CASE OF L'ÉRABLIÈRE A.S.B.L. v. BELGIUM [Extracts]
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Civil rights and obligations);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
6. Members of the applicant association include its founding members and any person admitted by a simple majority of the general meeting or by a two-thirds majority of the administrative board. The published list of the applicant association’s founding members and administrators shows that they all reside in the above-mentioned municipalities. 7. On 26 September 2002 Idelux, a cooperative society, applied to the delegated official of the province of Luxembourg for planning permission to expand the class 2 and 3 technical landfill site at “Al Pisserotte”. An increase of more than one-fifth of the site’s original capacity was sought. The preamble to the planning permission set out all the circumstances leading to its approval. 8. On 5 January 2004 the municipality of Tenneville wrote to the applicant association informing it that Idelux had been granted planning permission on 23 December 2003 and that the applicant association could apply to the Conseil d’Etat for judicial review. 9. On 5 March 2004 the applicant association lodged an application for judicial review of the decision of the delegated official and requested that it be stayed. The applicant association based its arguments primarily on instruments such as Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the decree of 11 September 1985 on environmental impact assessment in the Walloon Region and the Nature Conservation Act of 12 July 1973. 10. In that application, which was seventeen pages long, the applicant association stated as follows under the heading “The facts”: “The statement of facts is set out in sufficient detail in the reasons for the impugned decision. The impugned decision was notified to the applicant in a letter of 5 January 2004, which was received on 7 January.” 11. The impugned decision was attached to the application for judicial review as exhibit no. 1. 12. Relying on Article 2 § 1 (2) of the Regent’s decree of 23 August 1948 laying down the rules of procedure in the Administrative Division of the Conseil d’Etat, the opposing party argued that the application for judicial review should be declared inadmissible because it did not include a statement of the facts. 13. By an order of 8 September 2004, the Conseil d’Etat dismissed the request for the impugned decision to be stayed. It pointed out that the statement of the facts should have been sufficiently thorough and accurate for the factual circumstances of the dispute to be understood merely from reading that document. It concluded that the documents attached to the request for the decision to be stayed could not be deemed to equate to a statement of the facts. 14. In its pleadings in reply, and in its final pleadings, the applicant association argued that in the context of an application for judicial review, the statement of the facts did not constitute an admissibility criterion, unlike the statement of the facts in the request for the decision to be stayed. It added that the very short statement of the facts did not compromise the conduct of the proceedings since the opposing party was well aware of the facts, had not misunderstood the scope of the submissions and was familiar with the facts constituting the basis thereof. 15. By a judgment of 26 April 2007, the Conseil d’Etat declared the applicant association’s application for judicial review inadmissible. It considered that because the application did not contain a statement of the facts, it simply referred back to the impugned decision and contained a clarification as to the date of its notification. The statement of the facts, as submitted by the applicant association, was non-existent rather than incomplete. The fact that the opposing party might have been familiar with the background to the case was irrelevant in assessing whether or not the application for judicial review, which was supposed to provide the Conseil d’Etat and the legal adviser (auditeur) responsible for investigating the case with sufficient information, contained a statement of the facts satisfying the official requirements. Lastly, the Conseil d’Etat noted that no new or additional applications and no procedural documents had subsequently been filed within the statutory time-limits to rectify the omissions in the application for judicial review. 16. The Conseil d’Etat had dealt with an earlier application for planning permission concerning the same subject in a judgment of 1 June 2001 on an urgent application and in a judgment of 18 January 2005 on the merits, delivered by the same judges who had delivered the judgment of 26 April 2007. The legal adviser in all three cases had been the same.