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Administrative courts and participatory arrangements

In many countries stakeholders can oppose to permits and decisions at administrative court, only in a few countries stakeholders can object to formal regulations.

Additionally stakeholders are often offered the opportunity to enter participatory arrangements when policies, policy guidelines and plans are prepared. In procedures for preparing policies, policy guidelines and plans a similar possibility is offered to experts.

For example, the meaning of 'Habitat assessment' under art. 6 Habitat Directive for plans and projects is explicitly linked to restrictions in access to the courts and the different way justice is administered within the EU. A cooparative law study by Backes et al. (2006) highlighted these differences. In Austria and Germany, there are very limited possibilities for public participation and legal protection available to citizens to contest the national legislation putting art. 6 par.3 and 4 Habitat Directive into effect. The highest court considers that legal protection of citizens is not required since European nature conservation directives concern the protection of a general interest as opposed to individual interest. This is not regarded by the European Commission as an infringement of European law, as citizen involvement is not mandatory in art. 6 par. 3 Habitat Directive. Public participation is mandatory if there is also an EIA procedure, but this derives from the EIA directive and not from the Habitat Directive. In England, it is decided in each specific case whether opportunities for public participation will be offered and often legal protection is available against sectoral decisions. There is less haste in England to present differences of opinion on the application of legal frameworks to the courts, and solutions are first sought in consultations. In Sweden, the way general public is consulted depends on the status the decision was takes upon (e.g. physical planning law, etc.) and is usually limited to the ‘affected public’ and environmental NGOs. In Flanders, nature and environment organizations have access to the Belgian Council of State to contest decisions. In the Netherlands, access to appeals procedure against a permit issued under Nature Protection Act is open to interested parties and stakeholders including nature and environment organizations. In the Netherlands, unlike in Germany and Austria, there is no relativity review: an interested party can present all arguments against a decision no matter whether he or she has a specific interest with these arguments. Opportunities for participation in legal actions in the Netherlands are thus much wider compared to the other countries studied.

Be aware that negotiating with stakeholders and NGOs on sector level by no means implies that individual civilians or individual companies will perceive their interests served. Including them early will also not imply that they will waive legal appeal opportunities. Asses the ownership and user rights firmly, be aware of vested interests touched upon, include them into participatory arrangements however do not be naïve: they might appeal to court.

 

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