Analysis: “Case C-535/18 Land Nordrhein-Westfalen: Access of individuals to national courts to challenge infringements of EU environmental law” by Ioanna Hadjiyianni
The Court of Justice delivered a judgment on 28 May 2020, that clarifies the circumstances in which a private citizen can rely on EU environmental law violations to challenge the validity of administrative decisions authorising a major infrastructure project. In particular, the Court clarified the scope of Member States’ autonomy when determining standing of individuals seeking to challenge the legality of action under (a) the Environmental Impact Assessment Directive 2011/92 (EIA Directive), and (b) the Water Framework Directive 2000/60 (WFD).
The Land Nordrhein-Westfalen case (C-535/18) concerns a request for a preliminary ruling from the German Federal Administrative Court. The applicants in the domestic dispute included individuals at risk of expropriation of their private property and individuals with a domestic well for private supply of drinking water. They challenged an administrative decision authorising the construction of a major road, including related rainwater drainage into surface water and groundwater bodies.
Interrelationship between the Environmental Impact Assessment Directive and the Water Framework Directive
As the Court of Justice confirmed, the authorisation procedure presented procedural defects given that the impacts of the project on water were not sufficiently considered prior to the decision, and the public was not accordingly informed during consultation. The Court clarified the binding effects of both the non-deterioration and improvement obligations of Article 4(1) of the WFD. These apply at all stages of implementation, including when approving individual projects. Therefore, impacts on surface water and groundwater bodies must be assessed, before any decision is taken. Additionally, the Court recognised that access to relevant documents, including information on the impacts on water bodies in accordance with the WFD, is essential for effective public participation. However, contrary to the Advocate General’s (AG) Opinion, the Court did not consider that there had been deprivation of any of the procedural guarantees of Article 6 of the EIA Directive, including access to relevant documents, sufficient to establish a right of judicial recourse under Article 11(1).
The Court acknowledged that the project would not have likely led to any deterioration of the water bodies, and therefore the contested decision would not have been different. In light of this, the Court emphasised that Article 11(1) of the EIA Directive grants considerable discretion to Member States when defining ‘sufficient interest’ or ‘impairment of a right’, which in turn determine access to review procedures. Particularly, for impairment of a right, Article 11(1)(b) permits a provision of national law, which enables an individual to bring judicial proceedings for annulment on the basis of a procedural defect, only if that has deprived the applicant from participating in the decision-making process. The Court found the provision of German law that requires infringement of public-law individual rights in this manner compatible with the EIA Directive. Notably, such a requirement has been rejected in Bund für Umwelt (C-115/09) as regards environmental NGOs, which according to the AG’s Opinion are entitled to ‘a form of actio popularis’. The Court thereby differentiates between different members of the ‘public concerned’, within the meaning of the Aarhus Convention, granting narrower access to justice for individuals.
The Non-Deterioration Obligation for Groundwater
The Court was also called on to determine substantive aspects of the WFD regarding the non-deterioration obligation for groundwater under Article 4(1)(b)(i). It highlighted that the obligations for surface water and groundwater are largely identical and the scope of the non-deterioration obligation is determined by the same principles. It therefore extended the strict interpretation in relation to surface water, adopted in Bund für Umwelt (C-461/13), to the analogous obligation for groundwater. On the one hand, the deterioration of the chemical status of a groundwater body as a result of a project, can be established when it exceeds at least one of the quality standards or thresholds values, within the meaning of Article 3(1) of Directive 2006/118. On the other hand, when the threshold set for a pollutant has already been exceeded, deterioration is established when there is a foreseeable increase in the concentration of that pollutant. Detecting non-compliance with a quality element at a single monitoring point is sufficient to establish the deterioration of the chemical status of the groundwater body.
Enforcement of EU Environmental Directives before National Courts
Finally, the Court established a right for affected individuals to challenge infringements of the obligations stemming from Article 4(1) of the WFD. Given that the WFD does not explicitly provide for such right, the Court relied on Article 19 TEU, on effective legal protection, and Article 288 TFEU, on the binding nature of Directives. The Court emphasised, that if private individuals could not rely on infringement of provisions of a directive before national courts, and those courts could not take them into account in determining whether the national authorities have exceeded the limits of their discretion, the directive would be deprived of its practical effectiveness.
The Court focused exclusively on the impacts on groundwater bodies, from which individuals gain access to drinking water, and not surface water, from which they would not be directly concerned. Following its recent case law, the Court reiterated that at least natural or legal persons directly concerned by an infringement of a directive must be in a position to require the competent authorities to observe those obligations, if necessary through judicial process (C-197/18, paragraph 32). In light of the objectives of the WFD and the obligations of non-deterioration and improvement of groundwater bodies under Article 4(1)(b), individuals with the right to draw from, and use the groundwater body were found to be directly concerned. This was the case irrespective of the fact that deterioration of the water body on the basis of exceeding only one quality standard or threshold value, as explained above, did not endanger the individuals’ health.
To conclude, striking the right balance between national procedural autonomy and wide access to justice in environmental matters is a complex and evolving process. In this case, the Court carried out this balancing exercise carefully, upholding national discretion to determine access to courts by concerned members of the public in the context of the EIA Directive, while expanding individual enforcement of Member State obligations under the Water Framework Directive.
The judgment can be accessed here (but is not yet available in English).
Ioanna Hadjiyianni is a Lecturer at the University of Cyprus. Her latest publications include The EU as a Global Regulator for Environmental Protection (Hart Publishing 2019) and ‘Multi-Level Governance in Action: Access to Justice in National Courts in Light of the Aarhus Convention and its Incorporation in the EU Legal Order’ (2020) 26(2) European Public Law.