EN Official Journal of the European Union C 275/1

Commission Notice on access to justice in environmental matters

(2017/C 275/01)

TABLE OF CONTENTS

A. INTRODUCTION: ACCESS TO JUSTICE IN EU ENVIRONMENTAL LAW 2

B. THE LEGAL CONTEXT: NATIONAL COURTS AND EU ENVIRONMENTAL LAW 4

C. GUARANTEEING ENVIRONMENTAL ACCESS TO JUSTICE 6

1. PUBLIC INTERESTS, OBLIGATIONS AND RIGHTS RELEVANT TO THE EXERCISE OF JUDICIAL PROTECTION 6

1.1. Introduction 6

1.2. Public interests, obligations and rights 6

1.3. Ensuring an active role of the public, safeguarding rights and upholding obligations 7

2. LEGAL STANDING 11

2.1. Introduction 11

2.2. Requests for environmental information and entitlement to receive information 11

2.3. Specific activities that are subject to public participation requirements 12

2.4. Requests for action under environmental liability rules 16

2.5. Other subject matter, such as national implementing legislation, general regulatory acts, plans and programmes and derogations 16

3. SCOPE OF JUDICIAL REVIEW 19

3.1. Introduction 19

3.2. Possible grounds of judicial review 20

3.3. Intensity of scrutiny/standard of review 22

4. EFFECTIVE REMEDIES 27

4.1. Introduction 27

4.2. Remedies in case of minor procedural defects 27

4.3. Suspension, revocation or annulment of unlawful decisions or acts, including disapplication of legislation and regulatory acts 28

4.4. Instructions requiring omitted measures to be adopted 29

4.5. Making good unlawful harm caused by an unlawful decision, act or omission 29

4.6. Interim measures 30

5. COSTS 31

5.1. Introduction 31

5.2. Criteria for assessing whether costs are prohibitive 32

5.3. Legal aid 34

6. TIME LIMITS, TIMELINESS AND THE EFFICIENCY OF PROCEDURES 34

7. PRACTICAL INFORMATION 35

D. CONCLUSION 36

ANNEX I 37

ANNEX II 38

A. INTRODUCTION: ACCESS TO JUSTICE IN EU ENVIRONMENTAL LAW

1. The environment is our life-support system and a common heritage. Preserving, protecting and improving is a shared European value, with EU environmental law establishing a common framework of obligations for public authorities and rights for the public.

2. The recently adopted Commission communication ‘Better results through better application’ (1) stresses that, where obligations or rights under EU law are affected at national level, there has to be access to national courts in line with the principle of effective judicial protection set out in the EU Treaties and with the requirements enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

3. EU law recognises that, in the domain of the environment, access to justice needs to reflect the public interests that are involved.

4. The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (2) (‘the Aarhus Convention’) establishes that, in certain cases, natural and legal persons (such as non-governmental organisations, ‘NGOs’) can bring a case to a court or to other impartial bodies in order to allow for the review of acts or omissions of public or private bodies (3). This has been ratified by all Member States and by the EU (4).

5. Apart from meeting an international commitment, ensuring that individuals and NGOs have access to justice under this Convention is also an important means of improving Member State's implementation of EU environmental laws without the need for Commission intervention.

6. The Aarhus Regulation, (EC) No 1367/2006, applies the Aarhus Convention to EU institutions and bodies. For Member States, certain pieces of EU secondary legislation contain express access to justice provisions mirroring those of the Convention (5).

7. Outside the scope of harmonised EU secondary legislation, the current legislative provisions in the Member States on access to justice in environmental matters differ considerably (6). At the same time, the Court of Justice of the European Union (‘CJEU’) has issued significant rulings clarifying EU requirements on access to justice in environmental matters, both within and outside the context of the harmonised secondary legislation. The result is a sizeable and valuable body of CJEU case-law touching on all aspects of the subject.

8. Against this background, a number of problems have been identified: — Individuals and NGOs are adversely affected by obstacles to access to national courts. This helps to explain why a stream of preliminary references have been submitted to the CJEU by different national courts, seeking clarification on whether access should be given and under what conditions. The public is affected more indirectly when ineffective access to justice contributes to implementation failures, e.g. unhealthy air pollution levels resulting from administrative inaction. — Public administrations and national courts face burdens due to litigation centred on issues related to access to justice. Providing greater clarity based on the existing CJEU case-law should contribute to efficient public administration as well as the administration of justice. — Businesses are negatively affected by delays in administrative decision-making related to prolonged litigation due to unclear access to justice rules, such as on standing rights and the scope of judicial review. National courts are increasingly filling the gaps in national procedural law, particularly in the area of legal standing, but, because their rulings relate to specific cases, they cannot provide all the clarity and predictability necessary to guide investment decisions. Timing and a clear legal framework are particularly relevant for small and medium-sized enterprises (‘SMEs’) which cannot afford unnecessarily long authorisation procedures and uncertainty about litigation risks and scope. Businesses can also suffer where ineffective access to justice contributes to a failure to provide them with the clean environment on which many of them depend or a failure of government to make investments that are good for the green economy.

9. Having considered several options, the Commission decided that an interpretative communication on access to justice in environmental matters (i.e. this Notice) would be the most appropriate and effective means to address the problems. By bringing together all the substantial existing CJEU case-law, and by drawing careful inferences from it, it would provide significant clarity and a reference source for the following: national administrations who are responsible for ensuring the correct application of EU environmental law; national courts, which guarantee respect for EU law and are competent to refer questions on the validity and interpretation of EU law to the CJEU; the public, notably individuals and environmental NGOs, who exercise a public-interest advocacy role; and economic operators, who share an interest in the predictable application of the law. The light adoption procedure would help the Commission deliver an effective initiative in the short term.

10. The option of continuing with ‘business-as-usual’ and only relying on CJEU case-law to evolve was not considered as an appropriate one in view of the needs identified. A legislative option in the form of a dedicated access to justice legal instrument was also not further pursued in view of the experience with a Commission proposal of 2003 (7) which remained with the Council for over a decade without any agreement being found or in prospect (8). Finally a sector-by-sector legislative approach, focusing on adding access-to-justice provisions in areas in which specific challenges have been identified (such as nature, water, waste and air) would not help in the short term and, in any case, the EU legislature does not appear to be currently receptive (9).

11. The Notice is based on provisions of EU law, including the Charter of Fundamental Rights, and the case-law of the CJEU. It addresses how the public can challenge decisions, acts or omissions of public authorities before a court of law or similar body, covering legal standing, the intensity of scrutiny and the effective remedies to be provided by the national judge, and several other safeguards. In doing so, it provides a clear idea of what is necessary at national level in order to comply with these requirements.

12. In case Member States have to take measures to ensure compliance, they will be helped to make the necessary changes, including via exchanges under the recently adopted Environmental Implementation Review (‘EIR’) (10). The Commission published on 6 February 2017 the first ever comprehensive overview of how EU environmental policies and laws are applied on the ground. This shows that environmental policies and laws work but that there are big gaps in how they are put into practice across Europe. The most pressing implementation gaps across EU Member States are found in the policy fields of waste management, nature and biodiversity, air quality, and water quality and management. The EIR communication and the 28 country-specific reports set the scene for a positive and constructive approach to improving implementation of EU law and the present Notice is an important supplement to that.

13. In case of non-compliance with existing legal requirements under the EU acquis, the Commission will also continue to use infringement procedures to ensure their fulfilment.

14. While focused on the environment, the Notice fits with broader Commission work on access to justice, notably the EU Justice Scoreboard, and on the application of the Charter of Fundamental Rights, and the EU Framework to strengthen the rule of law (11). Effective justice systems play a crucial role in upholding the rule of law and the fundamental values of the European Union, as well as in ensuring effective application of EU law and mutual trust. That is why improving the effectiveness of national justice systems is one of the priorities of the European Semester, the EU's annual cycle of economic policy coordination. The EU Justice Scoreboard assists Member States to achieve more effective justice by providing comparative data on the quality, efficiency and independence of the national justice systems (12). The Commission adopted a new framework to address systemic threats to the rule of law in any of the EU's Member States in its 2014 communication (13). Respect for the rule of law is a prerequisite for the protection of all fundamental values listed in the Treaties, including fundamental rights.

15. The scope of the Notice is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. It does not address environmental litigation between private parties (14). Nor does it concern the judicial review of acts of the EU institutions via the General Court, which is addressed by the Aarhus Regulation, (EC) No 1367/2006. Further, while the Notice is closely aligned with CJEU case-law, only the CJEU itself can provide definitive interpretations.

16. Within these limits, the Notice will contribute to a better implementation of EU environmental law in the Member States by clarifying how the public can rely on national courts, which are often better placed to identify appropriate solutions since they are closer to the facts and their context. In this way, the Notice will also contribute to the rule of law, a fundamental value of the EU legal order.

B. THE LEGAL CONTEXT: NATIONAL COURTS AND EU ENVIRONMENTAL LAW

17. National courts are ‘the ordinary courts’ for implementing EU law within the legal systems of the Member States (15). They have powers to review decisions that are incompatible with EU law and order financial compensation for the damage caused (16).

18. Access to justice in environmental matters is intrinsic to EU environmental law, and draws on fundamental principles of EU law that are reflected in the provisions of the EU Treaties, the Aarhus Convention and secondary legislation as interpreted in case-law of the CJEU.

19. EU environmental law covers EU legislation which contributes to the pursuit of the following objectives of EU policy on the environment (17), set out in Article 191 of the Treaty on the Functioning of the European Union (TFEU): — preserving, protecting and improving the quality of the environment; protecting human health, — prudent and rational utilisation of natural resources, and — promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

20. This legislation creates a wide range of obligations that competent public authorities in Member States must fulfil, and is relevant to significant categories of decisions, acts and omissions under their responsibility.

21. Stressing that EU law is a distinct and autonomous legal order, the CJEU has endorsed and developed general principles — such as those of equivalence and effectiveness (18) — in order to define and support it, while recognising the procedural autonomy of Member States (19), i.e. the power to fix their own detailed procedural requirements.

22. The rule of law includes an effective judicial protection of rights conferred by EU law. This is reflected in EU primary law. Article 19(1) of the Treaty on European Union (TEU) requires that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. In addition, Member States are bound, when they are implementing EU law, by Article 47 of the Charter of Fundamental Rights which enshrines in its first paragraph the right to an effective remedy, providing that ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. It should be recalled that Article 19(1) of the TEU and Article 47 of the Charter only apply in the field of EU law. Article 47 of the Charter corresponds to Article 6 and Article 13 of the European Convention on Human Rights (ECHR) which enshrine, respectively, the right to a fair trial and the right to an effective remedy.

23. Effective judicial protection is closely linked to the uniform interpretation of EU law by the CJEU and the possibility for — and sometimes requirement on — national courts to submit questions concerning the validity and interpretation of acts of EU institutions and bodies to the CJEU by way of preliminary reference under Article 267 of the TFEU. The role of Article 267 may be put in doubt if access to national courts is either impossible or rendered excessively difficult.

24. Since its ratification by the EU and its entry into force, the Aarhus Convention is an integral part of the EU legal order and binding on Member States under the terms of Article 216(2) of the TFEU (20). Within the framework of that legal order, the CJEU therefore has in principle jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (21).

25. The objective of the Convention is ‘to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’ (22). To that end, it obliges contracting parties to guarantee three broad categories of rights for citizens and their associations, namely rights of access to information, rights to participate in decision-making, and rights of access to justice in environmental matters.

26. Access to justice is addressed in Article 9 of the Convention. In its structure, this provision reflects the three abovementioned ‘pillars’ of the Convention and highlights that access to justice rights are auxiliary to, and supportive of, other rights (23). The Aarhus Convention Implementation Guide (24) published by the Aarhus Convention Secretariat provides further guidance for the contracting parties on the interpretation and the implementation of the requirements of the Convention, although it needs to be borne in mind that ‘the Guide has no binding force and does not have the normative effect of the provisions of the Convention’ (25).

27. The CJEU has held that it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with objectives laid down in the Aarhus Convention (26).

28. The EU has adopted legislation on the environment containing explicit access to justice requirements (27).

29. The sizeable body of CJEU case-law that has emerged on access to justice in environmental matters is primarily the result of preliminary references from national courts under Article 267 of the TFEU. A significant number concern access to justice provisions found in the secondary legislation. There are also cases that highlight the importance of general principles of EU law — notably the principle of effectiveness (28).

30. The foregoing represents the broad framework for EU access to justice in environmental matters within Member States. While the framework has been established at EU level, it is at the level of Member States — and in particular, national courts — that it acquires practical reality and meaning.

C. GUARANTEEING ENVIRONMENTAL ACCESS TO JUSTICE

1. PUBLIC INTERESTS, OBLIGATIONS AND RIGHTS RELEVANT TO THE EXERCISE OF JUDICIAL PROTECTION

1.1. Introduction

Access to justice in environmental matters serves the purposes of enabling individuals and their associations to exercise rights conferred on them under EU environmental law. It also helps to ensure that the aims and obligations of EU environmental legislation are attained.

31. Under EU law, access to justice in environmental matters represents a set of supportive rights which serves two purposes. It enables individuals and their associations to exercise the rights conferred on them by EU law, and it helps ensure that the aims and obligations of EU environmental legislation are attained (29).

1.2. Public interests, obligations and rights

EU environmental legislation aims to secure general public interests such as clean air, safe and adequate water resources and a healthy biodiversity. Active involvement of the public is a concomitant environmental public interest that supports them.

32. In legislating to preserve, protect and improve the quality of the environment, the EU legislature has largely legislated in favour of general public interests such as clean air, safe and adequate water resources, a healthy biodiversity and the avoidance of waste. These are general public interests because societal well-being depends on them.

33. The measures put in place by the EU legislature to secure these general public interests include the following: — binding environmental quality objectives and obligations that Member States must respect (30), — duties on Member States to monitor the state of the environment (31), — requirements on public authorities to prepare plans and programmes to reduce pollution and waste (32), — requirements that certain activities should take place only after a permit or consent has first been obtained from a public authority (33), and — requirements that, before consents are given for certain types of plans and projects, environmental assessments should be prepared (34). These measures need to be supplemented at Member State level by national implementing legislation and general regulatory acts and by individual decisions and acts of public authorities.

34. Through a series of steps since the 1980s, the EU has also put in place measures to recognise an auxiliary public interest of actively involving the public in these measures (35). The CJEU has noted the link between access to justice in environmental matters and ‘the desire of the European Union legislature to preserve, protect and improve the quality of the environment and to ensure that, to that end, the public plays an active role’ (36).

1.3. Ensuring an active role of the public, safeguarding rights and upholding obligations

The public and other interests set out in EU environmental law and the related obligations placed on public authorities give rise to procedural and substantive rights for individuals and their associations. These rights need to be protected by national courts.

35. The CJEU has recognised that the public interests mentioned above and obligations placed on public authorities give rise to rights for individuals and their associations, which are to be protected by national courts. These rights are both procedural and substantive in nature. Several procedural and substantive rights may simultaneously be engaged, as where a decision, act or omission of a public authority involves issues of participation of the public as well as fulfilment of substantive environmental protection obligations.

36. In LZ II, the CJEU ruled in the context of the Habitats Directive, 92/43/EEC, that ‘(i)t would be incompatible with the binding effect attributed to a directive by Article 288 TFEU to exclude, in principle, the possibility that the obligations which it imposes may be relied on by those concerned’ (37).

37. This underlines that the rationale for access to justice in environmental matters includes the need to ensure that obligations created by EU environmental law are fulfilled. The conditions for bringing a case before a national court, may, however, vary depending on who is deemed to be concerned. In this context, it is necessary to distinguish between environmental NGOs and individuals.

Environmental NGOs play an important role in ensuring compliance with the obligations of EU environmental law and enjoy a broad right to protect the environment which national courts need to uphold.

38. The involvement of the public has been envisaged as covering not only the role of individuals but also that of their associations (38). Indeed, CJEU case-law recognises that environmental associations — ‘environmental non-governmental organisations or environmental NGOs’ — play a vital role in ensuring compliance with obligations under EU environmental law.

39. In LZ I (also known as ‘Slovak Brown Bears’), the CJEU ruled that ‘it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranarske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law’ (39).

40. The judgment in LZ I is also noteworthy because it concerned a decision by a public authority to authorise the hunting of brown bears in derogation from the provisions on species protection laid down in the Habitats Directive, 92/43/EEC. The species protection provisions of this directive do not aim at protecting individuals but the environment, and this in the general interest of the public. Therefore, the CJEU acknowledged that the claimant environmental NGO had a right that deserved judicial protection in the specific case, such as that of rendering the provisions of the Habitats Directive, 92/43/EEC, enforceable.

41. This is especially important in the field of nature protection, because in this field it may be difficult to argue that decisions, acts of omissions of public authorities can affect specific rights of individuals, such as those relating to human health.

42. The position of the CJEU in LZ I is also consonant with the seventh, 13th and 18th recitals of the Aarhus Convention, which acknowledge the important role that environmental NGOs play in environmental protection. Furthermore, the CJEU's decision in LZ I is not an isolated one. It is consistent with the earlier decision in Janecek that legal as well as natural persons can invoke EU environmental law that aims to safeguard human health (40).

43. In addition to the right of environmental NGOs that the CJEU recognised in LZ I and in Janecek (41), several EU legislative acts recognise the role of environmental NGOs by providing for de lege legal standing for them in relation to specific activities requiring public participation as well as situations of environmental damage. These are examined in more detail in Section C.2.

EU environmental law confers procedural and substantive rights on individuals. These relate in particular to requirements for public authorities to correctly follow a procedure intended to involve the public as well as provisions which concern human health and property.

(a) Procedural rights

44. The ‘public’ under Article 2(4) of the Aarhus Convention also includes individuals and these too have a recognised role in preserving, protecting and improving the quality of the environment. However, the right to rely on obligations imposed on national authorities by EU environmental law before a national court may be restricted by national law to circumstances in which a sufficient interest or an impairment of rights can be demonstrated (42). Access to a national court can therefore be restricted to the enforcement of those provisions which not only impose obligations on public authorities but also confer rights on individuals.

45. Procedural rights usually relate to public participation. They typically have to do with the practical arrangements whereby a public authority informs the public of a proposed decision, receives any submissions, takes these into account and publicly announces its decision. Public participation is envisaged in the Aarhus Convention for: — decisions on specific activities (43), — plans, programmes and policies relating to the environment (44), and — executive regulations and/or generally applicable legally binding normative instruments (45).

46. Express public participation provisions are chiefly — though not exclusively — found in the following EU environmental directives: the Environmental Impact Assessment Directive, 2011/92/EU, the Industrial Emissions Directive, 2010/75/EU; the Public Participation Directive, 2003/35/EC; and the Strategic Environmental Assessment Directive, 2001/42/EC. On the other hand, in LZ II the CJEU construed broadly the mandatory public participation requirements of Article 6(1)(b) of the Aarhus Convention and read them in conjunction with Article 6(3) of the Habitats Directive, 92/43/EEC.

47. Moreover, as the CJEU observed in Kraaijeveld, procedural rights serve the purpose of ensuring the effective implementation of EU environmental law: ‘In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts’ (46). The particular course of conduct alluded to in that case was the undertaking of an environmental impact assessment, which included public consultation. The same rationale holds true for other provisions of EU environmental law requiring public consultation, such as those found in the Strategic Environmental Assessment Directive, 2001/42/EC (47).

(b) Substantive rights

48. In addition to procedural rights, the CJEU has recognised that certain EU environmental secondary legislation confers substantive rights on individuals and their associations.

49. In Janecek the CJEU stated that ‘whenever the failure to observe the measures required by the directives which relate to air quality and drinking water, and which are designed to protect public health, could endanger human health, the persons concerned must be in a position to rely on the mandatory rules included in those directives’ (48).

50. There are two reasons why the substantive right recognised in Janecek — i.e. to have one's health protected via EU environmental legislation — has broad relevance.

51. First, the CJEU itself in the subsequent case, Stichting Natuur en Milieu (49), applied the same rationale to air quality legislation which operates at a wider level than the local level relevant in Janecek. This indicates that the protection of human health is not to be seen as confined to immediate, local threats (50).

52. Second, EU environmental legislation often includes the protection of human health amongst its objectives, in line with Article 35 of the Charter of Fundamental Rights (51). Human health is specifically mentioned in some of the most important pieces of EU environmental legislation, such as the Waste Framework Directive, 2008/98/EC (52), the Water Framework Directive 2000/60/EC (53) and the National Emissions Ceiling Directive (EU) 2016/2284 (54). The rationale of Janecek might, therefore, be relevant well beyond air quality and drinking water legislation.

53. A possible breach of property rights, and related pecuniary damage, stemming from a decision, act or omission of a public authority which infringes environmental law, may also entitle an individual to invoke EU environmental law before a court.

54. In Leth, the CJEU held that ‘the prevention of pecuniary damage, in so far as that damage is the direct economic consequence of the environmental effects of a public or private project, is covered by the objective of protection pursued by Directive 85/337/EEC [now Directive 2011/92/EU]’ (55). The rationale of Leth applies also to other pieces of EU environmental legislation such as the Strategic Environmental Assessment Directive, 2001/42/EC.

55. EU environmental law does not establish a general right to a healthy and intact environment for every individual. However, a natural or legal person may have obtained the right to use the environment for a specific economic or non-profit activity. An example could be an allocated and acquired fishing right in specified waters (56). This may give rise to the need to challenge any decision, act or omission which impacts that specifically allocated right to use the environment.

56. This is especially relevant for EU water and nature legislation. In this regard, the over-arching instrument for water, the Water Framework Directive, 2000/60/EC, defines ‘pollution’ in terms of the introduction of substances or heat which ‘impair[s] or interfere[s] with amenities and other legitimate uses of the environment’. Both the Wild Birds Directive, 2009/147/EC, and the Habitats Directive, 92/43/EEC, refer to a broad range of possible uses of nature, including recreational pursuits (such as hunting), research and education. For these different uses, it is reasonable to suppose that, besides interests, issues concerning rights could also come to the fore.

57. Against this background, the remaining sections of this Notice examine access to justice in environmental matters from several different perspectives: — the precise basis and the conditions on which individual and environmental NGOs can expect to obtain legal standing, — the scope of review, i.e. the grounds of review and the intensity of scrutiny that should apply to contested decisions, acts and omissions, — effective remedies to address decisions, acts and omissions found to be legally flawed, — litigation costs and the factors that need to be taken into account in order to avoid that these are prohibitive, and — the timeliness of procedures and the need to provide the public with practical information.

2. LEGAL STANDING

2.1. Introduction

Legal standing is the entitlement to bring a legal challenge to a court of law or other independent and impartial body in order to protect a right or interest of the claimant regarding the legality of a decision, act or omission of a public authority. Legal standing can vary depending on the subject matter of the contested decision, act or omission. It can also vary depending on whether the claimant is an individual or a recognised environmental NGO.

58. Legal standing — sometimes referred to as locus standi — is the entitlement to bring a legal challenge to a court of law or other independent and impartial body in order to protect a right or interest of the claimant. The entitlement to challenge is in respect of decisions, acts and omissions of public authorities, which may infringe such a right or interest. Decisions, acts and omissions represent the ways in which public authorities fulfil — or take a position on — duties placed on them under EU environmental law, for example to ensure that waste facilities and industrial installations operate under a permit (57). Apart from being a means of ensuring the protection of rights and interests, legal standing represents a means of ensuring accountability in respect of such decisions, acts or omissions.

59. A few EU environmental directives contain access to justice provisions expressly requiring Member States to provide legal standing (58). However, express provisions on access to justice, including standing, are absent in most EU secondary environmental legislation. Nevertheless, despite the absence of express legislative provisions, the requirements concerning legal standing have to be interpreted in the light of the principles established in the case-law of the CJEU.

60. The basis for legal standing varies according to the subject matter of the decision, act or omission sought to be challenged. The following sections distinguish between decisions, acts and omissions concerning: — requests for environmental information and entitlement to receive information (Section C.2.2), — specific activities that are subject to public participation requirements (Section C.2.3), — requests for action under environmental liability rules (Section C.2.4), — other subject matter, such as national implementing legislation, general regulatory acts, plans and programmes and derogations (Section C.2.5).

61. For the first three categories, express legal standing rights can be largely found in secondary EU environmental legislation (59). For the last category, legal standing depends on general principles governing legal standing as interpreted by the CJEU.

62. The extent of legal standing also varies according to whether the person seeking to challenge is an individual, environmental NGO or other entity. This aspect is considered in the different sections below.

2.2. Requests for environmental information and entitlement to receive information

Any natural or legal person submitting an information request enjoys legal standing to challenge a decision, act or omission of the public authority responsible for dealing with that request. Rights to receive information through active dissemination may also entitle individuals and associations to bring legal challenges.

63. EU environmental law confers rights on natural and legal persons to request environmental information (60). The Access to Environmental Information Directive, 2003/4/EC, provides explicitly in its Article 6 for a judicial review procedure to examine acts or omissions by public authorities in relation to requests for environmental information falling within the directive's scope. The right to a review is based on the requirements of Article 9(1) of the Aarhus Convention and is intended to protect the right to make an information request (61). Any natural or legal person submitting an information request enjoys legal standing (62).

64. EU environmental law confers rights on natural and legal persons not only to request but to receive environmental information (63). It is clear from the CJEU's decision in East Sussex that the rights of applicants for environmental information include the right to have the competent public authority correctly fulfil conditions related to the supply of information (64). That case concerned rights to receive information on request but the public is also entitled to receive information through active dissemination by the competent public authorities (65). The fulfilment by public authorities of their obligations to actively disseminate environmental information may, inter alia, be important for safeguarding the right to have one's health protected (66).

2.3. Specific activities that are subject to public participation requirements

Public participation requirements that apply to specific activities confer rights on those who are concerned and entitle them to ask for a judicial review of the decision, act or omission at stake.

65. EU environmental legislation contains a significant number of obligations that require public authorities to make decisions on specific activities that may have effects on the environment. For example, a proposed motorway will require a decision of a public authority consenting to it before building can start. Similarly, a proposed industrial activity may require a decision to be made by a public authority on an industrial emissions permit before it can commence operating. Further, much EU secondary environmental legislation requires public consultation during the decision-making process (67). Mandatory consultation confers participation rights on those members of the public who are entitled to participate.

66. Legal standing to challenge decisions, acts and omissions concerning specific activities that are subject to public participation requirements is based on both express provisions on legal standing found in Article 9(2) of the Aarhus Convention and related EU secondary legislation (68) as well as on case-law of the CJEU. In particular, the CJEU confirmed in Kraaijeveld (69) that a decision, act or omission of a public authority impairing participation rights gives rise to an entitlement to seek a judicial review.

67. Since the Kraaijeveld judgment was delivered, an express legal standing right based on the right to participate has been incorporated into the Aarhus Convention. In particular, Article 9(2) of the Aarhus Convention requires a review procedure before a court of law and/or another independent and impartial body established by law (70) in order to challenge the substantive and procedural legality of any decision, act or omission, subject to the public participation provisions of Article 6 of the Aarhus Convention.

68. Related pieces of EU secondary environmental legislation (71) contain provisions based on the wording of Article 9(2). However, this secondary legislation does not cover all decision-making processes covered by Article 6 — and by extension Article 9(2) — of the Convention. Since Article 9(2) refers to situations in which the public participation provisions of Article 6 of the Aarhus Convention apply, Member States are obliged to have in place a judicial review regime whenever Article 6 of the Convention foresees an obligation concerning public participation.

69. In LZ II (72) the CJEU ruled that the public participation requirements of Article 6(1)(b) of the Aarhus Convention also apply in the context of Article 6(3) of the Habitats Directive 92/43/EEC, in situations where a public authority is obliged by national law to determine whether or not to carry out an appropriate assessment on a project that may have a significant effect on the integrity of a protected Natura 2000 site. Further, it ruled that, because the requirements of Article 6(1)(b) of the Convention apply to such situations, those of Article 9(2) apply to these situations as well.

70. With this judgment, the CJEU clarified that the requirements of Article 9(2) of the Aarhus Convention in conjunction with Article 47 of the Charter of Fundamental Rights might also apply to those areas of environmental law which do not contain specific access to justice requirements. Indeed, while LZ II concerned the Habitats Directive, 92/43/EEC, the rationale behind the CJEU's interpretation lends itself to be applied by analogy to decision-making processes in other sectors of EU environmental law such as water and waste.

71. It is the ‘public concerned’ that benefits from the public participation provisions of Article 6(2) of the Aarhus Convention and by extension the access to justice provisions of Article 9(2) and the corresponding EU secondary legislation. This is defined as ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making’ (73). ‘The public’ is defined as ‘one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups’ (74).

72. However, neither Article 9(2) of the Aarhus Convention nor the provisions of EU secondary legislation grant unconditional access to justice to the members of the public. The Convention and the legislation allow contracting parties and the Member States to impose certain conditions and so to avoid a general legal standing in environmental matters for everyone (actio popularis) (75). Furthermore, both the Aarhus Convention and the EU secondary legislation derived from it provide for a differentiation in legal standing rights. This differentiation is between, on the one hand, individuals, associations, organisations and groups and, on the other, recognised environmental NGOs.

2.3.1. Individuals

For individuals, the precondition of needing to show the ‘impairment of a right’ or a sufficient interest in order to obtain legal standing to bring a challenge concerning a specific activity has to be interpreted and applied in the light of the obligation to grant a wide access to justice in environmental matters. Rights which may be impaired include procedural rights of the individual stemming from EU environmental law (e.g. public participation rights) as well as substantive rights conferred on the individual (e.g. protection of human health, property rights).

73. According to Article 9(2) of the Aarhus Convention as well as Article 11 of the Environmental Impact Assessment Directive, 2011/92/EU, and Article 25 of the Industrial Emissions Directive, 2010/75/EU, the contracting parties and the Member States may restrict access to the courts to those individuals who demonstrate either a sufficient interest or, alternatively, the impairment of a right. The ‘impairment of a right’ doctrine is explained further in Section C.2.5.3.

2.3.2. Environmental NGOs with legal standing de lege

2.3.2.1. General Principle

Recognised environmental NGOs enjoy legal standing de lege to challenge decisions, acts or omissions by public authorities on specific activities which are subject to public participation requirements under EU law.

74. Articles 2(5) and 9(2) of the Aarhus Convention and the related EU legislation giving effect to it recognise the important role of actors such as environmental NGOs by giving them a form of legal standing de lege on the assumption that they meet the relevant requirements laid down in national law. For these NGOs, pre-conditions to legal standing based on a sufficient interest or impairment of a right are deemed to be fulfilled (76). This legal standing de lege has implications not only for the admissibility of a claim but also for the scope of review exercised by the national judge (see Section C.3.2.2.2).

75. The CJEU has clarified the extent of the requirements of national law that NGOs can be expected to fulfil to get this legal standing. It has stated that, although it is for the Member States to make rules defining such requirements, they may not be framed in a way that makes it impossible for NGOs to exercise a right to go to court in order to protect the general interest. The national rules ‘must […] ensure wide access to justice’ (77).

76. The CJEU has held that national legislation is in breach of Article 11 of the Environmental Impact Assessment Directive, 2011/92/EU, where it does not permit NGOs in the sense of Article 1(2) of that directive to rely before the courts, in an action contesting a decision authorising projects ‘likely to have significant effects on the environment’ for the purposes of Article 1(1) of that directive, on the infringement of a rule flowing from EU environment law and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals (78).

77. This rationale applies in all cases involving legal standing de lege, i.e. those within the scope of Article 9(2) of the Aarhus Convention.

2.3.2.2. Specific criteria for legal standing de lege

The criteria that environmental NGOs have to fulfil to qualify for legal standing de lege must not be excessively difficult to satisfy and should take into account the interests of small and local NGOs.

78. National rules may define the requirements that NGOs must fulfil in order to qualify for legal standing de lege. CJEU case-law sheds light on how stringent such rules may be.

(a) Active in the environmental field

79. An engagement in the area of the environment helps ensure that an NGO has useful expertise and knowledge. In Djurgården, the CJEU confirms that ‘a national law may require that such an association, which intends to challenge a project covered by Directive 85/337/EEC [now Directive 2011/92/EU] through legal proceedings, has as its object the protection of nature and the environment’ (79). It cannot be inferred from this formulation that the CJEU approved a requirement that the NGO must have an exclusive object of environmental protection. However, it appears permissible for a Member State to require that the protection of the environment constitutes a dominant or substantial objective of an NGO.

(b) Membership requirement

80. The number of members that an NGO has may be an important indicator that it is active. In Djurgården the CJEU looked at a requirement of national law that an NGO had to have a certain number of members. The CJEU ruled that the number of members required cannot be fixed at such a level that it runs counter to the objective of facilitating access to justice (80). It also stressed the importance of facilitating locally based NGOs, as these may be the most likely to challenge smaller scale projects which do not have a national or regional importance but still have a significant effect on the environment (81). It may be noted that not all NGOs that benefit from de lege standing in Member States are membership-based. Some are charitable foundations. Indeed, claims by such foundations have given rise to important CJEU case-law.

(c) Other criteria

81. In practice, some Member States require an NGO to satisfy other criteria to obtain legal standing de lege. These may relate to the independence or non-profit-making character of the NGO or its having a distinct legal personality under national law. Or they may involve the NGO proving that it has a solid financial basis to pursue an objective of promoting environmental protection. Or they may consist in a minimum duration of existence before legal standing de lege is granted. In this regard, the CJEU reasoning in Djurgården concerning membership requirements, recalled in the previous paragraph, should be taken into account (82).

2.3.3. Non-discrimination against foreign NGOs

The conditions to be fulfilled by environmental NGOs in order to obtain legal standing de lege must not be less favourable for foreign NGOs than for domestic ones.

82. Environmental NGOs of neighbouring Member States may wish to participate in a decision-making process for a specific activity or otherwise be active in relation to it. This is particularly true where a specific activity may have trans-boundary environmental impacts. Article 3(9) of the Aarhus Convention stipulates that ‘the public shall have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’. Thus, when a foreign NGO seeks legal standing, it must not be treated less favourably than domestic NGOs in relation to the conditions to be fulfilled for legal standing de lege.

83. Article 3(9) only prohibits discrimination, so a Member State may require foreign NGOs to fulfil the same conditions as apply to domestic ones. However, these conditions, in particular the procedure to obtain the status of an NGO with legal standing de lege, must not prevent or render it excessively difficult for a foreign NGO to obtain that status (83).

2.3.4. Other associations, organisations and groups

While not enjoying legal standing de lege , other associations, organisations and groups may, subject to national law, enjoy legal standing on the same basis as individuals.

84. As already noted, ‘the public’ under the Aarhus Convention can include ‘one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups’. Thus, even if not entitled to legal standing de lege, associations, organisations and groups may be entitled to legal standing on the same basis as individuals. This can facilitate a merger of claims which might otherwise have to be pursued separately by individual claimants, bringing advantages to both the public concerned (through the sharing of the burden of litigation) and the public authority (by reducing the risk of having to deal with a multiplicity of separate legal challenges).

2.3.5. Prior participation

Member States may not restrict legal standing to challenge a decision of a public authority to those members of the public concerned who participated in the preceding administrative procedure to adopt that decision.

85. A lack of participation in the administrative procedure for adopting a decision may be an issue in the admissibility of a later legal challenge to that decision (84). The CJEU case-law emphasises the role of national courts in protecting substantive rights conferred on individuals and associations under EU law and, at the same time, that the administrative and judicial procedures serve different purposes. For example, the decision of a public authority may give rise to a potential breach of a claimant's right to have his or her health protected independently of any procedural rights of the claimant.

86. In this regard, in Djurgarden, the CJEU held that, in the context of a decision relevant to the Environmental Impact Assessment Directive, 2011/92/EU, ‘an environmental decision-making procedure […] is separate and has a different purpose from a legal review, since the latter may, where appropriate, be directed at a decision adopted at the end of that procedure’ (85). Therefore ‘the members of the public concerned […] must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law of a Member State has given a ruling on a request for development consent, regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views’.

2.4. Requests for action under environmental liability rules

87. The Environmental Liability Directive, 2004/35/EC, aims, amongst other things, to encourage natural and legal persons to play a role in assisting competent authorities to address situations of environmental damage covered by environmental liability rules (86). It allows natural or legal persons affected by such damage or having a sufficient interest in the damage or alleging the impairment of a right caused by the damage to make submissions and requests to the competent national authority to take necessary measures. It envisages that certain NGOs will be deemed to have a sufficient interest or rights capable of being impaired, so entitling them to request action. The competent authority is required to take a decision on the request for action (87).

88. The entitlement to make submissions and request action is formulated in a manner that draws very closely on the wording used in Article 9(2) of the Aarhus Convention and in the related provisions of the Environmental Impact Assessment Directive, 2011/92/EU. Indeed, those entitled to make submissions and request action are also entitled to legally challenge the procedural and substantive legality of a competent authority's decision, act or failure to act on the basis of the submissions and the request (88).

89. The similarity in wording, including with regard to the privileged entitlement of environmental NGOs, means that the CJEU case-law on legal standing described in Section C.2.3 can also be taken into account in interpreting the Environmental Liability Directive, 2004/35/EC.

2.5. Other subject matter, such as national implementing legislation, general regulatory acts, plans and programmes and derogations

2.5.1. General basis for legal standing

The general basis for legal standing to challenge decisions, acts and omissions of Member States in the fields covered by EU environmental law is laid down in national law, but has to be interpreted consistently with the requirements set out in Article 9(3) of the Aarhus Convention and Articles 19(1) TEU and 47 of the Charter of Fundamental Rights.

90. Article 19(1) TEU, which codifies the established principle of effective judicial protection (89), requires that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ At the same time, Article 47(1) of the Charter of Fundamental Rights, which Member States are bound to respect when implementing EU law, provides that ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’.

91. In the specific domain of the environment, Article 9(3) of the Aarhus Convention provides that contracting parties shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. As previously noted, the definition of ‘the public’ includes environmental NGOs.

92. Article 9(3) is broader than Article 9(2) of the Aarhus Convention as the intended beneficiary of legal standing is ‘the public’, which is by definition in the Aarhus Convention broader than the ‘public concerned’. Article 9(3) also refers to acts and omissions by private persons, while Article 9(2) is limited to decisions, acts and omissions of public authorities (90). On the other hand, Article 9(3) leaves the contracting parties the choice between an administrative review procedure and a judicial review procedure. Further, it makes no reference to access criteria such as the impairment of a right or the sufficiency of an interest, nor does it provide for legal standing de lege for environmental NGOs.

93. As a consequence, the CJEU has clarified in LZ I that Article 9(3) does not contain any clear and precise obligation capable of directly regulating the legal position of individuals, since it is subject to the adoption of subsequent measures by contracting parties (91). However, the CJEU has also held that the provisions of Article 9(3), although drafted in broad terms, are intended to ensure effective environmental protection (92) and that ‘it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law’ (93).

94. By virtue of Article 216(2) of the TFEU, the Aarhus Convention is part of the EU legal order (94). The requirements of the EU legal order, which are binding for the Member States in the implementation of Article 9(3) of the Convention, include the uniform application and interpretation of EU law. A key mechanism for ensuring this is the possibility for — and sometimes the duty on — national courts to seek a ruling from the CJEU under Article 267 of the TFEU on the validity or interpretation of specific EU law requirements. This necessitates access to the national courts.

95. In the light of all these considerations, Member States 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.

2.5.2. Legal standing to protect procedural rights under EU environmental law

Legal standing must be provided to individuals and environmental NGOs to ensure respect for EU environmental procedural provisions, such as those laying down decision-making procedures involving public participation, for example in procedures concerning plans and programmes.

96. Procedural rights are particularly important in the case of plans and programmes. Many pieces of EU environmental legislation require that plans and programmes be adopted to ensure that envisaged environmental objectives are achieved. These documents can serve as a means of managing interventions over time (e.g. river basin management plans) (95) or of setting out actions to respond to specific problems (e.g. air quality plans to lower excessive levels of air pollution) (96). In addition to requiring certain kinds of plan and programme to be adopted, EU environmental legislation also sets requirements for the environmental assessment of plans and programmes (e.g. land-use plans) which can have a significant impact on the environment (97).

97. Much of the legislation concerned envisages a stage of mandatory public consultation during the decision-making process. In this regard, Article 7 of the Aarhus Convention requires public consultation for plans and programmes coming within its broad scope. On this basis, plans and programmes related to the environment which are mandatory under EU law but for which no explicit public participation provisions have been established, may still need to include public consultation.

98. Legal standing to challenge decisions, acts and omissions of public authorities concerning plans and programmes covered by Article 7 of the Convention can be defined in the light of the CJEU case-law on public participation. Applying the rationale of the ruling in Kraaijeveld (98) (which concerned a project rather than a plan or programme), the beneficiaries of participation rights are entitled to ask for a review by a court of whether the required course of conduct in the decision-making process for a plan or programme was respected.

99. The CJEU case-law indicates that legal standing is not only relevant for decisions, acts or omissions on individual plans and programmes, but is also relevant for national legislation and general regulatory acts establishing the procedural requirements for such plans and programmes. Indeed, in Terre Wallonne and Inter-Environnement Wallonie (99), the CJEU ruled that an action programme required under the Nitrates Directive, 91/676/EEC, also requires in principle a strategic environmental assessment (which includes public consultation) under the Strategic Environmental Assessment Directive, 2001/42/EC. As a result, a national court annulled parts of a national order establishing a nitrates action programme on the basis that it had failed to provide for a strategic environmental assessment. In the subsequent case, Inter-Environnement Wallonie, the CJEU confirmed the appropriateness of annulment in these circumstances (100).

100. It is clear that both individuals and environmental NGOs can benefit from legal standing to protect procedural rights. This is because both are entitled to exercise such rights.

2.5.3. Legal standing to protect substantive rights

Member States need to ensure legal standing to challenge very broad categories of decisions, acts and omissions in order to ensure that an extensive set of substantive rights can be exercised.

101. It is clear from the CJEU case-law that legal standing needs to be granted to individuals and environmental NGOs to protect human health via EU environmental legislation, property rights covered by the objectives of EU environmental legislation, and, in the case of environmental NGOs, to protect the environment via the requirements of EU environmental legislation.

102. The application of the ‘impairment of rights doctrine’ (i.e. the doctrine followed by certain Member States according to which an individual needs to demonstrate to a court that a right that they enjoy has been impaired) has presented challenges because environmental protection usually serves the general public interest and does not usually aim at expressly conferring rights on the individual. The alternative approach of requiring a sufficient interest appears to raise fewer challenges, but similar considerations to those described for the impairment of rights doctrine should apply mutatis mutandis.

103. The CJEU has confirmed that it is for the Member States to define what constitutes the impairment of a right (101). However, it has also clarified that the wording of Article 11(3) of the Environmental Impact Assessment Directive, 2011/92/EU, and the second paragraph of Article 9(2) of the Aarhus Convention mean that this discretion is qualified by the need to respect the objective of ensuring wide access to justice for the public concerned (102). Further, the discretion of Member States on what constitutes the impairment of a right cannot make it excessively difficult to protect the rights conferred by EU law. Therefore, legal standing of members of the public concerned by the decisions, acts or omissions which fall within the scope of the Environmental Impact Assessment Directive, 2011/92/EU — and Article 9(2) of the Aarhus Convention — cannot be interpreted restrictively (103).

104. The CJEU has upheld these rights in the context of the following decisions, acts and omissions of public authorities: the omission of a public authority to prepare a legally required air quality plan (104), adopted national emission reduction programmes (105) and the grant of a derogation under nature legislation (106). The case-law therefore underlines the need for Member States and national courts to ensure legal standing to challenge very broad categories of decision, act and omission on the basis of an extensive set of substantive rights.

2.5.4. Criteria that individuals and NGOs must satisfy to claim legal standing

Member States 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 substantive and procedural rights conferred by EU law.

105. The wording of Article 9(3) of the Aarhus Convention (‘where they meet the criteria, if any, laid down in its national law’, grants the contracting parties a certain degree of discretion to establish the criteria for standing.

106. Member States are not obliged to give standing to any and every member of the public (actio popularis) or any and every NGO. However, according to the Aarhus Convention Implementation Guide, any such criteria should be consistent with the objectives of the Convention regarding ensuring access to justice (107). The parties may not take the clause ‘where they meet the criteria, if any, laid down in its national law’ as an excuse for introducing or maintaining criteria so strict that they effectively bar all, or almost all environmental organisations from challenging acts or omissions that contravene national law relating to the environment (108). Further, in accordance with the principle of effectiveness, Member States cannot adopt criteria which render it impossible or excessively difficult to exercise rights conferred by EU law.

107. Appropriate criteria established by the Member States in the context of Article 9(2) of the Aarhus Convention will also be appropriate in an Article 9(3) context. However, unlike Article 9(2), Article 9(3) does not expressly provide for legal standing de lege for environmental NGOs. This raises the question of whether Member States are entitled to apply the impairment of rights doctrine without any allowance for the fact that an NGO will not be able to demonstrate an impairment in the same way as an individual. In this regard, considering the role of environmental NGOs in protecting general environmental interests such as the quality of air and biodiversity, Member States which apply the impairment 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.

3. SCOPE OF JUDICIAL REVIEW

3.1. Introduction

The scope of judicial review determines how national judges will assess the legality of contested decisions, acts and omissions. It has two aspects. The first concerns the possible grounds of judicial review, i.e. the areas of law and legal arguments that may be raised. The second concerns the intensity of scrutiny (or the standard of review).

108. The scope of judicial review is a key element of an effective system of judicial review as it determines how national judges will assess the legality of contested decisions, acts and omissions. It has two main aspects. The first relates to the areas of law and the legal arguments which can be raised in a legal challenge, in particular as regards whether a claimant is entitled to invoke all relevant provisions of EU environmental law in order to build a case. This is addressed in Section C.3.2. The second aspect relates to the intensity of scrutiny to be exercised by judges when assessing legality and is addressed in Section C.3.3.

109. A number of EU directives that expressly provide for access to justice contain provisions relevant to the scope of judicial review (109). However, most environmental secondary legislation lacks such provisions and, to understand the appropriate scope, it is necessary, as with legal standing, to refer to the case-law of the CJEU.

3.2. Possible grounds of judicial review

110. This aspect is particularly relevant in those jurisdictions which grant legal standing only on the basis that the rights of the claimant have been impaired. In these, the possible grounds of judicial review are often traditionally restricted to those legal provisions which confer the individual rights that provide the basis for the legal standing invoked. This aspect is also relevant to restrictions aimed at limiting claimants to arguments they have raised in prior administrative proceedings (preclusion) or at preventing claimants from abusing judicial processes by making irrelevant legal submissions.

3.2.1. Specific activities that are subject to public participation requirements

111. This category is covered by Article 9(2) of the Aarhus Convention. As noted above, Article 9(2) is aimed at providing for access to justice in relation to decisions, acts or omissions on specific activities covered by the public participation requirements of Article 6 of the Convention.

112. As also noted, Article 9(2) allows Member States to restrict legal standing on the basis of claimants who are individuals having to show the impairment of a right or a sufficient interest. In terms of the possible grounds of judicial review, this gives rise to a potential difference in how the claims of individuals and environmental NGOs may be treated. This is especially relevant to decisions, acts and omissions that concern the Environmental Impact Assessment Directive, 2011/92/EU, and the Industrial Emissions Directive, 2010/75/EU, the main pieces of EU secondary legislation that give effect to Article 9(2). However, in LZ II (110) the CJEU confirmed that the scope of Article 6 of the Aarhus Convention — and hence of Article 9(2) — is wider than that of these EU directives.

3.2.1.1. Individuals

If it makes the admissibility of legal challenges brought by individuals subject to the condition of impairment of an individual right, a Member State is also authorised to provide that the annulment of an administrative decision by a national court requires the infringement of an individual right of the claimant.

113. In Commission v Germany, the CJEU ruled that where, in accordance with the access to justice provisions of the Environmental Impact Assessment Directive, 2011/92/EU, and the Industrial Emissions Directive, 2010/75/EU, a Member State limits the legal standing for individuals to situations where rights are impaired, it ‘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’ (111). This interpretation can apply in respect of other contested decisions, acts and omissions covered by Article 9(2) of the Aarhus Convention.

114. This means that, under an impairment of rights regime, in applications lodged by individuals, the national court can confine its examination to the provisions which entitled the individual to bring the legal challenge.

3.2.1.2. Recognised environmental NGOs

For legal challenges falling within the scope of Article 9(2) of the Aarhus Convention, recognised environmental NGOs are not restricted in the legal grounds they can plead and are entitled to invoke any provision of EU environmental law.

115. The restriction of pleas described in Section C.3.2.1.1 does not apply to environmental NGOs which fulfil the criteria laid down in national law in order to obtain legal standing de lege.

116. In Trianel, the CJEU clarified that these NGOs are entitled to rely on any provision of EU environmental law which has direct effect and on national law implementing EU law. It held that if ‘the national legislature is entitled to confine to individual public-law rights the rights whose infringement may be relied on by an individual in legal proceedings […] such a limitation cannot be applied as such to environmental protection organisations without disregarding the objectives of the last sentence of the third paragraph of Article 10a of Directive 85/337/EEC’ (112).

117. This means that an environmental NGO which has brought proceedings on the basis of legal standing de lege is entitled to invoke any provision of EU environmental law which it considers to have been infringed.

3.2.2. Subject matter falling under Article 9(3) of the Aarhus Convention

The grounds to be examined in judicial reviews falling under Article 9(3) of the Aarhus Convention should, as a minimum, cover the provisions of law on which the claimant's entitlement to legal standing is based.

118. Article 9(3) of the Aarhus Convention provides for legal standing to challenge acts and omissions not covered by Article 9(1) or (2) of the Aarhus Convention.

3.2.2.1. Individuals

119. Under Article 9(3) of the Aarhus Convention, members of the public have access to judicial proceedings where they meet the criteria laid down in national law. Thus, under an impairment of rights approach, Member States could confine the scope of review to legal pleas related to the rights that the claimant argues have been impaired.

3.2.2.2. Environmental NGOs

120. In the absence of legal standing de lege, environmental NGOs are entitled, as a minimum, to a judicial review in respect of those provisions of law which give rise to actionable rights and interests. As is evident from Sections C.1 and 2, and in particular the CJEU's judgment in LZ II, environmental NGOs enjoy a broad right to protect the environment and invoke environmental obligations before national courts.

3.2.3. Preclusion and other restrictions

The scope of the review by a national court may not be reduced to the objections which have already been raised within the time-limit set during the administrative procedure. However, courts can treat as inadmissible arguments submitted abusively or in bad faith.

121. In Commission v Germany the CJEU ruled that it is not possible to restrict the ‘scope of the review by the courts to the objections which have already been raised within the time-limit set during the administrative procedure which led to the adoption of the decision’. The CJEU justified its position by pointing to the obligation to ensure a review of both the substantive and procedural legality of the contested decision in its entirety (113). This judgment is relevant to decisions, acts and omissions covered by Article 11 of the Environmental Impact Assessment Directive, 2011/92/EU and Article 25 of the Industrial Emissions Directive, 2010/75/EU and to decisions, acts and omissions falling under Article 9(2) of the Aarhus Convention. It is also applicable to acts and omissions falling under Article 9(3) of the Convention, because legal challenges to these also cover substantive and procedural legality (see Section C.3.3.3).

122. While preclusion is not permitted, the CJEU has indicated that national legislatures ‘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’ (114). In this regard, it is for the Member States to lay down rules which are in conformity with the general requirement to provide for judicial review of the substantive and procedural legality of decisions, acts and omissions.

3.3. Intensity of scrutiny/standard of review

Under Article 9(2) and Article 9(3) of the Aarhus Convention, Member States are to ensure an effective judicial review of the substantive and procedural legality of decisions, acts and omissions falling within the scope of these provisions, even if EU secondary legislation does not make any explicit reference to a standard of review that covers both these aspects of legality. Scrutiny should, where necessary, extend to the legality of legislation and regulatory acts where these reduce or impair procedural and substantive rights.

123. The intensity of scrutiny or standard of review determines how thoroughly the national court is obliged to assess the legality of the decision, act or omission at stake. Approaches vary considerably across Member States. They can extend from a focus on procedural issues to a full review of contested decisions, acts or omissions, with a possibility for judges to replace the findings of the administration with their own assessment.

124. The intensity of scrutiny or standard of review is not laid down in detail in the Aarhus Convention or EU secondary legislation. However, the case-law of the CJEU sheds some light on the minimum requirements to be fulfilled for the judicial review to be considered effective.

3.3.1. Requests for environmental information

Member States must ensure an effective judicial review of the right to request environmental information that covers the relevant principles and rules of EU law. The latter include specific conditions that a public authority must fulfil under binding EU provisions on access to environmental information.

125. Legal challenges to decisions concerning requests for environmental information fall within the scope of Article 9(1) of the Aarhus Convention. The Access to Environmental Information Directive, 2003/4/EC, contains access to justice provisions (115) which reflect the requirements of Article 9(1). They provide that Member States are to ensure that any person requesting information under the directive has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. They do not, however, determine the extent of the judicial review required by the directive.

126. In East Sussex, the CJEU was asked to interpret the scope of review required under the Access to Environmental Information Directive, 2003/4/EC. It held that ‘in the absence of further detail in EU law, it is for the legal systems of the Member States to determine that extent, subject to observance of the principles of equivalence and effectiveness’ (116). In the specific context of the access to justice provisions of the directive, the CJEU clarified that an effective review needs to meet the objective of providing for a general scheme to ensure that any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of public authorities, without that person having to state an interest (117). With regard to the contested administrative decision to charge an applicant certain costs for responding to an information request, the CJEU in East Sussex held that the national court has at least to examine whether or not relevant conditions in the directive were met (118).

3.3.2. Other subject matter such as specific activities requiring public participation; environmental liability; plans and programmes; and derogations; national implementing legislation and regulatory acts

The CJEU case-law provides guidance on how the scrutiny of decisions, acts and omissions under EU environmental legislation should be carried out.

3.3.2.1. The need to scrutinise both procedural and substantive legality

127. The judicial review provided for under Article 9(2) of the Aarhus Convention — and under the EU secondary legislation transposing it — is required to assess the substantive and procedural legality of contested decisions, acts and omissions. However, neither the Aarhus Convention nor the EU secondary legislation specifies the extent of the review of substantive and procedural legality that needs to be undertaken.

128. In a similar vein, Article 9(3) of the Aarhus Convention does not provide an explicit obligation to establish a review system in which the substantive and procedural legality of an act or omission is assessed. In the context of EU secondary legislation, only the Environmental Liability Directive, 2004/35/EC, currently expressly provides for this. Nevertheless, the case-law of the CJEU, notably East Sussex and Janecek, indicates that an EU principle of effective judicial review covering substantive and procedural legality applies to acts and omissions falling under Article 9(3) of the Aarhus Convention. Otherwise it could not be ensured that the objectives of, and the rights conferred by, EU environmental law could be sufficiently protected by national courts. According to the Aarhus Convention Implementation Guide, the standard of review to be applied in the context of Article 9(3) is identical to the one to be applied in the context of Article 9(2) of the Convention, which means that a national court should examine both substantive and procedural legality (119).

129. The CJEU case-law makes clear that a review confined to procedural legality would not be in compliance with the obligations stemming from Article 9(2) and the related EU secondary legislation. In Commission v Germany, the CJEU held that ‘the very objective pursued by Article 11 of Directive 2011/92/EU and Article 25 of Directive 2010/75/EU 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’ (120)

130. More generally, in East Sussex (121), the CJEU held that a system of judicial review complies with the principle of effectiveness ‘if it enables the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law when reviewing the lawfulness of the decision’.

131. The conclusion to be drawn from East Sussex is that, even if the standard of review is not specified in EU law, the way in which a review is carried out has to be effective in upholding rights and in ensuring that the objectives of the relevant EU legislation are achieved.

3.3.2.2. Procedural legality

132. The Aarhus Convention Implementation Guide defines procedural illegality as a case where the public authority has violated procedures set out in law (122).

133. Procedural shortcomings which may lead to the illegality of a decision, act or omission can be related to (1) the competence of the authority to take the decision or act that is at stake; (2) a mandatory procedure laid down for the decision-making process (e.g. public consultation or the undertaking of an environmental impact assessment); or (3) the form in which a decision, act or omission is found.

134. While (1) and (3) are usually determined by Member States in line with their procedural autonomy, (2) is more likely to be determined by EU law where mandatory public participation requirements are laid down in the Aarhus Convention and related EU secondary legislation. For instance, the Environmental Impact Assessment Directive, 2011/92/EU, sets out formal public consultation requirements which a public authority has to fulfil when carrying out an environmental impact assessment. Fulfilling these requirements is essential in order to ensure effective public participation in the decision-making process. As a consequence, applying the approach recalled above, the national court needs to be empowered to examine compliance with these formal requirements and decide on adequate remedies in case of shortcomings in the procedure. Mandatory formal requirements are not at the discretion of the public authority.

135. The scrutiny of procedural legality may concern the scope for regularising the unlawful measures of a private party or a public authority. The CJEU has allowed for the possibility of regularisation but attached conditions as to its use (123). In Križan, in the context of an authorisation procedure for a landfill, the CJEU was asked to consider the scope for rectifying an error made by a public authority (specifically, a failure to make available certain information in a procedure to approve a landfill) at the stage of an administrative appeal from the decision of that authority. The CJEU confirmed that regularisation was possible, provided all required options and solutions remained possible at the appeal stage (124). This was a matter for the national court to determine (125).

3.3.2.3. Substantive legality

136. Substantive illegality is defined by the Aarhus Convention Implementation Guide as a case where the substance of the law has been violated (126).

(a) Facts of the case

137. A first aspect of reviewing the substantive legality concerns the facts of the case. Gathered by the administration and eventually amended in a public consultation process, they are the basis on which the competent authority decides whether or not to take any decision or action and with which content and justification. Where the facts are incomplete or wrong, or interpreted wrongly, the mistake has a direct consequence on the quality of the administrative decision taken and may jeopardise the objectives of EU environmental law.

138. In East Sussex, the CJEU confirmed that, in the absence of EU rules, it is for the legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. In this regard, it must not be made impossible in practice or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (127).

139. National courts are not generally required to carry out any information-gathering or factual investigations of their own. However, in order to ensure an effective review of the decisions, acts or omissions at stake, a minimum standard has to be applied to the examination of the facts in order to ensure that a claimant can exercise his or her right to ask for a review in an effective manner also so far as the examination of facts is concerned. If a national court could never review the facts on which the administration based its decision, this could, from the outset, prevent a claimant from presenting effectively a potentially justified claim.

(b) Assessment of the merits of a decision, act or omission

140. When they draw conclusions from the facts of a case and the applicable legislation, administrative decision-makers usually enjoy a wide discretion. The CJEU recognises that a limited review of the merits of a decision, act or omission can be compatible with EU law. As noted above, the CJEU in East Sussex held that, while a limited judicial review does not per se make it excessively difficult to exercise the rights conferred by EU law, it must, as a minimum, enable the court hearing an application to apply effectively the relevant principles and rules of EU law (128).

141. This means that the standard of review applied has to ensure that the objectives and the scope of the EU law at stake are safeguarded. It also has to take into account the extent of the decision-maker's discretion in evaluating the facts and drawing conclusions and findings from them.

142. The case-law of the CJEU provides clarity on how national judges should scrutinise the discretion of public authorities in several specific contexts.

143. In the context the Environmental Impact Assessment Directive, 2011/92/EU, the CJEU judgments in Mellor and Gruber (129) establish that a decision taken by an administration not to carry out an environmental impact assessment on a project can be challenged before a national court by a member of the public concerned. In particular, an effective judicial review must cover the legality of the reasons for the contested screening decision (130). This includes the question of whether the project has a likely significant effect on the environment. Further, with regard to the same directive, the CJEU in Commission v Germany held that a Member State cannot limit the scope of a judicial review to the question of whether a decision not to carry out an environmental impact assessment was valid. It observed that excluding the applicability of judicial review in cases in which, having been carried out, an environmental impact assessment is found to be vitiated by defects — even serious defects — would render largely nugatory the provisions of the directive relating to public participation (131).

144. In the context of Article 6(3) of the Habitats Directive, 92/43/EEC, the CJEU ruled in Waddenzee (132) that the competent public authorities may only authorise an activity in a protected Natura 2000 site where, taking into account the conclusions of an appropriate assessment, no reasonable scientific doubt remains that, in the light of the site's conservation objectives, the activity will not adversely affect the integrity of the site. This means that, when called upon to review a decision authorising such an activity, the national judge has to determine whether or not the scientific evidence relied upon by the public authority leaves no reasonable doubt.

145. The national judge may thus be called upon to take into account the relevant scientific evidence, on which environmental measures are normally based. The formulation of the ruling in Case Waddenzee indicates that the test of whether there is no reasonable doubt is an objective one and cannot be treated by the national court as a subjective one lying exclusively within the public authority's own discretion.

146. In the context of a requirement to prepare air quality plans under ambient air quality legislation, the CJEU in Janecek noted that ‘while the Member States thus have a discretion, Article 7(3) of Directive 96/62/EC includes limits on the exercise of that discretion which may be relied upon before the national courts (see, to that effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 59), relating to the adequacy of the measures which must be included in the action plan with the aim of reducing the risk of the limit values and/or alert thresholds being exceeded and the duration of such an occurrence, taking into account the balance which must be maintained between that objective and the various opposing public and private interests’ (133). Thus, in this judgment, the CJEU envisages that the scrutiny of the national judge should extend to the adequacy of measures in the light of the relevant interests at stake in that case. Similarly, in the context of a requirement on Member States to draw up programmes to reduce emissions of specific pollutants in order to comply with ceilings on such emissions set by the National Emissions Ceiling (NEC) Directive, (EU) 2016/2284 (134), the CJEU in Stichting Natuur en Milieu held that judicial scrutiny should extend to whether national programmes contained appropriate and coherent policies and measures capable of reducing emissions to the levels required by emissions ceilings (135).

147. In the same vein, the intensity of judicial scrutiny that the CJEU expected in Janecek and Stichting Natuur en Milieu is relevant in the domains of EU water and waste legislation, where requirements on competent public authorities to prepare plans and programmes also fulfil a key role in addressing environmental objectives.

148. In Stichting Natuur en Milieu, the CJEU noted the general obligation on Member States to refrain from taking any measure, general or specific, liable seriously to compromise the attainment of a result required by a directive (136). This is relevant where it is argued to the national judge that a decision aimed at implementing one EU environmental law will harm the implementation of another.

149. Common threads running through the above cases and East Sussex are the importance of the specificities of individual pieces of EU legislation and the correct interpretation of EU law during the decision-making process. Much of the case-law mentioned arises from preliminary references from national courts aimed at enabling them to verify whether the administrative decision-maker applied a correct interpretation of EU law. In this context, it is also important to recall that national courts are obliged to apply relevant EU law ex officio, irrespectively of what the parties in the proceedings invoke if, by virtue of national law, they must raise points of law based on binding domestic rules which were not raised by the parties (137).

150. The principle of proportionality is also relevant when account is being taken of the specificities of EU environmental legislation (138).

(c) Scrutinising national legislation and regulatory acts

151. As noted in Section C.1.2, EU environmental legislation to safeguard public interests — including the interest of public involvement — will depend, in part, on national implementing legislation and general regulatory acts. It cannot be excluded that legislative and regulatory acts will themselves sometimes be flawed, and more restrictive in recognising the rights mentioned in Section C.1 than are warranted by the EU environmental legislation concerned. Flawed national implementing legislation and regulatory acts can result in a lack of uniform application of EU environmental law, and the CJEU has, therefore, recognised the necessity of providing for their review in certain circumstances.

152. The Aarhus Convention excludes legislative acts from its scope (139) and the Environmental Impact Assessment Directive, 2011/92/EU, excludes from its scope ‘projects the details of which are adopted by a specific act of national legislation’. However, in Boxus, and Solvay, the CJEU confirmed that national courts must be ready to scrutinise national legislative acts to ensure that they meet any conditions that would justify their exclusion from environmental impact assessment requirements. These cases related to national legislation that purported to lay down requirements concerning specific elements of airport and railway infrastructure, independently from the usual administrative procedures. The CJEU considered that the exception for legislative acts only applies where certain conditions are met, and observed that the relevant access to justice provisions of the Aarhus Convention and the Environmental Impact Assessment Directive, 2011/92/EU 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 (140). National courts are therefore obliged to review whether the conditions justifying exclusion are fulfilled (141).

153. In Inter-Environnement Wallonie, the CJEU stressed the importance of national courts scrutinising legislative acts in order to ensure fulfilment of EU environmental law requirements concerning plans and programmes (142). In Stadt Wiener Neustadt, the CJEU referred to the role of the national court in ascertaining whether national legislation was compliant with the Environmental Impact Assessment Directive, 2011/92/EU in relation to regularisation of unlawful measures (143). In that case, it held that EU law precluded national legislation that provided that a prior environmental impact assessment must be deemed to have been carried out for certain projects that had, in actuality, failed to undergo an assessment. It noted that such legislation could frustrate the possibility to obtain an effective remedy under reasonable conditions (144).

(d) Examining the validity of acts adopted by EU institutions and bodies

154. Article 267 of the TFEU provides a means whereby national courts can put questions to the CJEU on the validity of EU legislation and acts. The use of this possibility is illustrated by Standley, in which, following questions posed by a national court, the CJEU, amongst other things, examined the validity of the Nitrates Directive, 91/676/EEC in the light of the ‘polluter pays’ principle set out in Article 191 of the TFEU (145). Similarly, in Safety Hi Tech, the CJEU reviewed the validity of the Ozone Regulation, (EC) No 3093/94 [now (EC) No 2037/2000], against the stipulation in Article 191 of the TFEU that EU environmental policy should aim at a high level of environmental protection (146). Eco-Emballages SA, which, inter alia, featured a question about the validity of a Commission directive adopted under the Packaging Waste Directive, 94/62/EC, shows how Article 267 of the TFEU can be used in relation to a subsidiary act adopted at EU level (147).

4. EFFECTIVE REMEDIES

4.1. Introduction

There is a general requirement on every body of a Member State to nullify the unlawful consequences of a breach of EU environmental law. Member States must also refrain from taking any measures that can seriously compromise the attainment of a result prescribed by EU environmental law. Member States have discretion with regard to effective remedies, provided that they comply with the principles of equivalence and effectiveness.

155. It will generally not be sufficient for a judicial review to determine whether a particular decision, act or omission was lawful. It will also be necessary for the national court to consider effective remedies — sometimes referred to as reliefs — where the conduct of the public authority is found to have been contrary to EU law. The CJEU has derived from the principle of cooperation in good faith now laid down in Article 4(3) of the TEU a requirement on every organ of a Member State to nullify the unlawful consequences of a breach of EU law (148). The duty of cooperation also requires that breaches be prevented before they occur, with Member States being obliged to refrain from taking any measures that can seriously compromise the attainment of a result prescribed by EU environmental law (149). The legal systems of the Member States must therefore provide for effective remedies that comply with these requirements.

156. The detailed procedural rules applicable to effective remedies are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States. This is provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (150). With regard to the latter principle, the CJEU has also relied on standards deriving from Article 47(1) of the Charter of Fundamental Rights of the EU which enshrines the right to an effective remedy (151).

157. The Aarhus Convention also refers to effective remedies. Article 9(4) requires that judicial review procedures to challenge decisions, acts and omissions shall provide adequate and effective remedies, including ‘injunctive relief’ as appropriate. This is an auxiliary requirement to those of Article 9(1),(2) and (3) of the Aarhus Convention.

4.2. Remedies in case of minor procedural defects

Minor procedural defects do not require remedies, provided it can be established — without placing any burden on the applicant for judicial review — that they did not impact on the contested decision.

158. In Altrip, which concerned questions of interpretation arising from alleged irregularities in an environmental impact assessment carried out on a proposed flood retention scheme, the CJEU noted that, ‘it is unarguable that not every procedural defect will necessarily have consequences that can possibly affect the purport of a decision’ (152). It ruled that effective remedies such as revocation need not arise if a contested decision would not have been different without the procedural defect invoked (153). However, it also ruled that the applicant for judicial review could not be required to prove a causal link between the procedural defect and the contested decision (154). Instead, it was for others to provide evidence that the procedural defect would have made no difference to the outcome (155).

4.3. Suspension, revocation or annulment of unlawful decisions or acts, including disapplication of legislation and regulatory acts

National courts must consider taking general or particular measures to address a lack of compliance with EU environmental law. These may need to include the suspension, revocation or annulment of unlawful decisions or acts, and the disapplication of legislation and regulatory acts.

159. In Wells, which concerned the grant of a consent for mining operations without an environmental impact assessment having first been carried out, the CJEU considered the scope of the obligation to remedy the failure to carry out an environmental impact assessment. It held that ‘the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project’ (156). It also noted that ‘(i)t is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects’ (157).The CJEU saw the suspension or revocation of the contested consent as being a step towards fulfilling an omitted requirement, namely the undertaking of an environmental impact assessment (158).

160. In Boxus, and Solvay, the CJEU considered how a national court should deal with a situation where national legislation did not meet the criteria to justify the non-application of environmental impact assessment requirements. It ruled that the national court should be ready to set aside the flawed legislation (159). In