Environmental procedural rights before European courts: still searching for a common script or multiplying avenues of protection?, by Justine Richelle

Environmental procedural rights are guaranteed by the Aarhus Convention, which the EU and the Member States have ratified. The Convention has been designed to leave room for interpretation. Since the entry into force of the Convention, the CJEU has been called on numerous occasions to rule on its interpretation and the relevant implementation of EU law. The ECtHR has also previously relied on the Convention in several judgments. This post zooms on one CJEU judgment and two ECtHR judgments delivered in 2021, and looks back at how the two European Courts dealt with procedural rights: are they searching for a common script, or are they perhaps offering multiple avenues of protection?

Introduction

The rights of access to environmental information, public participation, and access to justice are environmental procedural rights guaranteed under the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the ‘Aarhus Convention’), which was adopted in 1998 and entered into force more than 20 years ago. The Aarhus Convention is a mixed agreement, meaning that both the EU and the Member States are Parties to it.

The Aarhus Convention was drafted in the spirit of furthering the accountability of decision-making, its transparency, and improving public support of decisions in the environmental area. Article 1 of the Convention states that it is based on ‘the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’. For the purposes of the present discussion, it should also be noted that various provisions of the Aarhus Convention are drafted in an open-ended way, for Contracting Parties to model implementation according to their national preferences.

The rise of environmental procedural rights, on the one hand, is based on the idea that no one ‘owns’ the environment, but on the other hand, that the environment has no voice to defend itself. In the words of former AG Sharpston in the hearing of the Trianel case, ‘the fish cannot go to court’. Similarly, future generations cannot have their say in current environmental decision-making.

The EU has implemented the Convention’s obligations towards its Member States in dedicated  Directives, such as the Environmental Information Directive and the Public Participation Directive. Moreover, provisions on environmental procedural rights can be found in sector-specific legislation, such as the Water Framework Directive and the Ambient Air Quality Directive.

Since the adoption of these rules, the Court of Justice of the European Union (CJEU) has confirmed that the public plays an important role in preserving the environment through participation in governmental decision-making procedures. The case law of the CJEU has upheld procedural rights of both individuals and non-governmental associations protecting the environment – the so-called ENGOs – and has shed light on several ambiguous provisions of the Aarhus Convention and implementing EU legislation. For instance, the CJEU has had the opportunity to clarify the scope of the ‘public concerned’, and to confirm that recognised ENGOs are always part thereof. The CJEU has moreover dealt with the pecuniary obstacles to public participation, such as fees to participate in permitting procedures under the Environmental Impact Assessment (EIA) Directive. A further example of a development in the CJEU case law is the interpretation of the Habitats Directive as containing a public participation requirement, although not explicitly: the Court has set that the Habitats Directive, adopted prior to the Aarhus Convention, must be interpreted in accordance with Article 6 of the Aarhus Convention.

Concerning the European Convention on Human Rights (ECHR), a different picture emerges. Indeed, the ECHR does not provide for a right to a healthy environment per se. Nevertheless, the European Court of Human Rights (ECtHR), in its 1994 landmark decision Lopez Ostra v. Spain, noted that environmental pollution ultimately affects the private and family life of impacted individuals. When ruling on cases with an environmental dimension, the ECtHR has circumvented the lack of right to a healthy environment by relying on another right, such as the right to life (Article 2 ECHR), the right to a fair trial (Article 6 ECHR), or the right to respect for private and family life and home (Article 8 ECHR). The ECtHR has moreover referred to the Aarhus Convention in judgments involving an environmental procedural question. Interestingly, the ECtHR has even done so in Taskin and Others v. Turkey, although Turkey is not a Party to the Aarhus Convention, thereby hinting that Aarhus might have gained the status of customary law – although this was not confirmed in Okyay and Others v. Turkey, as noted by Duvic-Paoli.

Against this background, the present contribution aims at highlighting how both Courts have dealt with environmental procedural rights recently, by briefly discussing three judgments delivered in 2021. Keeping in mind that the Aarhus Convention leaves room for interpretation and that judicial dialogue between Courts can be valuable for legal development, this post aims at reflecting on whether the European Courts are heading towards a common path in their interpretation of the Aarhus Convention, and whether the various, recent judgments of the two Courts might bring an opportunity for ENGOs to multiply their chances of protecting their environmental procedural rights.

Recent CJEU case law

LB and Others v College van burgemeester en wethouders van de gemeente Echt-Susteren (‘Stichting Varkens in Nood’ case)

The Stichting Varkens in Nood (‘Pigs in danger’) case concerned a preliminary ruling on the interpretation of Article 6 of the Aarhus Convention (on public participation in specific decisions) and Article 9 on access to justice. The case kicked off with the approval of a construction permit for the extension of a pigpen in the province of Limburg, in the Netherlands. Following publication of the permit approval, third parties (including an individual – ‘LB’ – and a number of associations including ‘Stichting Varkens in Nood’, protecting ‘pigs in danger’) applied to the District Court of Limburg to seek annulment of the permit. Under Dutch law, two cumulative conditions must be met to challenge the decision in court:

  • The applicant must be an ‘interested party’; and
  • The applicant must have participated in the public participation procedure.

The District Court of Limburg did not consider LB to be an ‘interested party’ (thus not meeting requirements set by the first condition). Furthermore, it found that the environmental associations had not put forward objections in the decision-making procedure, thereby failing to fulfil the second condition abovementioned.

The District Court, therefore, turned to the CJEU for a preliminary ruling and referred the question of whether the limitation of access to justice to ‘interested parties’ only, within the meaning of Dutch law, was compatible with the Aarhus Convention. In addition, when it comes to the ENGOs, their action was deemed inadmissible because of their lack of participation in the decision-making procedure. The District Court wondered whether imposing such a condition of admissibility complied with EU law and the Aarhus Convention.

In its judgment of January 2021, the CJEU declared that access to justice for the public concerned by a proposed activity must be guaranteed, even if they did not take part in the preceding public participation procedure. The CJEU interpreted the Aarhus Convention as meaning that public participation must be guaranteed for the public concerned, but not necessarily always for the public as a whole. Following this judgment, Member States may restrict participatory rights to the ‘public concerned’ for decisions covered by Article 6 of the Convention. However, if they do so, according to the CJEU, they are not allowed, under Article 9(2) of the Convention, to make access to justice of the public concerned dependent on prior participation in the decision-making procedure.

While this ruling might be seen as a ‘victory’ for access to justice in environmental matters, one might wonder whether the Court is undermining the importance of public participation in the decision-making procedure, vis-à-vis access to justice. Indeed, since ENGOs are always part of the ‘public concerned’, and since they can simply go to court without having to previously participate in the decision-making procedure, one might ponder whether they would bother to participate at all.

Recent ECtHR case law

This case revolved around the extension of a motocross track around a Natura 2000 protected area in the Netherlands. More precisely, a permit was requested to the municipality in order to extend the track’s opening hours and to increase the number of bikes allowed. Since no objection was received during the decision-making procedure, the permit was granted. The applicants in this case possessed land and premises close to the motocross track. They decided to appeal against the decision to grant the permit, after the fixed time period to do so had expired. They argued that they had no idea that the decision was published and that publication solely on the Internet was not suitable. Indeed, according to them, not everybody is able to access such information online. The national court considered that the applicants were at fault for not submitting their views on the draft decision during the administrative decision-making process timeframe and that the complaint was lodged too late, rendering it inadmissible.

The facts of the case follow a quite similar pattern as in Stichting Varkens in Nood: under the Dutch legal framework, ‘interested parties’ must have participated in the decision-making procedure before going to court. After having exhausted all domestic remedies, the applicants turned to the ECtHR, arguing – inter alia – a violation of their right to a fair trial (Article 6 ECHR). Before the ECtHR, they did not invoke the Aarhus Convention (although the decision could potentially have been covered by Article 6(1)(b) on decisions on specific activities that may have a significant effect on the environment), nor its transposition into EU law, and neither did the Court in its judgment. Instead, they focused their arguments on the fact that giving notice of the draft decision to grant the permit only online allegedly limited their participatory possibilities and, consequently, violated their right to access a court.

After reviewing the Internet penetration rate in the Netherlands and finding that online communication is a common practice, the Court concluded that there was no violation of Article 6 ECHR.

This case was based on an alleged breach of the right to a fair trial (Article 6 of the ECHR) and on an alleged breach of the right to access information on the basis of Article 10 ECHR. The case concerned environmental protection associations combatting the construction of a nuclear waste storage centre in France. The associations brought their case against the French National Agency for the management of radioactive waste (‘ANDRA’) to court as they claimed ANDRA had failed to give them mandatory public information on the geological storage of nuclear waste, as is provided by the French Environmental Code. The case was dismissed by the French court for several reasons, including, with respect to one of the concerned ENGOs, its lack of standing. The ENGO in question was denied access to court in France, on the ground that, allegedly, they did not have standing since preventing environmental and health risks associated with the nuclear industry was not part of their statutory goals. Furthermore, the ENGO’s main aim was merely ‘protection of the environment’ which, according to the French court, was insufficient to prove locus standi on the case at hand.

The ECtHR emphasised that protection against nuclear risks was definitely part of ‘environmental protection’ at large, and therefore found that the French court was in fact incorrect. Drawing its reasoning on Article 6 (1) ECHR, the ECtHR recognised that the approach of the French court was too restrictive, especially in light of the fact that the ENGO was officially established and approved under the French Environmental Code. Such official approval in principle grants ex lege standing before French courts. To decide on this matter, the ECtHR did mention the Aarhus Convention, to which France is a State Party, to reiterate that ENGOs always form part of the public concerned. The Court also stressed the importance of access to justice for environmental NGOs. The ECtHR decided that the ENGO concerned by the lack of standing should have had standing and that France should interpret standing rules for ENGOs in a flexible way (para. 54 of the judgment).

When it comes to the potential breach of the right to access information alleged by the plaintiffs, they were not so lucky. Indeed, the ECtHR dismissed their arguments in the second part of the case. The ECtHR stepped up and clarified, for the first time, that the right of access to information under Article 10 of the ECHR would lose its meaning if the information provided were to be dishonest or inaccurate. In this way, the ECtHR emphasised that ENGOs should be able to have access to reliable, accurate environmental information. In the case at hand, however, the Court concluded that there was no breach of Article 10, since the majority of applicants were able to effectively review ANDRA’s compliance with the legal obligation to provide information to the public, and the content and quality of the information given.

Searching for a common script or increasing judicial protection avenues?

The outcomes of these rulings deserve a few observations in terms of the coherence (or lack thereof) in dealing with environmental procedural rights by the European courts.

While both the CJEU and the ECtHR have been called to rule on environmental procedural cases in the past years, it should be stressed that the legal regime and nature of the two Courts are different and that they operate under very different ‘mandates’ to deal with such cases. The Association Burestop 55 case, for instance, shows how the ECtHR is sometimes used as a last resort Court, a kind of ‘4th instance’, available to applicants proving to be ‘victims’ of fundamental rights violations. This stands in contrast with the EU legal system where the preliminary reference procedure under Article 267 TFEU is not available to applicants as a matter of right, and the infringement proceedings only foresee a role of ‘informants’ for individuals.

At the same time, while more available than the CJEU, the potential downsides of addressing the ECtHR lie in its remedial system, which only foresees ‘just compensation’ and gives rise to political pressure to modify legislation. Also, as seen in the Stichting Landgoed Steenbergen case, the ECtHR does not necessarily rely on the Aarhus Convention, although the case at hand might call for it. Instead, the CJEU has more far-reaching powers in that its judgments in preliminary rulings are binding on the referring national court. When called to interpret the Aarhus Convention, for instance, the Court of Justice may issue a judgment obliging national courts to disapply conflicting national law provisions. Following the Stichting Varkens in Nood judgment, a national procedure is ongoing as to whether to amend Dutch law and so should be the case for similar provisions in other Member States.

It is important to note that the cases discussed above relate to different procedural rights and are based on different legal claims. While they may not be fully comparable at first sight, they provide an interesting overview of the directions taken by the Courts in cases concerning environmental rights. Of course, since the Aarhus Convention is designed to grant some leeway to State Parties, it is logical that not all Courts deal with it in a similar way. What the cases above show, however, is that the avenues followed by the Courts differ when adjudicating on environmental procedural rights. This can potentially lead to different (perhaps even contradictory?) outcomes, which may be difficult for national authorities to comply with. The same also holds in cases where the jurisprudence of one of the Courts proves to be inconsistent on some topics.

These various avenues of judicial protection might be beneficial for applicants, as they can be regarded as ‘multiplying’ the chances to bring environmental violations to the attention of judicial instances. Indeed, on the one hand, the Burestop 55 case is an example of the ECtHR helping ENGOs in their access to court in environmental matters. On the other hand, the CJEU’s judgment in Stichting Varkens in Nood strengthens access to justice possibilities for ENGOs in issues covered by the Aarhus Convention (although arguably undermining the importance of public participation in the decision-making procedure). Potentially, such multiplication of chances might also bring about certain risks. In a scenario where the CJEU does not find any violation of EU law implementing the Aarhus Convention, but the ECtHR does find a violation of Article 6 as seen in Burestop 55, one might be faced with the situation that the ECtHR makes a decision indirectly affecting the interpretation of EU law and, ultimately, the Aarhus Convention. It remains to be seen whether the ECtHR, in its jurisprudence, will ever indicate, directly or indirectly, that there are insufficiencies in EU law implementing the Aarhus Convention.

Posted by Justine Richelle

Justine Richelle is a PhD candidate at the University of Hasselt (BE) and Maastricht University (NL) since February 2021. Her PhD research focuses on public participation in EU environmental law. Justine holds a LL.B. in European Law (Maastricht University), a LL.M. in European Law (Maastricht University), as well as a LL.M. in Energy & Climate Law (University of Groningen).

Suggested citation: J Richelle, “Environmental procedural rights before European courts: still searching for a common script or multiplying avenues of protection?”, REALaw.blog, available at https://realaw.blog/2022/02/24/1096/.