1 Support of the parties by the Court 2012 Anders Bengtsson

2 Anders Bengtsson 2012 Permit cases - Environmentally harmful operations (A-listed) - Waterworks operations Appealed cases - The Environmental Code - The Plan and Buildings Act - Cases related to land/ property Imposition of conditional fines - The Environmental Code - The Plan and Buildings Act Disputes - Compensation - Damage - Expropriation etc Land- and environmental Courts in Sweden

3 Appealed cases – some outlines from the Swedish procedure Written procedure may be complemented by –Oral hearing if demanded or otherwise needed –Not only the formal parties has the right to take part in the hearing and to make statements (appealed permit cases) –Inspection Court is obliged to investigate the case – ask the parties to complete with material or to clarify uncertainties (inquisitorial obligations on the authority and the court) – no requirements to be represented by a lawyer Burden of proof –on the operator –on the appellant –on the authority

4 Some outlines Most material is public (secrecy as exception and only for certain documents or part of documents) Anyone that makes a request may receive copies or inspect the file at the court (or/and at an appointed keeper of the documents – permit cases) Court decides the case on its merits and may –annul or –alter the appealed decision, or –put a new decision in its place No court or litigation costs, legal aid at least in theory Obvious cases are decided within a few days and without communication. Other cases within a few months - 6 months as a target

5 1. Is the Court obliged/entitled to order the representation by a legal adviser, if the plaintiff is not capable of pleading properly? Yes: NO: Italy GermanySweden Romania Finland Latvia Slovenia Estonia Lithuania Austria Bulgaria Ukraine Legal aid – obligation? BEST PRACTICE?

6 2. Is the court obliged/entitled to give hints to the plaintiff as soon as possible if formal requirements for the action are not fulfilled? ”hints” – order - decide – e.g. show right to standing Yes: No: Italy?Sweden Latvia Germany?Rumania Finland?Ukraine Slovenia Bulgaria Estonia Lithuania Austria BEST PRACTICE?

7 3. In which way does the court enable the parties to inspect the court files and the files submitted by the public authorities? - In which cases the public authority has refused the submission of files in your court practice? Open – Material sent to the parties + may inspect at court: Sweden, Italy, Finland, Latvia, Slovenia, Estonia, Austria(?) – Inspect at court + sent to lawyer: Germany – Lithuania – Bulgaria – Apply in writing: Ukraine, Romania – Authority may refuse: Romania Closed BEST PRACTICE?

8 4. In case of time limits for submissions of the parties – is a prolongation granted usually? What is the consequence if the time limits are exceeded? Regulated time limit – by law or by the Court Generous – Prolongation granted: Finland – Prolongation has to be justified: Sweden, Germany, Latvia, Ukraine, Romania, Lithuania, Estonia, Austria, Bulgaria – No practice or very seldom: Slovenia, Italy Restricted Consequence: Yes: Sweden, Italy, Germany, Latvia, Romania, Ukraine, Lithuania, Austria, Estonia(?) No: Finland Material delivered too late taken into consideration: Sweden Germany BEST PRACTICE?

9 5. Is the court obliged/entitled to give hints to the public authority, if the challenged administrative act is afflicted by a formal fault? Must/may the court set a deadline for rectifying the fault? Yes: Germany (at oral hearing) ?: Latvia (set time limit) No: Sweden, Italy, Finland, Ukraine, Romania, Slovenia, Bulgaria, Estonia, Lithuania, Austria BEST PRACTICE?

10 6. Is the court obliged/entitled to give a legal hint, if the appeal is obviously founded or unfounded or is such a hint forbidden? What is the practice in your country? Are the parties grateful for hints like that? May concern about partiality occur? No: Sweden, Italy, Finland, Ukraine, Romania, Slovenia, Bulgaria, Estonia, Lithuania, Austria Yes: Germany BEST PRACTICE?

11 7. Is the court obliged/entitled to ensure that unclear requests are explained and proper motions are made? Yes: Sweden, Italy, Germany, Finland, Ukraine, Romania, Slovenia, Bulgaria, Estonia, Lithuania, Austria Not really no: Italy BEST PRACTICE?

12 8. Is the court obliged/entitled to give a hint to overlooked legal aspects which are in favor of a party? YesNo – LatviaGermanyItaly – UkraineSwedenFinland – BulgariaRomaniaSlovenia – EstoniaAustria – Lithuania – BEST PRACTICE?

13 9. Is the court obliged/entitled to propose procedural motions or requests to be made by the parties? YesNo – GermanySwedenLatvia ItalyRomania – UkraineFinlandSlovenia – LithuaniaBulgaria – EstoniaAustria? – – BEST PRACTICE?

14 10 A. Must any discussion with the parties prior to the oral hearing be conducted in written or is a contact by phone allowed? B. If there is no legal provision: What is the practice, are there any concerns regarding impartiality? YesNo – SwedenLatviaItaly – GermanyUkraineRumania – FinlandBulgaria – EstoniaLithuania – AustriaSlovenia – I oral hearing mandatory in all cases or optional? – BEST PRACTICE?

Is the court obliged/entitled to endeavor to find an amicable settlement? YesNo – GermanySwedenItaly – BulgariaLatviaFinland – EstoniaUkraineAustria – Rumania – Slovenia – Lithuania – BEST PRACTICE?

16 12 A. Is the court obliged/entitled to propose a deal between the parties? – (In which way may a deal finish the lawsuit?) YesNo – SwedenItaly – GermanyFinland – LatviaSlovenia – UkraineBulgaria – RumaniaAustria – Estonia – Lithuania – BEST PRACTICE?

17 Best practice? And the winner is ……………….