1 27 Sep Access to Justice in DK Implementation of the Aarhus Convention in Denmark Ratified on the 29th September 2000 Costs of implementation – 6 man-years! The implementation of the Convention resulted in amendments to existing legislation –more than 15 individual acts were revised (e.g. broadening legal standing for NGOs) and –new legislation adopted (Environmental Information Act) Environment and Nature Protection legislation is part of public law –The normal administrative recourse path would apply in case legislation does not set forth specific rules for complaints/appeals

2 27 Sep Access to Justice in DK Specific Administrative Review Bodies inaugurated in legislation –The Environment Appeal Board (est. 1973) Environment Protection Act – (IPPC-permit, Waste regulation, Protection of water bodies and soil) Chemical Substances Act Contaminated Soil Act Marine Environment Protection Act GMO Act Water Supply Act Environmental Information Act –Composition – One legal chairman, two designated experts (one from a list appointed by the Federation of Industrialists/Agriculture – and one from a list appointed by the Minister for Environment –Nature of review performed by appeal board Technical (e.g. is it wise and sufficiently justified to grant permit ?) Legal (have procedures been complied with?)

3 27 Sep Access to Justice in DK –The Nature Appeal Board (est. 1992) Planning Act –(EIA, land use planning and zoning regulation) Nature Protection Act Raw Materials Act Forest Act Telecommunications Infrastructure Act Summerhouses Act –Composition – One legal chairman, two Supreme Court Judges, one member appointed from each of the political parties on Parliaments Committee of Public Finances (7 in all) –Nature of review performed by appeal board: Legal (have procedures been complied with?) –In few instances defined in legislation – also substantial review –A fee was introduced in spring 2004 for certain complaints – appr. 70 EUR

4 27 Sep Access to Justice in DK Common features of both Appeal Boards The activities of the boards are governed by Administrative Law principles –Complaint cases must be enlightened by the officers employed in the boards –The discretion of the boards does not cover decisions taken by the Minister –The decisions of the boards may be subjected to judicial review in courts –There are quite extensive experiences in the boards The Environment Appeal Board handles up to 100 cases per year The Nature Appeal Board handles up to 2000 cases per year –The comparative study carried out for the EU Commission suggests that the activities of the Appeal Boards does in fact have a relieving effect on the number of environmental cases litigated in ordinary courts

5 27 Sep Access to Justice in DK Other instruments available for complaint The Ombudsman Limitations –In cases where the public authority have acted in contravention with prevailing legislation Main fundament is the Administrative Procedures Act, Basic Principles/Codes of Conduct/Best Practice of the Execution of Public Office –On the basis of an assessment by the Ombudsman that this is an important case –The Ombudsman may decide to take up a case on his own initiative –The Ombudsman can only express his criticism against any deficiencies found during his investigation of a case however, his criticism is always taken seriously – and has in 1993 lead to the fall of Government –The result of a complaint is - if complainant is given right – that the administrative procedure is started from the beginning – once more

6 27 Sep Access to Justice in DK Judicial Review Bodies Ordinary Courts –There is no division of judicial review in Denmark between civil and administrative courts –According to Constitution (section 63) courts are in general competent to review any decision and/or behaviour of public authorities –In principle a two-instance review system –In rare cases a third instance appeal is allowed – only upon approval from a designated board (Procesbevillingsnævnet) –Basic principles Looser pays principle Parties must undertake all necessary preparations - e.g. enlighten the case Decision of court is compelling on all parties

7 27 Sep Access to Justice in DK Procedures Related to Access to Information Requests Anyone who has been denied access to environmental information have the right to appeal –Complaints often directed to the Ombudsman Complaints may be derived from different legislations – and different positions –A general interest expressed The Environmental Information Act The Act on Access to Information held in Public Registries –The interest of a party in a case The Administrative Procedures Act –(when a complaint has been launched the status of being a party is convened to the complainant)

8 27 Sep Access to Justice in DK Procedures Related to Public Participation –Rules on public participation differ from act to act Administrative review –Examples of procedures Land use planning (regional, municipality plans), EIA-procedures (linked to regional planning), and IPPC-permit procedures –Who has standing (individuals) Planning procedures gives access to anyone (defined by the geographical scope of the plan) Permit procedures gives access to the specific and individual interest –NGOs right to appeal If within their scope of activities, and/or If an NGO have required to be informed of specified generic decisions

9 27 Sep Access to Justice in DK Preliminary injunctive relief in administrative review– –conditions for granting e.g. planning decisions 1.Assessment of the likeliness that the action is gross negligent in the light of legal requirements versus 2.The risk that exploitation of the decision will endanger the complainants claim for re-installation of justice Judicial review Standing –Individuals – with a specific and individual interest in the case matter –NGO’s – when within their scope of activities, and an assessment of their ability to be a part in court proceedings formalised structure, and bye-laws defining the scope of activities Preliminary Injunctive relief in judicial review –Conditions for granting The need of public authority not to tolerate any delay of their decision versus The nature and extension of damages the complainant must suffer as well as an assessment of whether an injunction is considered a justified mean in the light of the alleged infringement

10 27 Sep Access to Justice in DK Problems in existing Access to Justice vis-à-vis the Aarhus Convention Procedures Related to Acts and Omissions of Acts by Public Authorities Enforcement of law is considered the public authority’s monopoly – therefore not directly open to citizens –Access to legal remedies is only indirect – it is left to the discretion of the enforcement authorities to decide whether they want to act –Prevailing legislation often lacks the necessary provisions as a fundament for any enforcement activities Extensive use of preclusion deadlines –They are in conflict with the basic right in Constitution to call for judicial review The introduction of a complaint fee at the Nature Appeal Board