The Grand Chamber of the Court of Justice of the European Union (CJEU) recently delivered judgment in a significant case concerning access to justice in environmental matters for NGOs. The judgment results from a second preliminary reference to the CJEU from the Supreme Court of Slovakia. The Grand Chamber ruled that the EU Charter of Fundamental Rights (the Charter) and the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters precluded the application of national procedural rules operating at the expense of rights granted to environmental NGOs.
The concerned a Slovak administrative procedure used to authorise a project to construct an enclosure extending a deer reserve. LZ, an environmental NGO, alleged that there would be a negative impact on wild brown bears in the area and requested that the procedure be stayed. However, Slovak authorities refused to grant LZ the status of ‘party to the procedure’, and authorisation was subsequently granted without their participation. In the first reference to the CJEU, this decision was held to be incorrect but, in the meantime, the project had been authorised. Thus a further reference was made to the CJEU on the issue of whether Article 47 of the Charter, on the right to an effective remedy and a fair trial, and the Aarhus Convention precluded authorisation when there had not yet been a definitive judicial ruling on the status of an environmental NGO in the process.
It was held that the Charter applied as LZ was exercising rights derived from Article 6(3) of the Habitats Directive, which says that national authorities, before authorising construction, must obtain the opinion of the general public. This had to be read in conjunction with the provisions of Aarhus, as the project was likely “to have a significant impact on the environment”. The Grand Chamber further held that in light of Aarhus and Article 6(3) of the Directive, environmental organisations must be able to challenge not only a decision by authorities not to carry out an assessment of the environmental implications of a project, but also any assessment carried out if the organisation alleges that it was defective.
The CJEU restated national procedural autonomy as a principle of EU law, but emphasised that this must be balanced with the need for effectiveness of EU law. Here, LZ had not been able to participate in the decision-making process as a result of Slovak procedural rules. If such rules allowed the authorisation process to continue while LZ challenged the fact that it was not fully allowed to participate, this would undermine effective judicial protection of “rights inherent in public participation under Aarhus”. It was held that national procedural law must be interpreted to mean that the grant of permit procedure cannot continue until a definitive judicial decision on the status of LZ.
Click here to read the full judgment in Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín.