Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd.
Date: 2017-12-20
31


The Court has already held that Article 4(1)(a)(i) to (iii) of Directive 2000/60 must be interpreted as meaning that Member States are required — unless a derogation is granted — to refuse to grant a permit for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive (judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 51).
32


In that context, the Court held that Article 4(1)(a) of Directive 2000/60 does not simply set out, in programmatic terms, mere management-planning objectives, but imposes an obligation to prevent deterioration of the status of bodies of water that has binding effects on Member States once the ecological status of the body of water concerned has been determined, at each stage of the procedure prescribed by that directive and, in particular, during the process of granting permits for particular projects pursuant to the system of derogations set out in Article 4 (see, to that effect, judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraphs 43 and 48).
34


It would be incompatible with the binding effect conferred by Article 288 TFEU on a directive to exclude, in principle, the possibility that the obligations which it imposes may be relied on by the persons concerned. The effectiveness of Directive 2000/60 and its aim of protecting the environment, which is recalled in the previous paragraph, require that individuals or, where appropriate, a duly constituted environmental organisation be able to rely on it in legal proceedings and that the national courts be able to take that directive into consideration as an element of EU law in order, inter alia, to review whether a national authority that has granted a permit for a project that may have an effect on the water status has complied with its obligations under Article 4 of the directive, in particular preventing the deterioration of bodies of water, and has thus kept within the limits of the discretion granted to the competent national authorities by that provision (see, by analogy, judgments of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraph 37, and of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 44).
35


In addition, according to settled case-law of the Court, under the principle of sincere cooperation laid down in Article 4(3) TEU, it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law, Article 19(1) TEU additionally requiring Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law (see, inter alia, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 57 and the case-law cited).
38


Decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 on, inter alia, the appropriateness of the conclusions drawn from the environmental impact assessment in respect of a plan or project on a protected site with regard to the risks of that plan or project for the integrity of the site, regardless of whether they are independent or integrated in a decision granting a permit, are referred to in Article 6(1)(b) of the Aarhus Convention and therefore fall within the scope of application of Article 9(2) of that convention in so far as, prior to the grant of a permit for that activity, they involve assessment by those authorities as to whether, in the circumstances of the case, that activity is likely to have a significant effect on the environment (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraphs 56 and 57).
39


An environmental organisation, such as Protect, that fulfils the requirements set out in Article 2(5) of the Aarhus Convention in order to fall within ‘the public concerned’, within the meaning of that provision, must, in the context of the review procedure referred to in Article 9(2) of that convention, be able to rely in legal proceedings on the rules of national law implementing EU environmental law, including national law rules flowing from Article 6 of Directive 92/43, and the rules of EU environmental law having direct effect (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraphs 59 and 60).
44


In that regard, it must be noted that, where a Member State lays down rules of procedural law applicable to the matters referred to in Article 9(3) of the Aarhus Convention concerning the exercise of the rights that an environmental organisation derives from Article 4 of Directive 2000/60, in order for decisions of the competent national authorities to be reviewed in the light of their obligations under that article, the Member State is implementing an obligation stemming from that article and must therefore be regarded as implementing EU law, for the purposes of Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), so that the Charter is applicable (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 52).
45


It is true that only ‘members of the public’ that ‘meet the criteria, if any, laid down in … national law’ have the rights set out in Article 9(3) of the Aarhus Convention, so that that provision, in itself, has no direct effect in EU law. However, the fact remains that that provision, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraphs 45 and 51).
46


As the Advocate General has noted, in essence, in points 89 and 90 of her Opinion, the right to bring proceedings set out in Article 9(3) of the Aarhus Convention would be deprived of all useful effect, and even of its very substance, if it had to be conceded that, by imposing those conditions, certain categories of ‘members of the public’, a fortiori ‘the public concerned’, such as environmental organisations that satisfy the requirements laid down in Article 2(5) of the Aarhus Convention, were to be denied of any right to bring proceedings.
47


Imposing those criteria must not deprive environmental organisations in particular of the possibility of verifying that the rules of EU environmental law are being complied with, given also that such rules are usually in the public interest, rather than simply in the interests of certain individuals, and that the objective of those organisations is to defend the public interest (see, to that effect, judgment of 12 May 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C‑115/09, EU:C:2011:289, paragraph 46).
48


Although they imply that contracting states retain discretion as to the implementation of that provision, the words ‘criteria, if any, laid down in its national law’ in Article 9(3) of the Aarhus Convention cannot allow those states to impose criteria so strict that it would be effectively impossible for environmental organisations to contest the actions or omissions that are the subject of that provision.
54


In that regard, it must be noted 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 proceedings, in accordance with both the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental organisation, such as Protect, to challenge before a court a decision taken following an administrative procedure that may be contrary to EU environmental law (see, by analogy, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 52).
56


In that regard, it follows from the established case-law of the Court that a national court which is called upon, within the exercise of its jurisdiction, to apply rules of EU law is under a duty to give full effect to those rules, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, inter alia, judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraphs 21 and 24, and of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 40 and the case-law cited).
57


Any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU law by withholding from the national court with jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU law (see, inter alia, judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 22, and of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 41 and the case-law cited).
61


However, the question of whether Protect also derives from the Aarhus Convention a right to participate in the administrative stage of the permit procedure in order to be able, in the context of that procedure, to allege a potential infringement of Article 4 of Directive 2000/60, is a separate question that must be assessed solely in the light of Article 6 of that convention, a provision that, as the Court has noted, forms an integral part of the EU legal order (judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 45).
62


Participation in an environmental decision-making procedure is separate and has a different purpose from judicial proceedings, since the latter may, in some circumstances, be directed at a decision adopted at the end of that procedure (see, to that effect, judgment of 15 October 2009, Djurgården-Lilla Värtans Miljöskyddsförening, C‑263/08, EU:C:2009:631, paragraph 38).
72


A procedure for the grant of a permit in respect of a particular project that may cause the deterioration of the status of a body of water must be construed as ‘implementation’ within the meaning of that provision (see, to that effect, judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 32).
80


In those circumstances, it is for the referring court to interpret, to the fullest extent possible, the relevant procedural rules, in particular the general provision set out in Paragraph 8 of the AVG, in a manner that complies with Article 14(1) of Directive 2000/60, in order to enable an environmental organisation, such as Protect, to participate as a party to the proceedings in an administrative procedure for the grant of a permit, such as the one at issue in the main action, that is intended to implement that directive (see, by analogy, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 52).
85


That said, it is necessary to answer the third question in so far as it is clear from the order for reference that, in the present case, Protect’s action was dismissed by the court of first instance precisely because it had lost the status of party to the procedure pursuant to the time-barring rule set out in Paragraph 42 of the AVG, from which it follows that the question is not manifestly hypothetical within the meaning of the settled case-law of the Court (see, inter alia, judgment of 12 October 2017, Kubicka, C‑218/16, EU:C:2017:755, paragraphs 30 and 31).
86


As to the substance of the third question, it must be noted that Article 9(3) of the Aarhus Convention expressly provides that the review procedures forming the subject of that provision may also 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.
87


In that context, it must, however, be noted that, when they set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directive 2000/60, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, inter alia, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 59 and the case-law cited).
88


In principle, Article 9(3) of the Aarhus Convention does not preclude a rule imposing a time limit, such as the one set out in Paragraph 42 of the AVG, obliging the effective exercise, from the administrative procedure stage, of the right of a party to the procedure to submit objections regarding compliance with the relevant rules of environmental law, since such a rule may allow areas for dispute to be identified as quickly as possible and, where possible, resolved during the administrative procedure so that judicial proceedings are no longer necessary.
89


Thus, such a rule imposing a time limit may contribute to the objective of Article 9(3) of the Aarhus Convention, set out in the 18th recital of that convention, of providing effective judicial mechanisms and appears also to be in line with Article 9(4) of that convention, which requires that the procedures referred to, inter alia, in Article 9(3) of the convention provide ‘adequate and effective’ remedies that are ‘equitable’.
90


In such circumstances, the rule imposing a time limit may — 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 — 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 EU or the need to protect the rights and freedoms of others (see, by analogy, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraphs 61 to 71).
91


In order to comply with the requirement of proportionality, the practical arrangements for the exercise of administrative remedies available under Austrian law must not disproportionately affect the right to an effective remedy before a court referred to in Article 47 of the Charter (see, by analogy, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 72).