Direct effect of EU Directives
Later on, in its judgment in C-237/07 (Janecek), the CJEU held that individuals directly affected must be able to request the drawing up of an action plan to reduce air pollution, irrespective of the form in which such a plan is adopted. In C-404/13 (ClientEarth), the CJEU reached the same conclusion in relation to the Ambient Air Quality Directive.
The conclusions regarding air quality directives have been used in cases concerning water management: In C-664/15 (Protect Natur-, Arten- und Landschaftschutz Umweltorganisation), the CJEU concluded that environmental associations must be able to challenge before a court a decision to approve a project which does not require the EIA (and therefore the access to justice does not fall under the Art. 9(2) of the Aarhus Convention and detailed requirements of the EIA Directive) but which may be contrary to an obligation under the Water Framework Directive: “By its first question, the referring court asks, in essence, whether Article 4 of Directive 2000/60 or that directive as a whole must be interpreted as meaning that, under Article 9(3) of the Aarhus Convention, an environmental organisation must be able to contest before a court a decision on a permit that is governed exclusively by the legislation governing water-related matters in respect of a project that is not subject to an environmental impact assessment under Directive 2011/92.” More specifically, the case concerned a permit for a project of abstracting water from the river to produce snow for a ski resort, under EU law. The judgment leads to a simple conclusion: Where the case concerns matters governed by EU law, Member States cannot prevent environmental NGOs from accessing the courts, even if, for example, they exclude their participation in permit procedures. Moreover, environmental NGOs can seek the direct effect of EU directives. Therefore, access to justice in such cases does fall under the Art. 9(3) of the Aarhus Convention and the Directive is directly applicable even though it does not provide any requirements on access to justice.
In C-535/18 (Land Nordrhein-Westfalen), also concerning the Water Framework Directive, the CJEU held that the members of the public concerned by a project must be able to assert, before the competent national courts, that there has been a breach of the requirements to prevent the deterioration of bodies of water; EU law permits Member States to provide that when a procedural defect vitiating the decision approving a project does not alter the meaning of that decision, an application for annulment of that decision is admissible only if the irregularity at issue has denied the claimant their right to participate in the environmental decision-making process. The claimants in the main proceedings were subject to expropriation or had a domestic well within the area covered by the project for their private water supply. The CJEU concluded they could be affected by the decision, though not entirely: While the protection of groundwater as a resource for human use is of their concern, the state of bodies of surface water does not seem to affect them.
In case C-197/18 (Wasserleitungsverband Nördliches Burgenland and Others), the CJEU concluded that the Nitrates Directive is also directly applicable on the basis of the construction of the section of the motorway/federal road comprising three to four lanes over a distance of approximately 3.7 kilometres. The challenged decision authorised the developer to discharge rainwater running off the road surfaces into three bodies of surface water or the groundwater. In that regard, the decision contained a number of provisions in annexes intended to ensure that waters are protected, with respect to both the discharge of rainwater into surface waters and its infiltration into the groundwater. The CJEU ruled that the affected natural and legal persons, such as the applicants in the main proceedings (incl. municipality and a water distribution association), should be able to require the competent national authorities to amend an existing action programme or adopt additional measures or reinforced actions: “…natural and legal persons, such as the applicants in the main proceedings, should be in a position to require the competent national authorities to amend an existing action programme or adopt additional measures or reinforced actions, provided for in Article 5(5) of that directive, as long as the nitrate levels in the groundwaters exceed or could exceed, in the absence of such measures, 50 mg/l at one or more measuring points within the meaning of Article 5(6) of that directive“.