case back for reconsideration with instructions to collect new evidence on the possible impact on the environmental components including the biological diversity in the investment proposal area.

b/ Similar are the facts in the complaint of the ‘Balkani’ Wildlife Association against the decision of 2007 of the Regional Inspection of Environment and Water Protection (RIEWP)– Vratsa town, which approves the investment proposal for construction of a small water power station ‘Karash’ on the Malak Iskar river. In the prepared report on the Environmental Impact Assessment the administrative authority has considered as unproven the statement of the NGO of the investment proposal negative impact on the protected species in the potentially protected ‘Bebresh’ area. It has been established in the legal procedure that the report on the Environmental Impact Assessment does not actually contain examination and facts of the NGO’s arguments that the habitat protection priorities in the potentially protected area will be completely destroyed in the water mirror flooded river section. This has imposed the decision of the regional administrative court to be repealed and referred back for reconsideration.

c/ The decisions of the government to construct a new nuclear power station on the Danube River are also subject of complaints on part of environmental organizations. The Supreme Administrative Court has ruled on the complaints of non-profit association ‘Earth for Ever’, an NGO from Brno, against a decision on Environmental Impact Assessment of 2004 of the Minister of Environment and Water, which approves the execution of an investment proposal for the construction of the ‘Belene NPS on the ‘Belene’ site with nuclear technology type A – light water nuclear technology based on the use of enriched uranium on isotope 235 U as fuel and water under pressure as moderator and heat transfer at maximum electrical capacity of the reactors 2000 MW. The Supreme Administrative Court has accepted that there is no administrative and procedure infringement and the international requirements under the Environmental Impact Assessment Convention in a transborder context are met.

d/ In one of its latest decisions a five-member panel of the Supreme Administrative Court has respected the appeal of National Movement ‘Ecoglasnost’ against the decision of 2007 of the Minister of Environment and Water to issue, more specifically, to extend the term of a comprehensive licence for a ‘Regional non-dangerous waste landfill for municipality Montana and 10 smaller municipalities’. The court has accepted that the Minister of Environment and Water did not use the Environmental Impact Assessment made in March 2000 in view of the requirements of the Regulation for the conditions and procedure for issuing comprehensive licences. An assessment was made only of the domestic waste of the town of Montana without considering the volume and capacity potentials of the structure. In this way the requirements for the ‘hygienically protected area’ as an element of the healthy protection of the town environment when dumping solid waste are infringed.
For the sake of information it should be noted that in 2005 the decision on the Environmental Impact Assessment of the Minister of Environment and Water, which coordinated the preliminary project of the General Development Plan of Sofia City and Sofia City Municipality with contractor Sofia City Municipality was contested. The complaint was rejected as ungrounded.

5. The appellants often rely on essential administrative and procedure infringement, however the court rarely accepts these arguments as justified.
An illustrative example is the complaint of the Wildlife Association and Social Centre for Environment and Sustained Development from Varna against an order of 2004 of the Minister of Environment and Water, which on grounds of the Biological Diversity Act declares as buffer zone the north side of protected locality ‘Kazashko’ – agricultural fund, where certain activities are prohibited within its boundaries. The valid to the date of issuing Biological Diversity Act required a preliminary appointment of a commission to consider the proposal to declare a buffer zone, which involves representatives of the territorial authorities and executive authority, non-government organizations and land owners. The complaint states that the appointed commission involved people who did not have the necessary certificates of a representative authority in order to be able to participate legally in the meeting held by the commission. The court has accepted that the commission is an assisting body and the wrong formation of its staff did not discredit its final act. The court has also accepted as unjustified the complaint that the minimum dimensions of the buffer zone that safeguard the successful reproduction of the vegitative and animal species in the protected area were not kept. A conclusion of a legal testimony was given in this respect, however the valid regulation to the moment of issuing the act did not regulate the obligatory dimensions of the buffer zone.

5. Complaints against issued licences for doing certain economic activities are very often based on statements of infringement of the Environmental Protection Act.
The mayor of the town of Sarnitsa situated in the Rhodopes has complained against the licence of 2005 of the Minister of Environment and Water issued to a private person to use a water project of the ‘Dospat’ reservoir for fish-breeding and industrial fishing. It was ascertained in the trial case that the normative rules were not observed for defining the zones of the reservoir for angling and industrial fishing, which should be made by order of the executive director of the Fishing and Aquaculture Executive Agency. The investor has not fulfilled the requirement to inform at an early stage the competent authorities and concerned population of its investment intention in a written declaration and provide the elaboration of a range task of environmental impact assessment. In breach of art.62, para.1, item 2 of the Water Act the administrative authority, when issuing the licence did not take into consideration the public interests, because of which the court annulled the issued licence for industrial fishing.

6. The next group of cases concern complaints about issued administrative acts in breach of the Waste Management Act, promulgated in SG No 86/30.09.2003.

The Supreme Administrative Court has rejected the complaint of ‘Belovo’ paper mill against a decision of 2007 of the Minister of Environment and Water, which returned the submitted by the company Plan for putting a non-dangerous waste landfill in compliance with the requirements of the newly adopted special regulation No 8 of 24.08.2004 and has stipulated the termination of dumping waste in the landfill. It has been established that the fulfillment of the activities included in the investment programme and the provided reconstruction investments are not sufficient for putting the dump in compliance with the normative requirements.
With another decision the Supreme Administrative Court has respected the cassation appeal of Sofia City municipal council against the decision of Sofia city court, which declared the Waste Management Programme on the territory of the capital city council 2006-2010 as null and void. It has accepted that the programme is an act of internal departmental nature under the Environmental Protection Act in relation to the Waste Management Act and is part of the municipal environmental programme. It is not an administrative bylaw and is not subject to independent complaint.

8. In many cases compulsory administrative measures (CAM) of termination of production and operations due to their harmful impact on the environment are contested.

The court has ruled on complaints of land owners and environmental organizations against orders of 2006 which the Minister of Environment and Water issued upon a motivated proposal of the environmental organizations – Bulgarian Foundation ‘Biodiversity’, NPO ‘Green Balkans’ and Wildlife Association – Balkans. Due to the initiated procedure on Chapter Three of the Protected Areas Act for declaring the ‘Emine-Irakli’ locality as protected area the minister on grounds of art. 45, para. 1 of the Protected Areas Act has imposed a ban on performing specific operations (basically construction) aiming to prevent the risk of damaging and destroying conservationally significant natural habitats, habitats of protected biological species and populations of rare, vulnerable, endemic and endangered with extinction species of superior plants and fungi. The result of the legal cases was different according to the arguments for irregularity of the orders. At a complaint of the Wildlife Protection Association the Supreme Administrative Court has annulled an order of the minister for Environmental Impact Assessment of 2004 to include the ruled out by a previously imposed total ban on performing certain operations in the protected ‘Irakli’ locality. A technical expertise was assigned on the case, but the final conclusion of the court is based on considerations for administrative and procedure infringements, namely lack of motives.

9. The court has ruled on complaints against inactivity of the administrative authority on the Environmental Protection Act and the Protected Areas Act.

According to art. 256 of the Administrative Procedure Code the non-performance of actual actions, which the administrative authority is obliged to perform by virtue of the law, shall be contestable within fourteen days after the submission of a request to the authority for performance of the said action.
At an appeal of the Bulgarian Foundation ‘Biodiversity’ the Supreme Administrative Court sentenced the Ministry of Environment and Water within a month to organize the consideration of a draft Management Plan of ‘Strandja’ natural park – a revised variant at a meeting of the Supreme Environmental Expert Council. The obligation of the administrative authority ensues from art. 18, para.1 of the Regulation on Elaboration of Protected Area Management Plans, according to which within three months after submission of a draft management plan of a national of natural park, the ministry shall organize the consideration of the said draft at a meeting of the Supreme Environmental Expert Council.

10. In specified cases the Bulgarian court has also ruled on other laws regulating the environmental protection.
Such are the legal cases on the application of the Protection from Environmental Noise Act valid as of 01.01.2006. The Supreme Administrative Court has repealed the decision of the regional administrative court which repeals the order of the mayor of the town binding the person performing manufacturing operations to terminate the operations that exceed the accepted noise levels. The Supreme Administrative Court has accepted that the noise of the performed operations is not produced by industrial installations and equipment within the meaning of the law. The workshop is actually a source of noise beyond the permitted levels, but the compulsory administrative measure (CAM) shall be imposed by the competent authority defined by the Health Act. For that reason the Supreme Administrative Court has declared the mayor’s order as null and void and has sent the correspondence to the competent authority – the Regional Inspection of Public Health Protection and Control.

11. The newest law in the environmental area is the Liability for Prevention and Remedying of Environmental Damage Act promulgated in SG No 43/29.04.2008. So far there has been no jurisprudence in relation to it.

A few years ago a number of legal cases on the Regulations of the conditions and order of determining the responsibility of the state for damaging the environment caused by past actions or non-actions during privatization, adopted in 2003 and 2004, were considered. The court has repealed decisions of the Minister of Environment and Water which terminated the assessment of environmental damages of a production site by the time of privatization of ‘Black Sea Mine – Burgas’, a single owner joint- stock company. The court has accepted that the new documents submitted by the company contain information for environmental damages caused before privatization.

There is still no jurisprudence in the enforcement of certain laws, for instance, Protection Against the Harmful Impact of Chemical Substances and Preparations Act, promulgated in SG No.10/4.02.2000 and Soils Act, promulgated in SG No 89/6.11.2007.

12. The series of trials should also be mentioned in relation to the Natural park ‘Strandja’ by the Black Sea coast declared as protected area , and where permission to construct holiday resort ‘Golden Pearl’ was given.

In its decisions held in late 2008 and early 2009 the Supreme Administrative Court has dismissed the investor’s complaints against the orders issued by the Director of the Regional Directorate of National Construction Control (RDNCC) – Burgas for annulment of the construction permits of the subprojects of holiday resort ‘Golden Pearl, issued by the chief architect of the municipality. The orders for annulment of the permits were issued as a result of the protests of the Regional Prosecutor’s Office submitted to the Regional Directorate of National Construction Control. According to the Administrative Procedure Code, there are signals of major infringement of the law, the administrative authority has the right to initiate and official inspection of the legality of the issued bylaws. It has been established that in the ‘Strandja’ natural park protected area, subject to the specific rules of the Protected Areas Act, the construction permits were issued without satisfying all construction requirements, as well as without a decision on the environmental impact assessment under the Environmental Protection Act and without a permission for sewerage outfall under the Water Act. The investment proposal falls within the application scope of Annex No 1 of the Environmental Protection Act that mandatorily requires and environmental impact assessment (EIA). In view of the protected area, the Minister of Environment and Water shall issue the environmental impact assessment decision. The court has accepted that the construction permits were issued in the total lack of tangible conditions, without any legal grounds and are irregular to the extent of being null and void.

In other cases the court has pronounced on the necessity of Environmental Impact Assessment of investment proposals for hotel construction. In one of its latest decisions the Supreme Administrative Court has rejected the complaint of a property owner against a decision of 2008 of the Minister of Environment and Water that repeals decision of the Director of the Regional Inspection on Environmental and Water Protection (RIEWP) – Varna not to make an environmental impact assessment of investment proposal ‘Construction of a Hotel’ on land property within the potentially protected area ‘Skorpilovtsi beach’ included in the 2000 Nature network and determined in compliance with the EEC 92/43 Directive. The court has accepted that the subordinate administrative authority by way of breaching the procedure on evaluating the necessity of assessment failed to submit a copy of the investor’s notification to the mayor of Skorpilovtsi municipality and inform the concerned public as bound by art. 5, para. 2 of the Regulation of the conditions and order of environmental impact assessment. The administrative decision itself did not contain motives describing the investment proposal and supporting the conclusion that it would in no way affect negatively the habitats and species subject to protection in the potentially protected area.

13. The court decision on the complaint against legislative acts on construction of a domestic waste landfill in Sofia City should not be neglected.

At the complaint of NPO ‘Protection of the Environment and the Population’s Health and Life’ Sofia Administrative Court has repealed the decision of 03.12.2007 of the Director of the Regional Inspection of Environmental and Water

Protection (RIEWP) which permits ‘Chistota – Iskar’ Ltd. for the 03.12.2007 – 03.12.2009 period to perform activities on temporary storing, treating, decontaminating and transpositioning of project waste to two sites at the opposite ends of the town. It has been established that the exploitation of the ‘Suhodol’ landfill was terminated with an order of the Director of the Regional Inspection of Environmental and Water Protection (RIEWP) – Sofia of 2005 and a procedure of its closure was initiated due to the non-compliance with Regulation No 8/24.04.2004 on the conditions and requirements for construction and exploitation of landfills and other equipment and installation for waste utilization and decontamination. At the end of 2007 the Minister of Environment and Water repealed the order for the’Suhodol’ landfill closure by virtue of art. 99 ensuing from the Administrative Procedure Code (APC) and issued the contested permission for waste treating of ’Chistota – Iskar’ Ltd. The court has accepted that the permission was issued in breach of art. 39, para. 1, item 7 of the Waste Management Act – no decision on Environmental Impact Assessment was issued or decision to waive Environmental Impact Assessment in accordance with the Environmental Protection Act. Art. 12, para.1, item 2 of the same act is breached – absence of a comprehensive licence issued as per chapter 7, section 2 of the Environmental Protection Act, which is required to perform the listed activities in relation to waste.

14. And finally I will comment on the decision of the Supreme Administrative Court of 29.12.2008 which left unconsidered the complaint of the ‘Association of protection of private owners’ interests’ from the city of Varna against regulations of a Decision of the Council of Ministers No. 52/05.02.2008 for amendment and supplement of Decision No. 122 of the Council of Ministers of 2007 for approval of a List of protected areas for protection of wild birds and a List of protected areas for protection of natural habitats and wild flora and fauna, Decision No. 661 of the Council of Ministers of 2007 for approval of a List of protected areas for protection of natural habitats and wild flora and fauna, and Decision No 802 of the Council of Ministers for approval of a List of protected areas for protection of wild birds and a List of protected areas for protection of natural habitats and wild flora and fauna.
In these proceedings interested parties have taken part, such as NPO ‘Bulgarian Association for Bird protection’, ‘Bulgarian Foundation Biodiversity’ ‘Association for Wild nature – Blakani’ as well as NPO ‘Association of land owners from the village of Emona, Irakli locality and the village of Banya.
The court has established that with the decision in its contested part the Council of Ministers has approved amendments in the Lists of protected areas within the meaning of art. 16, para.1, item 1 of the Biological Diversity Act. After being promulgated in the State Gazette, the list is submitted to the European Commission for approval of the protected areas. The approval of the lists by the European Commission initiates a further procedure of declaring the protected areas, namely the Minister of Environment and Water issues and order of declaring the protected areas, which is final and is not subject to complaint as per the regulation of art. 12, para. 7 of the Biological Diversity Act. The contested decision of the Council of Ministers is part of the complex actual structure of approving changes in the protected areas, which is not subject to independent legal control. Another consideration in support of the inadmissibility of legislative control is the exclusion from a legal appeal of the final legislative act of the Minister of Environment and Water as per art. 12, para. 7 of the Biodiversity Act.