Access to justice is a tool that allows the public to challenge decisions taken by public bodies and resolve disputes in front of an independent and impartial body. The right of access to justice for issues that relate to the environment is slowly gaining more importance on an international and European level, providing members of the public the right to challenge certain decisions which contravene environmental law.
The leading international instrument in this field is the Aarhus Convention, whereby article 9 provides a right to members of the public, including NGOs, to challenge decisions, acts and omissions by public bodies that contravene their right to information, right to participation or contravene any law relating to the environment.
Access to Justice at the national level
In Malta, access to justice in environmental matters is provided mainly through the Environment and Planning Review Tribunal (EPRT), which was first established in 2010. The Tribunal is regulated through the Environment and Planning Review Tribunal Act (Cap 551).
Cap 551 distinguishes between decisions made by the Environment and Resources Authority (ERA), and the Planning Authority (PA). The decisions taken by the PA which can be appealed are listed in article 11 of Cap 551, which allows appeals from applicants, interested third parties, external consultees and, in the circumstances listed in article 11(1)(c), any person.
With regard to decisions taken by ERA, article 47 of Cap 551 and article 63 of the Environment Protection Act (Cap 549), provide for the right for an aggrieved person to challenge such decisions before the EPRT. Notably, for appeals lodged by a person other than the applicant, such a person need not prove that he has an interest in that appeal in terms of the doctrine of juridical interest, but he is required to submit reasoned grounds based on environmental considerations to justify his appeal.
Notably, in all cases, the definition of ‘person’ would include an association or organisation, whether registered as a legal person or not, including NGOs.
Certain subsidiary legislation also provides for access to justice with regard to specific matters, such as the Freedom of Access to Information on the Environment Regulations (S.L 549.39) which provide for two forms of appeal to an applicant who requested environmental information and was dissatisfied with the response. The applicant may appeal to the Information and Data Protection Commissioner as per regulation 12, or to the EPRT as per regulation 11A. In the latter case, the Tribunal is obliged to hold its first hearing within six working days from receipt of the appeal.
Fees for appeals to the EPRT are clearly laid down in the Environment and Planning Appeals (Fees) Regulations (S.L 551.01).
Another form of review is found in article 469A of the Code of Organisation and Civil Procedure (Cap 12). The latter allows the courts of justice of civil jurisdiction to enquire into the validity of any administrative act or declare such act null, invalid or without effect, only in cases where the act is in violation of the Constitution of Malta, or when it is ultra vires on the grounds specifically contained in sub-article (1)(b).
This procedure relates solely to ‘administrative acts’, defined therein as “the issuing by a public authority of any order, licence, permit, warrant, decision, or a refusal to any demand of a claimant, but does not include any measure intended for internal organization or administration within the said authority.”
Such a request must be filed within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier.
Challenging EU Legislation
The EU is also a party to the Aarhus Convention and gives direct legal standing to individuals and NGOs in certain cases to appeal to the Court of Justice of the EU (CJEU), as per Article 263 of the Treaty on the Functioning of the European Union (TFEU). However, the main tool for individuals and NGOs to challenge the validity or lawfulness of an EU decision, regulation or directive, is through the preliminary ruling procedure as per Article 267 of the TFEU. This procedure would begin in the national court of a Member State, and would allow the said court to refer questions of interpretation or validity of EU legislation to the CJEU for its ruling on the matter.
Citizens and NGO are also given rights under Regulation (EC) No 1367/2006 (often referred to as the ‘Aarhus Regulation’) to request environmental information from and held by EU institutions and to participate in environmental decision-making at EU level. The Regulation also allows NGOs to request the internal review of administrative acts taken by EU institutions or bodies in the circumstances listed therein.