Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský and JUDr. Martin Mezenský
By its judgment of 27 August 2021, Case No. 8 As 198/2021, the Supreme Administrative Court (the “SAC”) annulled the order of the Regional Court in Brno (the “Regional Court”) of 27 May 2021, Case No. 30 A 52/2021-139, and returned the case to the Regional Court for further proceedings.
The Brno-based non-profit organization, the ‘Society for the Protection of the Environment’ (the “Society”) brought an action against the final first-instance planning decision issued for the extension of part of a local heating plant. One of the disputed issues in the case was whether an environmental impact assessment was required for the planned extension of the heating plant. The Regional Court dismissed the action as inadmissible after carrying out its own assessment of whether the Society had exhausted all available remedies before bringing the administrative action.
The Society lodged a cassation appeal against the decision of the Regional Court, which the SAC found to be justified on the grounds of the internal inconsistency of the reasoning of the Regional Court’s refusal. According to the SAC, the Regional Court adopted two mutually contradictory legal conclusions.
According to one of the Regional Court’s conclusions, the Society’s action was inadmissible because the Society, in its capacity as a member of the ‘interested public’, could and should have appealed against the planning decision precisely on the basis of its status as a member of the interested public. In that case, however, the Regional Court must have concluded at the same time that the contested plan was subject to an EIA process, since otherwise the Society could never have been granted the status of an interested party.
According to the second reasoning of the Regional Court, the Society’s action was inadmissible because the appeal against the planning decision was not manifestly inadmissible on its face, and the Society should have resolved the controversy about the admissibility of its appeal and the need to carry out the EIA process through an administrative appeal procedure, not only in the alternative before the administrative court.
The SAC noted that each of these conclusions had different starting points and addressed different issues, and it was therefore unclear which of them the Regional Court had actually followed and according to which it had decided the case. Moreover, the Regional Court gave insufficient reasons for both partial conclusions.
If the first conclusion is to apply, the Regional Court did not explain why the plan to expand the thermal power plant should have been subject to the EIA process. That question was disputed between the Society and the building authority. In the second case, the Regional Court did not explain why the Society should have tried to exhaust its remedies when it was not certain that its claim would be admissible, since no legal provision imposed such an obligation. An action against a decision of an administrative authority can be rejected only if the applicant has not exhausted an admissible remedy, not if the admissibility of the remedy is merely hypothetical and will be assessed only during the appeal proceedings.
Moreover, it is also clear from the previous case-law of the SAC (in particular the judgment of 4 April 2014, Case No 4 As 157/2013) that if the law lays down a condition for access to the court for the lodging of an appeal, such a condition applies only to those subjects to whom such an appeal belongs, i.e. the parties to the proceedings. The lodging of an inadmissible appeal by a subject whose status as a party to the proceedings (or as a member of the concerned public) is not certain cannot be a condition for that subject’s access to the court.
The SAC thus summarized that the ‘cursory’ reasoning of the Regional Court is inconsistent with the SAC’s findings and conclusions regarding the law. The SAC then emphasized that if the Regional Court wanted to base its decision to reject the application on grounds which did not clearly follow from the text of the legal provision or from case-law, it had to explain at least the basic legal construction on which it based its reasoning, and, where appropriate, describe what the applicant’s correct course of action should have been. However, the Regional Court’s order rejecting the claim contained nothing of the kind.
In conclusion, the SAC stated that if the Regional Court had intended to imply that in similar cases the concerned public should always lodge an appeal to be on the safe side, such a course of action could in fact have the effect of preventing access to the courts. Indeed, before it was decided that the appeal was inadmissible and that the subject should have brought an action directly against the first instance decision (alleging that its rights and legitimate interests had been affected by the administrative decision challenged in the action, even though the subject was not a party to the proceedings which resulted in the adoption of the administrative decision challenged), the time-limit for bringing such an action against the first instance administrative decision could have expired. The subject would therefore have no recourse to judicial protection.
The SAC thus ordered the Regional Court to give more detailed and precise reasons as to what legal conclusion it ultimately reached in the case. If the Regional Court considered that the action was inadmissible, it had to supplement its reasoning as regards the absence of the need to carry out an EIA process for the gasworks extension project and the fulfilment of the timeliness condition for bringing the administrative action in question.
The setting of requirements for the scope, detail and quality of the reasons for courts’ decisions is always welcome, as this brings a greater degree of protection to the parties to the proceedings against judicial arbitrariness or disinterest in dealing with the matter before them. Similarly, it should be emphasized that the SAC maintains the position that patently fruitless and merely formal acts in administrative proceedings – including the filing of a potentially inadmissible (and therefore unsuccessful) appeal – should not stand in the way of the subject seeking judicial protection against the misconduct of administrative authorities. At the same time, the judgment under analysis does not let potential claimants off the hook, since the time limits for bringing administrative actions also apply to those who were not parties to the case at hand. In such complex cases, it therefore pays to turn to specialists who can help to oversee the entire process and achieve effective and timely action against unlawful practices by the authorities.
The SAC decision is available at http://www.nssoud.cz/files/SOUDNI_VYKON/2021/0198_8As__2100118S_20210827093313.pdf
The SAC decision is in Czech.
