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Legal alerts / 8 Dec 2017

Legal Alert – A Broader Leave to Appeal System Introduced for Environmental Matters

The Finnish Parliament approved today the government proposal to expand the leave to appeal system into administrative decisions made under various environmental laws. This changes the current situation dramatically, as in the future you must have a leave to appeal when appealing any Administrative Court (“AC”) decision to the Supreme Administrative Court (“SAC”). The most significant impact of this amendment will be the direct enforceability of AC rulings in cases where no leave to appeal is granted. In certain case, this may reduce project time-lines for individual governmental approvals by 12 to 18 months and speed up project development.

Background

The leave to appeal system was introduced for the first time in 2016 to certain administrative matters as part of the Government’s larger efforts to streamline legal proceedings. A leave to appeal will now be extended to also cover administrative decisions that are based on environmental and infrastructure legislation, which are not currently subject to a leave to appeal.

This amendment seeks to decrease the time of hearing and reduce the burden placed on the SAC, as well as to standardise administrative procedures, allowing the SAC to focus on resolving societally important matters, for instance.

The reform is a part of the Government’s aim to reduce unnecessary administrative burden on companies and has been greeted with support by the industry, but criticised by environmental NGO’s. On the one hand, the leave to appeal will reduce the amount of unfounded appeals made by stakeholders with the mere intention of delaying projects. On the other hand, an increased number of appeals made by operators of industrial activities will be handled by only one court instance, which may weaken their legal protection.

Prerequisites for leave

This amended leave to appeal system will cover the Finnish Environmental Protection Act, Water Act and Land Extraction Act. In addition, exemption permits based on the Finnish Natural Conservation Act, and nearly all matters that are not yet under the leave to appeal system in the Finnish Land Use and Building Act, will be subject to a leave to appeal. Thus, as of 1 January 2018 the majority of environmental matters will be subject to a leave to appeal to the SAC.

A leave to appeal will be granted if:

  • the matter may have importance as a precedent;
  • the decision of the AC contains a manifest error; or
  • another weighty reason demands that a leave to appeal is granted.

If a leave to appeal is not granted, the decision of the AC will remain non-appealable and enforceable. In addition, matters that are under the evaluation of the leave to appeal system are enforceable despite the on-going appealing process, unless the SAC suspends enforcement by a separate decision. This means that in situations where no enforcement order for the permit is in place, the permit or decision becomes enforceable as the AC has rendered its decision. Decisions that the AC has issued before the effective date of this amendment are not subject to the amended leave to appeal system.

Borenius’ lawyers are available to assist in addressing any questions you may have regarding this legal alert. Please feel free to contact any of the Borenius attorneys listed in this alert or those with whom you usually work.

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