Advocate General: Access to justice for the “public concerned” is not dependent on the exercise of public participation rights

Advocate General Opinion in Case C‑826/18, Stichting Varkens in Nood

Advocate General Bobek has advised the Court to confirm that the Aarhus Convention, the Environmental Impact Assessment (EIA) Directive and the Industrial Emissions Directive guarantee access to justice for the public concerned by a proposed activity, even if they did not take part in the preceding public participation procedure.

Background to the case

This case concerned a permit for the construction of a pigpen for 855 sows in the Netherlands, an activity subject to the public participation procedures contained in Article 6 of the Aarhus Convention, and falling within the scope of both the EIA and Industrial Emissions Directives. One individual and three environmental organisations, none of which had taken part in the preceding public participation procedure, challenged the permit.

The applicable national law allowed any member of the public to take part in the public participation procedure preceding the permit. By contrast, only “interested parties” had standing to challenge the resulting permit, and on condition that they had taken part in the public participation procedure. The Dutch Court was of the opinion that the challenge brought by the individual in question was inadmissible because she did not meet the criteria for an “interested party” on account of the fact that she lives some distance from the proposed pigpen and would not experience any special or environmental consequences. With regard to the three NGO applicants, the Dutch Court considered them to be “interested parties” because of their status as environmental organisations, but found that they could not pursue their challenge for having failed to submit objections during the public participation procedure. The court thus referred a number of questions to the CJEU on the obligations arising from Article 9(2) of the Aarhus Convention.

Access to justice for individuals under Article 9(2) Aarhus Convention

The first question concerned the individual’s right to challenge the permit, and the extent to which the Netherlands is obliged to provide access to justice to members of the general public in relation to permitting decisions subject to the public participation procedures in Article 6.

The Advocate General’s starting point was that the wording of Article 9(2) of the Convention is very clear in that it affords access to justice to members of the “public concerned” by virtue of having a sufficient interest or maintaining impairment of a right (Article 2(5) AC). The AG found that this is mostly in alignment with the personal scope of Article 6, for which Article 9(2) is the enforcement mechanism. In this context, the AG considered in some detail the wording of Article 6(7), which allows the public at large to submit comments, information, analyses or opinions that it considers relevant to the proposed activity but concluded that it does not grant reciprocal participation rights to all members of the public. Although it was not directly relevant to the case, he rejected the idea that everyone who submits objections in accordance with Article 6(7) becomes a member of the “public concerned” for the purposes of Article 9(2) of the Convention (more on that below).

As a result, the AG found that the Aarhus Convention allowed the national law in question to reserve court access to “interested parties” only.

The AG also assessed this conclusion with reference to the Charter of Fundamental Rights. Given that based on EU law the wider “public” has no right to participate in the permitting decision, he concluded that the public does not enjoy the corresponding right to an effective remedy under Article 47 of the Charter of Fundamental Rights.

Prior participation as a pre-condition to the right of access to justice

The second question considered whether Article 9(2) of the Aarhus Convention allows Member States to make access to justice for the public concerned dependent on the applicant having submitted observations in the preceding public participation procedure. The AG disagreed with this proposition for the following reasons.

First, while acknowledging that Member States have discretion to set standing criteria as to what constitutes “sufficient interest” and the “impairment of a right”, such criteria cannot deprive the right of its content. Requiring a person to have participated in decision-making procedure is, according to the AG, tantamount toinserting a new requirement in Article 9(2) that is “neither present in the text, nor compatible with the spirit of Article 9(2)”, and thus diminishes the right that it guarantees. Indeed, for persons that have not participated in the decision-making procedure, it reverses the logic of Article 9(2), so that absence of access becomes the rule, and access the exception.

Second, the relevant CJEU case law (cases C-263/08 Djurgarden and C-137/14 Commission v Germany) makes it clear that the CJEU considers the decision-making procedure leading to a permit and its judicial review to be two distinct procedures. Introducing a relationship of conditionality effectively conflates these procedures into one package.

Third, such a condition undermines the automatic standing rights enjoyed by NGOs belonging to the “public concerned”.  Indeed, the practical implication for such NGOs would be to require them to participate in all permitting decisions in order to safeguard their right to subsequently challenge them in court. It is also bound to have absurd implications for individuals who had not participated for a wide variety of good reasons.

Comment

With regard to the first question, the most interesting aspect is the AG’s assertion that participation in a decision-making procedure covered by Article 6 of the Convention does not in itself guarantee access to justice under Article 9(2). The AG’s reasoning is that such a rule would have to apply in every Member State and would curtail their discretion to formulate standing criteria as to what constitutes “sufficient interest” and “impairment of a right”. This is not particularly convincing. As the AG himself notes, the Member States have discretion only to the extent that the standing criteria do not deprive Article 9(2) of its content. In this respect, the approach of the Aarhus Convention Implementation Guide (p. 153) is more in keeping with the Convention’s objective of guaranteeing broad access to justice.  It notes that Article 9(2) is supposed to enforce all of the rights in Article 6, including the more extensive right granted to the general public in Article 6(7), and concludes from this that the intention of the Convention appears to be that any person who actually submits comments in writing or at a hearing gains the status of a member of the “public concerned”.

On the other hand, the AG’s opinion on the second question is very welcome. We hope that the Court will follow the opinion on this point and clarify beyond doubt that prior public participation must not be a condition for standing under Article 9(2) of the Convention.