C-664/15 Protect: CJEU rules NGOs must have access to justice in water law proceedings

Summer Kern is a lawyer at Okobuero, Justice and Environment Austria

This case represents a huge breakthrough for access to justice rights in environmental matters in Austria, which have to date been extremely restrictive. It is sure to have major impacts throughout the EU as well, impacts that will likely find application in other sectors of EU environmental law.

In a landmark judgment issued on December 20, 2017, the Court of Justice of the European Union (CJEU) ruled that environmental NGOs (ENGOs) must have access to justice in water law proceedings. What is more, the Court ruled that under some circumstances NGOs must be afforded party status to participate in the administrative proceedings, and further found the procedural rule which barred this status for NGOs to be impermissible in this specific case. Along the way, the Court made a number of key observations concerning the access to justice pillar of the Aarhus Convention, and clarified and developed its earlier ruling in C-243/15 (“Brown Bears II”).

The case originated in Austria, where Aichelberglift Karlstein GmbH applied for a permit to abstract water from a river for the purposes of producing snow for a ski resort. This was a permit under the Austrian Wasserrechtsgesetz, which implements the Water Framework Directive. The specific provision of the Directive at issue was Article 4(1), which lays out the prohibition on deterioration of the status of all bodies of surface water. Of key importance for the case is that this project fell outside of the scope of the Environmental Impact Assessment (EIA) Directive. This is because Austria follows a strict impairment of rights doctrine, and ENGOs lack party standing in administrative procedures outside of the EIA context and selected Industrial Emissions Directive (EID) cases. This in turn means that any participation rights for ENGOs are considerably limited and they have no right to legally challenge decisions made in the framework of such procedures. Accordingly, the permitting authority rejected both the application of the ENGO Protect Natur-, Arten-, und Landschaftsschutz (“Protect”) for party status, as well as its submission that the project would lead to significant negative impacts, and subsequently granted the permit.

Protect’s appeal of this administrative decision was rejected inter alia on the basis that Protect lost its party standing by failing to bring its interventions in the administrative procedure in good time. Ultimately the Supreme Administrative Court referred the case to the CJEU, which made essentially three rulings:

• Art. 9(3) of the Aarhus Convention read in conjunction with Article 47 of the Charter of Fundamental Rights (CFR) requires that a recognized NGO must be able to challenge a decision which might violate article 4 of the Water Framework Directive;
• Article 9(3) of the Convention read in conjunction with Article 47 CFR as well as Article 14(1) of the Water Framework Directive must be interpreted such as to block any national provisions denying participation rights as a party to administrative proceedings, where such status is a prerequisite to challenge decisions which are made in the framework of these proceedings;
• Articles 9(3) and 9(4) of the Convention – as applied to the specific circumstances of the national law(s) and case at issue – preclude a national procedural rule, according to which ENGOs would lose their rights as a party to the administrative procedure, and therefore could not bring an action against the conclusion of that procedure, by virtue of failing to submit its submissions during the administrative procedure in a “timely” fashion and, at the very latest, during the oral stage of that procedure. latest.

At the outset the Court stated that the question of whether Article 9(3) of the Convention affords ENGOs like Protect the right to challenge a permit issued under article 4 of the Water Framework Directive only arises when a court determines that significant negative impacts can be excluded. If such impacts cannot be excluded, then the procedure in question falls under Article 6(1)(b) of the Convention, which would entail extensive participatory rights, and Article 9(2), which provides access to justice with regard to public participation rights, would be the relevant provision. This conclusion essentially builds on the Court’s earlier judgment in Brown Bears II and goes some way towards explaining the Court’s views on the difference between Article 9(2) and (3).

Assuming significant negative impacts can be excluded, ENGOs must nevertheless have access to justice under Article 9(3). In analysing this provision in conjunction with Article 47 CFR, the CJEU went on to say that, although Member States have some discretion in establishing standing “criteria” according to their national laws, these may not be so strict that it is practically impossible for ENGOs to challenge acts and omissions within the meaning of Article 9(3). National courts must interpret the national procedural rules on standing to allow such challenges. Of significance is that the Court went on to emphasize that where such an interpretation is not possible, national courts must disapply such rules on their own initiative.

With regard to the issue of participation in the administrative procedures themselves, the CJEU indicated that those rights do not arise by virtue of Article 9(3) alone. However, where the national law so provides – as in the case before it – that the right to judicial review is conditioned on participation as a party to the administrative proceedings, then such extensive participation rights in the form of being a party must be accorded. To fail to do so would defeat the right to judicial review and be contrary to Article 9(3) and Article 47 of the CFR.

The Court discussed at length the benefits that full and active participatory rights for ENGOs can bring, such as ensuring that important arguments in the common interest and for the environment can be brought forth and duly considered, and pointed out that provisions of EU law (here particularly Article 14(1) of the Water Framework Directive) indicate a further obligation for Member States to support the active participation of all interested parties.

Finally, the Court found that the procedural law according to which (potential) parties can lose their party status for a failure to submit a timely intervention during the course of the administrative procedure itself was – as applied to the specific facts of the case – not consistent with Article 9(3) and (4). Austrian law does not allow ENGOs to have “party” status in administrative procedures outside the scope of the Environmental Impact Assessment Directive. Thus, to use Protect’s failure to submit its intervention in a timely fashion would be unfair and, as Advocate General Sharpston pointed out in her Opinion, reminiscent of Kafka. On this point the Court was careful to underline that such rules could in principle serve legitimate interests, and that an evaluation of whether they run afoul of Article 9(3) and (4) needs to be examined on a case-by-case basis, taking into account all relevant circumstances of the case and national law at issue.