Scope of the Review
The aspects that can be challenged even include technical criteria, which are important for planning or construction measures. For example, in C-723/17 (Craeynest and Others), the CJEU ruled that individuals must be able to challenge the air pollution monitoring system in their cities because EU law lays down detailed rules concerning the use and location of sampling points to measure air quality in zones and agglomerations comprising the territory of each Member State. The obligation to establish sampling points in such a way that they provide information on the most polluted locations and the obligation to establish at least a minimum number of sampling points are clear, precise, and unconditional. In this respect, the average values across a whole zone or city are insufficient as they may underestimate the exposure to polluted air.
The case law of the CJEU allows the grounds for annulment of an unlawful act to be limited to cases of infringement of the subjective right of the applicant - an individual (natural or legal person, but not an environmental NGO in the Art. 9(2) regime, which are deemed to have sufficient interest). See Commission v Germany (C-137/14), para. 32: “In those circumstances and with regard to the present complaint, it must be pointed out that, if the Member State in question can, pursuant to the abovementioned provisions of Directives 2011/92 and 2010/75, make the admissibility of actions brought by individuals against the decisions, acts or omissions which fall within the scope thereof subject to conditions such as the requirement of impairment of an individual public-law right, that Member State is also authorised to provide that the annulment of an administrative decision by the court having jurisdiction requires the infringement of an individual public-law right of the applicant.”
On the other hand, the national rules on judicial review cannot restrict access by the public concerned in that it limits the grounds for setting aside the contested decision to cases where there is a possibility that the contested decision would have been different without the procedural defect and the applicant’s ‘substantive position’ (which the applicant would have to prove) is affected. According to the CJEU, it is incompatible with the objective of broad access to judicial protection to require the applicant to prove that a procedural defect is causally linked to the outcome of the decision. See Case Land Nordrhein-Westfalen (C-535/18), para. 63: “…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 his or her right, guaranteed by Article 6 of that directive, to participate in the environmental decision-making process”.
The possibility of submitting the objections conditional on their prior assertion in the administrative proceedings is complicated but not excluded. Such a restriction must take the form of a procedural institute that is directed at exceptional cases. The CJEU’s findings preclude a blanket limitation on the scope of the substantive review but not a mechanism that would declare specific objections inadmissible (and therefore unsuitable for closer examination) unless, for example, they were raised without a rational basis. See Commission v Germany (C-137/14), paras 80–81: “As regards the argument concerning the efficiency of administrative procedures, although it is true that the fact of raising a plea in law for the first time in legal proceedings may, in certain cases, hinder the smooth running of that procedure, it is sufficient to recall that the very objective pursued by Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 is not only to ensure that the litigant has the broadest possible access to review by the courts but also to ensure that that review covers both the substantive and procedural legality of the contested decision in its entirety. None the less, the national legislature may lay down specific procedural rules, such as the inadmissibility of an argument submitted abusively or in bad faith, which constitute appropriate mechanisms for ensuring the efficiency of the legal proceedings.”