Effective Remedies
The role of the national judge is not limited to determining whether a particular decision, act or omission was lawful but also covers the decision on effective remedies where the public authority’s conduct is found to have been contrary to EU law. This obliges the national courts to order any measure necessary to bring the practice in the Member States in line with EU legislation (see ClientEarth, C-404/13, or Stichting Natuur en Milieu and Others, C-165/09 to C-167/09).
In particular, the national court dealing with a dispute governed by EU environmental law must be in a position to order interim measures. See Križan (C-416/10), para. 109: “…the exercise of the right to bring an action provided for by Article 15a of [the then] Directive 96/61/EC would not make possible effective prevention of that pollution if it were impossible to prevent an installation which may have benefited from a permit awarded in infringement of that directive from continuing to function pending a definitive decision on the lawfulness of that permit. It follows that the guarantee of effectiveness of the right to bring an action provided for in that Article 15a requires that the members of the public concerned should have the right to ask the court or competent independent and impartial body to order interim measures such as to prevent that pollution, including, where necessary, by the temporary suspension of the disputed permit”.
Only in cases of minor procedural mistakes is there no obligation for effective remedies, provided it can be established that these mistakes did not impact the contested decision of the public authority (see Gemeinde Altrip and Others (C-72/12)).
When necessary, national courts must set aside any provisions contrary to EU law, even if these are of a legislative or regulatory nature. Only in exceptional circumstances can Member States keep legislation that conflicts with EU law in force or maintain the effects of, for example, a land-use plan that has not been assessed for its environmental impact according to the SEA Directive or the Habitats Directive. This is a significant exception from the general rule of EU law – and so far, the only one the CJEU has developed in this respect. However, such a procedure must only be temporary until a new one replaces the contested regulation. Moreover, it should be clear that the environmental risks of repealing the contested regulation in force are likely greater than if its effects are maintained temporarily (see Stadt Wiener Neustadt, C-348/15).
The exceptional possibility of maintaining the effects of measures contrary to EU law cannot be equated with the possibility of using derogation schemes under the EU directives. It is always necessary to assess whether, taking into account other reasons and alternative solutions available to the Member State concerned to safeguard a particular public interest, the exceptional maintenance of the effects of a measure is justified by the need to counter a threat to that public interest. In any event, such maintenance of effects may only apply for a period of time, which is strictly necessary to remedy the illegality (see Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C-411/17). Such an exceptional rule cannot even be considered a means of alleviating the legal uncertainty resulting from the unclear definitions of EU law, such as plans and programmes under the SEA Directive. See the opinion in Inter-Environnement Bruxelles and Others (C-671/16), paras 38–39: “Finally, Belgium emphasises the legal uncertainty resulting from the case law of the Court as this case law covers numerous general provisions which, since the expiry of the deadline for transposition of the SEA Directive, have been adopted without an environmental assessment. However, this uncertainty is mitigated at least in part by the 2016 judgment in Association France Nature Environnement, which allows national courts, under certain conditions, provisionally to maintain the effects of measures which were adopted in breach of the SEA Directive.”
It should be added that the exception does not appear to apply to defective legislation governing spatial planning but only to acts adopted based on such legislation. In other words, the national court, which is responsible for assessing whether those conditions have been met, may, for example, exceptionally not annul a spatial plan because of defects in the SEA process, but it cannot treat the law under which the spatial plan was adopted in the same way. That does not mean, however, that a concept whose effects must be preserved cannot take the form of legislation (see A. and Others, C-24/19).
The national court also should not put the EU requirements aside because of the difficulties related to the transposition and practical application for the Member States, which may easily occur in planning and construction-related areas - such as socio-economic situation, large-scale investments and structural changes, or technical difficulties. A Member State that encounters temporarily insuperable problems preventing it from complying with its obligations under European Union law may plead force majeure only for the period necessary to resolve those difficulties. See, for example, Commission v Italy (C-68/11), Commission v Bulgaria (C-488/15), or the opinion in Commission v Bulgaria (C-488/15), para. 96: “The air quality plans under Article 23(1) of Directive 2008/50 can also be adopted only on the basis of such a balance of interests. The high importance of ambient air quality for the protection of life and health leaves only very little room for consideration of other interests. It therefore also requires a strict review of the assessment made. However, there are undeniably overriding interests which may preclude certain appropriate measures.”
Finally, a national court dealing with a dispute governed by EU environmental law must be able to order interim measures and award compensation for pecuniary damages, provided the conditions for state liability are met [see Leth, C-420/11; and Ministre de la Transition écologique and Premier ministre (Responsabilité de l’État pour la pollution de l’air), C-61/21].
The requirement of effectiveness is also restricted by the protection of human rights. The national court, which has the task of applying EU law, sometimes has to balance a number of fundamental rights. In particular, deprivation of liberty must be a measure of last resort; the judicial protection then lies in compensating damages (see Deutsche Umwelthilfe, C-752/18</a>).