Lawsuits of Non-Governmental Organizations in the Czech Legal System – An Efficient Tool of Environmental Protection?
Written by: Pavel Černý
This article presents an overview of developments concerning the possibilities open to non-governmental environmental organizations (NGOs) to protect the environment in the Courts of the Czech Republic, and the current situation in that arena. The principal question discussed is, whether the legal instruments (of access to Courts) which NGOs have under Czech legislation are sufficient to provide a realistic and, efficient method of protection as opposed to a merely theoretical mode of protection of the environment.
In other words, the question is whether current legislation and Court practice in the Czech Republic meets the requirements of the "Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters" (the "Aarhus Convention" or "Convention"), adopted on 25th June 1998 and ratified by the Czech Republic in 2004.
1. Legal Bases of "NGOs' Lawsuits" in Czech law
NGOs were granted the right of access to justice in environmental matters in the Czech Republic in the early 1990s. This was a result of two legislative developments: First, it was the adoption of certain environmental laws, which made it possible for NGOs to participate in particular administrative proceedings relevant to environmental protection. Second, judicial review of the acts of administrative authorities (also called administrative judiciary) was restored.
It must be emphasized that this branch of the judicial system is based on the "subjective jurisdiction" doctrine in the Czech Republic, which means that it is solely oriented on the protection of "public subjective rights". Consequently, only persons asserting (and proving) breach of their individual rights by an illegal action of administrative authorities have standing to sue in administrative Courts.
These legislative bases predetermined the developments concerning the NGOs' lawsuits in the area of environmental protection. The situation can be described as follows:
- NGOs' access to judicial protection of the environment by the administrative judiciary is limited; they cannot sue private persons for environmental damage (unless the NGO's own rights would be affected);
- an NGO has access to a Court only if it was a party to the administrative proceedings in question;
- at the same time, according to the prevailing Courts' interpretation, an NGO can only ask the Courts for protection of their procedural rights in these proceedings; they cannot successfully justify their lawsuits only on the grounds of "objective" unlawfulness of the administrative act in question, and/or ask for the protection of the environment as a "public interest".
2. Developments of Court Practice on NGOs' Standing
In the first years after NGOs were granted the formal right to sue over administrative decisions (permits) in environmental matters, the Courts
generally rejected their claims as "made by evidently unauthorized persons." The Courts' arguments were based (explicitly or implicitly) on the assumption that there are no subjective rights that could be infringed by the decision and upon breach of which an NGO could base it's standing to sue.
Later, the Courts' wholly negative attitude towards lawsuits filed by NGOs somewhat "softened". Courts began to protect at least the procedural rights of NGOs in administrative proceedings relating to the environment. Most notably, the High Court of Prague held that infringement of subjective rights "can become a key opening the way for a private claimant — if he or she so desires — to become a tribune, defending the public interests". In this verdict the Court also held that "there is no legal basis for rejecting an objection simply because the law which it claims has been violated is directed exclusively or predominantly not towards the protection of the infringed subjective law but to the protection of the public interest."
This relatively obliging approach, however, did not prevail in the years that followed. In the majority of cases the Courts handled only those objections filed by NGOs which were immediately related to their procedural rights. At the same time it has become a standard explanation in the practice of the Czech Courts that NGOs, as legal persons "due to the nature of the case," cannot enforce the right to a favorable environment, as contained in the Charter of Fundamental Rights.
This pressure caused NGOs to start basing their lawsuits on the assertion that their right to fair trial has been infringed, despite the fact that the real aim of the suit was the protection of the environment. Both claimants and Courts are therefore focusing on the procedural errors of administrative bodies rather than on the essence of the dispute itself. One result of this is that NGOs are being accused of obstruction and formalism (instead of protecting the environment itself).
The current Administrative Judiciary Act (in force since 2003) has not formally changed the standing conditions for NGOs. In practice, however, the Courts tend to deal with the "substantive" objections and arguments put forward by NGOs more often and more properly, reasoning that "substantive" mistakes, if any, infringe on the NGOs' right to the due settlement of their objections. Moreover, in recent years, the Courts have started to reflect on the consequences of the fact the Czech Republic ratified the Aarhus Convention.
3. Aarhus Convention in Present Practice of Czech Courts
The Supreme Administrative Court (the "SAC") has expressed its opinion on the position of the Convention in Czech legal system with their decision regarding the development of the Ruzyně airport and the cancellation of a part of the land use plan of the City of Prague. The SAC held that amongst others, article 1(2) of the Czech Constitution requires that the national law is interpreted consistently with the international obligations arising out of the Convention. The same must be deduced from EU law, as the EU as a whole is a party to the Aarhus Convention. The Convention therefore forms, as a "mixed treaty", a part of the acquis communitare. The Member States are hence obliged to interpret their national laws in compliance with the international obligations of the Communities.In the given case, the SAC inferred that the land use plans must be subject to judicial review, even if this was not clear under the current legislation.
This approach, in the author's opinion, weakens the Czech Courts' doctrine of the limited standing of NGOs described above. Article 9(2) of the Aarhus Convention clearly states that members of the concerned public, including environmental NGOs, shall have right to challenge the "substantive and procedural legality of any acts, decisions or omissions" concerning the activities listed in Annex I of the Convention. Since the Czech administrative Courts are under an obligation to interpret Czech national law consistently with this provision of the Convention, they are obliged to depart from the doctrine that NGOs can only claim infringement of their procedural rights.
In another interesting decision, the Municipal Court in Prague held that NGOs have equal rights in administrative proceedings as other parties, which means that a Court deciding on the lawsuit of an NGO must also review the substantive legality of the decisions in question.
In its decision relating to the permitting of the nuclear power plant operation, the SAC had to deal with the relationship between Czech national law and the Aarhus Convention also. The SAC reached the conclusion that the fact that NGOs (as well as any other members of public concerned) do not have the right to participate in these proceedings is not contrary to Aarhus Convention, since they can participate in other related proceedings (namely proceedings relating to issuance of the building permit for a power plant). The SAC further stated that environmental NGOs can claim breach of their right to favorable environment (which is contrary to the above mentioned doctrine of the Constitutional Court).
It can be said that Courts generally hold the position that the Aarhus Convention requires no changes or only marginal changes of Czech legislation or Court practice. The opinion prevails that the Convention is not "directly applicable" in the sense of article 10 of the Czech Constitution. However, this is debatable, as the provisions of the Convention are, on one side, formulated as obligations of its parties (signatory states), but on the other side, specific rights of individuals can be easily derived from many of them. Nevertheless, the SAC repeatedly expressed that the Courts must interpret Czech law in compliance with the Convention's requirements. Should the Courts follow this obligation thoroughly, the result in practice would be, in my opinion, the same as "direct application" of the Convention.
As a result of the indicated developments, the lawsuits of environmental NGOs have subsequently ceased to be "void digging of the Courts' walls" and have become a relatively standard instrument leading to cancellation of illegal decisions of administrative authorities
(sometimes even for material mistakes, though mostly presented as procedural by Courts).
4. Injunctive Relief as a Pre-Condition of Efficient Judicial Protection
It is, however, still difficult to see lawsuits of NGOs as an efficient tool of environmental protection. The main reasons are the usual length of judicial review in combination with the reluctance of the Courts to award injunctive relief. As a result, the NGOs are accumulating successful judgments, which, however, hardly lead to prevention or significant change in the investments in question. There is, therefore, another principal task for the NGOs: to persuade Courts that the requirements of
article 9(4) of the Aarhus Convention, asking for equitable, not prohibitively expensive, timely and efficient remedies, shall be taken seriously into account by them.
The legislation and Court practice of awarding injunctive relief in the administrative judiciary is not in compliance with these requirements. The Code of Administrative Procedure sets very restrictive limits for this institution (literally unrealizable for NGOs, if strictly interpreted). With regard to the most important development consent (land use permit), Courts have asserted until recently that the key requirement in order for injunctive relief to be granted, the "threat of irreparable harm" can never be met, as another decision (building permit) is necessary to start with the development. Consequently, Courts often cancel the (land use) development consent many years after the development is finished.
Nevertheless, due to the widely used reference to the "good faith" of the investor, there are usually no practical consequences of such decisions. There are, however, several recent Court decisions, which could signal changes in this respect. They have been initiated by lawsuits filed by NGOs and other persons against "final statements of EIA procedures." The "EIA statements" are not binding decisions in the Czech legal system, but they form a basis for later decisions. In contrast, there is no doubt that they have a character of "acts" in the sense of article 9(2) of Aarhus Convention and also article 10a of the "EIA Directive". Referring to the requirement of the efficiency of judicial review, plaintiffs asked the Courts to review the "EIA statements", as they are issued on the beginning of the proceedings relating to the permit.
In all of these cases, the Courts have rejected the lawsuits, due to the "non-binding character" of the "EIA statements". The SAC has approved these decisions, holding that in its opinion, neither the Aarhus Convention nor the EIA directive require "direct" (separate) review of EIA statements, and that they shall be subject to the review together with the subsequent development consent. At the same time, the SAC repeatedly expressed the opinion that Courts must grant injunctive relief, if
the members of public concerned ask for it in their lawsuit concerning environmental protection. Otherwise, article 9(4) of the Aarhus Convention would be breached. This interpretation overturns previous opinion that NGOs cannot meet the criteria for injunctive relief. There first decisions of the administrative Courts on the NGO's proposals in compliance with this SAC opinion have already been issued.
The realistic answer to the question "are the NGO's lawsuits an efficient tool of environmental protection?" is, therefore, "no"; an optimistic answer to the question is "not yet" and a very optimistic answer is that "soon they could be". To make this most optimistic scenario a reality, following conditions must be met:
First, at the very least, the current legislative standards of access to judicial review in environmental matters must be preserved. It seems to be automatic, taking into account the international obligations resulting from the Aarhus Convention, but there are continuous attempts to diminish the current standards.
Second, the current tendency of Courts to abandon the rigid doctrine of "subjective jurisdiction" and to deal more extensively with the "substantive" arguments of the NGOs' lawsuits must continue, as well as the readiness of the Courts to grant NGOs injunctive relief.
The situation could also be improved by acknowledging that NGOs have a right to a favorable environment - or that they can claim this right on behalf of their members. However, if, the Aarhus Convention requirement that the Courts review both the "substantive and procedural legality" of the decisions would be met anyway, then this is not, from practical point of view, a principal problem.
I am convinced that the lawsuits of NGOs shall not be the most important legal instrument of environmental protection. It should always be a supplement to the both legal and other attempts of individuals to protect their own environment. Despite this, the legal possibilities for NGOs shall remain an important "safety element" against the illegal harm to the environment which few others would pay attention to. In this regard, it is possible to quote the judge of the English High Court who stated:
"public law...is about wrongs - that is to say, misuses of public power; and the Courts have always been alive to the fact that a person or organization with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well paced to call the attention of the Court to an apparent misuse of public power." 
Pavel Černý is an attorney working with Šikola & partners and a member ofthe Environmental Law Service (Ekologický pravní servis) which is a public interest law organization. He is dealing with cases concerning the right fora favourable environment and specializes in the area of access to courts inenvironmental matters. He has participated on a number of internationalprojects concerning this topic, mostly within the "Justice & Environment"network of public interest law organisations. Since 2006, he has been a member of the Legislative Council of the Czech government.
- ↑ For more information about the Aarhus Convention, see http://www.unece.org/env/pp/welcome.html
- ↑ Most important were the Act No. 114/1992 Coll., the Nature Protection Act, and the Act No. 244/1992 Coll, the Environmental Impact Assessment Act.
- ↑ By an amendment of the Civil Procedure Code, effective since 1 January 1992.
- ↑ The historical basis of this concept can be found in the first regulation of administrative judiciary in Austrian empire, done by the 1867 "December Constitution".
- ↑ This is probably not in compliance with article 9(3) of the Aarhus Convention., which requires that the parties shall grant access for the public to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
- ↑ A typical Court argumentation of that kind can be summarized as follows: It is not important, that the plaintiff was deprived of his right to participate in the administrative procedure. The critical point is, that the decision did not grant him any right nor did it impose any duties to him.
- ↑ Compare Stec, S. Handbook on Access to Justice. Scentendre, 2003, pg. 29: "It is possible to quantify the three basic groups of illegality linked with participation, with regard to Art. 6 of the agreement, which claimants are most likely to litigate on. These are (a) insufficiently publicised information relating to participation in environmental protection proceedings, (b) faults of a purely procedural nature (insufficient time to make a statement, failure to meet decision deadlines, etc.), (c) inadequate settlement of the objections put forward by the participants."
- ↑ Decision dated 25 August 1997, ref. no. 6 A 40/96.
- ↑ Decision dated 6 January 1998, ref. no. I. ÚS 282/97.
- ↑ For example in accordance with the verdict of the Supreme Administrative Court dated 31 August 2004, ref. no. 6A 143/2001-151, the basic principals of administrative procedure oblige an administrative body to clearly rationalize its decisions to the extent to which it must be evident which facts they are based upon. Failure to do so was, according to the Court, a violation of the procedural right of the claimant's - an NGO.
- ↑ Decision dated 18 July 2006, ref. no. 1 Ao 1/2006-74.
- ↑ The EU ratified the Convention by Council Decision 2005/270/EC.
- ↑ See the decisions of European Court of Justice C-53/96, Hermés  ECR I-3603, paragraph 35; or C-300/98 a C-392/98, Parfums Christian Dior SA  ECR I-11307, paragraphs 47-48.
- ↑ The details of the case are available at http://www.justiceandenvironment.org/wp-content/wpupload/JE2006Aarhuscasestudy.pdf, pp. 23-35. The SAC has fundamentally departed from the opinions declared in this decision in latter decision from 13 March 2007; it has however not impugned the conclusion that national law must be interpreted in accordance with the requirements of the Convention. Finally, the Czech Constitutional Court confirmed the original position of the SAC with its decision dated 19 November 2008, ref. no. Pl. US 14/07.
- ↑ Decision dated 2 March 2007, ref. no. 10 Ca 208/2006-44.
- ↑ Decision dated 29 March 2007, ref. no. 2 As 12/2006-111.
- ↑ The Court shall grant the injunctive relief, if the enforcement or other legal consequence of the decision would entail "irreplaceable harm" and that the acknowledgement would not affect the vested rights of third parties "in a disproportionate manner" and is not in conflict with the public interest.
- ↑ EIA - Environmental Impact Assessment. See e.g. http://www.justiceandenvironment.org/wp-content/wp-upload/JE2006EITlegalanalysis.pdf for more information.
- ↑ Directive 85/337/EEC, as amended by Directive 97/11 EC and Directive 2003/35/EC.
- ↑ E.g. decision dated 29 August 2007, ref. no. 1 As 13/2006-63.
- ↑ Stec, S. (ed.), op. cit., note 7, p. 35.