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Suspending enforceability of environmental decision might have significant impact on investments’ development. Analysis of provisions in the Amendment of the EIA Act leads to the conclusion that investors are not helpless in such situations. However, effective protection of investors’ legal interests entails raising the bar on both theoretical and practical knowledge of administrative and court procedures.

In the article titled “The Amendment of the EIA Act introduces new possibilities for blocking investments” we mentioned that in the light of current regulations, environmental decision might be suspended twice.

In the following article, we will review the first case, which concerns possibility of suspending immediate enforceability by administrative authority considering an appeal. This legal remedy may be applied at the request of the party, however an order on suspending immediate enforceability of the environmental decision may be challenged.

From investors’ point of view, there are four practical aspects of aforementioned institution.

First one is quite clear, although it is often ignored. An investor should regularly check whether an appeal containing motion on suspending enforceability of the decision is submitted. Only then, an investor is able to immediately response and provide arguments against the suspension. After all, no investor would like to be surprised by the unexpected delivery of the decision on said suspension without the possibility of prior defense of its rights.

Second aspect concerns challenging an order on suspension of immediate enforceability of the environmental decision. In such a case dissatisfied investor has a right to submit a complaint. At the same time it is obvious that appeal proceedings take relatively long time, which extends the investment process. However, filling a motion on suspension of the order unfavourable for an investor may be considered as a relevant remedy. It is important to note that submission of said motion is not supported by the Amendment of the EIA Act, but results from the Administrative Procedure Code. Such circumstance may raise objections whether the Administrative Procedure Code is applicable in that matter. However, in our opinion current common practise allows constituting arguments against these objections.

Third important issue regards presenting appropriate investors’ arguments for not suspending immediate enforceability of a decision before a motion on such suspension is reviewed by an authority as well as in case of challenging an order on the suspension. It is worth noting that suspension of enforceability of the decision is applicable only in “justified cases”. Once this term is vague, it may lead to the misuse to the detriment of investors. Nonetheless, current case law may be helpful in that matter. For instance, in one of the cases handle by Dentons’ Environmental Practice it was argued that circumstances such as multiplied noise or exhaust emission do not surpass potential impact that may take place in case of given type of an investment. Hence, the suspension of enforceability of the decision is groundless.

Fourth relevant aspect is the possible “competitiveness” of the proceedings concerning immediate enforceability of the environmental decision, since the order in that matter may be determined in the separate ruling or incorporated in the environmental decision. In the first case, after issuance of said order, a party may challenge it independently for the environmental decision. In the second case, the order may be challenged in the appeal regarding environmental decision.

With a view to avoid complications and negative effects in this regard, it is necessary to evaluate risks connected with every possible scenario of obtaining immediate enforceability of the environmental decision. It is crucial for the investors because premises of suspending enforceability on the grounds of the Amendment of the EIA Act are different from premises regarding cancellation of the immediate enforceability determined in the separate ruling. Also it cannot be precluded, that the investor’s opponents may endeavor to suspend the decision’s enforceability prescribed in the separate order by filling the motion in an appeal. However, there are arguments against such actions.

In conclusion, the Amendment of the EIA Act introduces new regulations regarding suspension of enforceability of environmental decisions. However proper strategy and experience gained in past proceedings may mitigate negative impact on the investors’ interests.