EU Advocate General supports islanders’ plea for justice – If you could not have known, it does not count

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Opinion of Advocate General Kokott in Case C-280/18

On 23 May 2019, the Court of Justice of the European Union (CJEU) published an opinion of Advocate General Kokott concerning the obligations of Member State authorities to notify local residents and NGOs of participation procedures and permitting decisions on major infrastructure projects. The opinion is important because it recognizes notification as a prerequisite for effective access to justice under the Environmental Impact Assessment (EIA) Directive.

Background of the case

Ios is a beautiful, tiny island in the Aegean Sea with approximately 2000 inhabitants. It forms part of the Cyclades, a group of islands that is also a regional unit of Greece, the capital of which is Syros, located 55 nautical miles away and connected only by less-than-daily ferry transport. On 22 December 2015, residents of Ios were taken by surprise, or so they claim, by the construction on their island of a massive tourist resort, which was to comprise a 249-bed hotel. The residents sought to challenge that development before the Greek Council of State but both the government and the developer, who intervened in the proceedings, claimed that they were out of time to do so.

What had happened? The tourist resort required an EIA and this EIA had, unbeknownst to the residents, indeed been carried out. On 2 August 2013, the project had been advertised on the notice boards of the offices of the region, on Syros, and in a local newspaper published there. A public participation procedure had been organized and relevant information made available, again on Syros. On 11 August 2014, the decision granting development consent had been published on a dedicated government transparency website (DIAVGEIA) and, about one month later, on the website of the Ministry of Environment. The government and developer argued that therefore the time limit to challenge under Greek law had expired, specifically 60 days after publication on the transparency website.

The Opinion

The Greek Council of State referred two questions to the Court:

  1. Can it be appropriate to give responsibility to initiate and conduct the EIA procedure for major infrastructure projects to the regional authority (Syros), rather than the municipality where the project took place (Ios)?
  2. Can a 60-day period to appeal be considered to commence from publication on a website?

Question 1: Adequate public participation

Kokott first clarified that EU law does not impose any requirements as to which public authority is to be responsible for the EIA procedure. However, she then found that the underlying issue of the first question is actually if it was in this case appropriate to (a) notify the public concerned, (b) provide information and (c) conduct the public participation procedure on the island of Syros instead of Ios, i.e. 55 nautical miles away from where the project would take place.

Kokott addressed these 3 elements (a-c) in turn. For each element, she considered that Article 6 of the EIA Directive leaves the actual means employed to the “procedural autonomy” of the Member States but that this autonomy is curtailed by the principles of “equivalence” and “effectiveness”. These long-established EU law doctrines means that where EU law does not define a procedure by which a specific EU right is to operate nationally, Member States are free to determine the procedure as long as it affords “equivalent” protection as that which applies to procedures for comparable national rights (equivalence) and is “effective”, in the sense that does not become “impossible in practice or excessively difficult” to exercise the EU right (effectiveness).

Kokott considered that in this case for each of the three elements (a-c) no violation of the “principle of equivalence” had occurred. However, while heavily relying on findings of the Aarhus Convention Compliance Committee and the Maastricht Recommendations, she found that there are a range of indicators to be taken into account by the national court that may show that the principle of effectiveness had not been respected:

As regards “notification” of the “public concerned” (a), she considered that the decisive factor is whether local NGOs and affected residents, meaning in this case “at least some, if not all the inhabitants of the island of Ios,” had a “reasonable chance” to learn about the decision-making. She suggested that this may not be the case if there was indeed only notice in public offices in Syros and in newspapers not actually read on Ios. She concluded that the decisive test is whether more effective means could have been used without disproportionate effort. She suggested that this was the case because of the low effort required in posting notices in public offices or on site of the planned construction on Ios.

As regards providing the public with relevant information and the place where persons could participate (b and c), Kokott considered that there must be “proportionality” between the interests of the public concerned and the effort of the public administration in providing information and arranging participation. As regards information, the test would be to compare the effort to provide information on Ios as opposed to the duration and costs incurred by residents on the return trip between Ios and Syros. As regards the participation arrangements, she considered that full effectiveness would have been impaired if residents of Ios were forced to travel to Syrios on a specific date to participate while participation in written or electronic form was not possible.

Question 2: Start of the period for bringing a court challenge

As regards whether potential applicants could be forced to bring a case within 60 days from website notification of the final decision, Kokott again opined that the EIA Directive in principle leaves the method of notification to the procedural autonomy of the Member States. She then considered that there was no violation of the “principle of equivalence” and that the mere fact that the decision was only notified on the internet does not in itself violate the EIA Directive.

However, she also considered that, if members of the public did not know and were not given a reasonable chance to learn in advance about the EIA procedure, the period for bringing an action cannot count from internet notification. This is because the public has no reason to monitor a website looking for a permit decision regarding a project that they do not know about. She further found that this conclusion is neither vitiated by the Court’s judgement in case C-470/16 North East Pylon (see further below), nor by discretion afforded to Member States nor by the principle of legal certainty.

Comment

Kokott’s Opinion is strong in establishing concrete requirements to be met by public authorities to ensure that the rights to public participation and access to justice do not remain a dead letter. While the final decision ultimately rests with the Greek Council of State, Kokott’s Opinion suggests that if notification and public participation arrangements were indeed only provided on Syros, there was a violation of the EIA Directive. She also makes very clear that if these earlier notifications were inadequate, there is also no possibility that a notification on the internet of the permit is sufficient for access to justice, thus linking the two rights. This is welcome because, as Kokott highlights herself at the outset, notice requirements are crucial, much akin to service in civil proceedings.

Another positive point is Kokott’s analysis of the Court’s judgement in North East Pylon. In this highly problematic judgement, the CJEU held that cost protection under the EIA Directive only extended to the public participation aspects. This distinction is artificial for a number of reasons mentioned by Kokott. For one, public participation is not an end in itself but intended to affect the project consent. Moreover, the scope of review under Article 11 of the EIA Directive is not limited to infringements of the rule of public participation but extends to rules of national law implementing EU environmental law and the rules of EU environmental law having direct effect. While Kokott makes these points merely to show why in this case there is an obligation to notify the final permitting decision, they equally demonstrate why North East Pylon itself was misguided.

However, there is also a negative point in Kokott’s analysis. While Kokott refers extensively to the findings of the Aarhus Convention Compliance Committee, she nonetheless contradicts the Committee’s findings on communication ACCC/C/2013/99 (Spain) by stating that it can principally be sufficient, though not in the present case, to notify a final permitting decision on the internet. In these findings, the Committee concluded that internet notification is in itself insufficient to comply with Article 6(9) of the Aarhus Convention. This is surprising because Kokott in fact recognizes that not everyone has access to the internet and refers to ACCC/C/2013/99, though seemingly to the wrong paragraph (see footnotes 28 and 39 referring to para. 58, which forms part of the arguments of the Spanish government, rather than para. 104, which sets out the Committee’s findings).

In summary, the opinion proposes an interpretation of the Directive that, if correctly applied by a national court, would ensure effective protection of the rights to public participation and access to justice in this specific case. However, for the sake of consistency with the Aarhus Convention obligations as regards notification of final permitting decision, it would be welcome if the Court would consider the Committee’s findings in ACCC/C/2013/99 more closely.

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Daria Nepriakhina