ACCESS TO JUSTICE OF NGOS IN IPPC CASES

ACCESS TO JUSTICE OF NGO’S IN IPPC CASES IN BELGIUM Prof. Dr. Luc LAVRYSEN Judge in the Belgian Constitutional Court Director Environmental Law Centre Ghent University EUFJE Conference - Stockholm 17. 10. 2009 p. 1

INTRODUCTION · Different courts may be involved in IPPC cases - Council of State - President of Court of First Instance - Criminal Court · Different requirements on NGO’s may be applicable EUFJE Conference - Stockholm 17. 10. 2009 p. 2

COUNCIL OF STATE · After exhaustion of administrative appeal - In Flanders and Wallonia one can appeal to a higher political or administrative authority * Regional environmental minister or regional government - In Brussels: Environmental Appeal Board (a kind of Environmental Administrative Court – composed of lawyers and environmental experts) * Decision can be appealed with the Regional EUFJE Conference - Stockholm 17. 10. 2009 Government p. 3

COUNCIL OF STATE · Demand for annulment - Review of legality of the decision * Procedure and substance * Including compliance with higher standards (e. g. Aarhus Convention, IPPC-Directive, EIA-Directive, Acts of parliament, regulations, principles of good governance, duty to give reason) · Interim proceedings (suspension of challenged decision) - Serious legal arguments - Risk of difficult to rectify serious adverse effects EUFJE Conference - Stockholm 17. 10. 2009 p. 4

COUNCIL OF STATE · Standing requirements: - The applicant must demonstrate a “prejudice or interest” - Including those who suffer a nuisance of the operation of the plant · NGO’s – no specific legal provision - Since mid eighties: recognition that environmental NGO’s have standing under certain conditions EUFJE Conference - Stockholm 17. 10. 2009 p. 5

COUNCIL OF STATE · Legal personality - 3 persons can set up a non profit organisation – drafting statutes – registration in registry of Commercial Court – publication in annexes of Official Journal (website) · Own interest - e. g. nuisance for a nature reserve that is property of an NGO or that is under its management EUFJE Conference - Stockholm 17. 10. 2009 p. 6

COUNCIL OF STATE · Collective environmental interest, but: - NGO must be “representative” of group of people whose collective interest are threatened – level of support - Clear match between geographical scope of NGO and the challenged project (decision) * Umbrella organisations have no standing for local projects * Local organisations have no standing for regional projects or are not sufficient representative EUFJE Conference - Stockholm 17. 10. 2009 p. 7

COUNCIL OF STATE * Differences between different chambers – Environmental Chambers more open than Land Use Planning Chambers – Always to big or to small ? – No legal certainty (take for safety reasons an individual of the neighbourhood with you) * Evolution in case law – Aarhus Convention and Directives ? (Compliance Committee) – Inspiration of the case law of the Constitutional Court EUFJE Conference - Stockholm 17. 10. 2009 p. 8

COUNCIL OF STATE * Constitutional Court: NGO has standing under the condition that: a) it is pursuing a collective interest different from “the general interest” b) the NGO has activities c) the statutory aim of the NGO can be jeopardised by the challenged provision (decision) * Bill under discussion in parliament – Opinion of Council of State awaited – To strict (3 years of existence) * Slow decision making EUFJE Conference - Stockholm 17. 10. 2009 p. 9

PRESIDENT OF COURT OF FIRST INSTANCE - Act of 12 January 1993 on a Right of Action for the Protection of the Environment * Administrative Authorities * Public Prosecutors * Environmental NGO’s – – Having the protection of the environment as its purpose Legal personality 3 years of activity Actually being active * In case of defaulting municipality: citizen on behalf of the municipality (Municipality Act/Decree) EUFJE Conference - Stockholm 17. 10. 2009 p. 10

PRESIDENT OF COURT OF FIRST INSTANCE - Clear violation of environmental law - Cessation of the act that constitute a breach of the protection of the environment - Measures to avoid further damage - Balancing of interest ? - Should be fast procedure - Costs in case one loses the case (limited intervention in fee of attorney of the other party – damages ? ) EUFJE Conference - Stockholm 17. 10. 2009 p. 11

CRIMINAL COURT - If NGO suffers own damage in case of penal infringement of IPPC legislation, it can: * Constitute civil party and claim damages, when the public prosecutor brings the case * Summons itself (very rare – burden of proof – danger of be condemned to the costs) * Constitute civil party before the investigating judge - Collective interest ? – strict approach Supreme Court – but dissenting lower judges EUFJE Conference - Stockholm 17. 10. 2009 p. 12

CRIMINAL COURT - Also the Criminal Court has to check legality of an IPPC permit – Art. 159 of the Constitution · CONCLUSION - Judiciary reform – Environmental Sections to Courts ? EUFJE Conference - Stockholm 17. 10. 2009 p. 13