LB and Others v College van burgemeester en wethouders van de gemeente Echt-Susteren.
Date: 2021-01-14
49


The review procedures referred to in Article 9(3) of that convention may thus be subject to ‘criteria’, from which it follows that, in principle, Member States may, in the context of the discretion they have in that regard, establish procedural rules setting out conditions that must be satisfied in order to be able to pursue such review procedures (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C–664/15, EU:C:2017:987, paragraph 86).
50


The Court has already ruled that the right to bring proceedings set out in that provision would be deprived of all useful effect if, by imposing those conditions, certain categories of ‘members of the public’ were to be denied of any right to bring proceedings (see, to that effect, judgments of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C–664/15, EU:C:2017:987, paragraphs 46 and 48, and of 3 October 2019, Wasserleitungsverband Nördliches Burgenland and Others, C–197/18, EU:C:2019:824, paragraph 34).
55


It follows from the Court’s case-law that members of the ‘public concerned’ within the meaning of the Aarhus Convention must be able to bring a legal action against the acts referred to in Article 9(2) of that convention, whatever role they may have played in the examination of the application, and that the parties to that convention cannot, therefore, provide for the inadmissibility of such an action on the ground that the applicant participated in the decision-making procedure of the contested decision and was able to put forward his or her point of view on this occasion (see, to that effect, regarding similar provisions of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), judgment of 15 October 2009, Djurgården-Lilla Värtans Miljöskyddsförening, C–263/08, EU:C:2009:631, paragraphs 38 and 39).
56


Participation in an environmental decision-making procedure under the conditions laid down in that convention is separate from the exercise of a legal review and has a different purpose from the latter, since that review may, where appropriate, be directed at a decision adopted at the end of that procedure. Therefore, participation in the decision-making procedure has no effect on the conditions for access to that review procedure (see, to that effect, judgment of 15 October 2009, Djurgården-Lilla Värtans Miljöskyddsförening, C–263/08, EU:C:2009:631, paragraph 38).
58


Lastly, it should be noted that the objective of ensuring ‘wide access to justice’ provided for in Article 9(2) of the Aarhus Convention and compliance with the effectiveness of that provision would not be ensured by legislation which would make the admissibility of an action brought by a non-governmental organisation conditional on the role it may or may not have played during the participatory phase of the decision-making procedure, even though that phase does not have the same purpose as the exercise of judicial proceedings and the assessment that such an organisation may have of a project may, moreover, evolve depending on the outcome of that procedure (see, to that effect, judgment of 15 October 2009, Djurgården-Lilla Värtans Miljöskyddsförening, C–263/08, EU:C:2009:631, paragraphs 38, 39 and 48).
63


Thus, it follows from the case-law of the Court that that provision does not, in principle, preclude the admissibility of the actions to which it refers from being made subject to the condition that the applicant has submitted his or her objections in good time following the opening of the administrative procedure, since such a rule may allow areas for dispute to be identified as quickly as possible and, where appropriate, resolved during the administrative procedure so that judicial proceedings are no longer necessary (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraphs 88 to 90).
64


In such circumstances, notwithstanding the fact that it constitutes, as a precondition for bringing judicial proceedings, a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the Court has found that such a condition may be justified, in accordance with Article 52(1) of the Charter, to the extent that it is provided for by law, it respects the essence of that law, it is necessary, subject to the principle of proportionality, and it genuinely meets objectives of the public interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C–664/15, EU:C:2017:987, paragraph 90).
66


It follows from the order for reference that a condition of admissibility of an action based on prior participation in the decision-making procedure is provided for by a law, for the purposes of Article 47 of the Charter. That condition moreover respects the essential content of the fundamental right to effective judicial protection, as enshrined in that article, since it does not call into question that right as such but merely imposes an additional procedural step in order to exercise it (see, to that effect, judgment of 27 September 2017, Puškár, C–73/16, EU:C:2017:725, paragraph 64). In addition, it meets the objective of general interest referred to in paragraph 63 of this judgment and it is not evident that any disadvantages caused by the obligation to participate in the procedure preparatory to the contested decision are clearly disproportionate to that objective (see, to that effect, judgment of 27 September 2017, Puškár, C–73/16, EU:C:2017:725, paragraphs 66, 67 and 69).