| 1. |
- Bäckström, Lars
(författare)
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Svensk gruvrätt : En rättsvetenskaplig studie rörande förutsättningarna för utvinning av mineral
- 2015
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Swedish landowners Historically, Swedish landowners have been forced to accept that that their land is claimed for mining activities. This has been done on the basis of different laws and legal rules. The Minerals Act currently in force also entitles third parties to extract miner-als from other people's property. The question of who owns the mineral prior to extraction is however not answered by the Minerals Act or by any other statute. The ownership issue is, in addition to principally interesting, also of practical importance, for instance in relation to the right to exploit minerals covered by the Minerals Act for household use, or the right to exploit unregulated minerals, as well as for future discussion regarding mineral compensation. Besides the principal question of ownership, the Minerals Act gives rise to a number of other issues affecting the landowner's right in relation to the extraction of minerals on the property. The main purpose of the study in Part I is to identify who, if anyone, under Swedish law can be regarded as the principal owner of the components of earth that contain minerals. To this end, it has been necessary to define the concept of ownership in the property context. Access to minerals has been essential for the development of civilization and is still of crucial importance for the way we live our lives. While mineral extraction can be said to constitute a significant public interest, it is an activity that claims limited resources, competes with other land-use interests and causes significant environmental impacts. Even these interests have gradually begun to be considered public and essential, especially the interest of sustainable development. As a result of this, the legal framework governing the extraction of minerals has expanded substantially. This applies not least in relation to other interests, such as environ-mental protection and the rights of others, for example various types of user rights. The legal framework for mineral extraction is today a complex system consisting of several laws with wholly or partly different objectives. An important question is how well these overarching objectives can be ensured within the licensing process for mineral extraction and its associated parallel application of more or less independent laws. The main purpose of the study in Part II is to examine how the overarching objective of the Environmental Code is safeguarded in the licensing process for mineral extraction, and how the process should be designed in order for it to result in well-balanced solutions where all interests are given sufficient consideration. In addition to the analysis of the various legal issues and conflicts that may arise in connection with the exploration, exploitation and processing of minerals, the study also aims to investi-gate what should be regarded as applicable law in situations where clear rules are missing.
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| 2. |
- Darpö, Jan, 1952-
(författare)
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Access to Justice in Environmental Decision-making in Sweden. : Standing for the public concerned, the scope of review on appeal and costs.
- 2015
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Rapport (övrigt vetenskapligt/konstnärligt)abstract
- Sweden has a “universally” applicable Environmental Code, which harmonised the general rules and principles in this field. The Code applies to all human activities that might harm the environment. However, certain activities are also regulated in special pieces of legislation, such as the Planning and Building Act. Infrastructure installations also have regulations of their own, as do mining and forestry. Fauna is protected, in part, through hunting law. As for environmental decision-making, the municipalities play a key role under both the Environmental Code and the Planning and Building Act. The County Administrative Boards are also responsible for important environmental legislation and issue permits for environmentally hazardous activities. Installations and activities involving a substantial environmental impact must obtain a permit from the Land and Environmental Court, as must all kinds of water operations. Also national authorities, such as the Environmental Protection Agency and the Swedish Chemicals Agencyare responsible for some environmental decision-making. Sweden has administrative courts for the appeal of administrative decisions and ordinary courts for civil and criminal cases. The administrative courts decide cases on the merits in a reformatory procedure, meaning that they replace the appealed decision with a new onefollowing analysis of all the relevant facts of the case. Furthermore, the ultimate responsibility for the investigation of the case rests with the court according to the “ex officio principle”.The Environmental Code establishes a system of five Land and Environmental Courts and one Land and Environmental Court of Appeal. They are all divisions within the ordinary courts, but essentially act as administrative courts for cases under the En-vironmental Code and the Planning and Building Act. A Land and Environmental Court has some of the characteristics of a tribunal, consisting of both law-trained judges, technicians and experts. All members of the courts have an equal vote. The route for appeals in cases concerning the environment is always the same: Municipal level → County Ad-ministrative Board → Land and Environmental Court → Land and Environmental Court of Appeal (MÖD). Some cases can also be brought to the Supreme Court. Thus all appeals of environmental decisions follow this route, although the starting-point and terminus differ. The decision-making procedure in environmental cases in Sweden is open, meaning that in principle everybody can participate in the proceedings leading to the first decision. On appeal, the scope of the trial is set by the claims of the action, which the appeal body will decide upon in accordance with the “ex officio principle”. Thereby, the appeal body or court decides the case on the merits, thus addressing both substantial and procedural issues raised in the administrative decision. The procedure may includeall kinds of “actions” for annulment, performance, altering the decision, remit, etc.The Swedish concept of standing in administrative cases is strongly “interest-based”. If the provisions in an Act are meant to protect certain interests, the representatives of those interests can challenge the decision by way of appeal. Standing is generally definedas belonging to the “person to whom the decision concerns”. Additional criteria are that the decision affects him or her adversely and that it is appealable, which it always is as long as the decision entails factual or legal consequences in a very broad sense.To get a clearer picture of that scope of persons, one must study the case law that has been established in each administrative area or even under specific pieces of legislation. Under the Environmental Code, the courts have applied a generous attitude, stating that in principle, every person who may be harmed or exposed to more than a minor inconvenience by the environmentally harmful activity at stake is considered a party with interest. Thus,everyone who may be harmed by an activity or exposed to even minor risks – for example neigh-bours, people affected by emissions or other disturbances from the activity – should have the right to appeal the decision in question. As the Environmental Code brought together all kinds of legislation which previously was separate, this formula is generally applicable. Accordingly, if a permit concerns water operations such as a marina, neighbours who will be affected by the road traffic to the marina are allowed to appeal. The determination of the public concerned is straightforwardand depends on the kinds of disturbance (discharges into air and water, noise, odour, traffic, and so on) that the person in question can be affected by, and at what distance. In contrastto this case law created state of affairs, standing for ENGOs is decided by criteria in express legislation, at least as a starting point. In recent years, however, and in the wake of the case law of CJEU, ENGO standing rights have expanded by way of national courts applying the “so as to enable” formula according to the Slovak Brown Bearcase. In the Environmental Code,standing is given to certain organisations in orderto appeal decisions on permits, approvals or exemptions, the criteria being that it is a non-profit association whose purpose according to its statutes is to promote nature conservation, environmental protection or outdoor recreation interests. Additionalcriteriaare that the organisation has been active for at least 3 years in Sweden and has at least 100 members or else can show that it has “support from the public”. Thus, ENGOs meeting those criteria are able to defend the public interest according to their statutes, without any further qualification.These criteria have also been used by the courts in areas to which ENGO standing rights have been expanded in case law. As the administrative procedure in Sweden in all instances is reformatory, the starting point is that the court scrutinizes every part of the appealed decision. Once the applicant is allowed to appeal, the scope of review is complete, meaning that s/he can invoke all kinds of interests in favour of the cause. No arguments are precluded. Thus, the appellant can plead any private or public interest in the case irrespective of the instance of appeal in a higher level of administration or in the courts. Moreover, all kinds of administrative decisions can be brought to the administrative courts by way of appeal, including administrative omissions. Any member of the public who is affected by a certain activity can notify the supervisory authority and ask for administrative action in his or her interest. In this situation, the authority is obliged to issue a decision on the case, be it to take action or not. That decision is appealable using the route described above, and accordingly, the matter will be dealt with in substance by the environmental courts. Thus, there does not exist any administrativediscretion in Sweden, at least as a general rule.The environmental procedure in Sweden is as a general rule free of charge. There are no court fees, no obligation to pay the opponents’ costs, no bonds to be paid for obtaining injunctive relief, or other costs to be paid, irrespective of whether the case is on adminis-trative appeal or goes to court. As the ultimate responsibility to investigate the case lies with the administration and the environmental courts – which both have technicians par-ticipating inthe decision-making – neither are there any witness or experts’ fees to be paid. Basically, this makes the environmental procedure cheap and easily accessible to the public. The other side of the coin however is that when applicants want to be represented by counsel or use experts of their own– which may be necessary in complicated cases – they will have to pay out of their own pocket and the costs cannot be remunerated from a losing opponent. It is alsonoteworthy that there is no obligation to use lawyers in court, not evenatthe higher judicial levels.
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| 3. |
- Darpö, Jan, 1952-
(författare)
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Anything Goes, but. . . : Comment on the Opinion by Advocate General Saugmandsgaard Øe in the Tapiola Case (C-674/17)
- 2019
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Ingår i: Journal for European Environmental & Planning Law. - : Brill. - 1613-7272 .- 1876-0104. ; 16:3, s. 305-318
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Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- The "wolf issue" is hot all over Europe, not least in the Nordic countries. Due to pressure from farmers' and hunters' organisations, license hunts are performed on a large scale basis in Norway, Sweden and Finland. As the wolf is strictly protected under the Habitats Directive, hunts must have a legal basis in a derogation decision according to Article 16(1). Many of the hunting decisions issued by the authorities under this provision have been challenged in the national courts by the ENGO community, but so far with little success. However, in late 2017, the Finnish organisation Tapiola brought a case all the way to the Supreme Administrative Court, which requested a preliminary ruling by the CJEU on whether such a license hunt is in line with the Directive. The Advocate General's opinion in this case (C-674/17) came in May. This article is a comment to that opinion.
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| 4. |
- Darpö, Jan, 1952-
(författare)
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Bara en liten skalbagge i en polsk skog? : Om C-441/17 Białowieża och EU-domstolens nyfunna möjlighet att beivra domstolstrots
- 2018
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Ingår i: Europarättslig tidskrift. - 1403-8722 .- 2002-3561. ; 4, s. 687-694
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Tidskriftsartikel (refereegranskat)abstract
- I massmedia har målet om avverkningarna i urskogen Białowieża beskrivits med ord som ”seger i EU-domstolen för naturvården” eller ”skalbaggar stoppar avverkningarna av Europas sista urskog”. Det är riktigt att EU-domstolen (EUD) slagit ned på Polens omfattande avverkningar i området till förmån för alla sällsynta kryp, fåglar och andra skyddsvärda arter men det är inte därför som målet är intressant för en vidare krets av ERTs läsare. Sakligt sett är det ett ganska ordinärt fall där en medlemsstat först har pekat ut ett område som Natura 2000, men sedan efter några år vidtagit en rad åtgärder som kan skada de skyddsvärda intressena där utan att göra den konsekvensbedömning som krävs enligt EUs art- och habitatdirektiv (92/43/EEG, AHD). Det uppmärksammades av EU-kommissionen som inledde ett överträdelseärende som sedermera resulterade i att domstolen i Luxemburg ansåg att Polen bryter mot EU-rätten. Sådana mål finns det många av och just det här sticker inte ut i något särskilt avseende, förutom då kanske att domen är så förtvivlat lång (269 punkter, alltså betydligt längre än ”klassikerna” på området[1]). Det som gör domen intressant ur ett allmänt EU-rättsligt perspektiv är att här använder sig EUD för första gången av de interna domstolsreglerna för att slå ned på något som man uppfattar som domstolstrots. Även domstolens hänvisning till försiktighetsprincipen i ett beslut om interimistiska ingripanden är nydanande, liksom fördelningen av bevisbördan mellan kommissionen och den berörda medlemsstaten
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