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WG Environmental Law > Meetings > Dublin 13 September 2013 > The solutions to the case study

The solutions to the case study

Summary and Recommendations

I. Foreword

1. The sixth annual workshop of the AEAJ working group Environmental Law was held in co-operation with the Irish Institute for European Law (ICEL).

2. The 19 AEAJ judges in attendance came from the following 10 countries : Bulgaria (BG), Finland (FI), France (FR), Germany (DE), Greece (GR), Italy (IT), Latvia (LV), Slovenia (SI), Sweden (SE), United Kingdom (UK).

3. There was one foreign guest from Osaka University (Japan). Furthermore two Italian academics attended the conference.

4. The subject of the conference was “Remedies Against Public Authorities for Breach of EU Law and the ECHR - with a focus on remedies for breach of EU environmental law and failure to act.”

5. The case study concerned the question of a public authority’s failure to act in an environmental case. Colleagues from eight countries (BG, FI, FR, DE, GR, IT, SI, SE) had submitted beforehand in writing the solution according to their domestic law. At the conference they elaborated on these.

6. This summary collates the suggested solutions to the case study. Although the case study does not have an EU law background, the findings may be checked considered against the requirements for an effective remedy in the field of by EU law.

II. The Findings

1. The administrative procedure

7. It is agreed by all respondent states that the public authority has to start an investigation to establish the facts. In the present case the public authority did so. The result of the investigation was that a permit is necessary but cannot be granted, as in a residential area such a use is prohibited irrespective of the concrete noise emissions. Due to a “typological approach”, as provided by German and Slovenian law, such a use is substantively unlawful, even if the noise emissions do not exceed a threshold established by special environmental rules. This distinction seems to be confined to these two countries. Other national solutions made a distinction between whether the emissions exceed a specified limit or are harmful to a neighbour.

8. The extent of the neighbour’s rights depends at first on the legal conditions for an order to stop the use. Formal illegality is sufficient in DE, FR and GR but not in IT, SI and SE. In FI the lack of permission goes hand in hand with substantive unlawful use, because a deviation is needed in such a case. This may be regarded as formal illegality as well. In SE the neighbour has to show that the use of the barn causes detriment to him.

9. The next question raised is whether an enforcement or remedial order is obligatory when the legal conditions are satisfied. In BG, DE, FI a margin of discretion is recognized, but not in GR or SI. In IT an order is mandatory only if the infraction occurs in an area protected by special landscape preservation. In SE, an order is mandatory in the case of detriment to a neighbour.

10. French law provides an enforcement mechanism other than an administrative order. The public authority (the mayor in such a case) has to prepare a report and send it to the prosecutor to ask the Criminal Court to impose a fine on the barn user and order him to take specific measures (in this case, to give back the barn its previous use).This penal solution seems to be unique among respondent states. However, it is noteworthy that German law does not exclude this penal option, because enforcement of administrative law (a future legal process) and punishment of criminal conduct (in respect of the past) are regarded as different matters.

11. If the decision whether to take action is at the discretion of the public authority the question arises what legal rules and principles govern the exercise of discretion. In this respect no differences among the respondent states exist. The measure must be appropriate, must be necessary to achieve the desired aim and the principle of equality must be respected.

2. The Question of Judicial Review

12. First of all the kind of omission must be clarified. Some countries presented alternative solutions making a difference between a “zero decision” (a positive decision not to act) and a failure of the public authority to do anything. This problem does not arise in FR and GR. French law provides an implicit refusal after two month of inaction, whereas in Greek law the period is three months.

13. According to the case study the public authority made no decision on the application of the neighbour. In the northern countries (FI, SE) no legal remedy seems to be provided in such a situation. In BG the neighbour is not admitted as an interested party in the investigation following his complaint. But he may appeal against a failure to start an investigation. In such a case the Court may order an inspection.

14. In FR the Court may cancel the implicit refusal and send the case back to the mayor on request of the plaintiff. The mayor is then obliged to proceed “by the penal route”, as described above.

15. In GR the neighbour may appeal against the implicit refusal. The competent tribunal is the Supreme Administrative Court. The Court may declare the illegality of the refusal and send the case back to act in compliance with the Court’s decision. But such an appeal is mostly a theoretical option due to the length and high cost of the proceedings.

16. In SI the neighbour is a party in the inspection proceedings and may file a lawsuit against the failure to respond. The Court may order a decision to be made. If the decision is not in favour of the neighbour he may challenge the refusal to act by a new appeal. If the Court annuls the administrative decision it is empowered to give instructions for the new proceedings. But it is not likely that the Court gives a mandatory order.

17. The German and Italian solutions are similar. If there is an obligation to intervene, the Court orders an administrative act stopping the illegal use. If a margin of discretion exists, the Court orders the authority to take a fresh decision and to take into consideration the reasoning of the judgment.

18. However, German law provides a restriction pertaining to the scope of judicial review. The Plaintiff cannot challenge the lawfulness in every respect. According to the so called “protective norm doctrine” the Plaintiff must rely on law which aims to protect interests of the Plaintiff. The protective character of a legal provision is to be determined by interpretation. In this field broad case law exists. In the present case the rules prohibiting the use of the barn are intended to protect the neighbour too. Even in such a case a margin of discretion is not excluded automatically under German doctrine. But discretion may “shrink to zero”. If an operation infringes “protective law”, a right to demand a remedial administrative measure is usually conferred on the applicant, absent exceptional circumstances. In the present case the ‚‘promise‘ of the owner to search for a new location is not sufficient to justify an exception. Therefore the litigation is well founded. The Court will compel the illegal use of the barn to be terminated by an administrative order.

19. An Italian Court would decide in the same way, if the noise exceeds the legal maximum.

3. Interim relief

20. In BG and IT the Court may not grant interim relief. But Italian law provides a special procedure against inaction of public administration (the so called “silence proceeding”) which is very quick and is equivalent to interim relief.

21. In DE, FR, GR and SI interim relief may be granted by the Administrative Courts and in SE by the Land and Environment Court, either in an administrative (appealed) case or a civil lawsuit (against the barn user).

22. German Courts normally decide without an oral hearing and rely on documentary evidence only. The decision lies at the discretion of the court which has to weigh competing interests. A prima facie analysis on facts and law is carried out. If the claim is considered to be well founded, the court usually grants an interim order - as did the Court in the present case, even though there was no threat of irreversible damage.

23. In FR, GR, SI the litigant has to demonstrate the threat of a detriment to his interests.

4. Execution

24. In FI and SE special rules for individuals to enforce a judgment or a judicial order do not exist.

25. Bulgarian law provides detailed rules for the enforcement procedure. In the case of a refusal to carry out the Court’s decision a fine shall be imposed on the culpable officials.

26. In France, the plaintiff can ask the court to impose a periodic penalty payment in order to prompt the municipality to execute the judgment (to establish a report on the facts in this case).

27. German law provides the threatening of a fine by the Court. But enforcement of a Court’s decision against a stubborn public authority rarely occurs in practice.

28. In IT the plaintiff may ask the Court to compel the administration to carry out the order by making use of a subsidiary organ of the Court (the commissario ad acta), which can eventually act in place of the administration and can even deliver the prohibiting act instead of the administration.

29. In SI the refusal to follow the Court’s decision may be challenged by a new action.

III. Conclusions and recommendations

30. Effective legal protection against failure to act depends, firstly, on rules and principles for the administrative interference namely on the extent of administrative discretion in this field. The more the interests of an affected third party are to be taken into consideration the less a margin of discretion should be recognized.

31. Secondly, an action for failure to act should be provided when the public authority does not decide on an application within a reasonable time. The jurisdiction of the Supreme Administrative Court, as provided in Greece, is an obstacle to effective legal protection.

32. The French and Greek models which assume a refusal after a period of inertia simplify legal protection against administrative omission.

33. In the most of the respondent states, a civil lawsuit against the offender seems to differ from an action before the Administrative Courts. An administrative lawsuit which is governed by the ex officio investigation principle is easier considering the cost risk, burden of proof and the execution of the judgement.

34. The penal mechanism, as provided in France, seems to be an equivalent, if the prosecution is mandatory or if the affected party has a legal remedy against the prosecutor’s failure to bring proceedings.

35. A judgment which is not limited to a mere declaration of illegality but gives mandatory instructions to the administrative authority concerned is a most efficacious remedy.

36. Effective legal protection requires either the availability of interim relief under conditions which are not excessively restrictive or a special fast procedure such as the Italian model.

37. The execution of Court decisions is not a major problem in practice. The national rules in the respondent states appear sufficient to adequately protect the interests of a successful plaintiff.