Aarhus shows its teeth to Belgium

31 October 2011 by

C-128/09 Boxus, CJEU, 18 October 2011

Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues.   This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.

Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they?  Enter, on a white charger, the Aarhus Convention to the aid of the challengers.

Aarhus arises because bits of Article 9 of that Convention, about public participation and access to justice in environmental matters, have been implemented by the EU EIA Directive. So that Directive, as amended, contains (in Article 10a) the Aarhus requirement that members of the public have access to an independent review procedure to challenge the substantive and procedural legality of decisions concerning EIA. The Region had hoped that its Decree would resolve the various domestic court proceedings because those courts would cease now to have jurisdiction. And, it thought, the EIA Directive was inapplicable because Article 1(5) said the Directive did not apply to

projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process. (sic)

This less than pellucid provision (which has troubled the EU courts before) has been interpreted as meaning that the exclusion does not apply unless there is (a) a specific act of legislation and (b) the objectives of the directive were in fact achieved through the legislative process – so it is no good saying that the legislative process may be equivalent to the ordinary EIA process, unless this can be demonstrated in the legislative process in question. Hence, as the CJEU put it, the national court [47] must

take account both of the content of the legislative act adopted and of the entire legislative process which led to its adoption, in particular, the preparatory documents and parliamentary debates.

“Take account” – now there’s a phrase that has been in the legal news recently.

The Advocate-General spelled this out further at [84] of her opinion

In my view, in order to assess whether that has happened in any particular case, the national court will need to examine the following aspects:

(a)      input: was the information placed before the legislature sufficiently detailed and informative to enable the legislature to evaluate the likely environmental impact of the proposed project?

(b)      process: was the appropriate procedure respected and was the preparation time and discussion time sufficient for it to be plausible to conclude that the people’s elected representatives were able properly to examine and debate the proposed project?

(c)      output: does the resulting legislative measure (read, if appropriate, in conjunction with supporting material to which it expressly refers) make clear what is being authorised and any limitations or constraints that are being imposed?

So where are Aarhus’s teeth?  They lie in conferring jurisdiction on domestic courts to decide these issues – there must not be domestic jurisdictional bars on such a court carrying out this exercise. In the case in hand, the question had come before two courts, the Administrative Court and the Constitutional Court. The Belgian government said that its Conseil d’Etat had no jurisdiction because it had been removed by the Decree, and its Cour Constitutionelle could only look at constitutional issues, of which this was not one. This does not appear to have gone down terribly well with the EU Court. Hence its conclusion that, if the legislative scrutiny was not up to EIA standards, and there was no court with jurisdiction to review the validity of the decree, then exit Decree, or as the EU Court put it:

the decree must then be regarded as incompatible with the requirements flowing from Article 9 of the Aarhus Convention and Article 10a of the [EIA] Directive. The referring court must then disapply it. 

No messing then. The EU Court is sending out a firm warning that whisking a measure through a tame parliament cannot cure any EIA defects in the original planning process unless the parliamentary process itself is up to those standards. Either the domestic courts find a way of determining the adequacy of that process or the Decree falls away – felled by Aarhus.

One rather hopes that our domestic legislature would never have tried something like this on, to get some major infrastructure project out of a planning pickle. But, in case it is ever tempted, it now knows unequivocally that there is no short cut through the EIA process, however it is carried out. But note it is a somewhat embarrassing task for a court to have to carry out, if the assessment was indeed perfunctory – 10 minutes at 01.20 am with a sprinkling of MPs in the House, and a brisk briefing paper saying that the project is jolly important, would not go down well when measured  against the test set by the EU Court and the Advocate-General – in those circumstances would the people’s elected representatives “be able properly to examine and debate the proposed project”? One quite sees the point, but equally the idea of a court scrutinising, at a micro level,  how Parliament did its job is not one with which UK constitutionalists will be very comfortable.

Finally, spare a thought for Charleroi, site of one of our challenges: it was polled in 2008 by the Dutch as the ugliest town in the world, in case you were harbouring desires to visit it.

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