— IN THE NAME OF THE REPUBLIC OF HUNGARY –
passed the following uniformity decision initiated by the leader of the Administrative Division in order to ensure the development and uniformity of judicial practice.
1. Apart from the official decision on the granting of the environmental license, a decision rejecting the application therefor passed by an environmental protection authority shall also qualify as a decision on the merits of the administrative case, consequently, based upon paragraph 72(1) of Act IV of 1957 on the General Rules of the State Administration Procedure (hereinafter: SAP), it may be subject to judicial revision.
2. Pursuant to paragraph 98(1) of Act LIII of 1995 on the General Rules of Environmental Protection (hereinafter: EP), associations formed by the citizens for the representation of their environmental interests and other social organisations not qualifying as political parties or interest representations – and active in the impact area – shall be entitled in their area to the legal status of being a party to the case – therefore to the right to commence action – as regards the position taken by the expert authority in state administration procedures in which a legal regulation ordains the acquisition of the official opinion of the environmental authority proceeding as an expert authority.
The leader of the Administrative Division of the Supreme Court initiated a uniformity procedure and the issuing of a uniformity decision with regard to the following questions:
1. Whether an official decision on the granting of the environmental license or refusing the application therefor shall be considered a decision on the merits or not and thus whether it may be subject to judicial review.
2. Whether associations formed by the citizens for the representation of their environmental interests and other social organisations active in the impact area are entitled to the legal status of being a party to the case in state administration procedures in which a legal rule stipulates the acquisition of the official opinion of the environmental authority proceeding as an expert authority.
In making the uniformity decision it must be taken into account that paragraph 72 of EP was supplemented by paragraph 6(3) of Act CXX of 2003 on the Amendment to Environmental Provisions of Certain Acts. This section reads as follows:
“An environmental license which was issued based on a preliminary environmental statement or a detailed environmental impact statement, as well as a single environmental operating permit granted based on paragraph 66(1)b and 66(1)c shall qualify as a state administrative decision passed on the merits of the case.”
The amendment came into force on 7 January 2004 and its provisions shall be applied in pending cases as well.
After the amendment to EP the only question that remained unanswered is whether a decision rejecting the application for the environmental license shall qualify as a decision on the merits of the case.
Pursuant to paragraph 72(1) of the SAP, the client or the party whose lawful interest has been injured may – unless law provides otherwise – file a complaint with the court within 30 days of the announcement of the decision passed on the merits of the state administrative case, referring in the complaint to the infringement upon the law. A decision on the merits of the state administrative case is generally assumed to be a state administrative action with which the competent administrative organ settles the dispute constituting the subject-matter of the case. A decision on the merits may establish, modify and annul rights and obligations. Pursuant to paragraph 90 of the EP, the SAP shall apply to the procedures of environmental authorities with the differences included in this act.
Based on paragraph 70(2)d and paragraph 71(4)b of EP the inspectorate may refuse granting the environmental license. Since the environmental license is a definitive decision that is indispensable to commence and continue an activity that requires an environmental impact assessment, rejecting the application for the license also qualifies as a decision that settles the case on the merits, thus – pursuant to paragraph 72(1) of SAP – it may be subject to judicial revision. Paragraph 72(2) of EP stipulates that the decision refusing the application for environmental license shall contain a detailed explanation involving the facts and consideration based upon which the inspectorate rejected the application. In order that the court may revise it on the merits, the decision shall comply with the requirements of form and content as these are ruled under paragraph 43(1) of the SAP.
The requirement to submit an environmental license in the course of the consent procedure of another, e.g. a construction authority, does not modify the nature of the decision as being one on the merits of the case. If the proceeding administrative organ realises that to be able to adjudge an application submitted to it the issuing of an environmental license by an environmental authority is needed, it shall suspend the proceeding based on paragraph 37(1) of SAP and shall instruct the client to obtain the environmental consent. In the course of the judicial review of the decision passed in the primary procedure, the decision on the application for an environmental license cannot be regarded as a statement of an expert authority as defined under paragraph 20 of the SAP since it may be subject to judicial revision. A decision on the granting or rejecting of the environmental license may be revised by the court on the basis of the motion pursuant to paragraph 72(1) of the SAP and paragraph 327(2) of Act III of 1952, the Code of Civil Procedure (CCP).
Based on paragraph 50(2) of the Constitution the court reviews the legality of public administrative decisions. Under paragraph 57(1) of the Constitution everyone in the Republic of Hungary is entitled to have their rights and duties in legal proceedings judged in a just and public trial by an independent and impartial court established by law. The Constitutional Court in its decision 59/1993 explained that this provision – with regard to paragraph 8(2) of the Constitution – does not mean the unrestricted civil right to file a lawsuit. Pursuant to paragraph 72(1) of the SAP, a limit is imposed on the judicial revision of public administrative decisions by stipulating that it is only a decision on the merits whose review may be requested from the court. If the proceeding authority in the public administrative procedure passes a decision refusing the application of the client, the client has a constitutional right to request judicial revision of the legality of the refusal, and s/he may not be deprived of this right by qualifying the decision as being one not on the merits. As it is included in the decision of the Constitutional Court mentioned above, the restriction shall not affect the essential content of fundamental rights, therefore – in order to fulfil the criteria of constitutionality – restriction shall be inevitable and proportionate with the objective to be attained. Judicial practice shall not continue to broaden the scope of legal restriction of applying to the court because this would lead to infringing the constitutional rights of persons – which is otherwise restricted by law – to an extent not permitted by the Constitution.
The decision of the inspectorate prescribing the submission of a detailed environmental impact statement as it is defined in paragraph 70(2)a of EP, however, cannot be regarded as a decision on the merits of the case, consequently in itself it may not be subject to judicial revision. Pursuant to paragraph 68(1) of EP an environmental impact assessment consists of a scoping (preparatory) and – in case it is necessary in accordance with the rules of the act – a detailed assessment phase. Based on paragraph 68(2) the applicant shall present the results of the parts of the impact assessment in a preliminary environmental statement and a detailed environmental impact statement. Based upon a legal rule or upon its own consideration the inspectorate may oblige the applicant to submit a preliminary environmental statement pursuant to paragraph 69(1) of EP and a detailed environmental impact statement pursuant to paragraph 70(2) of EP. A detailed environmental impact statement is required if the inspectorate has no sufficient information to take a decision on the merits concerning the granting of the environmental license. The obligation to submit a detailed environmental impact statement is thus a decision that precedes the decision on the merits and that is issued by the inspectorate in order to be able to pass a definitive decision. In such a case, namely, a preliminary environmental statement does not provide enough information for the adjudgement of the application for an environmental license, therefore, the inspectorate issues a decision preceding the definitive one so as to collect more data, resolutions, environmental effects and so on.
A decision ordering the submission of a detailed environmental statement shall be regarded as a decision preceding the definitive one, as a result – based upon paragraph 72(1) of SAP – in itself it cannot be subject to judicial revision.
This uniformity decision applies only to procedural questions in connection with environmental official decisions pointed out in the motion, therefore the first part of the decision does not exclude official decisions ruled under EP and other environmental protection regulations (e.g. single environmental operating permit, environmental operating license) from the range of environmental decisions on the merits.
In the course of the judicial review of public administration decisions the protection of the clients’ civil rights is asserted. Private persons (legal entities and other organisations) are entitled to the legal status of a client by law only in cases which affect their rights or legal interests (paragraph 3(4) of SAP).
Considering the fact that environmental protection is of primary importance as regards the healthy living conditions of the present and future generations of humanity, international law and Hungarian law meeting the requirements of law harmonisation extends the boundaries of legal protection and provides for the possibility of taking legal action not only in cases of individual injury but also in cases of environmental damage or emergency which concern public interest or a community of considerable size. Authorised civil organisations entitled to material legal protection may both apply directly to the court with a claim of public interest and may request judicial remedy. A special case of this responsibility for legal protection is when taking part in a procedure of the environmental authority. In such cases the EP provides for the legal status of a party for social organisations engaged in environmental affairs: in the course of the official procedure they may exercise the rights of a client, including the request for judicial revision.
An important responsibility of the authorities and the courts is to ensure that the relevant legal regulations be interpreted and applied in accordance with international regulations and the requirements of the European Union. The governing principles of the Union and the international regulation of environmental protection undoubtedly encourage the participation of the public in official procedures concerning the protection of the environment.
With Act LXXXI of 2004 the Parliament announced the Convention accepted in Aarhus on 25 June 1998 concerning the access to information, the participation of the public in the decision-making process and the provision of the right to justice in environmental affairs. Article 9 of the Convention stipulates that for the members of the public the contracting Parties shall guarantee the access to administrative and judicial procedures so as to enable them to challenge steps and negligence of private persons and authorities which contradict the provisions of national law concerning the environment.
In Chapter 7 of its Fifth Environment Action Programme accepted in 1993, the European Union prescribed the necessity to involve the public in the decision-making process of the environmental official procedures as a practical reform. Among measures required to implement environmental objectives, the Sixth Action Programme (2001-2010) points out the responsibility to enhance the involvement of citizens in environmental proceedings and the suitable authorisation thereof.
In accordance with international and EU regulation Hungarian legal rules opened the way for the public to contribute to the procedures of environmental authorities. Pursuant to paragraph 98(1) of EP associations formed by the citizens for the representation of their environmental interests and other social organisations not qualifying as political parties or interest representations – and active in the impact area – shall be entitled in their area to the legal status of a party to the case in environmental state administrative procedures.
When applying the provision included in paragraph 98(1) of EP, one must define which procedures shall be regarded as environmental administrative procedures. Pursuant to paragraph 97(1) of EP citizens are entitled to participate in procedures concerning the environment in ways specified in this act and in other legal rules. Under paragraph 97(3) citizen participation may be exercised in person or through a representative, through social organisations or through municipal local governments. Paragraph 98(1) provides for citizen participation in environmental administrative procedures through social organisations, however, the act does not define the concept of environmental administrative procedure. The scope of such a procedure, therefore, shall be established by a comparison of other provisions of the EP and the SAP.
Judicial practice is consistent as regards the question that in the course of the procedures of organs charged with environmental administrative activities, associations defined in paragraph 98(1) of EP – like the clients of the environmental administrative procedure – are entitled to commence action. In individual cases, however, these associations were denied the entitlement to commence action if they requested the judicial review of decisions passed in other, e.g. construction official procedure concerning the consent of environmental authorities contributing as expert authorities. This position shall be reconsidered.
According to the wide-spread position of literature on law, consent by an expert authority is an action of executive power of the type of a license, but its order of procedure, the way the authority makes its contribution is different from that of a license. The procedure of an expert authority is usually described as a co-decision, in which – in order to simplify the procedure – instead of separate decisions one decision includes the decisions on the merits taken by several authorities. (Gyula Bándi: Environmental law, Budapest, Osiris, 2002, p112) The procedure of the expert authority is an administrative action falling under the scope of the SAP, in which the legal status of the parties shall be adjudged within the framework of the procedure of the primary authority. This is confirmed by paragraph 62(3) of the SAP under which the position taken by the expert authority may be contested only in the appeal against the decision on the merits, unless a legal rule provides otherwise. Legal rules on environmental protection do not contain diverse provisions. Consequently the judicial revision of the position taken by the expert authority cannot be requested separately, it may be challenged only in the petition submitted against the decision passed in the primary procedure. Nevertheless, the author mentioned above points out that “the expert authority shall also meet the general requirements of the SAP, therefore, it shall issue a decision sufficiently substantiated and reasoned, otherwise its procedure violates law.” (p115)
Pursuant to paragraph 64(1)a of EP the licensing of the use of the environment and the fulfilment of the administrative legal responsibilities concerning the environment fall under the scope of environmental administration, therefore they qualify as responsibilities of the environmental authority, which shall be fulfilled by the environmental authorities specified in paragraph 65 of EP. The environmental authority licenses the use of the environment in those state administrative procedures as well, in which it takes part as an expert authority. The case thus has a separate environmental aspect, concerning which the environmental authority exercises its power to make a decision. The contribution (the decision) of the environmental expert authority is binding upon the authority proceeding in the primary case, the latter cannot neglect it, therefore in this respect the criteria of the environmental state administrative procedure might be established. Taking into account the characteristics of the procedure of the expert authority, paragraph 98(1) of EP thus grants the social organisations engaged in environmental affairs the possibility to challenge the administrative decision passed in the primary procedure pursuant to paragraph 72(1) of the SAP, if the environmental authority contributed as an expert authority to the taking thereof.
Legitimacy, the relation between the subject matter of the suit and the party is a significant aspect of the administrative lawsuit. Based on paragraph 98(1) of EP the environmental protection organisation is entitled to commence action with regard to the position taken by the environmental expert authority and it may request the judicial revision of the administrative decision by referring to the infringement upon law.
These associations are entitled to commence action even if the authority which passed the final decision in the primary procedure ensured their legal status of being a party to the case and adjudged their appeal on the merits. Based on the adjudgement of the claim on the merits, the court shall decide in a judgement on the legal status of a client contested in the suit and on the absence or restriction of the right to commence action.