Reports an individual constitutional rights to environmental protection - Denmark

Peter Pagh


1. Constitution

There are no provisions in the Danish constitution on right to environment, on environmental protection or on public health. The constitutional provisions on rights are mainly based on the 1849 version of the constitution and are rather old fashioned. Compared to the constitutions in other European States, I think its fair to describe the Danish Constitution as among the weakest regarding protection of individual rights. This is mainly caused by the fact that it is extremely difficult to change the Danish Constitution - last time it was done was in 1953. However, revision of the constitution has been debated - but in the context of environment no political party has until know advocated for a provision on environmental rights - and the majority has rejected such a provision. Although I disagree in the respond from political parties, I think that it to some extend is based on a rational observation, which should be taken into account by environmental lawyers: to what extend do we want the battle on environmental protection to be transferred from the political battlefield to the courts room ? - Or expressed in another way: if the constitution to some extend define the substance of environmental protection, one should also consider what room should be left to legislator.

2. Citizens access to courts

It is commonly recognized that one of the main issues on individual environmental rights is the access of citizens to court on environmental matters. In my view this question contains of several problems.

2.1 Access to challenge legislation adopted by Parliament

During the nineties there has been gradually changes in court practice regarding topics as standing, human rights and the relation towards legislator and the executive power. In particular the Danish Supreme Court has change from reluctance to censor parliamentary and governmental decisions and established its own position as one of the constitutional powers. In this context five landmark cases has to be mentioned - although not all are dealing with environmental matters.

1. Greenpeace-case on Oeresund bridge: The project on establishing a bridge between Copenhagen and Malmoe across Oeresund was based on an agreement with the Swedish government and an Act adopted by the Danish Parliament in 1991. Before the Act was adopted, complains were maid to the EU-Commission on breech of the EIA-directive and the Bird-directive (the bridge pass nearby a SBO and the Danish infrastructure connection pass through another SBO). After political pressure, the Commission filed the case and in 1993 Greenpeace started a case challenging whether the Act was in accordance with the EIA-directive derogation on projects adopted by legislation in a particular Act. The process covered not only question on the interpretation of the EIA-directive, but also topics as standing and the access to injunctive relief. It lasted for 6 years and went twice to the Supreme Court. Although the Supreme Court in the final ruling upheld the position of the government - not even asking the European Court of Justice for interpretation - the battle in itself generated two import victories for Greenpeace: in 1994, the standing of Greenpeace was recognized - contrary to the position of the Government; in 1995 the Supreme Court recognize that access to injunctive relief could be granted in such cases under the same conditions as the ECJ - but in this case, the Supreme Court didnít found that the criteria were met.

2. Maastricht-Treaty-case: This case was initiated by 12 citizens challenging whether the transformation of constitutional power to the EC complied with the requirements of the Danish Constitution § 20, which procedure only opens for transferring of constitutional powers to international organizations in "well defined areas". Contrary to former practice, the Supreme Court in its landmark ruling in 1996 recognized that all citizens have standing in such a case dealing with substantial transformation of powers on major areas. The next battle was an access to governmental documents which could enlightened Danish considerations during the 1970'ties and 1980'ties. While the higher court reject such access, the Supreme Court in 1997 granted the plaintiffs access to major part of the internal documents. As you might know, the Supreme Court in its final ruling concluded that the transition of power - at least in the Maastricht Treaty was in accordance with the Danish constitution.

3. Tvind-case: This case concerned an Act adopted by parliament to stop public aid to a private schools all leaded by the same corporation (Tvind). The Act was reasoned by fault from Tvind and the problems of proving this in at court. In its 1999-ruling the Supreme Court annulled the Act as unconstitutional because it violates the division og power between legislator and court.

4. Shell-case: This case concerns retroactive effect of administrative liability to investigate past contamination based on the Environmental Protection Act § 72. It was accepted by the public authorities that Shell has not acted negligence as well that the pollution was caused before the provision went into force - and the provision it self does not contain any statement on retroactive effect. The majority of the Supreme Court found that Shell could not be liable under this provision based on the presumption, that legislation is not retroactive unless expressed clearly by legislator. By this the Supreme Court reject to take into account that four weeks before the ruling, the majority of the Parliament when adopting the new contaminated soils act expressed that they expected § 72 to have retroactive effect.

5. Ashell-case regarding expropriation. This case was the first time the Supreme Court granted compensation purely based on the constitution § 73 on protection of private property. The Supreme Court found the rejection of renewing license to extract rawmaterials on private land, was considered an expropriation because the public authority didnít prove that further extraction would cause pollution of the ground water - facts of the case strongly indicates that the pollution of the groundwater was caused by geological factors in combination with extraction of groundwater for drinking water supply. The ruling shows o the other hand, that constitutional protection of private property does neither protect against interference in the use of private land necessary to protect groundwater against pollution nor require compensation to the landowner.

2.2 Aarhus-convention

It is generally known that the Danish Government has been strongly in favour of the Aarhus-convention - at the laqt Council meeting for ministers of environment in December 2000, the Danish representative pushed for an EU ratification.

However, the Danish implementation of the convention is not convincing in all aspects - and the problems illuminate problems having general interest for the discussion of individual environmental rights.

The title of the convention indicates that the convention covers three partly distinguished types of individual rights:

First it can be noted, that the title and structure of the convention donít reflect the rights of citizens to be informed on hazardous risks without request - a right which was recogniced in the context of right to privacy by the Human Rights Court in the Guerra v. Italy case. It must be added, that some reflections are seen in article 5 of the convention - but this aspect has not been dealt with in the Danish implementation, probably relying on the Danish implementation of the Seveso-directive (which however still doesnít reflect the obligation of authorities to inform potential effected citizens on emergency plans).

The rest of the problems of the Danish implementation are mainly concentrated on the third pillar of the convention (access to justice) - but also the scope of public participation is in dispute in the ongoing beaver-case (see below).

The concept of access to justice has in might opinion been ignored - even in the translation of the title of the convention. "Access to justice" has been translated to a right for citizens to challenge decisions by the executive power - while the more appropriate translation would be access to court - Danes donít like the word justice in law after the famous legal philosophe, Alf Roos.

This failure is reflected in the substance: no provision has been adopted on the rights of citizens to enforce violation of national environmental legislation and no legal remedies has been provided regarding the right to bring question on information, on access to participation and on access to enforcement. In my view, the implementation ignores the important distinction between:

and

Participation concerns only the first part, but citizens should not only be able to influence on the standard, but also be able to ensure compliance with the standard. Under Danish law the last part is mainly left to the local councils - and the intention of the Government is to keep it that way.

2.3 Green organisation and environmental liability

The proposal of the Commission in the white paper on environmental liability to give green organizations access to claim compensation for costs of storing damaged environment has been discussed in Denmark. While favoured by green organizations strong and clear opposition has been expressed from the Danish EPA as well as the ministry of justice. The position of the Danish EPA and the ministry of justice is that liability is ultimately a question for public authorities, which not can be left to green organization. However, it should be mentioned that under the Fish Act, the Anglers Association has since the 60'ies been entitle to claim compensation for restocking, when damage has been caused by a breech of law - and the right has been used as a successful tool in several cases.

3. Beaver case

In 1999 the minister of environment decided to introduce the beaver in Denmark as a genuine specie - it disappeared 2.500 years ago from Denmark. The beaver is introduced nearby areas which are designated under the habitatdirective article 4(1). The decision is challenged by the Anglers Association claiming, that the beaver is not a genuine specie in the sence the term is used in the Bern-convention and the habitatdirective - and the decision violates the habitatdirective article 6(3) and (4) because no sufficient assessment has been made before the decision. Finally the association claims that the decision violates fresh fish water directive (78/659) because the areas are designated for the salmon and the beaver will damage the area regarding salmon protection. The case is ongoing, and the first battle is on standing. Rather surprisingly, the minister of environment claim that the Anglers Association doesnít have standing - and the court is expected to rule on this issue in February.

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