Administrative court annulled the decision of the Ministry of Environmental Protection, in administrative dispute initiated by the investor “Small hydropower plant Zvonce”, and established only violation of the rules of procedure, not assessing the factual situation.
Administrative court reached a verdict on 8 September 2020 and upheld the investor’s lawsuit, and hence, annulled the decision of the Ministry of Environmental Protection No. 353-03-00271/2019 from 4 April 2019 („Decision“) and remitted the procedure to the Ministry of Environmental Protection for new deliberation.
Decision established a ban for Investor on further construction of SHPP Zvonce, contrary to the issued conditions of nature conservation, and ordered the investor to remove the pipelines of SHPP Zvonce, from the riverbed within the period of 20 days from the day of the reception of the Decision, i.e. to establish the previous condition of riverbed.
Administrative court has annulled the Decision, due to the procedural irregularities i.e. because the competent inspector within the Ministry of Environmental Protection, during the process of reaching the Decision has breached the provisions regulating the delivery of the documents and activities to the investor, as a legal party in the administrative procedure.
Therefore, the verdict was issued solely due to violations of the rules of procedure, whereby the court did not assess the legality of the decision in the substantive-legal sense, i.e. did not assessed the factual situation of the Decision, beyond the stated procedural shortcomings. Therefore, the court did not evaluate the decision to remove the pipelines from the riverbed itself and did not consider that decision illegal.
The announcement of the Minister Goran Trivan that the Ministry will appeal on the verdict represents a populist and incorrect approach, which can only lead to further legal uncertainty and further postpone administrative procedure.
Namely, the Law on Administrative disputes (“Official gazette of the RS” No. 111/19) does not prescribe the possibility of filing an appeal in the administrative dispute, i.e. it is only allowed to submit an extraordinary legal remedy to the Supreme court of cassation, which can only further postpone administrative procedure, instead of returning the case to the first-instance authority and excluding the formal shortcomings, enabling the first-instance authority to, as soon as possible, issue a new decision with same content as the disputed Decision.