Facts

The appellant, represented by the State Council of the Canton of Fribourg, and the Directorate for Spatial Development, Infrastructure, Mobility and Environment (RIMU) of the Canton of Fribourg, lodged an appeal against the judgment of the Fribourg Cantonal Court, Administrative Court of Appeal II dated 16 July 2024. This judgment had allowed an appeal by neighbour [A.] against the decision of the Directorate dated 28 September 2023 and referred the matter back to the Directorate for further fact-finding.

The facts may be summarised as follows

  • Operation of the livestock facility: [B.] operates an agricultural holding with 30 cows and 24 calves in the municipality of [U.] . His neighbour [A.] complained in May 2020 about disturbing odour nuisance and contacted the municipality, which involved the cantonal Office for the Environment (AfU).
  • Initial administrative measures: The AfU found that the livestock facility complied with the minimum distances to the residential zone and that no excessive odour nuisance was to be expected. It nevertheless issued instructions to keep doors closed at all times, to remove urine promptly and to keep the outdoor area clean.
  • Further proceedings: As [A.] continued to feel disturbed, the AfU forwarded the file to the Directorate, which, by decision dated 28 September 2023, dismissed the request for a finding of excessive odour nuisance and for the imposition of additional or stricter emission limits.
  • Cantonal court judgment: [A.] appealed against this decision. The Fribourg Cantonal Court allowed the appeal and referred the matter back to the Directorate for further clarification.
  • Federal Supreme Court appeal: The Canton of Fribourg, acting through the State Council, appealed to the Federal Supreme Court in public law matters against the cantonal court’s judgment and sought its annulment and confirmation of the Directorate’s original decision. The respondent [A.] requested that the appeal not be entertained, while the Federal Office for the Environment (FOEN) considered the judgment to be in conformity with federal law.

Considerations

The Federal Supreme Court first examined its jurisdiction and the admissibility of the appeal ex officio. The appeal concerns a cantonal final-instance decision in the field of federal environmental law, for which an appeal in public law matters is generally admissible (Art. 82 lit. a, Art. 86 para. 1 lit. d and para. 2 FSCA). However, the question arose as to whether the Canton of Fribourg, as the appellant, was entitled to bring the appeal.

Under Art. 89 para. 1 FSCA, a person who participated in the proceedings before the lower court, is particularly affected or has a legitimate interest in the annulment or amendment of the decision is entitled to appeal. For public bodies such as cantons, this provision is interpreted restrictively. They may rely on Art. 89 para. 1 FSCA only if they are affected in a manner similar to private individuals or in a qualified manner in relation to protected sovereign interests. The case law is particularly cautious in intra-organisational conflicts, i.e. where organs of the same public body are involved, as here between the cantonal government and the cantonal administrative court.

The Canton of Fribourg relied on the second variant of the provision and argued that it was affected in a qualified manner in relation to protected sovereign interests, since the Directorate would be obliged by the judgment to apply federal law in a manner that it considered contrary to federal law. This would not only affect the present case but also several…