19 December 2019
Case C-280/18 Flausch and Others
On 7 November 2019, the Court of Justice of the European Union (CJEU) clarified the obligations of Member State authorities to notify local residents and NGOs of participation procedures and permitting decisions on major infrastructure projects. The judgement largely follows the Advocate General Opinion previously analysed in this newsletter (see here), so we will only summarize the main aspects of the case here. The judgement upholds notification as a prerequisite for effective access to justice under the Environmental Impact Assessment (EIA) Directive but also includes a potentially concerning side note on scope of review.
The case concerns an application to be a tourist resort on a small island of the Cyclades of Greece (Ios). An EIA had been carried out in the regional headquarters, located on a different island (Syros), and relevant notices and information had been made available there. The inhabitants of Ios claim that they learned of the development only when construction started, relevant notices having not reached them. When the inhabitants then sought to challenge the decision granting development consent before the Council of State, both the government and the developer argued that they were out of time to do so, given that 60 days had passed from the publication of the decision on a dedicated government website (DIAVGEIA).
The Greek Council of State referred two questions to the Court:
Question 1: Adequate public participation
On this question, the judgement follows substantially the previously analysed Advocate General Opinion. In short, the Court held that the arrangements for public participation are in principle left to the procedural autonomy of the Member States, which is curtailed by the requirements that the means employed are “equivalent” and “effective”. Based on the information provided by the Greek Council of State, the Court saw no concerns with regard to the “equivalence” of the procedures in comparison with other national procedures.
However, the Court found that a number of facts indicate that the public was not granted “effective” opportunities to participate early in the decision-making procedure as required by Art 6(4) EIA Directive. In that regard, it is for the national court to determine whether information channels to inform the public can reasonably be regarded as appropriate (para. 32) and that the participation file and opportunities to participate were accessible under “easy conditions”, without imposing a disproportionate administrative burden (paras 38-9 and 43). More concretely, the Court held that notice should be contained in a newspaper that is read where the project will be located or by way of public notices there (i.e. the island of Ios in this case), unless it is shown that this would require disproportionate effort. Notice only at the regional administrative headquarters and newspapers distributed only there (i.e. on the island of Syros) are in principle not sufficient (paras 34-6). As regards public hearings, the Court also confirmed the Advocate General’s observation that the efforts for the affected public to travel to a hearing compared with the effort required to hold hearings in an affected municipality are to be given due weight (para. 40).
Question 2: Start of the period for bringing a court challenge
On the second question, the Court also largely follows Advocate General Kokott’s opinion. The judges first stated that notification of a final decision under Art 9(1) of the EIA Directive on a website only is not problematic, nor is the imposition of a 60 day time limit to bring proceedings (para. 52). However, where notification of the public participation procedure has been inadequate, such a time limit cannot be relied on against a member of the public concerned (paras 58-9).
The judgement is first of all positive in establishing clear limits to Member State discretion when designing public participation procedures and in ensuring that inadequate notices thereof cannot be used as a barrier to access to justice. As the Court concludes, at the heart of the analysis must be that public participation rights can “effectively” be exercised. Moreover, public authorities cannot rely on their own failure to adequately notify the participation phase in order to prevent a subsequent court challenge by the public concerned – otherwise public authorities could in a sense benefit from their own wrongdoing.
The method of notification of a decision-making procedure and of the subsequent adoption of the permit have featured in a number of findings of the Aarhus Convention Compliance Committee. For instance in ACCC/C/2006/16 (Lithuania), the Committee has held that notification must be carried out in an “effective manner”, meaning concretely for instance publication in a local daily newspaper, rather than a weekly official journal. The judgement confirms the line taken in this finding, making clear that notices must be placed in newspapers actually read where the project is developed and pointing to the possibility of side notices.
Nonetheless, the judgement also creates a contradiction with an Aarhus finding, namely ACCC/C/2013/99 (Spain). Here the Committee had held that internet notification was by itself insufficient, a line not followed by the CJEU. The impacts of this contradiction may, however, be limited in practice, given that the principle of effective notification of the public concerned underlies both the ACCC’s findings and the CJEU’s judgement.
One potentially problematic point features almost as an obiter dictum in the Court’s judgement. Without further explanation, the Court cites case C-470/16 North East Pylon, stating that the scope of review under Article 11 “is limited to the aspects of a dispute which concern the right of the public concerned to participate in decision-making in accordance with the detailed rules laid down by that directive” (para. 46). As Kokott had noted in her Opinion, there is CJEU jurisprudence that establishes more far-reaching requirements for a scope of review under Art. 11 EIA Directive and puts the CJEU’s statement in North East Pylon into context (paras 112-23).
Similarly, the ACCC has been clear that Art. 9(2) Aarhus Convention gives the right to challenge the “substantive and procedural” legality of a decision subject to Art. 6, without restrictions to participation aspects or rules of environmental law (findings on communication ACCC/C/2008/31 (Germany), para. 78). Interestingly, the ACCC referred to the CJEU’s own judgement in C‑72/12 Altrip (para. 36), where the Court held that the EIA Directive does not restrict the scope of review of the action brought (see equally C-115/09 Trianel, para. 37).
Given the further statements of the Court in North East Pylon (para. 58), the underlying idea of the Court may be that other claims are to be subsumed under Art. 9(3) Aarhus Convention and Art. 47 Charter of Fundamental Rights, instead of Art 11 EIA Directive. However, out of context, the Court’s statement is concerning and it will be important to continue to monitor the development of case law on this.