Hungary

Environmental collective redress in Hungary

There have been huge changes in all the general civil and administrative procedure law in recent years, having entered into force on 1 January 2018. There are not yet any data on the practical effect of these new laws and not yet any case law. There are procedural ways providing the possibility to enforce the environmental collective redress enacted in the new collective redress legislation of 2016, the environmental legislation, and the general administrative procedure and the judicial administrative procedure.

New collective redress legislation

The new Civil Procedure Act of 2016 introduced two types of litigation of a collective character: the public interest litigation, and the collective litigation. One of the conditions for a public interest claim is a particular entitlement given by a special (another) act. Then those, who are entitled by a special act may initiate a case, file a suit; those who might be effected must prove their interest, namely why they belong to the group of interested parties. The environmental interest is not explicitly mentioned as an example of a public interest; any case law is missing so far. On the other hand, the collective (or joint) litigation brought by the same new Act has an explicit reference to environmental interests. The collective lawsuit can be filed by at least 10 applicants whose rights are the same and the facts establishing the representative right as well. Such a case can be initiated only in consumer protection, labour law and environmental matters. As for the environmental litigation, only a compensation claim is permitted, arising out of health damage or material damage, directly caused by an unforeseeable environmental emission caused by human activity or omission. This means that the scope of this type of collective litigation is rather narrow and limited in environmental cases. Moreover, the litigation requires an authorization by the court before being heard.

Proceedings with a privileged position of environmental NGOs

The environmental legislation in force (especially the Environmental Protection Act 1995 and the Nature Protection Act 1996) enacts certain provisions giving preferential treatment to environmental NGOs. The environmental NGOs may participate (as “clients”) in environmental administrative procedures within their geographical scope of activity. Under the new Administrative Procedure Act of 2016, the status of a party to the proceedings belongs to those whose rights or lawful interests are affected, and in environmental procedures also to environmental NGOs. When compared to the previous regulation, e.g. the persons living in the affected area and local governments are no more taken automatically as parties (clients) to the case. According to the new Judicial Administrative Procedure Act of 2017, most administrative decisions may be taken to court. The court now has a full reformatory review, meaning that it can also modify the decision. Among those who may bring an administrative decision to court, are also NGOs if a special act or decrees supposes so; if their activity, according to their by-laws, covers the protection of fundamental rights or public interests; and if their activity in the field has been lasting for more than a year. Moreover, the wide access to justice is directly connected with the opportunity of being a party in a public law procedure, which includes the environmental NGOs. The procedure before an administrative court may have a form of a joint judicial proceeding, if the rights and duties are common or are based on the same legal relationship, and also if they are not common but similar and the same court is involved. If there are more than ten practically identical cases in front of the court, the proceedings may have a form a sample litigation in which the court may decide that only one sample case is going to be decided first, while all the others are suspended.

Environmental quasi actio popularis and injunction

There is an instrument that can be considered as an actio popularis of some kind (or a quasi actio popularis): under Article 99 of the Act on Environment, the environmental NGO may firstly take action in the interest of environmental protection in case of endangering the environment, or environmental pollution or environmental damage and may either require the public administration or the local government to take the necessary measures. Secondly, the NGOs may file a case against the operator, asking the court to stop the wrongful activity or to oblige the operator to take the necessary preventive measures. However, effective use of these promising provisions is said to be hindered especially by high costs of proceedings because the suing NGO has to provide all evidence and in case it involves experts, the costs may be prohibitively expensive due to the high expert fees. Therefore, it has been recommended to overcome the said financial barrier e.g. by cost capping mechanisms, a special state fund, reversal of the burden of proof, fee waiver for NGOs or similar instruments; it has been recommended to also supplement the action with the compensation claim. Moreover, the Nature Conservation Act provides the nature conservation NGOs with a similar quasi actio popularis instrument as was described above, only narrowed down to nature preservation as for the NGOs and the protected values.

Hana Müllerová, May 2019