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Environment protection. Application of European directives by Romanian courts, Volume I - Dragos Calin, Roxana-Maria Calin
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ISBN: 978-606-28-1482-3
DOI: https://doi.org/10.5682/9786062814823
Publisher year: 2022
Edition: I
Pages: 392
Publisher: Editura Universitara
Author: Dragos Calin, Roxana Maria Calin
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9786062814823
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The work is extremely useful both for environmental associations and for the citizens involved, as well as for judges, prosecutors or lawyers, the subject matter cannot be neglected in law schools or in public debates.
Moreover, public participation in the administrative decision-making process is an important element to guarantee that the authority makes a decision on the best possible basis. Citizens can protect the environment in a more effective way if they have the opportunity to rely on the three "pillars" of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) .
Authors
Moreover, public participation in the administrative decision-making process is an important element to guarantee that the authority makes a decision on the best possible basis. Citizens can protect the environment in a more effective way if they have the opportunity to rely on the three "pillars" of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) .
Authors
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Environment protection. Application of European directives by Romanian courts, Volume I
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DRAGOS CALIN, judge, Bucharest Court of Appeal
ROXANA MARIA CALIN, judge, Bucharest Court
ROXANA MARIA CALIN, judge, Bucharest Court
Some introductory remarks / 5
I. Council Directive 91/271/EEC of 21 May 1991 on urban waste water treatment / 13
1. Maximum admissible water loading limits. The legislator offers the authorization issuer the possibility to establish admissible values ​​lower than those provided in the table (High Court of Cassation and Justice - Administrative and Fiscal Litigation Section, decision no. 2093 of May 21, 2018, ECLI:RO:ICCJ:2018:002.002093 , final) / 13
II. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and species of wild fauna and flora / 20
1. Preliminary submission. Preservation of natural habitats and species of wild fauna and flora. Capture and transport of a specimen of a wild animal from the canis lupus species (Zarnesti Court, decision of 15 November 2018; Court of Justice of the European Union, decision of 11 June 2020, case C‑88/19, Alliance to combat abuses, ECLI:EU :C:2020:458) / 20
2. With regard to protected areas ("Natura 2000" sites), forestry facilities represent public information that cannot be declared classified (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 2091 of May 16, 2019 , ECLI:RO:CABUC:2019:024.002091, definitive) / 39
3. The competent national authorities authorize an activity subject to evaluation only after finding that the said activity is free of negative effects on the integrity of the mentioned site (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 2284 of June 12 2019, ECLI:RO:CABUC:2019:024.002284, definitive) / 58
4. Exception of illegality rejected because it does not result that the forest will be removed from the respective lands, the only change being the gradual replacement of mature trees, which give space to the younger generation, and the process of forest exploitation being equivalent to the regeneration of forests through the transfer between generations, the production of wood table being a result of this transfer (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 640 of October 23, 2019, final) / 83
5. The inclusion of the area where the project is carried out within the "Natura 2000" Site implies a change in its legal situation from the perspective of environmental protection and gives rise to new obligations for the authorities from this perspective, even if this change is subsequent to the environmental opinion (Court of Appeal Bucharest - Section VIII administrative and fiscal litigation, civil decision no. 5378 of December 14, 2017, ECLI:RO:CABUC:2017:024.005378, final) / 98
6. Declassification of an oil agreement classified as "service secret". Free access to information of public interest. Interested social body (Court of Appeal Timisoara - Administrative and Fiscal Litigation Section, civil sentence no. 10 of January 16, 2018, ECLI:RO:CATIM: 2018:010.000010) / 112
7. The procedure for establishing derogations from the protection measures of wild flora and fauna species. Request for the opinion of the administrator/custodian of the protected natural area (Constanta Court of Appeal - Section II administrative and fiscal litigation, civil sentence no. 67 of April 1, 2021, ECLI:RO:CACTA:2021:016.000067) / 137
8. EU law obliges to carry out a complete and effective evaluation of the effects that could have on the "Natura 2000" sites, both the plans regarding the management of these special conservation areas, as well as the plans that do not have a direct connection with or not are necessary for the management of the sites, but which could significantly affect the area (Bucharest Court - Section II administrative and fiscal litigation, civil sentence no. 2993 of July 15, 2020, ECLI:RO:TBBUC: 2020:007.002993) / 149
9. Communicating the specific conditions that must be respected for logging operations in the protected natural area. The interest granted regarding the state of conservation and the existence of protected species and habitats (Bucharest Court of Appeal - VIIIth Section administrative and fiscal litigation, civil sentence no. 685 of August 3, 2020, ECLI:RO:CABUC:2020:185.000685) / 163
10. Suspension of the execution of an administrative act. Impending damage. The possibility of carrying out forestry works in sensitive areas that endanger the state of conservation and the existence of protected species and habitats (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 588 of September 18, 2019, ECLI:RO :CABUC:2019: 186.000588, final) / 172
11. Suspension of the execution of the administrative act. Non-fulfillment of the consultation obligation (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 1303 of December 5, 2019, ECLI:RO:CABUC:2019:186.001303, final) / 176
12. Forest management and cutting plans that are not necessary or directly related to the management of the protected area create the presumption that they present a significant risk of harming the conservation objectives of the protected area as well as the species of habitats and birds inside them (Court of Appeal Bucharest - Section VIII of administrative and fiscal disputes, civil decision no. 1080 of May 24, 2021, final) / 186
13. Endangering the national natural heritage in the protected area, being the object of the protection of the fundamental right to a healthy and balanced environment, represents a violation of the national interest (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision No. 1409 of December 13, 2019, ECLI:RO:CABUC:2019:186.001409, final) / 194
14. The presence of bears in the human area generates an extreme state of danger, but such a situation does not justify taking the measure of killing the animals without concrete proof that there was no acceptable alternative method for removing the state of danger (Court of Appeal Constanta - Section a 2nd administrative and fiscal litigation, civil judgment no. 181 of December 16, 2020, ECLI:RO:CACTA:2020:016.000181) / 201
15. Once the competent delegate has completed the stage of including the plan or program in the environmental assessment procedure, obviously the authority entrusted with the delegation has the possibility of adopting any of the final decisions of this procedure, including the one according to which the assessment is not necessary environment by issuing an environmental opinion (Court of Appeal Timisoara - Administrative and Fiscal Litigation Section, civil decision no. 715 of 18 May 2021, ECLI:RO:CATIM:2021: 016.000715, final) / 218
III. Directive 94/62/CE of the European Parliament and of the Council of December 20, 1994 on packaging and packaging waste / 271
1. Waste recovery and recycling. Introduction on the national market of some packaged products and some packaging, without intervention on them (Court of Appeal Pitesti - Second civil, administrative and fiscal section, conclusion of February 2, 2017; Court of Justice of the European Union, decision of March 15, 2018, case C‑104/17, SC Cali Esprou SRL, ECLI:EU:C:2018:188) / 271
IV. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community water policy / 288
1. Issuing the authorization to build a hydropower plant. Lack of any evidence on the alleged destruction of habitats and protected species on the surface of the protected areas (Bucharest Court - Second Administrative and Fiscal Section, civil sentence no. 2939 of July 14, 2020, ECLI:RO:TBBUC:2020:007.002939, definitive) / 288
2. Obliging the Water Basin Administration to install flow measurement facilities downstream of the hydroelectric power plant's machined flow capture (Dambovita Court - Second Administrative and Fiscal Section, civil judgment no. 443 of May 6, 2016, ECLI:RO :TBDBO: 2016:005.000443) / 306
3. Hydropower development. Third parties injured in a right of theirs or in a legitimate interest find themselves in the objective impossibility of knowing the existence of an administrative act addressed to another subject of law (Cluj Court of Appeal - Section III of administrative and fiscal litigation, sentence civil no. 232 of September 27, 2018, ECLI:RO:CACLJ: 2018:048.000232) / 315
4. The aquatic ecosystem is influenced not only by the quality of the processed water, but also by a series of physical changes produced by the use of water within the hydropower plant which, by its mere existence, affects the flow and flow of natural water (Bucharest Court of Appeal - Section IX ‑a administrative and fiscal dispute, civil decision no. 1189 of July 14, 2020, ECLI:RO:CABUC:2020:178.001189, final) / 325
5. Low-power hydroelectric power plants are included in the notion of installations subject to authorization or notification, which are used for surface or underground water sampling or for discharges into natural receptors, respectively in the notion of "production unit" (Dambovita Court - Section 2nd administrative and fiscal litigation, civil judgment no. 488 of March 9, 2017, ECLI:RO:TBDBO:2017:005. 000488) / 337
6. Microhydropower plant design. Assessment of the impact on the environment (Alba Iulia Court of Appeal - Administrative and Fiscal Litigation Section, civil decision no. 3663 of June 28, 2018, final) /345
7. The inclusion of the Black Sea as a source of water for the use of which economic operators are obliged to pay the contribution established by government decision (High Court of Cassation and Justice - Administrative and Fiscal Litigation Section, decision no. 671 of February 13, 2014, final) / 360
V. Directive 2004/35/EC of the European Parliament and of the Council of April 21, 2004 regarding environmental liability in relation to the prevention and repair of environmental damage / 363
1. The "polluter pays" principle considers the situation in which an entity, in carrying out its object of activity, causes damage to the environment, a situation in which it is responsible for this and must take the necessary repair or prevention measures and bear all related costs, thus targeting professional activities that pose a risk to human health or the environment (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil sentence no. 53 of January 21, 2021, ECLI:RO:CABUC:2021 :185.000053) / 363
VI. Directive 2001/42/EC of the European Parliament and of the Council of June 27, 2001 regarding the assessment of the effects of certain plans and programs on the environment / 372
1. We could talk about a non-compliant interpretation of EU law if it imposed "the binding character for the environmental authority of the points of view expressed by the concerned authorities" and the national court, interpreting the transposition act, would have come to the conclusion that the respective points of view have only advisory value or that they should not even exist, but it is only necessary that the interested authorities and the public have the opportunity to formulate such points of view (Oradea Court of Appeal - Section II ‑ civil, of administrative and fiscal litigation, civil decision no. 400 of July 17, 2020, ECLI:RO:CAORA: 2020:008.000400, final) / 372
List of abbreviations and acronyms used / 389
I. Council Directive 91/271/EEC of 21 May 1991 on urban waste water treatment / 13
1. Maximum admissible water loading limits. The legislator offers the authorization issuer the possibility to establish admissible values ​​lower than those provided in the table (High Court of Cassation and Justice - Administrative and Fiscal Litigation Section, decision no. 2093 of May 21, 2018, ECLI:RO:ICCJ:2018:002.002093 , final) / 13
II. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and species of wild fauna and flora / 20
1. Preliminary submission. Preservation of natural habitats and species of wild fauna and flora. Capture and transport of a specimen of a wild animal from the canis lupus species (Zarnesti Court, decision of 15 November 2018; Court of Justice of the European Union, decision of 11 June 2020, case C‑88/19, Alliance to combat abuses, ECLI:EU :C:2020:458) / 20
2. With regard to protected areas ("Natura 2000" sites), forestry facilities represent public information that cannot be declared classified (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 2091 of May 16, 2019 , ECLI:RO:CABUC:2019:024.002091, definitive) / 39
3. The competent national authorities authorize an activity subject to evaluation only after finding that the said activity is free of negative effects on the integrity of the mentioned site (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 2284 of June 12 2019, ECLI:RO:CABUC:2019:024.002284, definitive) / 58
4. Exception of illegality rejected because it does not result that the forest will be removed from the respective lands, the only change being the gradual replacement of mature trees, which give space to the younger generation, and the process of forest exploitation being equivalent to the regeneration of forests through the transfer between generations, the production of wood table being a result of this transfer (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 640 of October 23, 2019, final) / 83
5. The inclusion of the area where the project is carried out within the "Natura 2000" Site implies a change in its legal situation from the perspective of environmental protection and gives rise to new obligations for the authorities from this perspective, even if this change is subsequent to the environmental opinion (Court of Appeal Bucharest - Section VIII administrative and fiscal litigation, civil decision no. 5378 of December 14, 2017, ECLI:RO:CABUC:2017:024.005378, final) / 98
6. Declassification of an oil agreement classified as "service secret". Free access to information of public interest. Interested social body (Court of Appeal Timisoara - Administrative and Fiscal Litigation Section, civil sentence no. 10 of January 16, 2018, ECLI:RO:CATIM: 2018:010.000010) / 112
7. The procedure for establishing derogations from the protection measures of wild flora and fauna species. Request for the opinion of the administrator/custodian of the protected natural area (Constanta Court of Appeal - Section II administrative and fiscal litigation, civil sentence no. 67 of April 1, 2021, ECLI:RO:CACTA:2021:016.000067) / 137
8. EU law obliges to carry out a complete and effective evaluation of the effects that could have on the "Natura 2000" sites, both the plans regarding the management of these special conservation areas, as well as the plans that do not have a direct connection with or not are necessary for the management of the sites, but which could significantly affect the area (Bucharest Court - Section II administrative and fiscal litigation, civil sentence no. 2993 of July 15, 2020, ECLI:RO:TBBUC: 2020:007.002993) / 149
9. Communicating the specific conditions that must be respected for logging operations in the protected natural area. The interest granted regarding the state of conservation and the existence of protected species and habitats (Bucharest Court of Appeal - VIIIth Section administrative and fiscal litigation, civil sentence no. 685 of August 3, 2020, ECLI:RO:CABUC:2020:185.000685) / 163
10. Suspension of the execution of an administrative act. Impending damage. The possibility of carrying out forestry works in sensitive areas that endanger the state of conservation and the existence of protected species and habitats (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 588 of September 18, 2019, ECLI:RO :CABUC:2019: 186.000588, final) / 172
11. Suspension of the execution of the administrative act. Non-fulfillment of the consultation obligation (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision no. 1303 of December 5, 2019, ECLI:RO:CABUC:2019:186.001303, final) / 176
12. Forest management and cutting plans that are not necessary or directly related to the management of the protected area create the presumption that they present a significant risk of harming the conservation objectives of the protected area as well as the species of habitats and birds inside them (Court of Appeal Bucharest - Section VIII of administrative and fiscal disputes, civil decision no. 1080 of May 24, 2021, final) / 186
13. Endangering the national natural heritage in the protected area, being the object of the protection of the fundamental right to a healthy and balanced environment, represents a violation of the national interest (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil decision No. 1409 of December 13, 2019, ECLI:RO:CABUC:2019:186.001409, final) / 194
14. The presence of bears in the human area generates an extreme state of danger, but such a situation does not justify taking the measure of killing the animals without concrete proof that there was no acceptable alternative method for removing the state of danger (Court of Appeal Constanta - Section a 2nd administrative and fiscal litigation, civil judgment no. 181 of December 16, 2020, ECLI:RO:CACTA:2020:016.000181) / 201
15. Once the competent delegate has completed the stage of including the plan or program in the environmental assessment procedure, obviously the authority entrusted with the delegation has the possibility of adopting any of the final decisions of this procedure, including the one according to which the assessment is not necessary environment by issuing an environmental opinion (Court of Appeal Timisoara - Administrative and Fiscal Litigation Section, civil decision no. 715 of 18 May 2021, ECLI:RO:CATIM:2021: 016.000715, final) / 218
III. Directive 94/62/CE of the European Parliament and of the Council of December 20, 1994 on packaging and packaging waste / 271
1. Waste recovery and recycling. Introduction on the national market of some packaged products and some packaging, without intervention on them (Court of Appeal Pitesti - Second civil, administrative and fiscal section, conclusion of February 2, 2017; Court of Justice of the European Union, decision of March 15, 2018, case C‑104/17, SC Cali Esprou SRL, ECLI:EU:C:2018:188) / 271
IV. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community water policy / 288
1. Issuing the authorization to build a hydropower plant. Lack of any evidence on the alleged destruction of habitats and protected species on the surface of the protected areas (Bucharest Court - Second Administrative and Fiscal Section, civil sentence no. 2939 of July 14, 2020, ECLI:RO:TBBUC:2020:007.002939, definitive) / 288
2. Obliging the Water Basin Administration to install flow measurement facilities downstream of the hydroelectric power plant's machined flow capture (Dambovita Court - Second Administrative and Fiscal Section, civil judgment no. 443 of May 6, 2016, ECLI:RO :TBDBO: 2016:005.000443) / 306
3. Hydropower development. Third parties injured in a right of theirs or in a legitimate interest find themselves in the objective impossibility of knowing the existence of an administrative act addressed to another subject of law (Cluj Court of Appeal - Section III of administrative and fiscal litigation, sentence civil no. 232 of September 27, 2018, ECLI:RO:CACLJ: 2018:048.000232) / 315
4. The aquatic ecosystem is influenced not only by the quality of the processed water, but also by a series of physical changes produced by the use of water within the hydropower plant which, by its mere existence, affects the flow and flow of natural water (Bucharest Court of Appeal - Section IX ‑a administrative and fiscal dispute, civil decision no. 1189 of July 14, 2020, ECLI:RO:CABUC:2020:178.001189, final) / 325
5. Low-power hydroelectric power plants are included in the notion of installations subject to authorization or notification, which are used for surface or underground water sampling or for discharges into natural receptors, respectively in the notion of "production unit" (Dambovita Court - Section 2nd administrative and fiscal litigation, civil judgment no. 488 of March 9, 2017, ECLI:RO:TBDBO:2017:005. 000488) / 337
6. Microhydropower plant design. Assessment of the impact on the environment (Alba Iulia Court of Appeal - Administrative and Fiscal Litigation Section, civil decision no. 3663 of June 28, 2018, final) /345
7. The inclusion of the Black Sea as a source of water for the use of which economic operators are obliged to pay the contribution established by government decision (High Court of Cassation and Justice - Administrative and Fiscal Litigation Section, decision no. 671 of February 13, 2014, final) / 360
V. Directive 2004/35/EC of the European Parliament and of the Council of April 21, 2004 regarding environmental liability in relation to the prevention and repair of environmental damage / 363
1. The "polluter pays" principle considers the situation in which an entity, in carrying out its object of activity, causes damage to the environment, a situation in which it is responsible for this and must take the necessary repair or prevention measures and bear all related costs, thus targeting professional activities that pose a risk to human health or the environment (Bucharest Court of Appeal - Section VIII administrative and fiscal litigation, civil sentence no. 53 of January 21, 2021, ECLI:RO:CABUC:2021 :185.000053) / 363
VI. Directive 2001/42/EC of the European Parliament and of the Council of June 27, 2001 regarding the assessment of the effects of certain plans and programs on the environment / 372
1. We could talk about a non-compliant interpretation of EU law if it imposed "the binding character for the environmental authority of the points of view expressed by the concerned authorities" and the national court, interpreting the transposition act, would have come to the conclusion that the respective points of view have only advisory value or that they should not even exist, but it is only necessary that the interested authorities and the public have the opportunity to formulate such points of view (Oradea Court of Appeal - Section II ‑ civil, of administrative and fiscal litigation, civil decision no. 400 of July 17, 2020, ECLI:RO:CAORA: 2020:008.000400, final) / 372
List of abbreviations and acronyms used / 389
These volumes make a selection of dozens of court decisions pronounced in recent years in Romania that apply the directives of the European Union issued in the field of environmental protection.
The work is extremely useful both for environmental associations and for the citizens involved, as well as for judges, prosecutors or lawyers, the subject matter cannot be neglected in law schools or in public debates.
Moreover, public participation in the administrative decision-making process is an important element to guarantee that the authority makes a decision on the best possible basis. Citizens can protect the environment in a more effective way if they have the opportunity to rely on the three "pillars" of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) .
If the massive infrastructure investments (highways, racetracks, railways, water and sewage networks, waste management facilities, etc.) needed in the near future are not properly planned, integrated and evaluated, habitat connectivity will be threatened.
Among the specific obstacles for the implementation of green infrastructures are the limited understanding of how natural ecosystems work, which translates into the limited ability to design green infrastructure projects, the lack of numbers and examples regarding both the socioeconomic benefits and the of the environment to convince the decision-makers regarding the opportunities of investments in ecological infrastructures, the lack of a prior planning mentality and the incorrect use of integrated territorial development processes.
These volumes help the reader, introduce him to terminology, thematics, possible solutions.
The interventions on the decisions were reduced and consisted of the tacit correction of some minor errors, the standardization of some references as much as possible and the correction of some less successful forms, and the footnotes are intended to provide some clarifications. I have replaced where possible the references made to codes with abbreviations included in the list listed at the end of the volume: C.civ., C.fisc., C.pen., C.pr.civ., C.pr.fisc., C.pr.pen..
The initiative is supported by the Romanian Association of Law and European Affairs (ARDAE), the European Law Studies Center (CSDE) of the Legal Research Institute of the Romanian Academy and the Forum of Judges from Romania (FJR) Association.
Dragos CALIN
Roxana Maria CALIN
The work is extremely useful both for environmental associations and for the citizens involved, as well as for judges, prosecutors or lawyers, the subject matter cannot be neglected in law schools or in public debates.
Moreover, public participation in the administrative decision-making process is an important element to guarantee that the authority makes a decision on the best possible basis. Citizens can protect the environment in a more effective way if they have the opportunity to rely on the three "pillars" of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) .
If the massive infrastructure investments (highways, racetracks, railways, water and sewage networks, waste management facilities, etc.) needed in the near future are not properly planned, integrated and evaluated, habitat connectivity will be threatened.
Among the specific obstacles for the implementation of green infrastructures are the limited understanding of how natural ecosystems work, which translates into the limited ability to design green infrastructure projects, the lack of numbers and examples regarding both the socioeconomic benefits and the of the environment to convince the decision-makers regarding the opportunities of investments in ecological infrastructures, the lack of a prior planning mentality and the incorrect use of integrated territorial development processes.
These volumes help the reader, introduce him to terminology, thematics, possible solutions.
The interventions on the decisions were reduced and consisted of the tacit correction of some minor errors, the standardization of some references as much as possible and the correction of some less successful forms, and the footnotes are intended to provide some clarifications. I have replaced where possible the references made to codes with abbreviations included in the list listed at the end of the volume: C.civ., C.fisc., C.pen., C.pr.civ., C.pr.fisc., C.pr.pen..
The initiative is supported by the Romanian Association of Law and European Affairs (ARDAE), the European Law Studies Center (CSDE) of the Legal Research Institute of the Romanian Academy and the Forum of Judges from Romania (FJR) Association.
Dragos CALIN
Roxana Maria CALIN
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