25 November 2019
In its newest addition to its access to justice case law, the European Court of Justice (CJEU) confirmed that directly concerned individuals have the right to challenge inadequate Nitrate Action Programmes in their national courts. The judgement applies faithfully the Court’s case law to a new set of facts and adds further explanation as to the standing rights of natural persons. It also gives some interesting indications as to possible ways in which the existing jurisprudence may develop in the future.
The Nitrates Directive (91/676/EEC) requires all Member States to prepare Nitrates Action Programmes (NAP) to reduce and avoid water pollution caused by nitrates from agricultural sources. The Directive defines water as polluted if the groundwater contains more than 50 mg/l nitrates (Art. 3(1) in conjunction with Annex I A, point 2).
The applicants, a public law association providing household water, an individual owning a domestic well and a municipality operating a municipal well, had all measured at certain times nitrate levels exceeding the 50mg/l nitrates threshold. Based on Austrian law, the water could accordingly not be used as drinking water.
In 2016, the applicants requested the responsible Austrian Federal Ministry to amend the Austrian NAP. The Ministry declared their request to be inadmissible because the applicants had no individual substantive rights that were infringed by the alleged inadequacy of the NAP. The applicants appealed that decision to the administrative court of Vienna, which referred a question to the CJEU asking essentially if the applicants should have standing based on EU law and, if yes, what they should be able to claim.
The Court separated the question into three parts: (a) whether the applicants should have standing, (b) what obligations the Directive imposes and (c) whether the individuals could invoke these obligations in court.
Concerning standing (a), the Court held firstly that the binding effect of Directives under article 288 TFEU implies an obligation that “at least the natural and legal persons concerned” need to be able to rely on an infringement of the Directive (paras 30-32). Secondly, the principle of effective judicial protection under article 47 of the Charter and article 9(3) of the Aarhus Convention require that “the public concerned” be able to protect his/her “rights conferred by EU law, in particular the provisions of environmental law” (paras. 33-34). The Court then held that the applicants were “directly concerned” in this case because the purpose of the Directive is to “reduce water pollution” with regard to nitrates and the applicants’ legitimate use of water was impacted by the pollution (paras 35-40).
As to the obligations flowing from the Directive (b), the Court held that the Directive requires the adoption of action programmes and, if necessary, additional measures and reinforced actions where the discharge of nitrogen compounds from agriculture makes a significant contribution to water pollution, 17% being for instance significant (paras 50-53). The Court further held that additional measures or reinforced actions are necessary when monitoring programmes and/or the values actually measured in the water or trends that can be identified over time indicate a potential exceedance of the limit value (paras 57, 59-63 and 65). The Court further specified that (risk of) exceedance of the 50 mg/l value at one measuring point is sufficient to require action (para. 68).
As to whether the individuals could invoke the foregoing in court (c), the CJEU held that the obligations to adopt NAPs and to adopt additional measures or reinforced actions (art. 5(4)-(5) of the Directive) are clear, precise and unconditional, meaning they are directly effective (para. 70). Even though the Member States enjoy certain discretion, all measures imposed must be suitable for reducing water pollution. Hence, whether public authorities exceed their discretion in adopting these measures must be subject to judicial review (paras 71-72).
Accordingly, in a situation where the limit value of 50 mg/l nitrates is exceeded on at least one measuring point and agriculture significantly contributes to this pollution, natural or legal persons, such as the applicants, need to be in a position to require national authorities to amend existing NAPs or adopt additional measures or reinforced actions (para. 73).
As regards standing, the judgement is a consistent application of the now well-established case law to a new area of EU environmental law. The Court applies its case law without limitations confirming that other EU mandated plans/programmes, such as National Emission Ceiling Programmes or Waste Management Plans should be subject to challenge under the same conditions.
A point in which the case goes a bit beyond the previous case law is its statements on the standing rights of natural persons. In Slovak Bears and Protect the Court has already been very clear that environmental NGOs are members of the public concerned that must be accorded standing rights. Janecek already implied standing for affected individuals, in this case those directly concerned by the exceedance of limit values, but did not expand further on which individuals are directly concerned. The present case adds further clarification on this point holding that the applicants were directly concerned because of interference with their legitimate use of water.
The test of according standing to those that “legitimately use” the protected element, may be useful in other areas such as air pollution. This would appear to entail that everyone “using” the air concerned would be considered to have standing, independently for instance of a concrete effect on or risk to their health. It should be noted though that some national courts already adopt wide definitions of “direct concern” based on the preceding case law, such as the Court of First Instance of Brussels which accepted that all residents living in an area or zone where limit values are exceeded had standing.
However, the concept of legitimate use may also have its limitations in cases where only nature is affected, so it will be important that a good test is devised once such a case is brought before the Court. Of course, in some cases there may be persons that legitimately make use of a given stretch of nature, for instance for recreational purposes, but there may be cases where a specific stretch of nature is barred from such use.
An interesting aspect of the Court’s reasoning is the order in which the Court decided to address the elements of the question that it identified. The previous test of the Court appears to have followed a two-step logic: (1) Is the EU provision sufficiently precise to be directly effective in the national system? (2) Does the Directive serve as an object the protection of the environment, thus entailing expanded standing rights? In the present case, the Court addressed the second question first stating that, based on the purpose and relevant provisions of the Directive, natural and legal persons, such as the applicants, must have standing, without considering whether any of the provisions were directly effective.
One reading of this case is therefore that a natural or legal person that is directly concerned by a violation of the provisions and objectives of an EU Directive would need to be granted standing, even if the applicant does not assert a violation of a directly effective provision. In such a case the applicant could only assert that relevant rules would need to be interpreted consistently with the applicable EU law (indirect effect), which of course impacts the scope of review and possible remedies. However, the applicant could still rely on EU law to have procedural rules set aside that would prevent him from obtaining standing. This is because national procedural rules would need to be interpreted consistently with Art. 9(3) to give standing or even set aside if a compliant interpretation is not possible (Protect, paras 55-56). If confirmed, this would have a profound impact, broadening the current access to justice jurisprudence of the Court.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.