EU environmental law

Christoph Hermes
Europa-Institut, Saarland University,
2021
Enforcement of EU environmental
law II
Topics of session 5

 Enforcement of EU environmental law by private parties

 Direct effect of EU environmental law
 Access to justice
 Case studies:
 C-237/07 Janacek
 C-240/09 Slovak Bear
Introduction

 Two requirements for private enforcement of EU environmental law:

 Direct effect of the legal provision
 Access to justice
 Direct effect: Can individuals invoke the rule of EU law before a national
court (in order to set aside conflicting national law)?
 Access to justice: Is there a procedure before national courts in which
individuals can invoke the rule of EU law?
Direct effect of EU law

 Court of Justice in Case 26/62 Van Gend & Loos (1963): EU law not only
engenders obligations for EU countries, but also rights for individuals;
individuals can directly invoke European law before national courts (without
need for the Member State to transpose it into domestic law).
 Consequence of direct effect + supremacy of EU law: national court (and
national administration) must set aside conflicting national law
 Importance of the two principles for legal protection: see ECJ video
https://www.youtube.com/watch?v=zEJZ25mpoLE
 Provision of EU law is directly effective if it is:
 Unconditional (effects do not require additional measures)
 Sufficiently precise (obligation set out in unequivocal terms)
Direct effect of different sources of EU
law
 Treaties, if unconditional and sufficiently precise (see ECJ in Van Gend & Loos)
 Regulations:
 Art. 288 TFEU: “A regulation shall have general application. It shall be binding in its
entirety and directly applicable in all Member States.”
 Vertical (between individuals and public authority) and horizontal direct effect (in
relations between individuals)
 Directives:
 After expiry of the transposition period
 If unconditional and sufficiently clear
 Only vertical direct effect (individual v public authority)
 Union agreements
 If Union is bound by the treaty, nature and broad logic of treaty does not preclude direct
effect (e.g. not WTO Agreements) and provision is unconditional and precise
Other effects than direct effect:
consistent interpretation
 Even in the absence of direct effect: consistent interpretation
 National court must interpret national law as far as possible in a manner that
is consistent with Union law
Case study: C-237/07 Janecek
Case C-237/07: the facts

 Mr Janecek lives in Munich, close to air quality measuring station; PM10 limit value
have been exceeded much more often than permitted under Directive 96/62
 Mr Janecek brings action before the German administrative courts for an order
requiring the regional government to draw up an air quality action plan in his in
order to determine the measures to be taken in the short-term in order to ensure
compliance with the PM10 limit values
 The Highest administrative court takes the view that Art. 7(3) of Directive 96/62
does not confer a personal right to have an action plan drawn; however, it submits
a preliminary ruling request to the Court of Justice, asking in essence:
 Can an individual require the competent national authorities to draw up an action plan in
the case – referred to in Article 7(3) of Directive 96/62 – where there is a risk that the
limit values may be exceeded?
 Are the competent national authorities obliged to lay down measures which ensure
attaining the limit values in the short term or can they limit themselves to taking
measures to ensure a gradual improvement?
Case C-237/07: the applicable EU law
 Council Directive 96/62/EC of 27 September 1996 on ambient air quality
assessment and management (now repealed by Directive 2008/50/EC on
ambient air quality and cleaner air for Europe)
 Article 7 of Directive 96/62:
“1. Member States shall take the necessary measures to ensure compliance with
the limit values.
…
3. Member States shall draw up action plans indicating the measures to be taken in
the short term where there is a risk of the limit values and/or alert thresholds being
exceeded, in order to reduce that risk and to limit the duration of such an occurrence.
...”
Case C-237/07: reasoning of the Court
1) Right to request drawing up an action plan
 Clear obligation in Art. 7(3) Directive 96/62 to draw up action plans where
there is a risk of the limit values being exceeded
 Case-law on direct effect of provisions of directives which are unconditional
and sufficiently precise
 “(…), it is incompatible with the binding effect which Article 249 EC (now:
Art. 288 TFEU) ascribes to a directive to exclude, in principle, the possibility
of the obligation imposed by that directive being relied on by persons
concerned. That consideration applies particularly in respect of a directive
which is intended to control and reduce atmospheric pollution and which is
designed, therefore, to protect public health”
 Art. 7(3) Directive 96/72 is specific
 Answer: “Article 7(3) of Directive 96/62 must be interpreted as meaning that,
where there is a risk that the limit values (…) may be exceeded, persons
directly concerned must be in a position to require the competent national
authorities to draw up an action plan, “…)”.
Case C-237/07: reasoning of the Court
2) Content of the action plan
 Wording of Art. 7(3) of Directive 96/62 (“shall draw up action plans indicating
the measures to be taken (…) in order to reduce that risk and to limit the
duration of such an occurrence”) shows that Member States authorities have
certain discretion
 But: “Article 7(3) of Directive 96/62 includes limits on the exercise of that
discretion which may be relied upon before the national courts (…), relating
to the adequacy of the measures which must be included in the action plan
(…)”
 Answer: Member States are obliged, subject to judicial review by the national
courts, to take such measures that are capable of reducing to a minimum the
risk that the limit values may be exceeded and of ensuring a gradual return to
a level below those values, taking into account the factual circumstances and
all opposing interests
Case C-237/07: main lessons and aftermath

 Person directly concerned by risk that air quality limit values are exceeded
can invoke Art. 7(3) of Directive 96/62 to require national authorities to draw
up an action plan
 Direct effect of unconditional and precise directive provisions
 Additional argument from binding effect of directives (Art. 288 TFEU) and
importance of protecting human health
 Even if there is discretion as to the content of such air quality action plans,
the limits of such discretion (here: suitability of measure to reduce
exceedance risk and to gradually return to compliance) can be relied upon by
individuals in front of the national courts
 Following the Janecek ruling, NGOs in many EU countries have brought
numerous legal actions in view of exceedances of air quality limits and
successfully forced governments to improve air quality plans under the
successor Directive 2008/50/EC on ambient air quality; rulings have e.g. led
in many German cities to bans of older diesel cars
Case study: C-240/09 Lesoochranárske
zoskupenie VLK (“Slovak bear”)
Case C-240/09: facts
 Slovak NGO applied to Slovak ministry to be party to administrative
proceedings (that concerned grant of derogations to strict protection of the
brown bear, authorizations to use chemicals in protected areas etc.)
 NGO invoked Art. 9(3) of the Aarhus Convention
 Slovak ministry rejected the request
 NGO brought legal action against that rejection
 Slovak court submitted preliminary ruling request, asking in essence whether
Art. 9(3) of the Aarhus Convention had direct effect
Case C-240/09: applicable EU law
 Aarhus Convention:
 Treaty concluded in 1998 by EU, all Member States and some other countries
 Establishes number of rights of the public (individuals and their associations) with
regard to the environment in three areas:
 Access to environmental information
 Public participation in environmental decision-making
 Access to justice

 Art. 9(3) of the Aarhus Convention:

“(…), 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.”
(emphasis added)
(Art. 2(4): “’The public’ means one or more natural or legal persons, and, in accordance with national
legislation or practice, their associations, organizations or groups;”)
Case C-240/09: reasoning of the Court
 Question: Can an environmental NGO invoke Art. 9(3) of the Aarhus Convention in
front of a national court in order to challenge a decision to derogate from a
system of environmental protection?
1) Does the Court have jurisdiction to interpret Art. 9(3) of the Aarhus Convention as
to whether it has direct effect?
 Aarhus Convention is mixed agreement (concluded by EU and all Member States
 Who determines direct effect of Art. 9(3): ECJ based on EU law or national courts
on basis of national law?
 Art. 9(3) falls within sphere of EU law since Union has exercised its powers and
adopted provisions to implement this obligation (see e.g. Regulation No
1367/2006)
2) Direct effect of Art. 9(3) Aarhus Convention?
 Art. 9(3) of the Aarhus Convention: does “not contain any clear and precise
obligation capable of directly regulating the legal position of individuals. (…)
provision is subject, in its implementation or effects, to the adoption of a
subsequent measure”
Case C-240/09: reasoning of the Court
 Without direct effect, NGO cannot directly invoke Art. 9(3) Aarhus Convention
in Slovak courts; to enforce its environmental rights (e.g. stemming from
Habitats Directive), NGO has to rely on national national procedural law
 But: National procedural law must be interpreted in conformity with the
objective of Art. 9(3) Aarhus Convention and the objective of effective
judicial protection:
“Therefore, it is for the referring court to interpret, to the fullest extent possible, the
procedural rules relating to the conditions to be met in order to bring administrative
or judicial proceedings in accordance with the objectives of Article 9(3) of the Aarhus
Convention and the objective of effective judicial protection of the rights conferred by
EU law, so as to enable an environmental protection organisation, such as the
zoskupenie, to challenge before a court a decision taken following administrative
proceedings liable to be contrary to EU environmental law” (emphasis added)
Case C-240/09: main lessons and aftermath

 Case interesting concerning question to what extent mixed agreements are

integral part of Union legal order and can thus be interpreted by ECJ (also
with regard to the determination of direct effect)
 Main message: Art. 9(3) Aarhus Convention has not direct effect, but is – via
consistent interpretation – relevant for effective judicial protection in all
areas of EU environmental law
Access to justice
Before the law sits a gatekeeper. To this
gatekeeper comes a man from the country
who asks to gain entry into the law. But the
gatekeeper says that he cannot grant him
entry at the moment. (…) The man from the
country has not expected such difficulties:
the law should always be accessible for
everyone, he thinks, but as he now looks
more closely at the gatekeeper in his fur
coat, at his large pointed nose and his long,
thin, black Tartar’s beard, he decides that it
would be better to wait until he gets
permission to go inside. The gatekeeper gives
him a stool and allows him to sit down at the
side in front of the gate. There he sits for
days and years. (Kafka, Before the Law)
Access to justice
 Direct effect and consistent interpretation:
 Is provision of EU environmenal law of a quality that it can be invoked by
individuals in national courts?
 substantive question
 Access to justice:
 Do individuals/NGOs have access to national courts in order to invoke such a
provision?
 Procedural question

 Relevance for EU environmental law:

“Neither water nor the fish swimming in it can go to court. Trees likewise have no
legal standing.” (AG Sharpston in Case C-664/15, Protect)
Principle of procedural autonomy

 Access to the courts and details of procedure are largely issues of national
law (principle of procedural autonomy)

 This leads to important differences between national procedural laws, e.g.

concerning
 Time limits
 Standing of NGOs
 Legal costs
Limits to procedural autonomy: Art. 9
Aarhus Convention
 Art. 9 Aarhus Convention imposes international legal obligations on the Union with regard to access
to justice
 Art. 9(2) Aarhus Convention implemented e.g. through Art. 11 of Directive 2011/92/EU (EIA
Directive):
“1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public
concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a
precondition;
have access to a review procedure before a court of law or another independent and impartial body established by
law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public
participation provisions of this Directive. (…)
3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States,
consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of
any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient
for the purpose of point (a) of paragraph 1 of this Article. Such organisations shall also be deemed to have rights
capable of being impaired for the purpose of point (b) of paragraph 1 of this Article.”
Limits to procedural autonomy: Art. 9
Aarhus Convention
 Art. 9(2) Aarhus Convention obliges Member States to give environmental
NGOs wide access to justice
 See case-law of ECJ: not possible to
 Give access to courts only to NGOs with at least 2000 members (C-263/08
Djurgården)
 Deny standing to NGOs on the ground that that the rule they invoke protects only
the interests of the general public and not the interests of individuals (C-115/09
Trianel)
 Restrict the standing to objections which have already been raised during
administrative procedure (C-137/14 Commission v Germany)
 Art. 9(3) Aarhus Convention: obligation to interpret national procedural law in
conformity (C-240/09 Slovak Bear)
… and what about access to the ECJ?

 Scenario: individual wants to challenge validity of rule of EU environmental

law; needs access to ECJ since national court cannot pronounce on validity of
EU law
 Option 1: national legal action + preliminary ruling (Art. 267 TFEU)
 Option 2: action for annulment (Art. 263(4) TFEU)
 OK if act is addressed to the person
 Otherwise: only acts of “direct and individual concern”
 Individual concern (Plaumann formula); not in case of public interest oriented
envinonmental law; criticism by Aarhus Compliance Committee
 Direct concern (directly affect legal situation of individual)
 Aarhus Compliance Committee (ACCC/C/2008/32 (EU)): ECJ with ”double
standard”
Further reading

 Jans/Vedder, European Environmental Law – After Lisbon (4th edition, 2012),

chapter 5 “Legal Protection”
 C-240/09 Slovak Bear
 Commission Notice on access to justice in environmental matters (2017/C
275/01), https://eur-lex.europa.eu/legal-
content/EN/TXT/HTML/?uri=OJ:C:2017:275:FULL&from=EN