Preferential position of NGOs
All countries within the research display a privileged status of environmental NGOs as a standard part of their procedural law. The environmental NGOs in all the countries, based on the Aarhus Convention and the relevant EU legislation, have participatory rights in various administrative proceedings and the associated review proceedings. The rules are set either in the relevant environmental protection acts, or in general administrative procedure legislation. However, some countries (the Czech Republic and Poland) have recently introduced amendments that restricted the participation of NGOs in certain areas (water law, territorial permits etc.); that trend is certainly a negative one, contradicting the ideas of the Aarhus Convention and the wide access to environmental justice. Nevertheless, the rules of NGOs’ participation are predominately targeted at permits for future activities in a geographical area and only minimally do they solve the harms already caused or illegal activities already practiced, except with regard to the environmental liability regime. As such, they are only partly relevant for our project the focal point of which isin the harms that have already occurred.
The Czech law provides, based on the relevant EU Directives and the Aarhus Convention, the environmental NGOs with a special status in various procedures in environmental matters, both as regards the right to participate in proceedings and the right of access to court. The examples are the environmental impact assessment area, territorial planning area, and most areas of environmental permits (however not all of them, e.g. the nuclear power plant permis and noise issues are excluded, and unfortunately there have been successful efforts recently to restrict the participation of the public in certain types of permit procedures, especially in the area of land use permits). Where the laws normally make access to the relevant proceedings dependent on an infringement of the person’s own rights or interests, the provisions favouring the environmental NGOs stipulate that this condition is assumed to be fulfilled for them. Similarly, the Czech environmental liability regime provides environmental NGOs with certain additional entitlements in solving environmental mass harm cases: they may bring requests, complaints or comments to the competent authorities, which they must deal with.
In Hungary, the environmental legislation in force also enacts certain provisions giving preferential treatment to environmental NGOs. First, the environmental NGOs may participate (as “clients”) in environmental administrative procedures within their geographical scope of activity. Under the new Code of General Administrative Procedure of 2016, the status of a party to the proceedings belongs to those whose rights or lawful interests are affected, and in environmental proceedings also to environmental NGOs. When compared to the previous regulation, those living in the affected area and local governments are among those no longer taken automatically as parties (clients) to the case. According to the new JCode of Administrative Court Procedure of 2017, most administrative decisions may be taken to court. The court now has competence for 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 decree supposes so; if their activity, according to their articles of association, covers the protection of fundamental rights or public interests; and if their activity in the field has lasted for more than a year. Furthermore, interest-representation organs and public bodies also have the right to bring an administrative action if a special act provides them with the right to protect the rights of their members or of the group represented by them. Finally, 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 proceedings before an administrative court may have the form of a joint judicial procedure, 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 materially identical cases in front of the court, the proceedings may take the form of model litigation, in which the court may decide that only one sample case is going to be decided first, while all the others are suspended.
In Poland, the Act on Administrative Procedure provides the competent authority can be requested to take action. For environmental NGOs, administrative proceedings are more easily accessible than civil law procedures. The administrative authority is obliged to inform the non-governmental organisation of the initiated proceedings; the NGOs may request the initiation of proceedings on behalf of a third party or they can participate in the already pending procedure. However, due to recent amendments, environmental NGOs’ 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, NGOs are required to have been active at for least 12 months before attempting to participate in the proceedings.