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Scotland: Lord Advocate lends backing to environmental court. Scotland’s top prosecutor has thrown his weight behind the creation of a specialist environmental court.
The Lord Advocate Frank Mulholland QC said the measure would send a “huge and powerful message” to the public of the seriousness with which this area of criminal law is taken.
United Kingdom - Supreme Court - R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents) (No 2)  UKSC 78 - a link to the judgement. Judgment by the United Kingdom Supreme Court in regards to R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents) (No 2)  UKSC 78 was given on 11 December 2013. The appeal concerned the meaning of “prohibitively expensive” under the Aarhus Convention. By way of background, the proceedings related to a cement works permit decision in Rugby in August 2003. Mrs Pallikaropolous led a public opposition campaign. As she was not eligible for legal aid, a local resident, Mr Edwards, began Judicial Review proceedings in October 2003. In February 2006, the substantive application for judicial review was dismissed. Mr Edwards appealed, but withdrew his instructions on the last day of the hearing. Mrs Pallikaropolous was permitted to join as an additional appellant in the public interest so the appeal could be concluded. Her potential costs liability in the Court of Appeal was capped at £2,000. The appeal was dismissed. The respondents’ costs capped at this level were awarded against her. Mrs Pallikaropolous was given leave to appeal by the House of Lords. She provided security for costs of £25,000. Her appeal was dismissed by the House of Lords. A costs order in favour of the respondents was made. The present dispute arose from this order. The Supreme Court referred questions relating to the meaning of “prohibitively expensive” (Art 9(4) Aarhus Convention) to the Court of Justice of the European Union (CJEU). The Supreme Court extracted a number of the points from the CJEU decision (given in April 2013) in its judgment, chiefly that – i: “the test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor ‘appear to be objectively unreasonable’, at least ‘in certain cases’”; ii: “The court did not give definitive guidance as to how to assess what is ‘objectively unreasonable’”; iii: “The court could also take into account what might be called the ‘merits’ of the case: that is, in the words of the court, ‘whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages’;” iv: “That the claimant has not in fact been deterred for carrying on the proceedings is not ‘in itself’ determinative”; and v: “The same criteria are to be applied on appeal as at first instance” (see para 23). Applying this to the present case the Supreme Court found, inter alia, that: “It is impossible ….on the material before us… to hold that the order sought would be ‘subjectively’ unreasonable” (para 30); “The more difficult question is whether there should be some objectively determined lower limit, and if so how it should be assessed. Although this was one of the main issues raised by the reference, the European court has not offered a simple or straightforward answer” (para 31); “Of the five “merits” factors mentioned by the court, I would discount the second and fifth immediately. There is no evidence that the appellant had any economic interest of her own in the proceedings, and, given the grant of permission at each stage, including the appeal to the House of Lords, they could not be said to be frivolous” (para 34); “The relative complexity of the case (factor (iv)) is evidenced by the fact that it took three days before the House. It has not been suggested that the costs incurred by the respondents were excessive in respect of the issues involved in the case. They are not out of line with those incurred by the appellant” (para 35); “The other two factors – (i) the prospects of success and (iii) the importance of the case for the protection of the environment - are at best neutral from the applicant’s point of view” (para 36); and “Taking all these factors into account, I find it impossible to say that the figure of £25,000, viewed objectively, is unreasonably high, either on its own or in conjunction with the £2,000 awarded in the Court of Appeal” (para 37). The Supreme Court made an order for costs in the amount of £25,000 in favour of the respondents. English, 2013.
EU - Court of Justice - (C-279/12) - Reference for a preliminary ruling – Aarhus Convention – Directive 2003/4/EC – Public access to environmental information – Scope – Concept of ‘public authority’ – Water and sewerage undertakers – Privatisation of the water industry in England and Wales. This request for a preliminary ruling concerns the interpretation of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).
The request has been made in proceedings between, on the one hand, Fish Legal and Mrs Shirley and, on the other, the Information Commissioner and United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd (‘the water companies concerned’) relating to the refusal by those companies of requests made by Fish Legal and Mrs Shirley for access to certain information relating to sewerage and water supply.
The Court (Grand Chamber) ruled:
1. In order to determine whether entities such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd can be classified as legal persons which perform ‘public administrative functions’ under national law, within the meaning of Article 2(2)(b) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
2. Undertakings, such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’ by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field.
3. Article 2(2)(b) of Directive 2003/4 must be interpreted as meaning that a person falling within that provision constitutes a public authority in respect of all the environmental information which it holds. Commercial companies, such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, which are capable of being a public authority by virtue of Article 2(2)(c) of the directive only in so far as, when they provide public services in the environmental field, they are under the control of a body or person falling within Article 2(2)(a) or (b) of the directive are not required to provide environmental information if it is not disputed that the information does not relate to the provision of such services.
France - Constitutional Court - Schuepbach Energy LLC challeged a ban on hydraulic fracturing (Decision n° 2013-346 QPC) - A link to the decision. Key subject:
In June 2011, after numerous protests by environmental groups, the French parliament voted to ban the controversial technique for extracting natural gas from shale rock deposits known as hydraulic fracturing, or fracking, due to potential risks to the environment. U.S-based firm Schuepbach Energy had challenged on four counts a ban, which led to two of its exploration permits being cancelled in southern France. In October 2012, France decided to maintain a ban on fracking until there is proof that shale gas exploration won’t harm the environment or “massacre” the landscape. In October 2013, the Constitutional Court considered the observations submitted by the Government and the environmental NGOs and ruled that in imposing the ban, lawmakers were pursuing a legitimate goal in the general interest of protecting the environment and noted differences between geothermal and shale gas exploration techniques. The court also rejected an argument that the ban was imposed against property rights.
Key words: ban on hydraulic fracturing, fracking French
European Union - Court of Justice C - Križan and Others v Slovenská inšpekcia - Summary with a link to the judgement. Key issue: Effective remedies - Members of the public concerned must be able to ask the court to suspend a challenged permit during the review procedure.
Key words: Reference for a preliminary ruling, Directive 85/337/EEC , Directive 96/61/EC, Construction of a landfill site, Permit, Trade secrets, Effect on the validity of the decision authorising the landfill site, EIA, Effective legal remedy, Interim measures, Right to property English | Slovene
Lithuania - Supreme Court - R. S. and others v. Marijampolė Regional Environmental Protection Department of Ministry of Environment of the Republic of Lithuania, CSC “Saerimner” - Summary with a link to the judgement. Key issue: the Aarhus Convention includes a broad scope right to actio negatoria of the public concerned. Even if it is not directly enshrined in every specific national legal act, it derives from the Constitution and the Law on Environment Protection. Key words: public interest, non-governmental organizations, access to justice. English | Lithuanian
Lithuania - Supreme Administrative Court - Curonian Spit national park management plan case - Summary with a link to the judgement. Key issue: Individuals cannot challenge the legality of Governmental decisions by a separate action for annulment in administrative court. However, individuals can challenge the legality of Government’s resolution in individual proceeding, that is to say, to initiate the legality verification procedure in
administrative court (the latter may bring a case to the Constitutional Court).
Key words: access to justice, decision, government English | Lithuanian
Lithuania - Supreme Court - District chief prosecutor v. “Bitė Lietuva” - Summary with a link to the judgement. Key issue: any restrain on public participation in the procedure of preparation and consideration of city plans are recognized as a breach of public interest in the practice of the Lithuanian Supreme Court and therefore grounds for annulment.
Key words: public interest, subjective right, detailed plan English | Lithuanian
Ukraine - Administrative Court of Appeal - NGOs v. the Ministry of Education and Science - summary with a link to the judgement . Key issue: the Court of Appeal allowed an action brought by environmental NGOs against the Ministry of Education and Science for its failure to provide environmental education at various educational levels and found that the Ministry had failed to perform its obligation according to the Law of Ukraine “On protection of Animals Against Cruel Treatment”
Key words: environmental education, protection of citizens’ environmental rights, prevention of cruelty to animals, appeal of failure to act by public authority, judicial review and access to justice
English | Russian | Ukrainian
Belgium - Supreme Court - PP and PSLV v. Gewestelijk Stedenbouwkundig I nspecteur and M vzw - Summary with a link to the judgement. Key issue: standing for Environmental NGOs - the Supreme Court of Belgium changed its position on s
tanding in criminal cases in view of implementing article 9, paragraph 3, of the Aarhus Convention, allowing an environmental NGO to take action for reparation in a case dealing with illegal constructions.
Key words: access to Justice, Criminal case, Violation of Domestic Environmental Law, Civil Party, Environmental NGO, Compensation for moral damages Dutch | English
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