Judicial Review of Acts and Omissions under Art. 9(2) of the Aarhus Convention
Article 9(2) of the Aarhus Convention establishes the right of the public concerned to challenge decisions, acts and omissions that are subject to the public participation obligations contained in its Article 6.
The most significant difference between the Art. 9(2) and Art. 9(3) regimes is that in the former, the NGOs are deemed affected (see below). In the latter, the Member States may set further criteria for members of the public to access the court. Such condition may include prior participation in the decision-making procedure. In Stichting Varkens in Nood and Others (C-826/18), the CJEU ruled that in the Art. 9(2) regime, participation in the administrative procedure is not a suitable condition for the admissibility of the judicial proceedings brought by an NGO, even though that condition does not apply where such organisations cannot reasonably be criticised for not having participated in that procedure. However, Article 9(3) does not preclude the admissibility of judicial proceedings to which it refers from being made subject to the participation of the applicant in the procedure preparatory to the contested decision, unless the applicant cannot reasonably be criticised, in the light of the circumstances of the case, for not having intervened in that procedure.
According to Article 6 of the Convention, the public participation provisions apply to decisions on whether to permit the specific activities or projects listed in Annex I to the Convention, as well as other activities not listed in Annex I but which may have a significant effect on the environment.
Justice requirements arising from Article 9(2) of the Convention are expressly implemented by the EIA Directive, the Industrial Emissions Directive and the Seveso III Directive. However, these Directives do not cover all of the decisions, acts and omissions that may come within the scope of Article 9(2) of the Convention.
The CJEU confirmed that Article 6 and Article 9(2) of the Convention also cover certain decisions under the Habitats Directive even without any provisions on access to justice. Art. 6(3) of the Habitats Directive merely states that the authorities must obtain the opinion of the general public: “Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.” In Lesoochranárske zoskupenie II (C-243/15), the CJEU concluded that “the project of constructing an enclosure on a protected site, at issue in the main proceedings, is not among the activities listed in Annex I to the Aarhus Convention, the fact that the competent national authorities decided to initiate an authorisation procedure for that project pursuant to Article 6(3) of Directive 92/43 permits, however, the inference that those authorities considered it necessary to assess the significance of the project’s effect on the environment, within the meaning of Article 6(1)(b) of the Aarhus Convention. It is true that the latter provision states that the application of Article 6 of the Aarhus Convention is governed by the domestic law of the contracting party concerned. However, that statement must be understood as relating solely to the manner in which the public participation specified by Article 6 is carried out, and does not call into question the right to participate which an environmental organisation such as LZ derives from that article.”
The judicial review of decisions on projects which require assessment pursuant to Art. 6(3) of the Habitats Directive, therefore falls under Art. 9(2) regime of the Aarhus Convention. Plans and programmes which require the same assessment are reviewed under Art. 9(3) of the Convention as Art- 9(2) is reserved for decisions only.
Simultaneously, the CJEU is also making clear that certain decision-making does not fall under Art. 6 of the Convention. For example, in Hellfire Massy Residents Association (C-166/22), it ruled that public participation is not required when granting a derogation under Article 16 of the Habitats Directive. This is simply because the Habitats Directive does not provide for such a requirement. As a consequence, a permit which grants exception from protection of species can be challenged at the national court in the Art. 9(3) regime.