1. 1.      Introduction

For a number of years, the perennial difficulty with the institution of an Environmental Law action under Maltese Law was the question as to whether the person bringing the action has the required juridical interest to do so. Subject to a limited number of exceptions, as a matter of Maltese Law, unless the person instituting the action has the requisite juridical interest, that action is bound to fail. This rule still stands, and the difficulty in satisfying this juridical interest requirement remains, to an extent, with a large number of environmental cases. Having said this, various judicial inroads have been developed in this sphere. The judgment given in the case filed in the names Ramblers Association of Malta vs. MEPA et[2] (the Ramblers Case) dealt with the issue of juridical interest in depth and although the First Hall of the Civil Court denied the plaintiff the possibility to institute the action due to lack of juridical interest, the judgment was overturned on appeal in so far as it related to the point on juridical interest.

In this lawsuit, the nongovernmental organisation (NGO) Ramblers Association of Malta (the NGO, also referred to as the Plaintiff),[3] brought an action against the Malta Environment and Planning Authority (MEPA) requesting the Court to order the annulment of a permit granted by MEPA allowing a certain development to take place in a pristine site which, according to the NGO, deserved protection. This is now a landmark judgement and although the Plaintiff was ultimately deemed to have the requisite juridical interest to file the suit, an examination of the case serves to highlight the difficulties that NGOs and other non-profit making or voluntary organisations may face in Malta when instituting an action in circumstances where they cannot demonstrate to a court of law an immediate, real, personal and direct interest in that action.

 

  1. 2.      The Notion of Juridical Interest

Juridical interest is a complex notion, subjected over the last century to the scrutiny of a multitude of judgments. In essence, the requirement that a person can only institute an action in court if he has the required juridical interest means that the person must indicate that he or she has been affected by the facts giving rise to the litigation in a personal, real and direct manner.

Juridical interest has remained, throughout the years, an essential pre-requisite of the Maltese civil action. On a number of occasions, this has proven to be a major stumbling block when it comes to the institution of lawsuits on the basis of prejudice, damage or harm subsisting in a diffused form. In other words, where the harm caused does not have a direct and actual impact on a plaintiff’s person or patrimony,[4] the requirement of juridical interest as understood and developed by the Maltese Courts will not be met. Although one can fully understand the purpose and utility of requiring causes of action to have to pass through the juridical interest filter, in special circumstances, particularly in matters relating to Environmental Law, the requirement would need to be reformed. Indubitably, Environmental Law is an eligible candidate warranting a special approach. One must add that since the requirement of juridical interest does not emerge from the law per se(except through limited references in the law to interested parties) but through local jurisprudence, the courts should be all the more open to revision in deserving circumstances. Legislatively, we have started to see a number of incursions being made into the traditionally rigid principle and these shall be discussed below.[5] However, as shall be seen from the judgment being discussed in this article, these developments have not always been sufficient and instead, on a number of occasions, the courts have felt constrained to dismiss the action on a procedural basis for lack of juridical interest.

 

  1. 3.      The Judgment of the First Hall of the Civil Court

The facts of the case related to works being carried out by two of the respondents, Marthese Said and her husband Victor Scerri, (together with MEPA, the Respondents), in the Maltese valley called Wied tal-Marga in the limits of Baħrija, in Rabat. This valley had been designated as an area of Ecological Importance, a Site of Scientific Importance, an area of High Landscape Value, a Site of Archaeological Importance, and a Special Area of Conservation. Notwithstanding the protected status of the valley, MEPA had granted a number of permits to Said and Scerri which allowed them to reconstruct the existing structures in the valley provided only minor alterations were made. The Plaintiff, interested in protecting the area in terms of the aims and purposes set out in its statute, argued, inter alia, that all permits had expired save for one, and that since this permit had only served to amend the conditions attaching to a prior permit (now expired), it did not entitle the Said and Scerri to carry on with the works in question.  The Plaintiff further argued that, even if the said permit did give rise to a right to carry out the works in question by renewing a prior expired permit, the Said and Scerri would nevertheless be in breach of the conditions set by the original permit. The Plaintiff requested, among other things, that the Court declare that all the works carried out by Said and Scerri after the expiry of the permits were carried out illegally and without the permit required at law. The Plaintiff also requested that the Court order Said and Scerri to restore the site to the state it was in at the date of the expiry of the relevant permit.

The Respondents argued, inter alia, that the Plaintiff did not have the juridical interest required to institute these proceedings and that the Court lacked competence. The First Hall of the Civil Court thus analysed whether the Plaintiff had the requisite juridical interest by looking at the three requirements established by jurisprudence, i.e. that the interest of the parties in the proceedings must be legal, personal and actual. The particular difficulty which arises when it comes to the institution of proceedings for the protection of the environment is undoubtedly the need to satisfy the personal element of the required juridical interest. Indeed, in environmental cases, the rights which give rise to the cause of action in litigation often belong to a group of persons[6] rather than to one specific person. Often, the interests arising in environmental matters are diffused, because the harm or prejudice being caused is not suffered directly by one person alone. Often, the harm is remote or too far removed from the plaintiff in such cases, resulting in an inability to satisfy the ‘personal’ element of the requisite juridical interest.  The Maltese Law exceptions which, up until this case, had somewhat departed from the strict confines of the juridical interest requirements were, as shall be indicated further below, of little help to the Plaintiff since the Court did not extend them to cover the Plaintiff’s case.

In its determination, the First Hall of the Civil Court made reference, inter alia, to the ‘apolitical, voluntary, non-governmental’ nature of the Plaintiff and also to its aims and objectives. The Court stated that these aims and objectives, though aiding in the identification of the raison d’être of the Plaintiff association, cannot be considered as a ‘right’ for the purposes of determining whether the requisite juridical interest actually exists. The Court also held that in order for the Plaintiff to proceed with the lawsuit it needed to prove that it was acting to counter a breach of its ‘right’. The Court then approvingly quoted approvingly a previous judgment[7] wherein it was held that the plaintiff’s juridical interest is deemed to be present in circumstances where the respondent refuses to recognise a right belonging to the plaintiff, which refusal then gives rise to the dispute between the said parties.

The Plaintiff argued that when one examines holistically the legislation concerning development planning in Malta, one cannot but come to the conclusion that the legislator uncoupled the traditional notion of juridical interest from that of a right of action. The Plaintiff argued that the Court was free to entertain the Plaintiff’s right of action notwithstanding the absence of juridical interest in the traditional sense. The First Hall of the Civil Court in its judgment disagreed with this view stating that with the exception specifically provided at law of the actio popolaris, the requirement of interest is the yardstick of every action without distinction. The Court accordingly held that no special rules or derogation from the traditional requirement of juridical interest should be applied to the case at hand. The Court further stated that it found no foundation in the Plaintiff’s submissions for which the requirement of interest in cases such as this should take on a more liberal form reflective of the exigency of achieving the safeguards which this action was intended to achieve.

 

  1. 4.      Commentary

The authors are of the view that although in civil and commercial causes, as a general rule, it makes perfect legal and logical sense to require the subsistence, on the part of the plaintiff, of juridical interest for the promotion of the action, this may not always hold good for various types of Environmental Law suits. It is also the authors’ view that in such cases the traditional concept of juridical interest should be revisited so as to recognise the special nature of the action and accept a less orthodox position; namely, one where an action intended to protect the environment will be permitted even if the plaintiff does not have the requisite juridical interest in the traditional sense but has what is sometimes referred to as interest in a more diffused form. Otherwise, with the law as it stands today, the Maltese environment is somewhat unprotected. Clearly the law needs to be developed to enable the protection of the environment to be subjected to laws that are not dependant on traditional legal theories of procedure that may have the effect of stifling the possibility of an environmental action.

It is the authors’ view that one cannot expect the Courts to legislate and draw the limits of when an actio popolaris is to be extended to cover cases of environmental protection. Change would be more appropriate should it be forthcoming via legislative intervention. However, in the interim, since there is no doctrine of judicial precedent in the Maltese legal system, there may be courts that will dare take a more fluid approach by adopting concepts of the protection of fundamental human rights,[8] and the Maltese Constitution[9] to enable actions for the protection of the environment to succeed where otherwise they would fail. Referring to judgments that allowed trade unions to validly represent their members and for Local Councils to validly represent residents of the locality in Court,[10] it appears, prima facie, that incursions from the general rule requiring strict application of the requirement of juridical interest have been permitted by Maltese Courts. Upon a closer analysis of the judgments, however, one is led to question the extent of what may appear to be a judicial departure from the strict requirement of juridical interest. It is submitted that court judgments do not effectively add or introduce exceptions to the rule. In the authors’ view, the situation at present thus remains that there has yet to be a clear, unqualified, judicial recognition of the possibility of a right of action based on interests of the action-bringer that are not confined to the somewhat narrow limitations of subjective, personal and direct interests. The adoption of a wider interpretation of the notion of juridical interest has, to date, only occurred in very limited exceptions.

Inroads to the Requirement of Juridical Interest Prior to the Ramblers Appeal Judgement

The Actio Popolaris

One of the in-roads to the requirement of juridical interest was the possibility of instituting an actio popolaris. The traditional understanding of this action is that it is available to persons regardless of whether or not they have specific interest in introducing it before the courts. The issue with this type of action remains to this day that it is only available in the limited instances provided for statutorily. These exist mainly in respect of the right of action provided for by article 116 of the Maltese Constitution for the declaration of invalidity of a law which is inconsistent with certain provisions of the Constitution, and the right of action for a declaration of nullity of a transfer made in contravention of the Porte Des Bombes Area (Preservation) Act which aims to protect the area outside Porte Des Bombes.[11]

The Collective Proceedings Act

A recent legislative change to court procedural law takes the form of the Collective Proceedings Act,[12]which allows for the institution of ‘representative’ actions in matters relating to consumer and product safety matters. It does not extend the possibility to environmental issues. Although the Collective Proceedings Act introduces the possibility for a representative to file collective proceedings on behalf of a class of persons sharing common but not necessarily identical issues, there seems to be no outright exception or departure to the requirement of juridical interest. When taking cognizance of collective proceedings, the court will thus still require each claimant or plaintiff to have the requisite interest particularly in matters giving rise to damages claims.

Given its limited scope, the Collective Proceedings Act would not have served to assist the Plaintiff in the Ramblers Case in their quest to seek to have the development permit in question quashed. Due to the fact that this Act requires each and every participant in the representative suit to prove the requisite juridical interest, had the Plaintiff attempted to file a suit through this particular form, it would have most likely ultimately faced the same dead-end conclusion as it found before the First Hall of the Civil Court.

The limitations of the Collective Proceedings Act were identified as one of the several deficiencies of the current judicial system in the first report issued by the Commission for Judicial Reform.[13] The Commission lamented the limited scope of this Act and highlighted in recommendation number 76 the need to ‘open the class action to all forms of lawsuit that can conceivably be instituted on the basis of collective proceedings’.[14] It is interesting to highlight the recognition the Commission has given to this particular institute. Should the recommendation be taken on board, and eventually make its way into statute, it would bring about a foundational shift in relation to the topic in discussion within this paper. By way of further observation, it must be noted that the Chamber of Advocates in its own report on the first 135 recommendations made by the Commission, did not make any direct reference or criticism of this particular proposal.[15]

The Environmental Damages Regulations

The Environmental Damages Regulations[16] were introduced in 2008 as a means of transposing the relevant European Union legislation as well as to establish a framework of environmental liability based on the polluter pays principle.[17]  The Regulations make specific reference to a new-found legal ability of ‘natural or legal persons having a sufficient interest’ to submit to the authorities any observations relating to instances of environmental damage as well as requesting the competent authority, in this case, MEPA, to take the necessary action.[18]

It is significant that the Regulations specifically lay down special treatment for NGOs that promote environmental protection. These are deemed ipso jure to have sufficient interest in environmental decision making so long as they comply with the requirements for the constitution of NGOs as contained elsewhere in the laws of Malta.  Undoubtedly, such recognition constitutes a significant shift in legislative thinking as regards environmental NGOs and certainly represents a step in the right direction.

Despite this valiant legal development, the rights granted to the NGOs in the said Regulations fall short of providing such organisations with any significant empowering mechanisms that will force the hand of the powers that be when the latter remain inactive in the face of environmental degradation. In other words, the relevant competent authority will retain its discretion as to whether to take any action against perpetrators of environmental harm. In fact, should the request of the NGO be refused, there is no further right of action in terms of these Regulations, and the competent authority (now the Environment and Resources Authority (the ERA’ which is a spin-off from a MEPA de-merger, as shall be explained below) is only required to provide reasons for its decision, a sine qua non in light of the principles of natural justice. Consequently, this particular remedy under these Regulations can be deemed no more than indirect, thereby needing the intervention of a third party to occur. NGOs acting independently will find themselves in no better position than that of the Ramblers Association in the first instance case. Success will ultimately depend on the outcome of a decision taken by a board of the competent authority.

In relation to the Ramblers Case first instance suit, these Regulations would not have been of any particular aid to the Plaintiff as their function is to serve as a means to request the competent authority to take action. As submissions are limited to observations, there would have been no compelling mechanism forcing MEPA to take action and had this route been resorted to it is highly questionable whether the authority would have reviewed its own position.

The Environmental Development and Planning Act

The Environmental Development and Planning Act (the EDPA)[19] was promulgated in 2011, after the institution of the Ramblers Case first instance case. It provides that the Environmental and Development Review Tribunal has jurisdiction to hear an appeal lodged by an interested third party from a decision of the Authority on any matter of development control.[20] The law furthermore provides that a Local Council in whose locality the development is intended to be carried out shall always be deemed to be an interested third party as long as the requisite procedures at law are adhered to.

These provisions of the EDPA denote a specific inroad to the notion of juridical interest insofar as there is a jure et de jurepresumption that a Local Council is alwaysdeemed an interested third party where the development in question falls within the bounds of its locality. Thus, the mere fact that a development falls within the Council’s locality, triggers the right of appeal before the Tribunal (as long as it complies with the additional requirements found in article 68(4) of the EDPA). This is a novel approach in terms of Maltese legislation as it entrusts Local Councils, as representatives of the collective interests of the inhabitants within the locality they are entrusted with, as guardians of the environment therein.

Such an approach complements well the power granted to Local Councils under of the Local Councils Act,[21] which obliges the Council to protect the natural and urban environment of the locality. The provisions of the EDPA aid this function by empowering the Local Councils to take the necessary measures; this is significant as Local Councils have often acted as scapegoats due to their limited powers in relation to the Central Government. However, despite this positive step in the right direction, such provisions fail to address the underlying reality that the persons composing the Council are often encumbered with political allegiances, which could undermine the effectiveness of a Council’s internal will to challenge decisions, particularly where politically sensitive developments are concerned.

In this respect, it is the opinion of the authors that the legislation pertaining to this right of action should be developed to include additional participation rights for the residents of the locality in addition to the rights of the Council itself. Whilst the introduction of the concept of the Local Council having this vested interest in the environmental affairs of its locality is commendable, it comes at the expense of guaranteeing full protection to the relatively weaker parties who may be part of the locality but disagree with the Council’s decision to lodge an appeal or not. Whilst the Local Council may act as the bridge between the inhabitant who has no direct juridical interest (in terms of the Ramblers Case, at first instance) and the competent authorities, should an individual inhabitant’s interest not be aligned with that of the Council, the citizen finds himself stuck in the status quo, i.e. with no remedy.

It is submitted that with respect to Environmental Law the legislator should intervene in such a way so as to enable the Courts to recognise that citizens, whether individually or associated together in an organisation (typically NGOs), have an interest, if not an obligation, to guard against the destruction of the environment. The juridical interest that citizens have lies in the simple reality that harm to the environment is harm to a universal patrimony of current and future generations and is for this reason actual, direct and personal, albeit diffused. The introduction into the EDPA of Article 41A (as shall be examined below) has moved us significantly in the right direction.

It is imperative to note, when discussing the EDPA, that the regulation of environmental and planning matters is currently in flux due to the legislative changes that are being implemented in light of the ‘de-merger’ of MEPA into two separate authorities: ERA and the Planning Authority. The split in the competent authority has also resulted in the splitting of the main legislative instrument regulating environmental and planning matters; the EDPA. Indeed, three new Acts have been published as follows: the Environment Protection Act (Chapter 549 of the Laws of Malta), the Environment and Planning Review Tribunal Act (Chapter 551 of the Laws of Malta, ‘the EPRT’) and the Development Planning Act (Chapter 552 of the Laws of Malta). All three are set to work in parallel (the Three New Acts). Not all of the provisions under these Three New Acts are currently in force,[22] and the EDPA has not yet been repealed in its totality. Nevertheless, the new Acts empower the responsible Minister to repeal EDPA provisions as necessary and it appears that the ultimate result will be that of the EDPA being replaced in its entirety by these Three New Acts. The effects and consequences of this overhaul in the regulation of environmental and planning matters are yet to be seen and we shall explore one of them that is directly related to the subject matter of this paper further below.

Fundamental Human Rights

Some might argue for a widening of the position on how environmental actions are to be instituted on the basis that there is increased movement towards recognising environmental ‘human rights’. Recent developments in other jurisdictions are resulting in the recognition of the vital relationship between fundamental human rights and the need to conserve and protect the environment. The argument here is that any damage done to the environment would be tantamount to a violation of a person’s fundamental human rights. Vice President Weeramantry in the Gabcikovo-Nagymaros Project case[23] pointed out that

The protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments. While, therefore, all peoples have the right to initiate development projects and enjoy their benefits, there is likewise a duty to ensure that those projects do not significantly damage the environment.[24]

This wide interpretation of the law is reinforced by additional tools found in the Maltese Constitution (the Constitution) and the Environment Protection Act.[25] Chapter 2 of the Constitution, under article 9, provides that the landscape and the historical and artistic patrimony of the nation shall be safeguarded.[26] Furthermore, the Environment Protection Act specifically provides that it shall be the duty of every person to protect the environment and to assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner.[27] However, both article 9 of the Constitution and article 3 of the Environment Protection Act are not directly enforceable in any court and can only be employed for interpretation purposes.

The 13th Informal ASEM Seminar on Human Rights held from 21 to 23 October 2013 discussed this very intriguing point. Probing contributions to the seminar were made by Professor Alan Boyle and Professor Ben Boer. It is difficult to summarise in a few words the conclusions reached as to whether human rights can be utilized to enable actions to be brought for the protection of the environment and the question remains controversial, to say the least. However, in brief, (and forgive us if we do not do justice to more eloquent arguments made by the said contributors) Professors Boyle and Boer came to the conclusion that a right to a decent environment will only come into existence when problems of definition, anthropocentricity and legal architecture are resolved.[28] They pointed out that such right must address the environment as a public good, which is best envisaged, as an economic, cultural and social right.[29] Professors Boyle and Boer further argue that the right to economic development will take over should the international community fail to recognize the right to a healthy environment.[30] They conclude that until regional organisations, national governments, together with their human rights bodies and environment departments, undertake more coordinated and conscious efforts, the movement towards the creation of a right to the environment will continue to depend on the initiatives of innovative litigants and the determination of NGOs.[31] This is also true on a local level and cases like that of the Ramblers are the exact scenarios in which such concepts can be developed.

 

The Aarhus Convention and related Directives

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention)[32] provides every individual with a set of procedural environmental rights which are invaluable in the context of a marked absence of substantive environmental rights. The Aarhus Convention principles are the most relevant to this discussion and in fact had an impact on the Ramblers case as shall be seen in the sections to follow. This Convention provides for access and participation in environmental matters, and constituted one of the first moves (on a European and on an international level) towards the provision of environmental rights enforceable at the most basic level of society: the individual. Significantly, this Convention was ratified by the European Union,[33] and its first and second pillars were implemented via Directive 2003/4/EC[34] and Directive 2003/35/EC.[35] Subjects of the Aarhus Convention have extensive rights to obtain and access information relating to the most basic elements of our environment as well as to participate in specific projects and policies affecting it.

Most relevant to the discussion at hand is the fact that the right of access extends to any person without the need for the person exercising that right to prove an interest in the information being requested. These procedural environmental rights are translated into Maltese Law through various legal notices which provide us with a network of subsidiary environmental legislation such as the Environmental Impact Assessment Regulations,[36] the Strategic Environmental Assessment Regulations,[37] the Plans and Programmes (Public Participation) Regulations,[38] and the Freedom of Access to Information on the Environment Regulations.[39] The Aarhus Convention and its implementation locally thus constitute a marked inroad to the traditional requirement of establishing an interest before being able to take any type of action whatsoever.

Besides giving extensive rights to access information, the Aarhus Convention, as well as Directive 2003/4/EC, grant subjects a right of access to justice. Notably, in the process of transposing Directive 2003/4/EC, our legislator failed to include the right to access to justice into Maltese Law, in particular in Subsidiary Legislation 504.65 on the Freedom of Access to Information on the Environment Regulations. The right to access to justice is established under article 6 paragraph 2 of Directive 2003/4/EC which requires Member States to provide their citizens with access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Similarly, paragraph 3 of article 9 of the Aarhus Convention states that parties to the Convention must provide their citizens with access to administrative or judicial procedures to challenge acts or omissions of public authorities which contravene provisions of national law relating to the environment.

Also and more importantly, Directive 85/337/EEC as amended by Directive 2003/35/EC (the Relevant Directive), which likewise is inspired by the Aarhus Convention, requires Member States to grant ‘subjects’ a right of access to a review procedure in the context of Environmental Law matters through its article 10a. This right to a review procedure was also initially not transposed into Maltese Law and it was only through Legal Notice 223 of 2014 that transposition occurred. Indeed this legal notice enacted a new article 41A to be included in the EDPA which essentially reflected article 10a of the Relevant Directive. It is the transposition of this particular right into Maltese Law that may be described as the most recent significant inroad to the concept of juridical interest. The said article 41A specifically provides that members of the public are entitled to bring judicial action demanding reviews of certain planning decisions,[40] but only if that member of the public had sufficient interest. The novelty of the provision is that it goes on to state that NGOs are automatically deemed to have the required sufficient interest.[41] Despite article 41A not having been transposed into Maltese Law at the time the Ramblers Casewas instituted, the Court of Appeal overturned the First Court’s decision on the juridical interest point on the basis of a direct application of article 10a of the Relevant Directive on which article 41A is based.

 

  1. 5.      The Judgment of the Court of Appeal in the Ramblers Case

In the judgment delivered by the Court of Appeal,[42] the First Hall of the Civil Court’s decision relating to juridical interest was overturned. The Court of Appeal held that the Plaintiff had juridical interest in the matter. As mentioned above, the Court of Appeal made this decision on the basis of article 10a of the Relevant Directive[43] which essentially provides that Member States are to ensure that members of the public concerned (a) having a sufficient interest, or alternatively, (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Relevant Directive. Article 10a then goes on to specify that the interest of any non-governmental organisation meeting the requirements referred to in article 1(2) of the Relevant Directive shall be deemed sufficient for the purpose of this provision and that such organisations shall also be deemed to have rights capable of being impaired.

In disagreement with the First Hall of the Civil Court (which had concluded that only registered objectors or individuals living close to the area who can be materially affected by the development had juridical interest), the Court of Appeal observed that the Aarhus Convention as transposed in the acquis communautaire and as transposed in Malta through Legal Notice 223 of 2014[44] (which served to introduce article 41A into the EDPA) gives NGOs locus standi since NGOs were deemed under article 10a of the Relevant Directive, as transposed into Maltese Law, to have the requisite juridical interest being organisations established to protect and preserve the environment. In fact, the Court of Appeal inferred that had the said article 10a of the Relevant Directive been transposed into our law at the time of institution of the lawsuit, the application of this provision under our law would have served to allow the Plaintiff’s action to succeed in the Ramblers Case. The problem the Court of Appeal faced was that it could not apply article 10a of the Relevant Directive as transposed into Maltese Law through article 41A retroactively since the said article had only come into force years after the institution of the appeal and in truth, after the First Hall of the Civil Court’s decision. We must recall however that the First Hall of the Civil Court was not requested to apply article 10a of the Relevant Directive through direct effect. At the time, the legislator had not transposed the said article 10a into Maltese Law (this had to wait to 2014) and for this reason the First Court did not have the benefit of accepting an argument that ex admissis Malta had failed in carrying out its obligations to transpose the Relevant Directive in its entirety.

In fact, the Court of Appeal, following the introduction of article 41A into our law, which triggered the realisation that the Relevant Directive was not transposed in its entirety into Maltese Law, explained that failure to implement a Directive into domestic legislation within the time limit established in the Directive automatically grants individuals the right to enforce that Directive against the State or its organs as though it actually had ‘direct effect’. Indeed, the Court of Appeal was constrained to consider whether it was permitted to rely on article 10a of the Relevant Directive rather than on article 41A of the EDPA. In other words, the Court of Appeal had to examine whether it could enforce the Relevant Directive directly. The Court explained that for an EU Directive to have ‘direct effect’ the dispositions of the said directive must (i) not be subject to any condition, (ii) be sufficiently precise, and (iii) be aimed at granting rights to individuals against the state or organs of the State. Moreover the time period during which the Directive should have been transposed must have expired. Having made this assessment, the Court of Appeal decided that these requirements were sufficiently met in so far as the Relevant Directive was concerned and proceeded to apply article 10a directly deciding that the Plaintiff did have the required juridical interest under article 10a to bring this suit. It then referred the case back to the first instance court for a decision on the merits.

The conclusions reached by the Court of Appeal in this case showed the court’s willingness to give a wide interpretation to the juridical interest notion in the context of environmental protection mirroring other court decisions in the past and the legislative impetus embodies in article 41A. The pattern continues in other judgments. The courts’ attitude vis-à-vis environmental protection in the criminal case Il-Pulizija vs. Carmel Polidano[45] is, for example, also notable. The court in this case made an obiter observation whereby it stated that the environment in Malta must be protected and guarded in the strictest possible manner, and that the well-being of its inhabitants relies heavily on the fragile balance that exists in nature. The court noted that such a fragile situation is all the more magnified given the small size of the territory, and used this reasoning to justify the use of harsh penalties on those who commit environmental crimes. This and other decisions of the Maltese Courts[46] stand as evidence that the courts are fully aware of the importance of protecting the environment but sometimes do not have the legislative tools necessary to take the desired actions.

 

  1. 6.      The Resulting Position

The successful outcome for the Plaintiff in the Ramblers Case as well as other wider judicial interpretations of the juridical interest requirement might not necessarily repeat themselves in the future given that we do not implement a doctrine of precedent and judges are free to decide similar points in a different fashion.

Moreover, the commendable legislative implementation of the notion in article 10a of the Relevant Directive of deemed interest of NGOs under article 41A is, in the view of the authors, in jeopardy due to the legislative changes concerning the EDPA discussed above. Indeed, although article 41A and this deemed interest provision were introduced into the EDPA with content essentially reflecting article 10a of the Relevant Directive, the 2016 legislation brought about following the MEPA de-merger process mentioned above omits the most essential part of article 41A. As part of the legislative reform, the main content of article 41A has been moved to article 11(1)(e) of the EPRT. However, sub-article (3) of article 41A, in terms of which NGOs promoting environmental protection are deemed to have sufficient interest to enable them to bring an action to review certain environmental decisions, has not been reproduced into the said EPRT article 11(1)(e). This means that the right granted to NGOs to access a review procedure risks being entirely deleted once the EDPA is repealed in its totality unless it is somehow saved through judicial interpretation that dares to engineer an extension of the meaning of interest.

Although the decision of the Court of Appeal in the Ramblers Case is an important one as it goes beyond the limited confines of the concept of juridical interest as is commonly understood, there is no guarantee that another court will take the same view if sub-article (3) of article 41A is not retained in our law. Accordingly, the position is far from being crystallised. The authors are of the view that should a new lawsuit similar to that of the Ramblers Case be instituted following the complete revocation of the EDPA, the court would once again have to resort to apply the doctrine of direct effect, given that sub-article (3) of article 41A has not been reflected in the EPRT. We come to this conclusion because while Legal Notice 223 of 2014 defined sufficient interest for voluntary organisations, the EPRT does not. It leaves the concept of sufficient interest undefined which may have the effect of forcing a court of law seized with an action under that law to interpret the concept of interest in the same way as did the First Hall of the Civil Court in the Ramblers Case.

Beyond this it is also worth noting that the right of access to a review procedure, which is currently safeguarded by article 41A, is in itself also limited as it is only exercisable in instances where the action being challenged related to a project requiring an Environmental Impact Assessment or an Integrated Pollution Prevention and Control permit. Ergo, there may yet be environmental wrongdoings that cannot be addressed through the use of this right to a review procedure even if it is saved once the EDPA is fully repealed.

One cannot underestimate the reality that the law, even if drafted with a wide scope, will never be able to cater for every possible situation or dispute. As observed in the appeal of the Ramblers Case, judicial interpretation remains the magic wand in adapting the law to a particular dispute. The courts should not shy away from unorthodox interpretations or special treatments, albeit within the confines of the law, when environmental justice so deserves.  The loosening of the concept of juridical interest in the context of environmental protection issues is an approach which is all the more vital to an island such as Malta,[47] where space is limited, the natural environment has shrunken to critical proportions, and the economy is wholly dependent on fossil fuels. The hard truth is that there is very little natural environment left to protect. For this reason, it is a worthy and wise cause to extend the highest level of protection for the little that we have left.

 



[1] The authors would like to acknowledge the contributions of Dr Christopher Bergedahl to this article.

[2] 228/2010, Is-Socjeta’ The Ramblers’ Association of Malta vs. L-Awtorita’ ta’ Malta dwar l-Ambjent u-Ippjanar [First Hall, Civil Court] 6 March 2012 (Ramblers case, Court of First Instance). The case was appealed in Is-Socjeta’ The Ramblers’ Association of Malta vs L-Awtorita’ ta’ Malta dwar l-Ambjent u l-Ippjanar et [Court of Appeal Civil, Superior] 27 May 2016. (Ramblers case, Court of Appeal).

[3] Under Maltese Law, an NGO is also referred to as a voluntary organisation.

[4] As with the majority of cases concerning the protection of the environment, for example, where the harm is, of its nature, diffused in space and in time.

[5] Some of the exceptions are in the sphere of environmental protection.

[6] Arguably, this may also include future generations.

[7] 2538/2000/1, Attard et noe vs Abela noe et [First Hall, Civil Court] 12 December 2001.

[8] This is discussed below.

[9] This is also discussed below.

[10] Martin Debrincat vs. l-Awtorita` tal-Ippjanar [Court of Appeal Civil, Inferior] 12 January 2005; Kunsill Lokali tax-Xewkija vs. L-Awtorita` ta l-Ippjanar, Court of Appeal [Civil, Inferior] 6 October 2000; Dr Vincent Tabone et ne vs. Onor Domenico Mintoff ne et [Court of Appeal Civil, Superior] 7 January 1957; and Luigi Aveta noe vs. Ignazio Pecorella [Court of Appeal Civil, Superior] 30 June 1936.

[11] Porte Des Bombes Area (Preservation) Act, Chapter 74 of the Laws of Malta.

[12] Collective Proceedings Act, Chapter 520 of the Laws of Malta.

[13] Commission for Judicial Reform, ‘L-Ewwel Dokument għall-Konsultazzjoni Pubblika’, 31 May 2013, <https://mjcl.gov.mt/en/justice/krhg/Documents/01%20Consultation%20Report%2031%2005%2013.pdf> accessed 22 October 2016.

[14] ibid 34.

[15] Chamber of Advocates, Malta, ‘Riforma Gustizzja, Rapport’, 2013, <http://www.snapadministration.com/snapdatafiles/files/chamberofadvocates/635127635024180000.pdf> accessed 22 October 2016.

[16] The Prevention and Remedying of Environmental Damage Regulations SL 504.85 of the Laws of Malta.

[17] ibid Regulation 2.

[18] ibid Regulation 13(1).

[19] The Environment and Development Planning Act, Chapter 504 of the Laws of Malta.

[20]  ibid article 41(1)(c).

[21] Local Councils Act, Chapter 363 of the Laws of Malta article 33(1)(q).

[22] As of July 2016.

[23] Hungary v. Slovakia, International Court of Justice, 25 September 1997.

[24] Separate Opinion of Judge Weeramantry regarding ICJ Case concerning the Gabcikovo-Nagymaros Project in Hungary v. Slovakia, 1997 I.C.J. 92; Boyle and Boer, ‘The 13th Informal ASEM Seminar on Human Rights, Background Paper’ 21-23 October 2013, 34.

[25] The EDPA Act (n 19).

[26] The Constitution of Malta article 9.

[27] The EDPA Act (n 19) article 3.

[28] Boyle and Boer, ‘The 13th Informal ASEM Seminar on Human Rights, Background Paper’, 21-23 October 2013, (n 24) 34.

[29] ibid.

[30] ibid 35.

[31] ibid 66.

[32] Regulation (EC) No 1367/2006 of the European Parliament and of the Council, on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies,[2006] OJ L 264/13.

[33]<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII13&chapter=27&lang=en?> accessed 11 February 2017.

[34] Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ 14.2.2003.

[35] Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC – Statement by the Commission, .

[36] Environment Impact Assessment Regulations, SL 504.79 of the Laws of Malta.

[37] Strategic Environmental Assessment Regulations, SL 504.102 of the Laws of Malta.

[38] Plans and Programmes (Public Participation) Regulations, SL 504.69 of the Laws of Malta.

[39] Freedom of Access to Information on the Environment Regulations, SL 504.65 of the Laws of Malta.

[40] Specifically, decisions, acts or omissions relating to a development or an installation which is subject to an environmental impact assessment (EIA) or an integrated pollution prevention control (IPPC) permit.

[41] The EDPA (n 19) article 41A (3).

[42] Ramblers Case, Court of Appeal (n 2).

[43] Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participationin respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156

[44] As amended to date.

[45] Il-Pulizija vs. Carmel Polidano [Court of Magistrates Criminal Judicature] 3 July 2013. This judgement was appealed, and this was partly decided on 11 December 2013 in Il-Pulizija vs. Carmel Polidano,Criminal Court of Appeal, adjourned for continuation.

[46] Vide Curmi John Noe vs. Il-Kummissarju Ta’ L-Artijiet [Constitutional Court] 26 June 2009.

[47] Likewise with respect to Gozo.