Notice of the European Commission - Main challenges with regard to access to justice in environmental matters Anaïs Berthier ClientEarth Trier 9 July 2018

Background: Lack of EU legislation The EC adopted a legislative proposal in 2003 (COM(2003)624) to transpose the third pillar of the Aarhus Convention – the two other pillars transposed by Directive 2003/4 on access to environmental information and 2003/35 on public participation (into the EIA Directive and IED directive) The process was stalled in the Council- Procedural autonomy No uniform legal framework to regulate access to justice in environmental matters and to harmonise the systems used by the 28 Member States – lots of disparities and legal uncertainty Proposal withdrawn by the EC and replaced by the adoption of a non-legally binding communication

Still need for a directive Impact assessment of the EC on a commission initiative on access to justice in environmental matters SWD(2017)255 favoured the adoption of a legally binding instrument and states that providing access to justice in environmental matters does not significantly increase the number of cases Resolution of the European Parliament (Action plan for nature, people and the economy) (2017/2819(RSP)) (para. 16) calls the EC to come forward with a new legislative proposal on minimum standards for access to justice review. Opinion of the EESC on the communication of the EC (C(2017)2616) calls for « an overarching and binding EU legislation » (para. 1.3) Darpo report (Milieu Study): challenging for practitioners among them judges to only rely on the interpretation of the CJEU.

Guidance of the Commission - structure Public interests. Obligations and rights relevant to the exercise of judicial protection Legal standing Scope of judicial review Effective remedies Costs Time limits, timeliness and the efficiency of procedures

Guidance – General messages It covers the full extent of access to justice: Before going to court (right to participate in decision-making process, status provided to NGOs, delays to go to court), before the court (standing, scope of review)/the orders of the judges (remedies) and costs – Judges need to take into account all these stages. NGOs play a fundamental role (para. 38) in ensuring environmental legislation is implemented and enforced. Advocate General Sharpston in Trianel case : « The fish cannot go to court.. ». NGOs give a voice to the environment and ensure that public interests are represented (public health through environmental law). Judges need to recognise the key role NGOs play. V. economic interests of industry. Judges must make the most of the case-law of the CJEU as that’s all we got. Litigation is one of the best legal avenues to influence the decision-making process. Judges are required to go further than the conform interpretation – to set aside the national provisions if non compliant.

Guidance of the Commission - Loopholes Only relies on the case-law of the CJEU – unclear and unambitious on certain points Lack of reference to the findings of the Aarhus Convention Compliance Committee (a dozen of cases up to MOP of 2014 on article 9(3) of the AC) and to opinions of advocate generals Needs to be made alive and updated with new case-law – website of DG ENVI Issues not addressed (access to justice against private parties, environmental defenders, etc.) There should be a requirement that there should be no derogations or back-sliding (para. 1.6 of the EESC opinion) the standards set by the case-law of the CJEU is a minimum standard. Ex: some MS are engaging in back-sliding due to anti-democratic trends, recent legislative changes lead to stripping NGOs of their participatory rights outside the EIA processes; or get rid of the cassation instance in EIA cases or increase the court fees.

Access to justice “in environmental matters” Article 9(3) of the Aarhus Convention: All acts and omissions by private persons and public authorities that may have contravened national law relating to the environment. ACCC/C/2013/85 and 86: What falls in the scope of Article 9(3) is not limited to environmental laws, e.g., laws that explicitely include the term environment or in their title or provisions (implementing guide). „decisive issue is if the provision in question somehow relates to the environment“. Acts adopted in any branches of law. The scope of article 9(3) should be interpreted in light of the Convention and its purpose, and in particular Article 1 as well as article 2(3) which provides a definition of environmental information (T-33/16, TestBiotech case).

Standing The guidance draws your attention to the CJEU case-law, now the ball is in the court of the judges. Drawing from the Slovak bear I case the notice concludes that MS are obliged to provide for legal standing to ensure access to an effective remedy for the protection of procedural and substantive rights conferred by EU environmental law even if the EU environmental legislation at stake does not contain specific provisions on the matter (para. 95). Good precedents mostly in nature cases with the Slovak bear cases 1 and 2; air quality cases (Janecek, ClientEarth cases).

Standing (and scope of review): Good precedents in air quality cases Air quality cases to enforce Directive 2008/50 on ambient air quality and clearner air for Europe. C- 237/07 Janecek, C- 404/13 ClientEarth cases and series of cases at national level (UK, Belgium, Italy, France, Germany, Czech republic). Natural and legal persons directly concerned by the limit values being exceeded must be in a position to require the competent authorities, if necessary by bringing an action before the courts having jurisdiction, to establish an adequate air quality plan (Janecek para. 39) And to review the adequacy of the measures included in an existing plan. National authorities and courts must interpret national law, as far as possible, in a way that is compatible with the purpose of that directive … where such an interpretation is not possible, they must disapply the rules of national law which are incompatible with the directive concerned. (para. 36)

But still lack of implementation But not satisfactory as some juridsictions still do not give standing when required: Air quality plans are not administrative acts that can be challenged by members of the public. They are internal administrative decisions, directed only to local authorities tasked with their implementation. They do not create rights and obligations for citizens and NGOs. Concerned persons lack interest to seek judicial review of the adequacy of the plans. Harm to the health of the applicant is an impact on his factual sitation – no legal interest to challenge a defective plan These juridisction failed to apply the relevant EU legal rules on access to justice. Dismissed the references to EU law and case-law of the CJEU as irrelevant.

Impairement of a right The notice acknowledges the issue caused by the impairement of a right requirement (para. 102): environmental protection usually serves the general public interest and does not aim at expressly conferring rights on the individuals. « Requiring a « sufficient interest » raises fewer challenges ». « MS may adopt criteria that individuals and NGOs must fulfil in order to obtain legal standing, but these criteria must not make it impossible or excessively difficult to exercise procedural rights conferred by EU law »

Impairment of a right Notice: Criteria established by MS in the context of Article 9(2) of the AC will also be appropriate in an Article 9(3) context. Because NGOs will not be able to demonstrate an impairement in the same way as an inividual: considering the role of ENGOs in protecting general environmental interests … MS which apply the impairement of rights doctrine need to do so in such a way as to ensure that environmental NGOs are given legal standing to contest decisions, acts and omissions which concern this role » (para . 107) Since then: Protect case: « duly recognised » NGOs must be given standing.

ACCC finding: no such distinction under the Convention Article 9(3) « does not distinguish between public or private interest or objective or subjective rights, and it is not limited to any such categories ». « a strict interpretation of this principle in matters of access to justice under the Convention would imply non-compliance with article 9(3) since many contraventions by public authorities and private persons would not be challengeable unless it could be proven that the contravention infringes a subjective right. The requirement of infringement of subjective rights would in many cases rule out the oportunity for environmental NGOs to access review procedures, since they engage in public interest litigation ». C-31 Germany para. 94-95.

Membership organisation v Foundations Notice refers to Djurgarden that recognise the right to impose the membership criteria but stresses on the imposed conditions and Acknowedges that all NGOs that benefit from the de lege standing in MS are not membership based and stresses that claims made by such NGOs have given rise to important CJEU case-law.

Adopting decisions through legislation The AC excludes legislative acts from its scope (article 2(2)); Directive 2011/92 excludes « projects the details of which are adopted by a specific act of national legislation ». But in Boxus (C- 128/09 to C-131/09, C-134/09 and C-135/09) and Solvay: national courts are obliged to review whether the conditions justifying exclusion are fulfilled. The exception apply only if certain conditions met and the AC and directive would lose all effectiveness if the mere fact that a project is adopted by a legislative act were to make it immune to any review procedure for challenging its substantive and procedural legality (Boxus, para . 53)

Need to refer questions to the CJEU Most of the case-law from the CJEU on access to justice stems from referals for preliminary rulings from national courts Yet, still lots of refusals from national courts to refer questions Article 267 TFEU: An obligation for last resort courts in case of doubts on the interpretation of a provision of EU legislation or validity The Notice states that « the role of Article 267 may be put in doubt if access to national courts is either impossible or rendered excessively difficult » (para. 23).

Updates needed The Notice should be updated to reflect that CJEU has granted Article 9(2) of the AC has direct effect: members of the public concerned must be granted access to justice in accordance with that provision (Case C-243/15, Slovak bear II; Protect). Article 9(3) read in conjonction with Article 47 of the Charter of Fundamental Rights and directly applicable provisions of EU law require that NGOs be given access to justice. « imposes on MS an obligation to ensure effective judicial protection ». (C- 664/15, Protect, para. 45). Courts must disapply any such laws where a compliant interpretation is impossible. This holds true even where « any conflicting provision of national legslation were adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislation or other constitutional means » Judges are required to go further than the conform interpretation – to set aside the national provisions if non compliant.

Updates needed Scope of article 9(2) and 9(3) of the AC has become way clearer since the adoption of the notice: Brown Bear II ruling has been reaffirmed in a water law context in Protect: « where significant effects (of a project on the environment) cannot be excluded, the decision-making at issue would fall under article 6(1)(b) and therefore article 9(2) of the Aarhus Convention ». Reaffirms that it would be incompatible with the binding effect conferred by Article 288 TFEU on a directive to exclude the possiblity to rely on its obligations before a court of law. These principles and interpretation can be extended to other areas of law: waste. Judges need to be ready and open for this kind of cases and react accordingly.

Flash update on access to justice at EU institutional level The Plaumann test: No standing for NGOs and individuals The EU found in violation of Article 9(3)(4) of the AC: Neither the Aarhus Regulation nor the jurisprudence of the CJEU provide access to justice to members of the public. Recommendations to amend the Aarhus Regulation 1367/2006 and to interpret EU law in conformity with the Convention: apply the Slovak bear case to itself. MOP: The EC proposed to oppose the adoption of the findings The Council opposed: proposed compromise to « take note » of the findings

Access to justice at EU institutional level No MOP decision was adopted because of the opposition of NGOs, Switzerland, Norway and the Chair of the MOP. Commitment of the EU to explore ways and means to bring EU law in line with the AC Organisation of a public consultation by the EC following adoption of a roadmap Council decision on basis of Article 241 TFEU – invite the EC to submit a study by Sept. 2019 and revision of the Aarhus regulation « if appropriate ». Unprecented use of this procedure in environmental matters.

Merci Anaïs Berthier Senior Lawyer –Environmental Democracy Project Leader ClientEarth aberthier@clientearth.org t. +32 (0)2 808 3468 www.clientearth.org @ClientEarth