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Access to environmental justice in the jurisprudence of the Court of Justice of the European Union. Comparison with the Spanish Supreme Court.
📚 El derecho a la información ambiental en la jurisprudencia del Tribunal Europeo de Derechos Humanos
📚 El Tribunal Constitucional Español y las ONGs ambientales
📚 Derecho al acceso a la justicia en cuestiones ambientales y de bienestar animal
The drive for broad access to justice in environmental matters exercised by various groups to try to review before the CJEU decisions of institutions and bodies of the European Union, leads several judicial decisions on the legitimacy before the CJEU, by non-governmental organizations of environmental defence, in relation to the provisions of EU Regulation 1367/2006, relating to the application, to community institutions and bodies, of the provisions of the Aarhus Convention on access to justice in public matters, in the decision-making and access to justice in environmental matters (“Aarhus Regulation”).
In relation to the legitimation of natural persons and associations dedicated to the protection of the environment, the General Court of the European Union maintains the so-called Plaumann doctrine, on the interpretation of article 263 of the Treaty on the Functioning of the European Union, and requires the appellants before the Court, that the act whose revision he intends to affect him directly and individually, requiring that the appealed act affect the appellant due to his peculiar attributes or circumstances that differentiate him from other people, in the same way as the recipient of a decision.
The Directive constitutes an act of general scope insofar as it applies to objectively determined situations and has legal effects for categories of persons considered in a general and abstract way, and since it is an environmental norm, the General Court considers that it affects all persons in the present and even future generations, a matter that makes it not compatible with the notion of individual affection required by Article 263 TFEU.
And it is that since the bodies of the European Union are acting exercising legislative functions and such functions are not included in the scope of the Aarhus Convention, the CJEU does not recognize a possibility of requesting the annulment of legislative acts of the Union, considering that the judicial protection system established in the Treaty on the Functioning of the European Union, is sufficient to allow judicial recourse to those affected directly and individually and allowing a preliminary ruling to anyone before the national courts against the acts of application of the rules of the Union European.
The General Court, therefore, denies legitimacy to citizens and associations, based on a restrictive interpretation of the procedural rules of the TFEU. This supposes a dead end in the acts referring to environmental issues that, due to their general nature, will never conform to the requirements of direct and individual scope demanded by the Plaumann doctrine.
Likewise, it has been decided on the legitimation of regional administrations, in the Judgment of the Court of Justice of December 3, 2020 (case C-352 / 19P), denying them legitimacy: The General Court, without entering the merits, inadmissible the appeal for lack of standing since the appealed act did not affect him directly.
As regards access to justice, relating to the assessment of the impact of certain public and private projects on the environment, which gives Member States the discretion to allow persons who challenge an authorization based on a procedural defect, they can only do so if the defect deprived those specific persons of their right to participate in the decision.
The Court of Justice held that standing can be denied if it can be shown that the procedural defect did not affect the outcome of the decision. Member States have the discretion to allow individuals to challenge a decision due to a procedural defect only if the defect deprives them of their right to participate in decision-making.
The Court of Justice recalled that natural or legal persons “directly affected” by an infringement of the provisions of a directive on the environment can demand its compliance before the state courts.
On the contrary, however, as regards the question of whether people in terms of water quality, it understands that they were «directly affected» by the provisions of the Water Framework Directive related to groundwater, the Court of Justice stated that one of the objectives of the Water Framework Directive is to protect groundwater as a resource for human exploitation. Therefore, since the violations of the obligation can affect such exploitation, the persons with the right to use the groundwater body in question are directly affected by the breach of those obligations.
This judgment confirms, on the contrary, the expansive approach of the Court of Justice, of the concept of individuals who are “directly affected”.
Likewise, with regard to legitimation in general, the discretion of the Member States when defining the concept of impairment of a right is recalled. However, the Court of Justice indicates that individuals must be granted standing to challenge authorizations when the rights to information that are fundamental for public participation are violated.
Developers must take into account the substantive environmental obligations contained in the Water Framework Directive (and presumably other European Union environmental standards) during the environmental impact assessment process (i.e., prior to authorization) and properly document them in the public participation phase. This interaction between the environmental impact assessment process, in particular the public participation procedure, and substantive environmental obligations is the key to improving the quality of public decision-making and preventing environmental deterioration.
It should be noted that, contrary to the position of the E.U., the Compliance Committee of the Aarhus Convention, considers that with this doctrine there is a breach of Article 9 of the aforementioned Convention. And it gives the European Union an opportunity to remedy the situation. To which the E.U. has reacted with the proposal to modify the Aarhus Regulation, in relation to the initiative of the European Green Deal to improve access to justice.
What the Commission announces is an expansion of the possibilities for environmental NGOs that meet the criteria of the Aarhus Regulation, to request the internal review of administrative acts of “general scope” and not just of “individual scope”. At the same time, it intends to expand the acts or omissions that can be reviewed by amplifying the concept of administrative act that «infringes environmental law» and not only, as had been mandatory, administrative acts whose objective was environmental protection. Finally, it announces an extension of the deadlines for applications and for the authorities to respond to the internal reviews that are required.
However, the European Commission itself recognizes in the text that precedes the proposal, that the Compliance Committee of the Aarhus Convention actually required greater reforms than those carried out. Specifically, it called for the opening of the internal review to other members of the public beyond NGOs (in particular, natural persons) and the elimination of the requirement that the administrative acts that are appealed must have binding and external effects.
The European Commission, however, justifies the refusal of the European Union, considering that it is not obliged to institute a «public action»: The Convention establishes a special regime of privileged access for environmental NGOs because they are better prepared to discuss acts of “general scope”, but it is insisted that it is not a public action. The European Commission affirms that people, in general, can indirectly fight the environment through Preliminary Questions, which can be raised in the courts. However, the legal defence groups deny that the preliminary ruling could have such a scope, since it is not a direct system of appeal and because it also has a state and non-European scenario.
In short, there are today many acts of the European Union, which are harmful to the environment, and yet cannot be attacked before the CJEU, neither by citizens nor by their associations.
The controversy between Aarhus and the EU will continue.
In the case of our Spanish Supreme Court – IIIrd Chamber of Contentious – Administrative, in environmental litigation brought by NGOs before it, it can be seen how the traditional and consolidated legitimation of a subjective nature by legitimate collective interest is admitted with full normality environmental.
But it should be noted that Articles 22 and 23 of Law 27/2006, of July 18, which regulates the rights of access to information, public participation and access to justice in environmental matters, this legitimation by legal authorization is, on certain occasions, more restrictive than the subjective by legitimate collective environmental interest in accordance with the legal requirements.
The following are requirements for legitimation by legitimate collective environmental interest, only when it comes to non-profit legal entities (NGOs):
– Figure, among the statutory purposes, the protection of the environment.
– There is a link between the statutory purposes of environmental protection and the object of the process in the sense that the sentence may entail a benefit or harm to the statutory environmental purposes.
– And always under an interpretation in the most favourable sense to the effectiveness of the fundamental right to effective judicial protection.
The legitimation by legal authorization of art. 22 and 23 of Law 27/2006, is summarized in STS 292/2020, and that it is limited only to environmental matters, although it was considered that it should not be reduced to environmental sector laws, but, rather, refer to matters that may also be affected by non-environmental sectoral laws.
This is also the case of STS 1584/2020, whose objective question of appeal is: “Yes, legal persons included in article 23 of law 27/2006, of July 18, on access to the information, public participation and access to justice in environmental matters, for the exercise of popular action, in environmental matters, of article 22 of the same Law, in the case of game species, and if, in accordance with the legislation that is applicable to the species, the recognition of the legitimacy can be conditioned to the fact that a problem of maintaining the population is verified ”.
The objective aspect established by this judgment of the protection of the environment as a general interest can lead to a great opening of the appeal for cases of environmental defence. The Supreme Court carries out an interesting analysis of the relationship between hunting activity and the conservation of the species, totally different from that of the sentence under appeal, stating, for example, that “it is the hunting activity that is subordinated to the conservation of the species and not to the reverse”. In the same sense, STS 427/2020.
It is said that Law 27/2006, with a non-formal interpretation of art. 18.1 of said Law, that the legitimacy and the object of judicial recourse is not limited to the legislation on the various aforementioned matters, but also includes legislation on other matters, provided that they may have an impact on these environmental matters. Remember that the objective legitimation of articles 22 and 23 of Law 27/2006 cannot exclude the traditional subjective legitimation by legitimate collective environmental interest.
In short, it should be stated that the legal name of «environmental popular action» would be convenient if, once and for all, it was used instead of the name of legitimation by legal authorization.
Another important issue in practice, which obscures this open criterion for popular legitimation in environmental matters at the jurisdictional level, are economic barriers, and which are one of the main causes that explain the notable decrease in environmental litigation filed. by NGOs or by citizens. It is true, however, that jurisprudence, on occasions, makes use of its interpretative work to temper these economic limitations, that is, the imposition of costs.
The most frequent is that each party assumes the costs caused at its request and the common ones in half. But it becomes an important economic barrier when there is a partial estimate of the contentious-administrative appeal, because the appellant (normally, associations with limited economic capacity) will not be able to be compensated for the high costs of the process whose purpose is the protection of the environment. and, therefore, does not obtain a particular benefit but for the whole community.
It is appreciated in practice, the confirmation of the general criterion of the Supreme Court of limiting the amount of costs to € 4,000 that must be borne by those who have acted for environmental defence.
And it is that the subjective scope of the right to free legal assistance of article 23.2 Law 27/2006, the insufficiency of the right to legal assistance to natural persons, when they act for the defence of the environment, is recommended.
In short, the Supreme Court shows the persistence, even, of a too formal conception of environmental protection, which does not comply with the requirements of effectiveness of access to justice in the environment that derives from the right to effective judicial protection of art. 24.1 CE, as well as the Aarhus Convention and European Union Law.
InterJuez.es 