January 25
2021
Dolores Utrilla
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14th January 2021
Consumer, Health & Environment Human Rights Justice & Litigation

Court of Justice clarifies scope of right to participation in environmental public procedures under the Aarhus Convention

Today, the First Chamber of the Court of Justice gave its judgment in Stichting Varkens in Nood and Others (C-826/18), a preliminary ruling requested by the District Court of Limburg, Netherlands, concerning the interpretation of Articles 6 and 9(2) of the Aarhus Convention in light of Article 47 of the Charter.

The concerned provisions of the Aarhus Convention (transposed into EU law through Directive 2010/75 and Directive 2011/92 as amended by Directive 2014/52) provide that the decision to authorise environmental activities shall be subject to a public participation procedure and govern the right of access to justice to challenge decisions that have been subject to said public participation procedure.

As previously reported on EU Law Live (here), the request was made in the context of a dispute between the Municipal Council of Echt-Susteren and four applicants, one of them being a physical person and the rest environmental associations, in the context of a challenge against the permit issued for the construction of a new pigpen. Under Dutch law, two cumulative conditions must be met in order to challenge such a decision in court, namely that the applicant must be an ‘interested party’ and must have also participated in the public participation procedure. The referring court did not consider the physical person to be an ‘interested party’, and it was established that the environmental associations did not put forward objections in the public participation procedure.

In its judgment today, the Court of Justice has clarified that Article 9(2) of the Aarhus Convention does not preclude members of the ‘public’ from having no access to justice as such for the purpose of challenging a decision which falls within the scope of Article 6 thereof. Moreover, the Court of Justice has ruled that Article 9(3) of that Convention precludes such persons from having access to justice for the purpose of availing themselves of more extensive rights to participate in the decision-making process which would be conferred on them solely by the national environmental law of a Member State.

The Court of Justice has also made clear that Article 9(2) of the Aarhus precludes the admissibility of the judicial remedies to which it refers, by non-governmental organisations which form part of the ‘public concerned’ referred to in Article 2(5) of that Convention, be made subject to the participation of those organisations in the procedure preparatory to the contested decision, even if that requirement does not apply where they cannot reasonably be criticised for not having participated. It has further made clear that Article 9(3) of the Aarhus Convention does not preclude the admissibility of a judicial remedy which it refers to from being made subject to the applicant’s participation in the proceedings preparatory to the contested decision unless he cannot reasonably be accused, having regard to the circumstances of the case, of not having participated in those proceedings.

The judgment is available here.

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