Access to Justice in Environmental Matters

The EIA Directive did not contain specific provisions on access to justice until 2003, following the adoption of the Aarhus Convention. Nevertheless, as early as 1996 the CJEU confirmed the principle of access to justice for “concerned” individuals to invoke provisions of the EIA Directive in national courts (in Kraaijeveld, C-72/95). Therefore, the Directives under the Art. 9(2) regime are directly applicable (see more below).

As noted, it is the ‘public concerned’ that benefits from the public participation provisions of Article 6(2) of the Aarhus Convention and by extension the access to justice provisions of Article 9(2) and the corresponding EU secondary legislation. This is defined in Art. 2(5) of the Convention as ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making. Namely, it refers to both individuals and Environmental NGOs. For individuals, the precondition of needing to show the ‘impairment of a right’ or a sufficient interest in order to obtain legal standing to bring a challenge concerning a specific activity has to be interpreted and applied in the light of the obligation to grant a wide access to justice in environmental matters. Rights which may be impaired include procedural rights of the individual stemming from EU environmental law (e.g. public participation rights) as well as substantive rights conferred on the individual (e.g. protection of human health, property rights).

As regards Environmental NGOs (ENGOs), they enjoy legal standing de lege to challenge decisions, acts or omissions by public authorities on specific activities which are subject to public participation requirements under EU law. This extra guarantee to some environmental associations is justified by the fact that they act in the general public interest with the aim of protecting the environment. The Member States have the discretion to impose certain conditions on the legal standing of an environmental association in order to avoid actio popularis. However, the criteria that environmental NGOs have to fulfil to qualify for legal standing de lege must not be excessively difficult to satisfy and should take into account the interests of small and local NGOs. In addition to this, it must be ensured that the conditions to obtain legal standing de lege shall not be less favourable for foreign NGOs than for domestic ones.

Moreover, in Djurgarden (C-263/08), the CJEU dealt with the fact that in some countries a lack of participation in the administrative procedure for adopting a decision may be an issue in the admissibility of a later legal challenge to that decision by clarifying that Member States may not restrict legal standing to challenge a decision of a public authority to those members of the public concerned who participated in the preceding administrative procedure to adopt that decision.

As regards individuals, the CJEU case-law suggests which individuals are affected by large projects and the corresponding EIA procedure. In particular, in Gruber (C-570/13), the CJEU ruled that the owner of a neighbouring house (a neighbour) is such person: “Having regard to that provision’s terms, it appears that persons falling within the concept of ‘neighbour’ may be part of the ‘public concerned’, within the meaning of Article 1(2) of Directive 2011/92. Those ‘neighbours’ can bring an action only against a consent granted for the construction and operation of a facility. Since they are not parties to the procedure examining whether an EIA need be carried out, they cannot challenge that decision in the context of an action against the development consent decision. Thus, by restricting the right to bring an action against decisions examining whether an EIA need be carried out in relation to a project only to the project applicants, the participating authorities, the ombudsman for the environment (Umweltanwalt) and the municipality concerned, the UVP-G 2000 deprives a large number of individuals from exercising that right to bring an action, including, in particular, ‘neighbours’ who may meet the conditions laid down in Article 11(1) of Directive 2011/92. That near general exclusion restricts the scope of Article 11(1) and is accordingly incompatible with Directive 2011/92.”