As of May 13, 2021, the provisions of the Act of March 20, 2021 on amending the Act on disclosure of information on the environment and protection thereof, public participation in environmental protection and environmental impact assessments and certain other acts (Journal of Laws 2021, item 922), shall apply. In addition to amendments to the Act on disclosure of information on the environment and protection thereof, public participation in environmental protection and environmental impact assessments, the amending act also covered a number of other acts regulating investment process, including the construction law, acts on special rules of preparation and execution of investments in the scope of: public roads, public use airports, flood protection structures, and on the promotion of electricity generation in offshore wind farms. The amendments are of a great practical value for investment processes.
The amendment was adopted in connection with the European Commission issuing an opinion on the non-compliance of Polish regulations with Directive 2011/92/EU of December 13, 2010 on the assessment of the impacts of certain public and private investments on the environment (the so-called EIA Directive), regarding access to justice for the public concerned. Under the Polish legislation, parties of proceedings regarding issuance of a decision on environmental conditions and environmental organizations that meet formal requirements are considered the “public concerned”. The objections of the European Commission related to the provisions regulating execution of investments that may have a significant impact on the environment, including the so-called special acts concerning, inter alia, construction of roads, railways and highways. The idea was to provide representatives of the “pubic concerned” with better access and more rights in investment processes.
The amendment introduced fundamental changes that concern the stage of issuing decisions on environmental conditions as well as investment permits.
As for the first stage, in this case, possibilities of submitting a request to an appeal authority to suspend the immediate execution of the environmental decision and of submitting a complaint against the decision concerning both, the suspension and the refusal to suspend the immediate execution of the decision, were introduced. In the next stage, both decisions may be contested before a court. These changes meet the expectations of the European Commission regarding the application of interim measures throughout the entire procedure for issuing environmental decisions. Before the amendment, administrative courts were refusing to suspend the enforcement of the environmental decision due to the absence of legal basis for such suspension. The amendment introduced such a legal ground, specifying that a court is entitled to suspend the execution of a decision if there is a risk of causing effects which are difficult to be reversed, understood as consequences resulting from undertaking an investment which may have a significant impact on the environment for which the contested decision was issued. The introduction of such a general clause will require to be clarified by the courts in the course of applying these new provisions. Before this happens, however, all interested parties will remain exposed to inconsistent interpretations and decisions regarding particular cases. The mere fact of bringing the case to court, even if it is unjustified, will block the investment.
A request to suspend the enforcement of a decision on environmental conditions should be examined by the court immediately, but not later than within 30 days from the date of receipt of the request by the court. In the event of issuing a decision to suspend the execution of a decision on environmental conditions, a voivodship administrative court should examine the complaint against this decision within 3 months from the date of issuing this decision. A complaint against the decision regarding suspension of the execution of the decision should be examined by the Supreme Administrative Court within 2 months from the date of receipt of the complaint. It follows from the above that the combined time for considering the case may exceed six months, and the indicated deadlines are only instructive, which may further extend the investment process.
Subsequent changes relate to the stage of issuing decisions following the environmental decisions, i.e. those regarding legal grounds for carrying out a given investment. It does not concern all investment decisions, but only those that the legislator defined as an “investment permit”. The “investment permit” within the meaning of the new regulations is, inter alia, a construction permit, a decision approving a plot or land development design or an architectural and construction design, and a permit to resume construction works – issued on the basis of the construction law, as well as decisions regarding, for instance, execution of investments related to roads, public airports or anti-flood structures.
As part of the proceedings for the issuance of the indicated investment permits, the parties to the environmental decision proceedings and environmental organizations meeting the conditions set out in the act, were granted the right to appeal against the investment permit, preceded by a decision on environmental conditions issued in the proceedings requiring public participation.
In the above case, the parties or the environmental organization also have the right to submit a complaint to an administrative court. This right is independent of their prior participation in the proceedings regarding the issuance of an investment permit.
The scope of the appeal and complaint is not the same as that of the parties to the proceedings regarding the issuance of an investment decision. It was specified that the parties to the environmental decision proceedings and environmental organizations should indicate to what extent the investment permit is inconsistent with the decision on environmental conditions or does not take into account its provisions, and justify this allegation. It is possible to request to suspend the execution of the investment permit as part of the complaint. The court may suspend the execution if there is a risk of causing significant damage or causing effects that are difficult to be reversed. Again, general clauses give administrative courts a decision-making freedom, which will result in greater uncertainty on the part of the parties involved.
An authority competent to issue the investment permit and a court have the power to apply to the authority that issued the environmental decision with a request to indicate whether the appellant or complainant is entitled to the status of a party to the proceedings regarding the issuance of a decision on environmental conditions.
Another significant change regards the introduction of a mandatory suspension of the investment permit procedure in the case of a suspension of the execution of the environmental decision. In this case, the authority that issued the environmental decision is obliged to inform the authority issuing the subsequent decision about its suspension. The authority competent to issue the investment permit shall suspend the procedure in whole or in part within 7 days from the date of becoming aware of the suspension of the execution of the environmental decision. The procedure regarding the issuance of the investment permit shall remain suspended until a final court decision on the complaint against the decision on environmental conditions. Taking into account the deadlines for considering a request to suspend the execution of a decision on environmental conditions, a complaint to the voivodship administrative court and a complaint to the Supreme Administrative Court, that are specified in the act, it can be assumed that the suspension of the investment permit procedure may exceed six months. If a court repeals the environmental decision which execution has been suspended, the procedure will remain suspended until the decision is reissued.
After the amendment, the authorities issuing the investment decision are obliged to make it available to the public in the Public Information Bulletin for a period of 14 days, instead of publishing only information on issuing the decision and the possibility to view the decision and documentation of the case. The date of publication determines the beginning of the period for submitting an appeal against the investment permit and a complaint. So far, the review of the decision and the case documentation took place within the time limit for submitting the appeal. As a result of the amendment, environmental organizations have gained additional time to prepare the appeal (and the complaint). On the part of investors, the procedure related to obtaining permits will be extended.
Pursuant to the transitional provisions of the act, the new regulations apply to cases initiated and not concluded with a final subsequent decision, in which the deadline for submitting an appeal or request for reconsideration of the case by the parties to these proceedings has not passed.
The discussed act introduces a number of changes which, in the light of EU regulations and the position of the European Commission, were inevitable and should become a part of Polish legislation. However, this does not change the fact that these changes will contribute to significant delays in investments. To a wide extent it will be adversely affected by the existing lengthiness of court-administrative proceedings.
Michał Matak
Prawnik | Lawyer
T: +48 22 447 43 00
E: matak@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.