ABSTRACT

The aim of this paper is to examine the legal consequences of failing to provide an effective public participation in rulemaking and administrative decisionmaking processes on environmental matters in Spain and the Basque Country. This work provides an overview of the Spanish Supreme Court and other regional Court's jurisprudence on public participation. The particular moment in which citizens participate in a decision-making process is of major importance. For instance, it is not the same thing to participate at an early stage of the process (this is, when the administrative file is not complete) than to do it when the compulsory reports are issued or when the last draft of the decision is already made. As it is going to be examined in this paper, the law sets that if ‘important amendments’ are submitted to the regulations or decision during the approval procedure, public authorities are obliged to provide citizens with the opportunity of taking part again. What in reality happens and the legal consequences of it are analysed in this work.

KEYWORDS

Decision-making process; European Union; Public participation; Rulemaking process; Spanish and Basque Environmental Law

INTRODUCTION

Public participation in environmental rulemaking and decision-making processes has been regulated over the last decades in almost every European country. In some European countries, even when no regulation on the issue had been specifically passed, public participation was already a reality due to their democratic background. However, other European countries needed a clear and specific regulation by Law on the right of citizens to participate in rulemaking and decision-making processes. Countries with an advanced democracy may not need an express recognition of this right but, others, such as Spain, not only need an express recognition of public participation by law, but also the recognition of the right to challenge the authorities’ decision or regulation adopted without participation. This means that in the event of authorities’ non-compliance with the law, citizens should be entitled to challenge the illegal decision. In such countries, Courts play a key role because they may have to oblige authorities to comply with the law and protect citizens’ right to participate. In the latter countries, public participation in rulemaking and decision-making processes was formulated firstly as a legal principle and, afterwards, recognised as a subjective right.