EU Environmental Principles and Scientific Uncertainty before National Courts—The Case of the Habitats Directive: Some Comparative Conclusions, by M Eliantonio, E Lees and T Paloniitty

The aim of this blog post is to draw some comparative conclusions from the study we carried out on how national courts deal with scientific uncertainty, specifically in the context of the litigation generated by the Habitats and Wild Birds Directives. This post concludes a series of posts which the contributors of our study have prepared to highlight the main conclusions stemming from their individual investigations.

When drawing comparative conclusions, it is important to note at the outset that there are subtle and important variations in the operation of the Directives across Member States, happening in a number of dimensions. The first source of these differences lies in the administrative decision-makers themselves. The second source is the operation of the courts, both in terms of the substantive law of judicial review, and in terms of the process in court. The final source relates to ‘environmental’ substance – that is, the ways in which the courts engage with environmental standards per se.

I. Decision-Making Process

Neither in national courts, nor in the courts of the European Union, do Habitats Directive (HD) decisions operate in a vacuum – they emerge from challenges to administrative decisions of one form or another. Any comparative study of how courts handle these challenges must therefore acknowledge that not only do the courts vary in their approach, so too do administrative agencies in respect of whom a challenge emerges. The role of the developer of a project, administrative authority and interested parties, and the way in which power is allocated between these three, set the backdrop against which the judicial action takes place.

First, we can consider from a comparative perspective the respective role of developers as a source of facts within the process. In some jurisdictions developers and their scientific advisors are the primary source of the evidence; in others, the authority itself carries out the appropriate assessment and information may come from a range of sources. The consequence of this diversity of sources of information is that (a) it minimises the degree to which the developer shapes the evidential ‘pathway’ which a decision follows and (b) shifts responsibility onto the shoulders of the administrative agency to weigh and contest conflicting evidence.

Second, it is important to consider the constitution and role of the administrative authority in question. Indeed, in cases where such an agency is required to weigh evidence, their make-up and expertise become critical in the final ‘form’ of the evidential picture as presented to the court. In some jurisdictions decisions lie almost solely with dispersed and decentralised non-specialist agencies; in other jurisdictions the agency is specialised and centralised; in others still the agency is centralised without scientific expertise. In such cases we can see that the degree of specialisation of the agency, its scientific competencies, and its relationship with political actors and the public as democratic subjects will vary. This influences the constitutional understanding of separation of powers and the way in which scientific information is analysed and controlled, and how that influences the decision.

The final layer to consider within the administrative decision which forms the backdrop for the judicial process, is the moment at which and the way in which an administrative decision-maker will invoke the precautionary principle.

Our comparative study has revealed much about the process once a dispute regarding the use of scientific evidence in a decision relating to the HD reaches a judicial forum. But it has also shown the importance of what has gone on before. The idiosyncratic ways in which Member States have integrated HD decision-making into their existing administrative structures has a profound influence on the ways in which agency decisions are reviewed in court.

II. The Procedural Eco-System

The great variation in the ways in which HD decision-making takes place at the Member State level also appears when looking at both the procedural rules on judicial review as well as at the scope and intensity of review used by national courts. Our comparative investigation revealed that ‘traditional’ labels commonly used in comparative administrative law to describe the approach towards judicial review of administrative action are largely a matter of semantics rather than concepts able to capture the reality of the intricacies of judicial review practices. This is the case with respect to the traditional distinction between legality and merits review: while all legal systems provide a (sometimes constitutionally guaranteed) mechanism of legality review, and understand it as a cornerstone of the rule of law, merits review sits more uneasily with the trias politica and is therefore either left out from the jurisdiction of administrative courts or admitted only within clear limitations. However, beyond these principled distinctions, matters become more blurred when a thorough control of administrative discretion within the legality review comes ‘dangerously’ close to a merits review.

Furthermore, our comparative analysis showed that national understandings of seemingly pan-European notions, such as proportionality or the duty to give reasons, may differ widely, and with them the consequent intensity of judicial review performed by courts.

Finally, in turn, the intensity of judicial review is linked to the epistemological possibility of national courts to access and understand the scientific knowledge necessary to control administrative decision. The legal systems covered in our volume differ greatly when it comes to both the rules concerning the existence of specialised environmental courts (or of specialist judges within generalist administrative court) and the possibility and practical occurrence of resorting to experts in cases concerning the HD. Most often it is generalist judges who are called upon to adjudicate cases falling under the scope of the HD, making it crucial whether and to what extent these judges can resort to experts to understand the scientific underpinnings of a dispute. Most legal systems do foresee systems of appointing or hearing experts in various shapes and forms but our comparative investigation revealed a large lacuna when it comes to the actual occurrence of experts featuring in environmental cases in practice. Indeed, in most legal systems, the proceedings remain largely adversarial without the courts regularly engaging in autonomous fact-finding activities, unless the evidence is clearly inconclusive or contradictory.

Interestingly, there is no clear – and principled – correlation between the presence of specialist knowledge and a more thorough scrutiny of administrative decisions under the HD. The legal systems which we have covered in our volume range from a very ‘hands-off’ approach towards the judicial control of administrative discretion, to a very intense system of review, with an intermediate step of ‘manifest errors’ threshold. One element where instead relatively little variation has been found concerns the vital importance of principles of procedural nature to extend the review of courts – often beyond the more straightforward ‘province of legality’.

As decisions taken by national authorities under the HD fall within the scope of application of EU law and the Aarhus Convention, a pertinent question is finally whether procedural rules concerning expert evidence, or the presence of expert judges, as well as the different approaches to judicial review may fall short of the requirement to ensure effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union and to provide a ‘procedural and substantive review’ of decisions under environmental law under Article 9 of the Aarhus Convention. While no procedural arrangement seems in principle to fall below these standards, certain doubts can be raised with respect to a number of legal systems where a very deferential approach to the control of administrative discretion is adopted.

III. The Level of Protection

These administrative and procedural aspects serve as ‘entry points of diversity’ in understanding how and why judicial approaches to the Directives, and the use of scientific information in adjudication, vary. However, variation in substantive outcomes, and, as a result, in the level of environmental protection achieved, does not follow in a straightforward fashion from these variations in legal technique.

The first source of variation is how the courts select the object of their enquiry in matters often complex in science, technology, and law. Some courts restrict themselves to securing whether an appropriate assessment was required to be and has been carried out (a threshold which encompasses not only the existence, but also the sufficiency at a threshold level, of the assessment). In others, the object of the scrutiny is also a substantive one, but the risk included in the proposed plans (rather than their impact) is in the limelight.

The second source of variation lies in the reasons underlying the courts’ examination of the way in which the authority considered the scientific uncertainty at stake and in particular, in the way in which the court conceives of precaution. In some courts, the focus is on securing procedural legality, and the role of precautionary principle has been minimal. In other legal systems, despite the more substantive engagement with the scientific uncertainties considered by the authorities, courts may avoid engagement with the precautionary principle as a tool to assist in interpretation of either evidence or of law.

The CJEU repeatedly states that certainty in evidence is required if the tests in the Directives, themselves interpreted in a broad, purposive manner, are to be met. Member State courts, albeit in different ways, seem to pull back from the full consequences of this approach because of the unsettling potential of this test to shift the balance of power between organs of the state. The pre-existing constitutional balance has a profound influence on how far the court will step into the shoes of an administrative authority and what it means for it to do so. This has consequences for the level of environmental protection achieved given the complexities of the relationship between administrative authorities, the priorities of national government, the democratic mandate of such authorities, and where the environment sits in this decision-making matrix. In some jurisdictions, there are clear indications that the courts see their constitutional role as being partly about upholding the goals of the Directives; in others, courts have maintained rather more rigidly the traditional divisions of their judicial review standards.

IV. Conclusions

Based on our analysis, therefore, there are justified reasons to be concerned over the uniform application of EU conservation law and of its effectiveness in practice in terms of environmental protection. The technique of a Directive is of course to mandate a goal to be achieved whilst leaving the mechanics to the Member States. This is designed to chart a course between the maintenance of idiosyncratic legal cultures on the one hand, and the effectiveness and harmony of EU law on the other. In the case of the Wild Birds Directive and HD what we see is that the levels of variation in how Member State courts decide cases relating to these Directives produces variation not just of process – administratively and judicially – but also of substance. Furthermore, the guidance from the CJEU, which is all about the level of protection to be achieved and the required level of evidential certainty, leaves Member States free to decide the techniques they can and cannot use to assess whether there is evidential certainty in any particular case. In short, there is a gap in harmonisation, a deliberate gap into which legal culture steps.

Posted by Mariolina Eliantonio, Emma Lees and Tiina Paloniitty

Mariolina Eliantonio is Professor of European and Comparative Administrative Law and Procedure at Maastricht University.

Emma Lees is Academic Director and Professor of Transnational Law at the School of Transnational Law at the European University Institute. She is also Professor of Environmental and Property Law, University of Cambridge, and the Peter Wilson Fellow at Fitzwilliam College.

Tiina Paloniitty is Postdoctoral Research at Helsinki Institute of Sustainability Science and Eric Castrén Institute, Faculty of Law, University of Helsinki.


Suggested citation: M Eliantonio, E Lees and T Paloniitty, “EU Environmental Principles and Scientific Uncertainty before National Courts—The Case of the Habitats Directive: Some Comparative Conclusions”, REALaw.bog available at https://wp.me/pcQ0x2-yt