Assistant Professor in European Environmental Law Scope of the review in the environmental judicial proceedings-Tensions between effective judicial protection and national procedural autonomy Vicky Karageorgou Assistant Professor in European Environmental Law Panteion University of Social and Political Sciences, Athens Greece E-mail: vkaragiorgou@yahoo.gr

Introductory Remarks Environmental interests are, to a large extent, diffuse, fragmented and collective. (Ebbesson, 2002) Access to justice for environmental matters is regarded as the “ultimum refugium” for ensuring the effective implementation of the environmental legislation. The following main issues arise: a) who is entitled to take legal actions b) what can be challenged and for which reasons c) the means for taking legal action and d) the remedies provided The adoption of the Aarhus Convention is the cornerstone for the increasing recognition of ensuring access to justice for environmental matters.

Aarhus Convention and access to justice-1 Article 9 the Aarhus Convention sets the framework for reasonable conditions for access to justice for environmental matters (3 pillars within the third pillar) Article 9 par.1 provides review procedures for refusals and inadequate handling of requests for environmental information by public authorities Article 9 par.2 provides that members of the “public concerned” having a sufficient interest or rights impaired must have access to a review procedure before a court of law to challenge the procedural and substantive legality of any decision, act or omission subject to the provisions on public participation Article 9 par.3 provides access to justice about all kinds acts and omissions relating to environmental law and not covered by the previous two categories Article 9 par.4 sets minimum standards applicable to access to justice procedures, namely the provision of adequate and effective remedies, the fairness, the equity and the timeliness of the relevant procedures, the not prohibitively expensive costs.

Aarhus Convention and access to justice-3 Issues relating to the scope of the review under Article 9 para.2 - what can be challenged? Any decision, act or omission relating to public participation and decision-making under Article 6, namely decisions relating to the authorization of industrial installations and infrastructure projects. Article 6 refers also to activities that have significant environmental effects under national law. -what do the courts review? - the scope of the review is not limited to the impairment of participation rights. Courts can review the substantive and procedural legality of the contested decision. The scope of review determines the permissible pleas of the petitioners Substantive legality: Violation of substantive rules (permit conditions which do meet the applicable technical standards or the environmental quality standards)-There is a certain level of ambiguity concerning the definition of procedural legality Procedural Legality: Violation of procedural rules (limiting public participation in a public hearing, shortening deadlines of public consultation, restricted access to file material)

Aarhus Convention and access to justice-4 Issues relating to the scope of the review under Article 9 para.3 a) What can be challenged ? Any act or omission by a private persons and public authorities that contravene national laws relating to the environment b) What do the Courts review? There is no determination concerning the scope of the review (”members of the public should have access to administrative or judicial proceedings”)

ACCC Findings concerning the scope of the review-1 A. Findings as to what can be contested : 1) A town planning permit can be considered as a decision regarding the permission of a specific activity under Article 6, only when it is sufficiently precise. In such a case, the access to justice standards of Article 9 para. 2 have to be applied. (ACCC/C/2005/11-Belgium) 2) EIA Screening decisions should be subject to judicial review under Article 9 par.2, since the EIA screening process and the relevant criteria serve also as the determination required under Article 6 para.1 of the Convention (ACCC/C/2010/45 and ACCC/C/2011/60-United Kingdom, para.84; ACCC/C/2010/50-Chech Republic, para.82) 3) Any act adopted further to a hybrid law procedure authorizing a specific activity should be subject to judicial review under 9 para. 2 of the Aarhus Convention, so that the members of the public concerned can challenge the substantive or procedural legality adopted under a hybrid law procedures (ACCC/C/2011/61-United Kingdom, paras. 60-61)

ACCC Findings concerning the scope of the review-2 A. Findings as to what can be contested 4. The final decision of the proposed activities should be subject to judicial review within the framework of the legal action taken by the public concerned, including NGOs, a) NGOs should have the possibility to challenge the legality of the final permitting decision and not only of the initial EIA Statements as well as the construction and exploitation permit issued without a prior EIA procedure. A national provision which does not entail such a right is not in compliance with Article 9 para. 2 of the Convention (ACCC/C/2011/58-Bulgaria, paras.79,80). b)The relevant national provision which sets the exercise of the public participation rights during the during the EIA procedure or other similar procedures as a precondition for challenging the final decision limits the right of taking legal action (ACCC/C/2010/50-Chech Republic, para. 78).

ACCC Findings concerning the scope of the review-2 A. Findings as to what can be contested 5. Decisions, acts or omissions concerning permitting waste treatment installations must be subject to judicial review procedures which meet the criteria of Article 9 para. 2 of the Aarhus Convention (ACCC/C/2007/22-France, para. 28). 6.SEA statements for the “small-scale” Detailed Spatial Plans which can substitute an EIA Decision have to be subject to a judicial review procedure under Article 9 para. 2 of the Convention on the grounds that they have the legal function of a decision under Article 6 (ACCC/C/2011/58, Bulgaria, paras.71, 81). Remark: Same line of reasoning with other Committee Findings (ACCC/C/2005/11-Belgium) that place emphasis on the function of the relevant decision instead of its type.

ACCC Findings concerning the scope of the review-4 B. Findings concerning the range of permissible pleas and the extent of judicial review 1) The pleas that can be put forward by NGOs should not be limited only to the infringement of provisions aiming at protecting individual rights and not including those “serving the environment”, as there is no basis for such a limitation in the Convention (ACCC/C/2008/31-Germany, ECE/MP.PP/C1/2014/08, para. 78-80). 2.Τhe possibility of the national courts to evaluate whether the alleged infringed provision could be of any importance for the merits of the case is not in general contrary to Article 9 para.2 of the Convention). The requirement, though, of possible importance of the provision for the contested decision can raise doubts [concerning its compatibility with Article 9 para.2] because it is considered by the court when deliberating about the admissibility of the case and not in the full judicial review procedure. The Committee also found that the german legal system does not provide clarity concerning whether the violation of a procedural right under Article 6 is regarded as a fundamental error of procedure (ACCC/C/2008/31-Germany, paras. 83 87, 88,90).

ACCC Findings concerning the scope of the review-5 B. Findings concerning the range of permissible pleas and the extent of judicial review 3. A certain line of reasoning adopted by the Federal Administrative Court of Austria in a concrete case (Automobile Testing Center Voitberg), which precluded certain members of the “public concerned” (e.g. neighbours) from invoking environmental provisions that go beyond the impairment of the right doctrine, can raise issues of non-compliance with Article 9 para. 2, if it is generally adopted by the Austrian Courts (ACCC/C/2010/48-Austria, para. 66) 4. The provision of a national legal system, which, in contrast to the individuals, limits the right of the NGOs to challenge only the procedural legality of the contested decisions, is not in compliance with Article 9 para. 2 of the Convention. (ACCC/C/2010/50-Chech Republic, para 81).

ACCC Findings concerning the scope of the review-6 5. Doubts were expressed as regards to whether the legal system of England and Wales meets the standards required by the Aarhus Convention as regards the review of the substantive legality of the decisions, acts and omissions in the field of application of Article 9 para. 2. This is due to the fact that although certain aspects of substantive legality can be challengeable, issues can be raised due to the very high threshold required for the review of certain aspects (e.g. Wednesbury test concerning irrationality as a ground for review) [ACCC/C/C/2008/33-United Kingdom, paras. 125-126]. Assessment of the Commission’s findings: a) The Commission adopted a quite clear and precise approach as to what can be contested b) It adopted though a more cautious approach concerning the range of the permissible pleas and the extent and the depth of the review, taking implicitly the different procedural systems and traditions into account.

The implementation of Article 9 para. 2 in the EU legal order-1 Incorporation of Article 9 para. 2 and 4 concerning access to justice at MS level Insertion of access to justice provisions through the Directive 2003/35/EC [’’Public Participation Directive’’] in the following Directives A) EIA Directive-Article 11 B) IED Directive (former IPPC) -Article 25 C) Seveso III Directive-Article 23 The relevant provision [Article 13] of the Environmental Liability Directive (2004/35/EC) and those [Article 23] of the Ship Recycling Regulation constitute partial incorporation of Article 9 paras. 3 and 4 of the Convention

The implementation of Article 9 para. 2 in the EU legal order-2 The relevant provision of the Public Participation Directive (2003/35/EC), which was incorporated in the EIA, IED and SEVESO III Directives, leaves certain room to the MS for determining the standing criteria by providing two options concerning the admissibility of actions (impairment of a right or a sufficient interest) and the scope of the judicial review procedure (e.g. the substantive and procedural legality of any decision, act or omission subject to public participation provisions). The principle of national procedural autonomy is thus applied, when MS set the relevant procedural rules governing judicial review procedures for environmental-related cases falling in the scope of the above-mentioned Directives. Limits to the application of the principle :a) the principles of equivalence and effectiveness and b) the objective of “giving wide access to justice to the public concerned”

The relevant CJEU jurisprudence on the scope of the review-1 A. CJEU Ruling on Case C-115/09 (Trianel Case): The Court clarified the scope of the review (e.g as regards the in legal actions initiated by NGOs meeting the criteria of the national law: a)Article 10a of the EIA Directive cannot limit in any way the pleas that can be put forward by the “public concerned” in support of an action challenging the substantive or procedural legality of decisions, acts or omissions covered by that Article (para. 37). b) NGOs meeting the requirements of the national legislation, must not be refused to put forward pleas relating to the infringement of provisions arising from EU Law, which are aimed at the protecting the environment and not the legal interests of the individuals, in an action against a project approval within the scope of the EIA Directive. (para. 50).

The relevant CJEU jurisprudence on the scope of the review-2 Remarks : 1) It can be inferred from the Court’s Ruling that the restriction of the right of an environmental NGO to challenge a decision within the scope of the EIA Directive on the grounds of not demonstrating the impairment of a substantive individual right which relates both to the admissibility of the action (locus standi) and its well-foundedness, is not compatible with Article 10a of the EIA Directive (See also the Opinion of the AG C. Villalon on Case C-72/12 [Alptrip], para.80). 2) The Ruling is mainly relevant for national procedural systems which are governed by the impairment of the right doctrine. It is critical that AG Sharpston dismissed the argument of the German Government relating to the intensity of the judicial review that is attributed to the impairment of the right doctrine by claiming that such a system is of little help if it is totally inaccessible for certain categories of actions (Opinion of AG Sharpston on Case C-115/09, para.77) .

The relevant CJEU jurisprudence on the scope of the review-3 B. CJEU Ruling on Case C-72/12 (Alptrip): In this case the Court clarified the range of the permissible arguments (“scope of review”) which can be put forward by the natural and legal persons (but not NGOs) for challenging the procedural legality of an EIA Decision and lead to its annulment. a)In the same line of reasoning with that in Trianel Ruling, the Court held that Article 10a of the EIA Directive precludes MS when transposing the relevant provision from limiting its applicability solely to cases in which the legality of a decision is challenged on the ground that no EIA was carried out, while not extending to cases in which such an EIA was carried out but was irregular.(para.36). b) The Court had also to decide on the compatibility of the conditions set in the relevant provision of the german procedural law on which the permissibility of a plea concerning a procedural error in the EIA Decision is permissible.

The relevant CJEU jurisprudence on the scope of the review-4 1. As regards the causality condition for the purposes of assessing the significance of the procedural errors, the Court ruled that it is exceptionally permissible under very strict conditions and for procedural errors of minor importance. The Court ruled that it is permissible for the national legislator to depart from the general rule of not limiting the pleas relating to the procedural errors that can be invoked, if it is established that it is conceivable, in view of the circumstances of the present case that the contested decision would not have been different without the procedural error (para. 51). The application of the causality condition is further permissible only when the burden of the proof for its applicability is shifted from the applicant to the Court and the competent authorities. (para. 53). 2. The Court did not give a ruling as regards the compatibility of the second national criterion requiring an effect on a substantive legal position of the applicant due to the lack of details provided by the national Court.

The relevant CJEU jurisprudence on the scope of the review-5 Remarks: a) The Court acknowledges significant limitations in the procedural autonomy justified by the need to ensure the effective application of the procedural guarantees for the proper function of the EIA and the exercise of the relevant rights, which seems to be of primary importance among other legitimate objectives. It also recognizes a limited margin of discretion to the national legislator to balance between the importance of procedural rights for environmental protection and the need for legal certainty and administrative effectiveness. b)The Opinion of the AG Villalon was also critical for clarifying that: 1) the requirement of an impairment of a substantive right cannot be accepted as a restriction of the scope of the review but only as an admissibility criterion 2) the causality condition should not be applied for certain kind of errors (those relating to access to information and public participation) perceived as fundamental errors.

The relevant CJEU jurisprudence on the scope of the review-6 C. CJEU Ruling on Case C-137/14 (Commission v. Germany): The Court clarified further the scope of the review in environmental-related cases in procedural systems governed by the “impairment of the right” doctrine. a) The Court ruled that the relevant national provision which limits the consideration of the review of the legality of decisions falling into the scope of the EIA Directive only to the provisions which confer rights to individuals and presupposes the existence of such a provision for the recognition of a right to the annulment of the contested decision is compatible with Article 11 of the 2011/92 (paras. 32-34). Different opinion of the AG Wathelet: The limitation of the right to obtain the annulment of a measure only in cases of an infringement of an individual right has the effect of limiting the substantive pleas that can be put forward by the applicants and is a further restriction for access to justice.

The relevant CJEU jurisprudence on the scope of the review-7 b) On the basis of the reasoning in the Alptrip Case, the Court ruled that the relevant national provision (Art.4 UmwRG) which enshrines the right for the annulment of the contested decision without additional requirements and is applied only in cases where an EIA was not carried out, contradicts Article 11 of the EIA Directive, because EU Law precludes MS from limiting the review of the legality only in certain cases (para.49). c) The Court ruled also on the compatibility of the additional conditions that have to be satisfied for the review of the legality on the grounds of other procedural defects (e.g. when the EIA was carried out but was irregular) with Article 11 of the EIA Directive. Causality Condition: Ιn line with the reasoning in the Alptrip Ruling, the Court held that the relevant provision is incompatible with Article 11 for reasons relating to the principle of effectiveness and the objective of ensuring wide access to justice to the extent that it places the burden of proof on the applicant to demonstrate the causal link(paras. 56,62).

The relevant CJEU jurisprudence on the scope of the review-8 Requirement of the impairment of a substantive right: In line with its already expressed thesis the Court ruled that the relevant provision requiring an effect of the substantive position of the applicant as a precondition for the annulment of the decision, does not raise issues of compatibility with Article 11 of the EIA Directive (para. 64).-Different Opinion of the AG on this issue viewing this condition as further unjustified restriction of the right of access to justice d) Furthermore, the Court ruled that the provided restriction of the scope of the review of decisions falling in the scope of the EIA and IED Directive to the objections made in the administrative proceedings (preclusion) is incompatible with the relevant access to justice provisions of these Directives on the grounds that EU Law does not limit the pleas which may be relied on by the applicant in the judicial proceedings. (paras.69,81) The Court’ s thesis is also an implicit recognition of the distinctive nature of the judicial proceedings in relation to the administrative proceedings.

The relevant CJEU jurisprudence on the scope of the review-9 Remarks: a) From a general point of view, the Court’ s Ruling introduces further limitations to the procedural autonomy of the Member States in determining the scope of the review of decisions falling in the scope of the EIA and IED Directive. b) Such an approach is justified by the implicit preference given to the objective of giving the public concerned wide access to justice in relation to other legitimate objectives (legal certainty, administrative efficiency) [paras. 79-80] c) The Court’s position which held compatible with the EU Law (Article 11) the criterion requiring an effect on a substantive legal position does not seem to be persuasive, as its application at a later stage of the judicial procedure (well-foundedness) creates a further restriction to the full judicial review. It does not provide a sufficient justification on why a permissible admissibility criterion creates the basis for another restriction to access to justice.

The relevant CJEU jurisprudence on the scope of the review-10 D. C. CJEU Ruling on Case C-570/13 (Gruber): The Court ruled that the relevant national provision which precludes neighbours who are part of the “public concerned” from challenging the screening decision declaring that a particular project does not require an EIA with the justification that they are not recognized as “parties” in the relevant administrative procedure is incompatible with Article 11 of the EIA Directive (para 51). Remark: According to the Opinion of the AG Kokott, Article 11 is not applied in this context, as it relates to the comprehensive assessment of the substantive and procedural legality of the decision granting development consent. In her view, the right of the neighbours to take legal action against the screening decision is grounded on Articles 2 para.1 and 4 of the EIA Directive in conjunction with Article 47 of the EUChFR.

Remarks based on a comparative overview concerning the scope of review-1 A. Scope of review in national procedural systems with emphasis on individual rights protection 1. A first critical remark arising from certain findings of the ACCC and the CJEU jurisprudence relates to the fact that national legal systems which are characterized by strong protection of individuals rights and restrictive standing requirements (German, Austrian, Czech) confine also the scope of the judicial review in a restrictive way (limiting the subject of the review to the violation of provisions enshrining subjective rights). 2. Such an approach, as already demonstrated, raises certain issues of compatibility with the Aarhus Convention and the EU Law : a) It limits significantly the scrutiny of the review on the contested decision or in conjunction with the admissibility requirements, can even result in the exclusion of certain decisions from judicial review

Remarks based on a comparative overview concerning the scope of review-2 A. Scope of the review in national procedural systems with emphasis on individual rights protection 2.b) It does not take sufficiently into account the particularities of the environmental litigation relating to the protection of collective interests. 3. On the grounds of ensuring effective judicial protection, the CJEU jurisprudence has significantly contributed in limiting the margin of discretion of the legislators in countries with those procedural systems when determining the scope of the judicial review of decisions (or omissions) falling into the scope of the EIA and IED Directives (CJEU positions on the causality condition, the preclusion and the permissible pleas on which NGOs may rely).

Remarks based on a comparative overview concerning the scope of review-3 A. Scope of the review in national procedural systems with emphasis on individual rights protection 4. The Court placed also specific emphasis on the observance of the procedural guarantees set in the relevant Directives, so that only procedural errors of minor importance should not lead to the annulment of the relevant decision. 5. The observance of the principle of the procedural autonomy and the recognition of the specific characteristics of the legal tradition must have been critical for the shaping the Court’s thesis on the criterion requiring an effect on a substantive legal position as precondition of the well-foundedness of the relevant petition.

Remarks based on a comparative overview concerning the scope of review-4 B. Scope of the review in judicial systems with cassatory procedures (emphasis on the greek case) 1. General Remarks a) Certain issues concerning the extent and the depth of the judicial scrutiny of administrative decisions can also arise in judicial systems where the Court has only cassatory power, such as the Greek legal system. b) Strict legality control of the environmental-related administrative acts, decisions and omissions is exercised by the Council of State at first and last instance (Article 95 of Const.). The Court is equipped with cassatory power.

Remarks based on a comparative overview concerning the scope of review-5 2. Central Question: What does the Council of State review? a. The observance of the procedural rules (full review of the procedural legality) b. The evaluation of the content of the EIA Study -In particular, the Court examines whether the EIA Study fulfills the requirements of the relevant legislation and its content is sufficient in terms of ensuring that the administration has the necessary information for calibrating and assessing the consequences of the project on the natural environment, examining its compatibility with the relevant EU and National Legislation and assessing whether the expected benefit is proportionate to the expected harm to the natural environment. The Court cannot directly review the technical assessments of the administration (Decisions 613/2002, 3478/2000,4441/2009, 1492/2013, 550/2015). Jurisprudential Standards for the review of the EIA Study and procedure have been adopted (need for a comprehensive and in time assessment)

Remarks based on a comparative overview concerning the scope of review-6 c. The evaluation of the content of a permit under the IED Directive- The Court reviews the justification provided by the administration as regards the technical choices. d. The principle of sustainable development perceived in its three pillar version is applied as a standard for balancing the competing interests : general public interest served by the project implementation and environmental protection. 3. Two basic issues concerning the compatibility of the relevant legal provisions and the judicial practice as regards the scope of the review with the Aarhus Convention and the relevant EU Law provisions can be raised a. The first issue relates to whether the cassatory procedure provides the necessary framework for a full review of the substantive legality of the contested decision.

Remarks based on a comparative overview concerning the scope of review-7 b. Departing from the fact that the scrutiny of the EIA decisions or the IED Permits is regarded satisfactory also due to the adoption of jurisprudential standards, issues of insufficient review of the substantive legality can be raised in cases where the EIA decision or the permit under the IED Directive encompasses complex technical issues and assessments (e.g. choice of production method for a high polluting activity). c. The other basic issue arises from the quite recent jurisprudence of the Council of State according to which the pleas concerning the permissibility of the project and especially those concerning the examination of alternatives which have not been put forward in the public consultation procedures cannot be claimed admissibly in the judicial proceedings (Decisions 1169/2011, 1943/2012, 4940/2013, 384/2014, 551/2015)

Remarks based on a comparative overview concerning the scope of review-8 d. The latter constitutes a form of a jurisprudential preclusion justified mainly by the need of efficiency of the judicial proceedings and observance of the legal certainty. It raises issues of compatibility with the Aarhus Convention and EU Law in accordance with the recent CJEU jurisprudence Acceptable only in the case of misuse practices. C. Issues concerning whether the legal system of England and Wales can guarantee a full review of the substantive legality of decisions, acts and omissions under Article 6 of the Aarhus Convention have also been raised and examined by the ACCC

Final Remarks-1 1. Significant divergences in approaches, provisions and judicial practices concerning the scope of the review in environmental-related cases can be observed among national procedural systems. 2. Restrictive regulatory or judicial approaches can, though, be found in profoundly different procedural systems. They can be attributed to the strong legal traditions and the specific characteristics of the concrete national legal order, to the need of ensuring efficiency and speeding up of the judicial procedures or even to the specific characteristics of the judicial procedure (cassatory or reformatory). 3. The CJEU jurisprudence has contributed significantly in limiting national procedural autonomy with the aim of ensuring effective judicial protection in a wide category of environmental-related cases.

Final Remarks-2 The central question that can be raised is whether the punctual intervention of the CJEU jurisprudence is sufficient for limiting or avoiding restrictive approaches concerning the scope of the review in environmental-related cases. If emphasis is placed on the guarantee of effective judicial protection in conjunction with the particularities of the environmental litigation, the answer seems to be negative. Ways of legislative intervention at the EU level should be further discussed.