Declic v Euro Sun Mining (through its subsidiary Samax Romania)

On November 25, 2022, the plaintiff, DECLIC, an NGO, brought an application for judicial review before the Cluj Administrative Court, challenging the Environmental Endorsement No. 7/2022 (hereinafter referred to as EE No. 7/2022) issued by the first defendant (EPA Hunedoara) for the Urban Development Plan – Rovina mining project within the Mining License Area, Hunedoara County, on the following grounds: 1. The sheer absence of the assessments required by the SEA procedure for the issuing of EE No. 7/2022, namely: a. The lack of a transboundary impact assessment from a threefold perspective: the size of the project and the extremely large area to be cleared (200 hectares of protected forest); the transboundary nature of the underground and surface watercourses; the transboundary nature of the climate change impacts of the project. b. Failure to carry out an appropriate assessment under Article 6(3) of the Habitats Directive (92/43/EEC) and the correspondent national statutory instrument, namely the Government Emergency Ordinance (hereinafter GEO) 57/2007. c. Failure to assess climate change impacts in line with Article 19 of the Government Decision 1076/2004 in conjunction with Annex I of the SEA Directive. d. The lack of a long-term assessment of the project’s impact on surface and groundwater. 2. Failure to conduct public consultation in a cross-border context. 3. The formal completion of certain procedures in violation of mandatory environmental legislation, i.e. lack of an effective public consultation procedure on the environmental report in violation of Article 6 of the Aarhus Convention and Article 10 of the Rio Declaration. 4. The lack of accreditation of the experts who drew up the environmental report that constitutes the basis for the issuance of the EE No. 7/2022. On October 30, 2023, the Court of First Instance handed down their judgement, granting the plaintiff’s claim. The main arguments put forward by the trial judge read as follows: As climate change is not confined to the territorial boundaries of a single state, the court holds that the deforestation proposed by the project may have a major significant effect on the environment of another state. The climate impact of the plan must be considered as a whole, in the sense that the combined result of all the elements that can cause climate damage must be considered. Given that the plan proposed by Samax has a significant effect on the environment of another State, and that it is obvious that this condition has been met, at least in relation to Hungary, it was obligatory to comply with the legal provisions relating to these hypotheses, which was not done in the present case, the failure to comply with each of the legal obligations constituting a ground for the illegality of the Environmental Endorsement No 7/2022 issued by the first defendant. On April 25, 2024, the Cluj Court of Appeal upheld the judgment in this respect. Furthermore, the superior court granted the NGO’s appeal, namely upholding the decision for reasons additional to those given by the trial judge: (1) the environmental endorsement was unlawful in view of the fact that it was based on an environmental report drawn up by a non-accredited entity; (2) the adequate assessment study under the Habitats Directive is a mandatory requirement at the SEA stage.