Effective as of 1 January 2018, an amendment to the Nature and Landscape Conservation Act of 2017 barred environmental groups from participation in zoning and building permitting procedures. After almost four years, the Constitutional Court has now upheld this law as being constitutional. The decision by the Constitutional Court thus confirms that environmental groups cannot invoke the Nature and Landscape Conservation Act to demand participant status in zoning and building permitting procedures, though the Constitutional Court does note that groups are not affected in their right to subsequently challenge a zoning decision or building permit, once issued, before the administrative courts.
Until the end of 2017, civic associations (citizens’ groups) whose principal mission, according to their statutes, is the protection of the living environment, had a right, rooted in the Nature and Landscape Conservation Act, to participate in zoning and construction permitting proceedings which were apt to affect the interests of nature and landscape protection protected under this Act. Pursuant to an amendment to the Conservation Act which came into force on 1 January 2018, the scope of proceedings in which such groups are granted the status of a participant, is now drawn more narrowly, and limited to proceedings conducted under the Conservation Act. Among other things, the amendment thus excluded environmental associations from participating in zoning procedures and building permit procedures based on the Conservation Act.
This amendment to the Conservation Act was challenged by a group of senators at the Constitutional Court. After almost four years, the Constitutional Court has now ruled on the proposal to abolish this amendment to the Conservation Act, in its ruling Pl. ÚS 22/17 of 26 January 2021 – by dismissing the senators’ request for a repeal, and confirming the constitutionality of the law which stipulates that the claim of citizens’ groups for participation based on the Conservation Act is limited to proceedings conducted pursuant to this selfsame Act.
The Constitutional Court came to the conclusion that restrictions on the participation of citizens’ groups on the basis of the Conservation Act to proceedings conducted under this Act passes muster under constitutional-law considerations. None of the constitutionally guaranteed rights creates an obligation for the state to ensure participant status for citizens’ groups across the board, in all types of administrative proceedings. While everyone may invoke their rights in the prescribed manner before an independent court according to Article 36 (1) of the Charter of Basic Rights and Fundamental Freedoms, this is not the case for recognition of this right before other authorities, which may be restricted by law. It is therefore up to the lawmaker to lay down the conditions and details of the exercise of this right in the case of administrative proceedings. Situations in which citizens’ groups may enter the relevant administrative proceedings as participants were defined by the lawmaker not only in the Conservation Act, but also in other Acts (such as the Water Act, the Environmental Impact Assessment Act or the Integrated Prevention Act).
Furthermore, in the opinion of the Constitutional Court, the law challenged by the senators does not interfere with the right to a favorable environment either, in that environmental associations may still participate in those administrative proceedings in which the possibility of a real and serious impact on nature and landscape protection can actually be identified – i.e., in addition to proceedings under the Conservation Act, in proceedings under the Environmental Impact Assessment Act, the Water Act or the Integrated Prevention Act. Nor does the Constitutional Court consider the challenged provision of the Conservation Act to be incompatible with the Aarhus Convention, because even this convention, in the opinion of the Constitutional Court, does not guarantee public participation in all decision-making processes.
According to the Constitutional Court, it is essential that the constitutionally guaranteed right of environmental groups to judicial protection is not ruled out by the contested legislation. Should groups feel that their rights and freedoms have been infringed by a decision of an administrative authority, they may turn to the administrative courts. This is because having participant status in the administrative proceedings in which the relevant decision was handed down by an administrative authority is not a prerequisite for having standing to sue. Consequently, even though civic associations may be barred from participating in zoning and building permit procedures, this does not prevent them from bringing an administrative lawsuit against the zoning decision or the building permit.
Civic associations whose main mission, according to their statutes, is the protection of nature and landscape, cannot participate in zoning and construction permitting proceedings on the basis of the Nature and Landscape Conservation Act. However, one must not forget that their participation under other laws, in particular under the Environmental Impact Assessment Act, is preserved. Moreover, the fact that environmental associations are (no longer) participants in zoning or construction permitting proceedings does not prevent them from subsequently challenging the zoning decision or building permit by way of an administrative lawsuit. For real estate investors (builders), the exclusion of associations from participation in zoning and permitting proceedings thus represents only an apparent improvement of the current situation, because environmental associations may in fact introduce new facts and draw attention to defects in administrative decisions even in the late stage of a judicial review of administrative decisions. The exclusion of the participation of associations from zoning and building permitting proceedings will thus not necessarily expedite such proceedings, but may in fact – and quite paradoxically – further protract the permitting process.
Constitutional Court ruling Pl. ÚS 22/17 of 26 January 2021