The role of ecological organisations: Litigation over the environmental permits for the container terminal in Świnoujście and other projects
On 4 August 2025 the Province Administrative Court in Waraw denied complaints filed by ecological organisations from Poland and Germany against the decision of the General Director for Environmental Protection concerning the environmental conditions for implementing the project for construction of the container terminal in the external port in Świnoujście. The judgment is not yet legally final.
The ruling by the Warsaw administrative court brings the construction of the terminal closer to fruition. However, the plaintiffs have a right to file a cassation appeal with the Supreme Administrative Court (NSA), which could significantly prolong the proceedings. According to the Report on the Activity of the Administrative Courts in 2024, the average waiting time for consideration of a cassation appeal is nearly 19 months, although this was an improvement over the figure for 2023.
This is an occasion to take a broader view of the role of ecological organisations in development projects in Poland.
It is not just the biggest investors who have to factor in the impact that ecological organisations can have on the proceedings. The Environmental Assessment Act of 3 October 2008, and the provisions implementing the Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, as well as the Environmental Assessment Directive (2011/92/EU), recognise an extensive catalogue of proceedings where ecological organisations have standing to appear as parties, and can even seek legal recourse (administrative appeals or challenges to the administrative court) even if they did not participate in the administrative proceedings at the first or second instance.
Who is vested with special rights?
Art. 44, 86g and 103d of the Environmental Assessment Act use the notion of an “ecological organisation” when vesting entities with special procedural rights. Under Art. 3(1)(10) of the act, an “ecological organisation” means a social organisation whose statutory purpose is environmental protection.
In turn, the notion of a “social organisation” is defined in Art. 5 §2(5) of the Administrative Procedure Code to include professional organisations, local government organisations, cooperatives and other social organisations.
It follows that ecological organisations are a specific type of social organisation. The organisation’s statute or other founding document must designate environmental protection as one of the organisation’s purposes. Significantly, this does not have to be the organisation’s only purpose, or even its main purpose. The areas in which the specific organisation operates are also irrelevant.
Under a requirement that went into effect in 2015, to exercise these special procedural rights, it is also necessary for the ecological organisation to have been in operation for at least 12 months before commencement of the proceeding which the organisation seeks to join. This rule is intended to prevent the creation of ad hoc organisations with the sole aim of blocking a specific project.
In which proceedings?
The list of proceedings in which ecological organisations can appear with the rights of a party is quite broad. We should first note Art. 44 of the Environmental Assessment Act, which provides for these rights in “proceedings requiring public participation.” Whether a particular proceeding requires public participation is determined by specific provisions of substantive law. Thus in Poland there is not a fixed list of such proceedings set forth in a single law. The proceedings requiring public participation are provided for in numerous acts broadly relevant to environmental protection.
For example, public participation is required in proceedings for issuance of:
- An environmental decision, where an assessment of the environmental impact of the project is carried out
- A building permit, if a renewed environmental impact assessment is carried out
- An integrated permit, or
- A permit for a waste incineration installation.
However, the administrative courts have generally held that extraordinary proceedings involving the aforementioned decisions (for invalidation of a permit or reopening of the proceedings) do not require public participation (e.g. Supreme Administrative Court judgments of 7 April 2016, case no. II OSK 1627/14, and 26 September 2017, case no. II OSK 125/16; but see Supreme Administrative Court judgment of 12 December 2017, case no. II OSK 1523/16).
Special procedural rights are also vested in ecological organisations with respect to certain development decisions referred to in Art. 72(1) of the Environmental Assessment Act for which an environmental decision is previously obtained. But in that case, the law restricts the scope of the administrative appeal or claim before the administrative court. There, the ecological organisation may only allege that the permit for the development is inconsistent with the environmental decision or fails to take into account the provisions of the environmental decision.
Participation by ecological organisations is also ensured in proceedings for issuance of development decisions for strategic projects (Art. 103d of the Environmental Assessment Act). However, the government has yet to issue an executive regulation under Art. 103a(2), meaning that projects cannot currently be carried out under chapter VA of the act (devoted to strategic projects).
What procedural rights?
In proceedings requiring public participation, ecological organisations can join the proceedings with the rights of a party. In practice, this means that they have access to the case file, can move for admission of evidence, and can present their position in the case. The main difference between a “party” and an “entity with the rights of a party” is that the latter has no control over the subject matter of the proceeding, and thus cannot for example move to suspend or dismiss the proceeding.
However, the right to pursue legal measures as provided for in the Environmental Assessment Act is a significant modification to the general rules of the Administrative Procedure Code and the Administrative Court Procedure Law. Ecological organisations can file an administrative appeal to a higher instance even if they did not take part in the proceeding at the first instance. Such an appeal can be filed within the time limit provided for the parties, and is regarded as notification of joining the proceeding.
It is similar in the case of challenges to the administrative court, which can be filed by an ecological organisation even if it did not take part in the administrative proceedings at the first or second instance. However, a condition for exercising this right is that the administrative proceeding has been completed through a determinination issued by the appellate administrative body. A challenge to the administrative court must be filed within the time limit provided for the parties.
Art. 103d of the Environmental Assessment Act is worded analogously to Art. 44 of the act, and thus the foregoing remarks under Art. 44 also apply there. However, Art. 103d has not been applied in practice, because no strategic projects have been carried out yet under the procedure set forth in chapter VA of the act.
Art. 86g of the act also allows ecological organisations to file an administrative appeal or a challenge to the administrative court despite not previously being involved in the proceeding. However, in such cases the range of allegations that can be raised by ecological organisations in the administrative appeal or before the administrative court is limited.
Summary
Under current law, ecological organisations enjoy extremely broad rights in many types of proceedings, but here we are dealing in particular with proceedings for issuance of an environmental decision where an assessment of the environmental impact of a project is carried out.
Generally, the statutory requirement of having been in operation for at least 12 months before initiation of the administrative proceeding is the only real restriction on exercise of ecological organisations’ entitlement to join the proceedings with the rights of a party.
Investors must also recognise that ecological organisations have a right to seek legal remedies even if they did not previously take part in the proceedings. In practice this can lead to serious delays in implementing projects, because the Environmental Assessment Act does not provide for any measures to combat abuse of procedural rights by ecological organisations.
Karol Maćkowiak, Environment practice, Wardyński & Partners
