Association “Za Zemiata (For the Earth) – Access to Justice” and “The Green Tank”, Hellenic Republic v. Executive Director of the Environment Executive Agency, TPP “Maritsa-Iztok 2” EAD

This case first began in 2019 after the thermal power plant (TPP) Maritsa-Iztok 2 got its integrated permit for operation renewed indefinitely, allowing the plant to release mercury and sulphur oxides above set emissions limits. The Court of First Instance (Administrative Court Stara Zagora) dismissed the case, stating that there is no violation of the Aarhus Convention, even though the operations of the TPP in question have a transboundary effect. The Court also did not find any violations of the national Code of Administrative Procedure or the European Directives on ambient air quality and industrial emissions.

The Applicants appealed the judgment before the Administrative Court of Cassation (ACC). The ACC requested a preliminary ruling from the Court of Justice of the European Union (CJEU). The ACC found that there is a discrepancy between the update of the plan for the management of ambient air quality in the municipality of Galabovo, developed for the pollutants: particulate matter (PM10) and sulphur dioxide (SO2) for 2019-2023, and the appealed decision of the Executive Director of the Environment Executive Agency. Namely, the reduced desulphurisation rates authorized by the Executive Director in the decision at issue are not consistent with the minimum desulphurisation rate of 98%. Furthermore, the authorized daily and hourly average rates of SO2 are systematically exceeded, which led, inter alia, to the adoption and update of the plan referred to above and gave rise to the bringing of an action for failure to fulfill obligations in Case C‑730/19, Commission v. Bulgaria. The ACC asked the CJEU three questions relating to the obligations of the competent authorities when considering a request for a derogation from the set emission limit values when reissuing integrated permits.

On March 9, 2023, the CJEU gave its judgment on the preliminary ruling. The CJEU found that a derogation from the set emission limit values may be granted only if less strict emission limit values do not cause 'significant pollution' and, in spite of that derogation, a 'high level of protection of the environment as a whole' could be achieved. Moreover, the pollution in excess of the air quality limit values for SO2 in the area of the TPP in question cannot be regarded as insignificant pollution, but could objectively be described as 'significant pollution'. Thus, a derogation from the set emission limit values could not be granted if it is such as to contribute to exceeding air quality limit values set by Directive 2008/50 for SO2. Additionally, the competent authority empowered to grant such a derogation must also refrain from setting less strict emission limit values for pollutants originating from an installation where such a derogation would be contrary to the measures established in the air quality plan adopted in the zone concerned.

This judgment came in a moment when there was talk in Bulgaria of renegotiating the Recovery Plan, which originally envisioned a 40% reduction in thermal power plant emissions and the introduction of more energy from renewable sources. Even though the judgment considered sulfur emissions, its principles could very well be applied to other pollutants that originate from thermal power plants like Maritsa-Iztok 2.

After the CJEU judgment on the preliminary ruling, the case returned to the Bulgarian ACC, which must decide the case on its merits.

On July 31, 2023, the Administrative Court of Cassation (ACC) issued a judgment, revoking the first-instance judgment of the Administrative Court of Stara Zagora, which in 2019 ruled that the renewal of the integrated permit for operation of the thermal power plant (TPP) Maritsa-Iztok 2, famous for releasing mercury and sulphur oxides above the norms. The ACC found substantive violations of the rules of court procedure, committed by the Court of First Instance, and thus sent back the case to be examined by another division of the Administrative Court of Stara Zagora.

In March 2024, after the second examination of the case by the Administrative Court of Stara Zagora, the Court issued a judgment revoking the decision for the renewal of the integrated permit for operation of the TPP. According to the Court, the limit values document must be reissued to comply with the requirements for mercury and sulphur dioxide. The judgment was appealed before the Supreme Administrative Court, which in October 2024 discontinued the case due to technical errors in the first instance judgment.

The Administrative Court of Stara Zagora then fixed the technical error in the judgment. The TPP and the Executive Director of the EEA appealed the judgment before the Supreme Administrative Court, which upheld the previous court's judgment and sent the case back to the Executive Director of the EEA for a new decision on the complex permit of the TPP. The Supreme Administrative Court's decision provided mandatory instructions to the administrative organ, highlighting that a derogation from the applicable environmental standards may be provided, taking into account all relevant scientific data on pollution, including the cumulative effect with other sources of the pollutant in question, as well as the measures set out in the relevant air quality plan adopted for the zone. The competent authority must refuse to grant such a derogation where it is likely to contribute to the exceedance of the air quality standards. The Supreme Court justices found that the authority’s decision was unlawful because no comprehensive assessment of the cumulative effect of the pollution had been conducted, all relevant scientific data had not been taken into account, there was a conflict with the measures of the current air quality plan of the Municipality of Galabovo, and the conditions for the admissibility of the derogation under EU law had not been met.