Legal nature and validity of Article 24.1

Pursuant to Article 24.1 of the Constitution, the protection of the natural and cultural environment constitutes a duty of the State and a right of every person. The State is bound to adopt special preventive or repressive measures for the preservation of the environment in the context of the principle of sustainable development. Article 24 is included in the section of the Constitution regarding individual and social rights. According to the wording thereof, the protection of the environment constitutes an obligation of the State on the one hand and a right of every person on the other. Moreover, it is explicitly stipulated that for the preservation of the environment the State is obliged to adopt special preventive or repressive measures.

Obligation and right. A far as the obligation of the State is concerned there is no question, since this is stipulated explicitly and is sufficiently analyzed in both theory and case law. The question that came up before the 2001 revision was to what extent this State obligation may give birth, reflectively, to a respective constitutional right: the right to environment.

Constitutional right. The legal obligation is understood as a negative aspect of the right, since its main reason of existence consists in guaranteeing the beneficiary’s rights. In any case, there is now no question of interpretation, since with the 2001 revision, environmental protection is hereinafter defined as everybody’s right. The right to environment is a constitutional right, since its existence and exercise are guaranteed by a constitutional provision, which binds all three constitutionally entrenched powers. It is a right governed by public law, i.e. the exercise of this right creates a legal tie in the field of State action, which is characterized by the exercise of public authority and is governed by public law rules.

AIR POLLUTION

How is “air pollution” defined under Greek Environmental law ?

The definition of air pollution is given by article 1 (a) of the Geneva Convention on Long-Range Transboundary Pollution. Accordingly, ‘air pollution is defined as ‘the introduction by man, directly or indirectly, of substances or energy into the air, resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property, and impair or interfere with amenities and other legitimate uses of the environment.’ Chief sources of air pollution are transportation, power generation, process industry and other production activities.

What are the basic law rules on the protection of the natural environment?

The core rules of the environmental protection are grouped in the Article 24 of the Constitution, which entrenches the environmental protection in its three aspects: the natural, the residential and the cultural one². According to this: «The protection of the natural and cultural environment constitutes a duty of the State and a right to every person. The State is bound to adopt special preventive or repressive measures for the preservation of the environment in the context of the principle of sustainable development». In this article, we also come across specific references to the protection of forests, residential environment and monuments. The provisions of the article establish the fundamental principles of the environmental protection; they mainly refer to the principle of sustainable development (in conjunction with the article 106 of the Constitution), the prevention principle, the precautionary principle and the principle that “the polluter pays”³.

There are two basic pieces of legislation specifying these constitutional rules: the law 1650/1986 on the protection of the natural environment and the law 998/1979 on the protection of forests and forest expanses. These laws, which constitute the backbone of the legislation on the protection of the natural environment, have been consecutively modified until the present day. Furthermore, it is worth noting that, during 2011 a series of laws have been enacted regarding the environmental protection which aim to illustrate the legal framework and, therefore, facilitate possible investments. In concrete terms, we refer to the law 3937/2011 on the protection of  biodiversity and NATURA 2000 network areas , the law 3982/2011 on the establishment and development of Business Parks,  the law 3983/2011on the protection and management of the marine environment, the law 3986/2011 on the management of public property and the law 4014/2011 on the environmental licensing of projects and activities. These followed the law 3894/2010 on the acceleration and transparency regarding the realization of «Strategic Investments». It is, finally, stated that the approval of the general and some specific regional planning frameworks has significantly increased legal certainty in this specific area: We refer to the «General Context of Regional Planning and Sustainable Development» (Gov. 128/A/03.07.08), the «Specific Context of Regional Planning and Sustainable Development for Renewable Energy Resources» (Gov. 246/B/03.12.08), the «Specific Context of Regional Planning and Sustainable Development for the Industry» (Gov. 151/AAP/13.04.09) as well as the «Specific Context of Regional Planning and Sustainable Development for Tourism» (Gov. 1138/B/2009).

Legal framework for water protection and management in Greece

In fulfillment of Directive 2000/60/EC of the European Parliament and of the EU Council, Greece adopted Law 3199/2003 and Presidential Decree 51/2007 concerning the protection and management of surface waters and ground water. The latter provide for the separation of Greece into river basin districts and the drafting and issuing of river basin management plans which shall be revised and updated every six years. Management plans shall include programmes of measures and monitoring of the water status.

Greece has been separated into 14 river basin districts.

According to L. 3199/2003, water uses include: water supply, irrigation, industry, energy and leisure.

In addition, L. 3199/2003 provides for the issue of permits, which cover the use of water resources and the execution of works concerning the exploitation of water resources (hereunder“water works”). Permits are required in all cases concerning water supply, use of water, water works, and works or activities for the protection of water from pollution caused by discharge of liquid waste into the environment.

Permits may be granted to any legal or natural person for the satisfaction of their real needs. Water works may also be undertaken for the satisfaction of third parties’needs, as long as general interest is served. Permits are granted based on the respective river basin management plans, and the programmes of measures, which give substance to the provisions of such management plans. In order for the permits to be granted, the availability of the quantity of water to be used and the purpose of the use of water should be established.

What are the basic regulations regarding the protection of forests and forest expanses?

The Constitution explicitly enshrines the protection of forests and forest expanses. In particular, the article 24 par. 1 provides: «Matters pertaining to the protection of forests and forest expanses in general shall be regulated by law. The compilation of a forest registry constitutes an obligation of the State. Alteration of the use of forests and forest expanses is prohibited except where agricultural development or other uses imposed for the public interest prevail for the benefit of the national economy. Furthermore, the article 117 par. 3 and 4 provides: «3. Public or private forests or forest expanses which have been destroyed or are being destroyed by fire or have otherwise been deed or are being deforested , shall not thereby relinquish their previous designation and shall compulsorily be proclaimed reforestable, the possibility of their disposal for other uses being excluded. 4. The expropriation of forests and forest expanses owned by individuals or by private or public law legal persons shall be permitted only in cases benefiting the State, in accordance with the provisions of article 17, for reasons of public utility; but their designation as forests shall not be altered».

The above constitutional provisions guarantee a high level of protection of forests and forest expanses. The alteration of the forest nature of these expanses is practically unfeasible, whether they constitute public or private property, except in extremely borderline cases where the public interest imposes such an alteration. In these cases, a critical issue is raised concerning the identification of the areas later designated as «forests» or «forest expanses». This issue is directly clarified via the mere Constitutional text which, following the Constitutional Revision of 2001, includes this identification in the form of an interpretative clause which accompanies article 24. According to this: «By forest or forest ecosystem is meant the organic whole of wild plants with woody trunk on the necessary area of ground which, together with the flora and fauna coexisting there, constitute, by means of their mutual interdependence and interaction, a particular biocoenosis (forestbiocoenosis) and a particular natural environment (forest-derived). A forest expanse exists when the wild woody vegetation, either high or shrubbery, is sparse».

The legal framework concerning forests and forest expanses is complemented by the provisions of the law 998/1979, as applicable after a series of amendments. These provisions specify the afore-mentioned constitutional definitions, establishing at the same time specific regulations on the protection of forests and forest expanses. These regulations are framed by the Decree-Law 86/1969 («Forestry Code»); some of its provisions continue to be applicable. It is noteworthy that, in Greece, there is not yet an integrated Forest Registry which is a fact that results in increased uncertainty and insecurity on the forest nature of the areas outside urban planning.

In what way are the sea and coastal areas protected?

Greece is privileged with a coastline, the total length of which extends approximately to 17.000 kilometers. This coastline covers, almost half of the total coastline of the Mediterranean. The marine Mediterranean habitats as well as the rarely found biodiversity hosted by the coastal areas and the numerous islands constitute the greater natural wealth sources of the country, which probably award leadership of the country, regarding this area, in a global perspective. It is, therefore, clear that the effective protection of the sea and coastal areas is listed as one of the major challenges for ensuring the sustainable development of the country.

The legal framework for the protection of the sea and coastal areas is, primarily, based on the article 24 of the Constitution which constitutes the backbone of the legal protection of the natural environment². According to this:«The protection of the natural and cultural environment constitutes a duty of the State and a right to every person. The State is bound to adopt special preventive or repressive measures for the preservation of the environment in the context of the principle of sustainable development». The provisions of the article establish the fundamental principles of the environmental protection; they mainly refer to the principle of sustainable development (in conjunction with the article 106 of the Constitution), the prevention principle, the precautionary principle and the principle that “the polluter pays”³.

Furthermore, the constitutional protection of the natural environment of the insular regions is complemented by the provisions of the articles 101⁴ and 106 par. 1⁵ of the Constitution. The combination of these provisions with the article 24 of the Constitution results in the principle of sustainable development of insular regions⁶, which constitutes a more specific aspect of the general principle of sustainable development. However, the particularities characterizing the insular regions generally confer a stand-alone content to this principle. Hence, there forms a grid of constitutional rules, the combination of which structures the regulatory content of the principle of sustainable development of insular regions⁷.

The aforementioned constitutional provisions are particularized through the law 1650/1986 on the protection of the natural environment and, regarding the protection of sea and coastal areas, the law 2971/2001 for the foreshore and beach and, more recently, the law 3983/2011 («National Strategy for the protection and management of the marine environment»)⁸.

Environmental Protection and Industrial Development. What is the attitude of the Greek State?

The Greek Constitution considers the need to actively protect the environment and to plan in a sustainable manner to be an obligation of the State (article 24). In this way environmental protection is placed within the constitutionally protected human rights. This principle guides all legal approaches to the matter (legislative and case law).

At the same time, the State must secure social peace and must plan with the aim to ensure economic and regional development and take all necessary measures to utilize all sources of national wealth (article 106).

Both, environmental protection and economic development, being in need for protection, they must co-exist as envisioned by the principle of sustainable development.

Which is the existing legal framework for waste management?

The new framework Law 4042/2012 (GG Α΄ 24/2012) on waste management, transpos­es the Waste Framework Directive 98/2008/EC and the Directive 99/2008/EC. Articles 2 to 9 harmonize the national law with the provisions of Directive 2008/99/EC concerning the protection of the environment through criminal law and foresee sanctions for cases causing or likely to cause pollution or degradation of the environment. Articles 10 to 48 of Law 4042/2012 harmonize national law with the provisions of Directive 2008/98/EC concerning waste and the repealing of certain Directives. The mentioned Articles establish measures to protect the environment and human health by preventing or reducing the adverse impacts of waste production and waste management and reducing the overall impact of the use of resources. The adoption of Law 4042/2012, combined with Law 3854/2010 (GG A’ 94/2010), relating to alternative management of specific waste streams, provides a comprehensive legal framework for waste management. Further, the existing legal framework is based on the Joint Ministerial Decision (JMD) 50910/2727/2003 (GG B’ 1909/2003) “Measures and Conditions for Solid Waste Man­agement - National and Regional Planning Management in compliance with the provisions of the Directive 91/156/EEC”. This JMD sets the objectives and principles of management of solid waste, including the requirements of the national and the regional plans for integrated waste management. Furthermore, the JMD foresees the responsible bodies for managing solid waste (FoSDA) and the measures for the rehabilitation and use of disposal sites. Article 5, par. 1 defines the guidelines for the management of solid waste throughout the country and suggests appropriate the measures which promote (under d.) the use of waste as an energy source. Article 11 provides the obligations of the wasteholders in accordance to Law 2939/2001 (GG A’ 179/2001).

What is the importance of spatial and other land plans? How do they affect investments in Greece?

Sustainable development is secured through comprehensive planning policies setting regulations and restrictions on land uses. In this way economic development goals are set along with environmental protection criteria aiming to avoid unregulated development (which may cause environmental degradation or even destruction) while also promoting the comparative advantages of a country, preserving regional characteristics and social cohesion (L.2742/99). Planning in a sustainable manner is a constitutionally protected human right (article 24) and an obligation of the State. For this reason land plans setting these goals are necessary and land uses must be defined prior to the establishment of projects and activities.

This process is of interest to regulators and policy makers. What is of interest to investors planning to invest in Greece, is the completion and the fruition of their planned project: if a project is planned without prior detailed land and spatial planning or if permitted contrary to the allowed land uses in the respective area, the project will not be allowed to go forward and the permits entail considerable legal risk at the Conseil d’ Etat (CdE – supreme administrative court) following lengthy procedures. Correct land planning is the first step of the design of a project and a significant part of the overall environmental permitting process.

What specific provisions apply in relation to environmental liability, within the meaning of Directive 2004/35?

Directive 2004/35/EC, as amended by Directive 2006/21/EC on environmental liability with regard to the prevention and remedying of environmental damage, was implemented by Presidential Decree (P.D.) 148/2009. The operator of an activity within the scope of P.D. 148/2009 bears the costs for the preventive and remedial actions taken pursuant to the law for the prevention and restoration of environmental damage caused by his operations.

Environmental liability depends on the type of activities undertaken by the operator, as described in Annex III of P.D. 148/2009, and do not require any fault or negligence. However, in order for these regulations to apply, the law requires that the operator has been identified by the competent authorities, the damage has been specified and that a causal link exists between the operator, the activity and the occurred or threatened environmental damage.

As a general rule, operators are obliged to apply the law with regard to the prevention and the remedy of any environmental damage or threat and to cover all related costs when they are liable for such damage. In addition, they are obliged to disclose to the competent authority any environmental damage and cooperate for the determination and application of the remedy measures.

In the event that there is an imminent threat of environmental damage, the operator is obliged to undertake instantly any preventive measures and to inform the competent authorities immediately. The authorities may reform the measures undertaken, provide further instructions or ask for more information.

Following the occurrence of the environmental damage the operator must inform the competent authorities, undertake the necessary measures to avoid further pollution, submit to the competent authorities any remedy proposals and undertake his own risk assessments. The competent authorities define in cooperation with the operator the necessary measures to be undertaken.

The operator is burdened with all costs and expenses for the remedy and prevention of environmental damages. The competent authority may recover remedy costs from the operator liable for causing the damage or threat directly, or via insurance coverage or other types of financial guarantees.

Which is the basic legal framework for the protection of cultural heritage?¹

In order for the legal framework regulating the protection of cultural heritage to be more easily perceived, it is, initially, essential to state that, due to the particularity of her historical background, Greece’s cultural heritage is of great importance. Perhaps, it wouldn’t be an exaggeration to claim that Greece constitutes, almost entirely, an extensive and complex archaeological site. Indeed, both in the hinterland and most of the islands, there are many important archaeological sites with monuments relating to the era of ancient Greece, and, subsequently, the Roman times. Many of these monuments are protected via their inclusion in archaeological sites, while for others, perhaps most of them, the archaeological excavations have not progressed yet.

For the reason mentioned above, the legal framework for the protection of cultural heritage is particularly rigorous. The most important provisions in this form are, certainly, those contained in the article 24 paragraph 6 of the Constitution, whereby: «Monuments and historic areas and elements shall be under the protection of the State». This provision is specified by the law 3028/2002 which currently constitutes the backbone of the relevant legislation. Moreover, it is worth noting that the existing legal framework is supplemented by the international conventions relating to specific aspects of the protection of cultural heritage and ratified by Greece. Indicatively, we refer to the definitions of the International Convention of Granada in 1985 for the protection of architectural heritage in Europe, signed in the framework of the Council of Europe and, subsequently, ratified by the Greek Parliament with the law 2039/1992², the (revised) European Convention of Valletta of the 16th of January in 1992 on the Protection of the Archaeological Heritage, which was also signed within the framework of the Council of Europe and was,  later, ratified by the Greek Parliament (law 3378/2005), the Convention of Paris of the 6th of May in 1969 on the protection of the archaeological heritage, also concluded in the framework of the Council of Europe and ratified with the law 1127/1981 as well as the International Convention of Paris of the 23rd of November in 1972 on the protection of the international cultural and natural heritage ratified with the law 1126/1981. It is noted that the above rules of the international law are of existing legal binding force, applying, therefore, in the national legal system on a superior-effect basis, compared to the common law, provided, of course, that they include provisions characterized as self-executing³.

Which public bodies participate in licensing and controlling of activities emitting radiation and electromagnetic effects?

Apart from the Ministries that are generally responsible for the protection of the environment (Ministry for Environment, Energy and Climate Change) and of the human health (Ministry for Health and Social Solidarity), for research and technology (Ministry of Education, Lifelong learning and Religious Affairs) and for industry issues (Ministry for Development, Competitiveness and Shipping), the following institutions exercise specific competencies in respect to protection against dangers arising from radiation and of electromagnetic effects:

• The Greek Atomic Energy Commission (GAEC) which is a decentralized public service, supervised by the General Secretariat for Research and Technology (GSRT- Ministry of Education, Lifelong Learning and Religious Affairs). GAEC is the national authority responsible for the protection of the general public, of workers and of the environment from ionizing and artificially produced non-ionizing radiation and as well as for nuclear safety and security. The Commission has mostly advisory and some decision making competencies regarding the issuance of licenses and permits in the aforementioned sectors. Furthermore, GAEC is also responsible for monitoring the related activities and for controlling compliance with the restrictions that apply. (www.eeae.gr)
• The National Centre of Scientific Research “DEMOKRITOS” (NCSR “D”) which is a self-administered governmental legal entity, supervised also by the GSRT. NCSR “D” operates as a multi-branch scientific research centre. Its internal organization comprises the following administratively independent Institutes: Institute of Nuclear Physics, Institute of Nuclear Technology and Radiation Protection, Institute of Materials Science, Institute of Telecommunications and Informatics, Institute of Microelectronics, Institute of Physics/Chemistry, Institute of Biology and Institute of Radioisotopes and Radio-diagnostic Products. The Institute of Nuclear Technology and Radiation Protection (INT-RP) operates an integrated radiation protection centre in Greece, possesses expertise and facilities for radioactive waste treatment and maintains an integrated laboratory of Environmental Radioactivity Monitoring in Greece, with an extensive network of sampling, measuring and monitoring stations throughout the country’s territory.  (www.demokritos.gr)
• The Hellenic Telecommunications and Post Commission (EETT) which is the national independent regulatory authority for telecommunications and postal services, is also responsible for granting antenna construction permits. (www.eett.gr)