CJEU rules on compatibility of barriers to public participation and access to justice rights with the Aarhus Convention

Executive Summary     

The CJEU was asked to comment on the scope of Article 9(2) and (3) of the Aarhus Convention relative to the entitlement of the public to seek "access to justice" on environmental matters. It determined as follows:

Article 9(2) guarantees a right of access to the courts, in order to challenge a decision falling within the scope of Article 6 of the Convention, only to the "public concerned" and not the "public at large" ie to those affected and not everyone. It also provides that access to the courts by an NGO or environmental organisation cannot be conditioned by prior participation, even where that condition is limited and does not apply if the organisation could not reasonably be criticised for not having participated. So, a minimum right of access is required to be facilitated by Member States, and it is wider for affected individuals and environmental organisations, than it is for the public at large.
 

Article 9(3) provides the "public at large" with a right of access to the courts when relying on more extensive public participation rights as provided for by national law, but in that instance Member States can impose a prior participation condition, unless the applicant cannot reasonably be criticised for not having participated. So, if Member States allow the "public at large" to participate in decision making processes, then they must also be entitled to access the courts to challenge that decision. A condition can lawfully be imposed in those circumstances, requiring evidence of prior participation, save where they could not reasonably be criticised for not having participated.

Background 

The decision in Stichting Varkens in Nood and Others, Case C826/18 (the "Distressed Pigs" case), delivered 14 January 2021, concerned a referral from a District Court of the Netherlands to the Court of Justice of the European Union (CJEU). The District Court requested a preliminary ruling on the interpretation of certain aspects of the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus (Denmark) on 25 June 1998.(the Aarhus Convention) and EU law. It is unusual for the lowest court in a Member State, as here, to refer a question to the CJEU.

The referral to the CJEU was made in the context of a challenge by a member of the public and a number of environmental organisations, against a decision made by a Dutch municipality to permit the extension of a piggery. Dutch law provides that only "interested parties" may challenge certain administrative decisions. "Interested parties" are those who are directly affected by a decision and who have submitted observations during the decision making process, save where the party cannot reasonably be criticised for not having participated in the administrative process. 

Issues

The individual's right of access to justice

The Dutch court was of the view that the individual in the case was prevented from challenging the impugned decision under national law for a number of reasons, including because she lived 20km away from the project, and did not submit observations during the administrative process. The individual argued that she could not reasonably be criticised for not participating, as there were a number of irregularities during the administrative procedure, and furthermore, only "interested parties" were invited to submit observations. 

The Dutch court asked the CJEU if the limitation of access to the courts to "interested parties" only, within the meaning of national law, was compatible with the Aarhus Convention. In particular, it asked, even if a person was not considered an "interested party" under national law, or alternatively considered part of the "public concerned" under the Aarhus Convention, could they still be entitled to certain rights of access on the basis that they are considered a member of the public at large? 

 In essence, the Dutch court was asking whether Article 9(2) of the Aarhus Convention should be interpreted as applying to the "public concerned", or the "public" (at large), in cases of an alleged infringement of public participation rights relating to a project which falls under the scope of Article 6 of the Convention (as was the case here).

The environmental organisations

The Dutch court acknowledged that the environmental organisations before it were "interested parties" in light of their animal welfare statutory aims. However, these environmental organisations had not participated in the administrative procedure. The Dutch court asked the CJEU to rule on whether a condition in national law which limits access to justice to those who have participated in the administrative process is compatible with the Aarhus Convention. 

The CJEU was also asked to comment on whether a prohibition on raising complaints in a challenge which are not directed against contested aspects of the draft decision is compatible with the Aarhus Convention (i.e. issue specific locus standi). 

Decision

Rights of access 

The CJEU decided that the purpose of Article 9(2) of the Aarhus Convention was not to allow the public at large to challenge any project which falls under the scope of Article 6, but instead was to only grant a right of challenge when certain conditions were met i.e. where the individual had a particular interest and so could be considered a member of the "public concerned". It is worth noting that Article 6 does contain a number of references to the "public", as opposed to the "public concerned". Nevertheless, the CJEU was of the view that Article 6 only applies to the "public concerned", when read as a whole. The CJEU noted that any other interpretation would render ineffective the intentional distinction between the systems of access to justice set out in the Convention.  So, a person who is affected, likely to be affected, or having an interest in the decision making procedure will have a right of access under Article 9(2) but a member of the general public may not. 

The public at large is not left without a potential alternative route to access justice. The CJEU acknowledged that if a Member State's national law granted the public a more extensive right to participate in the administrative process (AG Bobek noted in his Opinion that Dutch law provides that all members of the public at large are entitled to fully participate in the decision making procedure), then access to justice for those who availed of that entitlement to participate would instead be possible on the basis of Article 9(3) of the Convention, which states: 

'where they meet the criteria, if any, laid down in its national law, members of the public' have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.' 

So, any member of the public who has satisfied any national conditions conferred by national law is then entitled to access to justice to challenge the legality of same even though they may not be directly affected by the relevant project. 

Prior participation 

The CJEU then examined whether or not the rights of an environmental organisation to bring legal challenges as part of (i) the "public concerned" under Article 9(2) and Article 6 of the Convention; or (ii) a member of the "public" under Article 9(3) of the Convention and the national environmental law of that Member State, could be made subject to prior participation in the administrative procedure (unless they could not reasonably be criticised for not having participated). 

In respect of environmental organisations, the CJEU held that legal challenges to an administrative decision could not be conditioned on prior public participation, even where that condition would not apply where the organisation cannot reasonably be criticised for not having participated in the process.  

By contrast, in respect of a legal challenge taken by a member of the public on the basis Article 9(3) of the Convention, where the Member State has provided the public with more extensive rights of public participation in the decision making procedure in national law, such a legal challenge could be made conditional on the basis of prior participation, unless the applicant could not reasonably be criticised for not having participated in the process. The CJEU noted that the Charter of Fundamental Rights of the European Union provided that the Dutch prior participation condition could be justified if provided for by law, was proportionate and genuinely met objectives of the public interest. 

Finally, the CJEU refused to answer whether a prohibition on raising complaints in a challenge which do not relate to grounds and criticisms raised during the administrative process (i.e. issue specific locus standi) was compatible with the Aarhus Convention, as the applicants in this case had not actually made observations or participated in the administrative procedure. 

Comment

The Aarhus Convention intentionally distinguishes between the access to justice rights which apply to members of the "public concerned" and those which apply to the "public at large". However, until this judgment, it was possible to interpret Articles 6(7) and 9)2) of the Convention in a number of ways. This judgment clarifies how to interpret these Articles, and the scope of the rights which flow from them. 

Unfortunately, the question of issue specific locus standi was not addressed by the court. It has been noted in a recent Irish High Court decision (An Taisce v An Bord Pleanála & Ors [2021] IEHC 254) that the position in relation to issue specific locus standii is not acte claire and so may be referred to the CJEU in a future appropriate case. 

If you require further information please contact Alison Fanagan, Consultant, or Chris Stynes, Solicitor, or any member from the A&L Goodbody Environmental & Planning Team. 

*This article is for general information purposes only and should not be relied upon as a substitute for legal advice. The author(s) do not accept liability for any errors or omissions made.  June 2021.

Date published:  2 June 2021