19 June 2020
Earlier this year we analysed the opinion of Advocate General Hogan in this case concerning, among other things, standing for individuals under Article 11 of the Environmental Impact Assessment (EIA) Directive and the Water Framework Directive (WFD). In May, the Court of Justice handed down its judgment, largely confirming the Advocate General’s conclusions. Most notably, the Court confirmed that individuals who are “directly concerned ” by a decision that breaches Article 4 of the WFD by virtue of the fact that they “legitimately use” the body of water in question, must have standing to challenge that decision. The Court also provided useful clarifications on standing for individuals under Article 11 of the EIA Directive, particularly in Member States that make standing conditional on the impairment of a right, and the interaction between the assessments of water quality required under the WDF and the EIA procedure.
A number of individuals in Germany sought to challenge a decision to authorise the construction of a new motorway. The decision allowed the developer to discharge rainwater from the road’s surface into three bodies of surface water or into groundwater and contained a number of provisions to ensure the quality of the water bodies concerned. However, the authorisation was granted in the absence of a documented assessment to ensure that the water protection requirements in Article 4 of the WFD were met. Such an assessment was only provided during the judicial proceedings that followed. As a result, a group of individuals who had taken part in the public participation procedures, including owners of private wells who were concerned that their water supply would be contaminated, tried to challenge the permit before the Federal Administrative Court.
The German court referred several questions to the CJEU regarding the individuals’ rights to challenge the authorisation under the EIA Directive and the Water Framework Directive, as well as the interaction between the obligations contained in these directives. The German court also referred questions on the substantive obligations in Article 4(1)(b)(1) WFD, regarding the question of what constitutes deterioration of a body of groundwater, which are not analysed here.
The German Court asked whether Article 11(1)(b) EIA Directive affords Member States the discretion to allow individuals to challenge an authorisation on the ground of a procedural defect only if the defect deprived those specific individuals of their right to participate in the decision-making process granted by Article 6 EIA Directive.
The Court answered this question in the positive, based on the wide margin of discretion that Article 11(1)(b) affords to Member States in deciding which individuals have standing to challenge decisions falling under the scope of the EIA Directive. In particular, in Member States that require the impairment of an individual’s rights, the CJEU has held that it is possible to refuse standing if it can be established that the procedural defect did not affect the outcome of the decision. This is because, in these circumstances, the individual’s rights cannot be considered to have been impaired. It follows from this that Member States have discretion to allow individuals to challenge a decision on the grounds of a procedural defect only if the defect deprived them of their right to participate in the decision-making.
The Court confirmed that the public is not in a position to participate meaningfully in the decision-making process if it has not been given access to the information necessary to assess the impact of the project on the water bodies concerned. This statement does not go as far as the Advocate General, who opined that each of the procedural guarantees laid down in Article 6 EIA Directive must be considered as substantive individual rights. Nevertheless, it is a strong indication that the failings in the public participation procedure described above deprived the applicants of their right to participate in the decision-making process.
Next, the German court asked whether the assessment of the impact of the project on the water bodies concerned required by Article 4 WFD must take place prior to authorisation and, if so, whether the public participation obligations contained in Article 6 of the EIA Directive require that assessment to be made available to the public during the authorisation procedure.
The Court first found that the obligations in relation to both surface water in Article 4(1)(a) and groundwater in Article 4(1)(b) have binding effects. Specifically, before an authorisation is issued, the competent authority must check whether the project may cause negative effects that would be contrary to the obligations to prevent deterioration and improve the condition of the water bodies concerned. This necessarily implies that the assessment must be carried out prior to authorisation.
Regarding the public participation requirements in the EIA procedure, the Court confirmed that the information to be made available to the public must include the data necessary to assess the likely impact of the project on the water bodies concerned with regard to the criteria and obligations contained in Article 4 WFD. In particular, the data provided must show whether the project is likely to result in the deterioration of a body of water. This entails that an incomplete dossier or data distributed in a number of different documents would not allow the public concerned to participate meaningfully in the decision-making process, and would be in breach of Article 6(3) of the EIA Directive. In addition, the non-technical summary of the assessment that developers are required to provide to the competent authority under Article 5 of the EIA Directive must be made available to the public. The Court stated that it was for the referring court to verify whether the file to which the public had access before the authorisation of the project fulfilled all of the requirements arising from Article 6(3) EIA Directive.
The fourth question related to whether the applicants were entitled to challenge the authorisation on the grounds that it breached the ban on the deterioration of water quality - and the requirement for the improvement in water quality - in Article 4 WFD.
The Court recalled its previous case law to the effect that it would be contrary to Article 288 TFEU regarding the binding nature of directives, to preclude individuals from relying on the obligations they impose before national courts (see, for example, cases C-664/15 Protect and the more recent case of C-197/18 Wasserleitungsverband Nördliches Burgenland and Others). In these cases, the Court held that natural or legal persons “directly concerned” by a breach of the provisions of a directive relating to the environment can enforce them before national courts.
As to the question of whether the individuals in this case were “directly concerned” by the WDF provisions relating to groundwater, the Court stated one of the objectives of the WDF, including Article 4 thereof, is to protect groundwater as a resource for legitimate human use. Therefore, because violations of the obligations in Article 4 are liable to affect such use, the individuals with a right to use the body of groundwater in question are directly concerned by a breach of those obligations.
This judgment confirms the Court’s expansive approach to the concept of individuals that are “directly concerned” by a specific provision of a directive (in this case Article 4 of the WFD). The Court explicitly followed its reasoning in case C-197/18 Wasserleitungsverband Nördliches Burgenland and Others (analysed here), which afforded standing to those that “legitimately use” an element affected by the breach in question. This is likely to have far-reaching consequences for a number of national legal systems, particularly those that have traditionally employed the “impairment of a right” approach to standing.
Regarding standing under Article 11 EIA Directive, the wording of that article leaves clear discretion to Member States when it comes to defining the concept of impairment of a right. Nevertheless, the Court provides a clear indication that standing must be afforded to individuals to challenge authorisations when the information rights that are so fundamental to public participation are breached.
The Court also made it clear that the substantive environmental obligations contained in the WFD (and presumably other EU environmental laws) must be taken into account by developers during the EIA process (i.e. prior to authorisation) and adequately documented in the public participation phase. This interaction between the EIA process, particularly the public participation procedure, and substantive environmental obligations is key to improving the quality of public decision-making and preventing environmental deterioration in the first place.
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.