case study based on case c-416/10 krizan workshop on eu law on industrial emissions budapest, 3 june...
TRANSCRIPT
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Case Study based on Case C-416/10 Krizan
Workshop on EU Law on Industrial EmissionsBudapest, 3 June 2013
Dr. Christoph Sobotta, Chambers of Advocate General Juliane Kokott
Court of Justice of the European Union
Work in Progress, licence: CC-BY-SA 3.0 Germany
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The Facts
• Landfill in a former clay pit in a town
• 7/5/2007: urban planning decision on the location of the landfill
• 25/9/2007:application for an integrated permit
• 17/10/2007: 30 days public consultation
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The Dispute
• The planning decision is not part of the available information
• In response to a complaint the planning decision is considered a commercial secret
• Subsequently the integrated permit is issued by the first administrative instance
• On appeal the second administrative instance makes the planning decision available, again consults the public, but confirms the permit
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Court proceedings
• The Regional Court dismisses the legal action against the permit
• On appeal, the Supreme Court annuls the permit because the planning decision should have been available in the administrative first instance
• The Constitutional Court finds a breach of the rights to effective legal protection and to property because the Supreme Court did not examine whether a possible illegality had been healed during the second administrative instance. It annuls the judgment of the Supreme Court.
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Reference to the CJEU?
• The Supreme Court looks for a resolution from Luxembourg. Two issues are being discussed:• Is the decision of the Constitutional Court an
obstacle to a reference?
• Is the validity of the integrated permit affected by the withholding of the urban planning decision during the first administrative instance?
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Additional Question
• An EIA was conducted in 1999
• In 2006 its validity was extended without further studies or public consultations
• Slovak law provides that complaints against the EIA must be introduced in a separate judicial procedure
• The Supreme Court raised the EIA ex officio an found the extension invalid
• The Constitional Court found the Supreme Court incompetent for the issue
• Questions to the CJEU?
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Results
See Case C-416/10 KrizanThe Opinion currently is available in all languages but
English.
To be presented later.
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On the Constitutional Court
• All Courts have the power to bring a reference.
• A request by a party is not necessary.
• Binding decisions of a higher court do not limit the freedom to bring a reference if the outcome could be relevant to the case.
• A Constitutional Court, limited to questions of constitutional law, is not an additional judicial instance. >> The Supreme Court probably is obliged to make a reference.
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On the availability of the planning decision
• The planning decision is relevant to the integrated permit procedure and therefore should be available
• Commercial secrets are protected by reference the Directive on Environmental Information
• However, there is no indication that the complete decision requires protection
• Therefore, it should have been available
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Was the infringement healed?
• No EU rules on procedural healing of mistakes
• >> MS responsibility, but under the principles of equivalence and effectiveness
• Effectiveness does not completely preclude later regularisation, but circumvention of rules must be prevented
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On the additional Question
Is the Directives on environmental impact assessment applicable? No, the original assessment predates the accession, therefore the project was already in the pipeline.
[Does the Directive allow the extension of an assessment? In principle, the assessment must be up-to-date.]
[Does the Directive allow a distinct procedure to deal with the assessment? MS responsibility, but relevant errors must prevent the project.]
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Thank you for your attention!