Specific sanctions of European urban planning Law

Author:Conf. univ. dr. Andrei Dutu-Buzura
Pages:211-217
SUMMARY

The competences of the European Union in matters of urban planning are, if not extremely limited, at least diffuse, and most certainly indirect. Without being expressly mentioned within the contents of the Treatises, they are revealed in other field of competence of the European structures, such as environmental protection or the economic, social, and territorial cohesion policies. Moreover, aspects relevant to sustainable development, more precisely the sustainable development of the territory of the EU, includes important aspects of urban planning law. Regarding sanctions, they usually are, and remain, in the exclusive competence of the national legal systems. However, we can identify, within the European regulations in this field (for instance, directive 2004/35/EC on environmental liability or recommendation no. 2001/331/EC), certain minimal legality criteria for the given domain, beyond which, in theory, we must find ourselves in the troubled area of (urban planning) unlawfulness. An important part is played, under these circumstances, by the case law of the European Court for Human Rights that has many a time stated on the conformity of the sanctions specific to urban planning law, to the contents of the European Convention of Human Rights.

 
CONTENT
Specific sanctions of european urban planning law 211
SPECIFIC SANCTIONS OF EUROPEAN URBAN
PLANNING LAW
Conf. univ. dr. Andrei DUU-BUZURA
ABSTRACT
The competences of the European Union in matters of urban planning are, if not extremely
limited, at least diffuse, and most certainly indirect. Without being expressly mentioned within the
contents of the Treatises, they are revealed in other field of competence of the European structures,
such as environmental protection or the economic, social, and territorial cohesion policies. Moreover,
aspects relevant to sustainable development, more precisely the sustainable development of the
territory of the EU, includes important aspects of urban planning law.
Regarding sanctions, they usually are, and remain, in the exclusive competence of the national
legal systems. However, we can identify, within the European regulations in this field (for instance,
directive 2004/35/EC on environmental liability or recommendation no. 2001/331/EC), certain
minimal legality criteria for the given domain, beyond which, in theory, we must find ourselves in
the troubled area of (urban planning) unlawfulness.
An important part is played, under these circumstances, by the case law of the European Court
for Human Rights that has many a time stated on the conformity of the sanctions specific to urban
planning law, to the contents of the European Convention of Human Rights.
Key words: urban planning, sanctions, EU law, ECHR, EU competences.
1. General Aspects
1.1. European Urban Planning Rules
Considering that the European Union is not competent in the field of territorial
and urban planning, is, for certain, as wrong as it can get; the list of domains of
competence, as provided by article 4 of the Treaty on the Functioning of the
European Union (TFEU) concerns a great number of sectors, more or less close to
planning, such as economic, social and, after the entry into force of the Lisbon
Treaty, territorial cohesion, agriculture, environment or transportation. Amongst
the directorial lines susceptible to significantly contribute to facilitating the exercise
of shared competences, we can also identify transnational aspects of certain
National University of Political Science and Administration, Faculty of Public Administration,
Bucharest, Romania; e-mail: andrei.dutu@administratiepublica.eu.
Law Review vol. VI, special issue, December 2016, p. 211-217
212 ANDREI DUŢU-BUZURA
policies that can justify, for instance, a subsidiary and proportional intervention of
the European Union Law [1].
We can also point out several other issues regarding and/or related to
territorial and urban planning susceptible of being subject to EU regulatory
intervention, which implies that the subsidiarity and, whether necessary,
proportionality test should validate such an intervention, on the basis of article 5 of
the Treaty on the European Union (TEU). In this sense, we consider that the most
useful provisions are the ones related, on the one hand, to environmental policy
(article 191 TFEU) and, on the other hand, the ones related to the policy of
economic, social and territorial cohesion (article 174 & the following TFEU).
The most useful approach has proven to be, in this case, the comparison with
the field of environmental protection, both at an EU and national level; given the
frail borders between the two fields of regulation, urban planning law has been
found more often than not in the position of “borrowing” means of regulation and
intervention from environmental law, which we will emphasize when necessary.
1.2. Violations and sanctions
When the competent authorities reveal that a concrete situation is actually
breaking the law, it is to their extent to take the necessary measures, according to
the applicable legal regime, manifested mostly as administrative sanctions. They
can as well take the cause to the competent, repressive, jurisdiction that will have
to decide upon the sanctions to be applied.
Give the special nature of European Union Law, the competence of the EU
institutions concerning the control of certain activities and issuing acts does not
embrace the field of urban planning. But, the European Court of Human Rights
has met in numerous instances the problem of urban planning sanctions, in the
application of article 6, paragraph 1 of the European Convention of Human Rights,
regarding the right to a fair trial [2].
2. Administrative sanctions
In some cases, the competent authorities can take administrative measures
such as suspension of the activity, or retraction of the authorisation, even if there is
no actual breaking of environmental or urban planning regulations. In certain
situations, sanctions more sever, as a fine, or the order to demolish an illegal
building, can have an administrative nature [3]. Other reparatory measures, mostly
focusing on environmental damages, can be taken, based on the 2004/35/EC
directive on environmental liability. Finally, EU recommendation no.
2001/331/EC of April 4th, 2001, which mentions several, minimal, criteria
applicable to environmental inspections in Member States, regulates as well the
consequences of such inspections, stating that “an evaluation thereof and a
Specific sanctions of european urban planning law 213
conclusion on whether any further action should follow, such as enforcement
proceedings, including sanctions, the issuing of a new or revised authorisation,
permit or licence or follow-up inspection activities, including further site visits”
(pt. 6.1). Therefore, the competent local and national authorities are subject to an
EU regime of enforcing the appropriate administrative sanctions, even if solely on
a recommendation basis.
As to the influence of the ECHR case law, we can mention a significant
case, Pramstaller v. Austria, decision of September 28th, 1995. The applicant,
J. Pramstaller, has received a permit for new commercial buildings, with the express
condition of building two independent stores, separated by a wall. But Pramstaller
has actually arranged the two buildings as one supermarket, and therefore he has
been sanctioned with a fine consisting of 50.000 Austrian schillings. After
contesting the measures in the national jurisdiction, the applicant has addressed
the case to the European Court of Human Rights. Noting that by qualifying the
deed not just as an administrative offense, but also as a criminal offense, by being
sanctioned with incarceration if paying the fine was refused, the applicants access
to a “tribunal” has been restrained, in the conditions of article 6 paragraph 1 of the
Convention, it is clear that there has been a violation of his rights.
In another relevant case, Inocencio v. Portugal, decision of January 11th, 2001, the
applicant has executed certain works within his own home without the urbanism
permit required by Portuguese law. Therefore, he was sanctioned with an
administrative fine of 500.000 escudos that he subsequently contested to the
national jurisdiction, reaching eventually the ECHR, on the same basis of violation
of article 6. The Court has stated that, nature of the offence; it would appear that
the requirement to obtain a permit before carrying out construction work should
be regarded as a means of controlling the use of property for the purposes of a
balanced town-planning policy. A penalty for failing to comply with such a
requirement cannot constitute a punitive criminal measure of general application
to all citizens. This aspect is therefore not sufficient in itself for the penalty in issue
to be regarded as inherently criminal. As tothe nature and severity of the
penalty, the Court notes, firstly, that the administrative fine in question could not
in any circumstances be replaced by a custodial sentence in the event of
nonpayment. In that respect, the instant case is to be distinguished from other
cases in which the Court has held Article 6 to be applicable […].Admittedly, the
maximum fine that could be imposed was 20.000.000 escudos, a sum that is
certainly substantial. However, it should be noted that there was no threat of
criminal proceedings being brought against the applicant in place of the fine in
question […]”.
2. Criminal (Penal) Sanctions
Unlike other fields, including urban and territorial planning, environmental
protection through criminal law is still mainly marked by the principle of national
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sovereignty. However, in this field, the States’ margin for action has started to
encounter significant constraints as a result of undertaking obligations arising from
pertinent international law and case law. Currently, no general rule exists at the
international level to incriminate offences against the environment, as the only
legal texts are limited to providing criminalisation obligations of a sectorial nature
(sea, certain species).
At the European regional level, the Convention of the European Council of 4
November 1998 and Directive 99/2008/EC are singular examples of the
harmonisation of the criminal legal regime for environmental protection. However,
their efficiency remains uncertain, because the former document has never entered
into force, and the contents of the latter, i.e., the letter and the spirit of it, are still far
from being fully and properly transposed in the domestic laws of the 28 Member
States. In addition, especially at the international level, but also at the European
Union level, environmental protection through criminal law is still essentially
based on accessory, dependent rules for criminalisation.
Given the insufficiency of the harmonisation measures adopted at the
international and European Union levels, the centre of gravity of such
preoccupation has moved to the domestic laws. The right to a healthy and
ecologically balanced environment has been recognised as a fundamental human
right, and thus represents a superior social interest. Accordingly, environmental
protection through criminal law requires enhanced consolidation, and it is worthy
of a legislative and constitutional rank of that value. In the face of an abundance of
existing criminalisations spread throughout various special sector regulations,
which have been accompanied by diverse procedural and repressive mechanisms,
the criminal response has remained chaotic, and therefore, is still inefficient.
Unfortunately, the transposition of Directive 2008/99/EC in the domestic laws
of the 28 EU Member States did not result in the actual reform of environmental
criminal law, in accordance with the ambitions of the European Union text. This
process was most often expressed through the enactment of special regulatory
measures, thus creating the risk that it would remain ‘foreign matter’, a document
to ‘showcase’, which is regarded and perceived as such, respectively, rather than as
a reference framework for the legislature and less for the judge, a ‘model law’, and
not a ‘common law’, which is enforceable like any national legal provision. Despite
what could and should have happened, they did not embrace the opportunity for a
review and a restructuring of the entire environmental criminal legislation,
eliminating regulations that were not in line with the EU acquis to the extent
imperatively required by the specific nature of this field and other pertinent
circumstances, as well as representative creative developments [4].
In the (strict) field of urban and territorial planning law, the States can
naturally impose criminal penalties, as consequence to urban planning crimes.
These penalties can also be complemented by reparatory measures. The two
“traditional” criminal penalties – incarceration and paying a fine (that can easily be
Specific sanctions of european urban planning law 215
replaced with incarceration in case of non-payment) – have been considered rather
excessive by the ECHR. Moreover, assimilating the administrative fine to a penal
fine has been considered a clear violation of article 7 of the Convention (“no
punishment without law”) [5].
3. Reparatory Measures
Complementary to administrative criminal sanctions, national legislations of
urban planning police regulations impose traditionally, certain measures for
repairing the damage caused. From the ECHR’s point of view, such measures are
in no way similar to the “punishment”, as understood in article 7 of the
Convention. The most generally acknowledged of these measures is the restoration
of the good upon which the violation has been committed; it is, as well, the most
coherent measure, that guarantees the conformation to urban planning rules [6].
Restoring the good to its original condition can take different forms, according
to the violation that has been committed. If it consists in raising a building or a
certain work without permit, the restoration will consist in simply demolishing it.
On this aspect, the European Court has been seized to appreciate the conformity of
a demolition order regarding a building – in this case, a barn – without prior
authorization from the authorities, to article 1 of the First Protocol. The Court
stated that the demolition order aims to respect the general rules regarding
construction interdictions and therefore can be linked with the usage of goods, as it
is consecrated at second paragraph of article 1 of the First Protocol. But, the Court
states, this interference is taken by following a common (general) interest,
legitimate and proportionate to the full environmental protection, given that the
building itself has been constructed in a protected area.
Several decisions of the ECHR can be mentioned, that equally confirm the
legality and the proportionality of demolition decisions regarding illegally
constructed buildings, aiming to protect a forest area (Hamer v. Belgium, decision of
November 27th, 2007), the unrestricted access to the sea shore (Depalle &
Brosset-Triboulet v. France, decision of March 29th, 2010) or an archaeological site
(Vagnola spa & Madat srl v. Italy, decision of January 12th, 2010). However, in
another cause, the ECHR has appreciated that the demolition of a house deprived
its owner of their property, in the sense of the second phrase of article one, First
Protocol (Allard v. Sweden, decision of June 24th, 2003). Or, in some cases, the
demolition can concern only a constructed element, such as a wall (Fotopoulou v.
Greece, decision of November 18th, 2004).
While examining the proportionality of the violation, the Court can evaluate as
well the adequacy of the reparatory measure, in contrast with the general interest.
For instance, the Court has considered that, in a case regarding not illegal
constructions, but the breach of common ownership rules, the demolition of a
house has been, for the interested party, a special and extraordinary charge (Allard
v. Sweden). By the same reasoning, the ECHR considers that the confiscation of
216 ANDREI DUŢU-BUZURA
offensive goods is a criminal sanction, a penalty in the sense of article 7 of the
Convention (Sud Fondi v. Italy, decision of January 20th, 2009).
In regards to the mostly problematic issue of restoring the environment, an
official answer has been given by the 2004/35/EC directive on environmental
liability, within the provisions regarding the prevention and reparation of
environmental damages. The act defines reparation as “all actions or group of
actions, including attenuation measures or transitory measures aiming to restore,
rehabilitate or replace damaged natural resources or damage services, or to insure
an equivalent alternative to these resources or services, as provided by annex II”.
By services, the directive designates the functions insured by a natural resource to
the benefit of another natural resource or of the public. The second annex
mentioned here treats in detail the concept of “environmental damage repair”, as
the directive differentiates between repairing damages to water or wildlife and
habitats, and repairing damage to the soil. For the first case, the directive
differentiates once more between primary reparation, complementary reparation,
and compensatory reparation. Primary reparation means “all measures of
reparation by which damaged natural resources or damaged services are returned
fully or closely to their initial state”. Complementary reparation implies all action
taken upon damaged natural resources or services aiming to compensate the fact
that primary reparation has not succeeded in completely restoring the natural
resources or services. Finally, compensatory reparation means all action aimed to
compensate the intermediary losses of natural resources or services that incurred
between the date of the damage and the moment when primary reparation has
fully produced its effects.
The same second annex determines the plan that must guide all choice in the
field of damage repair; the first step consists in identifying the reasonable options
of primary reparation, then of complementary and compensatory reparation. A
hierarchy has been included as well among compensatory measures; are preferred
the ones that can guarantee the provision of resources or services of the same kind,
same quality, and a comparable valor to the ones damaged.
Regarding the reparation of the damage to soils, the annex is less binding
regarding the actual means of reparation. Point no. 2 of the act actually states that
the reparation measure is connected to the great risk of negative impact upon
human health, which allows, in some cases, a limited decontamination,
confinement measures or opting for some means of natural regeneration of the
soils, meaning that there is no direct human intervention needed in the process.
It is important to mention, though, that directive 2004/35/CE does not create a
civil or criminal liability regime, therefore, all reparatory measures are purely
administrative.
References
[1] Sadeller, N. D. (2012). Principle of subsidiarity and the EU Environmental
Policy. Journal for European Environmental and Planning Law, 63-70.
Specific sanctions of european urban planning law 217
[2] Haumont, F. (2016). Droit européen de l’aménagement du territoire et de
l’urbanisme. Bruxelles: Bruylant.
[3] Andersen, R.; Déom, D. & Renders, D (2007) Les sanctions administratives.
Bruxelles : Bruylant.
Baudelle, G. (2003). L’Europe du demain sera-t-elle polycentrique? Territoires
2020, 125-134.
[4] Duu, M. (2013). Introduction to Environmental Criminal Law. Bucharest:
Hamangiu
[5] Duu, M. (2011). Dreptul Urbanismului. Bucureşti: Universul Juridic.
[6] Jacquot, H., & Priet, F. (2004). Droit de l’urbanisme. Paris: Dalloz.