Greece – Response to Case 2008
1. Environmental liability regime in Greece
Greek legislation (art. 29 of Law 1650/1986) provides for (strict) civil liability of any natural or legal person who causes pollution or degradation of the environment. However, existing legislation does not oblige operators creating threat of an environmental damage or causing such a damage to take out a financial security, such as insurance, to cover their potential insolvency (e.g. bankruptcy). So, the competent public authorities cannot really ensure that the operators responsible take or finance the necessary preventive or remedial measures.
Community Directive 2004/35/EC on environmental liability (which has not been transposed into the Greek law yet) tries to deal with the aforementionned questions by making operators financially liable for threats of or actual damage. More specifically, the Directive provides for the possiblility of the competent authorities to recover, inter alia, via security over property or other appropriate guarantees from the operator who has caused the damage or the imminent threat of damage, the costs they have incurred in relation to the preventive or remedial actions. Although the Directive does not oblige operators to take out a financial security, Member States are required to encourage operators to make use of such mechanisms and promote the development of such services. In view of the transposition of this Directive into the Greek law, important changes in the Greek environmental liability regime must be expected which could lead, among other things, in the establishment of a specific cost recovery procedure.
2. Legislation governing spatial planning, land development and environmental impact assessment in Greece
Legislation for spatial planning and land development in Greece requires costly and time-consuming procedures. According to existing provisions, the definition of land –uses at the local level requires the elaboration and the approval of plans of general guidance (known in Greek under the abbreviation of GPS and SHOOAP), setting the basic directions of the future development of a settlement and defining land uses, average floor-area ratio, general standards for green spaces and basic needed infrastructure. The average time for the elaboration and the approval of this type of instruments is four to five years. In considering the amount of time required for the completion of the whole process, it is important to note that different factors, often unrelated to the plan process itself, may contribute to further delays. Such factors include the lack of a land registration system and of clear land usage codes, the plethora of public agencies involved at different stages of the procedure, the fragmentation of legal provisions and the multiplicity of special regimes applying on specific categories of land (forests and forest areas, coastal areas, historic sites, wetlands, rural areas etc), the bureaucratic mentality of the Greek public services and changes in local or national government as well.
Greek land use plans, as well as regional and national spatial plans, are subject to strategic environmental assessment (SEA) in accordance with the Directive 2001/42/EC . SEA’s are usually completed in under 12-15 months while a full environmental impact assessment (EIA) process, required for the individual development projects, may take 8-15 months, depending upon the complexity of the issues raised. Empirical evidence suggests further that introduction of SEA to local land use planning may increase the cost by 10-20%, while studies forming part of regional or national planning processes may cause higher costs. The costs of SEA are generally borne by the public sector, in contrast to EIA where the developer (usually private) is responsible for funding the assessment. The EIA process is already in widespread use in Greece while the SEA process is more recent and in a rather “experimental” stage. A better co-ordination between SEA and EIA could reduce the overlaps already identified between the two procedures, especially in the field of private developments plans/projects (industrial, commercial or tourist estates) that actually risk to be subject to a double assessment (through SEA, as a part of a land use plan or a plan of general guidance, and through EIA, as an individual project).
3. Legal challenges to zoning or planning decisions: legal standing and scope of the judicial review
Greek legal system applies a wide approach to the standing of individuals or associations to challenge land use plans, zoning ordinances and planning/environmental decisions. Under the case law of the Greek Council of State (Supreme Administrative Court), such standing is recognized to both natural and legal persons that suffer material or moral injury by the act challenged. In this sense, a locus standi may be accepted also on the part of persons other than those to whom a decision is addressed (e.g. residents of an area, local authorities, environmental NGO’s, local improvement associations etc) if that decision causes injury to their material or moral interests (e.g. deterioration of the built or natural environment, danger of the sliding of the land and of flooding, alteration in the morphology of the coasts, damage of health and livelihoods etc). It has to be noted that the case law of the Council of State has significantly broadened the concept of the legal standing in connection with the protection of the environment. Thus, a locus standi to challenge planning or environmental decisions has been accepted not only on the part of the environmental NGO’s which, in accordance with the articles of their association, pursuit the protection of the environment but also on the part of bar associations, which, in accordance with the law, have competence to decide upon any matter of more general national or social interest such as the acts which affect the natural and cultural environment protected by the Constitution.
Challenges against a zoning ordinance or a planning/environmental decision can be brought before the Greek courts only after the adoption of the relative act. However, prior to the adoption, every person has the right to submit observations and complaints through the SEA or the EIA process (consultation with the public).
The main judicial remedy against a zoning or environmental decision is the application of annulment lodged on certain conditions with the Council of State (CS) or with the Administrative Courts of Appeal (ACA). The grounds for annulment that are taken into account by the courts are the lack of competence of the authority to issue the act, the infringement of law (procedural or substantive) and the abuse of power. A judgement of annulment annuls totally or in part the challenged act and is retrospective to the time the act was issued. In case of a judgment of annulment, the beneficiary of the annulled act may, under certain conditions, claim compensation on the grounds of the tort liability of the Public Administration.
Georgia Giannakourou, Greece