On 11 April 2012 the Supreme Administrative Court
(“SAC”) rendered a judgement consolidating the
rules governing participation of environmental
organizations in administrative proceedings (Case
File No. II OSK 122/11).
An environmental organization, i.e. a voluntary
association whose objects comprise broadly defined
environment and nature protection as well as pro-
environmental activities, may notify its desire to take
part in administrative proceedings that by law
require public participation. The right is laid down
under the Act on Providing Information on
Environment and Environment Protection, Public
Participation in Environment Protection and Environmental Impact Assessment of 3 October
2008 (Journal of Laws of 2008, No. 199, item 1227,
as subsequently amended “Environment Protection
Act”). The provisions of Article 44 and 45 of the
Environment Protection Act detail the situations in
which of an environmental organization is allowed to
participate in the proceedings in the capacity of a
party. Such involvement is conditional upon
establishing that public participation in the
proceedings is required under the Environment
Protection Act. The list of proceedings referred to
above includes inter alia proceedings for the
assessment of environmental impact of a proposed
project (Article 3(1)(8)(c)).
As regards other categories of environment
protection cases, environmental organizations
participate in the proceedings under provisions of
general application (in the same manner as other
voluntary associations), i.e. are required to
demonstrate that two conditions have been
collectively met: existence of a substantive
connection (in the legal sense, and not only in the
sense of a factual link between the subject of the
administrative proceedings and the objects and scope
of the organization’s operations) and the presence of
public interest in accession of the organization to the
relevant proceedings. The determination that the
arguments presented sufficiently demonstrate the
existence of public interest under the specific
circumstances of the case at issue is in the sole
discretion of the public administration body. A
motion for admission of an organization to
participate in the proceedings must be supported by
specific arguments (evidence), providing general
information only being insufficient.
In the case ruled on by SAC, the proceedings in
which the environmental organization sought to
participate concerned determination of the location
for a public (investment) project. Since no
environmental impact assessment had been carried
out for the project in question, the Environment
Protection Act did not apply. Consequently,
participation in the proceedings for a ruling to be
rendered under other regulations than the
Environment Protection Act requested by the
environmental organization was governed under the
provisions of general application laid down under the
Code of Administrative Procedure. SAC held that a
voluntary association that requests accession to such
proceedings arguing that its participation is supported by public interest is required to submit
detailed arguments in that regard. Since the
Environment Protection Act ensures adequate
participation of the public in the investment process,
in the opinion of SAC, participation of such
voluntary organization in proceedings other than
those governed under the Environment Protection
Act should be considered in exceptional
circumstances only.
Further, SAC reminded that participation of a
voluntary organization in the administrative
proceedings in the capacity of a party cannot serve
the specific interests of the organization itself but it
is required to satisfy the requirements of reasonable
social control over administrative proceedings in
individual cases. Thus, a voluntary organization
requesting admission to proceedings must establish
as probable that its participation will help the
administrative proceedings to fulfill their purposes
better.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
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