Poland

Environmental collective redress in Poland

The Polish Act on the Class Actions (Group Proceedings) was adopted in 2009. Under the Act, the class action or group proceedings are civil judicial proceedings in which claims of the same type, sharing the same or identical factual basis, are pursued by at least 10 persons. However, the subject scope of the group proceedings is limited to only enumerated areas and the environment is not among them. It means that according to that Act, environmental cases cannot be judged. The Polish law provisions in force that we can think of in relation to using it directly or indirectly for fulfilling certain elements of the environmental collective redress cover:

Environmental injunction

Under the Environmental Protection Act, anyone who suffered damage or an imminent threat of a damage caused by an unlawful environmental impact, may ask the court to stop the illegal harming activity or to order the responsible facility taking relevant measures. Moreover, if the threat or infringement concerns the environment as a common good, the claim may be filed inter alia by an environmental organization. The NGO can ask that the liable entity is obliged to restore the damage made to the environment. However, the burden of proof lying on the claimant may hinder filling this type of actions by NGOs because the costs of expertise and studies proving the scope of the damage and the causal link between the damage and the activity of the liable entity may extend their financial abilities. On the other hand, the position of the plaintiff is significantly improved by a provision that “anyone who submits lawsuit for compensation of damage caused by environmental impact may demand that the court obliges the person/entity whose activity relates to the claim to provide all information necessary to determine the scope of such liability”. This provision grants plaintiff a very broad right to information which may be a huge asset, especially for an environmental NGO, and may even be the main reason to initiate such litigation.

Environmental liability

Under the Environmental Liability Act, an environmental NGO may inform the Regional Director for Environmental Protection about the environmental damage or a threat of the environmental damage. The environmental organization making such notification has then the right to participate in the procedure as a party. This regulation is a broadly practiced legal tool aiming at the protection of the environment.

NGOs’ participation in environmental proceedings

The Act on Administrative Procedure offers to request a competent authority to take action. For environmental NGOs, the administrative proceedings are more easily accessible than civil law procedures. The administrative authority is obliged to inform the non-governmental organization about the initiated proceedings; the NGOs may request initiation of the proceedings on behalf of a third party or they can participate in the already pending procedure. However, due to recent amendments, environmental NGO’s participation in certain administrative proceedings has been severely limited. For instance, in water law and water management cases the general principle of the NGO’s participation has been excluded, in other fields the NGOs are required to have been active at least 12 months before attempting to participate in the proceedings.

NGOs’ participatory rights in civil procedures

Within the civil procedure regulation, non-profit nongovernmental organizations may, for the protection of citizens' rights, initiate proceedings and take part in the pending proceedings, including environmental cases. They also may represent other (third) persons based on their written consent.

Neighbourhood (imissions) litigation

The regulation of the neighbourhood imissions that has been traditionally used in environmental cases is covered by the Civil Code. It orders landowners to refrain from actions which could disrupt the use of neighbouring real estate beyond a normal scope, arising from the social and economic purpose of the real estate and local conditions. This provision can cover positive nuisances to the environment as penetration of dust, gases, smells, pollutants, toxic substances or forces such as tremors, noises, electromagnetic waves; or negative nuisances like depriving the neighbours of access to daylight, sufficient aeration or view. The nuisance-based claim is pursued in a standard civil procedure; an NGO may also sue on behalf of a third person to whom the nuisance is inflicted.

Personality rights

In the field of personality rights, the interpretation of the protected values has been recently extended with certain environmental elements (contrary to the previous interpretation) in relation to a well-known air quality plans case opened by a Polish actress Grazyna Wolszczak. Article 23 of the Civil Code that enumerates the rights of persons does not explicitly mention the environment. The plaintiff claimed that the bad air quality disabled her from pursuing her passions and interests and made her often feel mental and emotional discomfort, which resulted in the breach of her personal interests, such as the possibility to use the attributes of unspoiled environment, the right to protect personal life, the right to freedom, privacy and respect for her place of residence. The District Court recognized that the state of environmental pollution and the lack of effective actions on the side of public authorities have had an unfavourable impact on people's health and life, including the plaintiff’s and that the rights under Article 23 include the right to live in the environment fulfilling at least the norms and values defined in the EU law. Not only did the court conclude that a personal right to the clean environment exists but it also stated that the breach thereof is possible also when no physical damage to the person’s health is inflicted. 

Hana Müllerová, May 2019