Conditions of Standing
The CJEU’s conclusions regarding direct effect of EU Directives can be simplified for the purposes of assessing the potential concern of individuals in the event of breaches of various EU: first, the purpose of the directive, which constitutes a specific protective regime in relation to the protection of human health or the environment, including the provision of natural resources for human use, is relevant. The specific circumstances of the case must always be examined.
The locus standi of individuals is based on sufficient interest or impairment of rights. See C-115/09, (Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen), para. 38: “With regard to the conditions for the admissibility of such actions, Article 10a of Directive 85/337 provides for two possibilities: the admissibility of an action may be conditional on ‘a sufficient interest in bringing the action’ or on the applicant alleging ‘the impairment of a right’, depending on which of those conditions is adopted in the national legislation.”
The CJEU recognises the rights of individuals based on the scope of the previous administrative procedure (decision challenged) if there is one. For example, as noted, under the EIA Directive, individuals possibly affected on their property may contest the development consent because the scope of the EIA is broad and includes the impact of the project on the property. In this respect, however, the rights of the individuals cannot be replaced by locus standi of the NGOs or specific institutions such as the ombudsperson.
The CJEU usually speaks of affected or directly affected individuals, in other cases of individuals and their organisations (associations). However, it is clear that it relies precisely on the definition in the Aarhus Convention. Still, it has never given a detailed definition of the public concerned, i.e., it has not defined which persons it considers potentially affected. The CJEU did respect, for example, a natural person as an affected person based on his residence (not primarily by right of ownership). See C-237/07 (Janecek), para. 13: “Mr Janecek lives on the Landshuter Allee on Munich’s central ring road, approximately 900 metres north of an air quality measuring station.” However, if the legislation is only generally aimed at protecting the environment, it is more challenging to demonstrate sufficient concern for individuals. In effect, this should strengthen the position of the NGOs that should easily access the courts.
In its 2017 Notice, the Commission states that “This is especially important in the field of nature protection, because in this field it may be difficult to argue that decisions, acts of omissions of public authorities can affect specific rights of individuals, such as those relating to human health.” An apt illustration is provided by the CJEU judgment in C-826/18 (Stichting Varkens in Nood and Others). The CJEU was dealing with a permit to build a new pen for approx. 1500 sows. The action at national level had been lodged by an NGO active in animal welfare and by a veterinarian, the latter living 20 km from the project’s place of application. The decision-making procedure included the EIA. According to the Court, who is part of the public concerned has to be indicated by Member States “reasonably and in accordance with the objective of giving the public concerned wide access to justice”, meaning access to justice under Art. 9(2) of the Aarhus Convention. The Court nevertheless concluded that only the first applicant (the NGO) could be considered a member of the public concerned.
The standing of the NGOs in the Art. 9(2) regime (EIA, Industrial Emissions Directive, Natura 2000 projects) cannot be made conditional on a requirement that depends on the rights of individuals or the relationship to the project/area concerned. As indicated, unlike natural or legal persons, environmental NGOs in this regime are deemed affected. See the opinion of Advocate General Sharpston in the Djurgården case (C-263/08), para. 43: “Such organisations therefore have an automatic right of access to justice. The presumption in favour of environmental organisations introduced by Article 1(2), when applied in conjunction with Article 10a, means that they benefit from a more advantageous regime than natural or legal persons who are not committed to promoting environmental protection.” Therefore, Member States cannot define what constitutes a sufficient interest of environmental NGOs, nor can they limit their locus standi in this regime to legal provisions establishing individual rights. Similarly, see C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen), para. 59: “…non-governmental organisations promoting environmental protection, as referred to in Article 1(2) of that directive, can derive from the last sentence of the third paragraph of Article 10a of Directive 85/337 a right to rely before the courts, in an action contesting a decision authorising projects ‘likely to have significant effects on the environment’ for the purposes of Article 1(1) of Directive 85/337, on the infringement of the rules of national law flowing from Article 6 of the Habitats Directive, even where, on the ground that the rules relied on protect only the interests of the general public and not the interests of individuals, national procedural law does not permit this.”