Access To Justice In Environmental Matters Before National Courts

Access To Justice In Environmental Matters Before National Courts Presented by: Prof. Eliantonio Date: 8 January 2024 The Aarhus Convention As A Mixed Agreement - Aarhus Convention • EU  EU  Member States • Member States Why Is Access To Justice Before National Courts Important? - EU environmental law is overwhelmingly implemented through national measures - Direct access to EU courts is restricted and indirect access through the preliminary question of validity complements the "complete" system of remedies Article 9 of the Aarhus Convention - Article 9(1) • Access to justice* for violation of access to environmental information provisions - Article 9(2) • Access to justice* in the context of projects covered by the public participation requirements of the Aarhus Convention (i.e. project with potential significant effects on the environment - Article 9(3) • - Access to justice** for all violations of environmental law * court or other independent and impartial body Access To Justice In The Aarhus Convention - Standing - Costs of proceedings (not prohibitively expensive) - Scope of review (procedural and substantive legality) - Remedies (adequate and effective) The Implementation Of The Aarhus Convention - Implementation of Article 9 of the Aarhus Convention for the Member States • (1) Access to Environmental Information Directive (2003/4/EC) • (2) Public Participation Directive (2003/35/EC), which amended…  EIA Directive (2011/92/EU)  Industrial Emissions Directive (2010/75/EU) • (3) Commission Notice and Communication on Access to Justice + sectoral Directives + proposals  Environmental Liability Directive (2004/35/EC)  Seveso III Directive (2012/18/EU) Access to Environmental Information Directive - Standing for 'any applicant' who considers that their access request has not been treated in accordance with the Directive - Fish Legal. no need to prove an interest in the content of the information requested Public Participation Directive - Directive • Access to justice for the members of the public concerned who can show either the impairment of a right' or a 'sufficient interest' - CJEU's case law • Djurgården: Numerical requirement for NGOs cannot run counter to broad access to justice • Trianel + Gruber: Criterion of 'impairment of right' for NGOs cannot run counter to broad access to justice • Pigs in Danger: Access to justice must be guaranteed even if NGO did not take part in the preceding decision-making procedure • LZII: Access to justice must be guaranteed also for cases outside Public Participation Directive (in casu Habitats Directive) Access to Justice Directive (failed) - Access to justice for members of the public who fulfill the requirements (if any) foreseen in national law European Commission Notice on Access to Justice (2017) - Member States may adopt criteria that individuals and NGOs must fulfil in order to obtain legal standing, but these criteria must not make it impossible or excessively difficult to exercise substantive and procedural rights conferred by EU law. - Calling on co-legislators to support access to justice rules to be included in sectoral EU proposals - Removing obstacles from national law, in line with CJEU's case law - Calling on national judges to a improve access to justice - Commission to fulfill its role as Guardian of the Treaties through enforcement actions CJEU's case law - LZA national courts must interpret national law in a way as to allow standing for environmental NGOs - Protect NatureL Standing must be granted to NGOs claiming the violation of the Water Framework Directive - Deutsche Umwelthilfe: standing must be granted to NGOs claiming the violation of rules on EC type-approval for vehicles - Wasserleitungsverband Nördliches Burgenland: standing must be granted to natural and legal persons in proceedings requiring national authorities to amend action programs aimed at reducing pollution from nitrates - Commission v Poland: standing must be granted to challenge forest management plans Conclusions - Article 9(1) and Access to Environmental Information Directive • - Overall correct compliance with Directive and little (need for) case law Article 9(2) and Public Participation Directive • Overall correct compliance with Directive and CJEU's case law intervening to correct violations - Article 9(3), lack of transposition and Notice + Communication on Access to Justice • Duty of Aarhus-friendly interpretation for national courts, increasing intervention of the CJEU (and Commission), future of Article 9(3) in sectoral legislation