Conditions of Standing
This does not mean, however, that Member States cannot set other conditions for the active legitimation of the environmental NGOs. These can, in principle, be divided into two types, the first concerning their registration and the second relating to their activities. The CJEU has confirmed the Member States may restrict access to judicial protection only to the NGOs that promote environmental protection (Djurgarden, C-263/08: “While it is true that Article 10a of Directive 85/337, by its reference to Article 1(2) thereof, leaves to national legislatures the task of determining the conditions which may be required in order for a non-governmental organisation which promotes environmental protection to have a right of appeal under the conditions set out above, the national rules thus established must, first, ensure ‘wide access to justice’ and, second, render effective the provisions of Directive 85/337 on judicial remedies. Accordingly, those national rules must not be liable to nullify Community provisions which provide that parties who have a sufficient interest to challenge a project and those whose rights it impairs, which include environmental protection associations, are to be entitled to bring actions before the competent courts. From that point of view, a national law may require that such an association, which intends to challenge a project covered by Directive 85/337 through legal proceedings, has as its object the protection of nature and the environment.”).
The concept of environment in EU law is nevertheless not limited to the natural environment, which is relevant for defining the scope of the objections that environmental NGOs may raise. Therefore, the condition that the NGO promotes environmental protection should be interpreted broadly. See opinion of Advocate General Kokott in C-266/09 (Stichting Natuur en Milieu and Others), para. 57: “However, the notion of environment in Union law is not always restricted to the natural environment. For example, the assessment of environment effects includes the effects on population and material assets, including the architectural and archaeological heritage. The Water Framework Directive also provides for environmental quality standards for artificial bodies of water. And finally, as the Commission submits, the old Environmental Information Directive regarded information on the state of fauna and flora as environmental information, regardless of whether this concerned the natural fauna and flora environment.”
Other conditions may require a certain size of the NGO (number of members). However, the number of members laid down cannot contradict the objectives of EU law and make access to judicial protection for environmental associations impossible. Similarly, a requirement of previous activities (history of an NGO) and other criteria may not in itself conflict with the EU regulation of public participation or with the Aarhus Convention. However, it does not correspond to broad public access. In this respect, the length of the required prior activity, other conditions for public participation, and the situation in the specific Member State are decisive. Foreign or international environmental NGOs that express an interest in the case also fall within the definition of Art. 2(4) and (5) of the Aarhus Convention.
Additional criteria may relate to the independence or non-profit character of the NGO or its separate legal personality under national law. Alternatively, they may involve an NGO that demonstrates that it has a sound financial basis for pursuing the objective of promoting environmental protection. The establishment of such criteria for the participation of environmental associations in environmental protection should be preceded at least by an analysis of the actual exercise of the participation rights of the public concerned at the level of judicial review to see how many environmental associations will be affected by the restrictive regulation and to what extent access to judicial protection will be maintained.
The conclusions are applicable even to cases under the Art. 9(3) regime of the Aarhus Convention (other violations of environmental law, including, for example, various plans and programmes), which, however, provides a more expansive manoeuvring space to the national legislator. It is wider as it refers to members of the public, where they meet the criteria, if any, laid down in its national law. It does not exclude a condition that a relationship between the NGO and the matter/area concerned must exist. The conditions laid down, either separately or in combination, must still ensure (or not prevent) broad access to judicial protection.
The difference between Art. 9(2) and Art. 9(3) of the Aarhus Convention may cause paradoxical situations: For example, an NGO which challenges a regional land-use plan fails to prove its sufficient interest but can afterward participate in the decision-making concerning the EIA projects regulated by the plan and challenge the decisions as it is deemed interested. On the other hand, a local NGO may challenge the land-use plan but fail to meet the criteria to participate in the decision-making and access the court.
Municipalities are not members of the public concerned because the Aarhus Convention considers them primarily part of the state. See the minutes of the 49th meeting of the Aarhus Convention Compliance Committee, para. 52: “While under the domestic law of Parties municipalities might exercise their right to self-government and other subjective rights, even before courts, in the context of the Convention and international law in general, a “public authority” under article 2, paragraph 2 (a), of the Convention was considered an emanation of the Party concerned. Hence, an allegation brought to the Committee by the communicant would give rise to an internal dispute between authorities of a Party concerned, which was not within the remit of the Committee. The Committee therefore found that the communicant was not a member of the public for the purposes of article 15 of the Convention...”.
Municipalities may, however, be affected in their rights by violations of EU directives and thus have access to judicial protection, including through the direct effect of the directives. This conclusion is based on the judgment already mentioned in C-197/18 (Wasserleitungsverband Nördliches Burgenland and Others), in which the CJEU held that the individuals concerned must be able to seek redress before the national courts under the Nitrates Directive. The applicants in the original proceedings were a water distribution association, an individual owner of a private fountain, and the municipality of Zillingdorf, which operates a municipal fountain. The CJEU, therefore, made a positive contribution in terms of enhancing access to justice before national courts, mainly by ensuring the standing rights of the individual applicants through the enrichment of the concept of those directly concerned with the element of the legitimate use of the protected environmental good.