The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter referred to as the “Aarhus Convention”) establishes a number of rights of the public (individuals and associations) with regard to the environment. The Aarhus Convention has formed an integral part of the EU legal order since it was approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005. The Aarhus Convention is transposed by Directives 2010/75/EU and 2011/92/EU, as amended by Directive 2014/52/EU.
The Convention provides for:
- the right of everyone to receive environmental information that is held by public authorities (“access to environmental information”);
- the right to participate in environmental decision-making (“public participation in environmental decision-making”);
- the right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general (“access to justice”).
In its preliminary ruling of 14 January 2021 (C-826/18), the Court of Justice interpreted the right of access to justice enshrined in Article 9 of the Aarhus Convention. The request for a preliminary ruling was made by a Dutch Court in proceedings between (i) a natural person and associations for the protection of animal rights and (ii) a Dutch municipality concerning a permit granted by that municipality to a company for the construction of a pig farm building. The referring court had to assess the admissibility of the action brought to seek the annulment of the construction permit. Under Dutch law, two conditions had to be complied with in order to be able to challenge that decision: (i) the applicant must be an “interested party” and (ii) must have participated in the previous public participation procedure. The referring court did not consider the natural person to be an “interested party” and it was clear that the environmental associations did not intervene in the public participation procedure.
The first question answered by the Court of Justice concerned the recipients of the right to access justice for the purposes of challenging a decision falling within the scope of Article 6 of the Aarhus Convention (concerning the right to participate in decisions related to specific activities). The Court ruled that the right to access justice only applies to the “public concerned” defined by Article 2(5) as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedure”. That provision expressly specifies that NGOs promoting environmental protection and meeting any requirements under national law are deemed to have an interest. The Court concluded that “a person (…) who is not part of the ‘public concerned’ within the meaning of the Aarhus Convention, cannot rely on an infringement of Article 9(2) of that convention on the ground that [he or she] does not have access to justice in the main proceedings”. However, the Court acknowledges that “access to justice should be subject to a different regime if the national law of a Member State grants the public a more extensive right to participate in the decision-making procedure” (which is the case in the Netherlands). Therefore, Article 9(3) of the Convention precludes members of the public in general from not being able to have any access to justice, when relying on more extensive rights to participate in the decision-making procedure conferred by national environmental law.
The Court stressed that the second Dutch condition to challenge a decision (the participation in the preparatory procedure) was precluded, by Article 9(2) of the Aarhus Convention, for members of the “public concerned”. The public concerned must be able to bring legal action regardless of the role they may have played in the examination of the application. The Court emphasised that “participation in an environmental decision-making procedure (...) is separate from the exercise of a legal review and has a different purpose from the latter” and that, therefore, “participation in the decision-making procedure has no effect on the conditions for access to that review procedure”. However, this does not apply if the proceedings are brought by a member of the “public” in general on the basis of more extensive rights to participate in the decision-making procedure conferred by national law. In that case, a condition of admissibility based on prior participation in the decision-making procedure is justified since it is provided by law, it respects the essence of the law, is necessary and is subject to the principle of proportionality.
Please contact Pierre de Bandt or Raluca Gherghinaru for further information about this case and/or for general legal advice relating to environmental law.