The Aarhus Convention and access to justice for environmental NGOs before courts in the EU: good news with a bitter aftertaste

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1 The Aarhus Convention and access to justice for environmental NGOs before courts in the EU: good news with BY Mariolina Eliantonio 1 1 Mariolina Eliantonio (1978) is an Assistant Professor in European Administrative Law at the Faculty of Law of Maastricht University. Her field of expertise is the influence of European law on the administrative law of the Member States and, especially, on national procedural administrative law. She teaches European institutional and administrative law and is the academic director of the Bachelor European Law School English Language Track.

2 Effectius The right to an effective legal remedy is a generally accepted principle of modern legal systems and is enshrined in national constitutions as well as international treaties, such as in Article (Art.) 6 and 13 of the European Convention on Human Rights and Fundamental Freedoms, and is now laid down in Art. 47 of the Charter of Fundamental Rights of the European Union (EU). With regard specifically to the challenge of environmental measures, one must also take the provisions of the Aarhus Convention on access to justice into account. The Aarhus Convention was adopted by the European Community on 17 February 2005 by Decision 2005/370/EC 2 and it provides, in Art. 9(2), that the contracting parties should ensure that members of the public concerned having a sufficient interest or, alternatively, maintaining impairment of a right 3, have access to a review procedure to challenge the substantive and procedural legality of decisions concerning activities subject to the public participation requirements of Art. 6 of the Convention itself. Furthermore, Art. 9(3) provides for the obligation for the parties to provide for a wide access of the members of the public to review procedures to challenge the legality of decisions affecting the environment. The implementation of the Aarhus Convention in the Member States legal orders through EU law has been at the core of two recent rulings of the European Court of Justice (ECJ) 4 which will be discussed below. The Aarhus Convention and its (non-) implementation in the Member States legal orders With a view to aligning Member States legislation with Art. 9(2) of the Convention, the EU has, amongst others, enacted Directive 2003/35/EC. 5 This Directive has inserted Art. 2 Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L 124/1. 3 in case where the administrative procedural law of a party requires this as a precondition 4 With the Treaty of Lisbon, the European Court of Justice (ECJ) has been renamed into Court of Justice (CJ), with the Court of Justice of the European Union (CJEU) as overarching institution ; See art. 13 Treaty on the European Union (TEU). This article will nevertheless refer to ECJ when it speaks about activities before 1 December 2009, i.e. the adoption of the Treaty of Lisbon and the consequent name changes. 5 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the [2]

3 The Aarhus Convention and access to justice for environmental NGOs before courts in the EU: good news with 10a into the text of the Environmental Impact Assessment (EIA) Directive 6 ; an article which requires Member States to provide access to a review procedure wherein qualified members of the public concerned can challenge the substantive or procedural legality of decisions that are subject to the participation requirements mandated by the EIA Directive. According to Art. 1(2) of the EIA, public concerned means the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Art. 2(2); for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest. Art. 10a, however, only affects procedural rules which are to be applied in a claim concerning an allegation that the provisions of the EIA Directive have been violated. A more general provision on access to justice in environmental matters is currently lacking. The Commission has presented a Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters 7, which would give effect to Art. 9(3) of the Convention but the Directive has to date not yet been adopted. The good news: the brown bear case 8 and the Trianel case 9 In two recent cases, the ECJ has had the chance to clarify the meaning of Art. 9 of the Aarhus Convention. In both cases, the ECJ held that a broad access to justice for environmental NGOs before national courts is necessary in order to achieve the objectives set by the Convention itself. In the brown bear case, the ECJ answered in the negative the question posed by the referring court as to whether, given the lack of transposition, Art. 9(3) of the Convention environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2005] OJ L 156/17. 6 Directive 85/337/EEC in the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 as amended by Directive 97/11/EC [1997] OJ L73/5 and Directive 2003/35/EC [2003] OJ L156/17. 7 Proposal for a directive of the European Parliament and of the Council on access to justice in environmental matters, COM(2003) 624 final. 8 Case C-240/09, Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky nyr. 9 Case C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen ev v. Bezirksregierung Arnsberg (intervening party: Trianel Kohlekraftwerk Lünen GmbH & Co. KG), nyr. [3]

4 Effectius could be relied upon directly by an environmental NGO before a national court. However, at the same time, the ECJ held national courts had a duty to interpret their national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Art. 9(3) of the Convention and hence in such a way as to enable an environmental protection organisation to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law. The Trianel case concerned Paragraph 2(1) of the so-called Umwelt- Rechtsbehelfsgesetz, a law which was taken in implementation of the access to justice requirements mandated by Art. 10a of the EIA Directive. According to this provision, nongovernmental organisations promoting environmental protection are granted standing before a court, in an action contesting a decision authorizing projects likely to have significant effects on the environment, only where they can show the potential infringement of a rule which confers individual rights. However, in the proceedings before the national court, the NGO was not maintaining the impairment of an individual right as it is required to do in order to have standing. Instead, it was seeking to challenge an administrative measure in so far as it authorised activities which, while not violating an individual s subjective rights, were likely to harm the environment as such. As the Advocate General Sharpston put it, [I]n that sense, it may be said that the environmental NGO [was] seeking to act on behalf of the environment itself. 10 The ECJ considered that Art. 10a must be interpreted in a way which is consistent with the objective of the provision and of Art. 9(2) of the Aarhus Convention, namely to provide a wide access to justice for the NGOs wishing to challenge the measures which they deem to be likely to have a significant impact on the environment. That meant that environmental protection organisations were entitled, pursuant to Art. 10a of the EIA Directive, to have access to a review procedure to challenge the substantive or procedural legality of decisions, acts or omissions covered by that Article. This possibility has to be guaranteed, according to the Court, even where the rules relied on protect only the interests of the general public and not the interests of individuals. 10 Opinion of AG Sharpston in case C-115/09, Bund für Umwelt und Naturschutz Deutschland, para. 1. [4]

5 The Aarhus Convention and access to justice for environmental NGOs before courts in the EU: good news with The bitter aftertaste: access to court for environmental NGOs before the EU courts Both of the rulings discussed above significantly strengthen the possibility of access for environmental NGOs to challenge decisions which may have a significant impact on the environment. The Trianel ruling shows the standing rules such as those applicable in Germany are not allowed under Art. 10a: this ruling may have consequences for Member States adopting a similar approach to standing. Also, one may foresee a spill-over effect outside the sphere of application of the EIA Directive, or, possibly, outside the environmental field or the field of application of EU law. Where environmental NGOs claim that environmental rules other than those subject to the participatory requirements mandated by the EIA Directive have been violated, national courts will be able to take Art. 9(3) of the Aarhus Convention and the brown bear ruling into account. While the ECJ unsurprisingly denied the direct effect of this provision, this ruling does nevertheless charge national courts with the task to interpret national standing rules in a way that ensures the respect of the objectives set by the Aarhus Convention. Good news for environmental NGOs. However, a final, and, unfortunately, a rather cynical, note should be devoted to what is perhaps the most striking feature of the outcome of these rulings: while the ECJ appears to be so critical towards national standing rules which restrict access to justice for environmental NGOs, it does not show by far the same attitude when it comes to access to justice before the EU courts. As is well known, the Court s interpretation of its own standing rules, that is of the requirement of individual concern provided by Art. 263(4) Treaty on the Functioning of the European Union (TFEU) is very restrictive, in application of the Plaumann test from The application of this test to the claims of environmental NGOs has meant that these 11 This case established that [P]ersons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. Case 25/62, Plaumann & Co v. Commission [1963] ECR 95. [5]

6 Effectius organisations have in every case been refused standing to challenge EU institutions decisions, exempting essentially these decisions from judicial scrutiny. 12 To apply the provisions of the Aarhus Convention to EU institutions and bodies, the European Community adopted Regulation No. 1367/2006, which allows environmental NGOs, under certain conditions, to initiate proceedings before the European Courts against acts of EU institutions and bodies. 13 One of the conditions is that environmental NGOs can only instigate proceedings in accordance with the relevant provisions of the Treaty, namely Art. 263(4) TFEU. 14 However, also after the approval of the Aarhus Convention and even after the entering into force of Regulation No. 1367/2006, the Court has refused to change the interpretation of individual concern established in Plaumann, with the result that environmental NGOs have consistently been refused access to the European courts. 15 The Compliance Committee of the Aarhus Convention has established in April 2011 that the standing requirements provided by Art. 263(4) TFEU, as interpreted by the ECJ, are too strict to meet the criteria of the Convention. 16 Furthermore, the Committee stated that it was convinced that if the examined jurisprudence of the EU Courts on access to justice were to continue, unless fully compensated for by adequate administrative review procedures, the Party concerned [i.e. the EU] would fail to comply with article 9, paragraph 3, of the Convention See Case T-585/93, Stichting Greenpeace Council (Greenpeace International) and Others v. Commission [1995] ECR II Regulation (EC) 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Åarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L 264/ Regulation (EC) No. 1367/2006, Art. 12(1). 15 Case T-236/04 and T-241/04, European Environmental Bureau (EEB) and Stichting Natuur en Milieu v. Commission [2005] ECR II-04945; Case T-91/07, WWF-UK Ltd. V. Council [2008] ECR II- 81, confirmed in appeal in case C-355/08 P, WWF-UK v. Council [2009] ECR I-73; Case T-37/04, Regiao autónoma dos Acores v. Council [2008] ECR II-103, confirmed in appeal in case C-444/08, Regiao autónoma dos Acores v. Council [2009] ECR I Report of the Compliance Committee of the Aarhus Convention, Findings and recommendations with regard to communication ACCC/C/2008/32 (Part I) concerning compliance by the European Union, April 2011, Geneva, available at: 32/ece.mp.pp.c add.1.edited.adv%20copy.pdf, para Ibid., para. 88. [6]

7 The Aarhus Convention and access to justice for environmental NGOs before courts in the EU: good news with In view of the Union s own failure to comply with Art. 9 of the Aarhus Convention and to grant adequate standing to environmental NGOs in front of the European courts, it can only be hoped that, also thanks to the warning issued by the Compliance Committee, the CJ will soon start to behave according to the practice what you preach motto. Mariolina Eliantonio Published as part of the Effectius Newsletter, Issue 14, (2011) [7]