Special procedures
Environmental injunctions have been established in Poland and Hungary. However, there is not much experience of their application and there are some barriers to their wider usage (especially their financial costs and the plaintiff’s burden of proof). Generally speaking, injunctions seem to be the most beneficial element of collective redress for environmental protection; therefore, they should be promoted and supported also in terms of their accessibility in practice.
In Hungary, there is an instrument that can be considered as an actio popularis of some kind (or a quasi actio popularis): under Section 99 of the Act on the Environment, the environmental NGO may first take action in the interest of environmental protection in the event of endangering the environment, environmental pollution or environmental damage and may either require the public administration or the local government to take the necessary measures. Second, they 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 (injunction). However, effective use of this promising provision is said to be difficult, especially due to the high costs of proceedings because the suing NGO has to provide all evidence and, if it involves experts, they may be prohibitively expensive due to their high fees. It has therefore been recommended to overcome this 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 compensation claims. Moreover, the Nature Conservation Act provides nature conservation NGOs with a similar quasi actio popularis instrument as was described above, only narrowed down to nature preservation cases.
Under the Polish Environmental Protection Act, anyone who suffered damage or an imminent threat of damage caused by an unlawful environmental impact may require that the entity responsible for that threat or infringement takes the appropriate measures. It is also possible to require cessation of the activities giving rise to the threat or infringement in question (i.e. injunctive relief). Moreover, if the threat or infringement concerns the environment as a common good, the claim may be filed inter alia by an environmental organisation. The NGO can ask that the liable entity be obliged to restore the damage made to the environment. However, the burden of proof lying on the claimant may hinder filing these types 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 overstretch their financial abilities. On the other hand, the position of the plaintiff is significantly improved by a provision that “anyone who submits a lawsuit for compensation for 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.
Under the Polish Environmental Liability Act, an environmental NGO may inform the Regional Director for Environmental Protection of the environmental damage or a threat of the environmental damage. The environmental organisation making that notification then has the right to participate in the procedure as a party. These provisions are a broadly practiced legal tool aiming at the protection of the environment.