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Access to Court in Environmental Law Matters Bucharest 10 December

2014

Implementation of EU Law on Access to Courts in Environmental Matters in

Member States: national reports and recent court cases - Sweden The focus of this paper will be on administrative cases in Sweden, as they in practice cover the vast

majority of national disputes related to the environment.

Some cases the individual party though may choose to handle as a civil, litigation, case. That is cases

where an individual actually has suffered injury to their person or property due e.g. to emissions from

an environmental harmful operation. There also is a more theoretical possibility to in a civil case sue

an operator and claim for the prohibition of his/her operation. This may only be the case when the

operation does not have a permit under the Environmental Code.

The common way though for the individual to act in such situations is to initiate a case at the

supervisory authority. If the authority decides not act, the individual can appeal such a decision, via

the County Administrative Board to the Land and Environment Court and finally the Land and

Environment Court of Appeal (leave to appeal is needed).

Civil cases are in the first instance tried by the Land and Environment Courts, may be appealed to the

Land and Environment Court of Appeal (leave to appeal is needed) and finally to the Supreme Court

(leave to appeal is needed).

Taking part in decision-making procedures that may affect the environment and the right

in such cases to challenge a decision in court

Legally binding municipality plans

The procedure is strictly regulated. Parties regarded as “concerned” have the right to participate and

give statements (a written statement during the public examination is a prerequisite in order to later

on appeal a decision to adopt the plan1).

Individuals have the right to standing if they are regarded as being affected by the decision in a more

specific way2.

NGOs have the right to appeal, if the plan is regarded as having significant effect on the environment.

In such cases there also is a mandatory requirement to present an environmental impact assessment,

which can be challenged when appealing the decision to adopt the plan.

1 Chapter 13 Article 11 the Plan- and Buildings Act. 2 The general requirements for individuals to have standing are regulated in Section 22 of the of Administrative Procedure Act. Regarding case law, see inter alia judgments from the Supreme Administrative Court RÅ 1991 ref 80 and RÅ 2009 not 74. See the later sector Conditions for individuals to have the right to standing in administrative cases.

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The statutes of the Swedish Home Owners Association did state that the organization should safeguard

interest of nature and environment, however it had not these issues as its main object and has not

been given the right to standing in environmental cases3.

Overriding, not binding plans

Most procedures prior to the adoption of non-binding municipality plans are open for individuals and

organisations to participate in. A decision to adopt such a plan may only be challenged by judicial

review at the Administrative courts (review strictly focused on the legality). There is a general right, a

kind of action popularis, for members in the municipality (inhabitants and landowners) to later on

appeal such a decision within the system of administrative courts.

NGOs have no right - in that capacity only – to challenge such a decision.

Another example: An action plan related to environmental quality standards may be adopted by the

Government or a municipality. The procedure prior to the adoption is open for individuals or

organisations to participate in. If the plan is adopted by a governmental decision, and if an individual

is affected, the decision may be challenged for judicial review at the Supreme Administrative Court4.

This will probably be the case also regarding the Governments decisions on maritime planning.5

If adopted by a municipality, there is the general right for members in the municipality (inhabitants

and landowners) to appeal such a decision to the administrative court for judicial review.

A proposal to open such decisions for appeal in ordinary way (administrative appeal) has been

delivered by the Environmental Code Committee, revising the Environmental Code. The Government

though meant that such programmes or plans are not legally binding, they constitute only a ground

for subsequent decisions in individual cases. Such subsequent decisions have legal effect and may be

challenged by appeal (administrative appeal) in the chain of land and environment courts. 6

Environmental Impact Assessment procedure

In the consultation procedure, authorities and the public are invited to participate. A decision to

approve an EIA is taken simultaneously with the permit decision, see below regarding participation

and right to challenge such a decision in court.

3 See judgment from the Supreme Administrative Court 19/5-2011, 710-11. See also judgment from the Land and Environment Court of appeal, MÖD 2006:22 regarding challenging of a decision to give license for an operation to produce ethanol. 4 The Act (2006:304) on Judicial Review of Certain Governmental Decisions. Individuals have the right to challenge Governmental decisions affecting his/her civil rights and obligations according to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. With reference to the requirements in Chapter 16, Section 13 of the Environmental Code, NGOs have standing to challenge Governmental decisions on permits covered by Article 9.2 of the Aarhus convention. 5 This legislation has been adopted in 2014, Chapter 4 section 10 of the Environmental Code, see Directive 2014/89/EU on Establishing a Framework for Maritime Spatial Planning. 6 Government bill, prop. 2009/10:184, p. 53

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A pending governmental memorandum proposes a separation of the procedures, meaning that the

approval of the EIA should be taken prior to the formal permits procedure7. Now an approval of the

EIA may be challenged only in conjunction with an appeal of the permit.

Permit procedure - environmentally harmful operations and water operations

Individuals may have been involved in the above mentioned separate procedure relating to the

Environmental Impact Assessment. Such participation though is not a prerequisite to participate in the

later permit procedure. The approval of the EIA is made in the permits procedure, simultaneously with

the decision when the authority/court decides if a licence should be granted or not. The decision to

approve the EIA may be challenged when appealing the permit decision.

The application for permit as well as the decision/judgment (when approval of an EIA) has to be

announced in local papers covering more than 5 per cents of the households in the municipality where

the operation shall take place.

Irrespective if the application for permit is handled by an authority (the County Administrative Board)

or at the Land and Environment Court, the procedure is mainly administrative with a broad focus.

Individuals, even not those directly affected, have the right to ask questions and make statements.

However, they have no right to make formal claims or to appeal the permit decision. Only “parties

concerned” or NGOs has this formal right8.

In environmental cases the Supreme Court has stated that any person that may be harmed or affected

by other inconvenience by the operation has the right to standing, if the risk for harm or inconvenience

is covered by an interest protected by law and is not purely theoretical or insignificant9. In cases

regarding exploitation of the landscape or disturbances from existing or planned operations there is

often a discussion on how far from the actual site the appellants live, whether they are “concerned”

or not. In case law there are numerous examples when this issue has been questioned.

In a case regarding wind mills, the appellant lived 800 m from one of the challenged windmills and was

given the right to standing by the Land and Environment Court of Appeal10, in the judgment there was

no explicit arguing why.

A permit from the Land and Environment Court for a windmill park (80 windmills that should be built in

the sea, “the Thorn”) was appealed to the Land and Environment Court of Appeal and later on to the

Supreme Court. The permit was challenged by individual landowners, living 11 – 12 km from the park.

They were dismissed. An NGO, organised to protest against the operation, did not meet the criteria’s

in the law regarding number of members (around 10) and time (2 years when the Supreme Court

decided) and was not regarded as having support by the public11. In the judgment the Court reasoned

7 Följdändringar med anledning av ändringar I 6 kap. miljöbalken om identifiering , beskrivning och bedömning av miljökonsekvenser, M 2012/2031/R. 8 Article 22 in the Administrative Procedure Act (procedure at authorities) and Chapter 16 Section 12 in the Environmental Code. 9 NJA 2004 s. 590 I and II. 10 Judgment from the Land and Environment Court of Appeal 3/6 2013, P 1574-13. 11 Decision from the Supreme Court, 18/12-2012, Ö 4925-11 with reference inter alia to the codified EIA Dir 2011/92/EU and the DLV case C 263/08, C 240/09, brown bear and C 115/09 Trianel.

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thoroughly in relation to the criteria’s in the Aarhus convention. One since long established organisation

for protection of birds was regarded as having standing but was not granted leave to appeal.

Neighbours whose property directly border on the property where a permit is granted for building, has

in courts practice been given the right to standing, even if they otherwise – e.g. because of the location

of their dwelling - should not be regarded as being affected. Other neighbours may have the right to

standing, depending on the kind and extent of the measures that shall take place.

In a judgment from the Land and Environment Court of Appeal, the appellants property in the beginning

of the procedure did border on the property with the challenged building permit. By subsequent land

parcelling the properties no longer had mutual border and the neighbour was not regarded to have

standing by the Land and Environment Court. The Land and Environment Court of Appeal though

admitted standing12. In another case the Land and Environmental Court of Appeal dismissed the appeal

from a neighbour13. The individual owned a real estate 230 m from the estate where the challenged

building should be built. From his property he would see the building but it actually was to be situated

on an island with open water, public areas and streets in between. His view over the sea would be

affected but not disappear.

Some words regarding decisions on the permissibility of an operation

In most cases on license for an environmental harmful operation, the permit body has to decide on

the permissibility. This may be done in a separate decision/judgment or simultaneously with the

decision/judgment on permit with its conditions. A decision on permissibility is in principle regarded

as binding for subsequent decisions. In major cases this decisions may be taken by the Government14.

A decision on permissibility may be appealed in the same way as the final permit. If taken by the

Government, the decision though may only be challenged at the Supreme Administrative Court for

judicial review. The earlier case law from that Court was reluctant (practice under earlier version of

the act on judicial review) with the consequence that in order to have standing, it must be clarified

that the claimant would be personally affected by the decision15.

NGOs as such were not regarded to have standing. This practice has been reviewed and clarified by

new case law from that Court.16 With reference to Article 9.2 of the Aarhus convention, it now no

longer has to be clarified that the claimant will be personally affected. NGOs have been given the right

to standing, when a decision has significant effect on the environment.

An operation was granted a separate decision on the permissibility. The judgment was appealed by

some individual neighbours and also some NGOs. In a judgment from the Supreme Court the court

found that effects on a Natura 2000 area were not fully analysed in the decision on permissibility –

12 Judgment 13/12 2012, P 8631-12. 13 MÖD 2012:45 14 Environmental Code, Chapter 17 and sectorial legislation on infrastructure. 15 RÅ 2004 ref. 108. In a judgment the 25 September 2014 (Application no. 29878/09) the European Court of Human Rights found that this practice violated Article 6 § 1 of the European Convention on Human Rights as the applicants were not able to obtain a full judicial review of the decisions on the localization of a railway. 16 RÅ 2008 ref. 89, HFD 2010 not. 52 and HFD 2011 not. 26.

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reasoning regarding efficiency of EU-law and practice of CJEU.17 The permit was revoked and the case

referred back to the Land and Environment Court for new examination. - The question of standing for

the individuals and NGOs was not disputed in this case.

This judgment point out a new practice where the decision on permissibility no longer has the former

more absolute binding effect on subsequent decisions and thus that the scope for revision of such

decisions has been opened up.

A decision on permit or exemption regarding protected areas (nature conservation, shore

protection etc.) or protected species

These cases covered by the Environmental Code are, by case law from the Land an Environment Court

of Appeal, regarded as only to affect public interests. Thus a neighbour in principle does not have the

right to standing18.

On the other hand, NGOs directly and by law has the right to standing in these situations19.

Licenses for hunting wolves or other protected species are regulated by the Game Act and may be

issued inter alia by the National Environmental Protection Agency. Such decisions may be appealed to

administrative court. There are no provisions in the Game Act giving NGOs right to standing.

An NGO challenged a decision on permission to hunt wolves and was dismissed by the Administrative

Court as the organisation was not regarded to have the right to standing. The Administrative Court of

Appeal did not grant leave to appeal. With reference to the Aarhus convention and practice by the

CJEU, the Supreme Administrative Court revoked the decision and referred the case back to the Court

of Appeal20.

In a decision Administrative Court in Stockholm regarded, with similar references as the Supreme

Administrative Court, an NGO to have standing in another case on hunting of wolves.21 However, after

these judgments the legislation on these matters has been altered and a decision on license to hunt

wolves is now taken by the County Administrative Boards and their decisions may be appealed to the

National Environmental Protection Agency as the final instance. Thus the decision from that authority

in these kind of cases may no longer be challenged in court. As a consequence, the European

Commission has started an infringement procedure against Sweden.22

17 Judgment from the Supreme Court 18/6 2013, T 3158-12, Nordkalk with reference to Dir 93/43/EEC (Art 6.3) and cases C 127/02 Waddensee, C 404/09 Alto Sil, C 258/11 Sweetman and also to C 453/00 Külne & Heitz, C 234/04 Kapferer and C 173/09 Elchinov. 18 See inter alia judgment from the Land and Environmental Court of Appeal, MÖD 2001:29 and 16/12 2011, M 7110-11. 19 Chapter 16 Article 13 of the Environmental Code. 20 Judgment by the Supreme Administrative Court 28/6-2012, 7943-11 and 2687-12 with reference to C 240/09, brown-bear, and Article 9.3 Aarhus-convention. 21 Judgment I2/5-2013, 2428-13. In a recent judgment the Administrative Court in Stockholm and now without any specific arguing accepted an NGO, Nordulv, as having right to standing when the organization challenged a decision on licensing of wolfs, 9/9-13, 19968-13; The question of standing was no longer an issue. In substance the court referred inter alia to C 342/05 regarding license for wolf hunting in Finland. 22 In July the European Commission sent a Letter of Formal Notice (2014/2178) regarding questioned breach of Article 9.3 of the Aarhus Convention.

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In a judgment the Supreme Administrative Court (with reference to Article 9.3 of the Aarhus

Convention) has given an NGO right to standing in a case related to forestry legislation and where there

is no provisions on that matter in the applicable national legislation.23

To act against new operations or actions not covered by a permits procedure

In these cases the authority acts as a supervisory body.

There is a mandatory notification procedure at the supervisory authority prior to establishing or

altering certain environmentally harmful operations as well as before starting operations or actions

that may have a significant effect on the land scape. These procedures are regulated by the

Environmental Code and by governmental ordinances under the code. The notification in many of

these cases has to be announced for giving the public possibility to participate.

Only parties regarded as concerned though has the right to standing and may appeal a decision not to

act or to act in a less strict manner24.

There is no provision in Swedish law giving an NGO right to standing in supervision cases, except in

cases related to soil protection.

By case law, the Land and Environmental Court of Appeal with reference to Aarhus Convention and

case law by CJEU25, have given the right to standing for NGOs when protected species risked to be

affected and the NGO claimed that the cases should not have been handled in a supervisory procedure

but needed a permit. This practice is evolving and the scope now seems to cover most situations when

the appellant claims that the operation should be scrutinized under a permits procedure and not only

by a decision by the supervisory authority.

To act against an on-going operation

Situation 1: The operation has a permit and the operator

a. follows the permit and its condition

b. does not follow the permit or its conditions

Until recently case law was manifest that there is no right for individuals to apply for revision or

revocation of an existing permit for environmentally harmful operations, or even to challenge a

decision not to act. This case law was based on the construction of the provisions in the Environmental

Code and statements in the preparatory works of the Code. New practice by the Land and

Environmental Court of Appeal has given right to appeal a decision not to act. – In the judgment there

is no reference to EU law or the Aarhus convention26.

If the operator does not follow a permit or its conditions, anybody may initiate a case at the supervisory

authority (the County Administrative Board or an authority at municipality level) by complaining on

disturbances. Only parties regarded as concerned though has the right to standing and may appeal a

23 HFD 2014 ref. 8. The organization was accepted by the Administrative Court in Luleå (reference to Article 9.2, 6.1a and b of the Aarhus convention) but dismissed by the Administrative Court of Appeal. 24 Judgment from the Supreme Administrative Court 10/11-2011, 770-10. 25 Judgments, MÖD 2012:47 and 2012:48 with reference to Article 9.3 of the Aarhus convention and C 240/09, brown bear. Reference also to judgments from that court, 18/2 2013, M 3100-12, M 3102-12, M 3103-12 and M 3104-12. 26 MÖD 2011:46. The court came to the same conclusion in its judgment 27/12-2011, M 5074-11.

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decision not to act or to act in a less strict manner. Such cases are regarded as supervisory cases and

NGOs in principle does not have the right to standing.

If the action is regarded as illegal, anybody may notify the police authority or the public prosecutor,

the supervisory has an obligation to do so, according to a statement by the Ombudsman even if the

violation already has been notified by private persons. This may turn out in a criminal case at the

ordinary District Court. A person that has suffered injury or property damage can sue the operator for

damages at the Land and Environment Court as a civil case, if founded on the Environmental Code, or

as a tort case in the general district court, if founded on grounds outside the Environmental Code.

Situation 2: The operation does not have a permit

As above: Anybody may initiate a case by complaining on disturbances recognised by the

Environmental Code – to the supervisory authority. Only parties regarded as concerned though has

the right to standing and may appeal a decision not to act (“zero decision”) or to act in a less strict

manner than desired. - These cases are in practice the most common at the Land and Environment

Courts.

In order to refer a case regarding disturbances to a court, there must be a decision possible to appeal;

a decision to act or not to act. If the authority totally neglects to act or to make a decision, the

negligence cannot be challenged directly at court but may be scrutinized by the Parliamentary

Ombudsman.27 If the authority declines to issue a decision the complainant can make a complaint to

the Parliamentary Ombudsman, which (finally) may result in a criminal matter28 at the ordinary court

and also damages awarded to the complainant.

There are several decisions from the Ombudsman criticizing authorities for negligence to act in

reasonable time or not to make a formal decision possible to appeal: e.g. 1171-13 1500-2012 (the

supervisory authority did not act in a case where an individual complained against cigarette smoke

from neighbours apartment came into his), 16/1-13 6488-2011 (the neighbours building without

permit) and 17/1-13 6563-2011 (disturbances from neighbour only analysed according to the Plan and

Buildings Act and not as well according to the Environmental Code).

A governmental official report proposed amendments in the legislation in order to fill in this gap but

has so far not been realised29.

Initially was mentioned the possibility for an individual to in a civil case sue an operator and claim for

the prohibition of his/her operation, if the operation does not have a permit under the Environmental

Code. In practice these kind of cases are very few as the losing party risks to pay the costs of the

opposite party and there is the cost free alternative to try to have the matter handled as an

administrative case by the supervisory authority. - The operator can meet an application for

27 Section 7 of the Administrative Procedure Act (1986:223) states as general requirements with regard to the handling of matters: Each matter to which a person is a party shall be handled as simply, rapidly and economically as is possible without jeopardizing legal security. In its handling of matters, the authority shall avail itself of the opportunity of obtaining information from and the views of other authorities, if there is a need to do so. The authority shall aim at expressing itself in an easily understandable way. The authority shall also by other means make matters easy for the people with whom it deals. 28 Chapter 20 Section 1 of the Penal Code, misuse of office. 29 SOU 2010:29.

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prohibition by applying for a permit or adjusting his/her operation. - In a recent case (not yet into force)

the Land and Environment Court in Umeå found that the operator had taken such precautions, that

there was no reason for a prohibition. The Court though meant that the precautions were taken during

and due to the process. Thus in that case the Court decided, as an exemption from the general rule

that the operator had to pay the claimants costs30.

As in situation 1, an action causing detriment and/or unlawful may be dealt with in a criminal case or

in a civil case on damages.

Conditions for private persons to have the right to standing in administrative cases

In administrative cases at the land and environment courts, a person has to be regarded as

“concerned” in order to have standing and make formal motions and claims. The general rule is stated

in Article 22 of the Administrative Procedure Act: A person whom the decision concerns may appeal

against it, provided that the decision affects him adversely and is subject to appeal. The requirement

of being concerned is prescribed in an identical way in Chapter 16 Section 12 in the Environmental

Code and Chapter 13 Section 8 of the Plan and buildings Act refers directly to Article 22 of the

Administrative Procedure Act.

In the Administrative Procedure Act (Article 3), it is specifically stated that the provisions on appeals

shall always apply if it is necessary in order to provide for everyone’s right to a fair trial in the

determination of their civil rights or obligations as laid down in Article 6.1 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms.

Certain decisions taken by local or regional authorities that operate within the municipal self-

government sector though may be challenged by judicial review at the Administrative courts, for

example non-binding municipality plans. There is a general right for any member of the municipality

(inhabitants and landowners) to appeal such decisions; a kind of actio popularis.

Some governmental decisions may be challenged at the Supreme Administrative Court.31 A

precondition in order to have standing is that the claimant can show that the decision is affecting

his/her civil rights as recognized by Article 6.1 of the European Convention on human rights. The

judicial review is strictly legal but takes into account not only the law applied but also general legal

principles and the case law of the European Court of Human Rights.

The courts practice regarding right to standing in different kind of environmental cases are briefly

described in the previous sectors.

Conditions for an NGO to have the right to standing in administrative cases

The conditions are defined in the Environmental Code, Chapter 16 Article 13:

Any legal person that has

a. As main purpose to protect the nature or environment

b. Non-profit basis

c. Has operated in Sweden for at least 3 years

30 Judgment 21/8-2013 M 93-07. 31 Act (2006:304) on Judicial Review of Certain Governmental Decisions.

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d. At least 100 members or in other way shows it has public support.

During the years the conditions has been amended a couple of times – the municipalities and the

industry through their national organizations has been very negative to open up for NGOs to have

standing. Also the Government has been reluctant to make any fast moves.

Originally there was a criterion that the organisations should have at least 2000 members. That

provision was altered during 2010, to 100 members, due to the DLV case32.

In 2012 a governmental memorandum proposed to revoke the criterion on how long an organization

should have operated in Sweden – that criterion was regarded as discriminatory. The main purpose of

the memorandum though was to update the Swedish rules on Environmental Impact Assessments in

accordance to EU law. As shortly after there was a proposal to amend the EU rules, the governmental

initiative has been halted. Originally the criterion aimed to stop occasional opinions to act in order to

stop operations. In practice it is a rather meaningless criterion – better to have the opposing parties

gathered in one organization than each individual act for him/herself.

The Environmental Code gives NGOs a general right to appeal judgments or decisions on permits,

approvals and exemptions under that law. NGOs also have the right to appeal decisions reversing areas

protected by the Code and decisions on supervision of soil protection. There is no general right to

appeal decisions from authorities in matters related to their supervision on actions or operations under

the Environmental Code.33

Recent case law the Land and Environment Court of Appeal shows however that the earlier restrictive

practice (MÖD 2007:17) has been altered and that NGOs has been given the right to standing where

there is a connection to EU-law (Natura 2000 and the Aarhus Convention) and the NGO argue that the

matter correctly ought to be tried under the permits procedure.34 Reference is given to a statement

from the Supreme Court35, underlining that NGOs in these cases is represents public interests.

NGOs also have standing in some cases regulated by the Plan and buildings act, Chapter 13 Articles 12

and 13; binding municipality plans and certain decisions related to shore protection. In order for an

NGO to appeal a decision on a binding municipality plan, the plan must be regarded having significant

effect on the environment.

The Administrative Procedure Act does not contain any specific provisions regarding the right for NGOs

to have standing. In the previous section, A decision on permit or exemption regarding protected areas

(nature conservation, shore protection etc.) or protected species, references is given to recent case law

from the Supreme Administrative Court, giving the right for NGOs to have standing in hunting cases

and cases under the Forestry Act.

32 C-263/08) Djurgården-Lilla Värtans Miljöskyddsförening. 33 When the Aarhus convention was implemented in the Swedish legislation, the Council of Legislation questioned whether it was in compliance with the convention, not to provide NGOs right to standing in supervision cases (Governmental bill, prop. 2004/05:65 p. 313 f). This criticism has later on been repeated by the Council (prop. 2005/06:56 p. 32 and prop. 2006/07:95 p. 210). 34 MÖD 2012:47, MÖD 2012:48, MÖD 2014:30 and judgment from that court the 18 March 2014, M 11609-13. 35 NJA 2012 p. 921.

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Some features regarding the procedure in administrative cases

The general rule is that, if not appealed, a decision or a judgment have legal force 3 weeks after the

issuing (judgments and decisions from the land and environment courts) or 3 weeks after the

addressee has been formally notified (decisions from authorities and judgements from the

administrative courts). In these situations, an appeal has suspensive effect. – An application to the

Supreme Administrative Court for judicial review on a governmental decision however does not have

suspensive effect, but the appellant may claim for the Court to decide on suspension.

The court or authority may decide that the judgment or decision shall be directly enforceable and the

appellant then may claim for interim relief. In some situations the Court may decide ex officio on such

measures, regarding the probable outcome of the case, risk for irrevocable effects and the level of risk

(environmental/health). A decision to grant or not to grant such a claim can be appealed in the same

way as the final decision.

In appealed administrative cases there is a written, reformatory procedure according to the Court

Matters act. The court may have an oral hearing as a complement to the written material. In

application cases and civil cases the main rule is to have a main hearing though in application cases,

the hearing is regarded partly as a complement to the written material.

There is no obligation to be represented by a legal advisor. On the other hand, the court is obliged to

ex officio ensure that unclear requests are explained and proper motions are made and also to examine

the case and may (in appealed cases and permit cases)without request for example decide to have an

inspection on the site for an operation or action.

For cases under the Environmental Code and the Plan and Buildings Act, there is no stipulated time

limit regarding the courts procedure. The Constitution, the Instrument of Government, Chapter 2 Art.

11, in general terms state that legal proceedings are to be carried out fairly and within a reasonable

period of time. All the Land and Environmental Courts have adopted internal targets for turnover time,

e.g. 6 months for appealed environmental cases. Parties have the opportunity to claim for priority

according to the Act (2009:1058) on Declaration of Precedence. – In notification cases under the

Environmental Code and building cases under the Plan- and Buildings Act, the first deciding authority

is by law given a stipulated time to decide on the matter.

In administrative cases there is no court fee but in civil cases the applicant has to pay a fee, in 2014

raised from around 45 Euros to around 300 Euros.

A governmental Inquiry, had the general object to propose amendments in the planning and buildings

legislation, in order to speed up the procedures and facilitate for house building. One specific task was

to analyse the introduction of appeal fees in cases under the Plan and Buildings Act. The Inquiry

delivered its report in March 201436. No proposals was delivered regarding restrictions for neighbours

to challenge decision on planning or building permits. In the report the disadvantages with appeal fees

was found to override the possible advantages.

In most cases at the Land and Environment Courts the parties have to bear their own costs. In the

administrative procedure there is no risk for losing party to have to pay the opposite parties costs; thus

having the possibilities to have an operation scrutinized for free and in several instances. Only in civil

36 SOU 2014:14.

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cases and permit cases related to water operations, there are provisions on costs. - In civil cases, the

general rule is that the losing party has to pay the winning party’s costs. In water cases, the applicant

has to pay the costs for opposite parties in the first instance (not the costs for an NGO). If the applicant

(the operator) appeals the permit decision, he/she has to pay the costs in the appeal court, irrespective

of the outcome. If the permits decision is challenged by a discontent neighbour, that person only risk

to have to pay the own costs.

In appealed environmental cases at the land and environment court, the ruling will relate both to

legality and the appropriateness of the appealed decision. The Court can annul the decision or modify

it. The Court is rather free to act, as long as the outcome is covered by the claims of a party. The review

covers also a review of the regulation or statute itself37 which has been applied in the case before the

court38.

Judgments decided by the Land and Environment Courts may be appealed to the Land and

Environment Court of Appeal (leave to appeal is required39), and in some cases further on to the

Supreme Court. This may only be the case when the Land and Environment Court has decided the

matter in first instance or, regarding property cases and cases under the Plan and Buildings Act, the

court of appeal in its judgment has allowed the parties to appeal. Otherwise the Land and Environment

Court of Appeal is the final instance for all environmental matters that has started at authority level.

Leave to appeal is required for all cases at the Supreme Court.

Are there any limitations what the court may regard and a party to invoke?

In appealed cases the court is rather free to interpret the claims and statements in order to make the

action understandable. In such cases the court may also refer to grounds not explicit invoked, as long

as they are covered by the claim. The procedure in cases on appealed binding municipality plans,

though have special limitations, meaning that the court is be bound by the grounds the party explicit

has referred40. The main rule is that an individual regarded as “party concerned” may invoke grounds

related to his/her personal interest but also grounds related to public interest41.

A detailed plan for housing was adopted municipality. - In a separate procedure the County

Administrative Board (regional governmental authority) on its own initiative has to supervise that all

adopted plans does not confront certain public interests; e.g. environmental quality standards, in the

37 Chapter 11 Section 14 of the Instrument of Government states: If a court finds that a provision conflicts with a rule of fundamental law or other superior statute, the provision shall not be applied. The same applies if a procedure laid down in law has been disregarded in any important respect when the provision was made. In the case of review of an act of law under paragraph one, particular attention must be paid to the fact that the Riksdag is the foremost representative of the people and that fundamental law takes precedence over other law. 38 The general rules of procedure in appealed cases are regulated in the Court Matters Act,1992:242. These rules are complemented by special provisions inter alia in the Environmental Code and the Code of Judicial Procedure. 39 Leave to appeal can be granted when there is reason to amend the ruling, when leave to appeal is needed in order to determine the rightness of the ruling, when it is important for the application of law that the appeal is considered (to give guidance), or when there are other extraordinary reasons to consider the appeal. 40 Chapter 13 Article 17 the Plan and Buildings Act, see judgment from the Land and Environment Court of Appeal, MÖD 2012:31 on the limitations for a court to ex officio regard grounds not invoked by the appellant. 41 Judgments from the Supreme Administrative Court, e.g. RÅ 1993 ref. 97, RÅ 1994 ref 39, RÅ 2005 ref. 44 and RÅ 2008 not 13. In the preparatory works to Chapter 13, Article 17 of the Plan and Buildings Act, this is emphasized (prop. 2009/10:215 p. 88 f and 235 f).

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Environmental Code specified national interests and reasons of health of residents and safety. Such

decisions are not possible to challenge except in cases where the County Administrative Board actually

revokes the decision to adopt the plan. In such cases, appeal to the Government with possibility for

judicial review at the Supreme Administrative Court. In this case the County Administrative Board did

not revoke the decision. - The plan simultaneously was appealed to the Board by private persons and

the appeal was rejected. That decision was challenged and the Land and Environment Court in

Stockholm annulled the plan. The matter was challenged at the Land and Environment Court of Appeal.

The Court of Appeal emphasises that public interests, as environmental quality standards, national

interests and health of residents, in the first hand shall be supervised by the County Administrative

Board42. When an individual invokes such public interests while challenging a plan in court, the

examination will be limited. In the judgment the court divides the interpreting of provisions regarding

inter alia noise and air quality to what may affect public interests and separately what may affect the

claimant.43

The procedure in administrative courts regarding judicial review of decisions by authorities operating

within the municipal self-government sector is strictly regulated in the Local Government Act

(1991:900). In these cases the assessment is limited to the legality. It is a cassatory process and the

court is bound by the grounds and circumstances the appellant has invoked in specified time limit, 3

weeks from when the decision was announced.

In administrative cases these courts apply the Administrative Court Procedure Act; very similar to the

procedural rules that governs the procedure at the Land and Environment Courts in appealed cases.

Summary

There is no “actio popularis” in Sweden. In order for a private person to have standing, appeal a

decision and have it scrutinised in court, he/she has to be regarded as a “concerned party”. Though

many procedures prior to a decision on permit or adopting a municipality plan are open and not only

for the formal parties to make statements or ask questions.

Depending on the kind of case, the right to standing and possibility to challenge a decision differ and

as a general rule is rather generous in cases under the Environmental Code, except in some cases

related to nature. In building cases there is a more narrow view and even more narrow in cases on

decisions to adopt, alter or annul municipality plans.

There is by new case law a tendency to open up for individuals to challenge existing permits for

environmentally harmful operations. On the other hand some judgments from the Land and

Environmental Court of Appeal indicates that the scope of examination in court will focus more on

what is regarded as individual interests and aspects related to public interests, may be harder for

individuals to invoke.

NGOs in the field of environmental law were first recognised by the Environmental Code from 1

January 1999. Later on such organisations also was given right to standing in certain cases under the

Plan and Buildings act and the Act on Judicial Review of Certain Governmental Decisions. The

conditions for NGOs to have standing have been altered during the years, in order to comply with EU

42 Judgment 19/6-2013, P 11296-12, MÖD 2013:47. 43 The judgment was appealed to the Supreme Court but was not given leave to appeal. There is a similar reasoning in the court of appeals judgment 11/7-2013, P 2324-11.

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law and the Aarhus convention - the judgment from the CJEU in the DLV-case. There is a pending

proposal in Sweden suggesting to open up even more and revoke the criterion on how long an NGO

must have existed in order to have standing.

The initial fear from the legislator, the industry and the municipalities, that such organisations would

make unnecessary obstacles to progress and development, enhance costs and prolong already long

procedures, has not come true. Experiences from a judges point of view shows that these

organisations, maybe by lack of resources, concentrate on more important and principal cases and

almost always appear and act competent, well prepared and focused.

Recent case law from the Land and Environment Court of Appeal and from the Administrative Courts

indicates that these courts – and with reference to EU law and the Aarhus convention – are willing to

open up for NGOs to have standing even in some cases where they are not recognized by national law.

On the other hand regarding cases under the Planning and Buildings Act, the Government with

different initiatives has tried enhance the efficiency of the procedures, inter alia to curtail the

possibilities for individuals to postpone projects by challenge decisions in court. So far such efforts

have turned out in a proposal to shorten the chain of instances to appeal but not in court fees or

otherwise to make obstacles for individuals to challenge decisions.

In hunting cases the legislator actively has taken steps to stop the possibilities for NGOs to challenge

licenses to hunt wolves.

To conclude, the different approaches regarding standing and the role for parties in court is under

constant development. The practice to in these procedural matters seek inspiration and support by EU

law and the Aarhus convention has been obvious for the last years. As Sweden by tradition has a strict

dualistic system and obedient attitude to the preparatory works of the national legislation, this is a

rather new tendency and by this influence the courts maybe has become bolder and clearly, the

attitude especially towards NGOs has become more open. In this period, the legislator on the other

hand has been more or less passive, or as regarding hunting cases, instead taken steps backwards and

widened the gap towards EU-law.

/Anders Bengtsson