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Access to justice in environmental matters is of particular interest to lawyers because this subject doesn’t primarily raise technical or scientific questions that fall outside our special field of competence. Therefore it receives much more attention than most other areas of environmental law.

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What are we talking about when we discuss access to justice in environmental matters? There may be private disputes or criminal prosecution but – currently – the main focus lies on administrative law. Certain activities require a permit or may be subject to prohibitions because they may interfere with the environment. In this context public authorities are charged to protect the environment by applying environmental law. Under the rule of law it is quite obvious that the operator of such an activity must have access to a judicial review of the decisions on a permit or prohibitions, at least as far as these decisions impose burdens on him. But can third parties also request a review of these decisions? Are they allowed to initiate judicial control of the application of environmental law by public authorities? And what conditions can be imposed on access to justice in such situations? This is what lawyers are talking about, when they discuss access to justice in environmental matters. EU law and the Convention of Aarhus are central to this debate.

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Article 19(1) of the Treaty on European Union: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

Article 47(1) of the CFREU: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

Natural or legal persons directly concerned must be in a position to require the competent authorities to respect directly applicable provisions of EU law, if necessary by bringing an action before the competent courts (Cases C-237/07 Janecek, para 39, as well as C-165/09, C-166/09 and C-167/09 Stichting Natuur en Milieu, para 100).

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Direct effect is a well known concept: Rules must be sufficiently clear and unconditional. Direct concern has not been exhaustively defined. The term appears for the first time in the Janecek case and has been repeated in Stichting. There seems to be an assumption that environmental rules that are relevant for the health of plaintiffs are of direct concern. But what about nature conservation? Or very indirect health effects?

In the absence of specific EU rules on this matter MS enjoy autonomy when they implement these concepts. However they must respect the principles of effectiveness and equivalence, that is the exercise of rights under EU law must neither be excessively difficult nor more difficult than the exercise of comparable right under internal law.

Internal rules respecting the principle of equivalence may pass the test of the principle of effectiveness but nevertheless impose substantial barriers for the invocation of EU environmental law. These are different in each MS. As we will see, the Aarhus Convention helps to weaken such barriers.

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Under EU law this has been implemented in particular for two specific directives:

Dir. 2011/92 on Environmental Impact Assessment (EIA, formerly Dir. 85/337, amendments are currently under discussion: COM(2012) 628 final, 2012/0297(COD))

Directive 2010/75 on industrial emissions (integrated pollution prevention and control, formerly Dir. 96/61)

Almost all - if not all - projects under the IPPC directive also fall under the EIA though this does not necessarily work the other way around.

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It is not clear whether only persons concerned can rely on the direct effect of EU law. Under German administrative law a person must claim to be impaired in a right. The Court has never set up a similar requirement but it has mentioned that persons concerned or directly concerned may rely on EU law.

Aarhus provides us with a definition of the public concerned. This group is entitled to rely on rights with regard to projects that require public participation. Can this be transferred to the concept of persons directly concerned?

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Article 9 (2) allows Member States to set as a condition for a review that the applicant can claim a sufficient interest or the impairment of rights. There is no case yet that specifically raised this condition. But German law has linked it to the next issue

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The invocation of EU env. law does not entail an automatic general review of the substantive or procedural legality. Each rule invoked needs to be assessed separately. The review under Art. 9 (2) is much broader.

Text: « review procedure to challenge the substantive or procedural legality of decisions »

Substantive: Does the project comply with the limit values foreseen for the installation? Are emergency plans in place as required by the Seveso II directive?

Procedural: Has there been an EIA? Did the public concerned have sufficient opportunity to submit observations? Was sufficient information available? Was there sufficient reasoning?

Discretion can be reviewed as far as it is legally bound.

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The case concerned hydrological measures linked to a tunnel project for power lines.

Apparently, in Sweden consent for such works is granted by a court. Therefore, it was disputed whether Art. 9 (2) opens a right to a review by another court. The ECJ clarified that the decision to grant consent is the object of the review procedure. Therefore both must be distinct.

Consequently it was necessary to assess whether Sweden had been too restrictive in recognising NGOs. In principle it is up to the MS to define the conditions an NGO needs to fulfill. But this power is limited by the purpose of Aarhus.

Under Swedish rules more than 2000 members were required. Therefore, only two NGOs were recognised.

The ECJ found that to be incompatible with the wide access to justice foreseen under Aarhus and with the effectiveness of the right to review. Local NGOs should also be able to require a review.

Nevertheless, MS may require a certain minimum membership to make sure that the NGO actually exists.

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This case concerns a power station project. An NGO requested the review of the permit. The national court had to determine the scope of the review. Is it limited to so-called subjective rights or will all applicable provisions need to be reviewed?

E. g. the IPPC directive requires that the best available technologies are employed. This requirement is considered to serve only the general interest in Germany. Must it nevertheless be part of the review? What about nature conservation? There are no subjective individual rights with regard to nature conservation.

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The distinction between individuals and NGOs results from the wording of Art. 9 (2) ofAarhus and the transposing EU law. NGOs shall be deemed to have sufficient interestsor rights. In contrast, this is not said with regard to individuals. Consequently, recognised NGOs can contribute significantly to the enforcement of environmental law.

It is unclear whether the review under Art. 9 (2) is limited to EU environmentle law orwhether it also includes internal law. The text of Aarhus and of the transposinglegislation imply the review of internal rules. However, the ECJ linked the transposinglegislation to the invocation of EU law though, strictly speaking, this was not necessaryto interpret the rules in question. A reference on this point would be welcome.

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The first question concerns an issue specific to the EIA Directive. It only applies to procedures initiated after the Directive became applicable. The reason was that pending procedures should not need to comply with new, burdensome requirements. However, the introduction of a review procedure is not directly burdensome for pending authorisation procedures. Therefore, there is no need to restrict the application of the review procedure.

The second question results from the German transposition where review is only foreseen if there was no EIA or no assessment of the necessity of an EIA. EU law provides no basis for this limitation.

The last two points are the most interesting. The AG strictly follows the wording on the review. All possible legal defects are included in the review. Moreover, we should assume that any member of the public concerned for an EIA enjoys a right that the EIA is conducted correctly. Therefore they can at least claim an impairment of this right and in the context of the court case they could then, according to the AG, require a review of all other relevant substantive and procedural rules.

However, the consequences of any breach are still unclear.

A judgment should be rendered before the end of the year.

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It seems that in Belgium the regions authorise certain project by way of legislation, e. g. important train tracks or airports. The EIA directive excludes such authorisations from its scope since the legislative procedure provides for similar guarantees as the directive. However, but the Court requires that the objectives are actually achieved. This jurisprudence was developed before the Aarhus became part of the EIA directive. Will it also apply to the new judicial review? And what follows for the scope of review?

The ECJ later received a second set of references from the Constitutional Court that shows that this court will review compliance with EU law.

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Dr. Leth tries to obtain damages because her family home has lost value after theextension of the Vienna Airport. Her claim is based on the absence of an EIA.

While the Court had mentioned the possibility of damages for failure to conduct an EIA it was not clear whether such damages actually are possible.

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Krizan concerns a landfill authorisation under the IPPC directive. It mainly deals withpublic participation. However, as side issues it also raised questions with regard tointerim relief and the relationship between judicial review and the protection ofproperty.

There was already jurisprudence that effective remedies under EU law includeinjunctions (in particular the Factortame case).

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Legal representation is very expensive in the UK. Therefore the question arose how courts should appreciate whether proceedings are prohibitively expensive. Edwards does not provide a simple solution but requires a complex balancing of the interests concerned with the objective to avoid that actions in environmental cases are discouraged by costs. To specific criteria of UK law were explicitely rejected:

Firstly, it is irrelevant whether the risk of costs had actually deterred the plaintiff from continuing the action and secondly, the necessary assessment cannot be different in second instance courts or higher courts.

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This provision applies to all other potential environmental disputes. It has not been transposed for the MS by EU law. There is a transposition for the EU level in Regulation 1367/2006. Recognised NGOs can require an administrative of environmental decisions from the Commission. The decision on this request can subsequently be subject to judicial review by the EU courts.

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LZ is an environmental NGO and brought an action against its exclusion from an administrative procedure dealing with hunting permits for the brown bear. This is a species protected under the Habitats Directive. The question was whether NGO could rely on Art. 9 (3) of Aarhus to bring the action.

The Aarhus Convention is a mixed agreement, that is an agreement concluded in parallel by the EU and by the MS. Therefore, it is necessary to distinguish the area of responsibility of the EU, that is EU law resulting from the Convention, from the responsibility of the MS. Generally, provisions of a mixed agreement fall within the sphere of the EU if there are EU measures transposing the provision. This did not happen with regard to Art. 9 (3). The Commission had submitted a proposal but it was not adopted.

However, the Court holds that provisions of mixed agreements that fall into areas in large measure covered by EU law are also part of EU law. As the dispute concerned the application oft the Habitats Directive this was the case. While for other disputes where Art. 9 (3) is raised this might not be case the Court considered that it was necessary to ensure a uniform application of the provision. Therefore it assumed the power to interpret the provision as part of EU law.

The actual interpretation was quite easy: It is obvious that the application of Art. 9 (3) depends on conditions, namely the setting of criteria plaintiffs need to fulfil. Therefore the provision has not direct effect.

But at least as far as EU environmental law is concerned MS must ensure access to justice and respect the principles of effectiveness and equivalence. Art. 9 (3) has a similar objective and therefore must be taken into account in the interpretation of internal rules on access to justice.

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The scope of the review procedure under Regulation 1367/2006 is the object of a pending case. The regulation limits the review to acts of individual scope. However, it is quite likely that Art. 9 (3) of Aarhus also applies to acts of general application. This is supported by Boxus because the review procedure applies to legislative permits where the legislative procedure did not achieve the objectives of the EIA. Moreover, in the recent Deutsche Umwelthilfe case the Court found that access to environmental information applies to information from legislative procedures where the legislative act is of a lower rank than a law.

International law obligations of the EU generally rank higher than secondary EU legislation. Therefore the regulation cannot restrict the effects of the Aarhus Convention. And of course, the obligation to take Aarhus into account also applies to the interpretation of EU law.

However, the finding in Lesochranske Zoskupenje that Art. 9 (3) has no direct effect might be turned against the judgment of the General Court. International law obligations can only invalidate secondary legislation if they have direct effect. In the absence of such effect the requirements resulting from international law would be unclear.

Nevertheless, on closer examination a distinction could be made between the elements where Art. 9 (3) requires further transposition and the acts subject to the review under this provision. While it may be necessary to define the plaintiffs that enjoy access to the review procedure it may be possible to identify the acts subject to review by way of interpretation. Moreover, the missing definition of the potential plaintiffs can be found in the regulation.

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Other Directives providing for NGO contributions:

- Directive 2003/35, referring to Directives 75/442 (Art. 7, waste management plans, to be read as reference to Dir. 2006/12) 91/157, 91/676, 96/62 [Air Quality],

- Directive 2012/18 – Seveso III (Art. 3 no. 17, Art. 15)

-Directive 2013/30 – Oil rigs

Enforcement could be limited to the rules on public participation, to all rules in the instrument in question or extended to all rules that need to be taken into account in the decision requiring public participation.

It seems that German Courts took this step: BVerwG of 5 September 2013, 7 C 21.12 (Clean Air Plan Darmstadt, the Air Quality Directive is mentioned in Directive2003/35)

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