10th March 2023
By ClientEarth environmental democracy lawyer Ewa Dabrowska
The Grand Chamber of the Court of Justice (CJEU) in its judgment of 8 November 2022 confirmed the rights of environmental associations to bring legal proceedings before national courts to challenge all violations of environmental law. This clarification should send ripple effects through many EU Member States, especially in Central and Eastern Europe, where rights to challenge are still limited to certain permitting and planning decisions. As explained below, the judgement also demonstrates a puzzling distinction of rights in the CJEU case law.
The national dispute
Deutsche Umwelthilfe eV., a German environmental association, challenged a decision by the German Federal Motor Transport Authority to authorise software installed in vehicles manufactured by Volkswagen AG. The software reduces the recirculation of gaseous pollutants according to outside temperature, with its fully effectiveness only if the external temperature is greater than 15 °C. The association sought annulment of the contested decision, claiming that it contravenes EU environmental law, that is Article 5(2) of Regulation No 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6).
The German administrative court in Schleswig-Holstein had doubts whether an environmental NGO has a legal standing to bring such an action. The German system of legal standing – like that of many other Central and Eastern European countries – is based on individual rights. An action is admissible only if the applicant asserts that his or her rights have been impaired by the administrative measure at issue. Under the German court’s reading, Article 5(2) of Regulation No 715/2007 does not confer any such rights, nor would an NGO otherwise derive standing from German law. The German court therefore asked the CJEU whether legal standing might be derived from EU law, especially Article 9(3) Aarhus Convention and Article 47 of the Charter of Fundamental Rights.
Reply of the Court of Justice
National criteria cannot exclude environmental NGOs
The Grand Chamber of the CJEU came up with some interesting answers. First, in regard to the limitations introduced by a State on who can obtain legal standing, the CJEU confirmed the standard already clearly established in the Protect case (C‑664/15): Article 9(3) Aarhus Convention would be deprived of its very substance, if certain categories of ‘members of the public’ – a fortiori ‘the public concerned’, such as environmental associations – were to be denied of any right to bring proceedings. Therefore, imposing those national criteria by a Member State must not deprive environmental associations in particular of the possibility of verifying that the rules of EU environmental law are being complied with (paras 67-68).
Scope of what can be challenged
The most ground-breaking conclusions of the judgment relates to what can be challenged by environmental NGOs. The CJEU noted that, according to the actual wording of Article 9(3) of the Aarhus Convention, such criteria relate to the determination of those persons entitled to bring an action, not to the determination of the subject matter of the action, so as to what constitutes provisions of national environmental law. It follows that Member States may not reduce the material scope of Article 9(3) Aarhus Convention by excluding from the subject matter of the action certain categories of provisions of national environmental law (para. 64).
This means that environmental NGOs can challenge basically any act or omission that contravenes provision of national law relating to the environment. The CJEU at the same time reinforced the broad meaning to be given to the expression “provisions of national law relating to the environment”, indicating that a functional approach is necessary. The decisive issue is if the provision in question somehow relates to the environment. Thus, also acts and omissions that may contravene provisions on, among other things, city planning, environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships are covered by Article 9(3) Aarhus Convention, regardless of whether the provisions in question are found in planning laws, taxation laws or maritime laws. The CJEU also noted that the provisions of EU law that are directly applicable are to be considered as “national law” within the meaning of Article 9(3) (para. 58).
Far-reaching consequences for Member States with restrictive standing regimes
In many EU countries of Central and Eastern Europe, Article 9(3) Aarhus Convention is largely not implemented because it clashes with national provisions on legal standing based, in general, on infringement of individual rights. For example, in Poland an individual who lives in an area where air pollution limits have been constantly exceeded with a detrimental effect on his health cannot challenge local air quality plans. This is because national law does not provide a right to clean air. To obtain standing is even harder for NGOs, as legal persons cannot claim violation of individual rights. There is hope that the consistent CJEU case law will progressively motivate national judges to comply with EU law and interpret national procedural rules so that environmental NGOs can challenge environmental law violations.
The reasoning of the CJEU is somewhat puzzling in light of another recent judgment of the CJEU, case C-61/21. In the present case, the CJEU held that the Member State was laying down procedural rules concerning the exercise of the “rights that an environmental organisation derives from Article 5(2) of Regulation No 715/2007” (C-873/19, para. 65). The question arises what exactly are those rights?
Article 5(2) Regulation 715/2017 does not explicitly confer rights on NGOs or individuals but imposes an obligation on Member States regarding devices that reduce the effectiveness of emission control systems. According to well-established CJEU case-law rights arise not only where they are expressly granted by provisions of EU law, but also by reason of positive or negative obligations which those provisions impose in a clearly defined manner, whether on individuals, on the Member States or on the EU institutions (C‑61/21, para. 46) As the Court states, the objective pursued by Regulation 715/2017 is to “ensure a high level of protection of the environment” (C-873/19, para. 51). It would therefore appear that environmental organisations derive from Article 5(2) a material right to preserve, protect and improve the quality of the environment and protect human health, which they are then permitted to defend in court.
However, this is in contradiction with a recent judgment (case C-61/21) on the grounds of Air Quality Directive, in which the Court denied that Article 13 and 23 of that Directive confer implicitly a right to clean air, even though they impose clear and precise obligation in relation to air quality. Since NGOs also have a right to access to justice under this provisions of the Air Quality Directive (see Case C-404/13 ClientEarth), the Court appears to draw a distinction between material rights (such as the right to clean air) and a mere procedural right to initiate a judicial review.
This poses some conceptual issues: On the one hand the Court accepts that a clear material obligation (positive or negative) imposed on a state creates at the same time a right for an individual or NGO. On the other hand, even though the obligation is material, the right seems to be procedural only. However, if a person is granted with a procedural right to initiate a review, it implicitly means that this person can reasonably expect the state to fulfil the obligation. It appears that a material right is always there in the background.
For now, national courts will have to be satisfied with this solely procedural right to initiate judicial review, hidden in EU provisions imposing clear obligations on Member States, even if this is new to the prevailing national understanding of legal interest. Nevertheless, this issue undoubtfully deserves some further clarification which hopefully might follow from another reasonable and well-prepared preliminary question asked by another court as diligent as the German one in this case.