Advocate General Hogan: Case C-535/18 IL and others v Land Nordrhein-Westfalen ECLI:EU:C:2019:957
This opinion from Advocate General Hogan considers significant questions relating to access to justice under both the Environmental Impact Assessment (EIA) Directive and the Water Framework Directive (WFD). The AG provides his opinion on Member States’ discretion to set standing requirements that restrict individuals’ rights to challenge decisions that breach EIA and water quality requirements. He also offers his view on the ways in which the public participation and requirements in the EIA Directive interact with the water quality obligations contained in Article 4 of the WFD.
A number of individuals in Germany sought to challenge a decision to authorise the construction of a new motorway. The decision allowed the developer to discharge rainwater from the road’s surface into three bodies of surface water or into the groundwater and contained a number of provisions to ensure the quality of the water bodies concerned. However, the authorisation was granted in the absence of a documented assessment to ensure that the water protection requirements in Article 4 of the WFD were met. Such an assessment was only provided during the judicial proceedings that followed, and even then it did not assess the status of the groundwater body concerned. Additionally, the public participation procedure that preceded the permit failed to reference any documents related to the water drainage aspects. As a result, a group of individuals who had taken part in the public participation procedures, including owners of private wells who were concerned that their water supply would be contaminated, tried to challenge the permit before the Federal Administrative Court. The German court referred several questions to the CJEU regarding the individuals’ rights to challenge the authorisation under the EIA Directive and the Water Framework Directive, as well as the substantive rights flowing from the Water Framework Directive.
Access to justice for individuals under Article 11 of the EIA Directive
Under the applicable German law, individuals can only challenge an authorisation based on a procedural defect if they can show that they have been deprived of their right to participate in the decision-making procedure as a whole. Since the individuals concerned had participated in the decision-making procedure, albeit without the required documentation, they failed to satisfy this condition. The German Court asked if this was compatible with Article 11(1) of the EIA Directive.
The Advocate General first noted that Article 11 was introduced to align the EU with the requirements of the Aarhus Convention, which forms an integral part of the EU legal order. In addition, he recalled that the provisions of Article 9(2) of the Aarhus Convention must be read in conjunction with Article 47 of the EU Charter of Fundamental Rights to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law. Therefore, while Member States enjoy discretion to determine what constitutes “impairment of a right”, the access to justice rights in Article 11 cannot be interpreted restrictively or in a manner which negates the substance of the right to effective judicial protection.
This led the Advocate General to conclude that the German law is incompatible with Article 11 of the EIA Directive. The procedural guarantees provided for in the EIA Directive, particularly the public participation provisions in Article 6, must be considered as substantive individual rights. Therefore, while Article 11 would not preclude a national law that requires individuals to demonstrate that they have been deprived of one of these procedural rights, for example access to relevant documents, it does preclude a provision that requires individuals to demonstrate that they have been deprived of the right to participate in the entire decision-making process. He also found the provision to be a disproportionate and excessive limitation on the right to an effective remedy under Article 47 CFR, and thus contrary to Article 52(1) CFR, which sets the requirements that must be met when limiting fundamental rights.
Interaction with the Water Framework Directive
With the second and third questions, the national court asked whether an assessment of a project’s impact on the status of the water bodies concerned must take place prior to authorisation and, if so, whether public participation under Article 6 of the EIA Directive should take account of such assessment.
The AG noted that Article 6(3) the Habitats Directive explicitly requires that an appropriate assessment of the implications of a plan or project for the site concerned be conducted before approval is granted. While the Water Framework Directive does not contain the same provision, he concluded that it must be interpreted as requiring an assessment to take place prior to authorisation on the basis of the precautionary principle. This conclusion is also reflected in the CJEU’s judgment in case C-529/15 Folk, which clarified that a national court may find an authorisation to be unlawful where the competent national authority issued it without an examination of whether the conditions for a derogation from the Water Framework Directive’s requirements were met.
The AG also found that public participation in accordance with Article 6 of the EIA Directive must relate to the assessment of the status of the water bodies affected by the project.
Access to justice to enforce Article 4 of the WFD
The fourth question related to whether the individuals were entitled to challenge the authorisation on the grounds that it breaches the ban on the deterioration of water quality -and the requirement for the improvement in water quality in Article 4 of the WFD.
The AG referred to case C-664/15 Protect, in which the Court held that the effectiveness of the WFD and its aim of environmental protection requires individuals to be able to rely on its provisions in legal proceedings (although in that case the applicant was an environmental protection organisation). He stressed that this applies particularly in respect of directives that are intended to protect public health, such as the WFD, since good water quality is vital for the general public water supply.
As to which individuals should be able to rely on Article 4 of the WFD in legal proceedings, the AG did not directly answer the question of the referring Court, which had asked if this right should be available to all members of the “public concerned” by the project which can show an impairment of a right. Rather, the AG referred to the recent case C-197/18 Wasserleitungsverband Nördliches Burgenland and Others (analysed here), regarding the right of individuals to challenge nitrate programmes. In that case, the CJEU held that the natural or legal persons directly concerned by an infringement of provisions of a directive must be in a position to enforce them. The AG opined that the term “directly concerned” should be interpreted restrictively, since it constitutes a restriction to access to justice. The AG therefore concluded that those individuals who have domestic wells for their private water supply in proximity to the road are directly concerned, as well as consumers of the public water supply if the project is likely to have an impact on it. In this regard, he noted that the Court has not made a specific irrefutable risk to health a condition for brining proceedings.
The AG’s opinion contains a number of useful clarifications. With regard to access to justice for individuals under Article 11 EIA Directive, the CJEU had previously held that Germany has significant discretion to restrict standing and the scope of review with reference to the impairment of individuals’ rights (e.g. C-72/12 Altrip, C-137/14 Commission v Germany). The German rule at stake in this case was adopted to implement these judgments: It reserves the right to challenge a permit based on the lack of documentation during the public participation phase to NGOs, while individuals only have that right if the lack of documentation prevented them from participating in the decision-making procedure as a whole. The AG’s opinion is therefore significant in that it would further limit Germany’s discretion to restrict individuals’ standing by recognising that the public participation procedures in the EIA Directive bestow substantive rights on certain individuals. As stated by the AG himself, this approach fits well within the logic of reading Article 9(2) of the Aarhus Convention and Article 47 CFR together, thereby guaranteeing an effective remedy when Aarhus procedural rights are violated.
Second, the interaction between the public participation obligations in the EIA Directive and the substantive requirements in the WFD (and other environmental directives) is key to improving the quality of environmental decision-making. Therefore, the AG’s clarification that the assessment of the status of water bodies affected by a project must take place prior to authorisation and should be included in the public participation phase of the EIA is significant.
The AG also took an expansive approach to the question of which individuals are “directly affected” by an EU measure (in this case Article 4 WFD), and thus able to enforce it before national courts. Without saying so explicitly, he followed the logic of the CJEU’s approach in case C-197/18 which accords standing to those that “legitimately use” the protected element and takes it to its logical conclusion, even if this goes as far as to afford standing to all consumers of a public water supply that will likely be contaminated by a project.
Nevertheless, the AG’s opinion reveals one misconception worth mentioning. He believes that the Aarhus Convention and the EIA Directive “have to some degree thus provided a form of actio popularis in the environmental field for environmental protection organisations”. On the contrary, both the Aarhus Convention and the EIA Directive allow Member States to afford standing to environmental NGOs only if they fulfil certain criteria. As a result, some Member States set stringent criteria requiring, for example, a minimum number of members or that an NGO has pursued its environmental objectives for a minimum length of time. In practice, the accumulative effect of such criteria blocks NGOs from accessing national courts in a number of Member States.