In a case concerning the hunting of brown bears, the Court of Justice of the European Union (CJEU) ruled that individuals, including NGOs, do not have the right under the Aarhus Convention to challenge environmental proceedings. Only national laws can provide such a right. However, in relation to matters covered by EU environmental laws, national laws and procedural rules must, to the fullest extent possible, be interpreted in a manner consistent with the access to justice objectives set out in the Convention.

Key points

  • The CJEU has ruled that the provisions of Article 9 (3) of the Aarhus Convention, which relate to access to justice in environmental matters, do not have direct effect in EU law. This means that nationals of Member States may not rely on those provisions directly and that their domestic rules will continue to apply. However, the court's finding that Member States must interpret national rules consistently with the objectives of the Convention should be of assistance to those considering challenges.

Background

The applicant (LZ), a Slovakian environmental NGO, had notified the Slovakian Ministry of the Environment that it wished to participate in proceedings concerning a proposed derogation from the legal protection of brown bears that was being sought by pro-hunting groups.

In support of its notification, LZ claimed that the UNECE Convention on Access to Information, Public Participation in Decision–making and Access to Justice in Environmental Matters (the Aarhus Convention), and in particular the right of access to justice under Article 9(3), had direct effect under EU law.

The Aarhus Convention contains three pillars:

  1. access to environmental information;
  2. participation in the environmental decision-making process (requiring public authorities to make arrangements to enable the public and NGOs to comment on proposals for plans, programmes and policies affecting the environment, and on legislation likely to have a significant effect on the environment); and
  3. access to justice in environmental matters (giving the public a right to challenge environmental decisions made in breach of the first two pillars or in breach of other environmental legislation).

Article 9 of the Aarhus Convention concerns the third pillar. Specifically, Article 9(3) states:

"…each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."

The Ministry refused LZ access to the proceedings on the basis that the Convention had to be implemented in national law before it could take effect. On appeal, the Slovakian Supreme Court referred the question of whether Article 9(3) had direct effect to the CJEU.

The Aarhus Convention under EU law

The Aarhus Convention is a so-called 'mixed treaty' in that it was concluded on the basis of joint competence and is binding on both the EU and individual Member States, all of whom are parties to the Convention. Although the EU acceded to the Convention in 2005, it has not yet introduced legislation to transpose the Convention fully into EU law (some legislation has been introduced applying the Convention to EU institutions and bodies).

Nevertheless, the CJEU ruled that the question of whether Article 9(3) had direct effect still fell within the scope of EU law because the protection of brown bears was a "field covered in large measure" by EU law - principally the system of strict protection established by the EU Habitats Directive. The CJEU therefore had jurisdiction to interpret Article 9(3) and rule on whether it had direct effect.

Direct effect

The CJEU concluded that Article 9(3) does not contain obligations that are sufficiently clear and precise to be capable of directly regulating the legal position of individuals directly and therefore its provisions do not have direct effect. The CJEU emphasised that under Article 9(3), only individuals who met "the criteria, if any, laid down by national law" would be entitled to exercise the rights it provides. In the absence of EU rules governing these matters, it was for the domestic legal system of each Member State to lay down the relevant criteria and procedural rules. In the UK, this would generally mean the rules governing judicial review applications.

However, the CJEU went on to state that in relation to a species protected by EU law, and in particular under the Habitats Directive, Member State courts must interpret national laws and procedural rules in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3). This is reminiscent of the duty on public authorities under the Human Rights Act 1998 to interpret legislation in a way which is, so far as possible, compatible with the European Convention on Human Rights. The court held that the same approach must be taken by Member State courts to allow individuals, including NGOs, to challenge any proceedings that are liable to be contrary to EU environmental law.

Commentary

If the CJEU had ruled that Article 9(3) had direct effect, this would have had very significant implications as wide rights of access could be relied on by any member of the public or NGO. As the Advocate General's opinion in this case noted, this would generate considerable legal uncertainty for private persons as well as public authorities whose acts or omissions may be the subject of administrative or judicial procedures. A measure of the significance of the outcome of this case is that observations to the CJEU were submitted by the Commission and seven Member States, including Germany, France and the UK.

However, the fact that Member State courts must interpret national laws and procedural rules consistently with the objectives of the Convention may still have significant implications. The UK courts have already tackled the application of the Aarhus Convention, in particular in relation to costs rules, on a number of occasions. In March 2009, the Court of Appeal considered the application of the Convention in civil proceedings, holding that there was no rule of law that makes the Convention directly binding on the domestic courts (Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107). In December 2010, the Supreme Court held that cost assessments officers should not consider whether the level of costs awarded complied with the requirements of the Aarhus Convention: see our previous e-bulletin Protective Costs Orders in environmental cases available here. Given the decision of the CJEU in this case, these judgments may appear questionable in so far as they concern environmental matters covered by EU law.

(Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky C-240/09).