1) Introductory Remarks
a) According to Greek legislation, (articles 94 and 95 of the current
Constitution and article 14, par. 8 of Presidential Decree 18/89
“Codification of provisions of law for the Council of State”), a special
section of the Council of State, the 5th Section, is competent to
judge, in the first and last instance, environmental disputes, arising
from administrative acts (individual or regulatory) or omissions. These
disputes are introduced before the Council through the legal mean of
“writ of annulment” (annulment disputes) with which the Council judges
only the legal aspects of the case and not the facts. The Council’s
decision, by which the relevant writ of annulment is granted or rejected
is not appealed through a legal remedy (irrevocable decision).
b)
The ordinary administrative courts (administrative courts of the first
instance and the administrative courts of appeal), are competent to
judge only specific disputes arising from administrative fines
(individual executive acts), imposed because of violations to
environmental legislation, which are introduced before them, through the
legal mean of recourse. These courts are mostly empowered to judge on
the facts and on the law of the case (substantial administrative
disputes). The decisions of the first instance administrative court are
subject to an appeal before the administrative court of appeal and
eventually, to a cassation before the Council of State.
2) The development of legislation on access of NGO’s to administrative justice in environmental matters
a)
According to existing legal provisions, (article 47 of presidential
decree 18/1989), application for annulment is generally admissible if a
legal interest of the petitioner (natural or legal person) is affected.
Legal interest is the condition for natural or legal persons to be
granted legal standing in administrative judicial proceedings and its
notion (material or moral benefit from the annulment of the
administrative act or omission being appealed) is wider than the notion
of a right.
b)
Legal interest has been interpreted by the Council of State to be
broader in environmental disputes than in other matters. Therefore by
standard jurisprudence of the Council, non-governmental organizations
with legal entity,have legal interest in exercising a writ of annulment
with regard to environmental disputes, provided that, environmental
protection is included in the scope of their charter, not necessarily as
the primary scope but as the secondary one.
c)
Legal interest, however, is also recognized by jurisprudence, for
non-governmental organizations that have not acquired legal entity,
provided that, these are recognized by public order as owners of rights
and obligations in a defined circle of relations or activities, upon
which, the environmental issue, comprising the object of the act being
appealed, falls.
d)
The Aarhus Convention was ratified by Greece in December 2005 by virtue
of Law 3422/2005 and consequently, in accordance with article 28, par. 1
of the Constitution, forms an integral part of the national
legislation, having legal force superior to national law, but inferior
to the Constitution. Moreover, Directive 2003/35/EC was already
incorporated into domestic law, initially through Joint Ministerial
Decision 37111/2021/2003 and upon ratification of the Aarhus Convention,
by virtue of Joint Ministerial Decision 9269/470/2007. By virtue of the
latter, non-governmental organizations that “promote protection of the
environment” are granted the right to appeal against acts or omissions
of Administration that are related to matters of awareness and their
participation during the process for approving environmental terms of
specific projects and activities, both within the context of
administrative control, by exercising administrative recourses provided
for but also within the context of judicial protection by exercising (i)
an action for damages before the competent administrative court in
accordance with the provisions on civil liability of the State and (ii)
filing a writ of annulment before the Council of State.
e)
After ratification of the Aarhus Convention, the issue arises, as to
whether, the practice of issuing permits to perform works or activities,
by the very legislator, in lieu of the competent administrative
authorities, is compatible with said convention. This is so, since the
parliamentary procedure of passing laws, does not provide the
possibility of real participation, of the public, in the evaluation of
relevant studies, regardless of the further problem, that, in this way,
access to justice is hindered or, in any event, is encumbered for the
challenging the legality of the respective plans. Thus, this matter,
which has concerned the Council of State with regard to the Constitution
and Community law (C of S 1567 - 68/2005,) is therefore placed on a new
legal basis.
3) The Judicial Procedure – Judicial control
a) As to admissibility of the writ of annulment, requirements are inter alia a
deposit bond and the appearance of a lawyer (articles 26, 27 and 32 of
P. D. 18/89). The defeated litigant is sentenced by ruling to disburse
the court costs of the litigant that won. The court may, by examining
the circumstances, exempt the defeated litigant wholly or partially from
paying the court costs.
b) The deadline and the londing of the writ of annulment do not ,
automatically, suspend the execution of the appealed administrative act.
However, the competent administrative authority, may decide on its own
motion, to suspend the execution of the appealed administrative act. At
any rate, the applicant may apply to the Council of State for a stay of
execution. (article 52 of P.D.18/89).
c)
The judicial control of acts or omissions by administration with
regards to environmental protection has to do with their formal and
substantive legitimacy. Reasons for annulment are: (i) lack of
competence of the administrative organ that issued the appealed act,
(ii) breach of an essential formality of the procedure for issuing the
administrative act, (iii) violation of law and (iv) abuse of authority.
Conclusion
i)
The impressive expansion of the legal interest in environmental
disputes by the jurisprudence of Council of State, ensures access to
administrative justice for the protection of the environment to a very
wide circle of persons and non-governmental organizations.
ii)
With the ratification of the Aarhus Convention and the incorporation of
the respective Directives, the right of individuals and collective
organizations, among which are non-governmental organizations, is
recognized and safeguarded in domestic law to have access to information
and to participate in decision-making procedures regarding
environmental matters. Thus, a satisfactory statutory framework is
established which specializes and specifies the general right to the
environment. However, it will depend on the practice of Greek courts
whether the clauses of the Convention will remain in the domain of soft
law or whether they will be elevated to binding rules with specific
consequences in the event of their being violated.