Approved environmental associations must be allowed to bring legal action before the national courts against EC type-approval of vehicles fitted with “dieselgate” software, following a combined reading of the Aarhus Convention and the right to an effective remedy (case C-873/19).
On 8 November 2022, the Court of Justice (the “Court”) held that, following a combined reading of the Aarhus Convention and the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the EU (“CFR”), approved environmental associations must be able to challenge EC type-approvals of vehicles fitted with defeat devices before the national courts (case C- 873/19).
Background: a national decision granting approval of “dieselgate” software
In the case at hand, the Deutsche Umwelthilfe (the “DUH”), an environmental association recognised under German law, brought a claim before the Administrative Court of Schleswig-Holstein (the “referring court”) against the Kraftfahrt Bundesamt (the Federal Motor Transport Authority, or “KBA”) for approving a particular type of software used in diesel vehicles. According to the DUH, this type of software should be considered a “defeat device” prohibited under Article 5(2) of Regulation (EC) No 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (“Regulation No 715/2007”). Such defeat devices, which “reduce the effectiveness of emission control systems”, attracted attention in the context of the Volkswagen “dieselgate” scandal. Through its action, the DUH was seeking to have the authorisation granted by the KBA overturned.
However, the Federal Republic of Germany, which was the defendant in the main proceedings, held that the DUH did not have the standing to bring such proceedings and called on the referring court to declare the action inadmissible. Furthermore, it argued that the software was compatible with EU law. Faced with uncertainty regarding both points, the referring court referred two questions to the Court. This contribution will focus on the question of the standing of environmental associations before the national courts.
Nationally approved environmental associations must have standing before the national courts to challenge decisions concerning defeat devices
The Court commenced its reasoning with a reminder that it is able to interpret the Aarhus Convention and that the case at hand falls within the scope of that convention. Article 9(3) of the Aarhus Convention requires that “members of the public” have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities that contravene provisions of their national law relating to the environment. The Court held that (i) Regulation No 715/2007, by virtue of its direct applicability, must be viewed as national environmental law, and that (ii) the DUH should not only be considered as a member of the public, but also as “the public concerned” within the meaning of Article 2(5) of the Aarhus Convention. Under the latter provision, nationally approved NGOs promoting environmental protection must be deemed to have an interest in bringing proceedings.
Secondly, the Court reiterated that Article 9(3) of the Aarhus Convention does not have direct effect in EU law. Consequently, the provision itself cannot confer standing on environmental associations if they do not have this under national law. However, national provisions must be interpreted to the fullest extent possible in accordance with the requirements of international agreements concluded by the EU, such as the Aarhus Convention. In that regard, Article 9(3) of the Aarhus Convention would be deprived of all useful effect and even of its very substance if environmental associations that satisfy the requirements laid down in Article 2(5) of the Aarhus Convention were to be denied any right to bring proceedings against acts and omissions that contravene national environmental law provisions.
Furthermore, the Court reminded the referring court that the procedural rules that prevent the DUH from bringing legal proceedings under national law, concern the exercise of the rights that an environmental organisation derives from Article 5(2) of Regulation No 715/2007. Consequently, when laying down such procedural rules, Member States are implementing EU law for the purposes of Article 51(1) CFR and must ensure compliance with the right to an effective remedy as laid down in Article 47 CFR. While Article 9(3) of the Aarhus Convention does not have direct effect and is confined to a duty of conform interpretation, Article 47 CFR does have direct effect. The Court held that the right to an effective remedy is hampered when an environmental association, although authorised for the purposes of having access to the judicial procedures referred to in Article 9(3) of the Aarhus Convention, cannot challenge an EC type-approval that may be contrary to Article 5(2) of Regulation No 715/2007.
Following a combined reading of the Aarhus Convention and the right to an effective remedy, the Court reverted to the principles of primacy of EU law, and stated that it falls to the national court to interpret national law so as to allow environmental associations to challenge EC type-approvals of vehicles fitted with “dieselgate” software. Should such interpretation be impossible, the referring court must set aside the conflicting national provisions. By means of this ruling, the Court has again considerably expanded the rights of environmental associations to bring legal action and has paved the way for more intense and broader climate litigation.
Please contact Pierre de Bandt or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to environmental law.