European court rules in Pezinok case

THE DECADE-LONG fight by the citizens of Pezinok to block construction of a new waste dump near the centre of their town has long since come to embody a wider societal significance. Among the important questions it has thrown up is that of how far the public should be involved in decisions that have a major environmental impact, and what duties state licensing and administrative authorities have towards citizens. The European Court of Justice, in a recent ruling pertaining to the controversial Pezinok landfill, has offered answers to some of these questions. In the process it pleased the anti-dump activists and many Pezinok residents. Nevertheless, the firm set up to run the dump as well as the environmental inspectorate which consented to the site but originally refused to publish its reasons for doing so, have both portrayed the verdict as confirming their versions of the story.IN 1996, Pezinok’s old landfill, which was opened in 1964, was privatised and sold to a company led by businessman Ján Man Sr. A year later the state authorities re-classified the landfill from a ‘local’ site to a ‘regional’ one. In September 2002, Man Sr’s company, Ekologická Skládka, requested a land use permit to build a new landfill. However, the municipality of Pezinok that same year blocked the new landfill site by adopting a new master plan from which it was removed.

“The decision of the court fills us with hope that the years-long effort [to achieve] a healthy environment in the town will be successful,” said Oliver Solga, the mayor of Pezinok, as quoted by the Sme daily. The town used its local master plan as long ago as 2002 to ban the site in question from being used as a landfill.

The European court was responding to five questions posed by Justice Miroslav Gavalec of Slovakia’s Supreme Court, who was asked to judge a case involving the state authorities, which had issued the permit for the landfill site, and the town of Pezinok and its citizens, who claimed that the authorities should have provided them with the ruling consenting to the site, but failed to do so, the TASR newswire reported.

Gavalec approached the European court to determine how European law affects the rights of the public in this and similar cases.

The European Court of Justice ruled, according to an official press release, that the public must have access to an urban planning decision concerning the establishment of an installation that has significant effects on the environment, and that protection of trade secrets cannot be invoked as a reason for refusing such access.

“Under the Aarhus Convention, when a decision-making procedure concerning the environment is initiated, the public concerned must be able to participate in it from its beginning, that is to say, when all options are still open and effective public participation can take place,” the press release stated.

According to the court, the public must, as a rule, be able to have access, free of charge, to all information relevant to the decision-making procedure and be able to challenge the legality of any decision resulting from that procedure.

“The decision of the court was an unavoidable precondition for a further proceeding at [Slovakia’s] Supreme Court since it contains responses to five preliminary questions that the Supreme Court posed,” Zuzana Čaputová, a lawyer cooperating with the Via Iuris legal NGO on the case, told The Slovak Spectator in response to the ruling.

Čaputová also noted that the legal opinions listed in the verdict are binding on Slovakia’s judicial and administrative bodies.

According to Čaputová, the significance of the ruling lies in its stress on European legal regulation in the environmental sphere as well as the emphasis it places on the fact that “administration bodies that license different activities in Slovakia, as well as the courts, must respect European Union law in the area of the environment”.

The case

In 2006, Bratislava’s regional construction planning authority adopted an urban planning decision concerning the location of a waste landfill site in a trench, known as ‘Nová Jama’ or ‘new trench’, previously used for the extraction of earth for use in brick-making. Subsequently, the Slovak Environmental Inspectorate initiated an authorisation procedure in the course of which residents of the town of Pezinok requested publication of the urban planning decision. However, the inspectorate authorised the construction and operation of the landfill site without first publishing the decision in question. Following an appeal, the environmental inspectorate confirmed its decision to authorise the landfill, after having published the urban planning decision. The concerned parties then brought an action before the Slovak courts, according to the European court’s release.

Justice Gavalec had ruled in favour of Pezinok residents opposing construction of the dump and cancelled the construction permit, but Gavalec’s verdict was subsequently reversed by the Constitutional Court on the grounds that he had violated the property rights of the landfill site’s owners, TASR wrote.

Later, the Supreme Court decided to interrupt the proceeding and temporarily suspend the permit for the landfill. The Pezinok dump has been closed since August 2010.

The Supreme Court then submitted five questions to the European Court of Justice, seeking a preliminary ruling to explain the extent of the public’s right, under EU law, to participate in procedures for authorising projects that have significant effects on the environment.

The judgment

In its judgment, the court notes first of all that “a national procedural rule cannot call into question the discretion of national courts to submit a request to the [European] Court of Justice for a preliminary ruling in cases where they have doubts as to the interpretation of EU law”.

The court states that the urban planning decision on the establishment of the landfill site at issue is one of the measures on the basis of which a final decision on whether or not to authorise that installation is taken, and includes information on the environmental impact of the project, among other things. It thus includes relevant information on the authorisation procedure to which the public concerned must be able to have access in accordance with the Aarhus Convention and the IPPC Directive setting out its provisions.

Thus the refusal to make the urban planning decision available to the public cannot be justified by claiming commercial confidentiality.

It points out that the public concerned must have all of the relevant information from the stage of the administrative procedure at first instance, before a first decision has been adopted, to the extent that the information is available at that stage of the procedure, according to the release.

“However, EU law does not preclude the possibility of rectifying, during the administrative procedure at second instance, an unjustified refusal to make an urban planning decision available to the public concerned during the administrative procedure at first instance, provided that all options and solutions remain possible and that such rectification allows that public effectively to influence the outcome of the decision-making process,” the court said.

The responses

“Certainly yes,” was how Čaputová responded when asked whether the ruling will have an impact on the public’s opportunity to influence decision-making procedures in projects with an environmental impact. “This ruling sets a precedent. Any citizen of the European Union can refer to the principles and interpretation of the European law which is listed in the decision of the court and, for example, pertain to the rights of the public to participate in proceedings.”

The case before the Supreme Court should now continue, allowing it to rule definitively about the legality of the waste dump, Čaputová said.

All the parties involved in the procedure will continue explaining their legal stances and providing arguments, with Čaputová saying that she hopes that the operation of the waste dump in Pezinok will ultimately be banned.

Ľubomír Fogaš, the lawyer representing the Slovak Environment Inspectorate, offered a different interpretation of the verdict, suggesting that the inspectorate had not violated the regulation which allows shortcomings from first-instance proceedings to be remedied during second-instance proceedings, if there is a chance to achieve what he called the equality of weapons of the participants in the proceeding, the SITA newswire reported.

“This, in this case, cannot be in any way denied since the Slovak Environment Inspectorate gave an option for a response,” Fogaš said, adding that within the 30-day deadline no one responded.
Ekologická Skládka, the company behind the construction of the dump in Pezinok, which was a secondary party to the proceedings at the European Court of Justice, welcomed the court’s ruling. The company’s representative, Ján Man Jr, also stated that what he called “the licensing authority”, presumably a reference to the environmental inspectorate, published its decision as part of the approval process in February 2008 and the public then had until August 2008, when the decision was confirmed, to submit comments, but did not do so.

Čaputová said that in Slovakia there are dozens of other cases in which the public has been denied access to decision-making procedures linked to projects with an environmental impact.

“I assume – at least I hope – that it has not happened that [such a] decision has been concealed as a trade secret in other proceedings,” Čaputová said. “In any case, administrative bodies based on this ruling can no longer make such an attempt in this direction.”

The history of the Pezinok landfill

The local construction office in Pezinok refused to approve a November 2006 application to open a landfill site, but the firm then turned to the Regional Construction Office in Bratislava (KSÚ), which from August 2006 was led by Ján Man Jr. Man Jr is the son of Ján Man Sr and was, at the time of the application, a member of the supervisory board of Ekologická Skládka, according to a chronology compiled by the legal NGO Via Iuris.

In May 2007, the KSÚ issued a construction permit, in contradiction to Pezinok’s master plan, and simultaneously refused to provide information about its decision to the town of Pezinok and the public. In September 2007, Man Sr’s company asked the Regional Environment Inspectorate (IŽP) in Bratislava to grant the landfill environmental approval. The authority scheduled a session for December 31, 2007, but told the citizens of Pezinok that it would not publish the decision of the KSÚ, describing it as a trade secret.

In January 2008, the IŽP in Bratislava issued a permit for Ekologická Skládka to construct the new landfill. The citizens of Pezinok immediately challenged the decision and the Slovak Environmental Inspectorate (SIŽP), the national authority, halted the decision on March 4, 2008.

The case provoked massive protests against the landfill, with activists claiming that construction of the site was still continuing despite the SIŽP decision. However, in August, 2008, the SIŽP turned down the activists’ appeals and approved construction of the new landfill. The citizens of Pezinok then turned to the Slovak courts, according to the Via Iuris chronology.

Radka Minarechová contributed to this story