Judicial Review of Acts and Omissions under Art. 9(3) of the Aarhus Convention
Article 9(3) of the Aarhus Convention may seem a “leftover category” but turns out to be extremely important for effective protection of the environment. It signals that no interference to the environment should remain without effective judicial control. As environmental law becomes heavily integrated into other policies, more acts fall under the Art. 9(3) regime, including plans and programmes of high strategic importance for sustainable development. Despite it being arguably the most important of the three “pathways” contained in Art. 9, because of its broad material scope, as noted, the EU has not adopted a legislative instrument transposing the requirements of Art. 9(3) of the Convention in as far as the procedural laws of the Member States are concerned.
Only rarely do the EU environmental Directives provide access to justice requirements under Art. 9(3 of the Convention. One such example is the Environmental Liability Directive which provides in its Art. 13 that “The persons referred to in Article 12(1) shall have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority under this Directive. This Directive shall be without prejudice to any provisions of national law which regulate access to justice and those which require that administrative review procedures be exhausted prior to recourse to judicial proceedings.” In Folk (C-529/15), the CJEU ruled that persons with a fishing licence must be able to initiate review proceedings before a court or other competent public authority in accordance with Articles 12 and 13 of the Directive. The Commission has recently been actively pursuing the insertion of access to justice provisions in several legislative proposals. For example, Art. 32 of the Regulation on Deforestation-free products contains an access to justice provision mirroring the requirements of Art. 9(3) of the Convention. Nevertheless, the individual Directives may be applied directly even without explicit provisions on access to justice (see below).
Access to justice under Art. 9(3) of the Convention is not linked to public participation in decision-making (second pillar). This means that members of the public should be granted wide access to justice even if they are not allowed to participate in decision-making, which effectively results in the complaints being raised before the court for the very first time. Such a situation is not optimal, in particular if the courts can only cancel the flawed administrative decision.
Under Art. 9(3) of the Convention, Member States may require participation in decision-making as a condition for access to justice. However, such condition then establishes the right of members of public to participate in the decision making as confirmed by the CJEU in Protect Natur-, Arten- und Landschaftschutz Umweltorganisation (C-664/15): “Although Article 9(3) of the Aarhus Convention itself does not require a Member State to confer a right to participate, as a party to the procedure, in an administrative procedure for the grant of a permit such as the one at issue in the main action, that is not the case if, according to national law, obtaining that status is a condition that must necessarily be satisfied in order to bring an action seeking to contest the decision adopted at the end of that procedure. If national law establishes a link between the status of party to the administrative procedure and the right to bring judicial proceedings, the refusal of such status would deprive the right to bring proceedings of all useful effect, and even of its very substance, which would be contrary to Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter.”