Access to Justice is a fundamental right, that forms an integral part of public international law, including human rights conventions, for instance the Universal Declaration of Human Rights (1).
Despite this, the implementation of access to justice in environmental matters, the so-called third pillar of the Aarhus Convention (2), in the EU, has been an arduous task. The Aarhus Convention lays down each party’s right to access to justice in environmental matters under Article 9 in three contexts, namely:
- review procedures with respect to information requests
- review procedures with respect to specific (project-type) decisions which are subject to public participation requirements, and
- challenges to breaches of environmental law in general (3).
The first context refers to the party’s right to environmental information under Article 4 of the Aarhus Convention, under the so-called first pillar, while the second ties in with the public participation requirements laid down in Articles 6,7 and 8 of the Aarhus Convention, under the so-called second pillar. Article 4 stipulates that Parties must oblige public authorities to make environmental information available within a specific timeframe and provides for express grounds for refusal – but these are to be interpreted restrictively, considering the public interest served by disclosure. Article 6 applies to decisions relating to activities which (a) are listed in annex I to the Convention; and (b) which, while not listed in annex I, may have a significant effect on the environment. Article 7 concerns the public’s participation in the preparation of plans, programmes and policies relating to the environment, imposing different requirements depending on whether a plan or programme is being prepared or a policy. Article 8 provides more general provisions on public participation for preparation of regulations and generally applicable legally binding normative instruments.
Despite adopting legislation in access to environmental information (4) and public participation (5), the EU was unable to find a compromise with the Member States and adopt legislation pertaining to the third pillar of the Convention. The Commission did however adopt several sectoral environmental directives, which include provisions on access to justice in national courts. Implementing these directives allows members of the public including NGOs to exercise their right to go to court (6). Further, the duty to ensure effective judicial protection in environmental matters applies to national courts as well (7).
Thus, it is the responsibility of the national judicial systems to ensure the correct application of access to justice in environmental matters, with individuals and legal entities subject to the conditions defined in their national law being able to request a national court to refer to the Court of Justice of the European Union (CJEU) to review the validity of EU acts under Article 267 TFEU (8). However, this has caused a fragmented application amongst the Member States, given that national practices and deeply embedded national laws do not always align with EU obligations (9).
After a failed proposal of the Access to Justice Directive in 2005, the Commission adopted a communication to improve access to justice in 2012 (10). Further, a second attempt at implementation had failed in 2014 when the Proposal was officially withdrawn. In 2017 the Aarhus Convention Compliance Committee recommended that either the CJEU modifies its case-law, amends the Aarhus Regulation or a new instrument is adopted (11). As a decision could not be reached at the Meeting of the Parties in 2017, the matter was to be re-visited in 2021. The European Commission published a roadmap and initiated a public consultation on access to justice in environmental matters in 2018, with the Council adopting a decision that requested conducting a study on the EU’s findings and potential outcomes. As a result, the EU published a study on the implementation of Pillar 3 of the Aarhus Convention (12) and adopted the Commission Notice on the Access to Justice in Environmental Matters (‘The Notice‘) in 2017 (13).
The Commission Notice on Access to Justice in Environmental Matters
The Notice is based on provisions of EU law and the case-law of the CJEU. It is issued as an interpretative communication on access to justice in environmental matters, bringing together all existing CJEU case-law at the time, drawing careful inferences from it to provide both clarity and a reference source for Member State actors, including national courts, the public (individuals and environmental NGOs) and economic operators in the field of access to justice in environmental matters. It should be noted that the scope of the Notice is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. Therefore, it does not address environmental litigation between private parties, nor does it concern the judicial review of acts of the EU institutions via the General Court, which is addressed by the Aarhus Regulation (14).
The Notice covers inter alia how the public can challenge decisions, acts or omissions of public authorities before a court of law or a similar body. Further it covers the following notions:
- Public Interests, Obligations and Rights Relevant to the Exercise of Judicial Protection
- Legal Standing
- Scope of Judicial Review
- Effective Remedies
- Costs
- Time limits, Timeliness and the Efficiency of Procedures
- Practical Information
With regard to Section 1, which governs ‘Public Interests, Obligations and Rights Relevant to the Exercise of Judicial protection’, the Notice outlines procedural and substantive rights of the public, which are environmental NGOs and individuals, in the context of inter alia the Habitats Directive, (15) and the Water Framework Directive (16).
Under Section 2, the Notice defines the bases for legal standing which are: requests for environmental information and entitlement to receive information, specific activities that are subject to public participation requirements and requests for action under environmental liability rules as well as other subject matter, such as national implementing legislation, general regulatory acts, plans and programmes and derogations. With regard to requests for information the Notice refers to the Access to Environmental Information Directive (17), while for activities that are subject to public participation requirements, reference is made to public consultation provisions found under: Article 24 of the Industrial Emissions Directive (18), Article 6(4) of the Environmental Impact Assessment Directive (19), and Article 15 of the Seveso III Directive (20). Concerning actions under environmental liability, the Notice refers to the Environmental Liability Directive (21).
Section 3 covers the scope of judicial review, where the Notice lists out the potential grounds of judicial review, as well as the specific activities that are subject to public participation requirements under Article 9(2) of the Aarhus Convention, which in turn is aimed at providing access to justice in relation to decisions, acts or omissions on specific activities covered by the public participation requirements of Article 6 of the Convention. Article 9(2) also provides that Member States have a margin of discretion in determing legal standing to individuals demonstrating an ‘impairment of a right’ or ‘a sufficient interest’. Further this section also reiterates that Member States must ensure an effective judicial review of the right to request environmental information that covers the relevant principles and rules of EU law.
Under Section 4 on effective remedies, the Notice clarifies the types of remedies available, namely: suspension, revocation or annulment of unlawful decisions or acts – including disapplication of legislation and regulatory acts, instructions requiring omitted measures to be adopted, making good unlawful harm caused by an unlawful decision and act or omission. This section also covers the conditions and requirements concerning interim measures.
Regarding Section 5 on costs, the Notice provides criteria for assessing whether costs are prohibitive, as well as legal aid.
Section 6 offers clarity with regard to requirement for judicial review procedures to be conducted in a timely manner under Article 9(4) of the Aarhus Convention.
Lastly, Section 7 covers the obligation of the contracting parties of the Aarhus Convention to inform the public about their access to justice rights, pursuant to Article 9 (5) of the Aarhus Convention.
However, since its publication in 2017, the CJEU witnessed an influx of preliminary references under Article 267 TFEU in the context of national proceedings from domestic courts, requesting clarity in the application of access to justice under EU secondary environmental law, inter alia: theWater Framework Directive, the Environmental Impact Assessment Directive and Directive 85/337 as amended (22).
For the Notice to carry on being fit-for-purpose, it needs to be updated with the latest relevant case law since its publication in 2017. For this reason, as well as to fulfill the objectives of the Green Deal Communication, particularly to improve national level access to justice in the Member States and to ensure that environmental legislation delivers efficiently, the Directorate-General for the Environment of the European Commission launched a study to update the Notice with relevant CJEU relevant case law since the Notice’s adoption in 2017, alongside a revision of the Interpretation of definitions of project categories of annex I and II of the Environmental Impact Assessment Directive. (‘the Guidance’) (23). The study was carried out by Spark Legal and Policy Consulting and COWI A/S, updating and revising the Notice and Guidance, respectively (24).
As a starting point, the CJEU case law adopted after the publication of the Notice, namely in the time between 28 April 2017 and 14 January 2021,(25) and contained in four updates published by the European Commission, was incorporated into the Notice.
A further number of relevant cases arisen since 14 January 2021 were incorporated into the Notice. These touch upon and offer further clarity on the interpretation of the notions and concepts addressed in the Notice, namely: Legal Standing, Intensity of Scrutiny/Standard of Review and Costs. Some of the most notable cases include: Protect Natur (26) Craeynest (27) and North East Pylon (28).
New Developments in Case Law in Access to Justice in Environmental Matters
Legal Standing
Protect Natur
The Protect Natur Case, centered around environmental protection and public participation rights. Protect Natur (Protect), an environmental NGO, sought to participate in the permit process for a project that involved extracting water from a river to produce artificial snow for a ski resort. The NGO argued that this project would likely have detrimental environmental impacts.
The Austrian authorities denied Protect ‘party’ status in the permit proceedings, essentially excluding them from having a say. Protect challenged this decision, arguing that EU environmental legislation, guaranteed them the right to be involved.
To resolve the issue, the CJEU clarified the relationship between Article 9(2) and 9(3) of the Aarhus Convention.
The key factor addressed in the case was whether the court determines that significant negative impacts can or cannot be excluded. In the event such impacts cannot be excluded, the procedure in question falls under the scope of Article 6(1)(b) of the Convention and thus Article 9(2), which provides access to justice regarding public participation rights. If it is assumed that significant negative impacts can be excluded, NGOs must have access to justice under Article 9(3) of the Aarhus Convention read in conjunction with Article 47 Charter of Fundamental Rights. While Member States have some discretion in establishing criteria that needs to be fulfilled to be granted standing according to their national laws, these may not be so stringent that it is practically impossible for NGOs to challenge acts and omissions within the meaning of Article 9(3). National courts must interpret the national procedural rules on standing to allow such challenges. The Court emphasised that where such an interpretation is not possible, national courts must disapply such rules on their own accord and not wait until they are set aside by legislative or other constitutional means, even in instances where the conflicting provision of national legislation was subsequently adopted.
Intensity of scrutiny/standard of review
Case law: Craeynest
The Craeynest case, centered around air pollution concerns in Brussels, Belgium. The plaintiffs, namely individuals along with the environmental NGO ClientEarth sued the Brussels Regional Government and the Brussels Institute for Environmental Management, for not following proper procedures, particularly regarding the placement of sampling points used to measure nitrogen dioxide levels. In their view, this in turn led to inaccurate assessments of air quality.
This case is instrumental as it built upon previous case-law such as Janecek and ClientEarth by expanding the arsenal of legal tools available for citizens to enforce provisions of the Ambient Air Quality Directive, clarifying that it includes the right to challenge enforcement of provisions on monitoring of air quality. In that case, the Court held that in principle the selection of sites for monitoring stations is reserved to the discretion of competent authorities based on evaluation of complex and technical elements. However, such discretion is limited by the objectives of the Directive to protect human health and the environment. The CJEU held that the discretion granted to national authorities or bodies, does not mean that their decisions are in any way exempted from judicial review, to assess whether the limits of their discretionary powers have been exceeded and whether the decision was based on sound scientific data provided as comprehensive documentation. Accordingly, the Court held that national courts should not limit their review to manifest errors but should be more intense, even if it regards complex technical assessments such as the selection of sampling sites. The point of departure of this case is the strong link that the Court found between the objectives of the Ambient Air Quality Directive and the EU obligations concerning environmental protection and the protection of public health in Article 3(3) TEU and Articles 191(1) and (2) TFEU.
Criteria for assessing whether costs are prohibitive
Case Law: North East Pylon
The North East Pylon case, arose from a proposed high-voltage power line interconnection between Northern Ireland and the Republic of Ireland, that was led by EirGrid, the Irish electric power transmission operator. Residents potentially impacted by the project, represented by the North East Pylon Pressure Campaign Ltd. and Ms. Maura Sheehy, contested the development consent procedure. The plaintiffs held that the initial stage of Ireland’s judicial review process, where permission is sought was excessively expensive, potentially deterring challenges to such projects.
The case, clarified the notion of ‘prohibitively expensive’; the Court of Justice considered whether Article 11(4) EIA Directive, which implements Article 9(2) in conjunction with Article 9(4) of the Aarhus Convention, applied to the challenge as a whole, or only to those arguments that relate to the public participation provisions of that Directive. The Court opted for a narrow interpretation and held that national courts are required to apply the not prohibitively expensive requirement only for those arguments in application for judicial review which relate to public participation obligations falling under Article 9(2) of the Aarhus Convention rather than to the costs relating to the challenge.
However, the Court still found that the costs relating to other arguments in the dispute (those relating to other provisions of EU or national law) should be covered by the non-prohibitively expensive rule in Articles 9(3) in conjunction with 9(4) of the Aarhus Convention, and that it is for national courts to give the interpretation of national procedural laws which is to the extent possible consistent with the objectives of those provisions.
Conclusions
The recent surge in CJEU case law related to access to justice in environmental matters marks a significant development for environmental protection in the EU. The cases discussed, Protect Natur, Craeynest, and North East Pylon, offer crucial clarifications on legal standing, intensity of judicial review, and costs, which are all notions covered by the Notice.
Protect Natur strengthens the ability of NGOs to challenge projects with potential environmental impacts, ensuring broader public participation in environmental decision-making processes.
Craeynest stresses a more rigorous standard of judicial review for air quality monitoring under the Ambient Air Quality Directive. Further it empowers citizens to hold authorities accountable for ensuring accurate assessments of environmental health risks.
North East Pylon clarifies the application of “prohibitively expensive” costs within the context of access to justice. While limiting the scope for certain challenges, the case still stresses the importance of affordable judicial review processes.
These developments highlight the EU’s commitment to effective access to justice in environmental matters for the public. However, challenges remain at present. While several access to justice provisions have been incorporated into secondary EU law, a cohesive legal instrument implementing the third pillar of the Aarhus Convention does not appear to be on the horizon. Thus, the Notice requires continuous updates to reflect the evolving case law if it is to continue helping facilitate the achievement of a uniform application of these principles in the EU, which in turn is imperative for ensuring consistent access to justice throughout the Member States.
Overall, the recent case law paves the way for a more robust and inclusive system of environmental governance in the EU. By empowering citizens and NGOs to exercise their rights pertaining to access to justice in environmental matters, the EU can further take strides towards achieving its Green Deal objectives.
(1) Art 8 Universal Declaration of Human Rights (1948) “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Art. 6 (1) European Convention on Human Rights “… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”
(2) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, (1998) United Nations Economic Commission for Europe (UNECE), Aarhus Convention, available at: https://unece.org/DAM/env/pp/documents/cep43e.pdf (last accessed 12 April 2024)
(3) Article 9, Aarhus Convention
(4) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ L 41, 14.2.2003, p. 26–32, available at:https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32003L0004 (last accessed 13 April 2024)
(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 environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC – Statement by the Commission OJ L 156, 25.6.2003, p. 17–25 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32003L0035; Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment OJ L 175, 5.7.1985, p. 40–48 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31985L0337; Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment OJ L 197, 21.7.2001, p. 30–37 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32001L0042
(6) For example, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26, 28.1.2012, p. 1-21, Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage OJ L 143, 30.4.2004, p. 56-75 or Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L 334, 17.12.2010, p. 17-119. Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC, OJ L 197, 24.7.2012, p. 1-37. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ L 41, 14.2.2003, p. 26-32.
(7) Ibid.
(8) eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020DC0643
(9) A. Ryall, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland, (2009), Oxford, available at: https://europarl.primo.exlibrisgroup.com/discovery/fulldisplay?docid=alma991001139746104886&context=L&vid=32EPA_INST:32EPA_V1&lang=en&search_scope=MyInst_and_CI&adaptor=Local%20Search%20Engine&query=sub,exact,Social%20security%20–%20Law%20and%20legislation,AND, last accessed 29 March 2024, p.257.
(10) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness COM/2012/095 final CELEX 52012DC0095.
(11) Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32 (part II) concerning compliance by the European Union1 Adopted by the Compliance Committee on 17 March 2017.
(12) Notice from European Union Institutions, Bodies, Offices and Agencies, Commission Notice on access to justice in environmental matters OJ 18.8.2017 C275/1, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0818(02) (last accessed 29 March 2024).
(13) Notice from European Union Institutions, Bodies, Offices and Agencies, Commission Notice on access to justice in environmental matters OJ 18.8.2017 C275/1, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0818(02) (last accessed 29 March 2024).
(14) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies OJ L 264, 25.9.2006, p. 13–19, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32006R1367 (last accessed 12 April 2024).
(15) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992, pp. 7–50 available at: https://environment.ec.europa.eu/topics/nature-and-biodiversity/habitats-directive_en. (last accessed 12 April 2024).
(16) Directive 2000/60/EC of the European Parliament and of the Council of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, available at: https://eur-lex.europa.eu/resource.html?uri=cellar:5c835afb-2ec6-4577-bdf8-756d3d694eeb.0004.02/DOC_1&format=PDF (last accessed 12 April 2024).
(17) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32003L0004 (last accessed 12 April 2024) OJ L 41, 14.2.2003, p. 26–32
(18) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) OJ L 334, 17.12.2010, p. 17, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02010L0075-20110106 (last accessed 12 April 2024).
(19) Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26, 28.1.2012, p. 1–21 available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011L0092 (last accessed 12 April 2024).
(20) Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC Text with EEA relevance, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012L0018 (last accessed 12 April 2024).
(21) Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage OJ L 143, 30.4.2004, p. 56–75available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32004L0035 (last accessed 12 April 2024).
(22) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment,OJ L 175, 5.7.1985, p. 40–48, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31985L0337 (last accessed 12 April 2024).
(23) Directorate-General for Environment , Interpretation of definitions of project categories of annex I and II of the EIA Directive (2015), available at: https://op.europa.eu/en/publication-detail/-/publication/5b397b1b-de12-11e6-ad7c-01aa75ed71a1/language-en (last accessed 12 April 2024).
(24) Spark Legal and Policy Consulting, New Study on Access to Justice and the EIA Directive (2023), available at: https://www.sparklegalpolicy.eu/news/new-study-on-access-to-justice-and-the-eia-directive/ (last accessed 12 April 2024).
(25) Update 1 available at: https://circabc.europa.eu/ui/group/3b48eff1-b955-423f-9086-0d85ad1c5879/library/6385b41a-364e-43bc-a64f-e95d7d37e42a/details?download=true; Update 2 available at: https://circabc.europa.eu/ui/group/3b48eff1-b955-423f-9086-0d85ad1c5879/library/3a5bdb66-b7ee-4845-9cb7-2fda7db299a7/details?download=true; Update 3 available at: https://circabc.europa.eu/ui/group/3b48eff1-b955-423f-9086-0d85ad1c5879/library/a704571f-72b5-49b9-afea-b835140d6c28/details?download=true Update 4 available at: https://circabc.europa.eu/ui/group/3b48eff1-b955-423f-9086-0d85ad1c5879/library/3fe35cff-4f4c-4618-9179-ba256d54b7ff/details?download=true
(26) C-723/17 Craeynest and others
(27) C-664/15 Protect Natur
(28) C-470/16 North East Pylon
