Access to Justice in Environmental Matters

There are specific requirements for access to justice in several EU environmental directives. As regards judicial review concerning access to information, Directive 2003/4/EC provides that in addition to the administrative review procedure, the applicants must have access to a review procedure before a court of law or another independent and impartial body established by law, “in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.” Furthermore, final decisions must be binding on the public authority holding the information; reasons must be stated in writing, at least where access to information is refused. These requirements implement Art. 9(1) of the Aarhus Convention. However, the Directive does not implement Art. 9(4) of the Convention that, inter alia, all judicial procedures, including those under Art. 9(1) must be fair, equitable, timely, and not prohibitively expensive, and all the court decisions must be publicly accessible.

There seem to be no significant issues reported concerning judicial review regarding environmental information; there is no corresponding case law of the CJEU and only limited case law of the Aarhus Convention Compliance Committee. Nevertheless, to determine the scope of the requirements, it is crucial to define what is environmental information and what is the public authority. In this respect, the CJEU case-law provides some guidance.

The concept of environmental information covers, for example:

• Information submitted within the framework of a national procedure for the authorisation or the extension of the authorisation of a plant protection product with a view to setting the maximum quantity of a pesticide, a component thereof or reaction products which may be present in food or beverage (Stichting Natuur en Milieu and Others, C-266/09).
• Data relating to the location of permanent sample plots for the statistical forest inventory (Roheline Kogukond and Others, C-234/22).
• ‘emissions into the environment’ covers the release into the environment of products or substances such as plant protection products or biocides and substances contained in those products, to the extent that that release is actual or foreseeable under normal or realistic conditions of use; ‘information on emissions into the environment’ covers information concerning the nature, composition, quantity, date and place of the ‘emissions into the environment’ of those products or substances, and data concerning the medium to long-term consequences of those emissions on the environment, in particular information relating to residues in the environment following application of the product in question and studies on the measurement of the substance’s drift during that application, whether the data comes from studies performed entirely or in part in the field, or from laboratory or translocation studies. (Bayer CropScience, C-442/14).
• In some cases, records of formal meetings of the executive branch of government of a Member State. The exception for “internal communications” applies to information that has not left the internal sphere of the institution at the date of the request. The exception for “proceedings before the institutions” applies only to the final stages of the decision-making process designated as proceedings subject to the obligation of confidentiality under national law and takes precedence over the first exception. (Right to Know, C-84/22).

The concept of public authority is also defined broadly. It covers

1. government or other public administration, including public advisory bodies, at national, regional or local level;
2. any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
3. any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).