Opinion of the Advocate General — ECLI:EU:C:2020:514
Date: 2020-07-02
Language of the case: Dutch
Subject matter: Environment;External relations;International agreements
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
28 December 2018 
Referring court:  
Rechtbank Limburg (Netherlands) 
Date of the decision to refer:  
21 December 2018 
Applicants:  
LB 
Stichting Varkens in Nood 
Stichting Dierenrecht 
Stichting Leefbaar Buitengebied 
Defendant:  
College van burgemeester en wethouders van de gemeente Echt-
Susteren 
Third party in the proceedings: 
Sebava B.V. 
 
Subject matter of the action in the main proceedings 
The dispute in the main proceedings concerns an action brought by the applicants 
challenging the defendant’s decision to issue Sebava B.V. (‘the permit holder’) 
with an environmental permit for the construction of a new pig pen. More 
specifically, the case centres on the issue of whether the action brought by LB as a 
non-interested party and by the other applicants as interested parties is admissible, 
despite the fact that they did not make use of their participation rights during the 
preparatory procedure.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-826/18 
 
2  
Subject matter and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU concerns the Netherlands legislation 
on the bringing of actions against the decisions of administrative bodies taken 
after completion of a preparatory procedure prescribed by law. The question in 
that regard is whether the requirements laid down by that legislation that, in order 
to obtain access to justice, an applicant must, in the first place, be classified as an 
interested party and, in the second place, must have exercised his/her participation 
rights during the preparatory procedure, are contrary to EU law, in particular if, as 
a result of this, that applicant is unable to argue that there has been a breach of 
procedural requirements and participation rights.  
Questions referred 
1. Must European law and, in particular, Article 9(2) of the Aarhus Convention 
be interpreted as precluding a total exclusion of the right of access to justice 
for the public (any person), in so far as the latter is not the public concerned 
(interested parties)?  
If Question 1 is answered in the affirmative: 
2. Must European law and, in particular, Article 9(2) of the Aarhus Convention 
be interpreted as meaning that it follows therefrom that the public (any 
person) should, in the event of an alleged infringement of the procedural 
requirements and public-participation rights applicable to that public, as 
contained in Article 6 of that Convention, have access to justice?  
Is it important in that regard that the public concerned (interested parties) 
should have access to justice in that respect and can also raise substantive 
complaints before the courts?  
3. Must European law and, in particular, Article 9(2) of the Aarhus Convention 
be interpreted as precluding a situation in which access to justice for the 
public concerned (interested parties) is made dependent on the exercise of 
public-participation rights within the meaning of Article 6 of that 
Convention?  
If Question 3 is answered in the negative: 
4. Must European law and, in particular, Article 9(2) of the Aarhus Convention 
be interpreted as precluding a provision of national law which excludes 
access to justice in respect of a decision on the part of the public concerned 
(interested parties) if that public can reasonably be criticised for not having 
set out any views against (parts of) the draft decision?  
If Question 4 is answered in the negative: 
STICHTING VARKENS IN NOOD AND OTHERS 
 
3 
5. Is it entirely up to the national court to provide an opinion, on the basis of 
the circumstances of the case, as to what should be understood by the term 
‘who can reasonably be criticised’ or is the court obliged to take certain 
European legal safeguards into account in that regard?  
6. To what extent are the answers to Questions 3, 4 and 5 different in relation 
to the public (any person), in so far as that is not the public concerned 
(interested parties)?  
Provisions of international law cited 
Articles 6 and 9 of, and Annex I, point 15, to, the Convention on access to 
information, public participation in decision-making and access to justice in 
environmental matters of 25 June 1998 (‘the Aarhus Convention’)  
Provisions of European Union law cited  
Articles 10, 24 and 25 of, and Annex I, point 6.6, to, Directive 2010/75/EU of the 
European Parliament and of the Council of 24 November 2010 on industrial 
emissions (integrated pollution prevention and control) (‘Directive 2010/75’), 
Article 4(1) and (2), and Articles 6 and 11 of, and Annex I, point 17(c), and 
Annex II, point 1(c), to, Directive 2011/92/EU of the European Parliament and of 
the Council of 13 December 2011 on the assessment of the effects of certain 
public and private projects on the environment (‘Directive 2011/92’). 
Provisions of national law cited 
Article 2.1(1)(a), (b) and (e), Article 3.10, Article 3.12(5), and Article 3.15 of the 
Wet algemene bepalingen omgevingsrecht (Law on General Provisions of 
Environmental Law; ‘Wabo’), Article 7.2(2)(b) and (4) of the Wet milieubeheer 
(Law on Environmental Management; ‘Wm’), Articles 1:2, 3:15, 6:3, 6:13 and 8:1 
of the Algemene wet bestuursrecht (General Law on Administrative Law; ‘Awb’) 
and Article 2 of the Besluit milieueffectrapportage (Environmental Impact 
Assessment Decree) 
Brief summary of the facts and the procedure in the main proceedings 
1 On 13 October 2016, the permit holder submitted an application for the 
construction of a new pen for 855 sows, the exchange of breeding sows for 
farrowing sows in the existing pens and the construction of a covered run for 
sows. That application was submitted by the defendant for an environmental 
impact assessment appraisal pursuant to Article 7.2(2)(b) and (4) of the Wm, on 
the basis of which the defendant decided that it was not necessary to draw up an 
environmental impact assessment. That decision, a copy of the application 
memorandum and other related documentation were made available for inspection 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-826/18 
 
4  
during the period from 19 August to 29 September 2016 inclusive. Notice of this 
was given in the Staatscourant (Government Gazette) of 18 August 2016. This 
stated that that decision should be deemed to be a preparatory decision within the 
terms of Article 6:3 of the Awb and was therefore not subject to objection or 
challenge, unless that decision directly affected the interests of the interested party 
separately from the decision under preparation. 
2 The application was also published in the Gemeenteblad (Municipal Gazette) of 
the defendant’s municipality of 21 October 2016. Subsequently, in the 
Gemeenteblad of 6 July 2017, notice was given of the defendant’s draft decision 
to issue a permit for the construction of a new pen. On 28 September 2017, the 
defendant issued the requested permit and gave notice of this in the Staatscourant 
of 5 October 2017. The applicants challenged that decision before the rechtbank 
Limburg (District Court, Limburg). The actions, lodged separately by LB, on the 
one hand, and by Stichting Varkens in Nood (Pigs in Distress Foundation), 
Stichting Dierenrecht (Animal Rights Foundation) and Stichting Leefbaar 
Buitengebied (Sustainable Outdoor Environment Foundation); (‘the foundations), 
on the other hand, are considered jointly.  
Main submissions of the parties to the main proceedings 
3 The defendant and the permit holder take the view that LB’s action should be 
declared inadmissible because she has not submitted any objections to the draft 
permit and because she is not an interested party. According to them, the actions 
brought by the foundations should also be declared inadmissible for the 
aforementioned reason.  
4 The applicants argue that, while it is true that they did not submit objections, they 
cannot reasonably be criticised on that ground, because the defendant gave an 
incorrect notification of the draft permit. The notification thus mentioned only the 
building activity and not the environmental activity. That notification also referred 
only to a new pen and not to the extension of a pig farm in relation to the 
environmental activity. Furthermore, it was incorrectly stated that interested 
parties alone could submit views whereas, on the basis of Article 3:12 of the 
Wabo, views can be submitted by anyone. Furthermore, according to LB, the 
environmental permit was not issued in accordance with the prescribed procedure, 
because the notification of the draft permit was made solely in the Gemeenteblad, 
whereas the environmental permit was published in the Staatscourant. In addition, 
LB puts forward a large number of substantive grounds of appeal against the 
environmental permit. Finally, LB states that, in her capacity as veterinarian, 
board member of an environmental organisation and secretary and chairperson of 
the national and provincial branches of an animal welfare organisation 
respectively, she should be regarded as an interested party in relation to the 
contested decision. The foundations request the court to annul the contested 
decision so as to enable them still to submit their objections to the draft decision.  
STICHTING VARKENS IN NOOD AND OTHERS 
 
5 
Brief summary of the reasons for the referral 
5 To begin with, the rechtbank finds that, in the present case, since the number of 
animals has been increased by 855 sows, the Aarhus Convention applies pursuant 
to its Article 6(1), in conjunction with Annex I, point 15, thereto. For the same 
reason, Directive 2010/75, pursuant to its Article 10, in conjunction with Annex I, 
point 6.6(c), thereto, and Directive 2011/92, pursuant to its Article 4(1) and (2), in 
conjunction with Annex I, point 17(c), and Annex II, point 1(c), thereto, also 
apply. The rechtbank proceeds on the assumption that, in the interpretation of the 
requirements laid down in that European legal framework with regard to public 
participation in decision-making and access to justice by the public (concerned), 
the Aarhus Convention is paramount and, in the case of conflict, takes precedence 
over both directives.  
6 So far as national legislation is concerned, the rechtbank notes that in the present 
case, pursuant to Article 3.10 of the Wabo, Section 3.4 of the Awb is applicable. 
The latter provision concerns the so-called uniform public preparatory procedure, 
which — in short — entails that, in the event of an application for a decision, such 
as the present environmental permit, the competent authority must first of all take 
a draft decision, in respect of which views may be put forward, and that a decision 
is then taken by the administrative authority against which an action may be 
brought before the administrative court. It follows from Article 3.12(5) of the 
Wabo that, in the present case, ‘anyone’ can express objections to the draft 
decision. The rechtbank sees that procedure as a public-participation procedure 
within the meaning of Article 6 of the Aarhus Convention.  
7 It follows from Article 8:1 of the Awb that an action before the administrative 
court against decisions can be brought only by interested parties. Under 
Article 1:2 of the Awb, interested parties are those whose interests are directly 
affected by a decision. The question whether someone is an interested party is 
assessed by the administrative court of its own motion in accordance with 
Article 1:2 of the Awb. If a person is not an interested party, the administrative 
court declares the action inadmissible.  
8 The rechtbank finds that LB has brought an action in a personal capacity, since 
she made known her capacity as a board member, secretary and chairperson of 
various interest groups only a considerable time after the appeal period had 
expired. In addition, she lives some distance away from the proposed pig pen and 
therefore does not experience any spatial or environmental consequences as a 
result thereof. She cannot therefore, on the basis of the relevant national case-law 
on who qualifies as an ‘interested party’, be regarded as such. In that regard, it is 
not relevant, on the basis of settled national case-law, that LB apparently feels 
strongly affected by the contested decision. LB’s action would therefore have to 
be declared inadmissible, which means that the rechtbank is not obliged to assess 
her procedural and substantive grounds of action. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-826/18 
 
6  
9 The rechtbank questions whether that outcome is compatible with the legislation 
mentioned in paragraph 5 above and, in particular, with the Aarhus Convention. 
Article 9(2) of the Aarhus Convention stipulates that members of ‘the public 
concerned’ must be guaranteed access to courts. The rechtbank is unsure whether, 
in the light of that provision, the fact that LB is not an interested party must be 
taken to mean that she has no access to courts at all. She does, after all, belong to 
‘the public’, since anyone can set out objections to the draft decision. The 
rechtbank wonders whether the applicant, as a member of the public, should not 
be able to have recourse to the courts for an assessment of a possible breach of 
procedural requirements and public-participation rights, as provided for in 
Article 6 of the Aarhus Convention. According to the rechtbank, the Court of 
Justice has not yet explicitly addressed that question. 
10 It does, however, follow from the order of the Court of Justice of 5 May 2009 in 
the WWF-UK case (C-355/08 P), in particular paragraphs 43 and 44, that access to 
justice for the assessment of an alleged breach of procedural rights is possible 
without leading to the admissibility of substantive complaints. Furthermore, it 
follows from previous case-law of the Court of Justice that it is very important 
that individuals should be able to assert their public-participation rights (see 
paragraph 56 of the judgment of 24 October 1996 in Case C-72/95, 
EU:C:1996:404). It does not seem unreasonable to the rechtbank that access to 
justice should have to comply in full with the objective pursued by the Aarhus 
Convention in the following respect: ensuring public-participation rights and not 
only in regard to the public concerned. In this connection, the rechtbank refers to 
two reports from the Aarhus Compliance Committee: Communication 
ACCC/2006/16 (Lithuania) and Communication ACCC/C/2009/37 (Belarus), and 
the ‘Implementation Guide’ to the Convention, which emphasise the importance 
of guaranteeing public-participation rights. In view of the foregoing, the rechtbank 
in the LB case submits the first and second questions for a preliminary ruling. 
11 The foundations are indeed interested parties under Article 1:2(1) of the Awb, 
because the well-being and protection of animals are included in their statutory 
objectives and it has been sufficiently established that they also perform de facto 
activities within the scope of those objectives. However, they did not put forward 
any objections to the draft decision, and it follows from Article 6:13 of the Awb 
that an interested party who may reasonably be criticised for not having expressed 
a view during the preparatory procedure cannot bring an action before the 
administrative court. The phrase ‘who may reasonably be criticised’ (‘aan wie 
redelijkerwijs kan worden verweten’) is interpreted in national case-law as 
meaning that, if the legal requirements for public inspection and notification are 
fulfilled, so that everyone has had the opportunity to give their reaction to the 
draft decisions, a failure to do so is not excusable. The rechtbank questions 
whether that link between public participation in decision-making and access to 
justice — by virtue of which legal protection does not have an independent role 
and function — is compatible with the legislation mentioned in paragraph 5 above 
and, in particular, the Aarhus Convention. In that regard, the rechtbank takes the 
following view.  
STICHTING VARKENS IN NOOD AND OTHERS 
 
7 
12 As regards Article 9(2) of the Arhus Convention, the rechtbank contends that the 
Court of Justice has as yet not (expressly) ruled on the exact relationship between 
public participation in decision-making and access to justice in cases where no use 
was or could be made of public-participation rights. It appears to follow from the 
judgment of the Court of Justice of 20 December 2017 (Case C-664/15, 
EU:C:2017:987, paragraph 88) that the effective exercise of rights from the 
administrative procedure stage onwards may be mandatory under national law and 
that this need not necessarily of itself be at variance with European law. However, 
in the view of the rechtbank, that judgment concerns a different procedure to the 
present public consultation procedure and the rechtbank questions, also with 
reference to paragraph 61 of that judgment, whether the same applies to 
participation in the light of Article 6 of the Aarhus Convention. In the judgment of 
15 October 2009 (Case C-263/08, EU:C:2009:631, paragraphs 38, 39 and 48), the 
Court of Justice also ruled, specifically with regard to public participation, that, as 
regards the environmental impact assessment of certain public and private 
projects, public participation has no effect on the conditions for bringing legal 
proceedings. However, it is not entirely clear to the rechtbank whether that 
judgment concerns the same public-participation procedure as in the present case, 
or whether it relates to some form of review procedure.  
13 In addition, it follows from Article 6:13 of the Awb that if objections have been 
submitted in respect of only certain parts of the draft decision, whereas the 
grounds of action are partly directed against other parts of the decision, the 
administrative court may declare the action admissible only for those parts against 
which objections were made. The rechtbank questions whether such a situation is 
compatible with paragraph 80 of the judgment of the Court of Justice of 
15 October 2015 [in Case C-137/14, Commission v Germany, EU:C:2015:683], 
which states that it is necessary to ensure that the ‘review by the courts ... covers 
both the substantive and procedural legality of the contested decision in its 
entirety’. 
14 However, it should also be mentioned at this point that the cited judgments of the 
Court of Justice refer to the public concerned. As far as applicant LB is concerned, 
it is important to know to what extent those rulings also apply to proceedings 
before the courts brought by the public, in so far as that is not the public 
concerned.  
15 Since the rechtbank sees sufficient grounds in the aforementioned case-law of the 
Court of Justice to cast doubt on the compatibility of Article 6:13 of the Awb with 
European law and, in particular, with the Aarhus Convention, it refers the third, 
fourth, fifth and sixth questions for a preliminary ruling.