Access to Justice in Environmental Matters

The specific requirements of Art. 11 of the 2011 EIA Directive and Art. 25 of the Industrial Emissions Directive cover the judicial review of the decisions concerning large projects, in particular the land-use permit, the building permit, and the operation permit. These requirements are comprehensive and almost word-for-word copied from the Aarhus Convention and, therefore, very similar. For example, Art. 11 of the EIA Directive states:

1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a) having a sufficient interest, or alternatively; (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition; have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.
3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient for the purpose of point (a) of paragraph 1 of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of point (b) of paragraph 1 of this Article.
4. The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
5. In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.”

On the other hand, the CJEU case-law suggests that a new environmental impact assessment is not required for the renewal of an existing permit in the absence of any works or interventions involving alterations to the physical aspect of the site (Pro-Braine, C-121/11). Therefore, a permit for such renewal does not fall under Art. 6 of the Convention (and its review under Art. 9(2) – but instead Art. 9(3)). Similarly, the CJEU ruled that extension of the duration of operation of a landfill under the Industrial Emissions Directive is not ‘substantial change’ to the installation because the mere extension of the duration of waste disposal at a landfill changes neither the functioning nor the nature of the landfill (FCC Ceská republika, C-43/21) Therefore, again, a permit for such renewal does not fall under Art. 6 of the Convention (and its review under Art. 9(2) – but instead Art. 9(3)).

The CJEU further confirmed that the derogatory regime of the EIA Directive is not pardoned from judicial review. That means that Member States must allow for access to justice even when a large project is permitted by legislative act. See Boxus (C-128/09), paras 53-55: “However, Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 would lose all effectiveness if the mere fact that a project is adopted by a legislative act which does not fulfil the conditions set out in paragraph 37 of the present judgment were to make it immune to any review procedure for challenging its substantive or procedural legality within the meaning of those provisions. The requirements flowing from Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 presuppose in this regard that, when a project falling within the ambit of Article 6 of the Aarhus Convention or of Directive 85/337 is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive and set out in paragraph 37 of the present judgment must be amenable to review, under the national procedural rules, by a court of law or an independent and impartial body established by law. If no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous paragraph and, as the case may be, drawing the necessary conclusions by disapplying that legislative act.”