Danish administrative law became established as an independent discipline thanks to a 1924 doctoral thesis. The author, the subsequent Professor Poul Andersen, had studied in France, and his thesis bears the stamp of the French archetype, especially the examples and the nullity doctrine. Poul Andersen’s text book dominated the discipline right up until around 1970.
The fundamental line of thought is that administrative law shall protect the individual against possible injustice by the authorities. That line of thought still holds today.
One of the central elements in the protection of the individual is the principle of legality: The state must have the legal right to undertake the things that it undertakes. It can only make demands on citizens if it has the right to do so on the basis of an Act or a Statutory Order. Moreover, if that right is based on a Statutory Order, the latter must in turn be legally justified by an Act.
An independent Danish administrative legal practice has gradually developed that is based on the rulings of Danish courts and the Ombudsman, and in which Scandinavian elements have modified the French archetype. In 1985, the most important rules concerning the processing of cases were codified as the Administration Act.
As discussed below, Danish administrative law has on two points evolved far from the French archetype; these are the principles of freedom of information in administration (4.4.2.) and contradiction (4.4.3.). It would also be useful to more closely describe the most important legislative regulatory instruments - Acts, Statutory Orders, Guidelines and individual rulings (4.4.4). In addition, some remarks should be made about agreements because the Danish Environmental Protection Act contains a special provision concerning that instrument (4.4.5). Finally, I will discuss the position of neighbours and organizations in the administrative process; in so far as this aspect is concerned, Danish environmental law must be considered rather open since very many parties have the possibility to utilize the administrative complaints system (4.4.6).
4.4.2. The principle of freedom of information:
Denmark obtained the concept of freedom of information from Sweden, and a Danish Freedom of Information Act was introduced in 1970. This happened at a time when public administration was undergoing a long period of expansion, which first ceased in the mid 1980s. The majority of public institutions were positive in accepting the concept of freedom of information, among other reasons because it could strengthen interest in the work that they undertook.
In this respect environmental administration followed the mainstream. Only particularly technical news concerning Denmark’s leading chemical enterprises has been held back when the press or public has demanded the right to freedom of information in environmental cases.
The EC Environmental Information Directive, 90/313, is from many points of view quite close to the Danish freedom of information rules.
Openness towards the press has been of considerable benefit to Danish environmental administration. It has accorded an aura of credibility to this group of authorities, and is partly the reason why environmental questions have had a prominent position in the press since sometime in the 1970s.
4.4.3. Contradiction:
Contradiction is the concept that a party subjected to the intervention of the authorities shall have the opportunity to express an opinion. The concept can be traced back to the administration of justice, i.e. the idea that the party to be judged shall have the prior opportunity to defend himself. A specific provision on contradiction appears as early as in the first Environmental Protection Act of 1973, and it became a general rule in Danish administrative law with the Administration Act of 1985.
From the modern viewpoint a dialogue between the implicated enterprise and the environmental authority seems to be perfectly natural, and it can be a success for both parties if they can negotiate an agreement that is convincing to the outside world.
4.4.4. The most important legislative regulatory instruments:
Acts, Statutory Orders, Guidelines, Individual rulings: An Act is passed by Parliament and ratified by the government. When interpreting Danish law, much weight is placed on the preparatory works, especially the ministerial comments that accompany every Bill when it is introduced before Parliament, as well as the comments made by Parliament, especially the report on the Bill submitted by the parliamentary committee in question.
On the environmental front, the laws are often drawn up such that the Act provides the Minister for Environment and Energy the authority to promulgate more specific rules, i.e. Statutory Orders. When the Act does not specify explicit behavioral norms, but leaves the contents to be filled out by the minister in question, the Act is termed a framework Act. The Environmental Protection Act is an example of a framework Act.
Statutory Orders are promulgated by the Minister pursuant to the powers stipulated in an Act. Like Acts, they are binding for all both the authorities and citizens.
Guidelines contain sound advice from the issuing party. They are not binding for any party, neither the authorities nor citizens. The relative importance of Guidelines depends on the authority of the party having issued them. The Danish EPA has professional authority in its area, is an Appeal Body, and the Appeal Body over the EPA - the Environmental Board of Appeals - normally takes a positive view of the Guidelines. The Agency’s Guidelines are therefore accorded considerable importance.
Individual rulings could involve granting an enterprise consent to undertake something, or issuing an injunction for an enterprise to do something or other. Individual rulings shall always be legally warranted by an Act or a Statutory Order, i.e. the latter have to stipulate that the citizen shall seek consent or that the authority has the power to issue an order. The specific details of the consent or order depend on what is justifiable under the provisions of the Act or Statutory Order. It is the local authority - the County or the Municipality - that decide the details of the ruling. This is where the Guidelines come in, i.e. when the County or Municipality has to use its discretion: The authority can use the proposals in the Guidelines in its ruling. However, the authority can also chose to rule in another way if there are arguments for doing so. If the arguments are not sound enough, one of the parties (the enterprise, the neighbour) will perhaps appeal to the Danish EPA.
4.4.5. Agreements:
Section 10 of the Danish Environmental Protection Act contains a specific provision on binding agreements between the Minister for Environment and Energy on one hand, and enterprises or their trade and industry organizations on the other. The provision is unique in Danish administrative law, and similar provisions are probably unknown in the countries which Denmark normally compares itself with, albeit that the actual idea of utilizing agreements is well-known in Holland. The provision provoked considerable debate in Parliament when it was passed (1991). Some people were afraid to give the Minister so much power, or that the local authorities would lose their influence if the Minister and the organizations solved the problems themselves. On the other hand, the trade and industry organizations praised the provision. The idea of agreements was ideologically well suited to the Conservative government of that time (1982-1993).
It has since become apparent that no trade and industry organization is willing to enter into binding agreements of the type suggested in the provision. This is because it means that the organizations would have to bind themselves - as would the Minister - and that they would have to take action against members who failed to comply with the agreement. However, no Danish trade and industry organization is willing to police its own members. Section 10 of the Act is therefore redundant.
Nevertheless, that has not hindered the various Ministers that have been in power from entering into a number of agreements. In doing so the Minister promises to desist from political intervention if the other party to the agreement - typically a trade and industry organization - promises to work towards a specific environmental result. Some of these agreements work well in that they bring about the desired environmental result; for examples the reader is referred to Section 10.5 concerning the Danish Oil Industries’ Environmental Clean-up Association and Section 9.5.2 concerning the PVC agreement. However, compliance with the agreements cannot be forced through by the courts, and each of the parties can withdraw from the agreement at any time. The agreements are solely politically binding in character.
The most common form of environmental regulation, however, is still the issuance of rules. It is Danish tradition that this is preceded by thorough negotiation between the Ministry and the trade and industry organization(s) whose members are affected by the requirements. Moreover, such negotiations very often conclude with an "agreement" as to how the rules are to be formulated. It is inherent in such an "agreement" that the organization accepts the Minister’s rules - with the concessions that he has agreed to - and therefore will not subsequently oppose them.
4.4.6. The role of neighbours and the organizations in the administrative process:
The party that is the object of an administrative ruling has the right of complaint to a higher authority. That is how it is in Denmark, and in most other countries.
Under Danish administrative law the further doctrine had developed that others with a "significant individual interest" also have the right of complaint. However, that was of little practical significance until the 1970s, when environmental law developed as a separate discipline within administrative law.
Nevertheless, it is exactly in the case of neighbours to polluting enterprises that this doctrine was of decisive significance. In practice it was interpreted relatively favourably to the neighbours: Any party affected by an enterprise’s pollution was considered to have the right of complaint. Depending on the nature of the pollution, neighbours up to approx. 1,000 m from the enterprise are accorded the right of complaint.
Since the resources available to the authorities during the first 10 years after 1974 were only sufficient to process environmental consent applications from enterprises and complaints from neighbours, the latter came to markedly influence the direction of the environmental work. The things that neighbours attached most importance to were noise and odour - the more far-reaching pollution of the aquatic environment and the air were rarely noticed by neighbours.
In order to better balance complaint cases, Parliament from 1982 accorded the right of complaint to the major environmental organizations, namely the Danish Society for the Conservation of Nature and the Danish Anglers Federation. Later the right was also accorded to Greenpeace. This has had the desired effect, the environmental organizations having been instrumental in ensuring that a number of major environmental problems have been taken up or appealed to the national authorities.
By a ruling of 1 July 1994, the Eastern High Court ruled that Greenpeace
has the right to take legal proceedings in a case concerning a provision in the
Environmental Impact Assessment Directive (85/337). The court based its ruling on exactly
the fact that Greenpeace has the right of complaint under administrative law.