BASICS OF THE EU ENVIRONMENTAL LAW
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8 November 2023
JUDr. Vojtěch Vomáčka, Ph.D., LL.M.
ACCESS TO ENVIRONMENTAL INFORMATION, PARTICIPATION OF PUBLIC IN ENVIRONMENTAL DECISION-MAKING AND
ACCESS TO JUSTICE - THE 3 PILLARS OF AARHUS CONVENTION.

Last lecture summary - Harmonization of environmental requirements
1) Correct transposition + application + information
2) Obligation to refrain from any measure which could jeopardise the attainment of the Union's
objectives
3) Implementation and the enforcement: member states, problems of EU control: remote, burden of
proof
4) The role of national courts and the role of CJEU.
•CJEU: interpretation, systematic failures, financial sanctions
•national courts: a) consistent interpretation, b) conflict: annulment, non-application
(exemptions), direct effect?, c) state liability
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•

Today
•Public participation in general
•The Aarhus Convention
•Three pillars at the EU level
•Three pillars at the national level
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•

Public participation?
•Environmental democracy
•Affected and close to the source
•Fundamental rights
• (to be able to assert this rights, citizens must participate)
•Helping hand
•to further the accountability of and transparency
•to strengthen public support for decisions
•to promote environmental education
•
Negatives?
•„Only“ procedural rights
•Wide scope
•Free or almost free of charge
•Not necessarily protection of environment – personal interests
•

Public participation? How?
•
•
•Petition
•Demonstration
•Referendum
•Access to information
•Participation in proceedings
•Judicial Protection
•
http://www.annarbor.com/assets_c/2013/05/052513_GMO_protest_CS_(3_of-thumb-646x431-143343.jpg

Effective public participation?
•
Výsledek obrázku pro greenpeace chvaletice Výsledok vyhľadávania obrázkov pre dopyt chvaletice
Výsledek obrázku pro greenpeace chvaletice

Public participation? Balancing the system
C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen
eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen
The German system of judicial review
•involves a “careful and detailed” scrutiny of administrative decisions,
•admissibility criteria are such that few are able to access this system, particularly groups
bringing actions alleging environmental harm.
•
•
http://weknowyourdreamz.com/images/ferrari/ferrari-02.jpg

The Aarhus Convention – NATIONAL level
Various restrictions:
C-263/08 (Djurgården-Lilla Värtans)
– only NGOs with environmental objectives
- active for 3 years
- 2.000 members
http://www.kungahuset.se/images/18.1a6f639212652d9b15a80002863/1390581460489/KD-karta-s%C3%B6dra-KH
-390x262.jpg

Public participation? Balancing the system
Marina Isla de Valdecañas
•
•
http://zetaestaticos.com/extremadura/img/noticias/0/642/642567_1.jpg

Public participation? Balancing the system
Marina Isla de Valdecañas
•The tourist resort in the province of Caceres, which comprises hotels, 200 luxury villas, a golf
course and a marina.
•
•It was declared illegal by a Spanish Supreme Court ruling of 6 February 2014. The resort is
located within a Natura 2000 protected area.
•
•The ruling comes after almost a decade of court proceedings, and at this stage the resort is
already close to completion.
•
•

Public participation? Balancing the system
Various restrictions:
Costs of the proceedings? Costs follow the event rule?
Lilian Pallikaropoulos from Rugby – £ 90.000
Maximum, legal aid, moderation, C-260/11 (Edwards)
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•
http://newsimg.bbc.co.uk/media/images/44911000/jpg/_44911738_cement_bbc_512i.jpg

Sources of legal regulation: International level
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•
•Principle l of the Stockholm Declaration on the Human Environment (1972)
•Principle 10 of the Rio Declaration on Environment and Development
•UN General Assembly resolutions (1982) on the World Charter for Nature and (1990) on the need to
ensure a healthy environment for the well-being of individuals
•Customary international law?
•
•Human Right treaties
•The Aarhus Convention

The Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters
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•
http://www.iisd.ca/crs/aarhus/mop4/images/generic/unece_convention.jpg
https://www.youtube.com/watch?v=uyhE9v2UnEQ
https://www.youtube.com/watch?v=2UvwbKCjmjA

The Aarhus Convention
•
•
•the most ambitious venture in environmental democracy undertaken under the auspices of the United
Nations (Kofi Annan)
•the world’s foremost international instrument that links environmental and human rights
•a unique international treaty regime, combining notions from environmental as well as human rights
law
•
Almost mature, yet not always respected*
* by Austria, Bulgaria, Czechia, Romania, Slovakia, Spain, United Kingdom, Croatia, Germany,
Lithuania and the European Union
•

The adoption of the Aarhus Convention was heralded as a major breakthrough in international law.
The then UN Secretary General Kofi Annan described it as “the most ambitious venture in
environmental democracy undertaken under the auspices of the United Nations”.

Development
•
•
Before the 1990’s international law did not pay much attention to domestic procedures - domestic
law- and policy-making only
•Principle l of the Stockholm Declaration on the Human Environment (1972) – Both aspects of man's
environment, the natural and the man-made, are essential to his well-being and to the enjoyment of
basic human rights the right to life itself.
•UN General Assembly resolutions (1982) on the World Charter for Nature and (1990) on the need to
ensure a healthy environment for the well-being of individuals
•Customary international law?
•Human Right treaties – access to justice and effective remedies
•
The EU:
•The EIA Directive (85/337/EEC), Directive on the freedom of access to information on the
environment (90/313/EEC ), The Habitats Directive (92/43/EEC),
•CJEU: elements of individual rights to rely on environmental laws before courts, e.g. with respect
to environmental quality standards (C-59/89, Commission v Germany; C-361/88, Commission v Germany;
and C-64/90, Commission v France).
•

With the exception of international human rights law, before the 1990’s international law did not
pay much attention to domestic procedures for decisions-making, citizens’ access to documents or
citizens’ access to court. Today, it may appear surprising that at that time only few multilateral
environmental agreements addressed the engagement of members of the public in environmental matters
at all; accordingly these matters remained essentially for domestic law- and policy-making only.
The EU was a different case. Not only it adopted some pieces of legislation, in particular
Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the
environment, and Directive 90/313/EEC on the freedom of access to information on the environment,
which oblige the Member States to promote access to information and some degree of public
participation in decision-making. The European Court of Justice had also highlighted elements of
individual rights to rely on environmental laws before courts, e.g. with respect to environmental
quality standards. (C-59/89, Commission v Germany; C-361/88, Commission v Germany; and C-64/90,
Commission v France.)

United Nations Framework Convention on Climate Change (1992, 197 Parties):
•Art. 6 (a) Promote and facilitate at the national and, as appropriate, subregional and regional
levels, and in accordance with national laws and regulations, and within their respective
capacities:
•(ii) public access to information on climate change and its effects;
•(iii) public participation in addressing climate change and its effects and developing adequate
responses;
Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention, 1991,
45 Parties):
Art. 2(2): Each Party shall take the necessary legal, administrative or other measures to implement
the provisions of this Convention, including (...) the establishment of an environmental impact
assessment procedure that permits public participation.
Art. 2(6): The Party of origin shall provide, in accordance with the provisions of this Convention,
an opportunity to the public in the areas likely to be affected to participate in relevant
environmental impact assessment procedures regarding proposed activities and shall ensure that the
opportunity provided to the public of the affected Party is equivalent to that provided to the
public of the Party of origin.
Art. 3(8): 8. The concerned Parties shall ensure that the public of the affected Party in the areas
likely to be affected be informed of, and be provided with possibilities for making comments or
objections on, the proposed activity, and for the transmittal of these comments or objections to
the competent authority of the Party of origin, either directly to this authority or, where
appropriate, through the Party of origin.
Art. 4 (2): ... The concerned Parties shall arrange for distribution of the documentation to the
authorities and the public of the affected Party in the areas likely to be affected...
Declaration of France: The Convention implies that it is the responsibility of each Party to ensure
the public distribution within its territory of the environmental impact assessment documentation,
inform the public and collect its comments, except where different bilateral arrangements apply

The Aarhus Convention: Development
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Principle 10 of the 1992 Rio Declaration on Environment and Development (UN Doc. A/Conf.151/26):
Environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on hazardous
materials and activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage public awareness and participation
by making information widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.”
Agenda 21: “One of the fundamental prerequisites for the achievement of sustainable development is
broad public participation in decision-making
Political changes in Europe in the beginning of the 1990’s influenced the perception of what are
international and national legal issues. New matters, such as civic society, democratisation,
environmental human rights and globalisation, transcended state borders, entered the international
arena, and expanded into international discourse, law, and policy-making in a way that had
previously not been possible.

While international human rights law and EU law was important for the Aarhus Convention, it would
not have come into being were it not for two important circumstances.
The first is the outcome of the 1992 UN Conference on Environment and Development in Rio de Janeiro
1992. More specifically, through the Rio Declaration on Environment and Development, Principle 10
(United Nations Declaration on Environment and Development; UN Doc. A/Conf.151/26.), it was agreed
at the conference that:
“Environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on hazardous
materials and activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage public awareness and participation
by making information widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.”
Principle 10 nicely frames what was to become the Aarhus Convention; it highlights access to
information, public participation in decision-making, and effective access to judicial and
administrative proceeding, including redress and remedy, ie access to justice.

The Aarhus Convention: Negotiations
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•
1995: The Third “Environment for Europe” Ministerial Conference endorsed the UNECE Guidelines on
Access to Environmental Information and Public Participation in Environmental Decision-making,
which drew on and developed Principle 10. The Ministerial Conference also decided to consider the
drafting of a convention.
1996: The UNECE Committee on Environmental Policy established the mandate for an ad hoc working
group to conduct the negotiations for a new instrument.
June 1996 - March 1998: Over ten sessions of the working group. The NGOs engaged (‘friends of the
secretariat’). The EU (EC) did not have a negotiating mandate, but increasing EU coordination and
presentation of a single EU position. The US and Canada opted out of the negotiations at an early
stage. Russia and Turkey played an active role, with many of their textual proposals being
accommodated by the other negotiating parties, but did not sign or accede to the Convention.
25 June 1998 (Aarhus, Denmark): The Convention was adopted within the framework of the Fourth
Ministerial ‘Environment for Europe’ conference.
30 October 2001: The Convention entered into force.
Since 2012, all EU Member States and the EU itself are parties to the Aarhus Convention.
4 March 2018: Escazú (Costa Rica) - Regional Agreement on Access to Information, Public
Participation and Justice in Environmental Matters in Latin America and the Caribbean

Soon after the Rio Conference, in 1995, the Third “Environment for Europe” Ministerial Conference
endorsed the UNECE Guidelines on Access to Environmental Information and Public Participation in
Environmental Decision-making, which drew on and developed Principle 10. The Ministerial Conference
also decided to consider the drafting of a convention.
In January 1996, the UNECE Committee on Environmental Policy established the mandate for an ad hoc
working group to conduct the negotiations for a new instrument, to be chaired by Willem Kakebeeke,
a senior official from the Netherlands. The negotiations took place from June 1996 to March 1998
over ten sessions of the working group. For most of the negotiating period, the EU (then called the
European Community) did not have a negotiating mandate and its Member States intervened directly in
the negotiations, often with divergent positions. Towards the conclusion of the negotiations (and
even more subsequently), there was increasing EU coordination and presentation of a single EU
position. The US and Canada opted out of the negotiations at an early stage. Russia and Turkey
played an active role, with many of their textual proposals being accommodated by the other
negotiating parties, but did not sign or accede to the Convention.
The level and depth of NGO engagement in the negotiations, while following a tradition established
in the ‘Environment for Europe’ process, was unprecedented in the context of the formulation of an
international environmental treaty and possibly any legally binding treaty. Even before the formal
negotiations began, NGOs were represented in a small ‘friends of the secretariat’ group that
assisted the secretariat with preparing draft elements for the Convention text. Thereafter,
environmental NGOs were able to be involved not just in the plenary but in every small drafting
group. As the NGOs had the relevant experience and would end up being, on behalf of the public, the
main ‘clients’ of the Convention, their active participation was not only justified from a
principle standpoint but contributed materially to the relevance and robustness of the text.
The Convention was adopted on 25 June 1998 in Aarhus, Denmark, within the framework of the Fourth
Ministerial ‘Environment for Europe’ conference. The same day, it was signed at the Conference by
35 States and the European Community, with four more States signing in December 1998 before the
Convention was no longer open for signature.

The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access
to Justice in Environmental Matters
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•




The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access
to Justice in Environmental Matters
•
•
•Adopted on 25 June 1998 in the Danish city of Aarhus (Århus)
•Entered into force in 2001
•All Member States and EU are parties
•Links environmental rights and human rights
•Acknowledges that we owe an obligation to future generations
•Establishes that sustainable development can be achieved only through the involvement of all
stakeholders
•Links government accountability and environmental protection
•Focuses on interactions between the public and public authorities in a democratic context.

The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access
to Justice in Environmental Matters
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•
•Rights-based approach
•A 'floor', not a 'ceiling'‚
•Non-discrimination
•Definition of public authorities
•Non-compliance mechanism
Meeting of the Parties
Bureau
Working Group of the Parties
Compliance Committee
•GMO amendment

The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access
to Justice in Environmental Matters
•
•
“The public” means one or more natural or legal persons, and, in accordance with national
legislation or practice, their associations, organizations or groups;
“The public concerned” means the public affected or likely to be affected by, or having an interest
in, the environmental decision-making; for the purposes of this definition, non-governmental
organizations promoting environmental protection and meeting any requirements under national law
shall be deemed to have an interest.
https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

The three-pillar structure
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•
Access to information      Public participation in decision-making      Access to justice
üpublic
üpassive obligation
üactive obligation
üpublic concerned
üAnnex I and other activities with significant effects
üplans and programmes
ügeneral legal regulation
ü
ü
üpublic concerned
üdenied information
üdecisions from
        pillar II
üviolation of (other) provisions of the national law relating to the environment
ü

The Aarhus Convention implementation in EU law
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•

26
https://unece.org/environment-policy/publications/aarhus-convention-implementation-guide-second-edi
tion
Implementation guide – summary of the findings of the Aarhus Convention Compliance Committee – in
English/French/Russian/Chinese




The Aarhus Convention in practice: Definitions
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•
•Defines “public authority” broadly, so as to include not only governments at different levels, but
also private actors performing public administrative functions under national law, or having public
responsibilities or functions or providing public services in relation to the environment.
•Defines “environmental information” broadly so as to include not only information on the state of
elements of the environment, but also on factors, activities, measures, international agreements,
laws, policies etc. likely to affect elements of the environment and the state of the human health.
Art 4(4) d): A request for environmental information may be refused if the disclosure would
adversely affect: The confidentiality of commercial and industrial information, where such
confidentiality is protected by law in order to protect a legitimate economic interest. Within this
framework, information on emissions which is relevant for the protection of the environment shall
be disclosed.
•Is intended to provide for wide public participation and wide access to justice. For that reason,
it defines “the public concerned” rather broadly
“The public” means one or more natural or legal persons, and, in accordance with national
legislation or practice, their associations, organizations or groups;
“The public concerned” means the public affected or likely to be affected by, or having an interest
in, the environmental decision-making; for the purposes of this definition, non-governmental
organizations promoting environmental protection and meeting any requirements under national law
shall be deemed to have an interest
•

CJEU CASE-LAW
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•
public authority
C-204/09 (Flachglas Torgau)
bodies or institutions acting in a legislative capacity: ministries to the extent that they
participate in the legislative process, in particular by tabling draft laws or giving opinions
C-515/11 (Deutsche Umwelthilfe)
bodies or institutions acting in a legislative capacity: not ministries when they prepare and adopt
normative regulations which are of a lower rank than a law (The Aarhus Convention distinguishes
between the rules for legislative acts and those for regulatory acts)
C-470/19 (Friends of the Irish Environment)
The Directive does not govern access to environmental information contained in court files, where
neither the courts nor the bodies or institutions under their control, which thus have close links
with those courts, constitute ‘public authorities’

•
C-279/12 (Fish Legal and Shirley)
Water and sewerage undertaker: Although it is a commercial company which is, moreover, subject to a
special regulatory regime for the sector concerned, its control within the meaning of Directive
2003/4 is not excluded:
…it should be examined whether those entities are vested, under the national law which is
applicable to them, with special powers beyond those which result from the normal rules applicable
in relations between persons governed by private law. Undertakings, such as United Utilities Water
plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, which provide public services
relating to the environment are under the control of a body or person, and should therefore be
classified as ‘public authorities’, if they do not determine in a genuinely autonomous manner the
way in which they provide those services since a public authority covered by Article 2(2)(a) or (b)
of the directive is in a position to exert decisive influence on their action in the environmental
field.
Kazakhstan ACCC/C/2004/1
The State-owned  Kazatomprom performing administrative functions under national law, including
activities in relation to the environment, and performing public functions under the control of a
public authority.
Hungary ACCC/C/2004/4
A special state-owned company for construction of expressways established by law would fall under
the definition of the public authority
Belarus ACCC/C/2009/37
National legislation delegates some functions related to maintenance and distribution of
environmental information to private entities. These should be treated as falling under the
definition of a “public authority”

CASE-LAW - environmental information
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•
•information submitted within the framework of a national procedure for the authorisation or the
extension of the authorisation of a plant protection product with a view to setting the maximum
quantity of a pesticide, a component thereof or reaction products which may be present in food or
beverage (C-266/09, Stichting Natuur en Milieu and Others)
•
•‘emissions into the environment’ covers the release into the environment of products or substances
such as plant protection products or biocides and substances contained in those products, to the
extent that that release is actual or foreseeable under normal or realistic conditions of use;
•
• ‘information on emissions into the environment’ covers information concerning the nature,
composition, quantity, date and place of the ‘emissions into the environment’ of those products or
substances, and data concerning the medium to long-term consequences of those emissions on the
environment, in particular information relating to residues in the environment following
application of the product in question and studies on the measurement of the substance’s drift
during that application, whether the data comes from studies performed entirely or in part in the
field, or from laboratory or translocation studies. (C-442/14, Bayer CropScience)
•data relating to the location of permanent sample plots for the statistical forest inventory?
(C-234/22, Roheline Kogukond and Others )
•records of formal meetings of the executive branch of government of a Member State? (C-84/22 Right
to Know)

CASE-LAW - environmental information
•
•
exceptions:
•Balancing exercise between the public interest served by the disclosure of environmental
information and the specific interest served by a refusal to disclose must be carried out in each
individual case (C-266/09, Stichting Natuur en Milieu and Others)
•
•the term ‘internal communications’ covers all information which circulates within a public
authority and which, on the date of the request for access, has not left that authority’s internal
sphere, after being received by that authority, provided that it was not or should not have been
made available to the public before it was so received
•+ the exception is not limited in time. However, it can apply only for the period during which
protection of the information sought is justified. (C-619/19 , Land Baden-Württemberg)
•
•Does the ground of ‘the protection of the environment [in question]’ justify restricting access to
environmental information in order to ensure the reliability of State statistics? (C-234/22,
Roheline Kogukond and Others )
•
•Documents relating to infringement proceedings during the preliminary proceedings may be subject
to a general presumption of confidentiality, since the dissemination of documents relating to the
infringement proceedings during those proceedings could be presumed to alter the nature of those
proceedings and affect their conduct (C-514/11 P and C-605/11 P, LPN and Finland v Commission,
C-562/14 P, Sweden v Commission)




The three-pillar structure – PILAR II/A
II. Public participation - three categories of decision-making
a)Decision-making concerning specific activities listed in Annex I and other activities which may
have a significant effect on the environment.

The Parties must ensure:
•Early information and notification about the decision-making procedure, in an effective, adequate
and timely manner;
•Reasonable time-frames to prepare and participate effectively;
•Early and effective public participation when all options are open;
•All relevant information is made available at the time of the public participation procedure;
•The public is allowed to submit comments, information, analyses or opinions in writing or at
public hearings;
•Due account is taken of the outcome of public participation;
•Publicly accessible decisions with reasons and consideration.
•
•

The three-pillar structure – PILAR II/B
II. Public participation - three categories of decision-making
b) Decision-making concerning plans and programmes.
•Practical or other provisions shall be made for public participation during preparations of plans
and programmes relating to the environment;
•This should be provided in a transparent and fair framework with necessary information;
•Reasonable time-frames must be ensured to prepare and participate effectively;
•Early and effective public participation must be provided when all options are open; and
•Due account shall be taken of the outcome of public participation
The Parties must endeavour to provide for public participation when preparing policies relating to
the environment (Art 7).
•
•

The three-pillar structure – PILAR II/C
II. Public participation - three categories of decision-making
c) Executive regulations and generally applicable legal instruments
•The Parties are obliged to strive to promote effective public participation, at an appropriate
stage. To this end, certain requirements are set out (Art 8):
Time-frames sufficient for effective participation should be fixed;
Draft rules should be published or otherwise made publicly available; and
The public should be given the opportunity to comment, directly or through representative
consultative bodies.
The result of the public participation shall be taken into account as far as possible.
•
•In addition, the 2nd Meeting of Parties (MoP) decided to amend the Convention in order to provide
for public participation with respect to deliberate release into the environment and the placing on
the market of genetically modified organisms.
•
•

Public participation provisions under the EU environmental law
•
•
1) Directives explicitly implementing the Aarhus Convention (decision-making)
•EIA Directive – environmental impact assessment (construction and other activities)
•IED Directive – industrial emmissions (permits for industrial activities)
•Seveso III Directive - major accident hazards
2) Directives implementing the Aarhus Convention according to the CJEU (decision-making)
•The Habitats Directive (Natura 2000) – assessment of plans and projects: Art. 6(3)
•Participation required as a condition for access to justice (C-664/15)
3) Directives focused on participation in the elaboration of plans
SEA Directive, Water Framework Directive, Air Quality Directive, Waste Framework Directive,
Environmental Noise Directive

The Habitats Directive (92/43/EEC)
Article 6(3) Any plan or project not directly connected with or necessary to the management of the
site but likely to have a significant effect thereon, either individually or in combination with
other plans or projects, shall be subject to appropriate assessment of its implications for the
site in view of the site's conservation objectives. In the light of the conclusions of the
assessment of the implications for the site and subject to the provisions of paragraph 4, the
competent national authorities shall agree to the plan or project only after having ascertained
that it will not adversely affect the integrity of the site concerned and, if appropriate, after
having obtained the opinion of the general public.
C-243/15 (Lesoochranárske zoskupenie II, para. 45 - 48): the project of constructing an enclosure
on a protected site, at issue in the main proceedings, is not among the activities listed in Annex
I to the Aarhus Convention, the fact that the competent national authorities decided to initiate an
authorisation procedure for that project pursuant to Article 6(3) of Directive 92/43 permits,
however, the inference that those authorities considered it necessary to assess the significance of
the project’s effect on the environment, within the meaning of Article 6(1)(b) of the Aarhus
Convention. It is true that the latter provision states that the application of Article 6 of the
Aarhus Convention is governed by the domestic law of the contracting party concerned. However, that
statement must be understood as relating solely to the manner in which the public participation
specified by Article 6 is carried out, and does not call into question the right to participate
which an environmental organisation such as LZ derives from that article.
•
•

Case-law on the scope of the Directives II: Who is affected?



Obstacles to participation in decision-making?
Costs: C-216/05 (Commission v Ireland): Although Directive 85/337 does not preclude fees such as
those charged under the national legislation at issue in the present case, they cannot, however, be
fixed at a level which would be such as to prevent the directive from being fully effective, in
accordance with the objective pursued by it (see, to that effect, Case C‑97/00 Commission v France
[2001] ECR I‑2053, paragraph 9). This would be the case if, due to its amount, a fee were liable to
constitute an obstacle to the exercise of the rights of participation...
Publication of the decision on the internet?
C-280/18 (Flausch and Others): 1.      Article 6 of Directive 2011/92/EU of the European Parliament
and of the Council of 13 December 2011 on the assessment of the effects of certain public and
private projects on the environment must be interpreted as precluding a Member State from carrying
out the procedures for public participation in decision-making that relate to a project at the
level of the headquarters of the competent regional administrative authority, and not at the level
of the municipal unit within which the site of the project falls, where the specific arrangements
implemented do not ensure that the rights of the public concerned are actually complied with, a
matter which is for the national court to establish.
2.      Articles 9 and 11 of Directive 2011/92 must be interpreted as precluding legislation, such
as that at issue in the main proceedings, which results in a period for bringing proceedings that
starts to run from the announcement of consent for a project on the internet being relied on
against members of the public concerned where they did not previously have an adequate opportunity
to find out about the consent procedure in accordance with Article 6(2) of that directive.
•
•

Participation in decision-making ≠ access to justice
C-263/08 (Djurgården-Lilla Värtans Miljöskyddsförening, para. 38): ...participation in an
environmental decision-making procedure under the conditions laid down in Articles 2(2) and 6(4) of
Directive 85/337 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. Therefore,
participation in the decision-making procedure has no effect on the conditions for access to the
review procedure.
C-137/14 (Commission v Germany):
80      As regards the argument concerning the efficiency of administrative procedures, although it
is true that the fact of raising a plea in law for the first time in legal proceedings may, in
certain cases, hinder the smooth running of that procedure, it is sufficient to recall that the
very objective pursued by Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 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.
81      None the less, the national legislature 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.
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LEGAL STANDING: Preconditions and wide access to justice
•
Stichting Varkens in Nood and Others (C-826/18, Admissibility of the action subject to prior
participation in the decision-making procedure):
Art. 9(2) regime: participation in the administrative procedure is not a suitable  condition for
the admissibility of the judicial proceedings brought by NGO, even though that condition does not
apply where such organisations cannot reasonably be criticised for not having participated in that
procedure.
However, Article 9(3) AC does not preclude the admissibility of judicial proceedings to which it
refers from being made subject to the participation of the applicant in the procedure preparatory
to the contested decision, unless the applicant cannot reasonably be criticised, in the light of
the circumstances of the case, for not having intervened in that procedure




The three-pillar structure – PILAR III
III. Access to justice (Art. 9)
c)  Violation of provisions of the national law relating to the environment
•Access to administrative or judicial procedures to members of the public, meeting the criteria in
national law, “if any”, to challenge other acts and omissions by private persons and public
authorities “which contravene provisions of its national law relating to the environment” (Art
9(3)).
•EU law relating to the environment should also be considered to be part of the domestic, “national
law”.
•Contrary to the first and the second categories, it may suffice to ensure access to administrative
review procedures to challenge acts and omissions in the third category.
•
•Access to justice must not be pro forma only. Therefore, all procedures referred to above under
the three categories, including any administrative procedure, must provide “adequate and effective
remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not
prohibitively expensive”
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The Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters (The Aarhus Convention)
•
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http://www.iisd.ca/crs/aarhus/mop4/images/generic/unece_convention.jpg
Access to information      Public participation in decision-making      Access to justice
üpublic
üpassive obligation
üactive obligation
üpublic concerned
üAnnex I and other activities with significant effects
(EIA, IED, Natura 2000, SEVESO III)
üplans and programmes
ügeneral legal regulation
ü
ü
üpublic (concerned)
üdenied information
üdecisions from
        pillar II (EIA, IED, NATURA 2000, SEVESO III)
üviolation of (other) provisions of the national law relating to the environment
ü

LINK BETWEEN THE ENVIRONMENTAL PROTECTION AND RIGHTS OF INDIVIDUALS
•
•The air quality legislation (other than the IED) does not contain comprehensive rules as regards
access to justice.
•However, there is a link between the air protection and rights of individuals which satisfies the
conditions for direct applicability of certain provisions of directives which do not contain
requirements on access to justice – such as the AQD or the NEC Directive.
•This is because the quality (concentration) limit values aim at the protection of human health.
Thus, they have the objective to protect the individual right to health. They are sufficiently
precise and unconditional to be of direct application.
•This means that the individual person has a right to trace back the limit values in his national
legislation; it follows from this that Member States are obliged to transpose the limit values of
the air pollution directive into their national law (C-361/88, Commission v. Germany)
•
C-237/07 (Janecek):
"whenever the failure to observe the measures regarded 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".

47
Direct effect: From EIA to AIR to WATER…
•
Janecek (C-237/07), ClientEarth (C-404/13, ambient air quality assessment and management): The
affected individuals must be able to require adoption of air-pollution action plans
Folk (C-529/15, Environmental Liability Directive): Persons with a fishing licence must be able to
initiate review proceedings before a court or other competent public authority in accordance with
Articles 12 and 13 of the Directive
Protect Natur-, Arten- und Landschaftschutz Umweltorganisation (C-664/15, Water Framework
Directive): The NGO must be able to challenge a permit for a project of abstracting water from the
river to produce snow for a ski resort under the EU law
Land Nordrhein-Westfalen (C-535/18, EIA, Water Framework Directive): Members of the public
concerned by a project must be able to assert, before the competent national courts, that there has
been a breach of the requirements to prevent the deterioration of bodies of water; EU law permits
Member States to provide that, when a procedural defect vitiating the decision approving a project
does not alter the meaning of that decision, an application for annulment of that decision is
admissible only if the irregularity at issue has denied the claimant his or her right to
participate in the environmental decision-making process
Wasserleitungsverband Nördliches Burgenland and Others (C-197/18, Nitrates Directive): Affected
natural and legal persons, such as the applicants in the main proceedings (incl. municipality and a
water distribution association), should be in a position to require the competent national
authorities to amend an existing action programme or adopt additional measures or reinforced
actions
                                if not... direct effect

48
TIMELINESS, EFFICIENCY AND COSTS
•
Klohn (C-167/17, EIA): No direct effect of EU law implementing Art. 9(4) of the Aarhus Convention
(requirement for a procedure which is not prohibitively expensive)
C-470/16 (North East Pylon, EIA): ...but it is for the national court to give an interpretation of
national procedural law which, to the fullest extent possible, is consistent with the Aarhus
Convention
East Sussex (C-71/14), Gruber (C-570/13), Mellor (C-75/08): The requirement of effectiveness covers
the judge’s examination of the assessment of the merits of a decision, act or omission, such as in
the case as well the scrutiny of national legislation and regulatory acts (C-41/11,
Inter-Environnement Wallonie)

Leth (C-420/11): A national court dealing with a dispute governed by EU environmental law must be
in a position to order interim measures as well as to award compensation for pecuniary damages,
provided the three conditions for state liability are met

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TIMELINESS, EFFICIENCY AND COSTS
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Vereniging Hoekschewaards Landschap (C-281/16): A national court must be in a position to ask the
CJEU to examine the validity of acts adopted by EU institutions and bodies
Uniform interpretation of EU law by the CJEU is ensured by the possibility for national courts to
submit questions concerning the validity and interpretation of EU law (Article 267 of the TFEU)
'Commission Implementing Decision (EU) 2015/72 of 3 December 2014 adopting an eighth update of the
list of sites of Community importance for the Atlantic biogeographical region is invalid, in so far
as, by that decision, the Haringvliet site (NL 1000015) was placed on that list without the
inclusion of the Leenheerenpolder'.

THE CONTENT OF THE RIGHT – AIR QUALITY PLANS
•An individual person (and also an NGO) has a right to see the action plan elaborated, since the
key element in the AQD is the setting of binding limit values together with the obligation to adopt
air quality plans containing adequate measures to achieve compliance in the shortest time possible.
•In Case C-404/13 (ClientEarth), the CJEU confirmed that the national court should order any
measure necessary to bring the air pollution plan into line with EU air quality legislation.
•The Court of Justice limited the right of persons to request a specific content of a plan.  It
held that the public authorities were to take measures to keep the time of (the risk of) exceedance
as short as possible, but that they benefitted of a large amount of discretion, so that specific
measures could not be asked for (C-237/07).
•
•Similar approach applies to the obligations in the NEC Directive. The natural and legal persons
directly concerned must be able to require the competent authorities, if necessary by bringing the
matter before the national courts, to observe and implement such rules of EU law – for example to
draw up national programmes for the progressive reduction of national emissions of inter alia SO2
and NOx (Joined Cases C-165/09, C-166/09 and C-167/09)
•
•

THE CONTENT OF THE RIGHT – AIR POLLUTION MONITORING SYSTEM
•
•The individuals must be able to challenge the air pollution monitoring system in their cities
because the AQD lays down detailed rules concerning the use and location of sampling points to
measure air quality in zones and agglomerations comprising the territory of each Member State (Case
C-723/17 Craeynest and Others)
•The obligation to establish sampling points in such a way that they provide information on the
most polluted locations, and the obligation to establish at least a minimum number of sampling
points are clear, precise and unconditional.
•It is for the national courts to verify whether those obligations have been complied with. In this
respect, the average values across a whole zone or city are insufficient as they may underestimate
the actual exposure to polluted air.
•

THE CONTENT OF THE RIGHT – APPROVAL OF VEHICLES
•
•C-873/19 (Deutsche Umwelthilfe )
•Will be decided soon.
•Opinion: Article 9(3) of the Aarhus Convention read in conjunction with Article 47 of the Charter
of Fundamental Rights of the European Union, must be interpreted as meaning that an approved
environmental association, which is entitled to bring legal proceedings under national law, must be
able to challenge before a national court an administrative decision granting EC type-approval of
vehicles which may be contrary to Article 5(2) of Regulation (EC) No 715/2007 of the European
Parliament and of the Council of 20 June 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, a provision which prohibits, subject to certain exceptions, the
use of defeat devices which reduce the effectiveness of emission control systems.

THE CONTENT OF THE RIGHT – DAMAGES
•
C-61/21 (Ministre de la Transition écologique a Premier ministre)
•Will be decided soon.
Due to the non-adoption of air quality improvement plans (for almost ten years), individuals living
in the affected area are seeking compensation for the damage caused. They invoke, inter alia, the
Aarhus Convention.
OPINION: The limit values laid down for pollutants in ambient air and the obligations to improve
ambient air quality laid down in Articles 7 and 8 of Directive 96/62, read in conjunction with
Directive 1999/30, and Articles 13 and 23 of Directive 2008/50 are intended to confer rights on
individuals.
A claim for compensation for damage resulting from health problems caused by the exceedance of
limit values set for PM10 and nitrogen dioxide in ambient air (…)  is that the injured party proves
the existence of a direct link between that injury and his or her residence in a place where the
relevant limit values were exceeded without an air quality improvement plan having been drawn up…

54
Commission Notice on Access to Justice in Environmental Matters


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http://www.justiceandenvironment.org/fileadmin/user_upload/Publications/2018/JE_Comments_EC_Notice_
A2J_FINAL.pdf
•

Thank you for your attention