Access to Justice in Environmental Matters

Reflections on access to justice without specific provisions of EU law bring us to the crucial question of which acts can be brought before national courts. The basis for legal standing varies according to the subject matter of the decision, act, or omission sought to be challenged. It is possible to distinguish between decisions, acts, and omissions concerning:

1. requests for environmental information and entitlement to receive information,
2. specific activities that are subject to public participation requirements,
3. requests for action under environmental liability rules,
4. other subject matter, such as national implementing legislation, general regulatory acts, plans and programmes, and derogations.

For the last category, legal standing depends on general principles governing legal standing as interpreted by the CJEU.

The acts disputed do not have to be addressed to the public concerned. For example, in C-873/19 (Deutsche Umwelthilfe), the CJEU concluded that an environmental NGO must be able to challenge before a national court an administrative decision granting or amending EC-type approval which may be contrary to EU rules on motor vehicles concerning emissions. This suggests that environmental NGOs might be able to challenge various decisions or acts relating to technical requirements on building and building materials. Some of these requirements have been adopted to harmonise common markets, but they also serve to fight and adapt to climate change under the EU environmental policy.

Many pieces of EU environmental legislation require that plans and programmes be adopted to achieve envisaged environmental objectives. These documents can serve as a means of managing interventions over time (e.g., river basin management plans) or setting out actions to respond to specific problems (e.g., air quality plans to lower excessive levels of air pollution). In addition to requiring certain kinds of plans and programmes to be adopted, EU environmental legislation also sets requirements for the environmental assessment of plans and programmes (e.g., land-use plans), which can significantly impact the environment. Nevertheless, the SEA Directive (2001/42/EC) does not contain provisions comparable to, for example, Art. 11 of the EIA Directive.

It is, however, clear that even the plans and programmes required by EU law or national law (such as land-use plans) should be subject to judicial review as they fall within the scope of Art. 9(3) of the Aarhus Convention, similarly to other plans and programmes related to the environment.

See the ACCC cases in Belgium, ACCC/C/2005/11, and Bulgaria, ACCC/C/2011/58. In the latter, the Committee explicitly commented on the reviewability of the SEA conclusions: “In other cases, the SEA procedure forms a part of the process for the preparation of a plan relating to the environment according to article 7 of the Convention. The possibility of members of the public to challenge the SEA statement should then be ensured in accordance with article 9, paragraph 3, of the Convention.” Also, see the CJEU judgments in the case Terre Wallonne and Inter-Environnement Wallonie (C-105/09 and C-110/09); and Inter-Environnement Wallonie and Terre wallonne (C-41/11): “…courts before which actions are brought in that regard must adopt, on the basis of their national law, measures to suspend or annul the ‘plan’ or ‘programme’ adopted in breach of the obligation to carry out an environmental assessment…“. If the spatial planning documents implement the requirements of EU law, access to justice can possibly be based on the direct effect of EU directives.

Several EU directives that expressly provide access to justice contain provisions relevant to the scope of judicial review. However, most environmental secondary legislation lacks such provisions, and to understand the appropriate coverage, it is necessary to refer to the case law of the CJEU. The CJEU has repeatedly indicated that the public concerned may, in principle, object to any defect in the contested decision.

See Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen (C-115/09), para. 37, concerning the EIA Directive: “The first paragraph of Article 10a of Directive 85/337 provides that the decisions, acts or omissions referred to in that article must be actionable before a court of law through a review procedure ‘to challenge [their] substantive or procedural legality’, without in any way limiting the pleas that could be put forward in support of such an action.” And Gemeinde Altrip and Others (C-72/12), para. 48: “Moreover, given that one of the objectives of that directive is, in particular, to put in place procedural guarantees to ensure the public is better informed of, and more able to participate in, environmental impact assessments relating to public and private projects likely to have a significant effect on the environment, it is particularly important to ascertain whether the procedural rules governing that area have been complied with. Therefore, as a matter of principle, in accordance with the aim of giving the public concerned wide access to justice, that public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive.”