A Ferrari with its doors locked shut

12 January 2011 by

C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen (intervening) – read judgment

The German system of judicial review involves a “careful and detailed” scrutiny of administrative decisions. However, admissibility criteria are such that few are able to access this system, particularly groups bringing actions alleging environmental harm.

At the centre of this case is the highly topical matter,  relevant to one of the discussion threads on this site, of the trend towards a new system of environmental justice, heralded by Aarhus and the accompanying EU Directives, where national courts to are required to recognise claims brought by pressure groups alleging infringement of environmental provisions, even where there is no individual legal interest involved. The  Trianel case puts into sharp focus the debate as to whether the environment should be protected not as an expression of an individual’s interest, but as a general public interest, enforceable in the courts.

An environmental NGO (“Bund”) sought to challenge the partial permit that had been granted for a coal-fired project to proceed in Nordrhein-Westfalen. They claimed that the project infringed the protective and precautionary principles of German anti-pollution laws and the requirements of the water and nature protection laws. The proceedings were not taken as a group action,  for example an organisation grouping together a number of local residents who contended that they would be adversely affected by the effects of a particular project in the locality in which they live. Rather, the application for judicial review sought to challenge the contested administrative decision in so far as it authorised activities which, it was alleged, would have an adverse effect on the environment as such. In that sense, it may be said that the NGO was seeking to act on behalf of the environment itself. For that reason, the local court took the view that Bund was not entitled to bring the action, and referred the question to the ECJ whether the German requirements on locus standi were compatible with EU law in conjunction with the Aarhus Convention.

Germany is one country which provides a high level of environmental protection in its laws. But the fact that there is a wide range of environmental legislation in place is not the end of the story, as not all of these laws can readily be associated with the protection of substantive individual rights. The rules for locus standi in the judicial review courts are stricter than they are in the UK; as AG Sharpston says,

like a Ferrari with its doors locked shut, an intensive system of review is of little practical help if the system itself is totally inaccessible for certain categories of action.

Under German law, a party wishing to bring an action for judicial review must rely on the infringement of a substantive individual right. Bund’s action was therefore stayed pending a reference to the ECJ of the following questions:
Does Article 10a of Directive 85/337/EEC (‘the EIA Directive’), as amended by Directive 2003/35/EC, “the Aarhus Directive”, impose a requirement on Member States to give environmental NGOs the right to bring an action before the national courts, without demonstrating or relying on the infringement of a substantive individual right? And if the rules of national procedural law do not enable an environmental NGO (such as Bund) to establish locus standi to bring an action for judicial review, is it entitled to rely directly on the provisions of Article 10a?
The Aarhus Convention requires in general that effective judicial mechanisms should be accessible to the public to enforce environmental justice, Article 9(2) in particular requires that “members of the public concerned” should have access to a review procedure by an independent judicial body. Article 2(5) defines ‘the public concerned’ as ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.’

So the interests of any NGO meeting the requirements of 2(5) are theoretically sufficient for the purposes of Aarhus.

This dispute was based on the provision in the EIA Directive which mirrors the Aarhus definition of “public concerned”.
The determining factors for standing in German law start with the Grundgesetz (the Basic law) which requires that a person should have recourse to the courts if their rights are impaired by a public authority (Article 19(4)). The rules of procedure for administrative courts laid down by the Verwaltungsgerichtsordnung stipulate that an action may be admitted only where “the claimant asserts his rights have been impaired by the administrative measure”. Nature conservation laws and and other domestic laws implementing the EIA directive cumulatively limit standing to those pressure groups and other NGOs that can satisfy the court that they have maintained an impairment of a substantive individual right. In other words, environmental NGO’s are deemed to hold rights equivalent to those of individuals (when in reality they cannot and do not). This places environmental NGOs on a par with individuals, but it does not alter the nature of the rights these NGOs must invoke to gain locus standi to challenge administrative action.

Once an applicant overcomes this high hurdle for admissibility, German judicial review offers a “particularly intense level” of judicial scrutiny, giving a “high level of protection” to individual rights.

AG Sharpston’s Opinion

It is significant that the preliminary assessment emanates from an English lawyer. Rules for NGO locus standi in the UK courts have relaxed considerably since the early battles by pressure groups and associations like Federation for Small Businesses to assert their claims in court: lawyers of a certain vintage will remember learning about the old RSC rule 53 requiring”sufficient interest” in cases such as the Fleet Street Casuals.  The filter now applies at the costs stage, where applicants are required to give a cross undertaking in damages or security for costs, a regime which has itself come in for criticism from the Aarhus Compliance Committee.

First she considered whether the reference to “human health” in the Directive provides a textual basis for thinking that access to the courts may be made contingent upon the existence of substantive individual rights. Certainly the EIA Directive draws a link between the protection of the environment and the protection of individual rights to health. However, in his view that link should be understood in general terms:

Locus standi to challenge an alleged failure correctly to apply particular provisions of environmental legislation should not be made dependent upon showing a particular or specific link with human health

She was particularly persuaded that the involvement of NGOs, particularly those with enhanced technical expertise, in both the administrative and judicial stages of decision-making would have the effect of strengthening both the quality and the legitimacy of public decision making in environmental matters, as well as levelling out the playing field:

It seems to me that permitting an environmental NGO to contest an administrative decision in favour of a project is even more vital if – as appears to be the case in Germany – a corresponding negative decision can always be contested by the project managers, who can (by definition) allege an impairment of their individual substantive rights.

By insisting that environmental NGOs can only complain about threatened impairment of rights enjoyed by individuals they represent, the German procedural rules offend against the Aarhus principles which are intended to confer a “broader standing than that” on environmental groups.  It followed therefore, in her opinion,  that the part of the EIA Directive that reflects Aarhus means that the national system must recognise that they have ‘a right’ capable of being impaired, even if that right is fictitious in a national legal system that would otherwise only recognise the impairment of substantive individual rights.
Furthermore,  the Advocate General considered that if the German position were correct, it would undermine the very basis of Aarhus, because whether an environmental NGO could bring an action would depend in part on chance:

Imagine two lakes, fairly alike in flora and fauna. The first is in the wilderness, in a remote corner of a large tract of land under the general control of the local authority (which will also consider any planning request). Not a soul lives nearby. The second is near a few houses. Under the German Government’s interpretation, an environmental NGO could have locus standi to challenge a decision authorising a construction project bordering on the second lake (if it alleged that the householders’ rights were or could be impaired) but not the first. That surely cannot be the intent of the EIA Directive. Access to justice cannot be made dependent on extraneous factors, such as the precise location of the project that an environmental NGO fears may cause damage to the environment.

The AG therefore recommended that the Court should rule that the EIA Directive requires that environmental NGOs wishing to bring an action before the courts of a Member State in which administrative procedural law requires an applicant to maintain the impairment of a right should be permitted to argue that there has been an infringement of any environmental provision relevant to the approval of a project, including provisions which are intended to serve the interests of the general public alone rather than those which, at least in part, protect the legal interests of individuals.
In the absence of full implementation into national law, an environmental NGO is entitled to rely directly on the provisions of Article 10a of Directive 85/337/EEC, as amended by Directive 2003/35/EC.

If the ECJ adopts the AG’s conclusions it will have wide ranging implications for member states’ procedural rules on administrative action. Obviously nobody is going to go as far as to say that the EU together with Aarhus requires Member States to modify their national systems so as to allow an actio popularis whereby any party enjoys unlimited access to challenge administrative decisions on environmental grounds. But it is hard to accept the compatibility of a national procedural rule  whose effect is that no party at all may bring an action alleging infringement of legislation aimed only at protecting the environment. To extend the AG’s metaphor, environment claimants must be allowed access to the Ferrari keys too. On the other hand, privileging environmental groups over others in the application of admissibility criteria may well lead to a plethora of preliminary skirmishes on definitional grounds, a problem referred to by David Hart in his analysis of two recent Aarhus Compliance committee rulings.

There is an action pending against Germany before the Aarhus Convention Compliance Committee, concerning essentially the same question as the one at issue in the present case; we will report on the Communication when it comes through.

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  1. Mats says:

    Although I agree with Sharpton’s reasoning, I do not think that if the Court follows the opinion, standing rules will change. For one, the reliance on the procedural and administrative contribution of the NGO has to be seen as a key issue. The ECJ has already taken this view in a number of earlier cases. This is in part the same argument the Commission is making at the Aarhus Compliance Committee. Secondly, the Aarhus Convention itself clearly states that legal systems will not have to change as to allow the Actio Popularis. Mr. Veidt of the ACCC has interpreted these provisions as meaning that (as stated by Sharpton) there should be an effective way for NGO’s to initiate proceedings. This leaves a wide margin of discretion, and the opinion has just underlined a demarcation that, in essence, was created with Greenpeace, UPA and WWF-UK.

  2. ObiterJ says:

    A most interesting post and, in my respectful view, a sensible opinion from the Advocate-General.

    Governments are probably trying to have it both ways. They keep telling us that everyone is affected by environmental pollution. – e.g. carbon dioxide emissions from cars. If so, then these environmental bodies ought to be able to bring legal challenges without having to show particular affected individuals. On the admission of governments, there is a general effect on the population. Fruitful areas would be environmental pollution from carbon-dioxide producing older power stations. Government should be hoist own its own petard !! It may -(almost certainly will) – require EU law to achieve this.

  3. Law Think says:

    Let’s just hope the ECJ listens to AG Sharpston’s colourful, but erudite, opinion.

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