National Courts and EU Environmental Law 9789089521354, 9789089521286

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the avosetta series 10

National Courts and EU Environmental Law Edited by J.H. Jans, R. Macrory & A.-M. Moreno Molina

Europa Law Publishing

National Courts and EU Environmental Law

Europa Law Publishing, Groningen 2013

National Courts and EU Environmental Law Edited by Jan H. Jans, Richard Macrory and Angel-Manuel Moreno Molina

The Avosetta Series (10) Proceedings of the Avosetta Group of European Environmental Lawyers

Europa Law Publishing is a publishing company specializing in European Union law, international trade law, public international law, environmental law and comparative national law. For further information please contact Europa Law Publishing via email: [email protected] or visit our website at: www.europalawpublishing.com. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, or stored in any retrieval system of any nature, without the written permission of the publisher. Application for permission for use of copyright material shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16h t/m 16m Auteurswet 1912 juncto het Besluit van 27 november 2002, Stb. 575, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3060, 2130 KB Hoofddorp). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. © Europa Law Publishing, the authors severally, 2013 Typeset in Scala and Scala Sans, Graphic design by G2K Designers, Groningen/Amsterdam NUR 828; ISBN 978-90-8952-135-4 The Avosetta Series publishes texts that present innovative discourse on European Environmental Law.

Foreword by Lord Carnwath JSC I welcome this important new book. The European Commission may have Treaty powers to bring infringement proceedings against Member States but it is clear that they cannot handle every case of suspected infringement. National courts have a vital role to play in securing the effective implementation of EU law. For many years the Court of Justice of the European Union and its predecessor has developed doctrines designed to deal with the situation where national law fails properly to reflect the requirements of EU legislation. The core EU principles of direct effect, consistent interpretation, and state liability may be reasonably clear, but as with many aspects of EU law there remain significant ambiguities. The main responsibility for applying these in practice rests squarely on national courts and national judges, dealing with individual cases as they come before them. Translating theory into practice is not always easy. EU and National Environmental Law focuses on one of the most important areas of EU law, and for the first time provides a systematic and comparative analysis of how national courts handle these principles in the cases before them. Judges and advocates can readily access case-law of their own jurisdiction and that of Court of the Justice of the European Union. But finding out the details of case-law in other countries is a challenge, let alone understanding its significance. The Avosetta Group consists of some of the leading contemporary environmental law scholars working in Europe. They have provided an invaluable service in this authoritative synthesis of the key developments in their own countries. Judges in Europe have recognized the importance of improved cooperation and contact with each other in the field of environmental law. Almost ten years I helped in the establishment of the ‘European Union Forum of Judges for the Environment’ (EUFJE) to assist in this process. EU and National Environmental Law is a significant work which will stimulate further cooperation and crossfertilization of ideas. I congratulate the authors and editors, and commend it to judges, practitioners and academics alike. Robert Carnwath Supreme Court, United Kingdom

v

contents

Foreword by Lord Carnwath JSC Contents Abbreviations chapter 1

v vii xvi

Introduction Jan H. Jans, Richard Macrory & Angel-Manuel Moreno Molina



1

General Remarks Annex Questionnaire, Avosetta Meeting, Madrid, 27-28  January, 2012, ‘National Courts and European Environmental Law’

3

5

chapter 2 National Administrative Procedural Law Under EU

Requirements. With a Focus on Public Participation Gerd Winter



1 EU Principles Affecting Member State Administrative Procedural Law 2 Towards EU Standards on the Right to Be Heard and Public Participation 2.1 The Right to Be Heard 2.2 The Right to Public Participation 3 EU Standards on Court Review of Procedural Infringements 3.1 Procedural Infringements 3.2 Consequences of Procedural Failure 4 Conclusion chapter 3

11 15 15 16 21 21 21 32

Consistent Interpretation of EU Environmental Law Richard Macrory, Verena Madner & Stefan Mayr

1 Context 37 2 Development in the Case Law of the CJEU 38 2.1 Shifting Justifications 38 2.2 Milestones in the Development of Consistent Interpretation 39 3 The Application of the Duty 40 3.1 Who is Obliged by the Duty? 40 3.2 What Does the Duty Apply To? 41 3.3 When Does the Duty Apply? 41 4 The Scope of the Duty 42 4.1 ‘As Far as Possible’ – Opportunity or Constraint? 42 4.2 Criminal Liability 44 4.3 Legal Certainty 45 4.4 Imposing Obligations on Individuals – the Horizontal Impact of the Doctrine 46 5 Conclusions 48 vii

national courts and eu environmental law

chapter 4 Direct Effect and Consistent Interpretation: Strengths

and Weaknesses of the Concepts Ludwig Krämer

1 Introduction 2 The History 2.1 Direct Effect 2.2 Consistent Interpretation 2.3 State Liability 2.4 Environmental Principles and the Charter on Human Rights 3 The Environment, Consistent Interpretation and Direct Effect 3.1 The Direct Effect Concept 3.2 The Concept of Consistent Interpretation 4 Concluding Remarks chapter 5

53 54 54 56 59 60 61 63 69 71

Direct Effect and State Liability Angel-Manuel Moreno Molina

1 Introduction 2 The Doctrine of Direct Effect and Its Application in Environmental Cases 2.1 General Questions 2.2 The Direct Effect of the Different Types of EU Rules in National Courts 2.2.1 The Direct Effect of the EU Treaties 2.2.2 The Direct Effect of International Treaties Concluded by the EU 2.2.3 The Direct Effect of Directives 2.3 The Waddenzee/Kraaijeveld Doctrine 2.4 The ‘Inter-Environnement’ Doctrine 2.5 Other Manifestations of the Direct Effect of Directives in the Environmental Arena 2.5.1 ‘Inverse’ Direct Effect 2.5.2 ‘Horizontal’ Direct Effect 2.6 Direct Effect, Administrative Agencies and the Costanzo Doctrine 3 State Liability 3.1 State Liability in the Context of Environmental Protection 3.2 State Liability in the Environmental Practice of National Courts 4 Conclusions

viii

75 75 75 78 79 81 83 88 91 93 93 94 97 99 99 101 103

contents

chapter 6

Constitutional Review of European Environmental Law Luc Lavrysen

1 Introduction 2 Constitutional Review of European Environmental Law by the Court of Justice 2.1 A Constitution That Does Not Bear Such Name 2.2 Fundamental Values and Rights 2.3 The CJEU’s Monopoly to Declare Legal Acts of the EU Invalid 2.4 Constitutional Environmental Law Issues Before the Court 2.4.1 Choice of Legal Basis 2.4.2 Respect for Fundamental Principles of EU Law 2.4.3 Respect of Environmental Principles 3 Constitutional Review by National Courts 3.1 National Constitutions and EU Law from an ECJ Point of View 3.2 National Constitutions and EU Law from a National Point of View 3.3 National Case Law 4 The EU and the Internal Allocation of Powers Within Member States 4.1 The EU Approach 4.2 The National Approach

109 109 109 110 112 113 114 116 120 125 125 126 130 135 135 136

chapter 7 Judicial Dialogue, Judicial Competition and Global

Environmental Law. A Case Study on The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Jan H. Jans

1 Introduction 2 The Aarhus Convention and the EU 3 Introducing the ‘Players’ 3.1 Aarhus Compliance Committee Cum Annexis 3.2 The Court of Justice of the European Union and the European Court on Human Rights 3.3 National (Constitutional) Courts 4 The Question of ‘Who Decides Who Has Access to Justice’ in Environmental Matters is a Difficult One 4.1 The Slovak Bears Case 4.2 The Case of Law of the Dutch Council of State 5 Limiting Access to Justice for NGOs ix

145 146 149 149 150 151 152 152 154 155

national courts and eu environmental law



5.1 The Djurgården Case 5.2 The Trianel Case 5.3 The Slovak Bears Case 5.4 The Stichting Natuur en Milieu and Pesticide Action Network Europe Case 6 Final Conclusions

157 159 159 160 165

chapter 8 Effective Justice? Synthesis Report of the Study on the

Implementation of Articles 9(3) and 9(4) of the Aarhus Convention in Seventeen of the Member States of the European Union Jan Darpö

1 Introduction 1.1 Background 1.2 The Questionnaire and the National Reports 1.3 The Synthesis Report 2 Outcomes from the National Reports 2.1 General Background on the Implementation of Article 9(3) of the Aarhus Convention 2.2 Standing for Individuals, Groups and ENGOs 2.3 Access to What? 2.4 Costs in the Environmental Procedure 2.5 Effectiveness in the Environmental Procedure 3 Proposals and Further Challenges 3.1 The Legislative Framework 3.1.1 The Four Options 3.1.2 A Need for a Directive on Access to Justice 3.1.3 The Prior Proposal for an Access to Justice Directive (2003/0246/COM) 3.2 General Issues on Judicial Review 3.2.1 Introduction 3.2.2 The Scope of Application 3.2.3 The Relationship Between Article 9(2) and Article 9(3) 3.2.4 Civil Law Action in Court 3.3 Standing for the Members of the Public 3.3.1 Definition of ‘the Members of the Public’ 3.3.2 Standing for Individuals 3.3.3 Standing for ENGOs and Groups 3.3.4 An Anti-Discrimination Clause 3.3.5 Participation as a Prerequisite for Standing 3.4 The Intensity or Scope of the Review 3.4.1 Introduction 3.4.2 An Express Provision on the Scope of the Review 3.5 Administrative Omissions x

169 169 170 172 174 174 176 179 180 183 185 186 186 186 187 188 188 189 190 191 192 192 192 193 194 195 196 196 197 198

contents

3.5.1 Introduction 3.5.2 A Prescribed Procedure for the Handling of Administrative Omissions 3.6 Costs in the Environmental Procedure 3.6.1 Introduction 3.6.2 Express Provision on ‘Not Prohibitively Expensive’ 3.6.3 The Application of the Loser Pays Principle 3.6.4 Experts’ Costs 3.6.5 Alternative Dispute Resolution 3.7 Effectiveness in the Procedure 3.7.1 Introduction 3.7.2 Criteria for Injunctive Relief 3.7.3 Bonds or Cross-Undertakings in Damages 3.7.4 Express Provision on Timeliness 3.7.5 Malicious or Capricious Actions 3.8 Some Closing Remarks 4 Summarizing the Recommendations chapter 9

198 198 199 199 199 199 201 201 201 201 202 202 203 203 203 204

Austria Verena Madner



1 2 3 4 5 6 7

chapter 10

Preliminary Remarks Direct Effect and State Liability Consistent Interpretation State Liability Procedural Barriers Constitutional Issues References to the CJEU

215 215 217 217 217 219 221

Belgium Luc Lavrysen

1 Context 225 2 Application of International and European Law by the Courts 226 2.1 Introduction 226 3 Direct Effect of EU Law 227 4 Consistent/sympathetic Interpretation 231 5 Supremacy of EU Law 232 6 State Liability 235 7 National Courts Considering EU Law on Their Own Motion 235 8 National Review of ‘Constitutionality’ of EU Law 236 9 Submissions to CJEU for Preliminary Rulings 237

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chapter 11

Croatia Lana Ofak



1 Incorporation of EU Law Within the National Legal System 2 Consistent Interpretation 3 Direct Effect and State Liability 4 Procedural Barriers 5 Constitutional Issues

chapter 12

247 248 249 250 252

Czech Republic Vojtech Vomacka & Ilona Jancarova

1 Incorporation of EU Law 2 Consistent Interpretation 3 Environmental Principles 4 Compliance with Provisions of EU Law 5 Direct Effect 6 Procedural Barriers 7 Conclusion chapter 13

257 257 258 259 260 263 265

Denmark Peter Pagh



1 The Danish Legal System – Constitutional Aspects 2 Dualistic Approach Towards International Law 3 EU Law at Danish Courts 4 EU Doctrines of Efficiency Before Danish Courts 5 Consistent Interpretation in Danish Environmental Case Law 6 Direct Effect and State Liability in Danish Environmental Case Law 7 Legal Remedies and Procedural Barriers 8 Latest Development – No Questioning the Discretion of Local Authorities

chapter 14

269 270 271 272 273 273 276 277

Germany Bernhard Wegener & Gerd Winter



1 Direct Effect Doctrine 281 1.1 EIA Directive 282 1.2 Birds and Habitats Directives 284 2 Consistent/Sympathetic Interpretation 286 3 State Liability 286 4 National Courts Considering EU Law on Their Own Motion 287 xii

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5 National Procedural Rules 6 National Courts and the Legality of EU Legislation

chapter 15

287 289

Hungary Gyula Bándi

1 2 3 4 5 6 7 8 9 chapter 16

Context Constitutional Background Supremacy of EU Law Direct Effect Consistent Interpretation State Liability Issues Problems with National Procedural Rules Interpretation in General by National Courts National Checking of ‘Constitutionality’ and EU Law

295 297 302 302 304 304 305 306 307

Italy Massimiliano Montini

1 Incorporation of EU Law 2 Consistent Interpretation 3 Direct Effect and State Liability 4 Procedural Barriers 5 Constitutional Issues 6 References to the CJEU 7 Conclusion chapter 17

311 312 314 317 318 318 318

The Netherlands Jan H. Jans

1 Context 2 The Relationship Between Direct Effect and Consistent Interpretation 3 Consistent Interpretation 4 Direct Effect 5 Procedural Aspects chapter 18

323 324 325 331 342

Portugal Alexandra Aragão



1 2 3 4 4

Consistent Interpretation Direct Effect State Liability Procedural Barriers Constitutional Issues

349 349 351 351 354 xiii

national courts and eu environmental law

chapter 19

Slovenia Rajko Knez & Verena Rošic Feguš

1 Introduction 2 Consistent Interpretation 3 The Direct Effect Doctrine 4 Procedural Barriers 5 Constitutional Issues 6 Conclusion chapter 20

357 357 358 360 361 361

Spain Agustín García-Ureta & Angel-Manuel Moreno Molina

1 2 3 4 3.1 4.2 5 6 chapter 21

Introduction EU Law and Spanish Law Consistent Interpretation Direct Effect Doctrine and State Liability Direct Effect State Liability Procedural Matters and Barriers References to the ECJ

365 365 367 368 368 371 371 374

United Kingdom Richard Macrory

1 Context 2 Environmental Law and the EU Doctrines 3 Direct Effect 3.1 Substantive Areas 3.2 General Conditions for Applicability of Direct Effect 4 Consistent/Sympathetic Interpretation 5 Francovich State Liability 6 National Courts Considering EU Law of Their Own Motion 7 Procedural Rules 7.1 Limitation Periods 7.2 Judicial Discretion as to Remedies 8 Referrals to the Court of Justice of the European Union

388 392 394 395 396 396 397 398

Index

400

xiv

379 382 384 385

Abbreviations

national courts and eu environmental law

A(C)CC Aarhus (Convention) Compliance Committee BAT Best Available Technology BGBl Bundesgesetzblatt (Germany) BVerfG Bundesverfassungsgericht (Germany) BVerwG Bundesverwaltungsgericht (Germany) BUND Bund Umwelt und Naturschutz CBD Convention on Biological Diversity CEE Central and Eastern Europe CFI Court of First Instance of the European Union (now General Court) CJEU Court of Justice of the European Union COP Conference of the Parties COP/MOP Conference of the Parties acting as Meeting of the Parties COREPER Committee of Permanent Representatives DEFRA Department of Environment, Food and Rural Affairs (United Kingdom) DG Directorate-General EA European association EC European Community ECE Economic Commission for Europe (United Nations) ECHA European Chemicals Agency ECHR European Convention on Human Rights ECtHR European Court on Human Rights ECJ European Court of Justice EDP Electricidade de Portugal (Portuguese electrical company) EEB European Environmental Bureau EEC European Economic Community EFSA European Food Safety Agency EIA Environmental Impact Assessment ELF Environmental Law Foundation (United Kingdom) ENGO Environmental Non-Governmental Organisation ENVSEC Environment and Security Initiative EPER European Pollutant Emission Register ERDF European Regional Development Fund ETS European Treaty Series EP European Parliament EU European Union EU ETS EU Emission Trading Scheme FAO Food and Agriculture Organisation of the United Nations GMO genetically modified organism ICJ International Court of Justice IE Industrial Emissions IGC Intergovernmental Conference IGO Intergovernmental Organisation ILM International Legal Materials IPPC Integrated Pollution Prevention and Control xvi

abbreviations

JS LJ LZV MEA MOP NIMBY NGO OECD OJ OSCE PCIJ PCO PPP REACH REC RSPB SAC SAC SEA SPA T.A.R. TEU TFEU UNECE UNEP UNTS VAT

Juridisk Specialudvalg (Special Legal Committee) Lord Justice Lesoochranárske zoskupenie VLK (WOLF Forest Protection Movement) multilateral environmental agreement Meeting of the Parties Not In My Back Yard Non-Governmental Organisation Organisation for Economic Cooperation and Development Official Journal of the European Union Organisation for Security and Cooperation in Europe Permanent Court of International Justice Protective Costs Order Polluter Pays Principle Registration, Evaluation, Authorisation and Registration of Chemicals (Regulation (EC) No 1907/2006) Regional Environmental Center for Central and Eastern Europe Royal Society for the Protection of Birds (United Kingdom) Supreme Administrative Court (Czech Republic) Special Area of Conservation Strategic Environmental Assessment Special Protected Areas Tribunale Amministrativo Regionale (Regional Administrative Court, Italy) Treaty on European Union Treaty on the Functioning of the European Union United Nations Economic Commission for Europe United Nations Environment Programme United Nations Treaty Series Value Added Tax

VfGH Verfassungsgerichtshof (Austria) VwGH Verwaltungsgerichtshof (Austria) WFD Water Framework Directive (European Union) WHO World Health Organisation WTO World Trade Organisation WWF World Wide Fund for Nature

xvii

Contributors

national courts and eu environmental law

Alexandra Aragão is professor of Environmental Law at the University of Coimbra Gyula Bándi is a Jean Monnet professor of EU Environmental Law at the Law School of Pázmány Péter Catholic University, Budapest Jan Darpö is professor of Environmental Law at the Faculty of Law, Uppsala Universitet, Sweden Agustín García-Ureta is professor of Administrative Law at the University of the Basque Country Ilona Jancarova is associate professor at the Faculty of Law, Masaryk University in Brno, Czech Republic and member of the Legislative, Expository and Appellate Committees of the Czech ministery of environment Jan H. Jans is professor of Administrative Law at the University of Groningen Ludwig Krämer runs an environmental law consultancy Derecho y Medio Ambiente in Madrid Rajko Knez is professor of European and Environmental Law at the University of Maribor, Slovenia Luc Lavrysen is judge in the Belgian Constitutional Court and professor of Environmental Law at Ghent University Verena Madner is professor of Public Law and Public Management at WU, Vienna University of Economics and Business Richard Macrory is professor of Environmental Law at University College London Stefan Mayr is research associate at WU, Vienna University of Economics and Business Massimiliano Montini is professor of European Union Law at the University of Siena Angel-Manuel Moreno Molina is professor of Administrative Law at the Universidad Carlos III de Madrid Lana Ofak is assistant professor of Administrative Law at the Faculty of Law of the University of Zagreb Peter Pagh is professor of Environmental Law at the University of Copenhagen Verena Rošic Feguš is a PhD candidate in the field of EU Law and legal adviser at the District Court of Maribor Vojtech Vomacka works at the Supreme Administrative Court of the Czech Republic and is a PhD. candidate at the Faculty of Law, Masaryk University Bernhard Wegener is professor of Public Law at the Friedrich-Alexander-Universität Erlangen-Nürnberg Gerd Winter is professor of Public Law at the University of Bremen.

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chapter 1

Introduction Jan H. Jans, Richard Macrory & Angel-Manuel Moreno Molina

chapter 1



introduction

1 General Remarks

The Avosetta Group is a small informal group of lawyers whose main purpose is to further the development of environmental law in the European Union and Member States. Avosetta is the Latin name of a rare bird which caused the European Court of Justice to establish far reaching principles of European Nature Protection Law in the Leybucht case.1 The group held its inaugural meeting at Bremen University in January 2001. Those participating in Avosetta are invited out of recognition of their outstanding distinction in European environmental law, and take part in a personal and independent capacity. Nevertheless, Avosetta discussions aim to reflect a comprehensive cross-section of legal cultures within Europe, and will generally include up to two participants from each Member and accession State. The group meets about once a year in order to discuss a topic of significance for EU environmental law. The meeting will normally result in policy recommendations which shall be submitted to the EU institutions and also published for wider use in the Member States. At its meeting of 27-28 January 2012 in Madrid the group discussed the topic ‘National Courts and EU Environmental Law’. The main focus of the meeting was to explore the extent to which in the field of EU environmental law national courts apply in practice the doctrines developed by the European Court of Justice on ‘direct effect’, ‘consistent interpretation’ and ‘state liability’ and that are designed to improve the implementation of EU law. Of course, the important role of the national courts is now explicitly acknowledged in the Treaty on European Union, Article 19(1), 2nd sentence TEU reads: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ On the basis of a questionnaire various national reports have been drawn up.2 They form the basis of this book. In addition to the papers presented at the Madrid meeting, prof. Jan Darpö was invited to publish his most significant report Effective Justice? Synthesis report of the study on the Implementation of Articles 9(3) and 9(4) of the Aarhus Convention in Seventeen of the Member States of the European Union as a part of this book. The editors wish to express their gratitude both to prof. Darpö and the European Commission for their consent. Most studies and analysis of EU law remain at the EU level, but less wellknown is the impact of fundamental European doctrines within domestic jurisdictions. This raises the question of the tension between the unity or consistency in the formulation of these doctrines by one single supranational court and the existence at national level of different legal traditions, diverse legal vocabularies, as well as different court systems, remedies and legal proceedings. From the cognitive perspective of legal realism, this is a fundamental layer in a full understanding of the EU legal phenomenon: what national courts do not apply in reality, does not exist in practice. Therefore, it is extremely important 1 Case C-57/89 Commission v Germany [1991] ECR I-883. 2 The questionnaire is reproduced as an Annex to this chapter. The national reports are published on the Avosetta website at: http://www.avosetta.org/

3

national courts and eu environmental law

to see how these principles have been incorporated in the day-to-day practice of domestic courts. In considering how these doctrines are handled at national level, there is another dimension that may be significant. In the complex and ever-growing province of EU law, one may assume that the doctrines of ‘direct effect’, ‘consistent interpretation’ and ‘state liability’ are not monolithic and absolute, but may adopt special nuances in each sector of EU law according to its own internal architecture (public law-private law), the actors involved (individuals and firms; the State and the citizens), the nature or type of the EU rule usually enacted in this field (directives, regulations), and so on. In the light of this, the doctrines on direct effect, consistent interpretation and state liability might face special challenges in the field of environmental protection, topics that are addressed in this book. Direct effect, consistent interpretation and state liability are instruments developed by the CJEU3 for national courts to remedy conflicts between national and EU law (and may also be used in some jurisdictions to resolve national law and international law). This book looks at the ‘remedial capacity’ of these doctrines from the perspective of the national court applying them. In short: what are their strengths, weaknesses, unexplored opportunities at grassroot level, and what can we learn from comparative experience in practice within Member States. Perhaps not surprisingly, the study reveals considerable differences in the way these doctrines are handled at national level. And it is clear that these differences go beyond the challenges facing newly joined Member States where the judiciary might be expected to still be learning its way with EU law. Even within long standing EU Members there is by no means a consistency in approach. The judiciary handling environmental cases have recently established an informal cooperative network to learn from each other. We may be some years away from a time when national courts are regularly referred to not only to decisions of the Court of Justice of the European Union, but also to cases from other EU national courts to assist them in their decision-making. But if this study, which we believe to be the first of its kind in this field, helps to stimulate that process, the handling of environmental law within the EU can only be improved.

3

In this book the term CJEU is used to include previous decisions of the ECJ where the context is clear.

4

chapter 1

introduction

Annex Questionnaire, Avosetta Meeting, Madrid, 27-28 January, 2012, ‘National Courts and European Environmental Law’ Context The main focus of the meeting is to explore the extent to which in the field of EU environmental law national courts apply in practice the various principles developed by the European Court of Justice designed to improve the implementation of EU law. National courts will include any level of independent court or tribunal, but if you feel that another form of independent quasi-judicial body such as an Ombudsman plays a significant role in your country this area please feel to include them. If cases of this sort are lacking in your country you may also discuss prominent cases of licensing proceedings. We will leave it to your discretion how to answer the questions which may be in part depend on the data on court decisions available in your country. You should focus on higher and last instance courts, as lower courts judgments are difficult to find in many countries. In large countries, regional or Land court rulings should also be considered. You may, through the use of electronic search engines, be able as well to provide more numerically based information (e.g. how many times is the direct effect doctrine invoked in cases over the past five years?). If you have time, you might feel that interviews or even a questionnaire with specialist practitioners can provide useful data about the attitude of the judiciary and the value of these doctrines in practice. If you are able to detect any significant contrasts in the way that courts handle these issues in other areas of law (e.g. employment) that might be very useful. The Report We feel that the reports may well form the basis of a book. As concerns point 1 (‘direct effect doctrine’) please feel free to write more in the form of a reflective chapter than simply a formal answer to every subquestions, and obviously elaborate on any cases and the judicial reasoning where this seems appropriate. The important thing is to cover the main themes. In any case, reply with an ‘Yes’ or ‘No’ answer to the different sub-questions. To provide a boundary we suggest that you confine the report to court decisions of the last Five – Ten Years. Key Questions (if any of the cases involved a reference to the ECJ/CJEU please indicate) 1. Direct Effect Doctrine Are there cases where direct effect doctrine has been raised in front of national courts in relation to EU environmental legislation? Are there cases where national courts have held provisions of EU environmental directives to be insufficiently precise and unconditional to have direct effect? 5

national courts and eu environmental law

Are there cases where national courts have held provisions in environmental treaties concluded by the Union to have direct effect? See for an example the Pêcheurs de l’étang de Berre case. Are there cases where national courts have applied the so-called Waddenzee/ Kraaijeveld doctrine in environmental cases? According to Waddenzee/Kraaijeveld the national court is required to examine whether the national legislature/ administrative authority has remained within the limits of discretion allowed by the directive. Are there cases where national courts have applied the so-called Inter-Environnement doctrine in environmental cases? In that case the Court of Justice ruled that during the transposition period of the directive Member States must refrain from taking any measures liable seriously to compromise the result prescribed. Are there cases where the direct effect of Treaty environmental principles have been raised before the national courts? Are there cases involving EU environmental law where the concept of the emanation of the state has been of significance. Especially in the context of increasing privatization in some countries of, e.g., water and waste services. Directives do not produce horizontal or third-party effect in the sense that, in the absence of national implementing measures, they directly result in obligations for private individuals. Are there environmental cases where national courts have applied this doctrine? Apart from lacking horizontal effect, a directive also lacks ‘inverse direct effect’. In other words, a public authority cannot invoke a directive against an individual and thereby require him to act in conformity with the directive, where the obligations contained in the directive have not yet been implemented in the national legal order. Are there environmental cases where national courts have applied this doctrine? Are there cases where the potential direct effect of environmental directives has had ‘indirect horizontal’ side-effects – e.g. where a third party such as a licence holder clearly potentially affected by the decision (see Case 201/02 Wells [2004] ECR I-723). In Fratelli Costanzo the Court decided that all national administrative authorities, including regional and local authorities, are under an obligation to apply directly effective provisions of Union law. Are there environmental cases where national courts have applied this doctrine? 2. Consistent/Sympathetic Interpretation Are there cases where the national courts have used the doctrine of consistent interpretation of EU environmental law (see Marleasing [1990] ECR I-4135 and Pfeiffer [2004] ECR I-8835)? The doctrine of consistent interpretation applies only ‘so far as possible’ and the need for legal certainty in the field of criminal law generally displaces the doctrine (see Arcaro [1996] ECR I-4705). National law is also not to be interpreted contra legem. 6

chapter 1

introduction

Are there examples in the national courts where these principles have prevented the application of the doctrine in respect of environmental directives? 3. Supremacy of EU Law Are there cases where a national court has held that provisions of national environmental laws or regulations have no legal effect because of overriding EU law? 4. State Liability Are there any examples of claims for state liability due a national failure to implement an environmental directive (Francovich [1991] ECR I-5357; Brasserie du Pecheur [1996] ECR I-1029). 5. National Courts Considering EU Law on Their Own Motion Are there examples in environmental cases where national courts have felt obliged to raise EU issues on their own motion, even though the parties have not raised them (see Kraaijeveld [1996] ECR I-5403). 6. National Courts and Parallel Infringement Proceedings by the European Commission Are there examples in environmental cases where the existence of a parallel infringement proceeding by the European Commission has had a significant impact on a case involving defective implementation of EU law (e.g. staying the proceedings until the outcome of the Commission proceedings). 7. National Procedural Rules Traditionally, EU principles have left a large degree of national autonomy when it comes to procedural rules but this is not always the case. Have you any examples of environmental cases where national procedural rules (e.g. limitation periods, standing) have been held contrary to EU principles (including those contained in EU Directives implementing Aarhus). 8. National Substantive Principles EU substantive principles of environmental protection have been framed on national models. This may have created tensions with other national traditions. This is, for instance, imaginable with regard to principles like protection of property and free enterprise, precaution, proportionality, integration, subjective rights to environmental protection. Are there cases where a national court has discussed such tensions? 9. National Checking of ‘Constitutionality’ of EU Law a) National courts may sometimes feel that an EU legal act is in breach of EU primary law. Have there been cases of this kind in your country? If so, how did they proceed in such cases? Did they perform their own preliminary check in order to decide whether to refer the question to the ECJ? 7

national courts and eu environmental law

b) National courts may sometimes consider that an EU legal act is in breach of the national constitution. Are there cases of this kind in your country? If so, how did the court solve the question of supremacy of EU law? 10. Submissions to the ECJ for Preliminary Rulings What is the practice of national courts concerning submissions of questions to the ECJ for preliminary rulings? How do they argue when asked by parties to submit questions? If easily identifiable: how often have submissions been made in environmental matters? What significant cases have been submitted? What happened in reality after the ECJ ruling? Was it really useful or timely? 11. General Assessment of the Reception of EU Environmental Law in Your Domestic Jurisdictions 12. National Reports: Recent and Noticeable Development in Your Country This heading has proved to be useful in previous meetings, but from a realistic point of view this should be considered only as optional, in the light of the efforts that should be already made to reply to the previous items.

8

chapter 2

National Administrative Procedural Law under EU Requirements With a Focus on Public Participation Gerd Winter

chapter 2



national administrative procedure law under eu requirements

1 EU principles affecting Member State administrative procedural law

This contribution takes the perspective of a Member State (MS) authority, be it a legislative body, a judge or an administrator who, when introducing or applying administrative procedure rules, must respect certain requirements of EU law. Its focus will be on rules on public participation and court review of administrative decisions if such rules were infringed. Administrative procedure was not allocated to the EU as a competence and thus remains in principle a matter of domestic law. However, the MS are obliged under the general rule to ‘take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’.1 This rule requires not only simply applying any substantive obligation of EU law but also providing procedural tools, including appropriate administrative procedures to implement the substantive obligations. These tools range from long-standing classical requirements, such as the right to be heard, the prohibition of bias, the duty to give reasons, the withdrawal of unlawful permits, the protection of legitimate expectation, etc., to more modern ones, including the right of access to information and public participation. Procedural rules are often breached, so that the question arises whether affected persons have standing before a court concerning procedural infringements. If standing is accepted, it must be clarified if any procedural failure requires the quashing of the decision, or if there are reasons for keeping it in force. Another question of court procedure concerns interim measures, and whether an excluded person can apply for immediate admission while the procedure is pending. The general principle that MS are obliged to take appropriate implementation measures does not give much guidance to answer these questions. Rather, a layer of middle range principles has developed which flesh out the general principle without questioning the basic MS procedural autonomy. These more precise principles and rules can be found in EU legislation or in judge made law. They can also be derived from international law which is binding on the EU. Such international law influences national law via EU law in various ways: by transposition into EU legal acts which must be directly applied or transposed by MS authorities, and without a transposition into EU law by direct application (if the preconditions of precision and unconditionality are fulfilled) or consistent interpretation by MS authorities.2 1

Article 4(3) TEU. See also Article 291(1) TFEU which mandates MS to ‘adopt all measures of national law necessary to implement legally binding Union acts.’

2

See for the two latter ways Case C-240/09 Lesoochranárske, paras. 44 and 51. While the case concerns Art. 9(3) of the Aarhus Convention, i.e. the right to challenge acts or omission, the principles developed by the court are also applicable to provisions concerning administrative procedures before a decision

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EU legislation often attaches specific requirements of administrative procedure to its substantive commands. For instance, in environmental legal acts, a standard requirement consists in subjecting certain activities to an authorisation or registration regime which often implies that certain kinds of information must be submitted by the applicant, the authority must elaborate an assessment report (in particular, under EIA legislation), the public must be given rights of participation, procedures must be coordinated by responsible agencies, agencies must supervise sectors, offences must be prosecuted, and so on. Such requirements have, as does all EU law, supremacy over MS rules.3 They must be directly applied by MS authorities if contained in regulations. If contained in directives or decisions addressed to MS, the national administrative authority can wait for the transposition into domestic law, unless the preconditions of direct effect are present. 4 If national procedural law exists which conflicts with the EU requirements, the national law must be interpreted consistently.5 If, because of clear wording, consistent interpretation is not viable, the supremacy of EU law demands that the national rule be set aside. In the lack of precise legislation, more general principles apply. In particular, according to Article 41 of the EU Charter of Fundamental Rights everyone has the right to be heard before a decision, with adverse effect is taken, to have access to his/her file and to ask for the reasons for an administrative decision. Although these principles are primarily addressed to the EU institutions, they must also be respected by MS authorities when implementing EU law.6 More principles have been developed as judge-made law by the Court of Justice of the EU. One core principle, often called the Rewe-principle, is that of effectiveness and equivalence: When implementing EU law, national procedural law must be effective and at least equivalent to the law implementing national law. The principle was first stated by the ECJ as follows: ‘Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law is taken. See further the chapters by Moreno (Direct Effect) and Macrory, Madener & Mayr (Consistent Interpretation) in this book. 3

ECJ Case 106/77 (Simmenthal), ECR 1978, 630. See the formulation of the supremacy principle in para. 17: ‘Furthermore, in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States – also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.’

4 5

See further the chapter by Krämer in this volume.

See further the chapter by Macrory Macrory, Madener & Mayr in this volume.

6

Art. 51(1) 1st sentence ChFR.

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intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.’7

Rewe-effectiveness not only relates to remedies of national courts but also includes administrative tools. This, in particular, was developed in relation to the repayment of aid provided by the MS in violation of EU law requirements, 8 but is also applicable to participation procedures. In addition, the subjective right to an effective remedy before an independent and impartial tribunal (hereafter called the right to legal protection) was introduced after a history of jurisprudence of the European Court of Human Rights, comparison of MS constitutional traditions and finally the codification in Article 47 EU Charter of Fundamental Rights and Art. 19(1) 2nd sentence TEU. According to Art. 51 of the Charter this right must also be respected by MS when they implement EU law. The relationship between the Rewe and legal protection principles has yet to be systematically elaborated upon in the case law of the Court of Justice of the EU. Prechal/Widdershoven suggest that the Rewe-principle should be regarded as the ‘outer limit’ framework and the legal protection principle as a specification.9 I would rather suggest that both operate on the same level of generality but overlap to a certain extent. Concerning litigation about objective duties not involving individuals (such as if one governmental body files a court action against another, or in the case of association action), the right to legal protection is not applicable. There is, however, an overlap of the principles of effectiveness and legal protection in relation to litigation based on subjective rights. A difference again consists in that ‘legal protection’ does not express itself on equivalence.

7

Case 33/76 Rewe Zentralfinanz [1976] ECR 1989, para. 5.

8

Case C-94/87 Commission v Germany – Alcan I [1989] ECR 175. The court does not elaborate on possible differences between courts and administration stating in para. 17: ‘It must be added that, in so far as the procedure laid down by national law is applicable to the recovery of an illegal aid, the relevant provisions of national law must be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration in the application of a provision which, like that relied upon by the German Government, requires the various interests involved to be weighed up before a defective administrative measure is withdrawn.’

9

S. Prechal, R. Widdershoven, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’, REALaw 4/2 2011 31-50.

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Table 1: Rewe-effectiveness and right to judicial review

Rewe-equivalence

Subjective rights

Objective duties

X

X X

Rewe-effectiveness Right to judicial review

}X

–

In the area of overlapping scope, the two principles nevertheless have different meanings. While the legal protection principle stresses that subjective rights must be taken seriously, Rewe-effectiveness can be interpreted to mean that the protection of subjective rights also serve the ‘objective’ implementation of EU law.10 This is important for the scope of court review. Rewe-effectiveness can be understood as to require the court, when checking the legality of an administrative act, not only look at those provisions which protect the individual interest of the plaintiff but also those which protect the general public interest. A further difference between the two principles is of course that the legal protection principle only applies to court procedures while the Rewe-principle also extends to administrative proceedings. In conclusion, the EU principles for national administrative procedure comprise the following: • directly applicable procedural standards laid out by EU legal acts; • directly applicable procedural standards laid out by international law binding the EU; • consistent interpretation with EU legal acts on procedures; • consistent interpretation with international law on procedures binding the EU; • effectiveness and equivalence of implementation of EU law; • right to be heard, right to access to files, obligation to give reasons; • fundamental right to effective legal protection. Table 2 is an attempt to give an overview of the law levels and contents that are discussed in this chapter.

10

It seems that Prechal/Widdershoven would be prepared to support this when they argue that ‘in a more daring scenario, the principle of Rewe-effectiveness could develop into an additional and more stringent standard’ (op. cit. p. 49).

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Table 2: Law levels and contents concerning administrative procedure Aarhus principles on national administrative procedure (Art. 6)

Aarhus principles on national court review of administrative procedure (Art. 9 (2) and (3))

EU principles on MS administrative procedure -EU legal acts -Aarhus principles -REWE effectiveness -Right to be heard

EU principles on MS court review of administrative procedure -EU legal acts -Aarhus principles -REWE effectiveness -Right to judicial review

MS rules on administrative procedure -content of procedural rules -esp. public participation



MS rules on court review of administrative procedure -standing to allege procedural failure -curing of mistakes -relevance test -curing after court decision

2 Towards EU standards on the right to be heard and public participation The listed principles have further been elaborated in sectoral policy areas, including environmental law. As indicated, the focus will be on requirements concerning the right to be heard and rights of public participation.



2.1 The right to be heard

In the environmental law context, the right to be heard is the classical right of users of environmental resources who are regulated by administrative law. This right is also provided by EU law: as mentioned before, according to Art. 41(2)(a) of the EU Charter of Fundamental Rights, everyone has the right to be heard before a decision with adverse effect is taken. The provision is especially important in relation to supervisory activities of MS authorities which in case of offences may result in rectification orders. Before such an order is taken, the concerned person must be given the opportunity to submit his/her views. One example which has recently been publicly debated concerns the designation of protected areas in the Natura 2000 regime. In cases concerning the designation of SPAs, the Spanish Supreme Court indicated that there is no need

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to guarantee the right to be heard because the directive does not mention it (judgment of 20 May 2008, appeal 2719/2004).11 The classification of specially protected areas (SPAs) according to the Birds Directive12 can however be regarded as an adverse decision for farmers whose land is affected. They must be heard before the decision is taken. The same applies to the establishment of the protection regime for special areas of protection (SACs) according to the Habitats Directive. It is debatable whether or not the submission of a list of designated SACs can already be seen as a decision requiring prior hearing given the fact that the submission elicits a stand-still obligation for activities impairing the future protection objectives.13



2.2 The right to public participation

I will address three aspects of public participation: the content of rights to participate, the scope of application and the possibility of preclusion of objections. a) The content of rights to public participation Rights to public participation generally address third parties. They are expounded in a number of EU legal acts, most notably in the EIA and IPPC Directives.14 A difference is made between the public (at large), which shall be informed about the application, and the public concerned, which shall have access to detailed information on the project and be enabled to comment. This concept is called the cone model because the first step (publication of the application) involves the general public and the second step (details and comment) involves a restricted public. The last step (publication of the decision taken) reopens the cone for the general public. Of course, these provisions must be respected by national authorities in the sectoral areas addressed by the directives. In Križan, the ECJ has somewhat specified the content of these procedural requirements.15 The case concerned the authorisation of a waste landfill. The authorisation presupposed an urban planning approval of the location of the landfill. This approval existed but was not disclosed in the proceeding for reasons of commercial confidentiality. It was controversial whether the IPPC 11

See the chapter by García Uretra and Moreno Molina in this volume.

12 13

Directive 2009/147/EC on the conservation of wild birds (OJ L 2010 L 20, p. 7, Art. 4(1) subpara 3.

It is true that the ECJ denied the standing of farmers before the General Court arguing that the submission and listing of sites do not yet have a direct effect on the farmers (Case C-362/04 P Sahlstedt). This could be interpreted to also exclude the applicability of the right to be heard. But the judgment in the case was not convincing because it disregarded the ECJ’s own stand-still case law (see Case C-117/03 Dragaggi, para. 27).

14

Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ L.

15

ECJ Case C-416/10 Križan v Slovenská inšpekcia životného prostredia.

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Directive (in the applicable version)16 required the disclosure of the location, and whether confidentiality was rightly assumed. Citing Art. 6(6) of the Aarhus Convention which states that ‘all information relevant to the decision-making’ must be made accessible, the ECJ held that information about the location of the landfill is relevant information, and that this cannot be confidential.17 In more general terms, the ECJ took a broad approach on the scope of information that must be disclosed for public participation. Practicing consistent interpretation with the Aarhus Convention, it imported the formula ‘all information relevant to the decision-making’ which was not present in the text of the IPPC Directive. b) The scope of application of participation rights Concerning the scope of activities that shall be subject to public participation, it is debatable whether a more general principle may be derived from the sectoral EU legal acts. Such a principle could require that all high risk activities must be subject to public participation, be it in the cone form or another. Various considerations may support this interpretation. Insofar as participation addresses the public concerned, a basis may be found in the right to be heard as established by Art. 41 of the Charter of Fundamental Rights. It is true that the right to be heard was modelled on the bilateral relationship between an administrative body and an adversely affected individual, but the idea of prior hearing is also applicable if an administrative decision has adverse side effects on third parties. In the EIA Directive, such broad interpretation of the traditional right to be heard is resounded in Consideration no. 19 which reads: ‘Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.’

A basis for participation of the public at large could be found in the principle of effective implementation: public participation enhances the quality of the decision because the administrative body is confronted with additional and controversial information. It also raises the awareness of and support for environmental issues in the population. This line of thought – the mobilisation of the citizen as support for effective policy implementation – has characterised EU policy in general and specifically environmental policy for a long time.18 It has lead, for instance, to the doctrine of supremacy of EU law and the direct effect of directives, but it also includes public participation, as can be seen from Consideration no. 16 of the EIA Directive which reads: 16

Directive 96/61/EC concerning integrated pollution prevention and control, OJ 1996 L 257, p. 26, last amended by Regulation (EC) 166/2006, OJ 2006 L 33, p. 1.

17

Case C-416/10 Križan v Slovenská inšpekcia životného prostredia.

18

J. Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts: europäische Impulse für eine Revision der Lehre vom subjektiv-öffentlichen Recht, Berlin: Duncker & Humblot, 1997.

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Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.

As a third basis, the principle of democratic legitimacy of government may be considered. This aspect is somewhat expressed in the notion of accountability and transparency mentioned in the citation above. The concept of democracy would however not be pertinent if it is understood to imply that the legitimacy of the executive is only to be founded on parliamentary legislation and ministerial accountability. But this restrictive view, hailed as it still is by many constitutional lawyers, and especially in Germany,19 is unable to address the plurality of legitimacy mechanisms which are needed to fill the parliamentary default areas which have particularly emerged in the transnational arena and the field of complex modern technologies.20 Democracy in this new design is not yet well structured and the catchwords the Commission has proposed in its governance concept – transparency, participation, accountability, effectiveness and coherence21 – are easier promulgated than put into practice. But public participation in administrative decision-making would certainly be a core element to any such design of modern, transnational democracy. Looking at international law, Art. 6(2) Aarhus Convention must be consulted, and holds that, in addition to public participation in decisions on the activities listed in the Annex to the convention, each party: ‘Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions.’

Following the ECJ reasoning in Lesoochranárske, 22 this provision must guide the interpretation of national law. It may even be considered to be directly applicable, because its formulation is unconditional and reasonably precise. This means that activities not listed in the Annexes to the EIA and IPPC Directives must be subject to participation of the public (or at least of the public concerned) if they pose significant risks. The level of risks caused by the listed activities could serve as a guide to identify the relevant projects. 19

Cf. W. Kluth, ‘Demokratie’, in Reiner Schulze, Manfred Zuleeg, Stefan Kadelbach (eds.) Europarecht Baden-Baden: Nomos 2nd edition 2010, paras. 34 and 35.

20

See the contributions in O. Dilling, M. Herberg, G. Winter (eds.) Transnational Administrative RuleMaking. Performance, Legal Effects and Legitimacy, Oxford: Hart Publishing 2011.

21

European Commission, European governance – A white paper, COM/2001/0428 final, OJ 2001 C 287, p. 1-29.

22

Case C-240/09 Lesoochranárske zoskupenie, paras. 50-51.

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The implication of such a principle would be that, apart from dangerous point sources, most of which are already captured by the lists to the EIA and IPPC Directives and the annex to the Aarhus Convention, diffuse sources can also be encompassed. Most importantly the manufacture and bringing on the market of dangerous products would be subjected to public participation. For instance, a single authorised pesticide, if widely distributed, can cause much greater damage than an individual dangerous installation. The relevant EU legal acts do provide for a notice and comment procedure addressed to the general public in product related proceedings. For instance, in the procedure of approving an active pesticide substance, the application dossier and the draft assessment report are made accessible for the public and open for comments.23 However, the provisions only concern proceedings on the EU level, which finally result in a Commission decision. No participation procedure has been prescribed in relation to the authorisation of pesticide products by MS authorities.24 The EU sectoral legislator thus leaves procedures to the discretion of the MS. This does not however exclude that the general EU principles on EU law implementation apply. It is true that Art. 41(2) of the Charter of Fundamental Rights would not fit as a basis because the decision to authorise the manufacture and bringing on the market of a pesticide product does not yet determine who will be negatively affected. But the principle of effective implementation does fit as a basis, as well as the emerging principle of transnational democratic legitimation. c) The preclusion of participation rights As a last consideration concerning the design of public participation as a requirement of EU law, one should discuss whether rights of participation can be precluded if their holder fails to make use of them. For instance, German law provides that a comment will be precluded if a comment is filed after the expiry of the deadline for comments.25 The preclusion is called ‘formal’ if it is related to the ongoing administrative proceedings and excludes a comment from further discussion at a subsequent hearing or second instance of administrative review. It is called ‘material’ if it is related to a review procedure before a court. In Germany material preclusion was discussed as a constitutional question. It was alleged that the right to legal protection was breached, since the holder of a substantive right, like a third party claiming adverse effects on their health, was excluded from the court review of the relevant administrative decision. The BVerfG, however, rejected this reasoning. It argued that the preclusion effect drives third parties to submit their information at an early stage into the process, thus allowing the administrative authority to take the decision in view of all concerns. This would even serve the legal protection of third parties.26 23

Regulation (EC) 1107/2009 concerning the placing of plant protection products on the market, OJ 2009 L 309, p. 1, Arts. 10, 12(1) 2nd and 3rd sentence.

24 25

Directive 98/8/EC concerning the placing of biocidal products on the market, OJ 1998 L 123, p. 1.

§ 10(3) 5th sentence Federal Emission Protection Act (Bundesimmissionsschutzgesetz-BImSchG) for dangerous installations; § 73(3a) VwVfG for infrastructure projects. To the same effect: section 6:13 Dutch General Administrative Law Act. Cf. Jans in this volume.

26

BVerfGE 61, 82, 114-117.

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Concerning the compatibility of this analysis with the principle of effectiveness and the right to effective court review the situation is still open. The Court of Justice of the EU has not yet ruled on the matter. It is true that the ECJ in Djurgården Lilla held that the EIA Directive: ‘in no way permits access to review procedures to be limited on the ground that the persons concerned have already been able to express their views in the participatory phase of the decision‑making procedure established by Article 6(4) thereof. Thus, the fact relied on by the Kingdom of Sweden, that the national rules offer extensive opportunities to participate at an early stage in the procedure in drawing up the decision relating to a project is no justification for the fact that judicial remedies against the decision adopted at the end of that procedure are available only under very restrictive conditions.’27

This statement, however, concerns the inverse question whether access to the court can be restricted because an objector already has ample opportunity to bring their views at the administrative stage. Of course, this must be denied, because the administrative body may decide to disregard the objections, and the court’s role is precisely to remedy this. By contrast, preclusion means that a person fails to use her chances at the administrative stage. The German Federal Administrative Court expressed itself on the matter in a case concerning the construction of a highway.28 It stated that some of the plaintiffs were excluded from alleging violation of air pollution and nature protection standards, because they had not raised claims of pollution and damage to protected species during the administrative proceeding. The court cited the ECJ in Preston where the ECJ argued that legal protection is not an absolute right but must be weighed against legal certainty which especially allows the setting of deadlines for filing an application to an administrative body.29 This, the BVerwG said, ‘can without doubt be transferred to the national legal concept of preclusion of objections.’30 My own view is that this interpretation disregards the difference between two party situations involving just the applicant and the administrative body and three party (or multi-parties) situations. Considering three party situations preclusion creates a misbalance between the rights of an operator on the one and concerned third parties on the other. While operators are entitled to feed information into the proceedings without any fixed deadline, third parties would be denied this right.31 In addition, legal certainty is hardly a reason for preclusion. Any applicant for a permit must be aware that she cannot be certain about its status until the end of the last court proceedings. Preclusion appears rather to be a means to reduce the workload of courts. This, however, is no preponderant concern if 27

Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening [2009] ECR I-9967, paras. 48-49.

28

BVerwGE 139, 150.

29 30 31

Case C-78/98 Preston [2000] ECR I-3240, para. 33.

BVerwGE 139, 150, 159.

B. Wegener, ‘Neue Formen der Bürgerbeteiligung? Planung und Zulassung von Projekten in der parlamentarischen Demokratie’, 69. DJT 2012, vol. II, M 57 et seq., at 67.

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it is weighed against the principle of effectiveness.32 In conclusion, there is no problem to set deadlines for the submission of comments, and wise objectors will make use of them in order to influence decision-making at an early stage. But the preclusion of late comments remains incompatible with the principle of effective implementation.



3 EU Standards on Court Review of Procedural Infringements



3.1 Procedural Infringements

What a procedural infringement is, of course, depends on the content of the violated rule. In legal systems with precise codification of procedure this is easier to determine than in less regulated ones. But there are certainly also open questions in codified procedural law. One example is the relationship between public participation and policy decisions. In proceedings on highway construction for instance, the traffic demand justifying the new project is often put into question by objectors. Is there a duty of the hearing officer to allow discussion and even presentation and cross-examination of experts or not? In Britain the question was denied in the Bushel case, because the court considered national traffic forecasts as a matter of policy and not appropriate for cross-examination by objectors at a local inquiry.33 German courts, by contrast, regard traffic demand as a question of determinable fact and legal appreciation.34



3.2 Consequences of Procedural Failure

a) Overview If the procedural rule is clear and found to have been breached, the question arises as to the effect this has on the final decision. Does the mistake render the decision unlawful, and must the decision be annulled if it is appealed? National law and jurisprudence answer these questions differently, depending on how serious they take procedures. EU case law has also emerged on the issue, but rather in relation to EU administrative procedures, than in relation to rules addressing MS procedures. It appears advisable to first explore MS practices and then relate them to available or to be developed EU standards. aa) MS law and case law French administrative law, for instance, classifies the procedural and formal provisions of administrative decision-making into ‘formalités substantielles’ and 32

It may be added that the BVerwG set aside its obligation to submit the problem as a preliminary question to the ECJ.

33

Bushel v Secretary of State for the Environment [1980] 3 WLR 22.

34

BVerwGE 75, 214, 232.

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‘formalités accessoires’. Only the first category can – and must – lead to annulment of the decision. French court jurisprudence has developed certain criteria which shall help to identify the substantial value of a procedural provision, such as whether it provides citizens with a right and whether it is designed to have an effect on the outcome. There is also a general excuse of ‘formalité impossible’ if the circumstances were such to exclude to observe a procedural requirement.35 English law has adopted a more pragmatic approach. An analysis of court practice concerning the right to be heard concludes that there is divergent case law even on core questions, such as what elements of fair procedure are binding in informal and formal administrative proceedings, whether the neglect of an element can be cured through appeal proceedings, and whether a relevance test applies in cases of incurable procedural failure.36 Courts often asked themselves whether procedural compliance would have made any difference to the final decision, but in 2001 in the Berkeley decision of the House of Lords37 (then the UK’s highest court ) argued that where EU law was involved (here the failure to consider whether EIA was needed for an Annex II project) the discretion of the court not to quash the decision was extremely limited if not non-existent because of the court’s overriding duty to ensure that EU was effectively applied. Recently, the Supreme Court (which replaced the House of Lords as the highest court in 2009) has called for a re-evaluation of this approach, arguing that provided an applicant was able in practice to enjoy any rights under European legislation, national courts still had considerable procedural discretion as to whether to quash a decision or not.38 German administrative law has developed a more systematic doctrine, which is, as frequently, highly complicated. After centuries of indolence concerning procedure it has opened itself for taking procedures more seriously since the 1970’s. But since the early 1990’s, with the upcoming preoccupation with what was called the removal of investment barriers, mechanisms have been gradually adopted that help to save unlawful decisions from quashing for procedural reasons. Meanwhile, this has gone so far that there is reason to question its compatibility with EU procedural law, and in particular the principle of effective implementation. This appears to justify a closer look at German law as an exemplary case. German administrative law first of all accepts the notion that a procedural failure makes the decision (procedurally) unlawful so that the decision must be quashed in principle.39 35

J. Waline, Droit administratif, Paris: Dalloz 22nd ed. 2008, p. 605.

36

C. Harlow, R. Rawlings, Law and Administration, Cambridge: Cambridge University Press 2nd ed. 2006, 505.

37

 B erkeley v Secretary of State for the Environment [2001] 2 AC 603.

38

 Walton v The Scottish Ministers ([2012] UKSC 44, 17 October 2012) See further Macrory National Report in this book.

39

Should the mistake be obvious and grave (for instance because the agency was not competent to decide) the decision is per se null and void. A court if, called to decide on the matter, will in this case only

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Not less than four mechanisms have been introduced allowing the prevention of a procedural failure leading to the annulment of the decision. They are: • the substantive rights effect; • the curing of infringement until taking of court decision (Heilung); • the relevance test (Erheblichkeit); • the curing of a mistake upon court order. (1) Substantive rights effect According to German administrative law, the admissibility of a complaint and its consideration by the court presupposes that the administrative act or omission allegedly violated an individual right of the plaintiff. 40 One could suppose that procedural rights are rights in the sense of this requirement. German doctrine, however, construes participation in procedures as a means of protection of substantive rights. The implication is that holders of substantive rights shall be given a possibility of defence of their rights as early as at the stage of administrative decision-making. 41 Those who participate in a proceeding not in defence of their individual interests but in view of the public interest are excluded from legal protection. This narrow conception of admitting allegations of procedural failure mirrors the fact that participation is not regarded as a component of democratic government. In terms of political theory, the citoyen may be welcome to participate in administrative proceedings but is not given legal protection for this; rather, only the bourgeois, whose substantive interest is at stake, has legally protected participation. This restriction entails the risk that individual interests (of the developer and of third persons) become the major concern of the competent authority, and the public interest, which is said to be more than the sum of individual interests, remains of secondary importance. (2) Curing of infringement until taking of court decision A procedural failure which is admissible for court review does not necessarily require the quashing of the decision. It may be cured if certain preconditions are fulfilled. In that regard, § 45 of the German Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG) provides the following: formally declare that the decision is null and void. In the case of normal unlawfulness, the act nevertheless exists and must be quashed by ‘constitutive’ court decision. 40 41

§ 42(2) VwGO.

BVerfGE 53, 30 (Mülheim-Kärlich) is often cited as the core decision establishing this doctrine. However, things are a bit more difficult. This decision was a step forward because the court rejected the earlier doctrine, which held that there is no subjective right to allege procedural failure because procedure is a device exclusively serving the public interest in the quality of administrative decisions. The court’s argument that procedure allows holders of substantive rights to make their rights heard early in the procedure was thus able to discard the older conception. Mülheim-Kärlich however did not at all posit that procedural rights must in any case have a substantive dimension. It is not excluded that the legislator established ‘pure’ procedural rights. If it does so, these rights must as any other public rights be enforceable in the courts.

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‘(1) An infringement of the rules governing procedure or form which does not render the administrative act null and void under section 44 shall be ignored when: 1. the application necessary for the issuing of the administrative act is subsequently made; 2. the necessary statement of grounds is subsequently provided; 3. the necessary hearing of a participant is subsequently held; 4. the decision of a committee whose collaboration is required in the issuing of the administrative act is subsequently taken; 5. the necessary collaboration of another authority is subsequently obtained. (2) Actions referred to in paragraph 1 may be undertaken until the conclusion of the last administrative court proceedings checking the merits of the case. (3) […].’42

This means that a procedural mistake can be rectified by subsequent action. The action can be performed until the decision of the last court instance which is tasked to check the facts of the case. This is normally the second instance administrative court. In certain cases concerning large infrastructure projects, the single responsible court is the Bundesverwaltungsgericht (BVerwG). If, for instance, the adversely affected party was not heard before the administrative decision, the mistake can be corrected until the date of the judgment of the court of last factual instance. Some scholars even suggest that the application for administrative or court review already represents the opportunity to be heard. 43 It is submitted that, in this way, the right to be heard is made toothless. § 45 VwVfG does not expressly extend its scope to public participation proceedings. There is a widespread opinion that such extension is acceptable, at least in relation to the public hearing. 44 (3) Relevance test If the rectification of the procedural failure has not taken place or was not accepted by the court, the relevance test intervenes. This test is by § 46 VwVfG formulated as follows: ‘The quashing of an administrative act, which is not null and void under section 44, cannot be demanded for the sole reason of failure of procedure, form or local competence, where it is evident that the infringement has not influenced the decision on the substance.’45

In other words, a procedural mistake does not trigger the quashing of the decision if it has obviously not influenced the decision. This means that in the 42 43

Author’s translation.

For a case concerning the legally prescribed hearing of a conscientious objector see BVerwGE 44, 17 (21).

44 45

F. Kopp, U. Ramsauer, Verwaltungsverfahrensgesetz, München: Beck Verlag 9th ed. 2005 § 75 n. 24.

Author’s translation.

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normal case procedural failure does extort the quashing of the decision. Only if it is obvious that the mistake did not have a substantial influence, the decision can stand. The administrative authority has the burden of proving the evidence of no influence. In an attempt to make the rather complicated formulation of the provision better understandable, the BVerwG has rephrased the provision into the formula that the decision must be quashed, if there is a concrete possibility that the procedural mistake has influenced it. 46 The relevant passage is the following: ‘Concerning the identification of the here relevant causal connection [i.e. between the mistake and the decision, GW] it would be excessive at the one end to let the ‘abstract possibility’ suffice and at the other end to ask for a positive proof that because of the procedural failure the decision was taken with exactly this and no other content. Rather, the causal connection is to be accepted if under the circumstances of the case there was a concrete possibility that without the procedural mistake another decision would have been taken’. 47

Although this formulation sounds practicable, an analysis of the case law of the BVerwG reveals that in hardly any case has the court found that such a concrete possibility had existed. 48 The administrative decision could, therefore, in almost all cases be upheld as far as administrative procedure was concerned. This practice has been explained by the fact that German administrative courts operate under the so-called investigation principle, i.e. they are obliged to promote the finding of the truth rather than watching and assessing the interactions of parties. 49 This means that they form their own judgment of the facts including those the plaintiff alleged during the administrative proceedings. They will then either quash or uphold the decision on substantive grounds. In this view procedural mistakes are of no avail either because the decision was lawful – then the mistake was without effect – or because it was unlawful – then the mistake is not ‘needed’ for the quashing of the decision. In a critical perspective it appears that this devaluation of procedure disregards the fact that procedures have a genuine function, especially if the law is imprecise, concerns complex facts, or provides discretionary margins. The court will in such cases come to the conclusion that the decision taken was lawful, but it will not be able to exclude that the 46 47

BVerwGE 69, 256; BVerwGE 75, 214, 228.

BVerwGE 69, 256, 270.

48

As an exemplary case see BVerwGE 75, 214, 229. The case concerned the construction permit for the Munich airport. The competent authority was supervised by a Minister who was at the same time head of the supervisory board of the airport company. This was not regarded to bias the decision of the competent authority because the Minister had not exerted any visible influence on the decision. In the view of the author this is very unlikely because the airport was a firm political priority of the Bavarian government of the time.

49

Bülow, op. cit.

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administrative authority, in using its discretion, may have come to another and equally lawful decision. (4) Curing of a mistake upon court order In the rare cases in which the procedural mistake was not cured until the court judgement and the mistake was found to be relevant, there is one more possibility to save the decision from quashing: the court may declare the decision unlawful and unenforceable but allow the administrative authority to rectify the mistake. This means, for instance, if during a public hearing a certain issue was unlawfully excluded from discussion, the authority can reopen the hearing, discuss the relevant issue and approve or modify the decision on that basis.50 In these cases, the courts usually emphasise that the authority must conduct the subsequent procedure with an open mind (‘ergebnisoffen’).51 But that is hardly a realistic advice. An administrative body which has defended its decision through internal and external reviews will not easily take an unbiased position. b) EU law and case law We will now confront the German concept of treating procedural failure with the EU principles stated above. Before doing so, the rules developed by the European courts for EU administrative procedures will be consulted for heuristic purposes. aa) EU standards for EU procedural infringements – a heuristic look There is no direct logical link between direct EU administration and MS administration that implements EU law. Concerning the construction of standing, the ECJ has even construed access to EU courts more narrowly than access to MS courts. This does, however, not mean that the Court of the European Union would repeat this contradiction in relation to the assessment of administrative procedures. After all, standing is something directly affecting the workload of a court. It is, therefore, understandable that a court construes it narrowly, if its own workload is concerned. Things may be different when it comes to assessing the merits of a case, both in terms of substantive and procedural law. The General Court and Court of Justice check administrative decisions on the basis of Art. 263(4) TFEU. The catalogue of possible illegality of decisions – lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers – was drafted after the model of French administrative law. In particular, the test of ‘essential procedural requirement’ resounds the French distinction between ‘formalités substantielles’ and ‘formalités accessoires’. However, the European Courts have refused to elaborate on the distinction between essential and non-essential procedural requirements. 50 51

§ 75(1a) VwVfG. For an example see BVerwGE 100, 358.

BVerwGE 102, 351, 365.

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As for the curing of a mistake this was accepted as a possibility, but the regularisation has to be made by the end of the administrative proceeding. It is not admitted at the stage of the court proceedings. The Court of First Instance stated the reasons for this view as follows:52 ‘Moreover, any infringement of the rights of the defence which occurred during the administrative procedure cannot be regularized during the proceedings before the Court of First Instance, which carries out a review solely in relation to the pleas raised and which cannot therefore be a substitute for a thorough investigation of the case in the course of the administrative procedure. If during the administrative procedure the applicant had been able to rely on documents which might exculpate it, it might have been able to influence the assessment of the college of Commissioners, at least with regard to the conclusiveness of the evidence of its alleged passive and parallel conduct as regards the beginning and therefore the duration of the infringement. The Court cannot therefore rule out the possibility that the Commission would have found the infringement to be shorter and less serious and would, consequently, have fixed the fine at a lower amount.’

The citation shows that the core argument for rejecting a regularisation of infringements pending court proceedings is related to the separation of powers: the court sees itself to be confined to legal review which disallows it to reopen the full scope of arguments considered before the administrative body. Concerning the relevance test, the EU courts apply this test in cases of absence of an alternative decision. If the decision was the only possibility in legal terms, the court is prevented from annulling it. Procedural infringements are considered to be irrelevant in such cases.53 In Distillers the plaintiff alleged as a procedural infringement that the competent advisory board was not adequately heard before the Commission decision. This decision stated that price terms adopted by distillers were in breach of the cartel prohibition according to Art. 85 EEC Treaty. The plaintiff had not notified the terms to the Commission which was required to obtain authorisation for an exception. The court stated:54 ‘In view of what is said above it is unnecessary to consider the procedural irregularities alleged by the applicant. The position would be different only if in the absence of those irregularities the administrative proceedings could have led to a different result. Subject to what the applicant says with regard to the product Pimm’s the action is in effect confined to challenging the legality of the Commission’s refusal, to grant exemption to the price terms under Article 85(3) from the prohibition in Article 85(1). The applicant does not deny that the price terms 52

See cases concerning refused access of the plaintiff to files Case T-36/91 ICI v Commission [1995] ECR II-1847, n. 108 and C-199/99 Corus UK v Commission [2003] ECR I-11177, n. 128. For an analysis of the case law see E. Bülow, Die Relativierung von Verfahrensfehlern im Europäischen Verwaltungsverfahren und nach §§ 45, 46 VwVfG, Baden-Baden: Nomos 2007, 245 et seq.

53

Case 30/78 Distillers v Commission [1980] ECR 2229.

54

Case 30/78 Distillers v Commission [1980] ECR 2229 n. 26.

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infringe Article 85(1). Since however it omitted to notify the said terms to the Commission the applicant has deprived itself by its own act of any possibility of obtaining in the proceedings to which the present application relates a decision granting exemption under Article 85(3). Even in the absence of the procedural irregularities alleged by the applicant the Commission Decision based on the absence of notification could therefore not have been different.’

This decision has been understood to prove that the ECJ also accepts a relevance test in cases where the administrative authority has discretion to decide.55 Bülow argues on the basis of closer analysis of court practice that the European Courts apply such test only in cases of non-essential rules. Without building a systematic doctrinal concept they implicitly reject a relevance test, if the procedural rule is essential.56 In contrast, a different reading suggests that the European Courts do apply a relevance test notwithstanding whether the infringed rule is essential or not. In particular, Aalborg Portland can be understood to mean that any procedural mistake is subject to a relevance test.57 The plaintiffs, a group of cement producers, appealed a Commission Statement of Objections according to Art. 85 EEC Treaty, alleging, among other issues, that the Commission had failed to disclose documents with exculpatory content to them. The court said: ‘On the other hand, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission (see Solvay v Commission, paragraph 68). It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence (see Hercules Chemicals v Commission, paragraph 81, and Limburgse Vinyl Maatschappij and Others v Commission, paragraph 318), in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine (see, to that effect, Solvay v Commission, paragraph 98).’58

If the court is to be understood as applying the relevance test to essential procedural rules as well, the test is in any case not very demanding. It suffices that the applicant establishes that the mistake ‘was able to influence […] the course 55

See for an analysis of the case law Bülow, op. cit. p. 327 et seq.

56 57

Bülow, op. cit. p. 329.

Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland v Commission [2004] ECR I-401.

58

Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland v Commission [2004] ECR I-401, n. 74 and 75.

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of the proceedings and the content of the decision’. The formula appears to be somewhat less burdensome than the ‘concrete possibility’ of the BVerwG. Be this as it may, there is certainly a significant difference in its application. The European courts lay less burden on the applicant than the German courts. Taking my own position on the different readings, I believe that Bülow is right. I cannot imagine the Court of Justice of the EU applying a relevance test, if a core procedural requirement was breached, such as, for example, where, against clear legal provisions, the application for a project was not published, comments were not accepted, or a hearing omitted. According to German law, however, even in such cases the relevance test applies. Concerning the possibility of a court to allow for a regularisation of procedural infringement, even after the court judgment was issued, no decision of the European courts have even considered this. Arguing a maiore ad minus, it can be concluded that if a mistake cannot be made good after initiation of a court proceeding, this is even less possible after its ending. Finally, concerning the question of whether standing to allege procedural mistakes presupposes a substantive right, no such requirement has been stated by the European Courts when checking standing under Art. 263(4) TFEU (or the former Art. 230(4) EC and Art. 173(4) EEC). On the contrary, according to the Plaumann formula, a procedural right (if specifically provided to the applicant) even constitutes standing.59 Since the entering into force of the Lisbon treaties, standing must be interpreted in the light of the right to an effective remedy according to Art. 47 ChFR. This right is provided to all persons whose rights are guaranteed by EU law. There is no doubt that these rights can also be procedural. In conclusion, the case law of the European Courts on effects of procedural failures can be summarized as follows: • the rectification of a procedural infringement is not accepted if made at the stage of court proceedings; • a procedural infringement is not relevant (in the sense of not leading to the annulment of the decision) (a) if the decision was, in legal terms, the only one which could have been taken, or (b) if although the administrative authority had a discretionary margin, the failure was able to influence the decision; however, if the procedural requirement is of essential importance no relevance test is applied; • there is standing to allege procedural infringements if the plaintiff was provided a right to participate, notwithstanding whether he/she is also materially concerned.

59

Case 25/62 Plaumann v Commission [1963] ECR 213; Case C-78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, para. 33; Case C-487/06 P British Aggregates v Commission [2008] ECR I‑10505, para. 26.

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It is submitted that these standards which are aimed at EU administrative procedures can also serve as suggestions for EU requirements addressing MS procedures. bb) EU standards for MS procedural infringements Although jurisprudence of the CJEU is still scarce some significant decisions have nevertheless been rendered. In Inter-Environnement Wallonie/Terre Wallonie, a case concerning the unlawful omission of an environmenal impact assessment for a programme, the Court has reiterated as a principle that ‘Member States are required to nullify the unlawful consequences of a breach of European Union law’, that this obligation is owed by any organ of the MS including the courts, and that, while there is procedural autonomy of the MS, the principle of effectiveness requires the courts ‘to adopt, on the basis of their national law, measures to suspend or annul the “plan” or “programme” adopted in breach of the obligation to carry out an environmental assessment’.60 Procedural law would cause unnecessary waste of time and costs, if the whole procedure must be reiterated although it is certain that without the failure the same decision would have resulted. Procedural fairness does not require completely superfluous administrative action. The same applies to procedural rules established by international law, such as the Aarhus Convention. On the other hand, the fact that EU law and international law have established rather precise procedural requirements, particularly on public participation, cannot be left unattended. While the ‘no alternative’ situation may be conceded, it is submitted that those requirements do not allow disregarding the core components of participation in cases of administrative discretion or complex risk assessment. The core components would seem to include the information of the public at large of the project application, the elaboration of an environmental impact assessment, the information of the public concerned about environmental effects of the project, the acceptance of comments of the public concerned, and the conducting of an oral hearing if so required. If no information was provided on the core elements of the application and environmental effects, or comments alleging important issues not invited or accepted, or a hearing omitted, this must lead to the nullification of the decision without a test of relevance. Infringements of minor importance which would be subject to such test would include cases where the EIA was incomplete, the notice not published at all required places, an individual comment not accepted, or an issue of minor relevance refused to be discussed at a hearing. It is submitted that the formula of ‘concrete possibility that without the infringement another decision would have resulted’ is appropriate but should be practiced fairly and without a bias in favour of preserving the administrative decision. Concerning the rectification of infringements at later stages, the relevant EU legal acts and Art. 6 Aarhus Convention should be understood to allow this until the end of the administrative proceedings, but not anymore at the court stage. 60

Case C-41/11 Inter-Environnement Wallonie/Terre Wallonie [2012] n.y.r., paras. 43-47.

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After all, they prescribe participation as a means to influence the administrative decision, and they even require this at an early stage when the options are still open.61 It is submitted that this also holds true for systems like the German where the proceedings before administrative law courts are more investigative than in other legal systems, because even the German legal concept does not mean that the court proceeding, especially if related to discretionary administrative decisions, can substitute an administrative proceeding. This is all the more so because since the mid 1980’s, the German administrative courts have developed a practice of judicial self-restraint and reduced density of review of administrative fact finding and assessment. This particularly concerned the risk assessment of complex technologies and infrastructure projects which are precisely those undertakings which are subject to public participation.62 Therefore, even in the German system of somewhat higher density of court review, no rectification should be allowed at the court stage and – even more so – at a later stage subsequent to the court judgment. Another question is whether a procedural failure at the first instance administrative proceeding can be rectified at the second instance, which is called to decide on appeal from the first instance. The ECJ ruled on this question in Križan. 63 It held that rectification is in principle compatible with EU law but that the details are to be decided by the MS provided the principle of equivalence and effectiveness is respected. The relevant paragraph reads as follows: ‘Consequently, the principle of effectiveness does not preclude the possibility of rectifying, during the administrative procedure at second instance, an unjustified refusal to make available to the public concerned the urban planning decision at issue in the main proceedings during the administrative procedure at first instance, provided that all options and solutions remain possible and that rectification at that stage of the procedure still allows that public effectively to influence the outcome of the decision-making process, this being a matter for the national court to determine.’64

In more general terms the principle of effectiveness is interpreted to demand two preconditions for rectification at a second instance administrative level: all options and solutions must remain possible, and the public must still be effectively able to influence the decision. This implies that rectification is not possible at the second instance, if the competent authority is confined to a legality check, or if the project has already been constructed.

61

See Art. 6(4) Aarhus Convention; Art. 24 IPPC Directive; Art. 6(4) EIA Directive.

62

The landmark decision signalling this new practice is BVerwGE 72, 300 (Nuclear Power Installation Wyhl).

63

Case C-416/10 Križan v Slovenská inšpekcia životného prostredia.

64

Case C-416/10 Križan v Slovenská inšpekcia životného prostredia, para. 90.

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The rectification of procedural failure should not be confounded with the possibility that a procedurally flawed measure is provisionally maintained in order to avoid a ‘legal vacuum’ which runs counter to the objectives of the underlying legal act, such as if an environmental protection programme was annulled thus reducing the legally prescribed level of protection.65 Concerning locus standi, it was already said that Art. 47 of the Charter of Fundamental Rights must be interpreted to provide legal protection also for procedural rights, even if the right holder is not affected in his/her substantive rights. Although this provision is mainly addressed to the EU courts, it is also applicable to MS courts when the MS implement EU law. The best legal protection of participatory rights would certainly be granted if persons who were excluded from participation could apply for rectification while the administrative procedure is still pending. In the practical case, an interim measure would be necessary for the excluded person in order to come in before the end of the proceeding. However, some MS legal orders exclude applications for court review including interim measures while the administrative proceedings are pending, the reason being that the proceedings shall not be disturbed by court interference.66 If this reasoning is accepted and the excluded person thus stripped of his/her procedural rights pending the administrative proceedings, it is imperative that he/she must, as compensation, be entitled to challenge the final decision as being procedurally unlawful. This conclusion can also be supported by Art. 9(2) Aarhus Convention which demands that court review must be possible based on an infringement of the right to participation.



4 Conclusion

The chapter has elaborated that the autonomy of the MS concerning administrative procedures and judicial review of said procedures is, in various ways, framed by EU law. There is a layer of general principles of EU law which must be respected, including the supremacy of EU law establishing procedural requirements, international law binding the EU such as the Aarhus Convention, the EU constitutional right to be heard, of access to files and of reasoned decisions, the principle of effective and equivalent implementation, and the right to effective judicial protection. These general principles are specified by sectoral legal acts, including acts establishing public participation procedures which were the focus of the present chapter. It was argued that in view of the principle of effectiveness and the Aarhus Convention, the scope of application of public participation should be extended to all activities having sig65

Case C-41/11 Inter-Environnement Wallonie/Terre Wallonie [2012] n.y.r., paras. 55-62.

66

In Germany see § 44a VwGO and the reasons for the draft provision in BT-Drucks 7/910 p. 97; for Spain see judgment of the Supreme Court of 17 November 1998, cited in the chapter by Garcia-Uretra/ Moreno Molina, section 4, in this volume.

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nificant adverse effects on human health or the environment. Moreover, it was suggested in the same line that the preclusion of objections from administrative and judicial review should be abandoned. Concerning procedural infringements, it appears that their rectification should be possible but not anymore at the stage of court review. Even more so, rectification should not be possible after the court judgment has been rendered. While a test of relevance of procedural infringement should, in principle, be accepted, this should be excluded in case of essential components of procedures. The test could be guided by asking whether there was a concrete possibility that, without the infringement, another decision might have resulted. However, this test must be practiced with caution bearing in mind that fair procedure is a value in itself. Concerning locus standi, applying for court review procedural rights should be considered as rights in the sense of the guarantee of effective judicial protection. MS law may exclude legal remedies pending administrative proceedings, but they must fully be granted after the decision has been taken.

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chapter 3

Consistent Interpretation of EU Environmental Law Richard Macrory, Verena Madner & Stefan Mayr

chapter 3



consistent interpretation of eu environmental law

1 Context

The obligation of consistent interpretation1 is one of the key methods of ensuring that EU environmental obligations are enforced within Member States where directives have not been properly transposed into national law.2 The national reports contained in this book indicate that in nearly every jurisdiction the general principle of the doctrine is accepted by the courts and has been applied in practice in individual cases, though in some countries there still remain few examples in the environmental field. The concept of consistent interpretation is not peculiar to EU law as such but is a principle found in many domestic legal orders, requiring, for example, the interpretation of national law in conformity with the national constitution or with international law. But the techniques of interpretation vary from one domestic legal order to another. The CJEU is well aware of these differences, and in tying the limits of the obligation to the national rules of construction the Court tries to fit consistent interpretation into the various legal backgrounds. Consistent interpretation is most importantly applied ‘where a provision of a directive lacks direct effect, be it that the relevant provision is not sufficiently clear, precise and unconditional to produce direct effect or that the dispute is exclusively between individuals’.3 It has been argued that consistent interpretation should be the first approach taken by national courts to resolve conflicts in that it is ‘less invasive, more finely-tuned, and more consistent with the idea of subsidiarity’, 4 and there is evidently support for the idea of a preference of the CJEU, as the court holds that, ‘it must first be borne in mind that the question whether a national provision must be disapplied in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves possible’.5 1

The obligation to interpret national law in conformity with EU law bears many different labels in literature (Prechal, (2005) 181). For example, ‘indirect effect’ is frequently used in leading UK literature (Chalmers, Davies, Monti (2010) 294-300), but this seems to be too uncertain a term and even misleading. See the issues with delineating the concept of ‘Geltung’, ‘Wirkung’ and ‘Anwendbarkeit’ in German and Austrian EU law doctrine, which partly disappears in other languages; then again, some authors in German doctrine differentiate between ‘Vorrang im engeren Sinn’ and ‘Vorrang im weiteren Sinn’ (supremacy in the narrow or wider sense), the latter comprising the concepts of consistent interpretation and state liability: Jarass/Beljin (2004) 1; Beljin (2002) 351. In this chapter we have used the term ‘consistent interpretation’.

2

It is in the context of directives that the doctrine has most impact although the CJEU has held that national courts must also interpret national law to be consistent with the aims of the Treaty: Case C-397/01 Van Munster [2004] ECR-I-8835.

3

Case C-212/04 Adeneler [2006] ECR I-6057, para. 113.

4 5

Jans/De Lange/Prechal (2006) 106.

Case C-97/11 Amia, judgment of 24 May 2012, para. 27-28 where the court held with reference to Case C-282/10 Dominguez [2012] ECR I-0000, para. 23 that ‘Consequently before disapplying national provisions, the national court must establish whether, in taking not only those provisions but also the whole body of domestic law into consideration and applying the interpretative methods recognised by that law,

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Compared to the direct effect doctrine, consistent interpretation prima facie seems to interfere less intensively with the Member States’ sovereignty, as national provisions are being applied instead of being set aside. However, the consequences in the national legal order can be quite far-reaching. National courts sometimes view consistent interpretation simply as an alternative to direct effect where the latter cannot be used. See for example, the decision of the French Cour de Cassation of 2011 in the context of EU waste legislation holding that even where provisions of the directive are not directly applicable consistent interpretation would require national law to be interpreted so as to be compatible with the objectives of the EU law.6 Other examples such as a recent judgment of the Court of Appeal in the United Kingdom on access to justice 7 show courts applying both doctrines as simple alternatives for reaching the same solution. It appears, though, that only the Dutch courts have explicitly held that courts should first attempt to apply the doctrine of consistent interpretation before considering the issue of direct effect.8 Despite the prevalence of the doctrine, a closer look at this interpretative technique raises a variety of complex issues. Some have been resolved, whereas some are yet to be explored in detail. The difficulties arise in part from the way the doctrine has been expressed and developed by the CJEU, but equally from the challenges national judges are facing in its application to individual cases in practice.



2 Development in the Case Law of the CJEU 2.1 Shifting justifications

Even though the principle of consistent interpretation has primarily been developed and applied in connection with the implementation of EU directives, the concept as such is considerably wider. It establishes a general duty to interpret the national law as a whole in conformity with the entire body of EU law.9 Most frequently, however, contentious issues arise in situations it can arrive at an interpretation of that national law which is consistent with the wording and purpose of the Directive at issue’. Cf. also Case C-208/05 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit [2007] ECR I-181. The court reaffirmed the doctrine of consistent interpretation and held only where it was not possible to apply, ‘the national court must apply Community law in its entirety and protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law’ (para. 69). 6 7

Cf. the French national report at www.avosetta.org.

 R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006. See further at 3.2 .

8

Buitengebied Texel AB 2000, 303 (Raad van State). See Chapter 17 of this volume.

9

Cf. Joined Cases C-397/01 to C-403/01 Pfeiffer et al. [2004] ECR I-8878, para. 114, where the Court for the first time stretched the duty to Community law as such explicitly.

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of ‘remedial interpretation’,10 i.e. when a directive has not been transposed or implemented properly, and hence it is hardly surprising that most of the literature deals with this specific application of the doctrine. As Krämer notes in Chapter 4 of this volume, the CJEU has based the obligation of consistent interpretation on various grounds over the years. With regard to directives the Court deduces the obligation from what is now Art. 288 TFEU (definition of directive) and Art. 4(3) TEU (principle of co-operation). However, as pointed out above, the Court has subsequently stretched the concept beyond directives, and in the absence of a Treaty provision explicitly prescribing consistent interpretation, it therefore required a new basis. In Pfeiffer the Court therefore introduced another legal basis for indirect effect,11 when it held that ‘[t]he requirement for national law to be interpreted in conformity with [Union] law is inherent in the system of the Treaty’.12 Only in this way the full effectiveness of EU law can be ensured in national proceedings. In Pupino, which concerned the interpretation in conformity with framework decisions under the (former) third pillar, the Court relied on the general objective of an ever closer union (Art. 1(2) TEU).13 Whereas the pillar structure has been dissolved, what remains of this decision after Lisbon is the reasoning of the Court, which establishes an alternative grounding for the obligation to consistent interpretation in EU law.



2.2 Milestones in the Development of consistent interpretation

In von Colson & Kamann14 the Court established a duty for all the authorities of Member States including, for matters within their jurisdiction, the courts to interpret national law in conformity with EU law. In the beginning, consistent interpretation was regarded as being applicable only in rather limited circumstances, i.e. restricted to more or less ambiguous provisions transposing or implementing a certain directive.15 Subsequently, however, the Court constantly widened the scope of the duty to interpret national law in conformity with EU law. In the landmark decision Marleasing16 the Court decided: ‘It follows that, in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose

10 11

Prechal (2005) 190.

Klamert (2006) 1251.

12 13

Joined Cases C-397/01 to C-403/01 Pfeiffer et al. [2004] ECR I-8878, para. 114 [emphasis added].

Case C-105/03 Pupino [2005] ECR I-5285, para. 36.

14 15

Case 14/83 Von Colson & Kamann [1984] ECR 1891.

Chalmers/Davis/Monti (2010) 295.

16

Case C-106/89 Marleasing [1990] ECR I-4135.

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of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article [288 TFEU].’17

In Marleasing the Court made clear, that provisions of national law – no matter if adopted before or after the directive – fell within the scope of consistent interpretation, and in Pfeiffer the ECJ finally extended the scope of consistent interpretation to national law as a whole.18 Although the Court also emphasises, that national courts are obliged to interpret national law in conformity with EU law ‘as far as possible’, a concept explored further below, the doctrine of consistent interpretation clearly now goes beyond simply applying an EU-friendly interpretation of evidently ambiguous provisions. It requires more than picking an EU law-compliant solution from the various possible interpretations – the national court has to interpret its national law in the light of the wording and purpose of the respective directive.



3 The application of the duty



3.1 Who is obliged by the duty?

Who is obliged to interpret national law in conformity with EU law? Does the duty stretch out to administrative authorities or are just national courts covered by this obligation? The CJEU seems to be quite clear about who is obliged to interpret national law in conformity with EU law: all national authorities are bound by the obligation to ensure the achievement of the aims set out in a particular directive. The duty of consistent interpretation clearly binds – but not exclusively so – the national courts, but administrative authorities are under the same obligation. Indeed, it would appear somewhat arbitrary, if courts and administrative bodies had to apply different interpretive standards – as a consequence administrative bodies would have to knowingly decide (or interpret) not in accordance with EU law, and courts would subsequently have to correct these decisions.19 There seems, however, to be few examples in national environmental case law where this requirement on administrative bodies has been expressed. However, in a 2005 decision concerning the destruction of wolves, the French State Council observed that: ‘It is a duty of the national administrative authorities under the supervision of the judge to exercise the powers conferred on them by law by giving them in all cases 17

Ibid, para. 8 [emphasis added].

18

Joined Cases C-397/01 to C-403/01 Pfeiffer et al. [2004] ECR I-8878 para. 115; cf. already Case C-131/97 Carbonari [1999] ECR I-1119, paras. 49-50.

19

Cf. Gänswein (2009) 38. However, it has to be borne in mind, that only courts have the opportunity to make references for preliminary rulings, and in this context it does not seem so far-fetched, that ‘wrong’ administrative decisions are to some extent regarded acceptable within the EU law logic.

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where it is in the scope of the European Community rule, an interpretation which is consistent with Community law.’20



3.2 What does the duty apply to?

The duty to consistently interpret includes any kind of EU law, even legally non-binding recommendations.21 But which national norms constitute the object of the obligation? It would appear that it should apply to any form of national rules which have a legal impact on the decision in question, whether termed as law or not. This would include, for example, ministerial policy rules which authorities are obliged to follow.22 Equally, it should apply, say, to previous decisions of the courts where these in some way may legally constrain subsequent decision-making. This is especially important for common law countries, such as the United Kingdom and Ireland, where doctrines of court precedent are strict and require lower courts to follow previous decisions of higher courts which cannot be readily distinguished. A recent UK decision concerned access to justice and costs principles which have been largely determined by judge-made principles developed in court decisions. The Court of Appeal was prepared to re-interpret a previous decision of the Court of Appeal (which under UK precedent principles would otherwise have been binding on it) in a way to ensure consistency with the access to justice provisions of the Environmental Assessment Directive as amended in the light of Aarhus: ‘[...] those judge-made rules [...] must be interpreted and applied in such a way as to secure conformity with the Directive.’23



3.3 When does the duty apply?

But when does the duty of the national courts to interpret national law in conformity with EU law begin? With regard to directives, there are three events which could potentially trigger the obligation: the entry into force of the directive (upon its publication in the Official Journal and after a given time limit); the expiration of the period for transposition; or the entry into force of the national provisions implementing the directive. Generally, it can be said that if the obligation of the national court depended on the entry into force of the national implementing measures, the Member States could easily ‘jeopardise the full effectiveness of Community law and its uniform application’.24 Hence, in case of belated implementation, the date on which these national measures actually enter into force has no relevance for the 20

Council of State April 20 2005, Association for the Protection of Wildlife, No 271216. Cf. the French national report at www.avosetta.org.

21

Case 322/88 Grimaldi [1989] ECR 4407; formerly (pre-Lisbon) it also comprised legal instruments of the third pillar, such as council framework decisions: Case C-105/03 Pupino [2005] ECR I-5285.

22 23

See Chapter 21 of this volume.

 R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006. Interestingly, the court also held that the relevant provisions of the directive had direct effect but expressed no preference for which doctrine (direct effect or consistent interpretation) justified the result.

24

Case C-212/04 Adeneler [2006] ECR I-6057, para. 116.

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obligation to consistent interpretation. However, there is one exception to this rule: if a Member State transposes a directive before the given period expires, its authorities are under the obligation to consistent interpretation as of this earlier point in time. Still, Member States are not obliged to adopt implementing measures before the period for transposition of a directive has expired. Consequently, the courts are normally (cf. supra) not under an obligation to interpret domestic law in conformity with the directive in question before that point in time.25 However, as of their entry into force, directives produce legal effects for their addressees (i.e. some or all Member States). Therefore, the national authorities of these Member States, including the courts, ‘must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by [the directive]’.26 This is even more so, if a Member State exceptionally is granted an extended period for transposition.27 Moreover, in Mangold the Court found, that the directive in question merely elaborated on the (pre-existing) fundamental principle of non-discrimination, which forms part of the EU legal order. Therefore, the observance of such this principle must be seen independent from the expiring of the period for transposition.28 In a nutshell, after the deadline to transpose a directive has expired, the national courts are at the latest under a full obligation to interpret national law in conformity with that particular directive; however, even prior to that point in time (subsequent to entry into force of the directive and before its transposition), courts are obliged to not interpret domestic law in a way compromising the realisation of a particular directive’s objectives.



4 The Scope of the Duty



4.1 ‘As far as possible’ – Opportunity or Constraint?

Where are the limits to the obligation with a view to separation of powers as well as the judicial function as such? There are two diametrical yet interrelated, multifaceted elements which basically determine the scope of consistent interpretation. On the one hand, the Court appears to open the scope widely, when it holds: ‘When national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the result sought by the Directive [...].’29 25

Case C-212/04 Adeneler [2006] ECR I-6057, para. 115.

26

Case C-212/04 Adeneler [2006] ECR I-6057, para. 121; cf. Case C-144/04 Mangold [2005] ECR I-9981, para. 67; Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, para. 45.

27

Cf. Case C-144/04 Mangold [2005] ECR I-9981, para. 72.

28

Case C-144/04 Mangold [2005] ECR I-9981, paras. 74-76.

29

E.g. Case C-212/04 Adeneler [2006] ECR I-6057, para. 108.

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Some authors consider the formulation ‘as far as possible’ not so much as an opening but as a more limiting one, emphasising the importance of the interpretability of the national provision in question.30 In effect the phrase is read to imply ‘only as far as possible’. This can be contrasted with a more expansive interpretation, as summarized in the Netherlands national report: ‘Courts are required to be active, innovative, and if necessary break new ground’,31 and the case law of the CJEU supports this approach – insinuating the principle to imply ‘only as far as possible’ falls short of the more dynamic understanding of the CJEU based on the full effectiveness of EU law. Arguably, the effort that the CJEU demands of national courts has changed quite significantly over the time. In its early decisions the Court had held: ‘It is for the national court to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.’32 In more recent decisions, consistent interpretation requires ‘national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law’.33

The emphasis on the increased effort demanded of the national courts indicates that the ECJ has established a rule of interpretative supremacy. This means, that a national rule of construction which effectuates a better attainment of the objectives of a directive, precedes any other such rule leading to a less favourable realisation of the goal. The phrase ‘as far as possible’ was used in the judgment in Marleasing, and the formula has been repeated many times in the subsequent case law of the CJEU. Only on rare occasions has the Court specified its demands in any detail, and given the many opportunities for greater analysis, the Court’s restraint on this issue must be deliberate.34 The Court is clearly showing a degree of sensitivity to different national legal traditions in the judicial interpretation of national legislation.35 The principle of consistent interpretation does not require 30

E.g. Sawyer (2007) 172. Gänswein (2009) 70 et seq talks explicitly of ‘Einschränkung’ hence, limitation of the obligation to consistent interpretation.

31

See Chapter 17 of this volume.

32 33

E.g. Case 14/83 Von Colson & Kamann [1984] ECR 1891, para. 28.

Joined Cases C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I-3071, para. 200. Case C-212/04 Adeneler [2006] ECR I-6057, para. 111. Case C-97/11 Amia, judgment of 24 May 2012, paras. 29-31.

34

Critical Manthey/Unseld (2011) 928 on the Court’s reluctance to prescribe in more detail the limits of consistent interpretation with regard to the contra legem principle.

35

For as good example of the fine balance the CJEU is drawing see Case C-268/06 Impact [2008] ECR I-2483, paras. 93 et seq where the court emphazised the obligations of consistent interpretation yet held that when it came to national construction rules concerning retrospectivity it was up to the national courts to determine whether they applied. None the less the court clearly indicated it expected the referring court to undertake considerable effort to ascertain whether national legislation contains an indication capable of giving retrospective effect to the applicable national law.

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national courts to interpret national law contra legem, but nonetheless it requires a substantial effort from the national courts to do ‘whatever lies within their jurisdiction’ to ensure the full effectiveness of the directive in question. Mainly, this ties the limits of consistent interpretation to the national rules of construction, but these should be applied with a view to the goals of European law: for example, in Mono Car Styling the ECJ held that: ‘If the application of interpretive methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the Directive at issue’.36

It also lies intrinsically in the nature of the preliminary reference proceedings, that the Court does not answer questions of national law. It is equally important to bear in mind that different legal systems tend to draw the line between interpretation and the creation of new legal norms quite differently. German doctrine especially puts a lot of emphasis on the strict division of both instruments.37 It follows that how far ‘as far as possible’ really goes can neither be answered abstractly for all Member States nor for a particular Member State without taking into account the national proceedings leading to the preliminary reference as well as the national follow-up.



4.2 Criminal Liability

According to the CJEU, a national court’s obligation to interpret national law in conformity with e.g. a directive: ‘reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the Directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’s provisions.’38

Quite clearly, general principles of law, like legal certainty and non-retroactivity, by and large prevent national courts from using consistent interpretation as a means of determining or aggravating criminal liability.39 This restriction of the 36

Case C-12/08 Mono Car Styling [2009] ECR I-6653, para. 63. See also the almost identical formulation in Joined Cases C-397/01 to C-403/01 Pfeiffer et al. [2004] ECR I-8878, para. 116.

37

Cf. Roth (2010) 402.

38

Case C-168/95 Arcaro [1996] ECR I-4705, para. 42.

39

Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paras 13-14.

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doctrine appears to be one widely accepted throughout the Union. Italian courts, for example, have consistently avoided interpretations which would create criminal offences not foreseen by the national environmental law. 40



4.3 Legal certainty

The need to avoid the doctrine of consistent interpretation interfering with principles of legal certainty was recognized by the Court of Justice in Kolpinghuis. 41 This provides an important limitation to the effectiveness of the doctrine in dealing with explicit contradictions of national law with European Union law. For example, in one of the first judgments concerning EU environmental law, the Austrian Administrative Court held that national environmental impact assessment legislation which disapplied the EU directive in certain cases may have violated EU law but could not be interpreted to provide for the directive’s application. 42 In 2008 the French Appeal Court of Orleans in a case concerning the intentional destruction of GMO crops refused to accept the defendant’s arguments that the French criminal law be reinterpreted in the light of Directive 2001/18/EC on the Deliberate Release of GMOs. The provisions in questions were not sufficiently precise or unconditional to have direct effect, and the judge noted ‘that the respective domains of the Directive and French criminal law applied in the case’. 43 Another illustration of a conflict between consistent interpretation and the need for national certainty is found in the 2011 decision of the Irish High Court in Environmental Protection Agency v Nephin. 44 It had been argued that in line with the EU polluter pays principle, directors of a company convicted of waste offences should be personally liabile, but the court held that such an interpretation went beyond the clear words of the relevant national legislation, and could not be read into the national law. In the Netherlands, the Council of State has ruled that consistent interpretation is only possible ‘within the framework of the regulation’, possibly a rather narrower formulation than that provided the CJEU. 45 A number of environmental cases in the Netherlands illustrate the limitations of the consistent interpretation doctrine. For example, in a case concerning the location of GMO testings, national legislation requiring the information to be kept secret could not be reinterpreted to mean ‘made available’ in line with relevant EU law. 46 Limited grounds for refusing an IPPC permit under national law could not be 40

Italian Court of Cassation, Sec III (criminal section) 30 September 2008, No 41839. See Chapter 16 of this volume.

41

Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, para. 13.

42 43

Austrian VwGH 23 October 1995, 95/10/0081, see Chapter 9 of this volume.

French Appeal Court of Orleans 26 February 2008, No-role 07/00472.

44 45

[2011] IEHC 67 Irish National Report.

See Chapter 17 of this volume.

46

Council of State 25 November 2009, M en R 2010, nr 43, ibid. See Chapter 17 of this volume.

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reinterpreted to provide authorities with more discretion in line with the IPPC Directive. 47



4.4 Imposing obligations on individuals – the horizontal impact of the doctrine

As is well-known, in Marshall, 48 the ECJ basically ruled out inverse vertical as well as horizontal direct effect. Both concepts refer to situations, where a Member State has failed to fulfil its duty of timely transposition; the former means that the Member State itself cannot rely on the directive vis-à-vis (and to the detriment of) an individual, while the latter prevents an individual from relying on the direct effect of such a provision against another individual. At first glance the rule that directives cannot as such impose obligations upon individuals appears both clear and easily manageable. However, in the light of the subsequent case law, this assumption has not proven tenable. Detrimental effects on private parties regularly occur in triangular relations, where asserting one individual’s rights vis-à-vis the State frequently has negative effects on the third party involved. The Courts decision in Wells is rather instructive: as long as there only occur ‘mere adverse repercussions on the rights of third parties’49 individuals can invoke their rights stemming directly from the directive in question. On the other hand, ‘an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party’.50 In Wells the Court, therefore, tried to systematise its differentiation between negative side effects and obligations imposed on the third party. Obviously, the line still has to be drawn in each individual case and will often depend on the formulation of the specific provision. According to the Court’s holding in Arcaro consistent interpretation ‘reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed’.51

The Court seems to be taking a rather restrictive stance, but the decision must not be overestimated due to its specific context of criminal liability. In other decisions the Court has often taken a less restrictive approach. Recalling that the initial dispute which had lead to the preliminary ruling had arisen between two private parties, the decision in Marleasing reveals an important aspect of consistent interpretation which distinguishes it from the direct effect doctrine. 47

Council of State 13 Novemebr 2002, M en R 2003, nr. 39.

48

Leading case 152/84 Marshall [1984] ECR 737, confirmed in Case C-91/92 Faccini Dori [1994] ECR I-3325.

49 50 51

Case C-201/02 Wells [2004] ECR I-723, para. 57.

Case C-201/02 Wells [2004] ECR I-723, para. 56.

Case C-168/95 Arcaro [1996] ECR I-4705, para. 42.

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Unlike direct effect, consistent interpretation applies in horizontal relations between individuals (and hence inevitably to the detriment of one private party). Indeed the CJEU has regarded consistent interpretation applicable in horizontal constellations from the very beginning. This follows from the judgment in Harz,52 which was delivered on the same day as von Colson & Kamann. What remains unclear is to what extent consistent interpretation may serve as a means to circumvent the restrictions on horizontal direct effect and make them either superfluous or reduce them to absurdity. How far can national law, interpreted in conformity with EU law therefore impose obligations on individuals? The crucial difference between direct effect and consistent interpretation is that in the latter case a potential obligation derives from the interpretation of valid national law,53 albeit an interpretation shaped by European Union obligations. Within the boundaries set by the national law, the imposition of obligations for individuals should, therefore, not be ruled out categorically. Whereas negative side effects of the direct effect doctrine have in certain constellations – as outlined above – been accepted by the CJEU, inverse vertical direct effect appears to be prohibited in the light of the estoppel principle. Similarly, for a long time ‘inverse vertical indirect effect’ seemed to be categorically ruled out by estoppel considerations – at least in situations of incomplete or nonimplementation.54 If the application of national law underlines the application of the consistent interpretation doctrine, then an interpretation to the benefit of the administration and to the detriment of an individual cannot be ruled out on principle. Decisions of the Council of State in the Netherlands support this approach – see for example, the 2004 Decision of the Council of State on the deliberate release of GMOs where the Court was prepared to read into the national legislation grounds for refusing consents that were derived from the relevant EU directive.55 In its 2011 Mücksch decision the CJEU appears now to have expressly acknowledged the possibility of the consistent interpretation doctrine being used to allow Member States to impose obligations on third parties directly.56 The Court had to deal with the question whether the obligation of Member States to ensure that account is being taken of the need, in the long term, to maintain appropriate distances between establishments covered by the Seveso-II Directive 96/82 and buildings of public use, applied to a public authority, which was responsible for issuing building permissions but had no discretionary power. The court pointed out, that: 52

Case 79/83 Harz [1984] ECR 1922, in which the Court had to deal with a situation quite similar to von Colson & Kamann, with the decisive difference, that the discrimination had occurred between a private company as the potential employer and a female job applicant.

53

Prechal (2005) 213.

54 55

Critical: Prechal (2005) 215.

Dutch Council of State 28 June 2004, M en R 2004/10, nr 104. See Chapter 17 of this volume.

56

Case C-53/10 Mücksch, judgment of 15 September 2011, paras. 32 et seq.

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‘although the main proceedings are between a public authority and an individual, it is important to bear in mind that [...] a Member State may, in principle, impose on individuals an interpretation of national law in keeping with the Directive’. 57

It has to be taken into account, however, that the relevant German legislation included (limited) grounds for refusing a building permit and thus national law already imposed obligations on individuals applying for a building permit.



5 Conclusions

As Krämer notes, the consistent interpretation doctrine is logical and in line with the general concept of the supremacy of European Union law. It is a doctrine widely accepted within Member States, and it is arguable that it should be the doctrine of first application in that its application is less disruptive to a national legal system. Yet, the application of the doctrine in practice is less easy to judge. The CJEU has held that the duty must be applied with the formula ‘as far as possible’, and yet has been remarkably restrained in prescribing in any detail what this really means, beyond stating that it should not impose criminal liability on individuals or offend principles of legal certainty. Is it a constraint on the national courts or an opportunity for creative judicial approaches? It is clear that the actual implementation of the doctrine depends much on the discretion of national courts and their own interpretive traditions, and hence the continuing importance of comparative studies of national practice. In the environmental field, we can see extremes in national approaches. On the one hand, a limited application, as in Denmark, where authorities are reluctant to acknowledge any gap between national and EU law, a gap which the application of the doctrine necessarily implies.58 On the other hand, a country such as Croatia where the doctrine is similarly rarely applied not because of a belief that the national law is bound to be consistent with EU law, but because the fact that ‘a long tradition of strict formalism and positivism in Central and Eastern Europe leaves judges unprepared for their role in the European legal order.’59 In this context, over-sensitivity to national interpretative traditions may hinder the effective application of European law. Many other countries operate at various points within that spectrum. There remain uncertainties as to the precise extent to which the consistent interpretation doctrine can be used to impose obligations (other than criminal) on individuals, especially by the State. One argument suggests that since at its fundamentals we are dealing with the interpretation of national law, the 57

Ibid para. 34, referring to Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paras. 12-14, and Case C-321/05 Kofoed [2007] ECR I-5795, para. 45.

58

See Chapter 13 of this volume.

59

See Chapter 11 of this volume. A 2011 communication from the Croatian Constitutional Court acknowledges this interpretative tradition is a real problem.

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sensitivities raised in the direct effect doctrine about allowing the State to impose direct obligations on individuals are not relevant. On the other hand, since the doctrine is only raised because, deliberately or otherwise, the Member State has failed to fully transpose the EU legislation in question, it is questionable as to how far it should be permitted to take advantage – or rather not be restrained – by its own failings to transpose. Two restraints, however, can inhibit the Member State from an undue use of the doctrine, constraints that are not apparent in the direct effect doctrine. Firstly, if there is no relevant national legislation or rule in place at all, then there is nothing for the doctrine to grasp, and it simply cannot be employed. Second, if the national legislation is explicitly contrary to the EU law, then the contra legem principle is likely to constrain a national court from applying the doctrine, and there are some striking examples in the environmental field at national level where national courts have felt that no amount of creative interpretation can remedy the explicit language of national law. Perversely, then, the doctrine has little to contribute in the most blatant examples of non-implementation by a Member State – no national legislation or legislation explicitly contrary to the directive in question. There is no guarantee that in those cases, the doctrine of direct effect will be applicable since the conditions for its application – and especially the requirement of precise and unconditional language – may simply not be present. The same is true for the conditions to be fulfilled for a State to be liable in damages for breaching EU law. It follows that whatever the significance of the doctrine, the supervisory role of the European Commission in ensuring that national legislation fully reflects European Union obligations remains of central importance. It would be rash of citizens, industry, NGOs – and least of all Member States – to assume that the doctrine can always be relied upon to fill the gaps between European commitment and national implementation.

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Bibliography • S. Beljin, ‘Die Zusammenhänge zwischen dem Vorrang, den Instituten der innerstaatlichen Beachtlichkeit und der Durchführung des Gemeinschaftsrechts’ (2002) EuR 351-376. • D. Chalmers/G. Davies/G. Monti, European Union Law (New York 2010) • O. Gänswein, Der Grundsatz unionsrechtskonformer Auslegung nationalen Rechts (Frankfurt am Main 2009). • J.H. Jans, R. De Lange, and S. Prechal, Europeanisation of Public Law (Groningen 2007). • D. Jarass/S. Beljin, ‘Die Bedeutung von Vorrang und Durchführung des EG-Rechts für die nationale Rechtsetzung und Rechtsanwendung’ (2004) Neue Zeitschrift für Verwaltungsrecht 1-11. • M. Klamert, ‘Judicial Implementation of Directives and Anticipatory Indirect Effect: Connecting the Dots’ (2006) Common Market Law Review 1251-1275. • L. Manthey/C. Unseld, ‘Der Mythos vom contra-legem-Verbot: Vom Umgang des EuGH mit einem Verfassungsprinzip’ (2011) Die öffentliche Verwaltung 921-929. • S. Prechal, Directives in EC Law (Oxford, New York 2005). • W.-H. Roth, ‘§ 14 Die richtlinienkonforme Auslegung’ in K. Riesenhuber (Ed.), Europäische Methodenlehre Handbuch für Ausbildung und Praxis (Berlin 2010), 393-424. • K. Sawyer, ‘The Principle of ínterprétation conforme´: How Far Can or Should National Courts Go when Interpreting National Legislation Consistently with European Community Law’ (2007) Statute Law Review 165-181.

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chapter 4

Direct Effect and Consistent Interpretation: Strengths and Weaknesses of the Concepts Ludwig Krämer

chapter 4



direct effect and consistent interpretation: strengths and weaknesses of the concepts

1 Introduction

The doctrines of consistent interpretation, direct effect – and, as a corollary, State liability – were all developed by the Court of Justice of the European Union. It is remarkable – and should not be forgotten – that these doctrines were developed at an early time of the existence of the predecessors of the European Union, the Coal and Steel Union, the European Economic Community and the European Community. When one looks at the political evolution of the EU, the slow reduction of the integrative capacity of the EU institutions and the centrifugal forces which developed in the EU Member States – all interdependent with an enlargement of the EU that was seen as politically necessary, but coming too quick and with too few entrance controls – one might doubt whether the Court of Justice would have the force to develop similar doctrines today. The Court appears more to monitor the status quo than to bring into reality the ‘new stage in the process of creating an ever closing union among the peoples of Europe’ which Article 1 of the Treaty on European Union conjures. This contribution will first describe the history and evolution of the different doctrines in the jurisdiction of the Court of Justice and the General Court. Treaty provisions and secondary EU legislation will only exceptionally be discussed. In view of the immense quantity of legal articles and other publications on the doctrines that have been published, no attempt will be made to resume this literature. The reasons for this are twofold: on the one hand, the doctrines remain shaped, fine-tuned, amended and expanded by the EU Courts; they were not poured into legislative texts. On the other hand, the form in which these doctrines are used by courts in the Member States varies, even widely. Any attempt to make a comparative analysis of these doctrines at national level would require a book publication of its own and would, in view of the necessary legal and linguistic know-how, exceed the capacity of a single author. After some general remarks on the two concepts, an attempt to assess the weaknesses and strengths of the doctrines will be made. This assessment will again be made on basis of the EU Courts’ case law, though concerns that have been voiced by legal authors are taken up. Short concluding remarks will end the contribution. Where possible, examples of case law will be taken from the environment sector. This is justified by the fact that this whole book publication deals with the interrelationship between EU and national environmental law. In addition, there is a second reason for this: the protection of the environment in the EU – and probably beyond the EU – is in the general interest of the EU, and consequently of all of its Member States. The environment is, in our society, a general interest without a group, and this has a considerable impact on the evolution and the application of environmental law: while fisheries policy has the social group of fishermen behind it, agricultural policy the farmers, transport policy those who are interested in transporting goods or persons or of being transported, competition policy the competitors, or social policy the social partners, envi-

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ronmental policy has no such social group behind it.1 These different groups actively influence, discuss and shape EU and national law of their sector, lobby parliaments, administrations and governments, threaten with inflation, unemployment or excessive competition from third countries, when they see their interests threatened and have gained, over the years, a very remarkable influence on the law-making and its monitoring. Environmental law which is not bolstered by such social forces, is all the more dependent on the direct effect and consistent interpretation doctrines. While few dare questioning the need to protect the environment,in public at least, in day-to-day conflicts between the environment and other interests, the environment is almost always the loser. And the courts, as protectors of the general interest, do not frequently side with the environment, due to the training of judges, their middle-class provenance and the affinity of courts with the ruling social groups. All the more does it appear justified to try to demonstrate, if and to what extent the strengths and weaknesses of the doctrines affect the environment in the EU.



2 The history



2.1 Direct effect

The origins of the direct effect doctrine lie in public international law. As early as 1928, the Permanent Court of International Justice issued an opinion, where it first confirmed that international treaties created, in principle, rights and obligations between States and international organisations. However, it continued that ‘the very object of an international agreement according to the intentions of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts’.2 This opinion was later confirmed in a number of judgments of the International Court of Justice. Via constitutional discussions in the 1950s in the Netherlands, concerning the transposition and application of public international law in that country, the concept appears to have been brought to the EU Court of Justice. The first judgment as to direct effect was given in 1963, under the then President of the Court, the Dutch A.M. Donner who had played a prominent role in the Dutch constitutional discussions. The Court held:3 1

It is not possible to consider groups such as Greenpeace, Friends of the Earth, WWF or other nongovernmental environmental organisations as forming such a group. Indeed, these groups do not act principally for their own economic benefit (profit), but for an altruistic objective. They are, however, not coherent and lack financial and human resources to form a ‘group’. At EU level in Brussels, it is estimated that at best 100 persons defend the interests of environmental NGOs, while some 15.000 persons defend economic vested interests.

2 3

Permanent Court of International Justice, Danzig, PCIJ 1928, ser.B No. 15, para. 18.

Case 26/62 Van Gend & Loos v Netherlands [1963] ECR I-3.

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‘the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community’.

The Court then stated that Article 12 EEC Treaty (now Article 18 TFEU): ‘contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects. The implementation of Article 12 does not require any legislative intervention on the part of the states’.

In a decision of 1974, this reasoning was, for the first time, adopted in a case of a directive. In the case in question, 4 the United Kingdom had argued that Article 189 EEC Treaty – now Article 288 TFEU – had provided for the direct application of regulations but not of directives. The Court did not accept that argument: ‘It would be incompatible with the binding effect attributed to a directive by Article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened, if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law.. It is necessary to examine in every case, whether the nature, general scheme and wording of the provision are capable of having direct effect on the relations between Member States and individuals’.

The Court further stated that the present Article 267 TFEU did not limit the control of national courts to some EU legislation, so that a differentiation between correctly transposed and other directives was not justified. These two judgments already contain the essential elements of the direct effect doctrine. Later judgments fine-tuned these basic elements. For example, in Case 8/81 the Court argued that one of the underlying concepts of the doctrine was that a Member State should not be allowed to take advantage of its 4

Case 41/74 Van Duyn [1974] ECR I-1337.

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own failure to correctly, completely or timely transpose a provision of EU law into its national law. In Case 103/88,5 the Court held that where the provisions of a directive were unconditional and sufficiently precise, ‘all organs of the administration, including decentralized authorities such as municipalities, are obliged to apply those provisions’. It explained this understanding by the argument that the provisions of a directive were binding on all organs of a Member State; then it would be contradictory to allow local authorities not to apply them. In Case C-236/92, the Court specified what it understood by ‘sufficiently precise’ and ‘unconditional’.6 In Case C-72/957 the Court held that a national court had, on its own motion, to examine the question whether a provision of EU law had direct effect, provided the court was also under national law entitled or obliged to examine the effects of legal provisions which were not put forward by the parties of the litigation. In the same case, the Court found that a person also could rely on the direct effect of an unconditional and precise provision which gave a discretion to the Member States; in such a case, the review concerned the question whether or not the national authorities had exceeded their discretion. In Case C-168/95,8 the Court clarified that the doctrine of direct effect meant to improve the protection of the individual. It could not be held against an individual, in particular not in order to impose criminal liability of a person; without stating so explicitly, the Court accepted that the principle of nulla poena sine lege prevailed over the direct effect doctrine. In Case C-91/92,9 the Court established, also against the opinion of the Advocate General in that case, that the direct effect was a means which allowed an individual to be invoked against the public authorities. However, it could not be relied upon in the relations between two individuals.



2.2 Consistent interpretation

Consistent interpretation – the Court of Justice also uses the term ‘conforming interpretation’ – is the requirement to interpret national law in a way which is compatible with EU law. This requirement flows from the fact that EU law prevails over national law;10 thus, in the case of a conflict between a provision of national law and a provision of EU law, the latter prevails. 5

Case 103/88 Fratelli Costanzo [1989] ECR I-1839.

6

Case C-236/92 Difesa della Casa [1994] ECR I-484: ‘A provision is unconditional where it is not subject, in its implementation or effects, to the taking of any measure either by the institutions of the Community or by the Member States [...] a provision is sufficiently precise to be relied on by an individual and applied by the Court, where the obligation which it imposes is set out in unequivocal terms’.

7

Case C-72/95 Kraaijeveld [1996] ECR I-5403.

8

Case C-165/95 Arcaro [1996] ECR I-4705.

9

Case C-91/92 Dori [1994] ECR I-3325.

10

This primacy was first laid down in Case 6/64 Costa v ENEL [1994] ECR I-1141.

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The requirement to interpret national law in the light of EU law concerns the interpretation of all primary and secondary EU law, and is independent of the question of the direct effect of a provision.11 The Court based its reasoning on the interpretation of national law on the present Article 4(3) TEU and on the nature of an EU act. Article 4(3) TEU provides, as far as it is of interest here: ‘The Member States shall take any appropriate measures, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s task and refrain from any measure which could jeopardise the attainment of the Union’s objectives’.

A similar provision existed in the Treaties since 1958. As regards Article 288 TFEU, the Court stated that the binding character of EU regulations, directives and decisions required that full effect be given to their provisions and concluded:12 ‘National courts, in applying their national law, are required to interpret it in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article 189 of the Treaty’ [now Article 288 TFEU].

The necessity of letting EU prevail over national law is the leading thread in a long line of decisions by the Court. The terminology varies slightly, without the general orientation changing. The reason, why national law had to be interpreted in consistency with EU law was expressed by the Court, in its landmark decision Case 26/62, in the following terms: ‘the law stemming from the Treaties, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question’.13

In some judgments, the Court explained the need for an interpretation of national law that is consistent with this EU law with the necessity to make EU law effective: ‘the Member States are responsible for ensuring that those rights [rights which individuals derive from EU law] are effectively protected in each case [...]. Therefore, it is for the national court, in order to ensure effective judicial protection in 11

Case 14/83 von Colson and Hamann [1984] ECR I-1891.

12 13

Case 125/88 Nijman [1989] ECR I-3533, referring to Case 14/83.

Case 6/64 Costa v ENEL [1994] ECR I-1141.

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the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives’ [of EU law].14



2.3 State liability

Also the doctrine of State liability was developed by the Court in an attempt to make EU law effective. The case in which the Court developed its doctrine concerned an EU directive which asked Member States to establish a guarantee fund which should intervene in favour of employees in cases of insolvency of the employer.15 Italy had not transposed the directive in time which had as a consequence that some employees did not receive their wages, as their employer had been declared insolvent. The Court held that the directive granted rights to individuals and was also sufficiently precise and unconditional; however, the direct effect doctrine could not be applied, as the directive did not determine who should finance the guarantee fund. As this way was thus barred, the Court held that in such a case, a Member State was liable for the damage suffered by an individual by the non-transposition of the directive in question. In later judgments,16 the Court extended this liability to any breach of primary or secondary EU law by a Member States, provided that three conditions are fulfilled: • the EU provision in question grants rights to individuals; • there is a breach of the Member State’s obligations which is ‘sufficiently serious’; this is the case, where a Member State ‘manifestly and gravely disregarded the limits of the exercise of its powers’; • a causal link exists between the breach of the State’s obligation and the loss and damage suffered by the injured person. The Court derived this liability provision directly from Treaty law, arguing that the ‘full effectiveness’ of the present Article 258 TFEU ‘required that there should be a right to reparation’. Furthermore, it held that the Member States’ liability should be based on the same criteria as were laid down, in the present Article 340 TFEU, for liability of an EU institution. The Court underlined, though, that it was up to the national courts to decide on the State liability, according to the substantive and procedural provisions of national law. The number of cases of State liability, decided over the years, was relatively small,17 as in particular the barrier of the clause that, normally, only a manifest and grave error by a Member State or an EU institution gave ground for repara14

See, for example, Case C-240/09 Lesoochranárske, judgment of 8 March 2011. In Case C-72/95 (n.7, above), the Court talked of ‘useful effect’, in Case C-435/97 WWF and Bozen [1999] ECR I-5613 of ‘effectiveness’.

15

Joined Cases C-6/90 and 9/90 Francovich and others [1991] ECR I-5357.

16 17

Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029.

See Case C-392/93 British Telecommunication [1996] ECR I-1631; Case C-5/94 Hedley Lomas [1996] ECR I-2553; Joined Cases C-178/94, C-179/94 and C-188-190/94 Dillenkofer [1996] ECR I-4845; Joined

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tion, was almost insurmountable. No environmental case is known, where the problem of State liability was discussed. The evolution of the doctrine of State liability in the environmental sector suffers in particular from the fact that individuals and NGOs do not try to develop the doctrine by bringing cases to the courts. For example, individuals have a right of access to environmental information.18 Where the EU or Member States authorities refuse access to such information in disregard of this right, a person or an NGO may claim damage on the basis of State liability, provided the existence of damage can be proven. However, as the EU courts also recognized that non-economic damage must be compensated,19 an NGO could argue that its regular activity was impaired by the refusal to grant access to information which it needed to pursue its objectives. Also other cases could and should be pressed: excessive noise levels may cause damage to human health; EU air quality and drinking water standards aim at the protection of health:20 where a person has to buy bottled water because of excessive nitrate levels in the public drinking water supply, the price of the bottled water may be claimed as damage; where a person can prove allergies or respiratory diseases as a consequence of contaminated air, compensation may be successfully claimed. A search in the relevant EU and Member States environmental legislation would probably reveal a great deal of more examples where the provisions of State liability are applicable to environmental matters.



2.4 Environmental principles and the Charter on Human Rights The environmental principles of Article 191 TFEU – precaution and prevention, rectification of impairment at source, polluter pays principle – were drafted when the doctrine of ‘direct effect’ of EU law had already been developed by the Court of Justice. Hence, the effort to draft the principles in a way that this doctrine was not applicable to them.21 These principles do not give Cases C-283/94, C-291/94 and C-292/94 Denkavit [1996] ECR I-5063; Case C-224/01 Köbler [2003] ECR I-10239; Case C-173/03 Traghetti [2006] ECR I-5177. 18

Regulation 13677/2006, OJ 2006 L 264 p. 13; Directive 2004/3, OJ 2004 L 49 p. 26.

19

See for example General Court, Cases T-235/95 BAI [1999] ECR II-123; T-237/00 Reynolds [2002] ECR II-163. In Case T-11/00 Hautem [2000] ECR II-4019, the Court saw as damage the loss of confidence in the EU judicial system; in that case, the European Investment Bank had refused to follow a judgment by the General Court which it had appealed.

20 21

Court of Justice, Case C-237/07 Janecek [2008] ECR I-6221.

Even the integration-principle which is now found in Article 11 TFEU and which had some direct effect connotations – the version which had been inserted into the Treaty in 1987, read: ‘Environmental protection requirements shall be a component of the Community’s other policies’ – was amended, in 1993, to read: ‘Environmental protection requirements must be integrated into the definition and implementation of other Community policies’. This wording made the application of the direct effect doctrine impossible.

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rights or a favourable legal position to individuals but address public authorities and orient their action. This is different from the case where secondary EU legislation declares an environmental principle to be of compulsory application – an example is the polluter pays principle in the waste sector.22 In legal literature it is sometimes argued that in particular the precautionary principle obliges public authorities to act where there is a risk of serious and/ or irreversible damage.23 This opinion is not shared here, as neither the risk of climate change, the loss of biodiversity, or the release of genetically modified organisms into the environment give persons a right to claim that a specific course of action is taken, the omission of which would make the authorities liable. Moreover, any such duty of authorities would not exist vis-à-vis individual persons. The rights, freedoms and principles set out in the Charter of Fundamental Rights of the EU24 are ‘recognized’ by the EU and have, according to Article 6 TEU, the same legal value as the Treaties on European Union. It follows that where the Charter grants rights to individuals – in the large sense, including favourable legal positions etc – its provisions also have direct effect and citizens may rely on them before courts. An example is the right of access to information, laid down in Article 11 of the Charter. This is not the case, though, with the Charter provision on environmental protection.25 This provision was deliberately drafted in these general terms, under inspiration from the Staatszielbestimmung in the German constitution; it is not sufficiently precise to allow individual persons to rely only on it before courts.



3 The environment, consistent interpretation and direct effect It is clear from the various quotations above that the consistent interpretation requirement was introduced by the Court in order to ensure the supremacy of EU law over national law. One might argue whether the EEC Treaty, as it was set up in 1958, really meant to be a new legal order, different from public international law treaties. However, this question is rather academic: for more than fifty years, all Member States and the EU institutions have accepted the reasoning of the Court. Furthermore, the different reforms of the 22

Cases C-1/03 Van de Walle [2004] ECR I-7613; C-188/07 Commune de Mesquer [2008] ECR I-4501; Futura [2009] ECR I-6995.

23

See A. Trouwborst, Precautionary rights and duties of States, Utrecht 2006: N. de Sadeleer (ed.), Implementing the precautionary principle. Approaches from the Nordic countries, EU and United States. LondonSterling 2007.

24 25

Charter of Fundamental Rights of the EU, OJ 2010 C 83, p. 389.

Article 37 of the Charter: ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.

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EEC Treaty, institutional, legislative and administrative practice, have followed the Court. It would not make sense to question today the arguments which plead in favour of the supremacy of EU law over national law – and this author certainly is convinced that the arguments are correct. The draft ‘Treaty establishing a Constitution for Europe’ of 2003 had provided, in Article 10, that ‘[T]he Constitution and law adopted by the Union’s institutions in exercising competences conferred on it, shall have primacy over the law of the Member States’. This provision was not incorporated into the Lisbon Treaties, because there were fears that the citizens in Europe would not understand or not accept this provision. However, in substance, this principle has applied for fifty years and is, as far as can be seen, uncontested. Once the supremacy of EU law is accepted, the request for consistent interpretation of national law is only logical. Indeed, in all EU Member States the national legislation is interpreted, shaped and fine-tuned by the courts, and it is monitored, developed and applied by the administration and the individuals in day-to-day life. Interpreting the national law by aligning this interpretation to existing EU law – in the form which this EU law obtained through the case law of the Court – prevents the legislation of the Member States from going into different directions and from leading to different practical applications. As the Court already stated in 1964, this would make Article 288 TFEU meaningless, according to which a regulation shall be ‘directly applicable in all Member States’; the same reasoning would apply to the binding effect of a directive. Also the principle of direct effect deals with the supremacy of EU law. If one leaves aside the cases of direct applicability of EU Treaty provisions, it is linked to a specific situation, the adoption of a directive that grants a favourable position to individual persons. In such a situation, a Member State shall not be allowed to invoke its own legislation or practice which is not compatible with the content of the directive and take advantage of its own omissions. National law shall, thus, first be interpreted – by courts, but also by all other public authorities – in a sense that it is compatible with the requirement of EU law. Where this is not possible, the national provision shall – where the conditions of ‘direct effect’ are fulfilled – be set aside and the EU provision be applied. In this sense, the direct effect doctrine is an accentuation of the consistent interpretation doctrine: in both cases, the provisions of EU law shall prevail. The difference between the two concepts is that in the case of direct effect, the accent is put on the fact that the individual has been given a favourable position by EU law on which he might rely before the national court; but, of course, the individual may also rely before a national court on the need to make a consistent interpretation of national law – should he have, in such cases, access to the national court. Neither the concept of consistent interpretation nor that of direct effect are meant to ensure uniform interpretation of EU law. Already Article 267 TFEU which allows any national court to interpret EU law, but only obliges the supreme courts to ask for a preliminary decision, demonstrates that the EU Treaties

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accept a certain diversity of interpretation of EU law. This is normal and such diverse interpretation exists in practically all Member States. The purpose of the two concepts is rather, as the Court underlined in numerous decisions, to give full effect to the provisions of EU law and, as a side effect, to ensure that EU provisions are interpreted in the same way within the EU Member States. The third concept, State liability, does not enter into this line of thinking. Its objective is to give individuals a right of compensation in cases where EU law was not respected and damage has been caused as a consequence. This does not really contain many elements of supremacy of EU law. In view of this, the issue of State liability will not be discussed further.



3.1 The direct effect concept

When one looks at the direct effect concept, the first observation which is to be made is that its justification changes:26 the Court declared that a Member State should not be allowed to take advantage of its own omission to transpose or transpose correctly a directive. However, such an argument cannot be used – and was never used – in the case where the direct effect of provisions of the EU Treaties are in question. In these last cases, the only justification for the direct effect doctrine is the supremacy of EU law. In other cases, the Court put the emphasis on the necessity to ensure the full effect of EU law which would be diminished, if the provisions of EU law were not applied. With regard to the terms, in which the doctrine was expressed, it springs to mind that the terms used by the Court of Justice are vague. This refers in particular to the term ‘right’, and furthermore to the terms of ‘unconditional’ and ‘sufficiently precise’. The ‘right’ to be relied on The Court of Justice, from the very beginning, clarified that ‘right’ does not refer to a subjective right of an individual person. Such ‘rights’ could also be generated by ‘obligations which the treaty imposes on Member States and institutions of the Community’.27 Therefore, one should be aware that the term ‘right’ as employed by the Court is a term of EU law; it has a different content than the same word might have in the law of the Member States. Probably, it would be better to use a term such as ‘favourable position’, though one has to be aware that such a favourable position may also be the consequence of a limitation of the administration’s powers. It is not quite clear why, as a condition of direct effect, a provision of EU law needs to give a right or a favourable position to persons. It should be enough, it is submitted, that the provision is unconditional and sufficiently precise in order to be applied at national level. It is already pushing the limits of interpretation to argue that a prohibition gives a right to persons, as the Court of Justice did in 26 27

Cf. Chapter 3 of this volume.

See the quotation of Case 26/62, supra.

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Case 26/62. Provided a person has access to a national court, he or she should be entitled to rely on EU law. And it would then be up to the national court to decide whether or not that provision of EU law was unconditional and sufficiently precise. This appears to have been the Court of Justice’s understanding in Case C-72/95. Indeed, Mr. Kraaijeveld neither had any right nor any legal interest in the making of an environmental impact assessment for dyke relief work, and yet the Court accepted that the national court, without Mr. Kraaijeveld having requested this, examined on its own motion, whether the provision of EU law had direct effect. It did not discuss the further issue that under Article 6 of Directive 2011/192 (former Directive 85/337), the ‘public concerned’ has a ‘right’ to express an opinion on the project. The direct effect doctrine was, thus, under any theoretical construction, correctly applied by the Court. In Case C-194/94,28 the Court held that even procedural provisions could be relied upon in courts, arguing that ‘the effectiveness of Community control will be that much greater’, if the directive in question29 had direct effect. This, indeed, stretches the notion of ‘right’ very far, and in this author’s opinion even too far. In environmental law, one might argue whether a provision that protects species, for example birds, gives, under the direct effect concept, a right to persons to rely on such a provision in courts. Birds are part of the environment, and the protection of the environment is a general EU interest but not necessarily an individual interest that needs protection. In my understanding, as soon as the provision in question is unconditional and sufficiently clear, it may be invoked in court, and the differentiation between general interest, individual right, favourable legal position etc. is now more of an academic question. It is clear that the term ‘right’ would need further clarification; it shares this fate of vagueness with any concept which is developed by courts and not put in precise, legally well defined terms. In environmental law, much more worrying than this lack of clarification is the fact that already in drafting EU environmental legislation, the national and the EU administrations make every effort to avoid formulations which could, at a later stage, be interpreted as having a direct effect. Directives 2000/60 on water protection,30 2008/50 on air pollution31 and 2008/98 on waste management 32 are examples of that. They are all three marked by the effort to give a maximum of flexibility to the administration, while not providing for rights for persons. 28

Case C-194/94 Signalsson [1996] ECR I-2201.

29

Directive 83/189, which has, in the meantime, been replaced by Directive 98/34, laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1998 L 204 p. 37.

30

Directive 2000/60 establishing a framework for Community action in the field of water policy, OJ 2000 L 327 p. 1.

31

Directive 2008/50 on ambient air quality and cleaner air for Europe, OJ 2008 L 152 p. 1.

32

Directive 2008/98 on waste, OJ 2008 L 312 p. 3.

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Unconditional As regards the term ‘unconditional’, a recent judgment by the Court of Justice might illustrate the problem. In Case C-240/09,33 the Court was asked to decide whether Article 9(3) of the Aarhus Convention34 was unconditional. This provision reads: ‘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 Court held that Article 9(3) did ‘not contain any clear and precise obligation, capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law, are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure’.

This reasoning demonstrates all the difficulties of the direct effect concept. First, the Court indicates that there lack ‘clear and precise’ obligations. However, according to the definition which the Court itself had given to the term ‘unconditional’,35 it should have mentioned ‘unconditional’ instead. Second, Article 9(3) does not oblige the Member States to adopt national implementing measures: the words ‘if any’ clearly show that Member States could also remain passive and not adopt implementation measures. In such a case, according to the Convention, every member of the public would have access to the administrative or judicial procedures. Of course, this kind of actio popularis is neither loved by courts nor by administrations. Yet, it exists at present in environmental law, for example in Portugal and Poland, and partly – for certain sectors – also in other Member States such as Spain and the United Kingdom. One cannot object against the interpretation that access to courts requires, in all cases, and in all Member States, explicit legislation and that such access should not be introduced by the Court of Justice and the application of the direct effect concept. However, it should be remembered that in recent judgments the Court of Justice introduced the possibility of tackling before the national courts a legislative act without the existence of corresponding national legislation.36 It is well known that in a considerable number of Member States, there is at present 33

Case C-240/09 (supra).

34

Convention on access to information, participation in public decision-making and access to justice in environmental matters, signed in Aarhus in June 1998. The Union adhered to this Convention by Decision 2005/370, OJ 2005 L 124 p. 1.

35

See the definition in fn. 6, above.

36

See Case C-182/10 Marie-Noelle Solvay, judgment of 10 February 2010.

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no possibility for members of the public to tackle legislative acts; this did not prevent the Court to go beyond this obstacle in national law. In Case 26/62, the Court stated: ‘The implementation of Article 12 does not require any legislative intervention on the part of the states’. It is submitted that Article 9(3) of the Aarhus Convention also does not require an intervention on the part of the States. In Case 8/81, the Court declared that a Member State could not invoke the fact that implementation measures were necessary, when the State itself could or should have adopted such measures.37 Nothing would have thus prevented the Court of Justice to declare Article 9(3) of direct effect, leaving it to Member States to adopt, if they so wished, legislation in order to avoid an actio popularis. It seems that the Court omitted to discuss the words ‘if any’ and their voluntary character which had the meaning that Contracting Parties/Member States were not obliged to take action at national level. Politically, of course, the discussion that Article 9(3) of the Convention has no direct effect is closed: a decision by a Grand Chambre of thirteen judges of the Court of Justice, as in Case C-240/09 can de facto no longer be put in question. However, it is one of the problems of the direct- effect concept that whether it rains or is sunny depends on a decision by the Court of Justice. Indeed, the Aarhus Convention intended to significantly improve access to justice in environmental matters. Its wording did not mean that the courts of the Contracting Parties should just make, as the Court of Justice stated, ‘everything possible’ to facilitate such access. Had the Convention wished to limit Article 9(3) in this way, it could have drafted it in another way, for example, according to the lines of Article 8.38 The judgment of the Court of Justice will, unfortunately, have as a consequence that aside from those ‘best efforts’ made by national courts nothing is likely to change with regard to the present state of affairs. Sufficiently precise Already the term ‘sufficiently precise’ indicates that this concept is not entirely clear. In environmental law, one cannot ask the eagle, the tiger or the spider, what ‘sufficiently precise’ means. The Court of Justice, though it is generally rather in favour of an interpretation which brings more provisions under this term, only deals with an extremely small number of cases which are submitted to it. The vast number of cases has to be dealt with not even by national courts but by the Member States’ administration at national, regional or even local level,39 and these administrations have little guidance. When the 37

Case 8/81 Becker [1982] ECR 53: ‘[the conditions] refer to measures introduced to prevent any possible evasion, avoidance or abuse. A Member State which has failed to take the precautions necessary for that purpose may not plead its own omission in order to refuse to grant to a taxpayer an exemption which he may legitimately claim under the Directive [...]’.

38

Aarhus Convention, Article 8: ‘Each Party shall strive to promote effective public participation at an appropriate stage [...] during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment [...]’.

39

See Case 103/88 Fratelli Costanzo (supra n. 5).

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direct effect is meant to clarify for citizens what their rights are, then a stronger and simpler formula for this effect should have been chosen. It does not help a lot if you need to be a lawyer who is specialised in EU law, in order to know whether EU law is meant to help you or not. For example, under several environmental directives, Member States must produce implementation reports: they report to the Commission how they transposed the directive, how they applied it, what difficulties they encountered and so on. Under Directive 2003/4 on access to environmental information, such reports constitute ‘environmental information’. Besides, under the Aarhus Convention, Regulation 1367/2006 and Directive 2003/4, there is a fundamental right of persons to access to environmental information. Does this mean that the reporting requirement under the different directives is sufficiently precise? It is certain, though, that at least the national and EU administrations do not provide at present access to such reports. It will probably need first a judgment of the Court of Justice. The same applies to clean-up or to management plans which public authorities in the Member States have to draw up and implement under different EU directives on waste, water, air, noise. 40 Undoubtedly, the existence of such a plan contributes to better environmental preservation as public authorities and private persons are requested and/or invited, when implementing such plans, to take this or that action. But is such a more favourable situation for the environment also sufficiently precise with regard to citizens, in order to be invoked before administrations and courts? The Court of Justice stated in 1985 that the protection of the environment is in the general interest of the EU, 41 but it has not yet been able to declare that this gives a favourable position to individuals. In Case C-72/95, the Court declared that a provision of EU law where Member States had discretionary powers could nevertheless be controlled under the direct effect doctrine to determine whether this discretionary power had been exceeded. In Case C-240/09 where Member States also had the discretion to decide whether they wanted to grant access to justice and under which conditions, the Court did not lose one word on the question as to whether individuals could have sought the national court to check whether these national rules on access to justice exceeded the discretion granted to Contracting Parties/Member States. Direct effect between private parties The Court of Justice has held in a consistent line of judgments that the direct effect of a provision does not work in private law relations, as the direct effect has to be seen as a sanction against a Member State which has failed to transpose or failed to transpose correctly EU law into its national legal order. In other words, there is no horizontal direct effect in private law relationships. 42 40 41

One might think of a plan to reduce air pollution limits in an urban agglomeration.

Case 240/83 Association de Défense des Brûleurs d’Huiles Usagées [1985] ECR I-531.

42

See in particular Case C-91/92 (Dori) (supra n. 9).

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As directives are addressed at the Member States and are, as distinct from EU regulations, not of general direct application, this limitation appears correct, as long as the EU Treaties themselves maintain the difference between regulations and directives. However, the Court allowed the recourse to the direct effect concept in a number of disputes between private parties. 43 No satisfactory interpretation has, until now, been given in literature or by the Advocates General or, indeed, by the Court itself which explains the results seen in these cases. The question whether a relationship between a person and a company is of ‘public’ or ‘private’ law is not altogether easy in the environmental sector. Privatised water, waste management or gas or electricity companies which act, as private companies, in the general interest, are to be counted as public bodies, where the public authorities maintain a significant influence on the activities, such as the fixing of prices, the obligations to contract with everybody, the possibility to appoint staff members, the obligation for the company to report to the public authorities, or the obligation to lay accounts on the salaries, profits and losses. Using this kind of arguments, the Court of Justice held that the direct effect of EU law could be relied upon against British Gas, a private company. 44 However, the borderline between a public body and a private company is sometimes difficult to find and the situation varies from one Member State, possibly even from one agglomeration to the other and from one sector to the other. This lack of clarity does not work in favour of citizens in day-to-day discussions with administrations. The direct effect concept: obsolete? Some authors argue that the whole concept of direct effect should be suppressed. It would be sufficient, according to them, to fully apply the principle of supremacy of EU law. This opinion is not shared here, for a number of reasons. The main reason is that the concept allows to invoke EU law before national courts. With the present state of knowledge of EU (environmental) law by the public administration and the courts, in particular at local and regional level, there is a good chance that in such a case, EU law would even less be taken into consideration when legal conflicts are to be resolved. The direct effect concept is a means to make the provisions of EU law operational. No cases are seen where the application of the direct effect concept led or would lead to grossly inappropriate administrative or court decisions.

43

Cases C-441/93 Panagis Pafidis [1996] ECR I-1347 (dispute between clients and their banks); C-194/94 Signalsson (dispute between two companies on unfair commercial practices; C-443/98 Unilever [2000] ECR I-7535 (dispute between two companies on a sales contract.

44

Case C-188/89 Foster v British Gas [1990] ECR I-3313: (the direct effect concept of EU law may be relied upon against a private law company) ‘providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals’.

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3.2 The concept of consistent interpretation

The concept of consistent interpretation which requires to interpret national law by taking due account of the existence of EU law, appears coherent and logical in substance. Difficulties, however, appear in the details. Thus, in Case C-168/95, 45 the Court was seized with an action against Mr. Arcaro, an Italian undertaker, who discharged cadmium pollutants into a river. No Italian legislation prohibited this, but EU legislation limited such discharges. The Italian court which had submitted the case to the Court of Justice was aware that the direct effect doctrine was inapplicable in this case, as it may only be applied in favour of an individual. However, it asked, whether a consistent interpretation of Italian law would allow to take action against Mr. Arcaro. The Court of Justice limited itself to state that the consistent interpretation requirement also prevented an interpretation of Italian criminal law in a sense that was unfavourable to Mr. Arcaro, without mentioning the general principle of nulla poena sine lege. The Court might have explained that this principle prevailed over the doctrine of consistent interpretation. The Court did not either discuss the issue, whether administrative or civil law sanctions were applicable in such a case, though the Italian court had explicitly asked whether other sanctions could be applied. In later judgments, the Court of Justice declared that the principle of consistent interpretation finds its limits in the general principles of law, and mentioned expressly ‘legal certainty’ and ‘retro-activity’. Whether other principles of law, such as the ‘legitimate expectation’ (in the legality and applicability of national law) could set further limits, was not discussed. However, already the notion of ‘legal certainty’ is sufficiently vague to allow interpretations of the consistent interpretation concept in any direction. At the same time, the ‘legal certainty’ exception is less helpful to individual persons or to local or other administrations, because theses bodies do not know in advance which rule of law should be applied in a specific case. Only for criminal law does there seem to be some clarity. The Court further indicated that ‘the principle of conforming interpretation cannot serve as a basis for an interpretation of national law contra legem. 46 However, it asked the national courts to take into account, when proceeding to a consistent interpretation, the whole body of national law and to apply the different interpretative methods which were recognised by its national law, in order to ensure that the EU directive in question were fully effective. These words would probably allow a national court to declare an interpretation to be praeter legem and not contra legem, if it so wishes. For those cases which are not submitted to a court but decided by an administration, the concept of consistent interpretation does not become clearer, though. It thus appears clear that in criminal law, the concept of consistent interpretation cannot be used to interpret a criminal law provision to the disadvantage 45

Case C-168/95 Arcaro (supra); see also Cases C-74/95 and C-149/95 Pretura di Torino [1996] ECR I-6609.

46

Case C-105/03 Pupino [2005] ECR I-5285.

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of a person. However, the more general question whether a Member State may use the consistent interpretation concept against a person in administrative or civil law matters is not yet really resolved. In legal literature, a general consensus seems to exist that the impact of consistent interpretation on private law relationships is unclear. It makes, in this author’s opinion, not too much sense to declare a private law sales contract inapplicable where the sold product contains ozone-depleting substances that were prohibited by an EU regulation, 47 but to declare the contract valid, where such a prohibition was introduced by a directive which has entered into force48 and not been transposed into national law; it is true, though, that this problem is very similar to the problem of the direct effect concept and its application to civil law. In my opinion, the administration of Member States – at national, regional or local level – is obliged to apply the doctrine of consistent interpretation, whenever there is a difference between national and EU law, though it seems that there are no judgments of the Court of Justice on this general aspect. Environmental law is mainly public law. Where a company obtains a permit which allows it to emit polluting substances into the air, and the permit provisions exceed the limits fixed by an EU directive, there would be no need to apply the concept of consistent interpretation, as the Court of Justice held that emission limit values in EU law have the purpose of protecting the health of humans. 49 Thus, the doctrine of direct effect applies and allows a person to rely, before a national court, on the EU law provision. Nothing else can apply as regards emissions into the water50 and noise emissions. Neither the Court of Justice nor national courts have applied, until now, the concept of consistent interpretation to provisions of international environmental law agreements that had been ratified by the European Union. For example, when the Court of Justice examined whether the provisions of EU Directive 2003/87 on greenhouse gas emissions trading were in breach with international air transport agreements concluded by the Union51 and came to a negative result, it did not at any point discuss the issue of consistent interpretation.52 There are no logical reasons for this self-constraint, except that the EU Court of Justice is mostly interested in the application of EU law – and international environmental law agreements remain, in practice, part of international law, though, Article 216(2) TFEU53 and its interpretation by the Court of Justice 47

Case C-341/95 Bettati [1998] ECR I-4355.

48

The consistent interpretation concept ‘exists only once the period for transposition [of a directive] has expired’, Case C-214/04 Ellinikos Organikos Galaktos [2006] ECR I-6057.

49 50 51

Case C-361/88 Commission v Germany [1991] ECR I-2567; Case C-237/07 Janecek [2008] ECR I-6221.

Case C-237/07 Janecek (supra n. 49).

Case C-366/10 Air Transport Association of America, judgment of 21 December 2011.

52

See already Case 12/86 Demirel [1987] ECR I-3719, where the consistent interpretation was not either mentioned.

53

Article 216(2) TFEU: ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’.

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point to the opposite. The relationship of such environmental agreements to EU law may thus be compared to that of EU law to national law: in theory, EU law, is part of national law and needs, for reason of supremacy, a consistent interpretation of national law. In practice, this is far from being the case. In theory, international environmental agreements that were ratified by the EU are part of EU law and subsequently also of national law, so that they prevail over EU and national provisions: in practice, this is all too often not the case. No doctrine is ever capable of completely avoiding uncertainties, doubts and contradictions. Overall, though, the concept of consistent interpretation is a useful instrument in integrating the EU Member States and their laws into the European Union. Its unsatisfactory state of application is due to the fact that national courts, national, regional and local administrations, and national attorneys do not know EU law well enough, and this is in particular true of EU environmental law. EU law continues to be treated as foreign law54 and not even private attorneys systematically or regularly use EU (environmental) law as a supplementary tool to defend the interests of their clients.



4 Concluding remarks

Both concepts of direct effect and consistent interpretation suffer from the fact that they are concepts which were developed by the Court of Justice. As the Court of Justice has the task to build on the concept of supremacy of EU law but also the obligation to find fair solutions to individual cases, both concepts are necessarily imperfect. Contradictions exist, in particular with regard to the horizontal direct effect of an EU law provision. The judicial system as it was set up by the EU Treaties will never achieve uniform interpretation of EU law, because the vast majority of all cases, where EU law is involved, are and will continue to be decided by national courts. Furthermore, it must not be forgotten that only a small minority of all cases which touch upon EU law is ever brought before a court; normally, administrations in Member States decide in such cases. Viewed from this aspect, the conclusion must be that the doctrine of direct effect contains a number of vague terms which allow those who are charged to apply EU law not to recur to this doctrine, with the consequence that EU law continues to be not applied. The concept of consistent interpretation is logical and in line with the general concept of the supremacy of EU law. Its practical application is limited by the lack of precise understanding, and what precisely an interpretation that leads to the application of EU law ‘as far as possible’ means. This provision opens up a large space of discretion to the national judge and to national administrations, which will be filled in with more or less creativity, according to 54

Commission, European Governance, OJ 2001 C 287, p. 1: ‘the feeling persists that Community rules are foreign laws’.

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the knowledge of EU law, of national law, and according to the will to accept the supremacy of EU law. The direct effect doctrine has drawn the attention of national courts and national lawyers, including researchers, to the existence of EU law. Thereby it has fulfilled an important function, namely making EU law also applicable in courts. It has undoubtedly weaknesses, in particular as regards the question of ‘rights’ which must have been conferred to persons by EU law, a provision that received sometimes a rather generous interpretation by the Court of Justice. A second marked weakness is its application to private relationships which the Courts rejects in principle, but which it accepted in several cases without giving a consisting and convincing justification for so doing. Getting rid of the requirement that an EU provision must confer some sort of a ‘right’ to persons, in order to allow the direct effect doctrine to be applied, might lead to the direct application of numerous more provisions of EU law than at present. At the same time, this would link the direct effect concept more closely to the concept of consistent interpretation. So would the relationship between EU law and national law become clearer if the direct effect doctrine were abandoned and only the estoppel principle – Member States may not invoke their own omissions to transpose or transpose correctly EU law into their national legal order – and the principle of supremacy of EU law were applied? I do not think so: the consideration that the individual person has some form of a ‘right’ which flows out of EU law gives a stimulus to private persons to look for remedies in EU law that could serve their interests. And law is not a matter which can just be discussed by courts; it needs to be driven in its evolution by private, selfish interests – like the wheels of a vehicle which turn around themselves and yet advance the vehicle (of justice). That selfish interests only exceptionally help protecting the environment is another issue. The direct effect doctrine is thus likely to continue its life in EU and national law.

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Direct Effect and State Liability Angel-Manuel Moreno Molina

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direct effect and state liability

1 Introduction

The aim of this chapter is to analyse how domestic courts in the Member States (MS) have applied two basic doctrines of EU law, ‘direct effect’ and ‘state liability’ in the field of environmental protection. Many of the practical examples of case law are taken from the national reports included in this book or published on the Avosetta website.1



2 The Doctrine of Direct Effect and Its Application in Environmental Cases



2.1 General Questions

First proclaimed by the European Court of Justice in its 1962 seminal Van Gend en Loos ruling,2 ‘direct effect’ is a classical principle in the dogmatic building of EU law and one of its cornerstones. Since that date, this doctrine has evolved, following a consistent series of judgments from the Court of Luxemburg and it has gained complexity and nuances.3 In a nutshell, ‘direct effect’, ‘direct effects’ or ‘immediate applicability’4 represent a doctrine or principle by which individuals are enabled to invoke and to rely upon a specific EU legal rule before a national court. This principle, however, only applies to certain types of EU legal rules, and as long as specific criteria are met – namely, that they are clear, precise and unconditional, that is, they do not need further additional legislative national measure to be fully operational. First confined and addressed to the national courts, the ECJ then enlarged its scope to national governmental agencies (Fratelli Costanzo), an issue considered further in para. 2.6 below. As mentioned above, direct effect must be considered as a uniform though complex judge-made doctrine about the actual effects of some EU legal rules in 1

http://www.avosetta.org.

2 3

Case 26/62 Van Gend en Loos [1963] ECR 3.

This chapter deliberately does not attempt a detailed analysis of the principles. For an overall presentation of this principle, see, in general: Chalmers/Davies/Monti (2010) 268-300; Craig/De Búrca (2011) 180-217; Hartley (2010) 209-248; Horspool/Humphreys (2010) 175-185; Lenaerts/Van Nuffel (2011) 809-813; De Witte (2011) 323-361; Wyatt/Dashwood (2011) 244-286.

4

In the field of terminology, it is important to note that, when legal discussions on this principle first took place, they were not framed in English, but essentially in French, since neither the UK nor Ireland were then parties to the European Communities. This is why the concepts of ‘direct effect’ or ‘direct applicability’ (effect direct, applicabilité directe) may seem a bit strange for an English-speaking lawyer. For instance, in the French version of Van Gend en Loos (see footnote n. 1) the ECJ used the term ‘effet immédiat’ (immediate effect): ‘ l´Article 12 (of the EEC Treaty) […] produit des effets immédiats et engendre dans le chef des justiciables des droits individuels que les juridictions internes doivent sauvergarder’. The English translation says: ‘Art. 12 […] produces direct effects […]’ (in plural).

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the domestic jurisdictions. However, it is possible to carry out a specific analysis of this doctrine in the different sectors in which EU law can be categorized – employment law, customs law, environmental law, agriculture law, and so on. For this purpose, it is relevant to recall some of the basic architectural features of EU environmental law: a) It is mainly composed of Directives. Regulations have a minor importance in quantitative terms. b) It aims at protecting ‘the environment’, as a transcendent notion which encompasses a holistic understanding of nature and natural resources. Many of the protected goods and elements do not belong to anyone, and there may be no private property rights engaged (public domain of waters, coast, etc.) or no legal personality (for instance, the bird species Avosetta recurvirostra). c) The individual is often not the direct beneficiary of the legislation, although the citizens do benefit from a high level of environmental protection (for instance by living in a city whose atmosphere is not excessively polluted). d) T he leading role in the implementation of environmental provisions belongs to national administrative agencies. e) The regular instruments and techniques enshrined in EU environmental rules consist of typical administrative devices such as plans and programs, licences and permits, inspections and fines. However, to be fully operational most of those instruments need the ‘flesh and blood’ of domestic (administrative) law. Furthermore, environment and nature protection national agencies often have a wide margin of discretion in implementing them. f) Apart from sometimes being an indirect beneficiary of environmental law (to the extent that it protects ‘public health’), citizens are mostly the passive subjects of environmental law and indeed in terms of legal capacities and rights are negatively impacted by the imposition of such law. Environmental law limits the personal freedom of individuals (activities are prohibited or seriously regulated); it imposes costs and burdens in their juridical sphere (the need to get a permit, the possibility to be fined, the duty to pay taxes, levies and charges), etc. Environmental law usually imposes restrictions, duties and obligations on individuals, companies, and governmental bodies. In the light of these basic features, ‘direct effect’ of EU law might encounter two basic challenges within the environmental arena, at least at the theoretical level.5 On the one hand, there is the preliminary question of ‘rights’ conferred upon individuals. In some initial approaches to the doctrine of ‘direct effect’, the ECJ took into consideration whether the EU rule under scrutiny did confer ‘rights’ on the individuals or not.6 However, as stressed above, most EU environmental 5

For an earlier discussion of ‘direct effect’ in the environmental field, performed in the light of the existing state of the law, see Krämer (1991) 39-56. For a more recent analysis, see Jans (2011) 187-215.

6

As the ECJ stated in Van Gend en Loos (see footnote 1): ‘Art. 12 of the Treaty […] creates individual rights which national courts must protect’ (emphasis added). Other references to this question of individual

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rules do not recognise ‘rights’ on any individual,7 but instead establish duties or obligations on firms, individuals and governmental agencies. In this sense, EU environmental law differs substantially from other fields such as employment law, where workers are recognised a number of substantive and explicit ‘rights’ (not to be discriminated, to be protected against occupational hazards, not to work more than a certain number of hours, and so on). Although the importance of this theoretical aspect should not ignored, it should be read in the light of the modern case law of the Court.8 Thus, the ECJ has considered that the direct effect of some environmental directives is independent from the question whether the norm in question does actually confer rights on individuals or not. This is especially clear in respect with Directive 85/337/EEC, on the environmental impact assessment of certain projects, which hardly confers ‘rights’ on individuals.9 In the field of directives that set up standards for water (quite a technical issue where rights are hardly addressed) the Court of Justice also considered, for example, that Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, had direct effect.10 And even in the case directives setting up environmental quality standards and action plans for air, the ECJ ruling in the Janecek case shows that the issue of individual rights as such has a minor importance.11 The second ‘genetic’ obstacle that the principle of ‘direct effect’ may encounter in the environmental arena is connected with the requirement that the EU rule has to be clear, precise and unconditional. In this respect, many European environmental rules are not sufficiently clear, precise and unconditional (an issue further discussed at para. 2.2.3 below). As noted above, many environmental directives impose broad obligations on the executive branch of government, but there is a big deal of deference to national implementation and enforcement activities, simply because these activities are not neatly regulated at the European level. Examples include a) setting up environmental infrastructures and facilities; b) conducting sampling and monitoring operations, as well as inspections; c) framing improvement plans and identifying places or situations; d) rights granted by the EU rule at stake may be found in a number of subsequent judgments, such as in Case 8/81 Ursula Becker [1982] ECR 53: (the provisions of a directive may be relied upon in so far as they […] ‘define rights which individuals are able to assert against the State’, par. 25). 7

For a discussion of this questions, see Ermacora (2003).

8

The national jurisdictions may provide intriguing differences on this subject. In some MS (such as the UK) the issue whether an EU rule at stake does recognise rights in favour of individuals has been given little importance, if any, in order to recognise direct effect to that rule. The quite opposite situation may be found in Italy, where the issue of ‘rights’ still plays a key role in the national understanding of this principle (see the respective reports on these two countries in this book).

9

See the judgments of the Court in Case C-72/95 Kraaijeveld [1996] ECR 5403; Case C-435/97 Bolzano airport[1999] ECR I-5613; and Case C-431/92 Commission v Germany [1995] ECR I-2189 (Grosskrotzenburg case).

10 11

Case C-131/88 Commission v Germany [1991] ECR I-825.

Case C-237/07 Dieter Janeck v Freistaat Bayern [2008] ECR I-6221.

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imposing fines on law-breakers; e) compiling reports; (f) requiring permits and licences, whose internal procedural features are entirely regulated by national law. This characteristic plays a key role in determining whether an ordinary EU environmental directive has direct effect or not, and as this has been noted by the ECJ, often with the outcome of denying such effect.12 Summing up, the application in practice of the doctrine of ‘direct effect’ has to contend with some specific features in the domain of environmental protection, which in many cases might prevent such effect taking place. With this caveat in mind, we are now presenting in broad terms how this principle has been applied by the national courts of the MS analysed in this book.



2.2 The Direct Effect of the Different Types of EU Rules in National Courts

The research conducted in the different MS jurisdictions by the national reports shows that the direct effect doctrine is frequently used in national courts in relation to EU environmental legislation. However, the application of this doctrine among the several MS is revealed to be rather uneven. In some countries (such as Belgium or the Netherlands), the doctrine of direct effect is extensively and explicitly used by the highest courts (such as the Council of State), while in others (e.g. Portugal, Slovenia) this doctrine is not used very often. In Portugal, for instance, directives are usually invoked to reinforce the arguments based on national laws rather than as main grounds for the action. The direct effect principle can be analysed in the more precise context of each of the existing different types of EU legal rules. For instance, by their very nature, regulations inherently have direct effect, both vertically and horizontally, and a compulsory, binding force over all persons, individuals, corporations or governmental agencies (see Art. 288 TFEU). Some Treaty provisions have direct effect, others do not. Directives present their own particular features. In considering how frequently the different types of EU rules are recognised to have direct effect by national courts, it is therefore sensible to treat the various forms of legal norm seperately.

12

For instance, in the domain of waste, the ECJ has declared that Article 4 of Directive 75/442/EEC, of July 15, 1975 (the old framework directive on waste) lacked such a direct effect, because it did not impose on national authorities the adoption of specific, concrete measures, or a determined method for the elimination of waste but instead had a programmatic nature. Accordingly, the Court understood that this provision was neither unconditional nor precise, and thus did not confer rights on which the individuals might rely against the State (Case C-236/92 Comitato di coordinamento per la difesa della Cava and others v Regione Lombardia [1994] ECR I-483).

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2.2.1 The Direct Effect of the EU Treaties

As mentioned above, it is well-known that the doctrine of direct effect was formulated by the ECJ for the first time in the Van Gend en Loos case,13 and this ruling was precisely connected with the controversy whether a certain provision of the old EEC Treaty (establishing a prohibition of introducing additional or new tariffs among the MS) had direct effect. In the field of environmental protection, the question of direct effect of so called primary EU law seems to be confined to those Treaty provisions dealing specifically with environmental protection, that is, currently Arts. 191, 192 and 193 TFEU. On the ground of their wording and significance, there is prima facie little chance for these provisions to have direct effect and to be invoked in national court litigation, since they appear to be mainly addressed to EU institutions and bodies, in that they describe legislative and decision-making process for the European institutions. In the case of the principles guiding the EU legislation and policy on the environment (polluter pays, preventive action, precaution, etc.), now enshrined at Art. 191(2) TFEU,14 the case law of the ECJ has established that the addressees of those provisions are the EU institutions, and it has implicitly rejected that they might have direct effect or that the individuals might rely upon them against national law.15 Despite this, the practice in some national jurisdictions shows that there are sometimes references to these environmental principles. In Denmark, for example, the environmental principles of the Treaty seem to be applied in a rather confused manner by the Nature and Environmental Appeal Board and Danish Courts. Although there has not been any case in which the Treaty environmental principles have been explicitly applied, the Nature and Environmental Appeal Board has since 2004 stated that, in the domain of Natura 2000 sites ‘a special precautionary principle’ should be applied in deciding whether an assessment of the Natura 2000 site is needed. Therefore, in a January 2005 case, and after referring to ‘the special precautionary principle for Natura 2000 sites’, the Nature Appeal Board found that the expansion of middle pig farm which will significantly increase deposition of nitrogen oxides in a Natura 2000 site required an Environmental Impact Assessment (EIA).16 In Portugal these environmental principles are applied but only as general principles of law rather than Treaty provisions having direct effect. For instance, the effects of the precautionary principle were mentioned in the case decided by the Central Administrative Court in September 201017 when dealing with the risks of using dangerous wastes as fuel in cement kilns. In France, too, the environmental principles are sometimes invoked before the Courts but in the context of the French environmental code, the Constitutional Environmental 13

See, footnote 1.

14 15

On those principles, see, in general Macrory (2004).

See Case C-378 ERG [2010] ECR I-1919 (especially paras. 45 and 46).

16 17

Nature Appeal Board ruling of 10 January 2005 – published in MAD 2005.378.

Case n. 5090/09 decided on the 30th September 2010.

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Charter (principle of participation, precaution), or in the context of ‘European legislation’ in broad terms, rather than as an explicit reference to ‘TFEU principles’ as such. In contrast, in the Irish courts there is a plethora of cases where the direct effect of Treaty environmental principles has been raised. Taking just the ‘polluter pays principle’, the following cases can be mentioned here.18 The principle was extensively discussed in Wicklow County Council v Fenton a.o. 19 to justify lifting the veil of incorporation so as to make the directors of a company personally liable for illegal waste activities. Environmental Protection Agency v Nephin Trading [2011] IEHC 67 addresses the question of making directors of companies personally liable for offences committed by the company. In Spain, the ‘polluter pays principle’ is the principle most frequently invoked in domestic courts,20 though rather than talking about an EU principle as such, the courts usually make rather vague and imprecise references to it. There are two fields where this principle is mostly cited: in tax matters (environmental charges and taxes) and indemnities in the domain of civil damages. As to tax, the Constitutional Court ruling of 30th November, 2000 determined a constitutional challenge filed by the central government against a regional statute that established a tax on air polluting emissions. The challenge was accepted. Among the other grounds for the decision the court made extensive reference to the polluter pays principle but did not identify it explicitly as being a principle of European Community law. In the field of environmental taxes and charges, there are rulings both from the Supreme court and from the Regional Higher courts (administrative chambers). Thus, the charge levied on water discharges (canon de vertido) has produced a solid body of case law from administrative courts, where plaintiffs usually claim that the actual amount to be paid is disproportionate or excessive. The ruling of the Regional Higher court of Andalucía of 3 April, 2002 accepted the plaintiff’s contention that, in establishing the actual amount to be paid, the Water agency had not determined in an appropriate way the actual pollution produced by the taxpayer, or the actual volume of polluted waters. The court included an extensive elaboration on the polluter pays principle as an EC principle, referring explicitly to the old Articles 130r, 130s and 130t of the EC Treaty. The key result was that the principle was held to clearly authorize environmental charges, but the tax should not be excessive or disproportionate, and cannot be devised solely as a source of income for the Agency. Finally, in Belgium the Supreme Court has accepted in an implicit manner the direct effect of the environmental principles of the old Art. 130r of the EEC Treaty in the context of a wastewater tax litigation.21 18

For a full account of this case law, see the national report on Ireland at http://www.avosetta.org.

19

High Court, 31 July 2002.

20

For a broader description, see A. Moreno, ‘The Application of the Core Environmental Principles by Spanish Courts’, in: Macrory (2004), 179-192.

21

Cour de Cassation, 20 October 2006 (F.05.0075.N), Brussels Intl´Airport Co., TMR 2007, 152-153.

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2.2.2 The Direct Effect of International Treaties concluded by the EU

The doctrine of direct effect is also applicable to other sources of EU law. International Treaties concluded by the EU become part of the EU legal system, the different types of secondary law (Directives, Regulations, Decisions) must be in accordance with the international treating provisions binding the EU. The question whether the provisions of such treaties could have direct effect was first addressed by the ECJ in 1987 in the Demirel case,22 and it held they could. Demirel was not dealing with environmental protection, and the application of the doctrine of direct effect in the specific field of environmental protection was first made by the ECJ in the well-known 2004 case Pêcheurs de l’étang de Berre, 23 where the Court declared that Art. 6(3) of the Athens protocol to the Barcelona Convention for the protection of the Mediterranean Sea incorporated a clear, precise and unconditional obligation to require the discharges of certain substances to be subject to a national permit system. More recently, the question whether provisions of an international environmental Treaty concluded by the EU have direct effect or not has gained heightened importance in the context of obligations under the Aarhus Convention, and the ECJ has already been asked on this matter by domestic courts.24 Despite this, the question whether a particular international treaty celebrated by the European Union has direct effect does not seem to be a issue often invoked in the domestic courts. For instance, no cases on the subject have been found in Denmark, Hungary, Portugal, Ireland, or Slovenia. It does not follow that this is just an academic question, for there are some cases where national courts have held provisions in environmental treaties concluded by the Union to have direct effect. To begin with, we should consider the final outcome of the ECJ ruling in Pêcheurs de l’étang de Berre in the domestic jurisdiction where the case originally arose – the French Cour de Cassation relied on the interpretation made by the ECJ and quashed the decision of the Court of Appeal of Aix en Provence (21/9/2000) because it violated Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources.25 Some other international treaties have been checked by the French Conseil d’État, as to their direct effect. For instance, the said body has recognized the direct effect of Article 6(2), 6(3) and 7 of the Aarhus Convention. On the contrary, the 1979 Berne Convention has been repeatedly found as not having 22 23

Case 12/86 Demirel [1987] ECR I-3719.

Case C-213/03 Syndicat professionnel coordination de Pêcheurs de l’étang de Berre v Electricité de France [2004] ECR I-7359.

24

See, among other cases, the ECJ ruling of 18 October 2011 in Case C-128/09 Boxus (not yet reported in the ECR); Case C-115/09 Bund für Umwelt und Naturschutz (Trianel) [2009] ECR I-10265, and ruling of 8 March 2011 in Case C-240/09 Slovak bears (not yet reported).

25

Cour de Cassation ruling of 8 March 2005, n°00 22 093.

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direct effect.26 In this understanding, the Conseil d’État is joined by the Belgian Council of State who was convinced that the 1979 Bern Convention had no direct effect.27 In Austria, a provision of the Protocol on Soil Conservation (Art. 14 para. 3.1) in the framework of the Alpine Convention has been held to have direct effect both by the Umweltsenat and by the Administrative Court (VwGH, 2004/03/0116). The provision was, therefore, applied in the proceedings concerning the enlargement of a skiing resort and the requested permit was eventually denied. In Germany, international treaty provisions are seldom not recognized to have direct effect in the sense of setting aside national law, but they are used in interpreting domestic law in conformity with international law. For instance, in the judgment of the Federal Administrative Highest Court (Bundesverwaltungsgericht; BVerwG) of 21 February 2008,28 the Land Greater Hesse had granted access to a data base assembling comments on the enlargement of the Frankfurt airport for a number of private persons, companies, communes and a non-incorporated citizen initiative. The operator of the airport filed a complaint against this decision, which was rejected by the appellate administrative court of Greater Hesse (Hess. VGH). The Bundesverwaltungsgericht upheld the judgment of the Land court. One of the issues discussed was whether a non-incorporated citizen group can be the holder of the right of access to information. The court affirmed this by invoking Art. 4(1) of the Aarhus Convention. Spanish courts do usually make reference to international treaties, e.g., the Kyoto Protocol (judgment of 7 December 2010, appeals 173/2007, 193/2007 y 9/2008, among others), but they do not consider whether they may have direct effect, nor they submit a preliminary question to the ECJ requesting guidance on that issue. However, the Spanish Supreme Court concluded in a judgment of 25 June 2008 (appeal 905/2007) that the Aarhus Convention had been breached in a case concerning access to justice. It should be noted that the Court mainly referred to the Convention itself as part of Spanish law, but references were also made to EU law and to EU ratification of the Convention. Finally, in a Dutch case (Rijkweg 31 Leeuwarden) the applicant wanted to rely on Article 9(2) of the Aarhus Convention,29 but the Council of State declared that this article had been implemented by means of EU Directive 2003/35. Therefore, there was no need to check the direct applicability of the said Treaty.

26

Council of State, April 14, 1999, Capt. La Petite Marche and a., No. 18593: Council of State, April 20, 2005, Association for the Protection of Wildlife, No. 271216 (destruction of wild wolves): Council of State of 23 February 2009, Federation trans-Pyrenean mountain farmers, No. 292397: no direct effect of Art 11.

27

Council of State, nº 113.102, 2 December 2002, TMR 2003, 276-284.

28

4 C 13.07, BVerwGE 130, 223.

29

Council of State 17 November 2010, LJN: BO4217.

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2.2.3 The Direct Effect of Directives

Even if the doctrine of direct effect may be raised in connection with EU Treaties and with Treaties celebrated by the EU, this aspect has a minor importance, if one compares it with the application of that principle to European directives. There are two basic reasons for this situation: on the one hand, directives as EU rules have specific features that favour the development and the application of this doctrine. On the other hand, most EU environmental rules consist of directives (of which there are some three hundred). Therefore, it is no surprise that the direct effect doctrine has been mainly raised in relation to ‘environmental’ directives.30 The direct effect of directives follows the general requirements established by the ECJ in general (as seen supra), with an additional precondition: the directive has not been incorporated within the transposition period, or it has been incorporated in a defective manner. Beyond this ‘traditional’ scenario, the ECJ, in its Marks & Spencer ruling,31 opened the door to admit direct effect of directives even if they were correctly legally implemented by the national authorities. This question, though, seems to be echoed by few national jurisdictions (apparently only the Dutch Council of State).32 On the other hand, directives may produce ‘preventive’ or anticipatory effects even before the expiry of the transposition period (see point 2.4 below). The typical litigation scenario for claiming direct effect of environmental directives (for instance the most acclaimed one, Directive 85/337, on EIA) is the following one: (a) a governmental agency approves a plan (land-use, transport, etc.) or a project (usually a public infrastructure) without performing either an EIA or a SEA. In other litigation scenarios, an agency grants a license or permit which is not in conformity with a given directive; (b) a local NGO or an individual affected by that governmental action challenges the legality of such administrative decision in the courts. To support their claim, direct effect of the mentioned directives is invoked ‘ad abundantiam’ (as a supplementary supporting argument) or as the main argument to not to apply the national rule that is not in conformity with the directive; (c) the court analyses the plaintiff ´s contention that the directive has direct effect and that it must be applied in adjudicating the lawsuit. When a court is faced with a claim that a given EU directive or a provision thereof has direct effect,33 it is supposed to carry out a legal analysis of the wording, the aim and the objectives of the directive at stake. Of course, at the end of the day the said operation may retrieve two opposite results: the directive may have (or not) direct effect. In performing this analysis, each national court is in principle sovereign. This means that, at least theoretically, it may happen that a court in country A rules that a given directive provision has direct effect, while 30 31

Among the first ECJ rulings, see Case 148/78 Publico Ministero v Ratti [1979] ECR I-1629.

Case C-62/00 Marks & Spencer [2002] ECR I-6325.

32 33

Cf. on the Netherlands, Chapter 17 in this book.

This question may very well be raised by the court ‘ex officio’.

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a court in country B rules in the opposite direction (the same directive provision does not have direct effect). This may sound contradictory, dangerous or inefficient, but this is also the natural outcome of the decentralized judicial structure within the EU and of the entire building of EU law. The judgment and findings of a given court on a controversy where direct effect is raised may of course be reversed by a subsequent ruling of a higher national court. In addition, in case of doubts the national court may formulate a request for a preliminary ruling to the ECJ. Let us analyse these two possibilities in the light of the case law of domestic jurisdictions. A) Directives having direct effect Research has shown that there are many cases where national courts have held provisions of EU environmental directives to be sufficiently clear, precise and unconditional to have direct effect. For instance, in Denmark the direct effect doctrine regarding EU Environmental directives has generally been accepted by Danish Courts and Administrative Appeal Boards, since it was applied in the Oresund Bridge case, in which it was undisputed (and accepted by the Supreme Court) that the obligation to make an EIA under Directive 85/337 has direct effect.34 Later, direct effect has further been applied regarding Directive 92/34, on habitats, namely Article 6(3) on assessment of Nature 2000 sites, and Articles 12-16. In Hungary, the Supreme Court has underlined that, in a case when it is evident that domestic law did not transpose Community law properly, the Community directive shall be applied if the other conditions are met.35 The legal question in that case was the labelling of chemicals. The plaintiff – who was fined by the authority – invoked the Commission Directive 2001/60/EC, amending 1999/45/EEC. Domestic law did not transpose these provisions and, in addition, the directive was clear, unambiguous, without further conditions and did not provide room for internal legislation to depart from it. In Irish courts, domestic law has been disapplied to give effect to the EIA Directive,36 in connection with Section 34 of the Planning and Development Act 2000 (planning permissions, tacit or default permits, etc.). In Spain, there is a large number of cases where the direct effect doctrine has been raised in national courts in relation to EU directives. The most usual references are made to Directive 85/337 (EIA for projects) and Directive 2001/42 (‘strategic environmental assessment (SEA) for plans), as well as to nature conservation directives (to a minor extent). In the case of the 85/337 Directive, the Spanish Supreme Court has seldomly supported the view that EIA are not only required for ‘projects’ as such and in the narrow sense but also for ‘plans’, where those plans constitute the administrative decision that makes possible the 34 35

Supreme Court ruling published in UfR 1995.634.

EBH 1745/2007 (Legf. Bír. Kfv. III. 37.043/2007).

36

 A bbeydrive Developments Limited v Kildare County Council [2010] I.E.S.C. 8.

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building or realization of the infrastructure or project.37 In the case of Directive 2001/42, it is important to note that Spain did not transpose in due time the said rule. This directive should have been transposed before 21 July, 2004. Transposition was performed by way of Act 9/2006, of 28 April, 2006, which entered in force on 30 April 2006. Therefore, administrative courts have ruled that Directive 2001/42 has direct effect and, consequently, all land-use and similar plans approved by administrative agencies as of 21 July 2004 should have been subjected to a SEA, notwithstanding the fact that this requirement was not obligatory under domestic law until April 2006. There are many administrative courts rulings proclaiming this understanding.38 British courts understand in general that the EIA Directive has direct effect, too. This is in sharp contrast to decisions in the early 1990’s, where national courts have held, i.a., that the direct effect doctrine could not apply to Annex II projects because of the discretionary element involved.39 On the other hand, in the last years British courts have held that the provisions on access to justice in the EIA Directive, as amended, do have direct effect. This is highly significant in the context of a long running dispute between the UK Government and the European Commission (and the Aarhus Compliance Committee) as to whether litigation costs rules in the UK satisfy the ‘not prohibitively expensive’ provisions in Aarhus. 40 The Belgian Council of State has explicitly declared in many occasions that some provisions in EU environmental directives have direct effect, such as, Articles 4(1), 4(2), 4(4), 5 and 9 of the Birds Directive 41 and the Czech Supreme Administrative Court has also addressed several times the direct effect of the EIA Directive, finding in some cases that some of its provisions have such effects. 42 In the Netherlands, provisions of Union law will be considered to have direct effect merely if they are found to be unconditional and sufficiently precise. On the contrary, the practice of Italian domestic courts shows that the fact that a directive confers individual rights plays a significant importance in deciding 37

An example of such case law is the Ruling of 30 October 2009.

38

Just to mention one: Ruling of 4 June, 2010: challenge to the General Land Use Plan of the Municipality of Haria (Island of Lanzarote). This decision explicitly says (using a wording that is repeated in similar holdings) that: ‘the direct effect of the Directive on SEA is clear in respect with the land development plans and programs regulated in the urban planning legislation of the Canary Islands […] the Directive is clear and unconditional […]’. See Chapter 20 on Spain for further reference.

39

Cases: R (on the application of Gavin) v Haringey London Borough Council [2003] EWHC 2591 (Admin); and Walton et al v Scottish Ministers [2011] CSOH 131.

40

The most significant cases in this area are: (a) R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006; (b) Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312; and (c) Morgan and another v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107. See the national report on UK for a full account.

41

For a full account of the Belgian case law , see Chapter 10 in this book.

42

Supreme Administrative Court, judgment of June 29, 2011, case 9 As 7/2011-70.

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whether the said directive is declared to have direct effect, at least in some MS. This understanding (not circumscribed to the environmental arena) is usually applied in conjunction with the supremacy of EU law and has been ratified in a recent decision of the Constitutional Court. 43 In the narrower domain of environmental protection (waste), there is a consistent case law of the Supreme Court of Cassation (criminal branch), which has addressed the compatibility of the Italian legislation on the definition of waste with Article 1 of the old framework directive on waste (75/442). The result of this enquiry is not uniform: some rulings have recognised the direct effect of the said rule, while others have concluded that the directive had not direct effect, because it was not selfexecuting. 44 B) Directives not having direct effect Sometimes, the direct effect of a directive may be invoked in a legal proceeding before the national court, but the said court may refuse to recognize such effect. There are different legal grounds for this outcome. First (and this is the most usual reason), the direct effect is rejected, because the directive is not sufficiently clear, precise and/or unconditional. Second, the court understands that the directive provisions under scrutiny have been correctly transposed in the internal legal order. 45 A third possibility connects the direct effect of a directive with the question whether it recognizes or confers right upon individuals, a question that still seems to be relevant in some national jurisdictions. Finally, the recognition of direct effect may be connected to the ‘legal nature’ or condition of the plaintiff that invokes the said effect. In a very noticeable ruling, a British court has held that a public authority cannot invoke the direct effect of an European directive (in that case, the EIA one) against another governmental body, for both are emanations of the same State. 46 Thus, in a judgment of the Austrian Constitutional Court (VfSlg 18.585/2008), an association of concerned citizens (Bürgerinitative) challenged the approval for a highway project and claimed, i.a., that the competent administrative authority should have granted locus standi to NGOs in the permit procedure by applying directly Art. 10a of the EIA Directive. The Constitutional Court held that the relevant provisions of the EIA Directive are not unconditional in so far as Member States have to decide on the requirements that non-governmental organizations have to fulfill in order to be recognized as an NGO promoting environmental protection in the sense of Article 1(2) and Article 10a EIA Directive. The Constitutional Court decided that because at the time the decision was taken national provisions on the recognition of NGOs had not been established,

43

Decision 28/2010 of the Italian Constitutional Court.

44 45

For a full account of the Italian case law, see Chapter 16 in this book.

This understanding should be nuanced in some factual scenarios, in the light of Marks & Spencer (see footnote n. 30).

46

 R (on the application of Westminster City Council and another) v Mayor of London [2002] EWHC 2440 (Admin).

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it was impossible to hold that Article 10a of the EIA Directive was sufficiently precise and unconditional to have direct effect. Still in the same domain of environmental law, the Austrian Constitutional Court has held in a later ruling that, in the light of the Trianel Lünen case (C-115/09), Art. 10a of the EIA Directive was not sufficiently precise and unconditional to have direct effect with regard to the determination of the competent bodies before which actions contesting an EIA permit decision may be brought. Additionally, in Belgium, the Council of State has declared that Art. 3.4 of the SEA directive has no direct effect. 47 On the other hand, in a 1995 case the Portuguese Superior Administrative Court decided that the Wild Birds Directive (79/409) was not sufficiently precise and unconditional to have direct effect. The context of the case was not obvious, since the directive had been formally transposed by a decree-law. What seemed to be missing was the designation of Special Protection Areas (SPAs). In fact, although the European Commission had already been notified of the list of Portuguese SPAs, there were two additional requirements established by the Portuguese law: the approval of the list of designated SPAs by means of a decree-law and a formal publication in the official journal. As a consequence, the Supreme Court declared, i.a., that the directive was not sufficiently precise and unconditional to have direct effect. In the German jurisdiction, attention should be paid to the judgment of the Bundesverwaltungsgericht (BVerwG) of 18 March 2011. In that case, the two plaintiffs who had their homes in the vicinity of a planned new tranche of highway A 44 challenged the approval for the project alleging, i.a., that the traffic would cause air pollution through emission of arsenic, nickel, cadmium and polycyclic aromatic hydrocarbons. They invoked Directive 2004/104, relating to those pollutants in ambient air, which had not been transposed into national law, although the deadline had already passed at the time of issuance of the plan approval. Art. 3(1) of this Directive sets in Annex I ambient air target values for arsenic, cadmium, etc., but the BVerwG held that theses provisions were not precise and unconditional. Irish courts provide other examples of directives being diagnosed as not having direct effect. For instance, in Browne v An Bord Pleanála [1989] ILRM 865, the High Court held that Article 2 of the original EIA Directive did not have direct effect. Another relevant Irish case is Friends of the Curragh Environment Ltd (FOCE) v An Bord Pleanála, adjudicated by the High Court on 14 July 2004 (Kelly, J.), where the court concluded that Article 10a [5] of Directive 2003/35 (obligation that costs for review procedures should not be ‘prohibitively expensive’) was ‘not sufficiently precise, clear or unconditional’ to satisfy the conditions for direct effect. 48 In France, and in connection with the construction of the Highway A 355 (in the Strasbourg area), the Council of State considered that Article 6 § 1 of the EIA Directive (transmission of the impact assessment 47

Council of State nº 179.933, 20 February 2008, TMR 2009, 219-229.

48

[2006] IEHC 243 at 27.

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to the competent authority in environment) had no direct effect because of its insufficient precision. 49 As mentioned supra, Italian courts have found in a number of cases that the old framework directive on waste (75/442) has no direct effect, since it was not ‘self-executing’. On the other hand, in a British case local residents challenged the legality of the decision to approve a waste incineration plant on the grounds, i.a., that local concerns about air pollution had not be properly addressed and that Art. 13 of the 2008 Waste Directive applied. However, the Court of Appeal held that Art. 13 of the revised Waste Directive had no direct effect.50 Last but not least, in the Netherlands the decision of the Council of State of 23 December 200951 concluded that Article 3 of Directive 2006/11 on pollution caused by certain dangerous substances discharged in water did not meet the requirements of being directly effective.



2.3 The Waddenzee/Kraaijeveld Doctrine

Another interesting dimension of the direct effect doctrine is the one embodied in the ECJ rulings Waddenzee 52 and Kraaijeveld.53 As a rule, EU directives leave the national authorities a certain room of discretion in deciding the measures needed to implement the directives. However, this discretion is not unfettered: according to the holdings in those cases, national courts have the power to examine whether the national legislature or the administrative authority has remained within the limits of discretion allowed by the directive. In Waddenzee, the discussed provision was Art. 6(3) of the Habitats Directive. In Kraaijeveld, the discussion concerned several provisions of the EIA Directive (85/337). This doctrine is not ignored by the MS courts, although it is applied in a uneven manner in the different jurisdictions. In some countries the doctrine is unheard or not applied at all, probably because it has not been raised: no cases have been retrieved on this subject in Hungary, Portugal, Slovenia and the UK. However, in other countries research has retrieved positive results. Thus, in Austria, this doctrine has taken place especially in environmental cases concerning the implementation of the EIA Directive. For example, in two cases concerning the EIA-screening decisions for waste management facilities, the Administrative Court disagreed with the respective project developer and decided that the EIA Directive was directly applicable where the thresholds of the EIA Directive had been exceeded, and therefore inappropriately implemented.54 49 50 51

Council of State of 17 March 2010, Alsace Nature, No. 314114.

Ardley against Incineration v Secretary of State for Communities and Local Government [2011] EWHC 2230.

LJN: BK7483.

52 53

Case C- 127/02 Waddenzee [2004] ECR I-7405.

Case C- 72/95 Kraaijeveld [1996] ECR I-5403.

54

VwGH 18 November 2004, Docket No. 2003/07/0127, see also VwGH 20 February 2003, Docket No. 2001/07/0171.

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In Denmark (as mentioned supra) the Nature and Environmental Appeal Board have, since the beginning of 2005, often made references to Waddenzee in cases concerning Natura 2000 sites. Still in this country, the implications of Waddenzee have been particular important regarding fish farms and pigs and cattle farms applying for an environmental permit. More than 1.000 permits to these farms have been appealed to the Environmental Appeal Board (and since 2011 to the Nature and Environmental Appeal Board) often by NGOs, frequently claiming that the permit was in conflict with Article 6(3) of the Habitats Directive as it was interpreted by the ECJ in Waddenzee. In most cases, the permit has been annulled for lack or insufficient assessment of the impact of the projected activity on Natura 2000 sites, or because the application of the BAT standards was missing. In Germany, the Waddenzee/Kraaijeveld test has been applied in the domain of EIA and wildlife protection. Among the cases pertaining to the first domain, attention should be paid to the BVerwG judgment of 25 January 1996.55 In this case, farmers whose land was to be expropriated for the construction of highway A 60 alleged that the project lacked a proper EIA. The application for project authorisation had been published before the date of expiry of the transposition deadline of the EIA Directive. The relevant German EIA-Act (which excluded projects from EIA requirement if the application was published before this date) had been earlier found by the ECJ in breach of the EIA Directive (Großkrotzenburg case).56 In the same case the ECJ also ruled that Articles 2, 3 and 8 of the directive were precise and unconditional and hence directly applicable. Following the ECJ, the BVerwG held that the directive was directly applicable in the case under its consideration. For what concerns the application of the Waddenzee/Kraaijeveld test in the field of the Birds and Habitats Directives, attention should be given to the BVerwG ruling of 19 May 1998: in this case, the plaintiff, a nature protection NGO, challenged the plan approval for the highway A 20, alleging that it would destroy an area qualifying for a bird protection as well as for a Special Protection Area-site under the Habitats Directive. The BVerwG acknowledged that the protection requirements of the Bird Directive had direct effect. The practice of Austrian courts also reflects the application of the Waddenzee/Kraaijeveld doctrine in cases related to the thresholds for implementation of the EIA Directive.57 In the Netherlands, the case law on the Kraaijeveld doctrine is accepted and applied by the Council of State without reservation, although it seems to be sometimes applied incorrectly at the district court level.58 Irish courts have also produced examples of application of the Waddenzee/Kraaijeveld doctrine. Among those stand the ruling Sweetman v An Bord Pleanála a.o. [2010] IEHC 53. In that case, the Planning Appeals Board had 55

4 C 5.95, BVerwGE 100, 238.

56 57

See footnote 9.

Cf. the ruling of the VwGH of 18 November 2004.

58

For further guidance on the Dutch case law, see Chapter 17 in this book.

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decided that a proposal for a ring road around Galway city did adversely affect the nature site using the Waddenzee test, but it decided that it did not infringe the Habitats Directive, because although it would result in the destruction of a small portion of the Burren, a Special Conservation Area, this ‘severe localized impact’ did not affect the integrity of the site. This decision was challenged in a judicial review and the High Court referred the question for a preliminary ruling to the ECJ. The Planning Appeals Board also uses regularly the Waddenzee test in its decision-making. In Belgium, this doctrine was applied in a case where the Council of State annulled a Ministerial Order (1999) concerning the capture of finch, because, by allowing that capture, it did not respect the boundaries of the discretionary powers given to the MS by the Birds Directive (Art. 9(1)).59 In Spain, Kraaijeveld has been mentioned by the Supreme Court in at least three occasions concerning EIA cases mainly to affirm that the scope of Directive 85/335 is broad.60 The Audiencia Nacional has also mentioned this doctrine by holding that the public authorities are under the obligation to carefully examine if an Annex II project is likely to have significant environmental effects (judgment of 29 October 2010, appeal 651/2008). Kraaijeveld has also been mentioned by the High Court of the Autonomous Community of the Canary Islands in several rulings.61 However, when courts invoke Kraaijeveld, they just mention this case in the middle of other references. Therefore, there is no ‘substantive’ or autonomous reception of this doctrine.



2.4 The ‘Inter-Environnement’ Doctrine

The first ECJ formulations of the direct effect doctrine involved directives whose transposition deadlines had expired. Only from that date could direct effect be invoked by litigants. Until that date, direct effect was a kind of ‘sleeping beauty’, and it could not be activated, because the MS still had the time, the opportunity and the discretion to implement the directive. However, in Inter-Environnement Wallonie 62 the ECJ ruled that during the transposition period of the directive MS must refrain from taking any measures which are likely to seriously compromise the accomplishment of the result prescribed by the directive. Furthermore, national courts are empowered to analyse whether this is the case, and to derive the pertinent legal consequences. This is clearly an important element of the direct effect which goes much further than the initial formulations of this doctrine. It must be said that this dimension of the direct effect doctrine does not seem to be very frequent in the daily working of national courts. For instance, 59

Council of State, nº 113.105, 2 December 2002, TMR 2003, 292-297.

60

Rulings of Supreme Court of 16 December 2004, appeal 4723/2001; of 15 March 2006, appeal 8394/2002; and of 20 December 2006, appeal 765/2004).

61

Judgment of 15 January 2010, appeal 200/2009; judgment of 7 April 2008, appeal 1381/2003; judgment of 15 October 15 October 2008, appeal 883/2006).

62

Case C-129/96 Inter-Environnement (1997) ECR I-7411.

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no case showing a clear application of this principle has been identified in Austria, Denmark, Hungary, Ireland, Slovenia or Spain. However, some jurisdictions show a slight application of this doctrine. Of course, one must begin by Belgium, for a Belgian court submitted the preliminary ruling which eventually led to the ECJ case in Inter-Environnement Wallonie. After the ECJ ruling, the Council of State annulled certain provisions of an Executive Order of the Walloon Government (passed in 1992) that was found to be in violation of some directives which should have been transposed in domestic law in the course of 1993.63 One may support the view that this is the most genuine application of this doctrine by a domestic court. In this case, however, the Belgian Council of State could rely on a previous ECJ ruling establishing the doctrine. In other cases, the responsibility of the court is high, as the national court has to perform a double intellectual exercise: first, it must ascertain whether the national rule or measure is in conformity with a directive whose transposition period has not expired yet. Second, it has to assess to which extent that rule or measure is likely to jeopardize the accomplishment of the objectives set by the directive. On the other hand, and this question should not be undermined, there may be many problems to apply this doctrine in those countries where the control of purely ‘legislative’ acts (Parliamentary legislation) is strictly reserved to a special organ, such as the Constitutional Court or Council, because in those cases locus standi is usually reserved to the other political branches of government, to political parties, to a number of members of Parliament, and so on. In those countries (such as Spain) the possibilities for the Inter-Environnement doctrine to take place are seriously limited. It is true that the ECJ, in its seminal Boxus decision,64 has opened an impressive door to the possibility (or even the necessity) for the domestic court to control those legislative acts in the environmental field, even if they lack those powers under national constitutional and procedural law. However, the ‘traditional culture’ is still very strong in the MS judiciaries and one should not expect too many actual applications of the Boxus doctrine by national courts. Of course, the Inter-Environnement doctrine may very well be applied in challenges targeting administrative regulations, or governmental plans of any sort which can be annulled by the administrative courts. For instance, in Portugal, although this principle was not explicitly raised or invoked in court, it was taken into account in the administrative procedures during the preparation of the National Program for the Territorial Planning Policy, in 2003 (the SEA Directive had not been transposed yet). In the Netherlands, the Council of State has applied these doctrines in several cases involving the Habitats Directive.65 In German courts, this doctrine has been only applied in cases concerning potential but no yet designated 63

Council of State nº 92.669, 25 January 2001.

64 65

Ruling of the ECJ in Case C-128/09 Boxus (not yet reported in the ECR).

See, among others, the ruling of 11 July 2001, MR 2001/38.

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Special Protection Area-sites under the Habitats Directive.66 Citing the ECJ in case C-129/96 (Inter-Environnement Wallonie) the BVerwG ruled that the principle of ‘Vertragstreue’ (bona fide treaty compliance) required a MS not to compromise the goals of a directive during the term set for transposition. In France, the Council of State has asserted that national authorities ‘can not legally take, as stated by the ECJ (C-129/96) during the period specified by the Directive, measures liable seriously to compromise the result prescribed by the Directive’.67 In this case, however, the Conseil d’État rejected the request of the association for annulment of a decree regulating the technical limitations and discharges requirements of nuclear installations.



2.5 Other Manifestations of the Direct Effect of Directives in the Environmental Arena

2.5.1 ‘Inverse’ Direct Effect

Direct effect is, a rule, understood as a weapon or a litigation argument in favour of the individual, used against the State or against an emanation of it (‘vertical’ direct effect). This means that a public authority cannot invoke a non-transposed directive against an individual and thereby require him to act in conformity with the directive, where the obligations contained in the directive have not yet been implemented in the national legal order. For instance, if an environmental directive establishes that a given activity needs a licence and the directive has not been incorporated in country X, the environmental agencies of that MS cannot require the individual to have this license. On the other hand, as a general safeguard in favour of individuals, there is a well-established principle that a non-incorporated directive cannot by itself be the sole ground for the national authorities to impose a penalty or a sanction on the directive-breaker. In this case, the existence of a national, implementing legislation is necessary.68 This understanding seems to be well known in the domestic jurisdictions, but the truth is that very few cases on the matter have been retrieved in the MS that have been studied. For instance, Dutch courts have a clear idea of this prohibition, as the activity of the Dutch Council of State shows.69 On the other hand, in a French case brought in 2009 before the Council of State, a company requested the suspension of a decision concerning the market authorization for a product, and underlined the principle that a member state may not invoke against an individual an 66 67

See for instance BVerwG, judgment of 19 May 1998, 4 A 9.97, BVerwGE 107, 1.

Council of State of the 10 January 2001, n°. 217,237, France Nature Environment.

68

On this development, see the following decisions of the ECJ: Case 80/86 Kolpinguis Nijmegen BV [1987] ECR I-3969; Case 14/86 Pretore di Salò [1987] ECR 2545; and Case C-168/95 Luciano Arcaro [1996] ECR I-4705.

69

Council of Sate 8 February 2010, LJN: BL4179.

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obligation derived from a EU directive before its transposition into national law. Given the serious doubt on the legality of the decision, the Conseil d’État decided to suspend the administrative decision.70 In Italy, it is worth mentioning a ruling by the Regional Administrative Court of Veneto.71 In that case, the Municipality of Padua adopted stricter limits to the circulation of vehicles than those established by EU law as implemented into national law, a measure that was contested by local residents. The Administrative Court stated that a Municipality cannot apply the provisions of a directive, when it has not been implemented into national law. Finally, in the UK this principle was raised in the case Wirral Borough Council v Brock plc [2004] EWCA Civ 1611, although it had not a decisive impact on the final ruling. In that case, a local authority tried to require a private applicant to submit an Environmental Statement in accordance with the European applicable directive, even though the national transposing regulations by that time did not implemented correctly the European rule.



2.5.2 ‘Horizontal’ Direct Effect

As noted supra, direct effect is (as a rule) used against the State or against an emanation of it (‘vertical’ direct effect). Contrary to EU Regulations, Directives are not supposed to produce horizontal direct effect, that is, effects in the relations between private parties. Therefore, if a MS has not taken national measures to implement a directive, this situation cannot create obligations for private individuals vis à vis other individuals. Accordingly, the provisions of an EU directive cannot be invoked in the context of a litigation involving private individuals. This general rule was proclaimed by the ECJ in its seminal ruling in Marshall,72 but it is subject to some exceptions.73 At this point, it should be recalled that, as a rule, EU directives in the environmental sector trigger governmental action, which in a more or less ‘aggressive’ manner have an impact on the juridical sphere of individuals or firms. Therefore, it is very difficult for environmental directives to lay down the necessary factual scenario where individuals might invoke, in an ‘inter privatos’ litigation, the provisions of a non-transposed directive, or a directive that has been transposed incorrectly by the regulatory or legislative powers of the State. This crucial ‘architectural’ element is the one which could justify that legal research has not retrieved significant cases in this area among the several MS. For the most part, no cases have been published in which private citizens have tried to enforce not implemented EU environmental legislation against other 70 71

State Council of 22 January 2009, n° 323598, Compagnie Phytorus.

See Regional Administrative Court (T.A.R.) Veneto, Venezia, Sec. III, 10 March 2005, No. 850.

72 73

Case 152/84 Marshall I (1986) ECR 737.

Under the principle of consistent interpretation and the Marleasing doctrine (Case C-106/89 [1991] ECR I-4135) a directive may have certainly an impact in civil and private law, resulting in a legal change of the framework of relations among private parties.

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citizens or companies. This is the case in most countries, such as Austria, Denmark, Hungary, Germany, Ireland, France, Slovenia or Spain. Domestic courts have sometimes recalled this fundamental principle. For instance, in a case decided by the Portuguese Supreme Court of Justice in 2006,74 on the application of the national and the European rules on landfills for industrial wastes, the court clearly said that before transposition, the European directives cannot produce direct horizontal effects but only vertical ones. The Marshall doctrine has also been consistently applied by Dutch courts.75 However, the fact that EU environmental directives do not have ‘horizontal’ direct effects does not mean that a given legal proceeding where direct effect has been declared could not have any indirect repercussion or ‘collateral’ impacts on third-parties, that is, on individuals or firms which were not technically ‘parties’ in the main proceedings but whose rights and expectations will be seriously affected by the ruling. This is very clear in the example of a challenge, filed by an NGO, against a license granted by an agency to a company. The challenge invokes the direct effect of a non-transposed directive, or of a directive that was transposed incorrectly. The court accepts the challenge and declares that the invoked directive has direct effect. As a consequence of the ruling, the license is eventually quashed by the court. In this scenario, the ruling results in a serious detrimental effect for the licensee, who ends up suffering ‘collateral damages’. In the case law of the ECJ, there have been some cases where the potential direct effect of environmental directives has had ‘indirect’ or ‘collateral’ horizontal effects. This was the case, for example, where a third party such as a license holder was clearly potentially affected by the decision, as it happened in the Delena Wells case.76 The reception of this scenario in the several domestic jurisdiction is very mean, if any. No cases with such effects have been retrieved in Hungary, Portugal or Slovenia. However, some jurisdictions show some examples of these collateral effects of the ‘direct effect’ doctrine, even if in most cases courts do produce such decisions without even mentioning the Wells case. Thus, in Austria this has been the case in several decisions of the Umweltsenat and the Administrative Court concerning the direct effect of the EIA Directive resulting in an obligation to apply the licensing provisions of the Austrian EIA Act. Furthermore, in Belgium the Council of State annulled a permit that was delivered in violation of an environmental directive, this resulting in a clear affection to a third party who would lose his right to operate a facility.77 In Denmark, for a certain time, this concept has been in fact the basis for the many cases on fish farms, pig farms, cattle farms and mink farms. However, this is not expressed explicitly by Danish courts and the Nature and Environmental Appeal Board. 74 75

Case 5B3661 decided on the 26 January 2006.

See: Dutch District Court Assen of 11 April 1989, Drenthe Crows (1989) M&R 372-374.

76 77

Case C-201/02 Wells [2004] ECR I-723.

For instance, see Council of State, nº 99.794, 15 October 2011, TMR 2001, 165-171.

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The German jurisdiction also shows some other examples in this area. Thus, in the domain of access to environmental information, attention should be paid to the ruling of the High Administrative Court of the State of Hesse (Hess.VGH), of 16 March 2006.78 In that litigation, three companies based in the vicinity of the Frankfurt Airport were denied access to a data base operated by the competent Land authority. This data base contained a collection of arguments against the enlargement of the airport as well as answers given by the operator of the airport, a company under private law. The companies filed a complaint at the Hess.VGH and this court granted the requested access. At the time of the case, Directive 2003/4 had not yet been transposed into the Land legislation of Greater Hesse. The court directly applied the directive, including the access right itself as well as possible exceptions. The court did not address the question whether the fact that the operator of the airport was negatively affected by the disclosure of its comments excluded the direct applicability of the directive. In Spain, one can see an example of these ‘indirect’ or ‘collateral’ horizontal effect in the judgment of the Spanish Supreme Court of 31 March 2009 (appeal 5119/2006). This case concerned the authorization for the execution of an installation for the storage of chemicals. The authorization was challenged by an NGO due to the lack of an EIA. The Court held that the directive was directly applicable and that the authorization should have been quashed by the public authority concerned. Therefore, the license holder was clearly and negatively affected by the contested decision. Finally, in the UK there are several good examples of this special type of direct effect. The first is represented by the case R (on the application of Baker) v Bath and North East Somerset Council.79 The claimant sought to quash three planning permissions granted by the local authority for two waste management sites run by a company (Hinton Organics). The case turned on the question of whether the national implementing regulations for environmental assessment have properly applied the EIA Directive. The court found that the Regulations did not properly implement the directive and quashed all three permissions. The second case analyses the possibility of direct effect to take place in relations among individuals: R v Durham County Council Ltd and others, ex parte Huddleston [2000] All ER (D) 297. The decision of a local authority to grant a mining permission was challenged by a local resident and the question was whether the application of the direct effect doctrine would alter the legal relations between the owner and the local citizen or was raised. The court noted ECJ that requiring the developer to obtain a permission before he proceeded with a development did not make his existing conduct criminal or affect private relationships in the way prohibited by the ECJ.

78

2 Q 590/06.

79

[2009] EWHC 595.

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2.6 Direct Effect, Administrative Agencies and the Costanzo Doctrine

In its 1989 Fratelli Costanzo ruling,80 the ECJ declared that national authorities (at the national, regional or even local level) have the positive obligation to conform to the provisions of a directive, even against the provisions of the national legislation that are not in accordance with the directive. Under that holding, all authorities and bodies of the national public administration and governmental structures (either central, regional or local) are obliged to apply a directive after the transposition period, even if that norm has not been incorporated into the national legal order, or has been transposed in a defective way.81 Consequently, this is a powerful argument which helps disconnecting the abstract obligation of a national authority vis-à-vis a non-incorporated directive (or transposed in a defective manner) with the issue whether that norm does actually confer ‘rights’ on ‘individuals’ or not. As a matter of fact, Fratelli Costanzo is a case involving intricate and farreaching questions, with a clear interconnection between EU law and the domestic profile of administrative agencies under the national constitution. It also leaves on the shoulders of administrative agencies a task which is usually performed by the courts. On the other hand, administrative agencies are usually bound by the domestic, constitutional rule of ‘principle of legality’ (principe de légalité, principio de legalidad). Furthermore, governmental officials (unlike courts) are strictly organized under the principle of hierarchy, which conditions their ‘freedom’ to identify what the ‘legality’ is or should be (at least when this appreciation leads the agency to disregard a national statute or regulation that has been published in the national official journal). On top of that, the agency ruler cannot formulate preliminary rulings to the ECJ in order to clarify his doubts. It is, therefore, doubtful to imagine that the regular bureaucrat has got a sophisticated legal education, empowering him to carry out complex analysis that would lead him to disapply its internal legislation, something which could open the door to a legal challenge in the domestic courts. Definitely, this is too risky, and the assumption that this is done on a regular way by thousands of agencies across the EU is far too optimistic.. As a consequence, there are strong 80

Case 103/88 Fratelli Costanzo [1989] ECR I-1839. The case involved a bidding and tender procedure for a public works contract carried out by the City Council of Milano, with the view of refurbishing a municipal football stadium. The ECJ held that the local body should have applied the European directives on public procurement instead of the Italian regulations on the matter, therefore the construction firm ‘Fratelli Costanzo’ (the plaintiff in the domestic court case) should have not been excluded from the tendering procedure.

81

Until Costanzo, the ECJ had developed the doctrine of direct effect having in mind the national courts as ‘addressees’ of this principle. After this seminal ruling, the bodies that are bound by the direct effect are not only the bodies of the judicial branch, but also the thousands of administrative agencies working at different territorial level in all the MS.

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sociological and cultural features preventing the Fratelli Costanzo doctrine to take place frequently. The regular governmental official, working in a normal governmental position, will be normally reluctant to set aside a provision of national law on the arguable ground that it contradicts a murky and ‘foreign’ European legal rule. There is an additional problem concerning the application of the Fratelli Costanzo doctrine. An agency may decide not to apply a national provision in the light that it contravenes EU law, but subsequently this decision may be challenged in the competent national court, which may have a different opinion, thus quashing or annulling the administrative decision. The situation may be even more inconvenient for the agency, if there is a later ruling by the ECJ according to which national law was not in contradiction with EU law. This is an additional argument in favour of the agency to keep a ‘conservative’, instead of a ‘proactive’ approach to these questions. Another implication of Costanzo would apply to ‘administrative passivity’. That is, in a MS where a directive has not been incorporated, or transposed in a defective manner, all the governmental agencies working in the environmental domain, after the transposition period, do theoretically require permits, do conduct inspections, and do close firms and corporations which pollute beyond the ‘clear, precise and unconditional’ standards set by the ‘non-transposed’ directive. This is certainly not the case, as administrative agencies need an ‘enabling act’ approved by the national legislator or regulator, as a domestic constitutional feature. These considerations are certainly the reasons why the Fratelli Costanzo doctrine has almost never been invoked, claimed or used in domestic courts in environmental cases, according to the legal research performed in the countries covered by this study. However, it seems that in Denmark this principle has been used by Danish courts and the Nature and Environmental Appeal Board in cases on Natura 2000 impact assessment, although not in a clear or explicit way. In the Netherlands there is also an example of application of the Costanzo test in the decision of the Council of State of 26 November 2003 involving the application of the end-of-life vehicles Directive (2000/53) by provincial authorities.82 Noticeably, in Belgium the Fratelli Costanzo doctrine is applied in the Flemish Region for Annex II Projects of the EIA Directive that do not meet the threshold defined in the Flemish EIA legislation (Belgium does not comply with EC law in this domain). Thus, public authorities are requested by means of an administrative circular to apply directly the said directive for the mentioned projects.

82

 M en R 2004/4, nr. 39. For a deeper analysis of the challenges triggered by Costanzo in the practice of the Dutch Council of State, see Chapter 17 in this book.

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3 State Liability



3.1 State Liability in the Context of Environmental Protection

State liability for violations of EU law is another key example of doctrines developed by the ECJ, unsupported by written provisions in primary or secondary EU law.83 State liability is connected to the doctrine of direct effect, and the first doctrine is a natural corollary of the second. The seminal Francovich case, adjudicated in 1991,84 serves as the legal ground for this doctrine, which has had a revolutionary impact in many MS jurisdictions. In that case, the Court established that, when a MS has failed to transpose in due time an EC directive and when this failure to implement has caused loss or damages on the citizens, they may claim compensation as long as the directive conferred specific rights on them, identifiable in its wording, and that there was a causal link between the state’s failure to implement the directive and the loss suffered.85 Like in the case of direct effect, the doctrine of State liability has been the object of further elaboration on the part of the ECJ, on the basis of a series of wellknown decisions, delivered in reply to a set of preliminary rulings triggered by domestic courts.86 Liability of ‘the State’ (or of the government, since the end of the day the executive branch is the only one having monies to pay compensations) for breach of EU law usually crystallizes in the context of certain typical facts and circumstances which, in a nutshell, may be summarised as follows: (a) there must be a breach of EU law on the part of a MS (for instance, a directive has not been transposed within the deadline); (b) there must be a damage on the part of individuals or legal persons; (c) the need of a causal link (causation link) between the infringement of EU law and the damage claimed; (d) the violation of EU law must be sufficiently characterised. A decisive feature of this doctrine is that there is no substantial regulation of ‘State liability’ of the MS under EU law. There are no ‘written’ EU rules on the subject. Consequently, ‘state liability’ for breach of EU rules is a broad notion that must be channelled through the procedural and remedial system of the MS: 83

For an overall presentation of this principle, see, in general: Chalmers/Davies/Monti (2010) 301-311; Craig/De Búrca (2011) 241-255; T.C. Hartley (2010) 248-258; Horspool/Humphreys (2010) 215-235; Tridimas (2006) 498-560.

84 85

Cases C-6 and 9/90 Francovich and Bonifaci v Italy [1991] ECR I-5375.

In Francovich, the failure by Italy to transpose an EU Directive on the establishment of mechanisms protecting workers from the risk of employer´s insolvency had produced damages on clearly identifiable citizens: in that case, workers who could not get their redundancy compensations because the firm they were working for was declared bankrupt.

86

Case C-334/92 Wagner Miret [1993] ECR I-6911; Case C-91/92 Faccini Dori [1994] ECR. I-3325; Case C-392/93 British Telecommunications [1996] ECR I-1631; Case C-5/94 Hedley Lomas [1996] ECR I-2553; Case C-178/94 Dillenkoffer [1996], ECR I-4845; Joined Cases C-46/93 and C- 48/93 Brasserie du Pêcheur and Factortame III [1996] ECR I-1029.

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procedure and substantial rules, time limits, standard for liability, etc.87 Despite this lack of substantive regulation on the part of the EU, a comparative perspective shows that ‘State liability’ may embody two basic situations: (a) administrative action or inaction on the part of governmental agencies, which is found to be in breach of EU law and (b) non-transposition (or bad transposition) of a directive, which usually involves passivity of the legislative branch: liability of the State acting as a legislator. In most EU member states, State liability for ‘administrative’ action or inaction does not represent a real novelty, since domestic legal traditions do recognise, as a rule, the possibility for the citizens to claim for compensation when administrative agencies produce damages on them. This is generally subject to some requirements, such as causal link, illegality of the decision, may be even a personal misconduct on the part of a governmental official ( faute personnelle, in the old French tradition), etc. Since EU law is fully integrated in the national legal systems, the breach of a EU rule should not represent a real difference as compared to the breach of a domestic provision. Therefore, when a national agency violates a EU rule, the domestic provisions and principles on governmental liability apply without much difference or specific difficulty. The second scenario (liability of the State as a legislator) has certainly been more difficult to digest on the part of the national jurisdictions, due to serious constitutional constraints.88 Therefore, this second prong of the State liability doctrine is certainly the one which has represented a more revolutionary impact on the MS legal systems. In the environmental arena, State liability has also specific features and encounters specific operational obstacles, even harder to circumvent than those afflicting the doctrine of direct effect. In reality, the key element to determine the liability of the MS consists in the fact that the claimant has to suffer ‘damages’, resulting from the activity or inaction (either of administrative or regulatory nature) of the member state. In addition, the infringed European 87

In some countries, this liability of the State is governed by civil or private law, and consequently it is proclaimed by civil courts. In other EU countries (especially those following a tradition of Droit Administratif ), this liability is declared by the administrative courts. Furthermore, the European case law understands state liability in broad terms, whose concretisation is left to the internal features on the domestic legal system (principle of autonomy).

88

In many MS, the very possibility for a court to pronounce the responsibility of the State in the case of lack of action or ‘improper’ action of the legislative branch encountered serious difficulties. First of all, substantive obstacles, as many countries did not contemplate such possibility for constitutional reasons: the supremacy and sovereignty of the legislature; the inherent power of the State to modify the internal legal system, independently of the subjective legal positions of the citizens; the existence of division of powers constraints, etc. Second, for procedural reasons: which court should have powers to make that judgement (constitutional courts?, supreme courts?, ordinary courts?, etc.); which was the extent of such powers (declaratory judgement, an injunction addressed to the Parliament, etc?), which domestic rule should be applied if there was no specific provision on the subject?, which ‘damages’ should be compensated?, etc.

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rule must recognise ‘rights’ (not simple expectations or diffuse interests) on the citizens. These two crucial requirements are hard to meet in the domain of environmental protection. As noticed supra, in most environmental cases the citizens cannot claim to have ‘rights’ conferred on them by the EU provisions, for most EU rules consist of directives aiming at protecting diffuse or general, societal goods (clean air, breathable by everyone; pure water, that everyone can drink; protected eagles, that everyone may enjoy, etc.). No citizen or group of citizens are singled out by the directives as technical ‘recipients’ of the protection awarded by the EU rule. For that structural reason, the citizens, potentially affected by a violation of an environmental directive, will have serious difficulties to demonstrate that their rights were disregarded by the MS violation of that rule (by not transposing the directive or by doing that incorrectly). Furthermore, there must be a clear causation link between the ‘environmental’ action or inactivity and the damage suffered by the citizen. In the field of environmental protection, this requirement is also difficult to find. The main reason is that it is hard to imagine a situation where someone may claim a real, actual and measurable damage, fully complying with the Francovich criteria. In that and other ECJ rulings, there were a clear and distinguishable group of individuals, affected persons, who were able to claim monetary or patrimonial damages or detrimental situations connected to a non-implementation of a EU provision. However, in most environmental cases, it is difficult that all these requirements take place in a combined manner.



3.2 State Liability in the Environmental Practice of National Courts The analysis of court practice in the MS reinforces the previous considerations. In most of the countries that are included in this collective book, the research conducted has only identified one reported case where courts have declared the liability of the State in the domain of environmental law (see infra). This fact is even more conclusive, if one realises that, in other sectors or domains of the national legal orders, State liability for infringement of EU law (even responsibility of a ‘normative’ nature) has been regularly recognised by domestic courts, for instance, in the tax law arena.89 89

For example in Spain, it is worth mentioning the Supreme Court Ruling of 22 December 2010. In that case, a corporation working in the field of environmental services called ‘environmental services of Galicia’, (Servicios ambientales de Galicia) claimed indemnities for the defective transposition of an EU Directive (the Sixth Directive on the Value Added Tax) by means of the domestic Act on the VAT. The key point was that the domestic legislation did not allow some fiscal deductions on this tax, which were indeed allowed under the Sixth Directive. In its ruling, the Supreme Court acknowledged that the domestic rule did not incorporate correctly the Sixth Directive and, citing extensively the Francovich and Factortame rulings, recognized the liability of the State (responsabilidad del estado legislador) and awarded the claimant a high monetary indemnity (more than €1,4 million).

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In some countries, it is worth mentioning that State liability in connection with EU law violations still triggers procedural problems,90 especially if this doctrine is not traditional in the national legal system. For instance, in Austria, the Constitutional Court, in a 2009 decision, declared itself to be incompetent to decide on a state liability claim, which invoked the national legislator’s failure to adequately implement (among others) the EIA Directive in connection with the enlargement of the Vienna International Airport (VfSlg 18.787). The Constitutional Court limits its competence to such cases where state liability is directly rooted in the legislator’s action or failure to act. It is not sufficient that an administrative or judicial violation of EU law be ‘compellingly pre-determined’ by the legislator. In those cases, the ordinary courts retain their jurisdiction over liability claims. Other internal features of the domestic legal system render the possible application of the State liability regime for breaches of EU environmental laws. It is not infrequent that national law regulates State liability in a restrictive way, asking for requirements that are hard to meet (time-span for claims, ‘objective’ or ‘subjective’ requisites, recognition of liability of the Executive branch but preclusion of that of the legislative branch, etc.). In other cases, beyond controlling statutes on the matter, the case law of the national court of last resort imposes additional burdens or a restrictive understanding of state liability. For instance, in Croatia the domestic legal system accepts, as a rule, an approach of objective State liability, independent of the civil servant’s fault doctrine. As a matter of a general, constitutional rule, the state shall be liable to compensation for the damage caused by an illegal or irregular act of a public authority, the question of whether the infringement has subjective fault being irrelevant.91 However, the national Supreme Court understands that State liability is not objective in nature, that is, it needs a wilful conduct from a public authority, contrary to the law. This restrictive interpretation, though, is contrary to the case law of the domestic Constitutional Court.92 Therefore, State liability for violation of EU environmental rules is even harder to satisfy in this national jurisdiction. Apart from this general trend of ‘ignoring’ the Francovich rule in the environmental area, research has retrieved that in some countries adjudications have a more or less close connection with environmental protection. Thus, in the British case Cooper v Attorney-General, 93 the Court of Appeal considered a 90

In the case of Ireland, indeed, there are statutory exemptions for some public authorities (e.g. EPA) carrying out their duties and powers.

91

The Constitutional Court has stated that primary and direct State liability is a special expression of the rule of law, which is one of the highest values of the constitutional order of the Republic of Croatia prescribed in Article 3 of the Constitution (decision of the Constitutional Court of Republic of Croatia, U-III-2314/2006, 21 February 2007).

92

In its decision U-III-2314/2006, the Constitutional Court stated that such understanding is entirely unacceptable.

93

[2010] EWCA Civ 464.

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damages claim based on erroneous judicial decisions rendered in previous cases on environmental assessment (Köbler liability). The alleged errors included a failure to make a reference to the ECJ. However, the Court concluded that there had not been a sufficiently serious breach of Community law to justify a claim. In Denmark, in three environmental cases, the state liability doctrine has been tested regarding environmental law by Danish courts, although such liability was eventually not proclaimed, due to factual and procedural aspects of the cases, something which evidences, as noted supra, that state liability encounters many difficulties to crystallize in the national jurisdictions. In the first of the three cases, the Ministry at first was found liable under Danish law, but then the case was closed.94 In the other two cases causation was rejected.95 Therefore, the courts never came to a more detailed review of the conditions for State liability. France is the only country where a clear example of State liability for breach on EU environmental law has been identified. In that case, French courts were asked to solve disputes on State liability in the context of the excessive proliferation of green algae in Britanny, resulting from eutrophication of water.96 On the ground of a the request filed by several environmental NGOs for moral damage (préjudice moral) due to the presence of such algae, the Administrative Tribunal of Rennes recognised in 2007 the responsibility of the state for misconduct (carence) because of its deficiencies in the application of European and national regulations.97 The administrative tribunal of Rennes highlighted, in particular, the disrespect of the delay on implementing Directive 91/676/EC on nitrates. In the appellate procedure, the Administrative Court of Nantes confirmed the decision of the administrative tribunal of Rennes and ordered the state to pay compensation for moral damages to the four environmental NGOs that had brought the lawsuit.98



4 Conclusions

The precedent pages have tried to offer a general and crosscutting analysis on the actual reception of some key doctrines and principles of EU law in the narrow domain of environmental protection. In our view, the information herein provided and the data offered do allow drawing some general conclusions, which may be summarised as follows. 94

Eastern High Court, 18 January 2005. This case related to Directive 91/414, on the marketing of pesticides.

95

Supreme Court ruling of 20 May 2009 – published in UfR 2009.2203 ( a case concerning the former regulation 259/93 on shipment of waste) and Supreme Court ruling of 19 January 2010 – published in MAD 2010.137 (a case concerning the earlier Danish ban on use of can for beer).

96

On several occasions, the ECJ has condemned France for failing to meet its obligations in the field of water.

97

Rennes TA of 25 October 2007, n°. 0400630, 0400631, No. 0400636, No. 0400637, No. 0400640.

98

Administrative Court of Appeal of Nantes 1 December 2009, n° 07NTO3775.

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Firstly, the actual reception of the doctrines of direct effect and State liability is uneven among the different national jurisdictions. Direct effect and state liability have a different reception and impact the environmental case law of national courts. Several reasons may justify this disparity, which would need further empirical research: • the difference in the knowledge of these doctrines; • how frequently are they invoked in the domestic courts by litigants or lawyers; • the existence of ‘cultural’ or sociological features of the judicial process in the country, for instance: the understanding about the legal nature of directives; the average expediency and accuracy of the transposition of directives in the countries; how the legal system depicts the powers of the national courts; which place is recognised to EU in the legal system; etc; • how long the country in question has been a MS of the EU; • what specific training do courts and lawyers have on EU or environmental law. This is a crucial point, and the situation is far from being satisfactory. In Spain, for instance, many judges do not have a specific knowledge of EU environmental law, at least when they become law graduates, since environmental law courses are optional in most law schools; EU law is not a key element in the examination and recruitment procedure to enter the judiciary; etc. Therefore, public interest litigators play a significant role in the dissemination of EU environmental law doctrines, by using and invoking them in their claims. Second, there is a close connection between the principle of direct effect and domestic administrative law. Most EU environmental directives involve some sort of governmental action. Thus, national administrative agencies play the leading role in the actual implementation of directives: they must frame plans and programs, licence activities, grant different sort of permits and licences, etc. The principles mentioned above usually take place in the procedural scenario of individuals, firms or NGOs challenging prior decisions, plans or programs approved by the competent environmental or planning agency. On the other hand, many EU MS have a legal tradition of ‘Droit Administratif’, and their judicial power is structured in specialised jurisdictional tracks. They have specialised administrative courts that deal with the control of legality of decisions and regulations adopted by administrative agencies. These courts culminate in the ‘administrative’ jurisdiction of the Council of State (France, Belgium, the Netherlands, Greece, etc.) or in a specialised Chamber of the Supreme Court (Germany, Spain). Therefore, administrative courts have the main responsibility in ensuring that the principles of direct effect and State liability are dully applied and implemented. They are the real guardians of the effectiveness of those principles in the protection of the environment. Third, the direct effect doctrine is frequently invoked in national courts. The said courts commonly recognised direct effect and use this principle as a part of

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their arguments. However, references to EU law (directives) is seldomly made as ad abundantiam arguments, or as interpretive tools to construe national statutes or regulations. In some countries there are only few cases where the courts refer to EU environmental legislation as the sole basis for adjudication. Sometimes, this reluctance to go beyond pure national law is connected with the fact that the country has recently entered the Union. For what concerns the direct effect of Treaty environmental principles, the polluter-pays principle is the most frequently used by national courts, usually as an interpretative tool, or as an ‘ad abundantiam’ argument to scrutinise the adequacy of a national measure. Fourth, the directives for which direct effect has been recognised most frequently are the EIA and the SEA Directives, as well as the Birds/Habitats Directives. Then come waste and IPPC Directives. There is little reference to direct effect in other fields, for instance, emission or environmental quality standards. Fifth, the understanding of the requisites for direct effect present some divergences among certain MS. In some of them, the question whether the directive under scrutiny recognises rights for individuals does not play a significant role, while in other MS this is considered to be a key element. On the other hand, the ‘standard’ or classical meaning of direct effect is not unknown for national courts. However, more ‘sophisticated’ nuances of this doctrine, like the ‘inverse’ direct effect (as in the Kolpinghuis case) or the ‘collateral’ horizontal effect (as in the Delena Wells case) have a minor repercussion in the national courts practice. The same holds true with doctrines like those embodied in Inter-Environnement Wallonie, Waddenzee, and Costanzo, whose actual impact in domestic courts is very limited and uneven. In reality, the actual impact of those Luxemburg doctrines in the day-to-day practice of national courts seems to be much more limited and humble than the attention, time and discussions devoted to them by academics and scholars. We take for granted that every radical development launched by the ECJ has an immediate and comprehensive reception in the national judiciaries, while reality seems to be far from this assumption. Sixth, the application of direct effect among national constitutional courts is still uneven: direct effect is massively used by the Belgian constitutional court to review federal and regional acts of parliaments by the Court, while on the other hand, the Spanish constitutional court has consistently refused to apply EU law in the review of legislative acts. Finally, State liability arguments for infringements of EU environmental rules are rarely produced in national courts, and only exceptionally proclaimed. The reasons for that situation are explained at point 3.1 supra.

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Bibliography • D. Chalmers, G. Davies & G. Monti, European Union Law, 2nd ed. (Cambridge 2010). • P. Craig & G. De Búrca, EU Law. Text, cases and materials. 5th. ed. (Oxford 2011). • T.C. Hartley, The foundations of European Union Law, 7th ed. (Oxford 2010). • M. Horspool & M. Humphreys: European Union Law, 6th ed., (Oxford 2010). • J.H. Jans & H.H.B. Vedder, European Environmental Law. After Lisbon, 4th ed. (Groningen 2011). • K. Lenaerts & P. Van Nuffel, European Union Law, 3rd ed. (Sweet&Maxwell 2011). • T. Tridimas, The general principles of EU Law, 2nd ed. (Oxford 2006). • B. de Witte: ‘Direct effect, primacy and the nature of the legal order’. In: P. Craig & G. De Búrca, The evolution of EU Law, 2nd ed. (Oxford 2011). • D. Wyatt & A. Dashwood, European Union Law, 6th ed. (Hart Publs 2011). • F. Ermacora: ‘The Right to a Clean Environment in the Constitution of the European Union’, in: J. Jans (editor), The European Convention and the Future of European Environmental Law (Groningen 2003). • L. Krämer, ‘The Implementation of Community Environmental Directives within Member States: Some Implications of the Direct Effect Doctrine’, Journal of Environmental Law, vol. 3, 1 (1991), pp. 39-56. • R. Macrory (editor), Principles of European Environmental Law (Groningen 2004).

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1 Introduction

Judicial review of the constitutionality of European environmental law encompasses two completely different features. The first is the review of the validity of European environmental law, in the light of higher legal norms, by the Court of Justice of the European Union by way of preliminary rulings and on actions for annulment, brought by a Member State against the European Parliament and/or against the Council or brought by one European Union institution against another. The second is constitutional review of European environmental law by national courts in the light of their national constitutions. As the first form of review is governed by the case law of the CJEU, it is of course uniform for the whole EU area. That cannot be said of the second form of review, since that is dependent on the various constitutions of the member states and how these are interpreted by the national judiciaries. The approaches followed on the national level vary considerably from one member state to another. Another constitutional problem we address in this contribution is the implementation of European environmental law in federal member states and the complications that this may cause.



2 Constitutional review of European Environmental Law by the Court of Justice

2.1 A Constitution that does not bear such name

Although the Treaty establishing a Constitution for Europe, signed on 29 October 2004, never entered into force because some member states were unable to ratify it, this does not mean that the EU is functioning without a constitution. As early as 1986, the European Court of Justice characterized the Community Treaties of the time as a ‘constitutional charter based on the rule of law’.1 Later on, the ECJ referred to the ‘constitutional principles of the EC Treaty’ – ‘which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty’ – and the ‘very foundations of the Community legal order’ which is ‘internal and autonomous’,2 as well as the ‘constitutional status’ of the general principles of Union law.3 The absence of a single constitutional document for the European Union does not imply the absence 1

Case 294/83 Les Verts v Parliament [1986] ECR 1365, para. 23; Lenaerts (2010) 295-315; Lenaerts & Van Nuffel (2011) 819-820; Jacqué (2010) 316-323; Alemanno (2010) 324-332; Walker (2010) 333-342.

2

Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation [2008] ECR I-6351, paras. 285, 304 and 317.

3

Case C-101/08 Audiolux SA and Others [2009] ECR I-9823, para. 63.

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of a constitution. 4 In fact, the TEU, the TFEU and the Charter of Fundamental Rights of the EU present together more than one characteristic of a Constitution in laying down the basic values and principles5 of the Union, in setting up the institutional structure of the EU and assigning competences to the different institutions, in defining objectives and principles of the various policies of the EU and in providing fundamental rights for its citizens.6



2.2 Fundamental Values and Rights

The basic treaties of the EU, together with the Charter of Fundamental Rights, contain a catalogue of fundamental rights,7 as most national constitutions do. According to Art. 2 TEU, the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.8 The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which has the same legal value as the Treaties.9 Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights10 and Fundamental Freedoms as they result from the constitutional traditions common to the Member States shall constitute general principles of the Union’s 4

Rosas & Armati (2010), 3. This was also recognized by the German Bundesverfassungsgericht that already in 1967 called the EEC Treaty ’in some way the Constitution of the Community’, Pernice (2001) 53.

5

Von Bogdandy (2010) 11-54.

6 7

Lenaerts & Van Nuffel (2011), 22-23, 68-69.

Lenaerts & Van Nuffel (2011) 844-851.

8

Lenaerts & Van Nuffel (2011) 107.

9

According to Article 1 (1) of Protocol No 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the UK, the Charter does not extend the ability of the EU Court, or any court or tribunal of Poland or of the UK, to find the laws, regulations or administrative provisions, practices or actions of Poland or of the UK inconsistent with the fundamental rights, freedoms and principles that it reaffirms. See on this: Rosas & Armati (2010), 155-156; Lenaerts & Van Nuffel (2011) 830-833.

10

The ECJ held e.g. in relation to Article 8(5) of Council Regulation (EC) 338/97 on the protection of species of wild fauna and flora by regulating trade therein, that the presumption of innocence resulting in particular from Article 6(2) of the ECHR is one of the fundamental rights which, according to the Court’s settled case law, reaffirmed in the preamble to the Single European Act and in Article 6(2) of the EU Treaty, are protected in the EU legal order The presumption of innocence is intended to ensure that no-one is declared guilty, or treated as being guilty, of an offence before his guilt has been established by a court of law (see paragraph 43 of the judgment of the European Court of Human Rights of 28 October 2004 in Cases 48173/99 and 48319/99 Y.B. and Others v Turkey) (Case C-344/08 Rubach [2009] ECR I-7033, paras. 30-31).

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law (Art. 6 TEU).11 As far as those ‘constitutional traditions common to the Member States’ are concerned, it seems that only constitutions or constitutional principles that do not violate EU law can be taken into consideration, because the principle of primacy applies also to national constitutions.12 In view of the differences which exist between the national constitutions, particularly in a Union of 27 Member States or more, it is not surprising that the ECHR and the case law of the European Court of Human Rights have proved more useful as guidelines than the constitutional traditions common to the Member States.13 Furthermore, in all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to, rather than replacing national citizenship (Art. 9 TEU). The Charter contains a catalogue of fundamental rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the ECHR, the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice and of the European Court of Human Rights. The provisions of this Charter are, as is stated in Art. 51 of the Charter, addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They must therefore respect the rights, observe the principles and promote its application in accordance with their respective powers and respect the limits of the powers of the Union as conferred on it in the Treaties. Art. 52 states that any limitation on the exercise of the rights and freedoms recognized by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others. Rights recognized by the Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. In so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the Convention, without preventing EU law from providing more extensive protection. Art. 52(4) provides that in so far as the Charter recognizes fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

11

Lenaerts & Van Nuffel (2011) 827-829; 851-861; Jans & Vedder (2011) 29-31.

12 13

Para 3.1 below.

Rosas & Armati (2010), 151.

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2.3 The CJEU’s monopoly to declare legal acts of the EU invalid

According to the CJEU, national courts may consider the validity of an EU act and, if they consider that the grounds put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the measure is valid. By taking that action they are not calling into question the existence of the EU measure.14 On the other hand, those courts do not have the power to declare acts of the EU institutions invalid. The main purpose of the powers accorded to the CJEU by Art. 267 TFEU is to ensure that EU law is applied uniformly by national courts. That requirement of uniformity is particularly imperative when the validity of an EU act is in question. Divergences between courts in the Member States as to the validity of EU acts would be liable to place in jeopardy the very unity of the EU legal order and detract from the fundamental requirement of legal certainty. The same conclusion is dictated by consideration of the necessary coherence of the system of judicial protection established by the Treaty. In that regard it must be observed that requests for preliminary rulings, like actions for annulment, constitute the means for reviewing the legality of acts of the EU institutions. Since Article 264 TFEU gives the Court exclusive jurisdiction to declare void an act of an EU institution, the coherence of the system requires that where the validity of such an act is challenged before a national court, the power to declare the act invalid must also be reserved for the Court of Justice. The Court of Justice is indeed in the best position to decide on the validity of EU acts. Under Article 20 of the Protocol on the Statute of the Court of Justice of the European Union, EU institutions whose acts are challenged are entitled to participate in the proceedings in order to defend the validity of the acts in question. Furthermore, under the second paragraph of Article 24 of that Protocol the Court may require the Member States and institutions which are not participating in the proceedings to supply all information which it considers necessary for the purposes of the case before it.15 The ECJ added in Foto-Frost that the rule that national courts may not themselves declare EU acts invalid may have to be qualified in certain circumstances in the case of proceedings relating to an application for interim measures.16 The circumstances under which such interim measures are allowed were specified later on in the Zuckerfabrik case. The ECJ held that the suspension of enforcement of a national measure adopted in implementation of a EU regulation may be granted by a national court only: (i) if that court entertains serious doubts as to the validity of the EU measure and, should the question of the validity of the contested measure not already have been brought before the 14

Case 314/86 Foto-Frost [1987] ECR 4225, para. 14 (with reference to the Community and Community acts of the time).

15

Case 314/86 Foto-Frost [1987] ECR 4225, paras. 15-18 (with reference to the corresponding Articles of the EEC Treaty).

16

Case 314/86 Foto-Frost [1987] ECR 4225, para. 19 (idem).

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Court, itself refers that question to the Court; (ii) if there is urgency and a threat of serious and irreparable damage to the applicant; (iii) and if the national court takes due account of the EU interests.17 Suspension of enforcement of a national measure adopted in implementation of an EU measure may be granted by a national court only if that court entertains serious doubts as to the validity of the EU measure and, should the question of the validity of the contested measure not already have been brought before the Court of Justice, itself refers that question to the Court of Justice, if there is urgency and a threat of serious and irreparable damage to the applicant and if the national court takes due account of the EU interests.18 Even in the case in which a court of a Member State holds the view that the conditions have been satisfied under which it may suspend the application of a EU measure – in particular where the question of the validity of that measure has already been referred to the Court – the competent national administrative authorities of the other Member States cannot suspend application of that measure until such time as the Court of Justice has ruled on its validity. National courts alone, taking into consideration the specific circumstances of the cases brought before them, are entitled to verify whether or not the conditions governing the grant of interim relief have been satisfied.19



2.4 Constitutional Environmental Law issues before the Court

Constitutional issues related to European environmental law dealt with by the Court concern the choice of the legal basis of secondary law,20 the observance of the basic principles and objectives of European environmental law as enshrined in the Treaties and respect for fundamental rights. Respect for fundamental rights by the European Union as such raises questions concerning (i) the validity (legality) of EU secondary law; (ii) the interpretation of EU secondary law or (iii) the legality of individual measures such as Commission or judicial decisions of the General Court or the Civil Service Tribunal.21

17

Joined Cases C-143/88 and C-92/89 Zuckerfabrik [1991] ECR-I-145, para. 33 (with reference to what was called the Community and Community law at the time).

18

Joined Cases C-143/88 and C-92/89 Zuckerfabrik [1991] ECR I-145; Case C-456/93 Atlanta Fruchthandelsgesellschaft [1995] ECR I-3761 (idem).

19

Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA [2005] ECR I-1042, para. 111 (idem).

20

In the period before the entry into force of the Single European Act, the question arose if the then EEC had any competence at all in the field of Environmental Protection. This question was answered affirmatively by the ECJ, which held that Environmental Protection should be seen as one of the essential objectives of the EEC (Case 240/83 Procureur de la République v ADBHU [1985] ECR 531); Jans & Vedder (2012) 5-6.

21

Rosas & Armati (2010), 147.

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2.4.1 Choice of legal basis

I nternal Market versus Common Environmental Policy and Common Commercial Policy Given the consequences of the legal basis in terms of substantive competence and the procedure, the choice of the correct legal basis of an act of secondary law is of constitutional importance.22 From the early days of European environmental law, there has been largely a dual choice involved: on the one hand, the internal market approach and approximation of laws under the relevant treaty provision (Art. 100a EEC, Art. 95 TEC, present Art. 114 TFEU); on the other hand, the ‘pure’ environmental approach based on the common environmental policy provision (Art. 130s EEC, Art. 175 TEC, present Art. 192 TFEU). Other legal bases may also be of relevance for some particular initiatives. The choice of the legal basis is not only important in regard to the procedural requirements for common action but also to assess the room for manoeuvre left to the Member States after a measure is taken. While the differences in procedure have gradually diminished through the succeeding treaty revisions, the choice of legal basis is still important for the division of competences between the EU and the Member States.23 From time to time, the ECJ annulled a European environmental law act for not having been adopted on the proper legal basis. In the case of the annulment of Directive 89/428/EEC on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry, the Court recalled that in the context of the organization of the powers of the EU the choice of the legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure. According to its aim and content, as they appear from its actual wording, Directive 89/428/EEC was concerned, indissociably, with both the protection of the environment and the elimination of disparities in conditions of competition. As the procedures under the relevant Treaty provisions were not compatible, a combined legal basis for the directive was not possible. The Court finally came to the conclusion that the directive should have been based on Article 100a EEC, instead of Art. 130s EEC, and was therefore annulled.24 The ECJ annulled also Regulation (EC) 304/2003 concerning the export and import of dangerous chemicals. The Court held that the Regulation included, as regards both the aims pursued by its authors and its content, two indissociably linked components, neither of which could be regarded as secondary or indirect as compared with the other, one relating to the common commercial policy and 22 23

Lenaerts & Van Nuffel (2011) 115-116; Jans & Vedder (2011) 59-94; Krämer (2011) 35-38.

Rosas & Armati (2010) 195.

24

Case C-300/89 Commission v Council [1991] ECR I-2867.

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the other to the policy of protection of human health and the environment. The Court believed that the Regulation should therefore have been founded on the two corresponding and compatible legal bases, namely Articles 133 TEC and 175(1) TEC, and not solely on Article 175(1) TEC.25 An action for annulment of Directive 91/156/EEC on waste was dismissed. The Court held that in this case according to its aim and content, the directive at issue had the object of ensuring the management of waste, whether of industrial or domestic origin, in accordance with the requirements of environmental protection, so that the directive must be deemed to have been validly adopted on the sole basis of Article 130s EEC.26 Similarly, an application for the annulment of Regulation (EEC) 259/93 on the supervision and control of shipments of waste within, into and out of the European Community was dismissed. The Court held in this case that the Regulation fell within the framework of the environmental policy pursued by the Community and that it cannot be regarded, any more than Directive 91/156, as seeking to implement the free movement of waste within the Community. The Council could therefore validly exclude Article 100a of the Treaty from the legal basis of the Regulation and base it on Article 130s of the Treaty.27 The ECJ annulled Regulation (EC) 307/97 on the protection of the Community’s forests against atmospheric pollution and Regulation (EC) 308/97 on protection of the Community’s forests against fire being in agreement with the European Parliament that, by basing the contested regulations on Article 43 EC although Article 130s EC was the appropriate legal basis, the Council had infringed essential procedural requirements and undermined its prerogatives.28 The ECJ held also that the Parliament and the Council correctly adopted 94/19/ EC on deposit-guarantee schemes on the basis of Article 57(2) EC and were not required to use any other legal basis.29

Common Environmental Policy versus Cooperation in Justice and Home Affairs The ECJ annulled Framework Decision 2003/80/JHA on the protection of the environment through criminal law, a case in which the ECJ had to decide on the question if that issue should have been regulated under the TEC or under the then applicable version of the TEU.30 The Court held that on account of both their aim and their content, Articles 1 to 7 of the Framework Decision had as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 TEC. Council Framework Decision 2005/667/JHA to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution was also annulled by the ECJ for similar reasons. 25

Case C-178/03 Commission v Parliament and Council [2006] ECR I-107.

26 27

Case C-155/91 Commission v Council [1993] ECR I-939.

Case C-187/93 Parliament v Council [1994] ECR I-2857.

28

Case C-164/97 Parliament v Council [1999] ECR I-1139.

29 30

Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405.

Case C-176/03 Commission v Council [2005] ECR I-7879; Jans & Vedder (2011) 33-34.

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The Court held that since Articles 2, 3 and 5 of the Framework Decision were designed to ensure the efficacy of the rules adopted in the field of maritime safety, non-compliance with which may have serious environmental consequences, by requiring Member States to apply criminal penalties to certain forms of conduct, those articles must be regarded as being essentially aimed at improving maritime safety, as well as environmental protection, and could have been validly adopted on the basis of Article 80(2) TEC. By contrast, the determination of the type and level of the criminal penalties to be applied did, according to the Court, not fall within the Community’s sphere of competence, as defined at that time in the TEC.31 Under the TFEU the competences of the EU in relation to criminal law were expanded (Art. 83(2)TFEU).32



2.4.2 Respect for fundamental principles of EU law

Equality principle In a limited number of cases the ECJ was requested to review the validity of EU environmental law against fundamental principles of EU law, as, e.g., the equality principle that is enshrined in the Charter of Fundamental Rights of the EU and is one of the values on which the Union is founded (Art. 2 TEU).33 In response to a reference for a preliminary ruling by the French Council of State, the ECJ recalled that the general principle of equal treatment is a general principle of EU law and that it requires that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified.34 The question arose, if Directive 2003/87/EC (greenhouse gas emissions) respected that principle in so far as it makes the allowance trading scheme applicable to installations in the steel sector without including in its scope the aluminium and plastics industries. The ECJ believed that the steel, chemical and non-ferrous metal sectors are, for the purposes of examining the validity of the directive from the point of view of the principle of equal treatment, in a comparable position while being treated differently. The principle of equal treatment will not, however, be infringed, if the different treatment of the steel sector on the one hand and the chemical and non-ferrous metal sectors on the other is justified. A difference in treatment is justified, if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment. Since an EU legislative act is concerned, it is for the EU legislature to demonstrate the existence of objective criteria put forward as justification and to provide the 31

Case C-440/05 Commission v Council [2007] ECR I-9097.

32 33

Lenaerts & Van Nuffel (2011) 337-338.

Lenaerts & Van Nuffel (2011) 156; Jans & Vedder (2011) 21-22.

34

See, i.a., Case 106/83 Sermide [1984] ECR 4209, para. 28; Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others [1994] ECR I‑4863, paras. 50 and 51; and Case C‑313/04 Franz Egenberger [2006] ECR I‑6331, para. 33.

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Court with the necessary information for it to verify that those criteria do exist. The principle of equal treatment will not, however, be infringed if the different treatment of the steel sector on the one hand and the chemical and non-ferrous metal sectors on the other is justified. In this case, the ECJ held that it is common ground, first, that the allowance trading scheme introduced by Directive 2003/87/EC is a novel and complex scheme whose implementation and functioning could have been disturbed by the involvement of too great a number of participants, and, second, that the original definition of the scope of the directive was dictated by the objective of attaining the critical mass of participants necessary for the scheme to be set up. In view of the novelty and complexity of the scheme, the original definition of the scope of Directive 2003/87/EC and the step-by-step approach taken, based in particular on the experience gained during the first stage of its implementation, in order not to disturb the establishment of the system were within the discretion enjoyed by the EU legislature. As regards the chemical sector, it may be seen from the history of Directive 2003/87/EC that that sector has an especially large number of installations, of the order of 34,000, not only in terms of the emissions they produce but also in relation to the number of installations currently included in the scope of the directive, which is of the order of 10,000. The inclusion of that sector in the scope of Directive 2003/87 would therefore have made the management of the allowance trading scheme more difficult and increased the administrative burden, so that the possibility that the functioning of the scheme would have been disturbed at the time of its implementation as a result of that inclusion cannot be excluded. Moreover, the legislature was able to take the view that the advantages of excluding the whole sector at the start of the implementation of the allowance trading scheme outweighed the advantages of including it for attaining the objective of Directive 2003/87/EC. It follows that the legislature has shown to the requisite legal standard that it made use of objective criteria to exclude the entire chemical sector from the scope of Directive 2003/87/EC in the first stage of implementation of the allowance trading scheme. As regards the non-ferrous metal sector, it appears from a scientific report which the legislature made use of in drafting and adopting Directive 2003/87/EC, that direct emissions from that sector amounted to 16.2 million tonnes of CO2 in 1990, while the steel sector emitted 174.8 million tonnes of CO2. In view of its intention to define the scope of Directive 2003/87/EC in such a way as not to upset the administrative feasibility of the allowance trading scheme in its initial stage by involving too many participants, the legislature was not required according to the ECJ to have recourse solely to the method of introducing, for each sector of the economy that emitted CO2, a threshold for emissions in order to attain its objective. Thus, in circumstances such as those in which Directive 2003/87/EC was adopted, it could when introducing the scheme legitimately delimit its scope by means of a sectoral approach without exceeding the bounds of its discretion. The difference in the levels of direct emissions between the two sectors concerned is so substantial

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that the different treatment of those sectors may, in the first stage of implementation of the allowance trading scheme and in view of the step-by-step approach on which Directive 2003/87/EC is based, be regarded as justified without there having been any need for the legislature to take into consideration the indirect emissions attributable to the various sectors. Accordingly, the ECJ concluded that the EU legislature did not infringe the principle of equal treatment by treating comparable situations differently when it excluded the chemical and non-ferrous metal sectors from the scope of Directive 2003/87/EC.35

The High Court of Justice of England and Wales (Queen’s Bench Division, Crown Office) and the High Court (Ireland) asked the ECJ to rule on the validity of Article 2(2) of Regulation (EC) 925/1999 (aircraft engine noise) in the light of the equality principle. The ECJ held that the principle was not violated. First, since there is a link between by-pass ratio and noise, there is an objective reason for treating aeroplanes re-engined with engines with a high by-pass ratio differently from aeroplanes re-engined with engines with a low by-pass ratio. Second, the distinction between re-engined aeroplanes and aeroplanes designed from the outset to comply with the Chapter 3 standards is justified above all by a concern to protect acquired rights. Manufacturers who have developed aeroplanes by reference to Chapter 3 standards and airlines which have bought such aeroplanes must, in principle, enjoy greater protection of their legitimate expectation of being able to operate them than manufacturers and owners of aeroplanes whose original construction did not comply with those standards. Third, the evidence produced to the Court did not show that any direct or indirect discrimination against undertakings established in the United States results from implementing the criterion of a by-pass ratio of 3 or more. The Regulation applies with equal strictness to European operators and manufacturers and to those of the United States. Fourth, the Community legislature was entitled to treat re-engining of aeroplanes with engines with a by-pass ratio less than 3 in the same way as the use of hushkits. On the one hand, it could reasonably consider that those techniques are less effective as regards noise reduction than re-engining with engines with a by-pass ratio of 3 or more. On the other hand, they do not have the same advantages as regards fuel economy and the reduction of gaseous emissions as engines with a high by-pass ratio.36

A particular application of the equality principle is the prohibition of discrimination on grounds of nationality of a Member State of the EU (Art. 18 TFEU),37 which is not mentioned as such in the EEC Treaty, but is believed to be a general 35

Case C-127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I-9895; Jans & Vedder (2011) 21. See also Case T-16/04 Arcelor v Parliament and Council [2010] ECR II-211.

36 37

Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569.

Lenaerts & Van Nuffel (2011) 158-164 and 171-175.

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principle of EU law that is also applicable within the scope of application of that Treaty.38 Subsidiarity principle The subsidiarity principle is, above all, a political principle and given the wide discretion of the EU legislator in this respect, in combination with the very marginal review by the CJEU,39 it is not expected that the CJEU will easily find that that principle is violated by EU environmental law. An example that comes close to environmental law was the action for annulment of Directive 98/44/EC (biotechnological inventions) that was based on the violation of the subsidiarity principle and was rejected by the Court. It held that the objective pursued by the directive, to ensure smooth operation of the internal market by preventing or eliminating differences between the legislation and practice of the various Member States in the area of the protection of biotechnological inventions, could not be achieved by action taken by the Member States alone. As the scope of that protection has immediate effects on trade and, accordingly, on intra-Community trade, it is clear that, given the scale and effects of the proposed action, the objective in question could be better achieved by the Community. Compliance with the principle of subsidiarity is necessarily implicit in the fifth, sixth and seventh recitals of the preamble to the directive, which state that, in the absence of action at Community level, the development of the laws and practices of the different Member States impedes the proper functioning of the internal market. It thus appears that the directive states sufficient reasons on that point. 40 Proportionality principle The CJEU held that the principle of proportionality requires that measures adopted by the EU (and its Member States) do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question. When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. 41 However, with regard to judicial review of those conditions, the EU legislature must, according to the CJEU, be allowed a broad discretion in areas that entail political, economic and social choices on its part, and in which it is called upon to undertake 38

Case C-115/08 ČEZ [2009] ECR I-10265, para. 91.

39

Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453 (concerning Directive 2001/37/EC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products); Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451 (concerning Directive 2002/46/EC on the approximation of the laws of the Member States relating to food supplements).

40 41

Case C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079.

Case C-2/10 Azienda Agro-Zootecnica Franchini and Eolica di Altamura, jugdment of 21 July 2011, nyr, para. 73.

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complex assessments. Consequently, the legality of a measure adopted in such areas can only be affected if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. 42 All actions for annulment of EU environmental acts based on the violation of the proportionality principles and references for review of the validity of such acts on that basis have, thus, been rejected or judged unfounded so far. 43



2.4.3 Respect of Environmental Principles

In some cases the CJEU has been asked to assess the validity of certain acts of secondary law in the light of the environmental principles of the Treaty, namely the high level of protection principle, the precautionary principle, the prevention principle, the source principle, the polluter pays principle or the integration principle. High level of protection Article 191(2) TFEU provides that a European environmental policy shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. 44 When the ECJ was invited to assess the validity of Regulation (EC) 3093/94 on substances that deplete the ozone layer in the light of Article 130r EC (now Art. 191 TFEU), it observed that in view of the need to strike a balance between some of the objectives and principles mentioned in that article and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question whether or not the European legislator, by adopting the Regulation, committed a manifest error of appraisal regarding the conditions for the application of said Article. It does not follow from those provisions that Article 130r(1) TEC (currently Art. 191(1) 42

Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451, para. 52; Case C-77/09 Gowan Comércio Internacional e Serviços, judgment of 22 December 2010, nyr, para. 82; Case C-221/09 AJD Tuna, judgment of 17 March 2011, nyr, para. 81.

43

Case C-293/97 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Standley and Others [1999] ECR I-2603 (Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources do not violate the proportionality principle, nor the polluter pays principle and the fundamental right to property); Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569 (Article 2(2) of Regulation (EC) 925/1999 on the registration and operation within the Community of certain types of civil subsonic jet aeroplanes which have been modified and recertificated as meeting the standards of volume I, Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993) not violating the proportionality and equality principles); See also: Case C-15/03 Commission v Austria [2005] ECR I-837 (concerning Article 3(1) of Directive 75/439/EEC on the disposal of waste oils); Case C-92/03 Commission v Portugal [2005] ECR I-867 (idem); Joined cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others, judgment of 26 May 2011, nyr, para. 89 (on the interpretation of Directive 2001/81/EC on national emission ceilings for certain atmospheric pollutants).

44

Krämer (2011) 50-51; Misonne (2011) 48-50, 63-66.

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TFEU) requires the EU legislature whenever it adopts measures to preserve, protect and improve the environment in order to deal with a specific environmental problem to adopt at the same time measures relating to the environment as a whole. It follows that said provision authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the quality of the environment. So, the examination of Article 5(1) of the Regulation, in the light of Article 130r EC, has disclosed no factor of such a kind as to affect its validity. 45 Precautionary principle According to the case law of the CJEU, where it proves impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided that they are non-discriminatory and objective. 46 In the Monsanto Agricoltura Italia case, the ECJ was requested to examine whether Article 5 of Regulation No 258/97 concerning novel foods and novel food ingredients was compatible with, in particular, Articles 153 TEC and 174 TEC, the precautionary principle and the principle of proportionality. As regards the precautionary principle, the Court observed that the safeguard clause provided in Article 12 of Regulation 258/97 gives specific expression to that principle and that the principle must therefore, where relevant, be an integral part of the decision-making process leading to the adoption of any measure for the protection of human health based on Articles 12 and 13 of that regulation. Moreover, that principle must also be taken into account where relevant under the normal procedure, i.a., for the purpose of deciding whether, in the light of the conclusions concerning the assessment of risk, placing on the market may be authorised without any danger for the consumer. In order to establish whether a provision of EU law complies with the principle of proportionality it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it. In a sphere in 45

Case C-284/95 Safety Hi-Tech v S. & T [1998] ECR I-4301, paras. 37-45; Case C-341/95 Bettati v Safety Hi-Tech [1998] ECR I-4355, para. 42. In relation to the similar provision on consumer protection the ECJ held that ‘however, no provision of the Treaty obliges the Community legislature to adopt the highest level of protection which can be found in a particular Member State. The reduction in the level of protection which may thereby result in certain cases through the application of the second subparagraph of Article 4(1) of Directive 94/19/EC on deposit-guarantee schemes] does not call into question the general result which the Directive seeks to achieve, namely a considerable improvement in the protection of depositors within the Community’ (Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, para. 48).

46

Case C-192/01 Commission v Denmark [2003] ECR I-9693, paras. 52-53; Case C-466/08 Solgar Vitamin’s France [2010] ECR I-3973, para. 70.

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which the EU legislature is called on to undertake complex assessments, judicial review of the exercise of its powers must be limited to examining whether it is vitiated by a manifest error of assessment or a misuse of powers or whether the legislature has manifestly exceeded the limits of its discretion. The ECJ came to the conclusion that that was not the case. 47

Polluter pays principle The ECJ held that Directive 91/676/EEC (nitrates from agricultural sources) did not violate the polluter pays principle, because the directive does not mean that farmers must take on burdens for the elimination of pollution to which they have not contributed. The Member States are to take account of the other sources of pollution when implementing the directive and, having regard to the circumstances, are not to impose on farmers costs of eliminating pollution that are unnecessary. 48 Integration principle The integration principle implies that the objectives and the principles of environmental protection, including the precautionary principle, must be applied in the other policy areas. 49 In that respect, the ECJ held in relation to Decision 96/239/EC on emergency measures to protect against bovine spongiform encephalopathy: ‘At the time when the contested decision was adopted, there was great uncertainty as to the risks posed by live animals, bovine meat and derived products. […] Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. […] That approach is borne out by Article 130r(1) of the EC Treaty, according to which Community policy on the environment is to pursue the objective inter alia of protecting human health. Article 130r(2) provides that that policy is to aim at a high level of protection and is to be based in particular on the principles that preventive action should be taken and that environmental protection requirements must be integrated into the definition and implementation of other Community policies’.50

In the case of Framework Decision 2003/80/JHA on the protection of the environment through criminal law, the integration principle was at stake. In that case the ECJ recalled, with reference to the provisions of the TEC that were 47

Case C-236/01 Monsanto Agricoltura Italia [2003] ECR I-8105, paras. 126-139. See in the same sense: Case C-77/09 Gowan Comércio Internacional e Serviços, judgment of 22 December 2010, nyr, paras. 72-79.

48

Case C-293/97 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Standley and Others [1999] ECR I-2603, paras. 51 and 52.

49 50

Krämer (2011) 52.

Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paras. 98-100.

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applicable at that time, that it is common ground that the protection of the environment constitutes one of the essential objectives of the EU. In that regard, Article 2 EC states that the Community has as its task to promote ‘a high level of protection and improvement of the quality of the environment’ and, to that end, Article 3(1)(l) EC provides for the establishment of a ‘policy in the sphere of the environment’. Furthermore, in the words of Article 6 EC, ‘[e] nvironmental protection requirements must be integrated into the definition and implementation of the Community policies and activities’, a provision which emphasises the fundamental nature of that objective and its extension across the range of those policies and activities. Articles 174 TEC to 176 EC comprise, as a general rule, the framework within which Community environmental policy must be carried out. In particular, Article 174(1) EC lists the objectives of the Community’s action on the environment and Article 175 EC sets out the procedures to be followed in order to achieve those objectives. The Community’s powers are, in general, exercised in accordance with the procedure laid down in Article 251 EC, following consultation of the Economic and Social Committee and the Committee of the Regions. However, in relation to certain spheres referred to in Article 175(2) EC, the Council takes decisions alone, acting unanimously on a proposal from the Commission after consulting the Parliament and the two above mentioned bodies. As the Court has previously held, the measures referred to in the three indents of the first subparagraph of Article 175(2) EC all imply the involvement of the Community institutions in areas such as fiscal policy, energy policy or town and country planning policy, in which, apart from Community policy on the environment, either the Community has no legislative powers or unanimity within the Council is required.51 The Court concluded that, on account of both their aim and their content, Articles 1 to 7 of the Framework Decision have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 TEC and thus annulled Council Framework Decision 2003/80/JHA.

Influence on the interpretation of EU law The environmental principles of the TFEU can also influence the interpretation that should be given to one or another provision of primary or secondary EU law. Thus the European Court held that in the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by EU policy on the environment, and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned. Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies 51

Case C-176/03 Commission v Council [2005] ECR I-7879, paras. 41-43.

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that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Article 2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora.52 When, in accordance with the limitations and/or exemptions of liability laid down in international law, the national law of a Member State, including the law derived from international agreements, prevents the costs of disposal of the waste produced by an accidental spillage of hydrocarbons at sea from being borne by the ship-owner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442/EEC, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur.53 Article 15(a) of Directive 2006/12/EC must, as EU law currently stands, be interpreted as not precluding national legislation which, for the purposes of financing an urban waste management and disposal service, provides for a tax or charge calculated on the basis of an estimate of the volume of waste generated by users of that service and not on the basis of the quantity of waste which they have actually produced and presented for collection. It is, however, taking into consideration the polluter pays principle, incumbent upon the national court to review, on the basis of the matters of fact and law placed before it, whether the waste tax at issue in the main proceedings results in the allocation to certain ‘holders’, in the case in point hotel establishments, of costs which are manifestly disproportionate to the volumes or nature of the waste that they are liable to produce.54

Principle of conferral The objectives and principles of the Treaties can play an important role when determining if the European Commission, to which some regulatory powers can be conferred, is respecting or infringing the boundaries of that conferral of power. In that respect, the ECJ partially annulled Commission Decision 2005/717/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment. The Court noted as regards the objectives of Directive 2002/95/ EC that it is clear from the fifth, sixth and eleventh recitals thereto that the inten52

Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels [2004] ECR I-7405, para. 44.

53

Case C-188/07 Commune de Mesquer [2008] ECR I-4501, para. 82.

54

Case C-254/08 Futura Immobiliare and Others [2009] ECR I-6995; See also: C-1/03 Van de Walle and Others [2004] I-7613; Case C-172/08 Pontina Ambiente [2010] ECR I-1175; Krämer (2011) 61-62.

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tion of the legislature is to prohibit products referred to in the directive and to grant exemptions only in accordance with carefully defined conditions. Such an objective, in compliance with Article 152 EC, according to which a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities55 and in compliance with Article 174(2) EC, according to which Community policy on the environment is to aim at a high level of protection and is based on the principles of precaution and preventive action, justifies the strict interpretation of the conditions for exemption.56

The integration principle that is also reflected in Art. 37 Charter also plays a role in the case law of the CJEU, as it demonstrates that environmental objectives can be pursued in the context of other EU policies and can play an important role in the interpretation of such provisions. As for the other principles, only in very exceptional cases will a measure be susceptible to annulment or be declared invalid, because certain environmental objectives seem not to have been taken sufficiently into account.57



3 Constitutional review by national courts



3.1 National Constitutions and EU Law from an ECJ point of view The principle of primacy applies, according to the CJEU case law, to national law as a whole, including the national constitutions.58 A national court which is called upon, within the limits of its jurisdiction, to apply provisions of EU law is, according to the CJEU, under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by domestic legislative or other constitutional means (including the annulment of the national legislation by the Constitutional Court).59 In the Melki and Abdeli 55

Case C-504/04 Agrarproduktion Staebelow [2006] ECR I-679, para. 39.

56

Joined cases C-14/06 and C-295/06 Parliament and Denmark v Commission [2008] ECR I-1649, paras. 74-75.

57

Jans & Vedder (2011) 22-29.

58

Case 6/64 Costa v ENEL [1964] ECR 585; Fennelly (2010) 39-476; Pernice (2010), 4759; Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para. 3 (‘Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure’); Case 149/79 Commission v Belgium [1980], ECR 3881, para. 19; Case C-285/98 Kreil [2000] ECR I-69, para. 5 and 32; Case C-213/07 Michaniki [2008] ECR I-9999, para. 5 and 69; Joined Cases C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I-3071, para. 207; Case C-314/08 Filipiak [2009] ECR I-11049, para. 84.

59

Case 106/77 Simmenthal II [1978] ECR 630, para. 24.

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case, the ECJ, elaborating further on Simmenthal II, held that Article 267 TFEU precludes Member State legislation which establishes an interlocutory procedure for the review of the constitutionality of national laws in so far as the priority nature of that procedure prevents – both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question – all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, Article 267 TFEU does not preclude such national legislation, in so far as the other national courts or tribunals remain free to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary, to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, and to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to European Union law.60



3.2 National Constitutions and EU law from a national point of view

The view that EU law has precedence over the domestic Constitution is not accepted in some jurisdictions. It seems that one can distinguish three different categories of Member States. The first category includes those Member States where the primacy of EU law is largely undisputed and recognised by the courts even in relation to constitutional law. The Netherlands – where the courts may not review the constitutionality of Acts of Parliament – seems to be the main example.61 The Constitutional Court of Austria also seems to take also the primacy of EU law for granted even in relation to constitutional law.62 National constitutional law has, however, still to be taken into account as far as there is any scope for interpretation. In such situations, the Austrian Constitutional Court applies the ‘principle of double scrutiny’ (Grundsatz der doppelten Bindung). According to this principle, an act transposing a directive has to be in conformity with EU law as well as national constitutional law. If the transposing act conflicts with the constitution, there are two basic solutions: either to amend the constitution or to change the transposing law in a way so that it conforms both to EU law and the – unaltered – constitution.63 The Croatian constitutional legal order accepts the system of legal monism. Under Article 141 of the Constitution, international treaties which have been concluded and ratified in accordance with the Constitution, published and which have entered into 60

Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5665; Bossuyt & Verrijdt (2011) 355-391.

61

Lenaerts & Van Nuffel (2011) 785-786.

62 63

Grabenwarter (2010) 85; more doubtful: Lenaerts & Van Nuffel (2011) 793.

See Chapter 9 in this volume.

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force shall be a component of the domestic legal order of the Republic of Croatia and shall have primacy over domestic law. Their provisions may be altered or repealed only under the conditions and in the manner specified therein or in accordance with the general rules of international law. The Croatian Constitution does not explicitly empower the Constitutional Court of the Republic of Croatia to review the conformity of a national law with international treaties. Nevertheless, in its case law the Constitutional Court has accepted the competence of reviewing the conformity of a national law with international treaties which have been ratified in the Republic of Croatia. Article 145 of the Constitution does not explicitly prescribe supremacy of primary and secondary EU law over national law, but it does implicitly refer to the doctrine of supremacy as a constituent part of the acquis communautaire (paragraph 2). International treaties, which have entered into force in Croatia, have primacy over domestic statutes (acts). They enjoy a supra-legislative status, but in relation to the national Constitution they retain a sub-constitutional status. However, the case law of the Croatian Constitutional Court shows that international treaties actually enjoy a quasi-constitutional status in the Croatian constitutional legal order. The Croatian constitutional legal order does not provide for the review of the constitutionality of international treaties. The Constitutional Court is competent to review the constitutionality of national statutes (acts) and the constitutionality and legality of other national regulations. National review of ‘constitutionality’ of EU law could potentially be indirect, by reviewing the constitutionality of national acts or other regulations which implement EU law.64 At the other end of the spectrum are the Member States where the National Constitution is considered to have primacy, as is the case in France, Greece or Poland.65 In the third and largest category one can find those Member States where there is a limited primacy of EU law over constitutional law. The Constitutional or Supreme Courts of Italy, Germany, Denmark and Belgium have highlighted limits to primacy of EU law in relation to national constitutional law. Similar reservations can be found in the case law of the Spanish Constitutional Court and in the Constitutions of Sweden, Ireland, Hungary and the UK.66 The German Constitutional Court, for instance, has reserved the right to verify that secondary law and other EU acts, including, as the case may be, the case law of the EU Courts, do not transgress the boundaries of EU primary law as approved in the instrument of ratification and/or the core elements of the national constitution.67 The German Federal Constitutional Court examines whether legal instruments of the European institutions and bodies keep within the boundaries of the sovereign powers accorded to them by way of conferral,68 whilst adhering to the principle of subsidiarity under EU law. Furthermore, 64 65

See Chapter 11 in this volume.

Grabenwarter (2010) 90-91 and 93; Lenaerts & Van Nuffel (2011), 774-778, 789-790, 804-807.

66 67

Grabenwarter (2010) 85-90; Claes (2010) 236-237; Lenaerts & Van Nuffel (2011) 772-803.

Rosas & Armati (2010), 58; Arnold (2007), 64-65; Lenaerts & Van Nuffel (2011) 779-784.

68

See BVerfGE 58, 1 (Eurocontrol I); BVerfGE 75, 223 (Kloppenburg-Beschluß); BVerfGE 89, 155 (Maastricht).

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the German Federal Constitutional Court reviews whether the inviolable core content of the constitutional identity of the German Federal Constitution is respected.69 According to the Court, the exercise of this review power, which is rooted in constitutional law, follows the principle of the Constitution’s openness towards European law (‘Europarechtsfreundlichkeit’), and is believed not to contradict the principle of sincere cooperation. Otherwise, says the Court, with ongoing integration, the fundamental political and constitutional structures of sovereign Member States, which are recognized by Article 4(2) TEU, cannot be safeguarded in any other way. In this respect, the guarantee of national constitutional identity under constitutional and under EU law is considered to go hand in hand in the European legal area.70 The Danish Hojesteret 71 and the Constitutional Court of the Czech Republic seem to follow the same line, but the latter is the only Court which has so far declared a judgment of the CJEU ‘ultra vires’,72 while the Polish,73 and German74 Constitutional Courts and the Supreme Court of Cyprus75 have already declared an EU act, namely the Framework Decision 2002/584/JHA on the European Arrest Warrant, in conflict with the national Constitution, mainly on the question of extradition of nationals, and therefore annulled the respective national law implementing it, or, as was the case in Poland, set a time-frame for the Constitutional Legislator to amend the Constitution, while keeping the challenged act temporarily in force. The Czech Constitutional Court, however, saw in this particular case no conflict with the Czech Constitution.76 The Belgian Constitutional Court, when confronted with an action for annulment of the Act transposing said Framework Decision in Belgian law, was of the opinion that the Constitutional objections raised against the Act also hold good in equal measure with regard to the Framework Decision. The Belgian Constitutional Court held that differences of interpretation between courts with regard to EU measures and the validity of the legislation 69 70

See BVerfGE 113, 273 (Europäischer Haftbefehl).

BVerfGE 123, 267 (Lissabon); an English translation of the judgment of 20 June 2009 can be found on the website of the Court: http://www.bundesverfassungsgericht.de/entscheidungen/ es20090630_2bve000208en.html.

71

Judgment of 6 April 1998, I sag I 361/1997; Pernice (2010), 55. Denmark has a very dualistic approach towards international obligations. International obligations are only recognized by Danish Courts if the international obligation has been transformed into national legislation, unless the international obligation can be interpreted into existing legislation. See Chapter 13 in this volume.

72

Constitutional Court of the Czech Republic, 14 February 2012, No. Pl. US 5/12 declaring the judgment of the ECJ of 22 June 2011 in Case C-399/09 Landtová (n.y.r.) ultra vires as far as so-called Slovak pensions are concerned; Komárek (2012).

73

 Trybunal Konstytucyjny, 27 April 2005 (P1/05); see also Trybunal Konstytucyjny, 11 May 2005 (K 18/04), Poland’s Membership in the European Union.

74 75

 Bundesverfassungsgericht, 18 July 2005 (2236/04).

Supreme Court of Cyprus, 7 November 2005 (294/2005).

76

Ústavní Soud, 3 May 2006 (Pl. Ús 66/04). Pollicino (2008), 1314-1315, 1326-1327; Opinion of AdvocateGeneral Ruiz-Jarabo Colomer delivered on 12 September 2006 in Case C-303/05 [2007] ECR I-3638.

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which constitutes the implementation of those measures in national law jeopardise the unity of the EU legal order and adversely affect the general principle of legal certainty and that the ECJ alone has jurisdiction to give a preliminary ruling on the validity of framework decisions and referred two questions on the validity of the framework decision to the ECJ, which found no factor capable of affecting the validity of the Framework Decision.77 Consequently, the Belgian Constitutional Court also dismissed the request for annulment of the Act transposing the Framework Decision.78 The French Conseil Constitutionnel acknowledges that the French Constitution remains at the top of the French internal legal system,79 and that the transposition of a directive into national law is a constitutional duty, which could only be set aside by a specific constitutional clause to that effect.80 That seems also to be the view of the Spanish Tribunal Constitucional.81 Although the CJEU’s view that EU law, including secondary EU law, has primacy over national constitutional law is not unconditionally accepted in the majority of the Member States, in practice the cases in which an act of EU law is found unconstitutional on the national level are very exceptional. The relationship between the national constitutional courts and the CJEU seems not to be a very intensive one. The willingness of Constitutional Courts to start a dialogue with the CJEU seems indeed to be limited. Most of the Constitutional Courts have so far refrained from requesting preliminary rulings from the CJEU for different reasons.82 In France, e.g., the Constitutional Council considers that the period of one month in which it has to decide on a referral for a preliminary ruling on the constitutionality of Acts of parliament is too short to allow it to refer question to the EJC.83 Consequently, it is up to the administrative and judicial Courts to make such referral, even if they transmit a priority constitutional question to the Constitutional Council.84 So far, only the Constitutional 77

Case C-303/05 Advocaten voor de Wereld [2007] ECR-I-3633.

78

 Grondwettelijk Hof, n° 128/2007, 10 October 2007, www.const-court.be. Later the Court also questioned the ECJ on the validity of Article 5(2) of Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services. This provision was found invalid by the ECJ with effect from 21 December 2012 (Case C-236/09 Association Belge des Consommateurs Test-Achats and Others, judgment of 1 March 2011, nyr). The Belgian Constitutional Court subsequently annulled the transposing provision of Belgian law: Grondwettelijk Hof, n° 116/2011, 30 June 2011, www.const-court.be.

79

 Conseil Constitutionnel, décision n° 2004-505, 19 November 2004, Traité établissant une Constitution pour l’Europe in which the Council was of the opinion that the ratification of the Constitutional Treaty was subject to a prior revision of some provisions of the French Constitution.

80 81

Ziller (2007) 106-107; Lenaerts & Van Nuffel (2011) 774-776.

Pernice (2010) 56-57; the Spanish Constitutional Court makes a distinction between the ‘supremacy’ of the Constitution and the ‘primacy ‘of the EU Treaty: Pérez Tremps & Saiz Arnaiz (2007) 51.

82 83

Rosas & Armati (2010), 58; Mayer (2010) 400-409; Alen & Melchior (2005) 117-118.

 Conseil Constitutionnel 27 July 2006, Decision n°2006/540 DC.

84

 Conseil Constitutionnel 12 May 2010, Decision n°2010-605 DC.

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Courts of Austria (4 cases),85 Belgium (17 cases),86 Italy (1 case),87 Lithuania (1 case) and Spain (1 case)88 have made references for a preliminary ruling to the ECJ.89



3.3 National case law

Belgium The Constitutional Court was asked to review the constitutionality of the Decree (Act of the Regional Parliament) of the Walloon Region of 10 November 2004 that transposed, more or less literally, Directive 2003/87/ EC establishing a scheme for greenhouse gas emission allowance trading. The pleas in the cases were about violation of the equality principle (because of the inclusion of the steel industry and the exclusion of other sectors), violation of the principle of freedom of trade and industry and violation of property rights (because initially allocated allowances are annulled when the establishment is terminated within the trading period and these allowances are added to the reserve for newcomers). The Court rejected the appeal of its own accord, without consulting the CJEU on the validity of the directive on these points. The Court was of the opinion that Directive 2003/87/EC did not forbid an extension of the scope of the domestic scheme to other sectors – so it was in the hands of the legislator to respect the equality principle of the Belgian Constitution – and that for the other points it left sufficient room for the legislator to implement the directive in a way that is compatible with the Belgian Constitution,90 so there was no 85

Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] I-8365 deals with a tax on energy.

86

Case C-480/03 Clerens (not published) is about the interpretation of Directive 79/409/EEC on the conservation of wild birds and the compatibility of national rules introducing a protective regime not only for naturally occurring birds in the wild state in European territory but also for birds born and raised in captivity; Case C-182/10 Solvay and Others is about the interpretation of Articles 2(2), 3(9), 6(9) and 9(2), (3) and (4) of the Aarhus Convention, Articles 1(5), 9(1) and 10a of Directive 85/337/EEC (EIA Directive) and Article 6(3) and (4) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; Case C-567/10 Inter-Environnement Bruxelles a.o. is about the interpretation of Article 2(a) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment and the applicability of the directive to a procedure for the total or partial repeal of a specific land-use plan; Pending Case C-26/11 Belgische Petroleum Unie a.o. is about the interpretation of Article 4(3) TEU, Articles 26(2), 28, 34, 35 and 36 TFEU, Articles 3, 4 and 5 of Directive 98/70/EC relating to the quality of petrol and diesel fuels and Article 8 of Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services.

87

Case C-169/08 Presidente del Consiglio dei Ministri [2009] ECR I-10821 is about a regional tax with an environmental aspect.

88

Pending Case C-399/11 Melloni.

89

Peiffert (2011) 463-469.

90

Constitutional Court, n° 92/2006, 7 June 2006, nv Cockerill Sambre and sa Arcelor, TMR 2006, 450-459.

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need to consult the European Court on the validity of the directive. Although the Constitutional Court did not review the constitutionality of Directive 2003/87/ EC as such, it reviewed the constitutionality of provisions of domestic law that transposed the directive very literally, so that this judgment could be seen as an ‘indirect review’ of the constitutionality of the directive. Eventually this judgment worked out well as several years later the ECJ91 came to the same conclusion when it was asked by the French Council of State92 to verify the validity of the directive. Of course, if the Constitutional Court had serious doubts about the compatibility of the Decree (and thus the directive) with the equality principle, it would not have been in a position to judge so without consulting the European Court first, according to Foto-Frost. The Constitutional Court was also of the opinion that the criminal sanctions imposed by Walloon regional legislation for illegal activities with waste did not violate the constitutional and conventional principle of legality in criminal law. With reference to the case law of the ECJ, the Court held that the notion of ‘waste’ was sufficiently clear.93 France In the Arcelor case94 the applicants requested the Council of State of France to annul an article of a Decree, transposing an EU Directive, because of the non-respect of the principle of legal certainty as a general principle of EU law and different constitutional principles (right to property, freedom of enterprise, equality principle). In its judgment of 2007, the Council of State considered that it is the role of the administrative court to examine if there is a general rule or principle of EU law that, in terms of its nature and scope, is equivalent to the constitutional principle invoked in support of the annulment of the national act that implements said directive. In such a case, the national court should submit a question for preliminary ruling on the validity of the directive to the European Court. If there is no such rule or general principle of EU law ensuring the effective respect of the Constitutional principle invoked, the administrative court must examine the constitutionality of the contested regulatory act.95 In this case, the Council of State, after having received the answer from the European Court, considered that the difference in treatment enshrined in the contested decree implementing Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading did not violate the equality principle.96

91

Case C-127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I-9895, discussed under 2.4.2.

92 93

See the section on France hereafter.

Constitutional Court, n° 143/2008, 30 October 2008, OM and DG Directoraat-generaal natuurlijke rijkdommen en leefmilieu, TMR 2008, 805-807.

94 95

Case C-127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I-9895, see 2.4.2 above.

 Conseil d’Etat, 8 February 2007, Arcelor, n° 287110.

96

Peiffert (2011) 462.

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Germany In Germany some courts have reviewed EU secondary law for conformity with European fundamental rights. Thereby, the courts performed their own review and decided not to refer the question to the ECJ, because they did not establish a violation, thus respecting Foto-Frost. 97 In 200598 the Bundesverwaltungsgericht (Federal Administrative Court) had to decide whether the implementation of the EU emissions trading scheme based on Directive 2003/87/ EC was in conformity with higher-ranking principles of law. In the previous instance the Verwaltungsgericht Würzburg did not verify the compatibility of the implementation of the EU emissions trading scheme with superior rules of law at all. Compatibility with German constitutional law was not reviewed based on the jurisdiction of the Bundesverfassungsgericht, in particular Solange – II99 and Bananenmarktordnung.100 According to those decisions, EU legal acts are not to be reviewed by the standards of national fundamental rights as long as the standard of fundamental rights guaranteed at the European level is equal to the national standard. As a consequence of this judgement, the Verwaltungsgericht Würzburg came to the conclusion that EU fundamental rights could not be reviewed by national courts, if the directive, as would be the case here, leaves Member States no scope for implementation. On appeal, the Bundesverwaltungsgericht considered that national courts have to verify the conformity of EU legal acts with EU primary law, if the legal act is a mandatory decision for national implementation. If national courts find that the EU legal act is in breach of EU primary law, they must stay the proceedings and refer the question to the CJEU. Subsequently, the Bundesverwaltungsgericht reviewed the conformity of the introduction of the EU emissions trading scheme as regulated in the Directive 2003/87/EC with the fundamental right to property and the freedom of enterprise in their European dimension. After a detailed examination the court came to the conclusion that the introduction of the EU emissions trading scheme is not in breach of EU primary law. As result of this conclusion, the Bundesverwaltungsgericht was not required to refer these questions to the European Court. The matter was not referred, as the Bundesverwaltungsgericht considered the answer to be sufficiently clear cut. In determining whether the emission of CO2 could be the object of a constitutionally protected property right the court considered two variants: a separate right to emission conveyed by the authorization for the installation, and a right to emission as part of the property in the installation. The Court held that the authorization does not extend to a right of emission but considered the emission of CO2 as part of the property in the installation. The prohibition of infinite emissions, according to the Court, does not expropriate property but only restricts its use. Asking further whether this restriction is in the public interest and proportionate, the 97

 Supra.

98

Judgment of 30 June 2005, 7 C 26.04.

99

Decision of 22 October 1986, 2 BvR 197/83.

100

Decision of 7 June 2000, 2 BvR 1/97.

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Court found that climate protection does pursue the public interest, and the restriction is proportionate taking into account that the emission allowances were allocated for free. The subsequent constitutional appeal to the Bundesverfassungsgericht was not accepted.101 The appeal did not fulfil the requirements according to Bananenmarktordnung, because the appellant did not exhibit a lack of protection of fundamental rights at the European level. Furthermore, the Bundesverfassungsgericht established that not referring the question to the CJEU is not necessarily a violation of the right to one’s lawful judge (Art. 101 I GG). The Bundesverfassungsgericht argued that the Bundesverwaltungsgericht did not act arbitrarily in consideration of the cooperation between national courts and the ECJ. It rather respected the CJEU’s case law and the CJEU’s specifications with regard to the protection of European fundamental rights and verified the breach of EU fundamental rights in detail.102 Another field in which the breach of fundamental rights was put forward is in connection with Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the context of the three-step procedure (Art. 4 of the directive) for designating special areas of conservation. Several German proceedings dealt with lists of sites indicating natural habitat types by the Member States and their transmission to the European Commission according to Art. 4(1) of Directive 92/43/EEC and concerning landowners’ rights.103 The plaintiffs maintained that their property rights were directly and individually affected by denying their applications to be taken off those lists and they claimed that the notification by German authorities took effect similar to a final decision as the Commission itself would have no scope to decide on sites being listed according to Art. 4(2) of Directive 92/43/EEC. Furthermore, the right to dispose of their property had been restricted from the moment it was listed by the Member State. All actions were dismissed by national courts. Most of them did not verify the breach of fundamental rights at all. Instead, the actions were dismissed as inadmissible. The act of notification and transmission to the European Commission was qualified as an internal administrative process and could, therefore, not determine any legal relationship. The latter would have been an indispensable condition for an admissible declaratory relief. The claimants were referred to seek legal remedies against national official decrees designating concrete sites as special areas of conservation. Some landowners in Germany brought their cases to the European Court and claimed that their property rights were directly and individually affected by the decision of the Commission regarding Art. 4(2) of Directive 92/43/EEC. The General Court dismissed such an action for annulment of a Commission Decision.104 The Verwaltungsgericht 101

Decision of 14 May 2007, 1 BvR 2036/05.

102 103

See Chapter 14 in this volume.

OVG Lüneburg of 21 March 2006, 8 LA 150/02; OVG Münster of 14 May 2003, 8 A 4229/01; OVG Bremen of 31 May 2005, 1 A 346/02, next instance Bundesverwaltungsgericht of 7 April 2006, 4 B 58/05.

104

Case T-117/05 R Rodenbröker and Others v Commission [2005] ECR II-2593; Case T-117/05 Rodenbröker and Others v Commission [2006] ECR II-72.

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Bayreuth verified whether the Commission Decision respected European fundamental law.105 It ruled that the act of including in the list of sites of Community importance by the Commission did not breach European law. The Court referred to the above-mentioned decision of the Bundesverwaltungsgericht of 30 June 2005 and verified whether Directive 92/43/EEC breached the property right in its European dimension. It came to the conclusion that Directive 92/43/ EEC did not force expropriation and that it was necessary, adequate and proportionate to protect important natural habitat types.106 Spain The Supreme Court107 rejected an appeal formulated by Arcelor against the decision of the Council of Ministers of 21 January 2005, by which individual emissions rights under Directive 2003/87/EC were allocated. The company asked the courts to submit two referrals for a preliminary ruling to the European Court. As concerns the first referral, the company claimed, i.a., that the inclusion of the iron and steel sector in the European emissions trading mechanism was in breach of the principle of equality, lacked an objective justification and was in breach of the principle of proportionality. As the directive should be understood to be void and illegal for reasons of the breach of these fundamental principles, so should the national legislation that implemented it (Law 1/2005). Therefore, the decision of the Council of Ministers, which was taken on the ground of said Act, was also illegal. The Supreme Court refused to refer those questions, because a similar preliminary ruling on the validity of the directive had been previously formulated by the French Conseil d’État 108 and was rejected by the ECJ in its judgment of 16 December 2008,109 and the Spanish Supreme Court performed its own preliminary review in order to decide whether to refer the question to the European Court, and refused to formulate the preliminary ruling, as it understood that the question was clear to the court (‘acte clair’ as developed in CILFIT). The national regulation on emissions trading schemes also states that, when an installation is closed down, the company loses the emissions rights that were assigned to it and were not surrendered yet. In this sense, the plaintiff company claimed that the domestic provision in question conflicted with European Directive 2003/87/EC. However, the Supreme Court made its own interpretation of the case and found that the system enshrined in the Spanish legislation was not openly contradictory to Directive 2003/87/EC. Therefore, the court refused to refer for a preliminary ruling on the interpretation of Art. 12 of said directive, as demanded by the plaintiff. Moreover, the EU General Court had previously adjudicated a similar claim, in connection with 105

Decision of 28 January 2010, 2 K 09.739.

106 107

See Chapter 14 in this volume.

Decision of 17 July 2009.

108

See paragraph on France above.

109

See point 2.4.2 above.

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the German system of allocation of tradable emissions, and found no contradiction with the directive.110

4 The EU and the internal allocation of powers within member states



4.1 The EU approach

Article 4(3) TEU puts Member States under a duty to implement provisions of EU law so as to ensure fulfilment of the obligations contained therein. Member States are to adopt all measures of national law necessary to implement legally binding EU acts (Art. 291(1) TFEU) in accordance with their particular constitutional traditions. Accordingly, depending on the subject-matter, the implementation of an EU provision may fall within the remit of legislative or executive bodies at the national or regional level. Each Member State is free to delegate powers to its domestic authorities as it considers fit and to implement directives by means of measures adopted by regional or local authorities. That does not, however, release it from the obligation to give effect to the provisions of the directive by means of national provisions of a binding nature.111 Each competent body is under a duty to amend domestic law so as to make it conform to EU law. In that respect the CJEU has held that Article 171 EEC Treaty (now Art. 260 TFEU) states that: ‘if the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice’.

All the institutions of the Member States concerned must, in accordance with that provision, ensure within the fields covered by their respective powers that judgments of the Court are complied with. If the judgment declares that certain legislative provisions of a Member State are contrary to the Treaty, the authorities exercising legislative power are under a duty to amend the provisions in question so as to make them conform to the requirements of EU law. For their part, the courts of the Member State concerned have an obligation to ensure, when performing their duties, that the Court’s judgment is complied with.112 In connection with federal states, the European Court ruled that it is for all the authorities of the Member States, whether it be the central authorities of the 110

Case T-16/04 Arcelor v Parliament and Council [2010] ECR II-211. Compare with the similar Cockerill Sambre and sa Arcelor case of the Belgian Constitutional Court discussed above. See Chapter 10 in this volume.

111

Case 96/81 Commission v Netherlands [1982] ECR 1791, para. 12.

112

Case 314/81 Procureur de la République v Waterkeyn [1982] ECR 4337.

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State or the authorities of a federated State, or other territorial authorities, to ensure observance of the rules of EU law within the sphere of their competence: ‘However, it is not for the Commission to rule on the division of competences by the institutional rules proper to each Member State, or on the obligations which may be imposed on federal and Länder authorities respectively. It may only verify whether the supervisory and inspection procedures established according to the arrangements within the national legal system are in their entirety sufficiently effective to enable the Community requirements to be correctly applied’.113

The division of powers within a Member State does not preclude a breach of the duty to implement EU legislation from being invariably imputed to the Member State itself at EU level. The CJEU has held that the obligations arising from Article 95 EEC (now Art. 110 TFEU) devolve upon States as such and the liability of a Member State under Article 169 EEC (present Art. 258 TFEU) arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution.114 A Member State cannot plead the provisions or practices of its internal order to justify failure to observe obligations and time-limits arising from EU Regulations. ‘It falls to a Member State in accordance with the general obligations imposed on Member States by Article 5 EEC [present Art. 4(3) TEU] to recognize the consequences, in its internal order, of its adherence to the Community and, if necessary, to adapt its procedures […] in such a way that they do not form an obstacle to the implementation, within the prescribed time-limits, of its obligations within the framework of the Treaty.’115

According to settled case law, a Member State may not plead provisions, practices or situations in its internal legal order, including those resulting from its federal organization, in order to justify a failure to comply with the obligations and time-limits laid down in a directive.116



4.2 The national approach

Austria Pursuant to the Austrian Constitution (Art. 23d B-VG), the general provisions of the Constitution on the division of competences between 113

Case C-8/88 Germany v Commission [1990] ECR I-2321, para. 13.

114

Case 77/69 Commission v Belgium [1970] ECR 237, para. 15; Case C-8/70 Commission v Italy [1970] ECR 961.

115

Case 30/72 Commission v Italy [1973] ECR 161, para. 11.

116

Case C-236/99 Commission v Belgium [2000] ECR I-5657, para. 23; Case C-111/00 Commission v Austria [2001] ECR I-7555, para. 12; Case C-423/00 Commission v Belgium [2002] ECR I-593, para. 16.

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the Federation and the States (Länder) are relevant also with regard to the implementation of EU law. Whether the Federation or the States have the legislative power to transpose a directive is determined by the Austrian Constitution only. Hence, in a situation where neither the federation nor the states have power of legislation to transpose provisions of a directive, direct effect cannot make up for this deficiency. Unless the Constitution is amended, providing for sufficient legislative competences, claims for state liability and infringement proceedings are the only ‘remedies’ available. In a judgment concerning the transposition of the provisions on ‘energy efficiency’ laid down in the IPPC Directive, the Austrian Constitutional Court held, accordingly,117 that even if neither the Federation nor the States had sufficient legislative competences to transpose the IPPC Directive, the problem could not be solved by direct effect.118 The fragmentation and division of competences among the Federation and the Länder is often an impediment for the (timely and complete) implementation of EU directives. Consequently, Austria faced several infringement proceedings, e.g. concerning the implementation of the IPPC Directive, the SEA Directive or the directive on Environmental Liability. Attempts to achieve a constitutional reform regarding the allocation of competences have not been successful so far. Nor has an overall reform designed to standardize and centralize the regulatory framework for licensing procedures (‘einheitliches Anlagenrecht’) been achieved. However, with the process of joining the European Union, a breakthrough was achieved at least in the field of EIA: in Austria the EIA-decision is integrated into a consolidated permit procedure, thereby assuring a comprehensive review of environmental impacts. The authority competent for the EIA (Landesregierung, State Government) is required to apply all relevant legislation both from the state and federal levels.119 Belgium Environmental policy in Belgium falls largely within the remit of the three autonomous regions: the Flemish Region, the Walloon Region and the Brussels-Capital Region. This is particularly the case for environmental protection and nature conservation (Art. 6(1), III, of the Special Act of 8 August 1980 on institutional reform). As a result, three different regional legislations exist, also in the case of implementation of EU law. For certain matters, however, (marine protection, setting product standards, protection against ionizing radiation, etc.) the federal state is competent. In contrast to Austria, there are no gaps in the system of division of competences, as the federal state is competent for the so-called residual matters, so that the federal level can handle the necessary matters if the regions are not competent to do so. It is possible that a given directive must partially be implemented by the regions and partially by the federal government. As long as not all levels have taken the necessary implementing 117 

VfSlg 17.022/2003.

118 119

See Chapter 9 in this volume.

See Chapter 9 in this volume.

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measures for a given directive, Belgium will fail to fulfil its EU obligations. That partly explains the high number of condemnations of Belgium for failing to comply with EU environmental law. For some matters a so-called co-operation agreement – a sort of internal treaty – between the different levels is prescribed by constitutional law (e.g. for the implementation of the so-called Seveso-II Directive). The Constitutional Court came to the conclusion that, although not prescribed by Constitutional law and given the weak link with the territory of a region, the ETS scheme for aviation should be implemented in Belgium by a co-operation agreement between the federal state and the regions. In view of the respect of the legal certainty principle and to ensure that Belgium is able to give full effect to Directive 2008/101/EC (amending the ETS Directive), the consequences of the annulment of the Decree of the Flemish Region that applied to airline companies with a main hub in Flanders (including Brussels National Airport) must be postponed so that the matter of ETS for Aviation can be regulated by a Co-operation Agreement between the Federal State and the Regions.120 The different governments were, however, unable to conclude such an agreement in time.

120

Constitutional Court, n° 33/2011, 2 March 2011, Brusselse Hoofdstedelijke Regering, TMR 2011, 249-254. Cf. Lavrysen (2011) 121-169.

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Bibliography • Alemanno (2010) A. Alemanno, ‘What Has Been, and What Could Be. Thirty Years after Les Verts/European Parliament’, in M. Poiares Maduro & L. Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford & Portland Oregon, Hart Publishing 2010). • Alen & Melchior (2005) A. Alen et.al. & M. Melchior et al, ‘General Report’, in The relations between the Constitutional Courts and the other national courts, including the interference in this area of the action of the European courts, Conference of European Constitutional Courts XIIth Congress, Reports, Part I (Bruges, Vanden Broele 2005). • Arnold (2007) R. Arnold, ‘Germany and the EU Constitutional Treaty’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007). • Besselink (2007) L.F.M. Besselink, ‘The Dutch Constitution, the European Constitution and the Referendum in the Netherlands’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007). • Bossuyt & Verrijdt (2011) M. Bossuyt & W. Verrijdt, ‘The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment’, European Constitutional Law Review, 7: 355-391, 2011. • Claes (2010) M. Claes, ‘The European Constitution and the Role of National Constitutional Courts’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007). • Fennelly (2010) N. Fennelly, ‘The European Court of Justice and the Doctrine of Supremacy; Van Gend en Loos; Costa v. ENEL; Simmenthal’ in, M. Poiares Maduro & L. Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty(Oxford & Portland Oregon, Hart Publishing 2010). • Grabenwarter (2010) Ch. Grabenwarter, ‘National Constitutional Law Relating to the European Union’, in A. Von Bogdandy & J. Bast (eds.), Principles of European Constitutional Law (Oxford – München – Portland, Hart Publishing – Verslag CH Beck 2010).

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• Jacqué (2010) J.-P. Jacqué, ‘Les Verts v The European Parliament’ in M. Poiares Maduro & L. Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford & Portland Oregon, Hart Publishing 2010). • Jans & Vedder (2012) J.H. Jans & H.H.B. Vedder, European Environmental Law. After Lisbon (Groningen, Europa Law Publishing 2012). • Komárek (2012) J. Komárek, ‘Playing With Matches: The Czech Constitutional Court’s Ultra Vires Revolution’, Verfassungsblog (http://verfassungsblog.de/category/policy/ czech-republic/) (consulted on 7 March 2012). • Krämer (2011) L. Krämer, Droit de l’environnement de l’Union européenne. Dossier de droit européen n° 23 (Basel, Helbing Lichtenbahn 2011). • Laffranque (2007) J. Laffranque, ‘Ratification of the European Constitution’ in Estonia’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007). • Lavrysen (2011) L. Lavrysen, ‘Le fédéralisme belge et la politique de l’environnement: concertation, coopération et… agir chacun pour soi dans un contexte européen’, Revue de droit de l’ULB 2011/1-2, 121-169. • Lenaerts (2010) K. Lenaerts, ‘The Basic Constitutional Charter of a Community Based on the Rule of Law’, in M. Poiares Maduro & L. Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford & Portland Oregon, Hart Publishing 2010). • Lenaerts & Van Nuffel (2011) K. Lenaerts & P. Van Nuffel, European Union Law. Third edition (London, Sweet & Maxwell 2011). • Mayer (2010) F.C. Mayer, ‘Multilevel Constitutional Jurisdiction’, in A. Von Bogdandy & J. Bast (eds.), Principles of European Constitutional Law (Oxford – München – Portland, Hart Publishing – Verlag CH Beck 2010). • Misonne (2011) D. Misonne, Droit européen de l’ environnement et de la santé. L’ambition d’un niveau élevé de protection (Limal, Anthemis 2011). • Ojanen (2007) T. Ojanen, ‘The European Constitution in the Far North’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007).

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• Peiffert (2011) O. Peiffert, ‘L’encadrement des règles constitutionnelles par le droit de l’Union européenne’, Cahiers de Droit européen, 2011/2, 433-470. • Pérez Tremps & Saiz Arnaiz (2007) P. Pérez Tremps and A. Saiz Arnaiz, ‘Spain’s Ratification of the Treaty’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007). • Pernice (2010) I. Pernice, ‘Costa v ENEL and Simmenthal: Primacy of European Law’, in M. Poiares Maduro & L. Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford & Portland Oregon, Hart Publishing 2010). • Pollicino (2008) O. Pollicino, ‘European Arrest Warrant and Constitutional Principles of the Member States: a Case Law-Based Outline in the Attempt to Strike the Right Balance between Interacting Legal Systems’, German Law Journal, Vol. 9 N° 10, 2008, 1313-1355. • Rosas & Armati (2010) A. Rosas & L. Armati, EU Constitutional Law. An Introduction (Oxford & Portland Oregon, Hart Publishing 2010). • Von Bogdandy (2010) A. Von Bogdandy, ‘Founding Principles’, in A. Von Bogdandy & J. Bast (eds.), Principles of European Constitutional Law (Oxford – München – Portland, Hart Publishing – Verslag CH Beck 2010). • Walker (2010) N. Walker, ‘Opening or Closure? The Constitutional Intimations of the ECJ’, in M. Poiares Maduro & L. Azoulai (eds.), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford & Portland Oregon, Hart Publishing 2010). • Ziller (2007) J. Ziller, ‘French Reactions to the Treaty Establishing a Constitution for Europe: from Constitutional Welcome to Popular Rejection’, in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Alphen aan den Rijn, Kluwer Law International 2007).

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Judicial Dialogue, Judicial Competition and Global Environmental Law A Case Study on The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters Jan H. Jans

chapter 7



judicial dialogue, judicial competition and global environmental law

1 Introduction1

According to Article 19(1) of the Treaty on European Union (TEU), Member States are responsible for providing remedies sufficient to ensure effective legal protection in the fields covered by Union law. Environmental law (Article 4(2)(e) of the Treaty on the Functioning of the EU (TFEU) in combination with Articles 191-193 TFEU) is such a field.2 It should be noted that in the EU substantive environmental rules (emission standards, quality standards, products standards, etc.) have been harmonised to a significant extent. This substantive law, generally contained in Union directives, is transposed into national legislation and applied and enforced by national authorities. However, with respect to issues concerning access to justice in environmental matters things are different. The EU Member States are in principle competent to determine (and responsible for determining) the applicable procedures and the way they are organised. In other words, the way in which a provision of Union environmental law can be invoked in the national legal system and the form in which this occurs depends largely on national law. According to the established case law of the European Court of Justice, it is, in the absence of Union law, for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Union law.3 In other words, Union law does not in principle concern itself with the manner in which it is applied within the national legal orders. This is known in European law as the principle of procedural autonomy. As an expression of the subsidiarity principle, procedural autonomy implies a degree of variation in the manner in which substantive Union law is applied throughout the Member States. And indeed, it has emerged from research 4 that national procedural environmental law varies from one European country to the next. There are, for exam1

This chapter builds on some of my previous publications, e.g., ‘Who is the referee? Access to Justice in a Globalised Legal Order. A Case Analysis of ECJ Judgment C-240/09 Lesoochranárske zoskupenie of 8 March 2011’. In: REALaw 2011/1, p. 85-97.

2

The competences of the EU in the area of environmental protection must be regarded, also in the words of the Article 4(2) TFEU, as a ‘shared competence’. A shared competence implies that both the Union and Member States may legislate and adopt legally binding acts in that area. However, the Member States shall exercise their competence only to the extent that the Union has not already exercised, or has decided to cease exercising, its competence. Cf. in general J.H. Jans and H.H.B. Vedder, European Environmental Law, 4th edition, Europa Law Publishing 2012.

3

Case 45/76 Comet [1976] ECR 2043; Case 33/76 Rewe [1976] ECR 1989 and Case 265/78 Ferwerda [1980] ECR 617. Cf. on this so-called Rewe/Comet case law: Jans et al., Europeanisation of Public Law. Europa Law Publishing 2007, Chapter 2.

4

See, for example, N. de Sadeleer, G. Roller & M. Dross (eds.), Access to Justice in Environmental Matters and the Role of NGOs; Empirical Findings and Legal Appraisal. Europa Law Publishing 2005.

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ple, differences in time limits for appeal,5 standing requirements in particular for NGOs, access to legal aid, intensity of judicial review,6 court and other legal costs,7 differences in the length of judicial proceedings, etc. As a result, comparable proceedings may produce very different outcomes. Although there is no general competence of the Union legislature to harmonise legal proceedings in the Member States it does act, bit by bit, when the Union legislature considers that these differences have become too great in a certain area and it may decide to take legislative action and harmonise national legislation in that area. In such cases, it is not only the substantive law that is harmonised but also the manner in which Member States must apply it. With respect to access to justice in environmental matters, the main legal instrument is the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the so called Aarhus Convention). The Aarhus Convention is a, in EU-speak, a ‘mixed agreement’, one to which both the EU and its Member States are parties.8 For the time being, it suffices to say that access to justice in environmental matters is influenced by three sets of rules: international environmental law (the Aarhus Convention), EU environmental law (the Directives and the Regulation implementing the Aarhus Convention in the EU) and national environmental law (national rules on access to court). The first case law shows the interplay of these rules on access to court. However, before we are to consider some of these cases, we have to present the rules of the Aarhus Convention and its EU implementing measures in a little more detail.



2 The Aarhus Convention and the EU

Under Article 216(2) TFEU, agreements concluded by the EU are binding on the institutions of the Union and on its Member States. Provisions of EU law must as far as possible be interpreted in a manner that is consistent with international agreements concluded by the Union.9 At the same time, national courts are required to interpret national procedural rules as far as

5

Cf. English Court of Appeal 12 April 2000 Regina v North West Leicestershire Country Council, East Midlands International Airport Ltd., ex parte Moses [2000] Env. L.R. 443. Reasonable time limits have been upheld as being compatible with the requirements of Union law; Case C-188/95 Fantask [1997] ECR I-6783.

6

Cf. with respect to the Aarhus Directive 2003/35 requiring courts to examine the substantive legality of a decision Case C-427/07 Commission v Ireland [2009] ECR I-6277, paras. 87-89.

7

Cf. also Case C-427/07 Commission v Ireland [2009] ECR I-6277, paras. 92-93.

8

Decision 2005/370/EC, OJ 2005 L 124/1.

9

Cf. Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, para. 22, and as regards the Aarhus Convention in particular, Case C-240/09 Lesoochranárske zoskupenie, judgment of 8 March 2011, especially paras. 50-51.

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possible in the light of the international commitments of the European Union.10 Where the subject matter of an agreement concerns partly the competence of the Union and partly that of the Member States, it is essential to ensure close cooperation between the Member States and the Union, both in the process of negotiation and conclusion and in the fulfillment of the commitments entered into.11 In addition, Member States must refrain from measures – unilateral or otherwise – which could jeopardise the attainment of the Union’s objectives. As is clear from Article 4 TFEU, environmental policy is a ‘shared’ competence. Neither the Union nor its Member States have exclusive competence in this area. This is also reflected in Article 191(4) TFEU, in the field of external relations. Multilateral environmental conventions and the Aarhus Convention are not different in this respect, and will, as a rule, fall partly under the competence of the Union and partly under the competence of the Member States. In this paper we will concentrate our analysis on Articles 9(2), 9(3) and 9(4) of the Aarhus Convention. Article 9(2) of the Aarhus Convention requires access to justice for a group of decisions specifically listed in the Convention and reads: Each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission […].

Article 9(3) provides a basic obligation to provide access to justice for all other decisions relating to the environment: In addition […], 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.

Article 9(4) of the Aarhus Convention provides essentially that environmental review procedures shall be ‘[…] fair, equitable, timely and not prohibitively expensive’. The provision is applicable both to Article 9(2) and 9(3) procedures. To meet the obligations under the Aarhus Convention, the EU took the following measures: • Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters to Community 10 11

Cf. Case C-53/96 Hermès International [1998] ECR I-3603, para. 28.

See, for example, in the field of environmental law Case C-246/07 Commission v Sweden [2010] ECR I-3317.

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institutions and bodies;12 In view of the fact that the EU institutions do not take decisions falling under Article 9(2) of the Aarhus Convention, the Regulation, by creating an internal review procedure for certain NGOs, deals with Article 9(3) of the Convention in particular. • Directive 2003/35 providing for public participation with respect to the drawing up of certain plans and programmes relating to the environment.13 The preamble to that directive shows that it is exclusively intended to implement Article 9 paragraphs 2 and 4 of the Aarhus Convention. The directive more or less copied and pasted Articles 9(2) and (4) of the Convention and provides a legal framework for access to justice in the Member States as far as it concerns decision-making on EIAs and with respect to major industrial installations. A proposal from the Commission to implement the access to justice provisions of Article 9(3) Aarhus Convention via a directive is, politically speaking, ‘dead’.14 In other words, the European legislature has still not taken any measures to implement Art. 9(3) Aarhus Convention with respect to environmental decisions by the Member States. We have already mentioned that the Aarhus Convention is a so-called ‘mixed agreement’. It is clear from the case law of the CJEU that when a convention falls partly within the competence of the Member States and partly within that of the Union, it can only be implemented by means of a ‘close association between the institutions of the Community and the Member States both in the process of negotiation and conclusion and in the fulfilment of the obligations entered into.’15 The conclusion of mixed agreements requires that certain matters must be regulated with regards to the relationship between the Union and its Member States on the one hand, and the other parties to the convention on the other. A problem with mixed environmental agreements concerns the extent to which the Union and its Member States are bound by them vis-à-vis the other contracting parties. After all, mixed agreements are concluded, because neither the Union nor the Member States has exclusive competence. To what extent does this internal division of powers affect the legal position of the other parties? Is the Union only bound as far as third countries are concerned in respect of those provisions that fall within its competence? To overcome these problems, most multilateral treaties on the environment contain specific provisions on the matter. With respect to the Aarhus Convention, the EU declared: ‘[…] that the legal instruments in force do not cover fully the implementation of the obligations resulting from Article 9(3) of the Convention as they relate to administrative and judicial procedures to challenge acts and omissions by private persons 12 13

OJ 2006 L 264/13.

OJ 2003 L 156/17.

14 15

COM/2003/0624 final.

Opinion 2/91 [1993] ECR I-1061 (ILO-convention no. 170). Cf. also the ‘principle of sincere cooperation’ mentioned in Article 4(3) TEU.

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and public authorities other than the institutions of the European Community as covered by Article 2(2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations.’16

This declaration of competence also raises the question of the CJEU’s authority to interpret provisions of mixed agreements, in this case the provisions of the Aarhus Convention. The general rule on this has been laid down by the ECJ in Merck Genéricos.17 In essence, the Court held in that judgment that the jurisdiction to ascribe direct effect to a provision of a mixed agreement depends on whether that provision is found in a sphere in which the EU had legislated. If so, EU law would apply; if not, the legal order of a Member State was neither required nor forbidden to accord to individuals the right to rely directly on the rule in question.



3 Introducing the ‘players’

We have already mentioned in the introduction that, within the European Union, access to justice in environmental matters is influenced by three sets of rules: international environmental law (the Aarhus Convention), EU environmental law (the Directives and the Regulation implementing the Aarhus Convention in the EU) and national environmental law (national rules on access to court). Let us introduce the main ‘players’ with respect to the interpretation of the access to justice provisions of the Aarhus Convention. They are: • the Aarhus Compliance Committee and parties to the Aarhus Convention joined in the Meeting of the Parties (MoP); • national courts of the contracting parties; • the Court of Justice of the European Union; • the European Court on Human Rights.



3.1 Aarhus Compliance Committee cum annexis

An important role to ensure compliance with the provisions of the Aarhus Convention is played by the so-called Aarhus Compliance Committee (ACC). The origins of the ACC can be found in Article 15 of the Aarhus Convention that provides: 16

See Decision 2005/370/EC, Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decisionmaking and access to justice in environmental matters. OJ 2005 L 124/1 and OJ 2006 L 164/17.

17

Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2007] ECR I-7001.

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The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.

In its decision I/7 MoP the Meeting of the Parties decided that ‘communications may be brought before the Committee by one or more members of the public concerning that Party’s compliance with the Convention.’ The ACC consists of eight independent experts who have recognised competence in the field and who serve in their personal capacity. Remarkably, the ACC accepts not only the submissions of Parties to the Convention and referrals from the Secretariat about non-compliance with the Convention but also communications from the public. The ACC is not to be regarded as court or tribunal providing individual remedies to individuals. Its main focus is to strengthen compliance by making recommendations to the Meeting of the Parties. According to the Committee’s first Chairman, Prof. Veit Koester: ‘If and when the Committee does reach some conclusions, these will be referred to the Meeting of the Parties, which will be the final arbiter as to whether or not there is a case of non-compliance.’ From the perspective of the Aarhus Convention and its objectives this statement makes perfect sense.



3.2 The Court of Justice of the European Union and the European Court on Human Rights However, let us take a different perspective, that of the European Court of Justice. The Aarhus Convention is a ‘mixed treaty’ and, as a matter of EU law, binding on the EU and its Member States. In the terminology of the CJEU: the Aarhus Convention is ‘an integral part of the legal order of the European Union’ (Slovak Bears case). Furthermore, although in particular Directive 2003/35 more or less copied the provisions of the Aarhus Convention, from a formal point of view the access to justice provisions of Directive 2003/35 are to be considered ‘EU law’. Besides, it is quite clear that, once again from the perspective of EU law, the European Court of Justice is the final arbiter on the interpretation of EU law. Matters are, however, more complicated. The access to justice provisions of Directive 2003/35 cannot be looked at and analysed in isolation. They are embedded in a more overarching general doctrine: the right to an effective remedy and to a fair trial as enshrined in Article 47 of the Charter on Fundamental Rights of the EU. And that provision finds it origins in just another part of ‘European law’ that is Articles 6 and 13 of the European Convention on Human Rights of which the European Court on Human Rights is the final arbiter. That treaty is, however, clearly linked to the EU Treaties. According

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to Article 6(3) TEU: ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’18



3.3 National (Constitutional) Courts

But let us not forget the important role of the national courts. The Aarhus Convention requires the parties to submit national compliance reports. The reports show that many countries changed their legislation to comply with the Aarhus Convention. The Constitutions in several countries declare that international treaties and conventions can have direct effect (selfexecuting effect) in national the legal system and/or take precedence over national law. Articles 93 and 94 of the Dutch Grondwet (Constitution) provide for the application of international law in the Netherlands. They state: ‘Article 93: Provisions of treaties and of decisions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published.’ ‘Article 94: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of decisions by international institutions.’

In other countries such precedency and/or primacy rules are non-existent. Furthermore, national constitutional law, written and unwritten, in several countries provides that national law must be interpreted in such a manner as to comply with international law. For example, it is a principle of Dutch constitutional law that domestic Dutch law should be interpreted in the light of the public international law obligations of the Dutch state, and in the UK the House of Lords held in the Pinochet case that the State Immunity Act 1978 had to be interpreted in a manner which accords with public international law.19

Having introduced the most important players, my interim conclusion is as follows. The Meeting of the Parties, with assistance of the Aarhus Compliance Committee, is the final arbiter regarding compliance with the Aarhus Convention. The European Court of Justice is the final arbiter regarding the interpretation of EU law. The European Court on Human Rights (ECtHR) is the final arbi18

See also Article 6(2) EU: ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.’

19

UK House of Lords 24 March 1999 Regina v Bartle and the Commissioner of Police for the Metropolis and others, ex parte Pinochet [1999] UKHL 147, [2000] 1 AC 147.

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ter on compliance with the European Convention on Human Rights (ECHR). And, finally, national (constitutional) courts are the final arbiters on matters of national (constitutional) law. Let us now have look at some cases and how this multi-layered system truly functions.



4 The Question of ‘Who Decides Who Has Access to Justice’ in Environmental Matters is a Difficult One The following two cases – one from the European Court of Justice and one from the Dutch Council of State – illustrate the problems regarding the demarcation of the various jurisdictions.



4.1 The Slovak Bears case

First, let us present the Slovak Bears case from the European Court of Justice.20 The facts are as follows. A Slovak NGO (Lesoochranárske zoskupenie VLK (LZV) in English: the WOLF Forest Protection Movement 21 requested that the Slovak ministry for the environment inform it of any administrative decision-making procedures which might potentially affect the protection of nature and the environment or which concerned the granting of derogations to the protection of certain species or areas. At the beginning of 2008, LZV was informed of a number of pending administrative proceedings brought by, i.a., various hunting associations. On the 21st of April 2008, the Ministry took a decision granting a hunting association’s application for permission to derogate from the protective conditions accorded to brown bears. In the course of that procedure, it notified the Ministry that it wished to participate, seeking recognition of its status as a ‘party’ to the administrative proceedings under the provisions of Article 14 of the Slovakian Administrative Procedure Code. In particular, LZV asserted that the proceedings in question directly affected its rights and legally protected interests arising from the Aarhus Convention. It also considered the convention to have direct effect. The ministry, however, argued that LZV did not have the status of ‘party’ but of ‘participant’ or ‘interested party’. Prior to the 30th of November 2007, Slovakian law (the second sentence of Article 83, paragraph 3, of Law No. 543/2002) gave NGOs the status of ‘parties to the proceedings’ to associations whose objective was the protection of the environment. These associations had the opportunity to contest any decisions taken before the Slovak courts. However, that law was amended with effect from the 1st of December 2007. The effect of that amendment is that environmental associations are now classed as ‘interested parties’ rather than as ‘parties to the proceedings’. In practice, the change of status precludes those associa20 21

Case C-240/09 Lesoochranárske zoskupenie, judgment of 8 March 2011.

See their bilingual website at http://www.wolf.sk/en/en-home.

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tions from directly initiating proceedings themselves to review the legality of decisions. Instead, they must request a public attorney to act on their behalf. In its decision of 26th of June 2008, the ministry confirmed that LZV did not have the status of a ‘party’ to the proceedings. LZV could not, therefore, appeal against the decision of the 21st of April 2008. Moreover, the ministry considered the Aarhus Convention an international treaty, which needed to be implemented in national law before it could take effect. The court held that Article 9(2) and (3) of the Aarhus Convention does not contain any unequivocally drafted fundamental rights or freedoms which would be directly applicable to public authorities. LZV lodged an action against the contested decision at the Bratislava Regional Court. That court dismissed LZV’s application. LZV appealed to the Slovak Supreme Court, which stayed the proceedings before it and referred preliminary questions on the interpretation of the Aarhus Convention to the Court of Justice. In particular, it wanted to know whether Art. 9(3) of the Aarhus Convention is directly effective within the meaning of settled case law of the CJEU. In short, the question is whether the CJEU itself or the competent court of a Member State is best-placed to determine whether Article 9(3) of the Aarhus Convention has direct effect or not? The general rule on this has been laid down by the Court in Merck Genéricos.22 In essence, the Court held in that judgment that the jurisdiction to ascribe direct effect to a provision of a mixed agreement depends on whether that provision is found in a sphere in which the EU had legislated. If so, EU law would apply; if not, the legal order of a Member State was neither required nor forbidden to accord to individuals the right to rely directly on the rule in question. In view of the fact that the European legislature has not taken any measures to implement Art. 9 paragraph 3 of the Aarhus Convention (see also the declaration of competence supra) with respect to environmental decisions by the Member States, one would have expected – as was also suggested by the advocate-general Sharpston in this case – the CJEU would give room to the Slovak courts to decide the matter. However, in a remarkable judgment the Court assumed jurisdiction to decide the matter at hand and that ‘the Court has jurisdiction to interpret the provisions of Article 9(3) of the Aarhus Convention and, in particular, to give a ruling on whether or not they have direct effect’. Basically it argued that because the substance of the dispute (hunting bears) was governed by EU law (e.g. the Habitats Directive), it was also competent to rule on the direct effect of the Aarhus Convention. For almost every environmental dispute one must come to the conclusion that ‘it relates to a field covered in large measure’ by an EU directive (there are more than 200 in all areas of environmental protection). This inevitably means that Article 9(3) of the Aarhus Convention would almost always fall within the scope of EU law and, subsequently, within the jurisdiction of the CJEU.

22

Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2007] ECR I-7001.

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4.2 The Case of Law of the Dutch Council of State

The second case deals with the possible effects of Article 9(2) and (4) of the Aarhus Convention in the national legal order.23 As mentioned supra, these provisions of the Aarhus Convention have been implemented by the EU legislator by means of Directive 2003/35. The context of this judgment was as follows. On 31 March 2010, legislation – the Crisis and Recovery Act (Crisisen herstelwet, Chw) – entered into force in the Netherlands, which, amongst other things, shortens the procedures required before construction projects can commence. It covers, for example, the construction of roads and business parks as well as houses and wind farms. Various provisions of this legislation concern Dutch administrative procedural law.24 Section 1.4 of the Act, for example, provides that – contrary to the first paragraph of section 8:1 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb) – a legal entity established pursuant to public law and not being part of the central government, or an administrative body not being part of the central government, may not appeal against a decision, if that decision is not addressed to that legal entity or to an organ of the legal entity, or to that administrative body or the legal entity of which that administrative body is part. What is more, section 1.6, paragraph 2, and section 1.6a of the Crisis and Recovery Act make it impossible to lodge a pro forma appeal: an appeal will be declared inadmissible, if it does not state the grounds on which it is based. Interested parties have argued in a number of procedures before the Council of State that these provisions are contrary to Article 9(2) and (4), as well as others, of the Aarhus Convention. In the judgments in question, the Council of State observed: Both the Netherlands and the European Union are parties to the Aarhus Convention. From the judgment of the Court of Justice of the European Community of 11 September 2007 in Case C-431/05 Merck Genéricos […], it follows that in a case like that direct reliance on a rule from the Convention in proceedings before a national court is not permitted, if that rule concerns a sphere in which the European Union has laid down rules. Under Directive 2003/35/EEC, by way of implementation of the obligations arising under, i.a., Article 9(2) of the Aarhus Convention, Directive 85/337/EEC […] was amended by the insertion of Article 10a. Given that the European Union has laid down rules in this sphere, it is not possible in these proceedings to rely directly on Article 9(2), but it must be assessed whether national law is in conformity with the law laid down by the European Union in this respect.25 23

Council of State 29 July 2011, LJN: BR4025. See also Council of State 17 November 2010, LJN: BO4217 and 19 January 2011, LJN: BP1342.

24

It is, incidentally, intended to incorporate a number of provisions of the Crisis and Recovery Act in the General Administrative Law Act so that they become generally applicable. See the legislative proposal Wetsvoorstel aanpassing bestuursprocesrecht, Kamerstukken 2009/10, 32450, nr. 1-4.

25

Italics added by the author.

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In other words, according to the Council of State, a claimant cannot rely directly on a provision of a mixed agreement before the national courts, if the rule laid down by the convention concerns a sphere in which the Community lawmaker has already laid down rules. The Council of State bases this position on the judgment in Merck Genéricos. It is my opinion that this cannot be implied from that or any other judgment of the European Court of Justice.26 On the contrary, Member States have an independent duty in law to ensure they do not act in contravention of international obligations entered into by the Union. When faced with the question whether a number of provisions of Dutch administrative procedural law conflict with Article 9(2) and (4) of the Aarhus Convention, amongst others, the Council of State should not have hidden behind Directive 2003/35. After all, under Article 216(2) TFEU, agreements concluded by the EU are binding on the institutions of the Union and on its Member States; this means that Member States have a responsibility of their own to ensure they do not act in contravention of international obligations entered into by the Union.27 By merely examining whether national law was consistent with Directive 2003/35, the Council of State was basically sidelining the Aarhus Convention and rendering it ineffective. In addition, if the Council of State had any doubts concerning the direct effect or otherwise of Article 9(2) of the Convention, or the consequences entailed by the requirement to interpret in a manner which is consistent with the Convention, it should, as the highest national court in this area, have referred the matter to the Court of Justice for a preliminary ruling in accordance with Article 267 TFEU.



5 Limiting Access to Justice for NGOs

The Aarhus Convention recognises the important role NGOs can play in environmental protection.28 In the words of advocate-general Sharpston:29 ‘The provisions on access to justice in environmental matters here at issue start from the premiss that the natural environment belongs to us all. Preventing environmental damage is society’s responsibility, not just the responsibility of individuals or isolated interests. Viewed in that light, the provisions of the Aarhus Convention […] give legal form to the logic of collective action. The individual is 26

A more extensive analysis is due to be published in a Liber Amicorum under the title ‘Direct reliance on the Aarhus Convention before Dutch administrative courts’.

27

The parallel can be drawn with the Costanzo doctrine, in the way local and regional authorities cannot hide behind conflicting national legislation to implement Union measures. See for a detailed consideration M.J.M. Verhoeven, The Costanzo Obligation. The obligation of national administrative authorities in case of incompatibility between national law and European Law, Intersentia 2011.

28

See in particular Article 2(5) and Article 9(2) of the Convention.

29

Cf. her opinion in Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening [2009] ECR I-9967.

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protected by acting in a group and the group is collectively strengthened by its individual members. Both the individual and the general interest are thus better protected; and the benefits for all concerned outweigh the disadvantages.’ […] I take the view that the Aarhus Convention and […] Directive 2003/35, have deliberately chosen to reinforce the role of non-governmental organisations promoting environmental protection. They have done so in the belief that such organisations’ involvement in both the administrative and the judicial stages not only strengthens the decisions taken by the authorities but also makes procedures designed to prevent environmental damage work better.’

The fact that the Aarhus Convention and the EU provisions implementing the Convention aim to enable broad access to justice is not seriously contested in either the case law or the literature.30 Furthermore, the Aarhus Compliance Committee emphasises that a broad interpretation of the Convention should be the rule, not the exception. However, this does not mean that the Aarhus Convention safeguards access for any individual regarding any act of a public authority. Limitations are certainly possible with regard to the persons and bodies who seek access to justice. This follows, amongst others, from the words of Article 9(3) of the Aarhus Convention, in so far as it expressly refers to the national law of contracting States: ‘where they meet the criteria, if any, laid down in its national31 law’ (emphasis added).32 It is remarkable that the barriers to access contained in the Aarhus Regulation (‘individual scope’, ‘external effect’ and ‘legally binding’) particularly concern the type of act against which proceedings can be brought. It follows from the use of the word ‘they’, that the sentence in Article 9(3) of the Aarhus Convention as mentioned above, cannot concern limitations with regard to the type of act. In this respect, it is important to acknowledge that the Aarhus Convention does not introduce an actio popularis (access to justice for all) for environmental matters. Although the Aarhus Convention decided to strengthen the role of non-governmental organisations promoting environmental protection, access to justice in environmental matters can be made subject to certain conditions and limitations. The following sub-paragraphs deal with various cases where certain conditions and limitations were put to the test.

30

See for instance C. Schall, ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’, Journal of Environmental Law 2008, 417-453.

31

Of course, ‘national’ must in the context of legal protection against European institutions be read as ‘EU’.

32

The freedom granted to national legislatures to establish certain requirements for access to justice, is subject to limits, as follows from the judgment of the Court of Justice in Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening [2009] ECR I-9967. The primary objective of the Convention (and the EU implementing measures) to establish a broad access to justice must be guaranteed.

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5.1 The Djurgården case33

This case concerned a reference for a preliminary ruling to the CJEU from the Swedish Högsta domstolen, which wanted to know whether the directive permitted national legislation that allowed access to a court of law or other independent and impartial body only to non-governmental environmental organisations with at least 2,000 members. At the same time, the question arose whether access to the court could be limited on the ground that the persons concerned had already had the opportunity to express their views during the public participation phase of the decision-making procedure. As regards the latter question the Court of Justice observed: ‘It is also apparent therefrom [Article 10a of Directive 85/337, as amended by Directive 2003/35] that any non-governmental organisations which promote environmental protection and meet the conditions which may be required by national law satisfy the criteria, with respect to the public concerned who may bring an appeal, laid down in Article 1(2) of Directive 85/337 read in conjunction with Article 10a.’ ‘[...] participation in an environmental decision-making procedure under the conditions laid down in Articles 2(2) and 6(4) of Directive 85/337 is separate and has a different purpose from a legal review, since the latter may, where appropriate, be directed at a decision adopted at the end of that procedure. Therefore, participation in the decision-making procedure has no effect on the conditions for access to the review procedure.’34

This judgment does not only have serious consequences for Swedish procedural environmental law but for the law of other Member States as well. Dutch law, for instance, contains a provision to the effect that a party may not rely on a breach of a legal rule before a court of law, unless this was first raised during the preceding public participation procedure (section 6:13 Dutch General Administrative Law Act). And German administrative procedural law (what is known as materielle Präklusion) is comparable to Dutch law in this respect.35 In fact, the situation in both Dutch and German law is the reverse of the situation in the Swedish case. As a result of the emphasis on the independent role and function of judicial protection and its separation from the public participation procedure, also in terms of purpose, the question arises to what extent section 6:13 of the Dutch General Administrative Law Act is consistent with the Aarhus Directive. The Court of Justice decision would seem to imply that as far 33

Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening [2009] ECR I-9967.

34

See also para. 48 of the judgment, from which it is clear that access to review procedures may not be limited on the ground that the persons concerned have already been able to express their views in the participatory phase of the decision‑making procedure.

35

Cf. M. Niedzwicki, Präklusionsvorschriften des öffentlichen Rechts im Spannungsfeld zwischen Verfahrensbeschleunigung, Einzelfallgerechtigkeit und Rechtsstaatlichkeit (Berlin 2007).

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as access to justice is concerned it is irrelevant whether or not an organisation has taken part in the decision-making procedure. As regards the ‘2,000-member limit’ the Court of Justice ruled that this was also unacceptable. The Court stressed that while it was true that the words ‘meet the conditions which may be required by national law’ leave it to national legislatures to determine under what conditions environmental organisations may have access to justice, the national rules must both ‘ensure ‘wide access to justice’ and ‘render effective’ the provisions of the EIA Directive on judicial remedies. The Court concluded: ‘Accordingly, those national rules must not be liable to nullify Community provisions which provide that parties who have a sufficient interest to challenge a project and those whose rights it impairs, which include environmental protection associations, are to be entitled to bring actions before the competent courts.’

It is within the Member State’s margin of discretion to require that the environmental organisation has as its object the protection of nature and the environment and: ‘[I]t is conceivable that the condition that an environmental protection association must have a minimum number of members may be relevant in order to ensure that it does in fact exist and that it is active. However, the number of members required cannot be fixed by national law at such a level that it runs counter to the objectives of Directive 85/337 and in particular the objective of facilitating judicial review of projects which fall within its scope.’

Thus, judgment was passed on the ‘2,000-member criterion’: ‘The Swedish Government, which acknowledges that at present only two associations have at least 2000 members and thereby satisfy the condition laid down in Paragraph 13 of Chapter 16 of the Environment Act, has in fact submitted that local associations could contact one of those two associations and ask them to bring an appeal. However, that possibility in itself is not capable of satisfying the requirements of Directive 85/337 as, first, the associations entitled to bring an appeal might not have the same interest in projects of limited size and, second, they would be likely to receive numerous requests of that kind which would have to be dealt with selectively on the basis of criteria which would not be subject to review. Finally, such a system would give rise, by its very nature, to a filtering of appeals directly contrary to the spirit of the Directive which, as stated in paragraph 33 of this judgment, is intended to implement the Aarhus Convention.’

This part of the judgment might have effects for the law of many other Member States as well. In this respect too there are parallels with Dutch administrative procedural law. Though Dutch law does not have a 2,000-member rule,

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there are other impediments to environmental organisations desiring to bring a matter before the courts. Recent case law of the Dutch Council of State has made it clear that ‘litigation-only’ NGOs do not have standing.36 Whether or not this case law is consistent with the Aarhus Directive is not completely clear.



5.2 The Trianel case37

In Trianel, a German administrative court referred, once again to the European Court of Justice, the question of whether environmental organisations should be allowed to argue infringement of rules of law that are intended to protect the legal interests of individuals. According to the German Umweltrechtsbehelfsgesetz (Environmental Appeals Act), environmental organisations have standing only in judicial review, under the condition that the decision challenged is in violation of legal rules that ‘Rechte Einzelner begründen’ (establish individual rights). The Court of Justice found this incompatible with Directive 2003/35, implementing Article 9(2) of the Aarhus Convention. This Directive precludes legislation which does not permit non-governmental organisations to have standing before the courts, in an action contesting a decision authorising projects ‘likely to have significant effects on the environment’ on the infringement of a rule flowing from the environmental law of the European Union and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals. A nongovernmental organisation has the right to have standing before the courts on the infringement of the rules of national law flowing from the Habitats Directive even where, on the ground that the rules relied on protect only the interests of the general public and not the interests of individuals whereas national procedural law does not permit this.



5.3 The Slovak Bears case38

We have already presented this case supra in paragraph 4.1 of this paper. However, this judgment is not only relevant for the question of who is the final arbiter on the interpretation of the Aarhus Convention but in another aspect as well. Once the European Court of Justice had assumed jurisdiction to decide whether or not Article 9(3) Aarhus Convention has direct effect or not in the EU legal order, it decided to deny any direct effect, as a matter of EU law. However, it continued by stating that: ‘if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention [is] be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights 36

Cf. H.D. Tolsma, K.J. de De Graaf, and J.H. Jans, ‘The Rise and Fall of Access to Justice in the Netherlands’, (2009) Journal of Environmental Law, Vol. 21, Issue 2, p. 309-321.

37

Case C-115/09 Trianel Kohlekraftwerk Lünen, judgment of 12 May 2011.

38

Case C-240/09 Lesoochranárske zoskupenie VLK, judgment of 8 March 2011.

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conferred by EU law’. Consequently, ‘it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.’

Although, according to the CJEU, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights that individuals derive from EU law, their discretion seems to be restricted by the Aarhus Convention. In other words, as a matter of European Union law there is an obligation on the Member States to interpret their national access to justice laws in the light of Article 9(3) of the Aarhus Convention. Although Article 9(3) of the Aarhus Convention is too insufficiently clear and precise an obligation to have direct effect, it is precise and clear enough to require the Slovak to court to interpret its national laws so as to enable an environmental protection organisation, such as the LZV, to challenge the Slovak ministry’s decisions. If this analysis is correct, this can only mean that through the use of consistent interpretation Article 9(3) of the Aarhus Convention is applicable across the full breadth of European environmental law.39



5.4 The Stichting Natuur en Milieu and Pesticide Action Network Europe case40 A recent judgment given by the EU’s General Court (previously known as the Court of First Instance) shows the connection between EU law and the Aarhus Convention in yet another way. To fully understand the importance of the judgment, we need to give some background information on the problematic position of third parties, particularly ‘general interest organisations’, seeking judicial protection against measures taken by the EU institutions. Put briefly, the problem is the following. For an action brought by a third party seeking the annulment of an act of a European institution to be admissible, the act must be of ‘direct and individual concern’ to the applicant. Particularly the requirement that the act be of ‘individual concern’ proves in practice to be a hurdle that is virtually insurmountable. According to settled case law, persons are only considered to be individually concerned ‘if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed’. In the literature this is referred to as the Plaumann test. 41 39

Cf. also J. Ebbeson, ‘Access to Justice at the National Level. Impact of the Aarhus Convention and European Union Law’, in: M. Pallemaerts (ed.), The Aarhus Convention at Ten. Interactions and Tensions between Conventional International Law and EU Environmental Law, Europa Law Publishing 2011.

40 41

Case T-338/08, judgment of 14 June 2012. Appeal pending, Case 404/12 and Case 405/12.

Case 25/62 Plaumann v Commission [1963] ECR 95. Cf. on this case law extensively Hans Roland Schwensfeier, Individuals’ Access to Justice Under Community Law (diss. Groningen University 2009).

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To illustrate how this test works we may refer to yet another judgment of the General Court. 42 In 2009, the European Union issued a regulation prohibiting the placing on the market of seal products in the European Union, 43 except those resulting from hunts traditionally conducted by Inuit and other indigenous communities and contributing to their subsistence. The hunt, including the hunting of seals, is an integral part of the culture and identity of the members of the Inuit society and as such is recognised by the UN Declaration on the Rights of Indigenous Peoples. 44 The case concerned an application for annulment of the Regulation, brought by a number of Inuit seal hunters living in Canada and organisations representing their interests, among others. The central element in the Regulation is that only seal products resulting from hunts traditionally conducted by Inuit and other indigenous communities and contributing to their subsistence may be placed on the market (Art. 3 of the Regulation). Without blinking an eyelid, the General Court applied the settled case law regarding ‘individual concern’ from the Plaumann test, with the inevitable result that the action was declared inadmissible.

The Aarhus Compliance Committee has already expressed its concerns about this line of case law. 45 The ACC held that the case law of the CJEU regarding the standing requirements ‘is too strict to meet the criteria of the Convention’. Additionally, it stated that ‘the Committee is also convinced that if the examined jurisprudence of the EU Courts on access to justice were to continue, unless fully compensated for by adequate administrative review procedures, the Party concerned would fail to comply with Article 9, paragraph 3, of the Convention.’ However, the European Court of Justice was never impressed by those, also within the Court-system, who were critical of their case law. Their main argument to uphold their case law was that the ‘judicial system of the European Union is a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions.’46 And that ‘where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of the Treaty [now Article 263, fourth paragraph TFEU], directly challenge Community measures of general application, they are able, depending on the case, either indirectly by pleading the invalidity of such acts before the Community Courts under Article 184 of the Treaty [now 42

Case T-18/10 Inuit Tapiriit Kanatami and Others v EP and Council, Order of 6 September 2011. Cf. on this case J.H. Jans, ‘On Inuit and judicial protection in a shared legal order’, EEELR 2012/4, p. 188-191.

43

Regulation 1007/2009 on trade in seal products, OJ EU 2009 L 286/36.

44

Cf. Art. 20(1) Declaration: ‘Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

45

Findings and Recommendations of the Compliance Committee with regard to Communication Accc/C/2008/32 (Part I), 14 April 2011.

46

See, i.a., Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, para. 40.

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Article 277 TFEU] or to do so directly before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid […] to make a reference to the Court of Justice for a preliminary ruling on validity.’ This ‘communicating vessels’ doctrine (or ‘national-by-pass’ argument) is not undisputed. A basic problem is of course that the ability to challenge measures of the EU institutions is being made dependent on the availability of remedies at the national level. Recently, a new ‘attack’ on this case law has been launched from outside the EU by the Aarhus Compliance Committee. On the 1st of December 2008 the non-governmental organisation ClientEarth submitted a communication to the Committee alleging a failure by the European Union to comply with its obligations under Article 3, paragraph 1, and Article 9, paragraphs 2, 3, 4 and 5, of the Convention. Most interesting are the ACC’s observations on the possibility of judicial review before the EU Courts through national courts of the Member States: ‘While the system of judicial review in the national courts of the EU Member States and the request for preliminary ruling is a significant element for ensuring consistent application and proper implementation of EU law in the Member States, it cannot be a basis for generally denying members of the public access to the EU Courts to challenge decisions, acts and omissions by EU institutions and bodies. Nor does the system of preliminary review amount to appellate system with regard to decisions, acts and omissions by the EU institutions and bodies. Thus, with respect to decisions, acts and omissions of EU institutions and bodies, the system of preliminary ruling does neither in itself meet the requirements of access to justice in Article 9 of the Convention nor compensate for the strict jurisprudence of the EU Courts’.

Remarkable is that in another recent judgment of the General Court it seems to have sided with the ACC and took position contrary to its ‘boss’ the European Court of Justice. 47 In that case two Dutch NGOs challenged a Commission decision granting the Netherlands a temporary exemption from the obligations on ambient air quality. As the judgment of the General Court is now under appeal, we have to wait and see whether the European Court of Justice is as impressed as the General Court by the opinion expressed by the ACC. The EU legislature was apparently also not convinced that the existing European law acquis was in accordance with the Aarhus Convention, and in 2006 adopted Regulation 1367/2006. According to Article 1 of this Regulation, its objective is ‘to contribute to the implementation of the obligations arising under the [...] Aarhus Convention’. 48 In paragraph 2 of this paper we already mentioned 47

Case T-396/09 Vereniging Milieudefensie, established in Amsterdam & Stichting Stop Luchtverontreiniging Utrecht, Judgment of 14 June 2012.

48

See also recital 4 of the preamble: ‘Provision should be made to apply the requirements of the Convention to Community institutions and bodies.’ Italics added.

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that this Regulation focuses on compliance with Article 9(3) Aarhus Convention in particular. This provision requires ‘access to administrative or judicial procedures’. In other words, and unlike Article 9(2) Aarhus Convention, Article 9(3) does not require access to ‘a court of law and/or another independent and impartial body’: access to an ‘administrative procedure’ suffices. With regards to access to justice, Article 10(1) of Regulation 1367/2006 grants environmental organisations which meet certain requirements the right to make a request for internal review of an administrative act under environmental law. 49 The Regulation met criticism in the academic legal literature.50 It was claimed that it hardly brought any improvements to the legal protection of environmental organisations. In particular, it was claimed that the scope of the Regulation was too restrictive. The scope is seriously limited by the fact that the procedure for internal review is only applicable to so-called ‘administrative acts’, a concept defined in the Regulation as ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’. Thus, in order to have access to this procedure for internal review, measures involved must be: • of individual scope; • legally binding and • have external effects. These are cumulative criteria, which means that each and every one of these conditions must be met for the measures to be amenable to internal review. In a previous study we analysed the way this Regulation is being applied by the EU institutions.51 This study showed that this internal review procedure does not function adequately at all. It can be concluded from the small number of requests that have been lodged since the entry into force of the Regulation that the procedure is not very popular. It appears that in the few cases in which a request for internal review has been lodged, this, leaving aside one single case, did not lead to a substantive assessment of the request. The vast majority of the 49

According to Article 11, it must concern environmental organisations which are non-profit-making and have existed for more than 2 years and have the primary stated objective of promoting environmental protection in the context of environmental law. Also, the subject matter in respect of which the request for internal review is made must be covered by its objective and activities.

50

See A.M. Keessen, European Administrative Decisions; How the EU Regulates Products on the Internal Market, European Administrative Law Series (2), Europa Law Publishing 2009, at pp. 151-153, and J.H. Jans, ‘Did Baron von Munchausen ever visit Århus? Some Critical Remarks on the Proposal For A Regulation on the Application of the Provisions of the Aarhus Convention to EC Institutions and Bodies’ In: Reflections on 30 Years of EU Environmental Law; A High Level of Protection?, Prof. Richard Macrory (ed.). Europa Law Publishing 2006, pp. 475-490.

51

J.H. Jans and G. Harryvan, ‘Internal Review of EU Environmental Measures. It’s True: Baron Van Munchausen Doesn’t Exist! Some Remarks on the Application of the So-Called Aarhus Regulation’. Review of European and Administrative Law, Vol. 3, No. 2, pp. 53-65, 2010.

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requests were declared inadmissible. The Regulation’s requirement that the request must concern a decision of ‘individual scope’, or a legal measure with external effect, were in particular grounds for inadmissibility. In that study we argued that the conditions for admissibility of the Regulation and the (broad) application thereof by the EU institutions cannot be based on the Aarhus Convention itself. Therefore, we pleaded that the conditions for admissibility should be interpreted and applied in conformity with the Aarhus Convention. In the Stichting Natuur en Milieu and Pesticide Action Network Europe case the General Court, more or less, sided with us. The General Court, while acknowledging the ECJ’s judgment in the Slovak Bears case stating that Article 9(3) Aarhus Convention is not directly effective was willing to determine the validity of Regulation 1367/2006 in light of the Aarhus Convention, Article 9(3) in particular. Although no basis can be found in Article 9(3) of the Aarhus Convention to limit access to justice to individual measures, it does appear from Article 2(2) of the Convention that it is not applicable to a public authority acting in a ‘legislative capacity’. The explanation for this ‘exception’ can be found in the Aarhus Convention Implementation Guide which states: ‘This is due to the fundamentally different character of decision making […] in a legislative capacity, where elected representatives are more directly accountable to the public through the election process […]’.52 The next question is whether every European general measure (which is excluded from the internal review procedure of the Regulation) can be considered as ‘legislation’ in the true meaning of the word. It is true that all legislation in itself has a general character, yet is it also true that all general measures can be considered as ‘legislative acts’? The use of the notion of ‘individual scope’ in the Regulation could lead to the situation that too many measures are excluded from the internal review procedure.53 And indeed, the General Court concluded: ‘Lastly, so far as the wording of the other provisions of the Aarhus Convention is concerned, it should be noted that, under Article 2(2) of that convention, the concept of ‘public authority’ does not cover ‘bodies or institutions acting in a judicial or legislative capacity’. Accordingly, the possibility that measures adopted by an institution or body of the European Union acting in a judicial or legislative capacity may be covered by the term ‘acts’, as used in Article 9(3) of the Aarhus Convention, can be ruled out. That does not mean, however, that the term ‘acts’ as used in Article 9(3) of the Aarhus Convention can be limited to measures of individual scope. There is no correlation between measures of general application and measures taken by a public authority acting in a judicial or legislative capacity. Measures of general application are not necessarily measures taken by a public authority acting in a judicial or legislative capacity. 52

Available at . This document does not, however, have any special legal status.

53

See also P. Wennerås, The Enforcement of EC Environmental Law, OUP 2007, at p. 234.

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It follows that Article 9(3) of the Aarhus Convention cannot be construed as referring only to measures of individual scope. […]  It follows from the above that Article 9(3) of the Aarhus Convention cannot be construed as referring exclusively to measures of individual scope. Consequently, in so far as Article 10(1) of Regulation No 1367/2006 limits the concept of ‘acts’, as used in Article 9(3) of the Aarhus Convention, to ‘administrative act[s]’ defined in Article 2(1)(g) of Regulation No 1367/2006 as ‘measure[s] of individual scope’, it is not compatible with Article 9(3) of the Aarhus Convention.’



6 Final conclusions

This contribution dealt with some, at first glance, rather simple questions: • Who decides who has access to justice as guaranteed by the Aarhus Convention? • Who is the final arbiter on questions regarding the interpretation of the Aarhus Convention? • Who decides whether or not there is compliance with the Aarhus Convention, in particular with respect to the conditions restricting NGO’s access to justice? This article shows that these questions are not as simple as they seem, or at least that there are no simple answers to those questions. Lawyers have a tendency to look at law as a system of vertical hierarchy. And to look at international law, European law and national law as separate spheres. As a result of that, the mutual relationship and influence of international environmental law and national environmental law has been studied, from both a top-down and as well as a bottom-up perspective: the orthodox analysis of the consequences of international environmental law for national law and policy has been combined with an analysis starting from national law, looking into the influences national law exerts upon international law. It is, however, submitted that this ‘traditional’ look does not bring us any further and is not very helpful to understand how the law on access to justice in environmental matters truly functions. This is related to the fact that access to justice in environmental matters is ‘Aarhus’-, EU-, ECHR- and national law at the same time. National and international legal systems become ‘connected’ on the basis of a set of common values and standards. This paper shows legal systems on access to justice in environmental matters in a more horizontal way: not one of vertical hierarchy but of overlapping circles of shared competences.

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This paper also shows that there is another dimension emerging in the relationship between international and national law. This dimension reflects a more ‘horizontal’ approach in the sense that the main focus is the relationship between national and international actors who exchange information, decisions, rulings, opinions and ideas about how international environmental law rules, institutions, principles and concepts should or could be fleshed out and further developed. The forum changes: national law become connected via EU and the Aarhus Convention. In a globalised legal order there is not one master! It is about jurisdictional pluralism, communication, dialogue, strength of arguments, competition and acceptance, based on a set of common values and common standards as enshrined by the Aarhus Convention. The European Court of Justice’s judgment in the Slovak Bears case is exceptional and illustrative in this respect: as a matter of European Union law, there is an obligation on the Member States to interpret their national access to justice laws in the light of Article 9(3) of the Aarhus Convention.

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Effective Justice? Synthesis Report of the Study on the Implementation of Articles 9(3) and 9(4) of the Aarhus Convention in Seventeen of the Member States of the European Union Jan Darpö

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1 Introduction



1.1 Background

The European Union and its Member States are parties to the UNECE’s Convention on access to information, public participation in decision making and access to justice in environmental matters (the ‘Aarhus Convention’).1 Most of the provisions in the Convention are implemented in the Union by various directives, e.g. Directive 2003/35 on public participation (PPD), the EIA Directive (85/337, today 2011/92), the IPPC/IED Directives (96/61 today 2008/1, and 2010/75) and the ELD (2004/35).2 However, in some aspects, the implementation of the requirements for access to justice has been left to the Member States, resulting in great disparities from one legal order to another. In order to strengthen the third pillar of the Convention and to get the Member States in line with the recent developments of the case law of the Court of Justice of the European Union (CJEU), the Commission has launched a study on access to justice and its effectiveness in seventeen of the Member States of the Union.3 The remaining eleven Member States will be covered by a similar study in the beginning of 2013. The aim of the study is to analyse the implementation of Article 9(3) of the Aarhus Convention on access to justice in selected Member States of the European Union. The study also covers the implementation of Article 9(4) on the effectiveness of the review procedure to the extent that it relates to situations where Article 9(3) is applicable. Furthermore, the aim is to evaluate the influence of the recent developments in the case law of the CJEU on the national legal systems (e.g. Cases C-237/07 Janecek, C-427/07 Irish costs, C-75/08 Mellor, C-263/09 DLV, C-115/09 Trianel, C-240/09 Slovak Brown Bear, C-128/09 Boxus, etc.). However, the scope of the study does not extend to rules that are applicable to the already existing mechanisms under EU legislation on access to justice in the above mentioned directives, except in so far as these also clarify the conditions for access to justice generally or there is an overlap with the different regimes. The following countries are covered: Belgium (BE), Cyprus (CY), the Czech Republic (CZ), Denmark (DK), France (FR), Germany (DE), Hungary (HU), 1

Ireland was the last Member State of the EU to ratify the Convention. The formal instruments of ratification were lodged with the United Nations on 20 June 2012 and the Convention entered into force on 18 September 2012. See IE (Ryall), p. 1.

2

For the decision making by the institutions of the Union, the Aarhus Convention is implemented by Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies.

3

The national reports are published at the website of the European Commission: http://ec.europa.eu/ environment/aarhus/access_studies.htm. This chapter included references to those reports in the following way: .

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Ireland (IE), Italy (IT), Latvia (LV), Netherlands (NL), Poland (PL), Portugal (PT), Slovakia (SK), Spain (ES), Sweden (SE) and United Kingdom (UK). The national reports are written by distinguished scholars or experienced lawyers of environmental law in those countries: • BE : Professor Luc Lavrysen, Universiteit Gent; • CY : Director Melina Pyrgou, Pyrgou Law Firm, Nicosia; • CZ: Attorney Mr Pavel Černý, Environmental Law Service; • DK: Professor Helle Tegner Anker, Københavns Universitet; • FR: Jessica Makowiak, Maître de conférences en droit, Université de Limoges; • DE: Professor Bernhard Wegener, Friedrich-Alexander Universität Erlangen-Nuernberg; • HU: Professor Gyula Bándi, Pàzmány Péter Catholic University, Budapest; • IE: Dr. Áine Ryall, University College Cork; • IT: Professor Roberto Caranta, Università degli Studi di Torino; • LV: Ms Silvija Meiere, Lecturer on environmental law at the University of Latvia, Riga; • NL: Professor Chris Backes, Maastricht University; • PL: Professor Jerzy Jendrośka, Opole University, and attorney of law Magdalena Bar, Centrum Prawa Ekologicznego, Wrocław; • PT: Professor Alexandra Aragão, Universidade de Coimbra; • SK: Attorney of law Eva Kováčechová, ELAW Advocate; • ES: Professor Angel-Manuel Moreno Molina, Universidad Carlos III de Madrid; • SE: Professor Jan Darpö, Uppsala Universitet; • UK: Professor Richard Macrory, University College of London, and solicitor Carol Day, WWF/UK.



1.2 The questionnaire and the national reports

The seventeen national reports have been written from a questionnaire which was drafted in close cooperation between the Commission and seven of the national experts. The questionnaire covers a number of issues under six headings. The first (part A) concerns national legislation, administrative decision making and the role of the courts in the environmental area. Under this item, the reporter is also asked to evaluate the national report from the 2007 Milieu study on the implementation of Article 9(3) of the Aarhus Convention in 25 of the Member States and to elaborate on the relevant administrative and legal developments since that report was published. 4 4

 Summary report on the inventory on the EU Member States’ measures on access to justice in environmental matters. Milieu Environmental Law and Policy, Brussels 2007-09-17. The report is published on the web-site of the Commission: http://ec.europa.eu/environment/aarhus/study_access.htm.

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Part B covers questions on standing; it includes some general questions on the underlying philosophy, standing for individuals, standing for groups and, finally, standing for environmental NGOs (‘ENGOs’). Part C concerns the effectiveness of the judicial review procedure, with specific questions on procedural remedies, suspensive effect, criteria for injunctive relief, requirements for timeliness and effectiveness in the administrative procedures and in the courts, examples of alternative dispute resolution (ADR), examples of undue delay in the environmental procedure and cases where the environment has suffered considerable damage despite the fact that there was a positive outcome for the environment in the judicial review. Part D raises questions about the costs of the environmental procedure: court fees, the loser pays principle, lawyers’ fees, costs for expert witnesses, bonds (cross-undertakings in damages) and examples of the rules governing liability for costs having a chilling effect on the willingness of members of the public to challenge environmental decision making. Also in this section are questions about legal aid and other methods of public and private funding for public participation and litigation in the environmental area. Part E asks the national reporters to elaborate on seven example situations involving the decision-making procedure and the possibilities for members of the public – including ENGOs – to initiate administrative appeals and judicial review, and the cost and effectiveness of that procedure. The examples cover some typical situations of environmental decision making in which Articles 9(3) and 9(4) of the Aarhus Convention are applicable. Finally in Part F, the reporters are asked to give their overall opinion on the main problems in their legal system when it comes to the implementation of Articles 9(3) and 9(4) of the Aarhus Convention and how their country would have to change its national system in order to conform with the requirements of the proposed Access to Justice Directive from 2003.5 The quality of the national reports is generally good or very good. All main elements of the questionnaire are well elaborated upon. Naturally, the emphasis on the different elements varies from one country to another, reflecting that the problems of the environmental procedures differ. In addition to this, the length and the level of detail vary depending upon the complexity of the different legal systems. It is also noteworthy that in some of the reports the distinction between the national implementation of Articles 9(2) and 9(3) of the Aarhus Convention is less clear. This can, however, be explained by the open design of the questionnaire. The answers to section E of the questionnaire give complementary information to the general questions as regards the environmental decision-making procedure in some typical situations, as well as the possibilities for the public to challenge those decisions, and at what cost and to what effect. However, the questionnaire is less clear in defining the group of individuals who, as members of the public, are thereby able to trigger an administrative 5

Commission’s Proposal for a directive of the European parliament and of the Council on access to justice in environmental matters, COM(2003)624 final of 24 October 2003.

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appeal or judicial review. Accordingly, some national reports give quite a bit of detail on this theme, whereas others give less information. Something similar can be said about the responses to questions concerning the cost issue in section D. To some extent, this complicates the conclusions to be drawn from the study, something which I will discuss further below in section 2.



1.3 The synthesis report

The aim of this synthesis report is to sum up the main outcomes and draw some conclusions from the national reports. In addition to this, a number of key issues concerning the implementation of Articles 9(3) and 9(4) of the Aarhus Convention in the European Union are discussed. For reasons that will be elaborated upon below, the synthesis report is written from the perspective that there is a need for a common legislative framework in this area in order to furnish a level playing field for environmental democracy in the European Union. The legal study will be complemented by a study on the economic impact of widening access to justice in the Union.6 Together, the two studies will form a platform of knowledge for the Commission to utilize in deciding how to develop its efforts to strengthen the enforcement of EU environmental law throughout the Union. The synthesis report is divided into five sections. The first is this introduction. In the second, I give a general picture from the national reports on the state of play in implementing Articles 9(3) and 9(4) of the Aarhus Convention in the seventeen selected Member States. In section 3, I draw some conclusions from the national reports and make recommendations on a number of the key issues. A summary of the proposals is given in the fourth section. The report concludes with three tables: one on the main barriers to effective justice in the environmental area in the seventeen Member States studied (A), another on the issue of costs (B) and a third on the effectiveness of the procedure (C). Some clarification about the concepts and expressions used in this synthesis report is needed. The underlying study concerns the administrative and judicial procedures to which members of the public have access when challenging actions and inactions by public authorities or private persons which contravene provisions of environmental law, and, additionally, the costs and the effectiveness of those legal means. Although the administrative and judicial procedures in the studied countries vary greatly, obviously there is a need to use common expressions when describing them in this report. I use the expression administrative appeal as a common descriptor for the procedures for appealing a decision or omission by an authority to a higher lever within the administrative system or to a specific appeal body or tribunal – such 6

M. Faure, et al., Possible Initiatives on Access to Justice in Environmental Matters and their Socio-Economic Implications. Maastricht University Faculty of Law, Metro Institute 2013. See http://ec.europa.eu/environment/aarhus/studies.htm.

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as the Nature and Environmental Appeals Board in Denmark or the Planning Appeals Board in Ireland. Judicial review is used to describe a challenge to an administrative action or inaction in court, irrespective of whether it is a procedure that merely rules on whether the administrative body followed required procedures or a more or less full trial on its merits and irrespective of whether the court is a general court or an administrative court. I use environmental proceedings in a general sense. Depending on the context, the expression can, therefore, mean administrative appeal or judicial review or sometimes even both. It is often difficult to make a clear distinction between the two elements of the environmental procedure. An example of this confusion is that some ‘administrative bodies or tribunals’, sufficiently independent and impartial, can be regarded as courts in the meaning of the Aarhus Convention. I use the expression civil action to describe a suit in which members of the public can sue the operator of an illegal activity directly in court, be it for an injunction or for precautionary measures to be undertaken or for damages. A final expression which has little meaning in most of the studied countries is supervisory decision. Still, I use it as a common descriptor for a decision on an enforcement issue, undertaken by a supervisory body, which relates to a certain activity or operator. This can be expressed as a decision to act or not to act, or even a ‘0-decision’, that is, silence on the matter. A typical supervisory decision may be an order to an operator to undertake certain measures, to decide a sanction fee for a violation of a permit, or to notify the prosecutor for breaches of environmental law. In this context, I also want to make a general language reflection. In a comparative study, one must be aware of the fact that different legal systems may use words and expressions that sound and look alike but which sometimes have a distinct national meaning, even when they are translated to a common language. This goes for example for ‘decision’, ‘act’ and ‘regulatory act’. First of all, in an administrative context, it is often not easy to distinguish what is a decision in an individual case and what is a regulatory act. Second, what is defined as an act in one country may be defined as a decision in another. I think it is fair to conclude therefore – here as in any kind of comparative legal research – that there is a need for caution against national preconceptions (Vorverstehen) on the understanding of the expressions used in the report.7

7

For further discussion of what constitutes an administrative decision, see M. Eliantonio et al, Standing up for your right(s) in Europe. A comparative study on legal standing (Locus Standi) before the EU and Member States’ Courts. Study for the European Parliament (PE 462.478) August 2012, part 4.2 (p. 67).

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2 Outcomes from the national reports 2.1 General background on the implementation of Article 9(3) of the Aarhus Convention

A general background to the Aarhus Convention and the implementation of Articles 9(3) and 9(4) in the European Union and its Member States is presented in the introduction of the Milieu report. Since the publication of the Milieu reports in 2007, the Member States studied show diverging trends. On the one hand, the possibilities for members of the public to challenge environmental decisions have been improved in some countries in different ways, e.g. by relaxation of the standing criteria for individuals or ENGOs (BE, DE, IE, SE, SK) or increased possibilities to go to court (CZ, FR, PL). To some extent, this has been the result of pressure from the European Commission or the Compliance Committee of the Aarhus Convention. In addition to this, the development of case law in the CJEU has played a positive role for the development of access to justice in many Member States. On the other hand, there is also a tendency in the opposite direction, much in line with the strong movement for ‘better regulation’. A rather common feature in the countries studied is that large scale projects, such as nuclear power stations, offshore activities, infrastructural projects and other activities considered to be of vital public interest are decided at a high level of the administrative hierarchy (government or central authorities) or are approved according to a ‘plan’. The possibilities for the public to effectively challenge in court such policy decisions commonly are weak or non-existent. In several of the Member States studied, there has been an increasing tendency to ‘lift up’ the decision making of such projects. The aim has been, i.a., to improve the effectiveness of the decision making procedure. However, as a result – deliberate or not – the possibilities for public access to justice have been impaired directly or indirectly (BE, DE, ES, NL, SE, UK). A closely related trend is that in some countries, the use of generally binding rules (GBR) which replace individual permits have disallowed the public from ‘interfering’ in decision making (NL, SE). In addition to this, in some countries, the standing criteria for individuals in environmental cases have been made stricter (NL). Furthermore, several of the Member States studied have introduced appeal fees (DK), have introduced or raised court fees (CZ, LV, UK) or have started to apply the loser pays principle in some environmental cases (BE, ES). The overall picture of the status of the implementation of Articles 9(3) and 9(4) in the Member States in the European Union can, therefore, be described in the same terms as in the Milieu Report, that is, diverging, random and inconsistent. Another noteworthy phenomenon which is quite common among the Member States is the clear distinction between procedures for public participation and other kinds of decision-making procedures on environmental matters, where the access to justice possibilities are much wider in the former than in

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the latter. To a great extent, this is evidently due to the implementation of the requirement in the EIA, IPPC/IED, ELD and the Habitats Directives. However, also beyond Union law, there is a distinction between areas of environmental law in which traditional public participation and access to justice seem to be more or less part of the game – e.g. in planning and building legislation – and other areas where the public has little or no influence. Many of these latter decisions are made pursuant to certain ‘sectoral’ legislation concerning hunting, forestry, fishing, mining, etc. Commonly, in a permit procedure in those areas, only the applicant and the authority are regarded as ‘parties’. In some legal systems, although such a decision may derogate from Union law on protection of the environment, no one else can challenge that decision in court. There are also diverging tendencies among the Member States studied as to the means available for access to justice according to Article 9(3) of the Aarhus Convention. In most countries, administrative decisions can be contested both through administrative procedures and through the courts. Sometimes, the administrative remedies must be exhausted before utilizing judicial review. Administrative remedies usually consist of appeals to the authority that issued the contested decision, or to a body that is hierarchically superior. In some countries, administrative appeal is made to special tribunals which are equipped with technical experts of their own (BE (Flemish region), DK, IE, SE, UK). From experience, decision making in the environmental area can be improved by such measures. This report focuses on the judicial review of administrative decisions, but obviously judicial remedies are available in other contexts. Civil remedies are almost always available to owners of neighbouring lands that suffer injury to their property or persons due to harmful emissions. In most Member States, a private party cannot bring a criminal claim, but can report criminal violations to the public prosecutor. However, in the United Kingdom (and rarely, Belgium), a private party can seek to initiate a criminal case in the criminal court. In France, private parties and ENGOs can also do so, but only if they have sustained damage. Additionally, in some of the studied countries, the ENGOs are equipped with the possibility to sue the operator of a hazardous activity in court for damages on behalf of the environment (FR, PL, PT, IT), although in some cases, any award of money will be paid to the state budget. Constitutional courts may also decide on important matters concerning environmental law in many states, including Belgium, the Czech Republic, Germany, Hungary, Portugal and Slovakia. One must keep these remedies in mind to get the full picture of access to justice. Finally, the role of the courts differs from one country to another. In some Member States – such as the United Kingdom – the courts have taken a lead position in trying to improve access to justice for the public concerned. In others, the courts have adhered to a more conservative interpretation of individual ‘rights’ and have been quite reluctant to widen access to justice on behalf

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of the environment. I am under the impression that the courts in Germany and the Czech Republic can provide examples of this traditional stance.8



2.2 Standing for individuals, groups and ENGOs

The national reports confirm the diverse picture shown by the Milieu Report 2007 on standing in administrative appeals and judicial review. Among the Member States, there are great variations between those systems which allow anyone to challenge administrative decisions and omissions on environmental matters (actio popularis) and those which restrict the possibility for judicial review only to those members of the public who can show that their individual rights have been affected. Actio popularis prevails in Portugal and is quite common in Spain. In Belgium and Sweden, any resident of a municipality can challenge in court certain local decisions.9 The system in Latvia also can be said to allow for actio popularis, as anyone who participates in the decision-making procedure in environmental matters is allowed to challenge that decision in court. In Ireland, anyone can trigger enforcement actions, if there is a breach of environmental law. Finally, the possibility to initiate private prosecution in the UK can also be described as a form of actio popularis. In contrast to this, the protective norm theory (Schutznormtheorie) is applied in many countries, at least to some extent. In the most strict and German form, the theory means that in order to be allowed to bring a case to the administrative court, the applicant has to show that the decision or omission may concern his or her individual or subjective public right. For example, in the case of a permit for an industrial installation, affected persons can only challenge those parts of the decision which are designated to protect their individual interests in a very limited sense (‘rights’), commonly concerning discharges known to be hazardous to human health. Even if they are allowed to appeal the decision, all other arguments that are invoked in favour of the cause are dismissed as being outside the scope of the trial. Thus, general issues of environmental protection are regarded as the prerogative of the administration and can never be brought before the court for review. In the Netherlands, a form of actio popularis – similar to the one in Latvia where participation automatically gives access to environmental proceedings – was replaced in 2004 with an interest-based approach, which in turn was abandoned in 2010/2012, when the Schutznormtheorie was introduced. Even if the Dutch variety of the theory is a milder one and does not concern standing, it nevertheless limits the arguments that the claimant can use and therefore restricts the scope of judicial decision making.10 Some of the stud8

According to the national report from the Czech Republic, the Czech Constitutional Court is of the opinion that ENGOs cannot claim a right for a favourable environment, as this right ‘as it can selfevidently’ belong only to natural, not legal persons (CZ (Černý) p. 13), see also the Aarhus Convention’s Compliance Committee case C/2010/50 para. 49.

9

See Standing up for your right(s) in Europe, p. 70.

10

NL (Backes) p. 9.

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ied countries link the possibilities for members of the public to go to court to traditional property rights in a narrow sense (CY, CZ, SK). These systems come quite close to those utilizing a strict application of the Schutznormtheorie. Most of the studied countries belong to a middle group which is more or less ‘interest-based’ when determining standing (BE, DK, FR, HU, IE, NL, IT, SK, SE, UK). Even if the distinction between a ‘right-based’ and an ‘interest-based’ system is not always easy to identify – at least in my view – one may say that the latter mentioned countries have a more liberal approach to standing. If potential litigants live or spend time in the vicinity of the above mentioned industrial activity and there is a risk that they will be affected by emissions, disturbances and other inconveniences from that activity, they are allowed to challenge the permit in court. In addition to this, there is commonly no or little restriction as to the scope of the trial, meaning that any argument can be used to forward their cause, including general compliance with environmental law. A reservation is needed here. Standing for individuals is an issue which is basically left to the courts to decide. However – and this is a shortcoming in the design of the questionnaire for this study – most national reports say little about case law on the matter, although there are exceptions. Accordingly, our knowledge is limited, when it comes to the exact definition of the group of individuals who may appeal an administrative decision as members of the public in the different countries studied. From examples in the national reports, it is still possible to draw some conclusions. The United Kingdom report refers to a Scottish plaintiff who lived about 6 km from an area which he used for birdwatching and recreation, and where a development was planned and decided upon. The plaintiff was refused standing for judicial review in the Outer Court of Session on the basis that he did not have ‘title and interest to sue’. However, in light of recent case law of the Supreme Court, the authors of the UK report conclude that the bird-watcher probably today would have been permitted to bring judicial review against this decision.11 In the Italian report, we are informed about a person who lived in the vicinity of a beach where a permit was issued to allow a small building for sanitary purposes to serve the public. Despite the fact that he lived 2 km away and that the building in no way limited his access to the beach, the man was granted standing.12 In a comparison with the Swedish system – which I still would describe as quite generous to individual members of the public in allowing access to justice – those two gentlemen would not even come close to the gateway to the court! Standing for ENGOs is commonly granted by tradition or express legislation in the studied countries. In Portugal and the United Kingdom – where access to the courts is wide both for individuals and organisations along the lines of actio popularis – there is little reason to define standing criteria for ENGOs. In the other countries studied, commonly, there is a basic condition that the statutes of the organisation should cover environmental protection, recreational purposes, 11

UK (Macrory & Day), p. 12.

12

IT (Caranta) p. 11.

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historic heritage or whatever is relevant for the challenged decision. This criterion is sometimes replaced or complemented with a requirement for activity in this area of law. Occasionally, the statutes have been read quite narrowly by the courts, and the ENGO has only been allowed to challenge issues that are expressly mentioned in them (NL). In some of the Member States, the statutes also have had significance in case law as a geographic criterion (BE, ES, HU, NL). That is, if the activities of the ENGO according to its statutes are confined to one region, it is not allowed to appeal decisions in another. In Italy, the ENGO is required to show that it has been active in 5 out of 20 regions, thus discriminating against local ENGOs. A requirement for registration of the ENGO is common in the Member States studied (FR, DE, HU, IT, LV, PL, SK). Also a criterion about length of existence or activity is usual, varying between one year (SK and IE in some cases), two years (ES), three years (BE, FR, DE and SE) and even five years in one case (CY). Additional criteria exist in some states; only Sweden has a general numeric criteria for ENGO standing (100 members or else can show that it has ‘support from the public’), whereas Denmark uses the same numeric requirement in planning law only and Slovakia requires ENGOs to have 250 members as prerequisite for challenging IPPC permits. Openness and democratic structure is used as a criterion in Germany and Italy, thus excluding well-known NGOs such as WWF (DE) and Greenpeace (both countries) from standing in environmental cases. This was also previously used as a standing criterion for ENGOs in Sweden but was abandoned after the CJEUs judgment in the DLV case in 2008. Today, there is instead a non-profit criterion, which is also used in Belgium, Germany and Poland. In some of the studied countries, ENGOs have standing to challenge in court any decision according to planning and environmental law in a wide sense, including nature protection, recreation and cultural heritage. In others, their standing is confined to certain legislation and/or specific kinds of decisions, such as permits, derogations, etc. (CZ, DE, SE). One final observation shall be made on participation in the environmental decision-making procedure. As mentioned above, participation can be used as a gate-opener for access to justice, in the legal literature sometimes called ‘indirect actio popularis’ or ‘multi stage actio popularis’. However, more common in the studied Member States is a system in which participation – or prior exhaustion of administrative appeal – is a prerequisite for access to justice. Understood this way, only those who have raised their voices in the participatory stage of the decision-making procedure are allowed to challenge the final outcome in court (LV, DE, HU, IE, NL, SK). In some of these countries, this prerequisite is read narrowly, only allowing those issues that were objected to in the participatory stage to be challenged in court (DE, IE, NL).

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2.3 Access to what?

Effective access to justice for members of the public includes many more factors than just standing. A crucial question in this context is to what they are entitled when they are allowed to challenge an environmental decision in court. Will the court review both substantive and procedural issues at stake in the contested decision? And what kind of power has the court – is the procedure cassatory, meaning that the court is confined to remitting the case back to the authorities, leaving the door open for still another (bad) decision, or can it replace the decision with a new one in a reformatory procedure? Some of these questions concerning the effectiveness of justice will be dealt with in sections 2.5 and 3.4 below. Here, it suffices to make a general statement that the relationship between standing and the scope of the trial seems to be that ‘the wider the entrance, the smaller the room’. In other words, those systems with a generous attitude towards standing tend to offer a more limited scope of judicial review, typically limited to legal (as opposed to factual) issues in a more or less restricted manner in a cassatory procedure. An example of this from the national reports is that the Czech courts, including the Constitutional Court, have developed a doctrine in which ENGOs only have standing to defend their procedural rights, not the substantive outcomes of an EIA or the subsequent permit decision.13 Similar examples are reported from Portugal, where the courts are said to limit their review to formal requirements, despite clear requirements in the law for a fuller scope of trial.14 On the other hand, those systems with more restrictive standing requirements more often offer a review of the ‘substantive legality’, or even the merits, of the contested decision in a reformatory procedure. Thus, if the complainant is allowed through the gateway, he or she will get the ‘full monty’, so to speak. This is sometimes described as the review being more ‘intense’. In Germany, for example, property owners who are allowed to challenge a decision in an administrative court are given strong protection against the authorities’ actions and inactions. In Sweden and France, the court can actually undertake certain supervisory measures relating to a contested activity or deal with interim matters of its own accord. Such steps surely would be strange for an English or Portuguese court to contemplate. The difference between these two perspectives can be illustrated by the possibilities for members of the public to challenge administrative omissions. In a legal system that is characterized by more restrictive standing requirements and more intensive judicial review, the administration sometimes is given less discretion to refrain from acting. Its decision – or non-decision, in this scenario – is given little or no deference; the court will replace it with its own, based on 13

CZ (Černý) p. 5, 13-14. It may be noted that the Compliance Committee recently found this doctrine in non-compliance with Art. 9(2) of the Aarhus Convention, see C/2010/50 Czech Republic (2012-06-29), para. 78-81.

14

PT (Aragão) p. 30.

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the merits of the case. On the other hand, in the first type of system, which has more liberal standing requirements but limits judicial review to scrutinizing legal issues, the courts are likely to allow administrative bodies more discretion to decide when to act or not. The result is that systems with ‘generous’ standing criteria sometimes turn out to be not very generous in allowing members of the public to challenge administrative omissions. However, the issue concerning administrative inaction is much more complicated and also involves factors such as the distribution of power between the administration and the courts. Furthermore, in some of the Member States, supervisory decisions are not appealable for the public concerned, except according to specific legislation. Irrespective of the underlying reasons for this situation, in more or less all of the studied countries, there seem to be concerns about the lack of possibilities to challenge administrative omissions, and alternatively, the lack of effectiveness when doing so (CZ, DK, ES, FR, HU, NL, SE).



2.4 Costs in the environmental procedure15

The cost of the environmental procedure is addressed in Articles 9(4) and 9(5) of the Aarhus Convention. According to the first mentioned provision, the procedures under Article 9(3) must not be prohibitively expensive. According to Article 9(5), the Parties shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice. Costs in the environmental procedure include participation or administrative appeal fees, court fees and other court costs, lawyers’ fees, experts’ and witness’ fees and bonds for obtaining injunctive relief (also called securities or cross-undertakings in damages). Generally, there are no fees for participating in environmental decision making or for launching an administrative appeal. However, in most of the studied countries there are fees for going to court. The only exception from this is Sweden, where it is free for members of the public to challenge environmental decisions. Occasionally, in other countries, it happens that ENGOs are exempted from paying court fees in environmental cases (SK, HU, PT). Court fees will generally have to be paid to lodge an appeal and the higher the court, the more expensive the fee. In general, they are not a significant obstacle in themselves, averaging around €100-€200 in the first instance and €500 at the appeal stage. Court fees are notably high in the United Kingdom Supreme Court at over €5,000. In some countries, multiple claimants will each have to pay a court fee for the same claim (e.g. CZ). This contrasts with Slovakia, in which the court case relates to the petition and not the applicant. 15

The text in this section has largely been prepared by Ms Carol Day, solicitor at WWF/UK. For further information and references on the cost issue, see paper prepared for the 4th meeting of the Task Force on Access to Justice under the Aarhus Convention; J. Darpö, On Costs in the Environmental Procedure. 31 January 2011, published on: http://www.unece.org/environmental-policy/treaties/public-participation/ aarhus-convention/envpptfwg/envppatoj/analytical-studies.html.

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In many of the studied countries, the system of calculating court fees in civil cases is based upon the economic value of the case, ‘Streitwert’ (interest in question). This system also applies in Germany and Portugal in environmental cases, when members of the public challenge administrative actions and inactions. In Germany, the value of the case is calculated according to an administrative guidance document, the Streitwertkatalog.16 The calculation is made from the viewpoint of the plaintiff’s interest in the case, whereas the interest of the operator is irrelevant. The court fee is then based on a percentage of that value.17 These court fees range from €700 to €1,200 in an ordinary case concerning environmental matters. However, according to the Streitwertkatalog the court fee increases, if experts are involved. According to the national report from Germany, the court fee will range from €4,000 to almost €8,000 per instance in a typical nature protection case. Also the lawyers’ fees are determined by the value of the case, and range from €700 to €3,000 per instance.18 In many of the Member States studied, appeals to a court require assistance by a lawyer (ES, FR, PT, SK, UK). In some countries legal representation is not required for first instance proceedings (e.g. CZ, DE, FR, NL, PL). However, legal assistance is commonly required, when the appeal is lodged before the supreme courts. Lawyers’ fees vary significantly from one country to another. For example, the typical costs of an ENGO undertaking proceedings under the Nature Protection Act in Germany was estimated as €25,000 and the costs involved in one 4-day hearing in the High Court in Ireland exceeded €86,000.19 It is not unusual for legal proceedings in the United Kingdom and Ireland to exceed €50,000. In Spain, experts report that a minimum of €3,000 should be budgeted for, while in Belgium it would be unusual for a case to cost less than €2,000. On the other hand, cases in Sweden are in general free, meaning that each party bears its own costs. In short, costs in the various countries vary greatly – but from the information provided by the national reports it can be inferred that court proceedings in most countries cost between €2,000€10,000, without taking into account the costs that may be incurred by expert advice. Generally, each party has to bear his or her own costs in administrative appeals in environmental cases. In contrast to this, the basic principle for the cost distribution in court – both in civil cases and on judicial review – is the ‘loser pays principle’ or ‘the costs follow the event’. This principle – or a modi16

Information about Streitwert in Germany has been furnished by Mr Werner Heermann at the Association of European Administrative Judges (AEAJ).

17

Or more precisely, one fee (Gebühr) is decided and the court fee is based upon a number of those Gebühren. For example, if the value of the case is calculated to €15,000, one Gebühr is € 242. The court fee in first instance of the administrative court is then €726 (3 Gebühren), second instance €968 (4 Gebühren) and third instance €1,210 (5 Gebühren). In a case for injunctive relief, the correspondent court fees are €249, €332 and € 415.

18

DE (Wegener) p. 17f.

19

IE (Ryall), page 34.

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fied form of it – applies in court in most of the studied countries with the exception of Sweden. In Italy, applying the loser pays principle previously was an exception but has become more common recently. Following the CJEU’s judgment in C-427/07, Ireland has adopted specific measures with regard to the costs of litigation in EIA, IPPC/IED and SEA cases and certain categories of legal proceedings aimed at enforcing planning and environmental law. In those cases, the general rule is that each party bears his or her own costs. The application of the loser pays principle in most countries will be at the discretion of the judge, who sets the amount of the total or partial costs of the winning party to be covered by the loser. Systems with fixed schemes for lawyers’ fees, or systems in which only a proportion of the winners’ actual costs can be reimbursed from the losing party are quite common. According to the national report from the United Kingdom, although judges in that country have discretion with respect to costs, only recently have the courts departed from the general principle that the losing party pays all of the winning party’s costs. Claimants can request a cap on costs to be reimbursed through a Protective Cost Order (‘PCO’), but difficulties persist in relation to the conditions accompanying such an order. These conditions are, in general, difficult to meet in England and even more so in Scotland. Even though the loser pays principle prevails in the Czech Republic, the Netherlands, Poland and Slovakia, the public authorities cannot – or seldom utilize the possibility to – recover their own legal costs (‘one-way cost shifting’). In practice, therefore, losing a case on behalf of the public interest when challenging an environmental decision by an authority need not be prohibitively expensive in those countries. The cost of expert advice is usually borne by the parties and can be considerable. For example, in France, those costs can typically run around €15,000 and in Portugal the cost of obtaining frequently necessary factual evidence such as aerial photographs or laboratory analyses is reported as being beyond some ENGOs’ budgets. Something similar is reported from the German ENGOs. However, sometimes these costs can be reimbursed from the losing party. As will be elaborated in the next section, in many of the studied Member States, a plaintiff has to pay a bond/security or cross-undertakings in damages in order to obtain an injunction of an environmental decision or activity. If the requesting party ultimately loses the case, the bond is used to pay any damages to the other party that were incurred as a result of the delay in the activity. The high costs connected with such a system can represent a significant burden for members of the public challenging acts or omissions by the administration. The requirement to pay bonds may necessitate the deposit of a significant sum that would only be recovered, if the party requesting the injunction wins the case. Experts in Cyprus, Belgium, Ireland, Italy, Spain and the United Kingdom reported difficulties in obtaining effective remedies due to the actual or potential costs of securing interim relief.

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Almost all of the studied Member States have established legal aid schemes to ameliorate the costs of judicial proceedings, at least for individual members of the public concerned. In Ireland, however, the legal aid scheme is underfunded and restricted in scope and in Cyprus, although legal aid is theoretically available, the national expert is unaware of an environmental case in which it had been obtained. The conditions for granting legal aid vary from country to country but are commonly dependent on the income status of the applicant, often set at a (very) low level. In most Member States, legal aid is not available to ENGOs or associations, is only available in very exceptional cases, or lawyers are not keen on undertaking it, because it is poorly paid. The exceptions are Denmark, Spain and Hungary, where organisations representing public interests have the possibility to access legal aid. In the Czech Republic, France, Germany, Slovakia and Sweden, the government provides some funding for ENGOs to enable various participatory activities, in some of those countries even including participation in judicial proceedings. Generally however, because of the high costs of the environmental procedure, public interest groups rely on either in-house lawyers or lawyers providing services on a pro bono basis. In summary, we can see from the national reports that the cost of judicial procedures is considered to be an obstacle to access to environmental justice – or at least, to have a dissuasive effect thereupon – in the following countries: Belgium, Cyprus, France, Germany, Ireland, Italy, the Netherlands, Spain and the United Kingdom.



2.5 Effectiveness in the environmental procedure20

There is a basic requirement in the Aarhus Convention for the environmental procedure to be effective. According to Articles 9(4) and 9(5), the procedures in Article 9(3) must provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable and timely. Each Party is also responsible for informing the public about the possibilities of administrative and judicial review procedures to ensure rights according to the Convention. Expressly stipulated time limits and deadlines for completing administrative procedures are quite common in the studied countries. The opposite is true for judicial procedures, where time limits for the delivery of judgments are rarely set in law, except for a statement that judgments must be issued ‘without undue delay’ or ‘within a reasonable time’. There are, however, also examples of stipu20

Besides the national reports of this study, an important source of information for this section are the studies undertaken by Ms Yaffa Epstein on behalf of the Task Force on Access to Justice under the Aarhus Convention: Access to Justice: Remedies. Geneva 2011-03-09 and Approaches to Access: Ideas and Practices for Access to Justice in Environmental Matters in the Areas of the Loser Pays Principle, Legal Aid, and Criteria for Injunctions. Study prepared for the 4th session of the Meeting of the Parties 29 Jun – 1 July 2011, both published on: http://www.unece.org/environmental-policy/treaties/public-participation/ aarhus-convention/envpptfwg/envppatoj/analytical-studies.html.

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lated time limits, e.g. in the Czech Republic and the Netherlands, where certain legislation on infrastructural and building projects requires the courts to decide appeal cases within three and six months respectively. In those countries where timeliness is regulated only by a general proclamation, problems with delay are widely reported in the national reports and in many countries this is regarded as an important barrier to effective justice (BE, CZ, ES, FR, HU, PT, SK, UK). Nearly every Member State in this study has an Ombudsman institution, usually selected by the legislative bodies of their State. The Ombudsmen are generally independent review institutions that aid individuals and entities in disputes with administrative bodies. Commonly, an Ombudsman can investigate complaints and report on its findings. The institution tends to be quite flexible, inexpensive, and simple to access. In some of the studied countries, the Ombudsman can bring cases to court or even intervene in on-going environmental cases (CZ, ES, HU, PL). Due to the fact that the Ombudsman’s powers are usually limited to non-legally binding activities such as investigating, reporting, mediating and recommending, they are commonly disqualified from being considered to be an effective remedy according to Article 9(4). In practice, they are often nevertheless very useful, and therefore considered a complementary safeguard of environmental rights. Many Member States report that the political pressure to follow the recommendations of the Ombudsman generally leads to compliance.21 Launching an administrative appeal commonly postpones the contested decision. Such ‘suspensive effect’ exists in most of the studied Member States, the exceptions being Belgium, Cyprus, Denmark, France, the Netherlands, Portugal and Spain. In most legal systems, however, certain decisions always take direct effect or, alternatively, there is a possibility for the authorities to issue a ‘go-ahead decision’ of their own accord or on application from the operator. In contrast, judicial review commonly does not have suspensive effect, with the exception of Germany and Sweden and in cases brought under some specific legislation in Latvia. If procedures do not have suspensive effect, members of the public may apply for an injunction to pause an environmentally damaging decision or activity while other remedies are pursued. The criteria for obtaining an injunction vary by country, but they fall into four basic categories: periculum in mora (danger in delay), prima facie case (likelihood of success on the merits), personal harm and weighing of interests.22 In quite a few of the studied countries, the limited possibility to obtain injunctive relief in due time is regarded as an important procedural problem when challenging environmental decision making in court. Together with the slowness of the procedure and a general lack of effective enforcement mechanisms, this seems to be an important barrier to access to justice in Cyprus, the Czech Republic, Denmark, France, Hungary, 21

Epstein: Access to Justice: Remedies p. 84.

22

For more information on suspensive effect and injunctive relief, see Epstein: Access to Justice: Remedies p. 86ff.

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Portugal, Slovakia, Spain and the United Kingdom. In some of the studied countries, the complexity of the environmental legislation and the procedural system is also highlighted as a major concern. Lack of confidence in the court system is mentioned in two or three of the studied countries. As previously mentioned, in some of the studied Member States, the party who requests an injunction must pay a bond/security/undertakings in damages (BE, CY, ES, IE, IT, UK). In all of those countries, the system is described as a barrier to access to justice, even if the court has discretion to waive or reduce the bond in order to comply with the Aarhus Convention requirement for affordable remedies. A final issue in the questionnaire concerned the existence of cases that – due to ineffective means for injunctive relief, high costs for cross-undertakings in damages and/or time consuming procedures – have been ‘won in court, but lost on the ground’. Quite a few of the national reports described such cases: the Fluxys Gas Pipeline case in Belgium,23 the D8 Highway in the Czech Republic,24 the Wattelez case in France,25 Eemscentrale in the Netherlands,26 Castro Verde Highway (cf. C-239/04) in Portugal,27 the Pezinok landfill and the Mochovce power plant in Slovakia.28 From Spain,29 the M-30 Highway in Madrid and the hotel El Algarrobico in Almería were mentioned and from the United Kingdom, the famous – although somewhat dated – Lappel Bank case (cf. C-44/95).30 Another example is Santa Caterina Valfurva, well known from the case law of CJEU.31



3 Proposals and further challenges

Under this heading, I make general reflections on some of the key issues concerning the implementation of Article 9(3) of the Aarhus Convention in the Member States of the European Union. In this context, I also suggest some recommendations on how to formulate appropriate provisions of Union law to further this cause. A draft of the synthesis report was communicated to the national experts in August 2012. Valuable comments, proposals for clarification and alternative view-points have been provided on the draft from no fewer than 13 national 23

BE (Lavrysen) p. 31.

24 25

CZ (Černý) p. 18.

FR (Makowiak), p. 15.

26 27

28

SK (Kováčechová) p. 21.

29 30 31

NL (Backes) p. 22.

PT (Aragão) p. 21. ES (Moreno Molina) p. 20.

UK (Macrory & Day) p. 23.

Case C-304/05 Santa Caterina Valfurva, see D. Hadroušek, ‘Speeding up Infringement Procedures: Recent Developments Designed to Make Infringement Procedures More Effective’, Journal of European Environmental & Planning Law (JEEPL) 2012 at p. 236.

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experts.32 In this final version, I have taken into account most of these, if not all. Any contribution to the discussion on access to justice in environmental matters comes from the fruitful cooperation between the national experts as a collective. However, all responsibility for this report – including any shortcomings – remains with the author.



3.1 The legislative framework 3.1.1 The four options

In the communications from the Commission, there are four options mentioned for further action at Union level for the implementation of Article 9(3) in the Member States. The first is to retain the proposal for an access to justice directive along the lines of COM(2003)624 with possible minor modifications. Next would be to make a new legislative proposal, targeted more specifically on standing as implied by Janecek and the Slovak Brown Bear case and mirroring the requirement for effectiveness already established for EIA through the PPD (2003/35). The third option would be a soft-law approach, involving existing cooperation with judges and stakeholders. Also, some form of commentary or guidelines would be developed by the Commission, explaining the significance and implications of Treaty provisions and case law. The final option would be to use infringement proceedings in accordance with Article 258 TFEU to bring Member State provisions for ensuring access in line with ECJ case law, notably Janecek and Slovak Brown Bear, and the latest Treaty provisions.



3.1.2 A need for a directive on access to justice

Considering the four options for further action at the Union level, I would strongly advise the Commission to choose a legislative alternative. From the national reports in this study, I think it is obvious that a common legal framework is needed to bring all Member States in line with Articles 9(3) and 9(4) of the Aarhus Convention. There is a basic uncertainty and also opposing opinions about the requirements of Article 9(3) – what measures are needed, what kind of decisions are covered, what kind of body (administrative or judicial) should undertake the review, what kind of review is needed, etc.? My conclusion is that in order to furnish a level playing field and to promote predictability and legal certainty, there is a need for a Union directive on access 32

Lavrysen (BE), Černý (CZ), Tegner Anker (DK), Makowiak (FR), Wegener (DE), Bándi (HU), Ryall (IE), Caranta (IT), Backes (NL), Jendrośka (PL), Aragão (PT), Moreno Molina (ES) and Day (UK). I am also grateful for the comments from the former Chair of the Aarhus Convention’s Compliance Committee, Veit Koester, today adjunct professor at Roskilde University.

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to justice in environmental matters. The alternatives are not very tempting – to rely on Article 258 TFEU alone surely will be too ineffective and time consuming, and the result too piecemeal. Something similar can be said about waiting to see how the case law of the CJEU under Article 267 will develop. Having read the national reports, it is noteworthy that quite a few of the Member States have not yet adapted their legislation to Janecek, despite the fact that four years have elapsed since the CJEU’s judgment. Thus, to rely on the CJEU and the national adaption to its case law alone is too uncertain and slow. However, the case law of the CJEU will continue to play a dynamic role in this area, as a legislative framework at the Union level on access to justice will have to be quite basic, dealing only with the main elements of judicial review of administrative decisions in a general way. Finally, both options 1 and 2 consist of legislative measures at the Union level. The choice between them is a political one, on which I have no firm stand. However, the old proposal for an access to justice directive had some elements which in my view are indispensible.



3.1.3 The prior proposal for an access to justice directive (2003/0246/COM) A proposal for a Directive on access to justice in environmental matters was presented by the Commission in October 2003. Its aim is to furnish rules concerning judicial and administrative review procedures to challenge acts and omissions by public authorities. Although there is in the proposal a general requirement that the Member States shall provide members of the public with the legal means to challenge illegal activities and omissions in breach of environmental law by private parties, this provision (Article 3) only mirrors the wording of Article 9(3) of the Aarhus Convention. Furthermore, the proposal does not differentiate between access to a court or an administrative body, although a quality criterion is set that the reviewing body shall be ‘independent and impartial’ and its decisions have legally binding effect (Article 2(f)). The scope of the proposal is wide. ‘Environmental law’ is defined as Union legislation with the objective of protecting or improving the environment, including human health and the protection or the rational use of natural resources (Article 2(g)). The general definition is followed by a catalogue of examples, including water, soil and atmospheric protection, town and country planning, nature conservation and biological diversity, waste management, chemicals and biotechnology. In addition to this, and for obvious reasons, Union legislation on EIA and access to environmental information is included. The basic provision on access to justice is given in Article 4. Here, it is stipulated that members of the public shall have access to environmental proceedings, including interim relief, in order to challenge the substantive and procedural legality of administrative actions and inactions in breach of environmental law. Standing criteria for individuals may be either interest-based or right-based, which is left to the Member States to decide.

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However, in order to seek judicial review, members of the public are obliged to first ask for internal review within the administration (Article 6). Provisions concerning this procedure include time limits for the request and the answer in writing from the administration. If the decision is not given in time or if the applicant finds it is unsatisfactory, he or she can ask for environmental proceedings by a court or an independent body of law. ENGOs are given standing, if they bring an action which is within the scope of their statutes and falls within their geographic area of activity (Article 5). The ENGOs shall be recognised in the Member States, either on an ad hoc basis or by an advance recognition procedure. There are some additional criteria, such as that the ENGO must be an independent and non-profit legal person, have adequate organisation, be legally constituted and have been actively working with environmental protection for a period which is to be fixed by the Member States (not exceeding three years), and must have auditor controlled statements of accounts (Article 9). Finally, according to the proposal, the Member States shall provide for adequate and effective environmental proceedings that are objective, equitable, expeditious and not prohibitively expensive (Article 10).



3.2 General issues on judicial review 3.2.1 Introduction

In my view, Article 47 of the European Charter of Fundamental Rights and Article 19 TEU are the given starting points in discussing access to justice in environmental matters within the Union. While the former provision guarantees an effective remedy before a tribunal to everyone whose ‘rights and freedoms’ follow from Union law, Article 19(1) goes further in demanding that Member States ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Thus, this provision confirms the principle of effective legal protection that has been developed in the case law of the CJEU.33 In my understanding, in the field of environmental law, this principle covers not only traditional ‘rights’ – such as the possibility to do business, property rights or even the protection from emissions that might be hazardous to human health – but also procedural rights for the public concerned.34 This is not the place to go into too much detail about the relationship between the Union law obligation to implement Article 9(3) of the Aarhus Convention35 and the direct effect of Union law provisions which are unconditional and sufficiently precise.36 I think, however, a reasonable conclusion is that those who are affected 33

C-432/05 Unibet and subsequent case law.

34

See J.H. Jans & H.H.B. Vedder, HHB: European Environmental Law. Europa Law Publishing, 4th ed. 2012, p. 274ff.

35

C-240/09 The Slovak Brown Bear para. 50.

36

C-287/98 Linster, para. 32, C-435/97 WWF, para. 68 and C-72/95 Kraaijeveld, para. 22-24,C-127/02 Waddenzee para. 66, etc.

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by a Union law provision about the environment must have the possibility to challenge in a national court any action or inaction by the public authorities concerning an issue regulated in that legislation. This is also how I understand the Aarhus Convention’s Compliance Committee, when they stated that ‘in the context of Article 9, paragraph 3, applicable European Community law relating to the environment should also be considered to be a part of the domestic national law of a member state’.37



3.2.2 The scope of application

A preliminary issue to address when contemplating legislation on access to justice in environmental decision making at Union level is how to define that field of law. The proposal for an access to justice directive used a very broad definition of ‘environmental law’, including planning law and health issues. Considering the wide area of application of the Aarhus Convention, I think this model also should be used in the future directive on the matter. Whereas Article 9(2) is confined to permit decisions for listed operations and other activities having a ‘significant effect on the environment’, Article 9(3) has a much wider scope, as it covers national laws ‘relating to the environment’. In case C/2011/50 CZ, the Compliance Committee stated that members of the public should have the possibility to challenge ‘an alleged violation of any legislation in some way relating to the environment’.38 In a number of cases, the Committee also has found that Article 9(3) covers different kinds of plans, health issues, noise and a wide range of environmental legislation.39 Furthermore, in Janecek, the CJEU found that an affected person should have the possibility to challenge with legal means any administrative decision or omission that concerned his rights according to Directive 96/62 on ambient air, including the requirement for the authority in charge to draw up an action plan. I think, therefore, that any other approach than the one expressed in the 2003 proposal is hard to advocate. This approach is also necessary in order to clarify that the access to justice directive has a much wider scope than the legislation that was included in the PPD (certain plans, EIA Directive, IPPC/IED directives), as it covers all other areas of Union law on activities which have an effect on the environment, not least planning and building, water operations, infrastructural projects, nature conservation and species protection. If a narrower scope is chosen, delimitation problems will inevitably result. Also, a narrower scope will leave it open for the CJEU to find room for still more Union legislation which should be covered by Article 9(3) of the Aarhus Convention. The advantages of such an order are not obvious. 37

Communication ACCC/C/2008/18 (Denmark), para. 59, reiterated in the Report 2008-05-22 to the third Meeting of the Parties (ECE/MP.PP/2008/5. para. 65).

38

C/2010/50 CZ para. 84.

39

See C/2008/11 BE, C/2011/58 BU.

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In addition to this, I think it is necessary that some provisions in an access to justice directive are generally applicable, covering also activities under the PPD. The requirements in Article 9(4) and 9(5) of the Aarhus Convention about costs and effectiveness in the environmental procedure cover both Article 9(2) and 9(3). As will be discussed in sections 3.6 and 3.7, I think there is a need for express Union law provisions on these issues. In my view, they should be made generally applicable for all Union law on the environment. Furthermore, I think it is advisable to choose a similar definition of ‘administrative acts’ and ‘administrative omission’ as in the 2003 proposal, thus emphasising the legally binding and external effects of the former and the legal requirement to act in the latter. This solution has the advantage that ‘acts and omissions’ would become an autonomous legal term of Union law, which I think is necessary as Article 9(3) concerns all kinds of different standpoints by the public authorities in the environmental field. Another argument for the necessity of such a definition is – as was pointed out in the introduction – that the understanding varies greatly among the Member States as regards what constitutes an ‘act’ or a ‘decision’.



3.2.3 The relationship between Article 9(2) and Article 9(3)

Some more words should also be said about the relationship between Articles 9(2) and 9(3). According to the former provision, members of the public shall have the possibility to challenge any ‘decision, act or omission’ concerning the permitting of those activities covered by Article 6 of the Aarhus Convention. As mentioned above, this provision is implemented through the PPD (2003/35) to the EIA Directive and IPPC/IED Directives. According to Article 25 IED, members of the public concerned shall have access to review procedures in court to challenge ‘the substantive or procedural legality of decisions, acts or omissions’ subject to public participation procedures according to Article 24. In that provision, a reference is made to Article 21(5)(a), where it is stated that the permit conditions of an IED installation shall be reconsidered and, where necessary, updated, when the pollution caused by the installation is of such significance that the existing emission limit values of the permit need to be revised or new such values need to be included in the permit. 40 In my understanding, this means that the public concerned shall have the possibility to challenge in court any decision in such a reconsideration procedure, irrespective of whether the authority decides to update the permit condition or not. Thus, the possibility to challenge the authority’s omission in that respect belongs to Article 9(2) of the Aarhus Convention and Article 24 IED. Understood otherwise, the word ‘omission’ would lose all meaning. This is also how I interpret the CJEU’s reasoning in Mellor, which concerned the requirements according to the EIA Directive when an authority finds that an EIA is not needed for an activity. 41 Similar reasoning can be found in the Boxus case, where the 40 41

Similar provisions are already at place in Articles 16, 15 and 13(2)(a) in the IPPC Directive.

C-75/08 Mellor para. 66, see also Compliance Committee case C/2010/50 CZ para. 82.

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national courts are called upon to check the legality of a measure undertaken in a Member State, whereby certain projects are exempted from the requirements of the EIA Directive. 42 To conclude, if an authority chooses not to update a permit condition covered by Article 9(2) and its implementation in Union law, this still falls under Article 9(2), not under Article 9(3).



3.2.4 Civil law action in court

Finally, something should be said about direct civil action in court. For reasons of subsidiarity, the proposal for an access to justice directive is limited in this respect to only noting this possibility according to Article 9(3) of the Aarhus Convention. The proposal therefore in its operational parts deals exclusively with administrative and judicial review procedures to challenge acts and omissions by public authorities. However, leaving aside the discussion about the principle of subsidiarity, there are strong reasons for Union requirements for national legislation that enables members of the public to use the ‘administrative law’ instruments to address the authorities when there are breaches of environmental law. As seen from the national reports, the possibility for members of the public to use civil action against the operator of an illegal activity is widespread. It is even so that in some countries, there is a tendency that the possibility to address the supervisory authorities is weakened or even abolished in certain cases, and instead members of the public can only sue the operator in court directly (HU, NL). I think this development raises serious concerns about the access to justice possibilities for the public, as there seems to be a unanimous opinion among the national experts that civil actions are almost never used. The explanation for this state of affairs has not been analysed, but it is reasonable to assume that the inequality of arms is often decisive in this respect. The ordinary citizen does not sue Volvo or British Petroleum, so to speak. In my view, civil actions in this context furnish members of the public with such great disadvantages that one actually can question whether they can be regarded as an effective remedy according to Articles 9(3) and 9(4) of the Aarhus Convention, at least in those legal systems where the plaintiff is obliged to prove damage in order to successfully bring such a case. 43 Civil law remedies may, however, in the future be developed in line with the ideas of ‘collective redress’ or ‘collective interest litigation’ in the environmental area, which hopefully will alter this picture. 44

42 43

Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Boxus (2011-10-18), para. 57.

This is also my understanding of the Compliance Committee’s standpoint in case C/2010/48 AU para. 73.

44

See Standing up for your right(s) in Europe, p. 116ff for recommendations on how to develop the civil law possibilities for collective interest litigation.

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3.3 Standing for the members of the public



3.3.1 Definition of ‘the members of the public’

When defining the circuit of individuals who shall have standing in environmental cases, the Aarhus Convention uses different terms in Articles 9(2) and 9(3). In the first provision, standing belongs to those members of the ‘public concerned’ who either have ‘sufficient interest’ or maintain an ‘impairment of a right’. These alternatives are meant to include both the rightbased legal systems, as well as the interest-based. In contrast, in Article 9(3), standing belongs to ‘members of the public’ meeting criteria in national law. The latter wording is wider, allowing for actio popularis, but the Aarhus Convention does not require such a solution. 45 Neither does it require abstract norm control, a procedural solution which is quite common in the Member States of the Union. 46 The proposal for an access to justice directive used a very broad definition of ‘members of the public’, namely, ‘one or more natural or legal persons and in accordance with national law, associations, organisations or groups made up by these persons’. In order to stress the importance of having a link or a connection between the persons who are challenging an administrative act or omission and the issue at stake, I think one might narrow down this wide definition to one similar to that used in Article 1(1)(e) EIA Directive (2011/92), that is, ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures […]. For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’. In my understanding, to use this wording is also in line with the recent development of the case law of the CJEU and the principle of effectiveness.



3.3.2 Standing for individuals

In all legal systems with which I am familiar, standing for individuals has been left for the courts to decide. General criteria are commonly expressed in provisions of procedural law, but the closer examination and delimitation of the group of individuals who are concerned is something that needs to be done on a case-by-case basis. This approach is basically also suitable for Union legislation on the issue. However, I have some reservations about the Schutznormtheorie and whether a narrow interpretation of that theory is in compliance with the Aarhus Convention. My concerns mainly relate to 45

This was made clear in a decision from the Compliance Committee in a case concerning Belgium (C/2005/11 BE, para. 35).

46

Even though the possibility of abstract norm control exists in many Member States, it cannot be regarded generally as a requirement under EU law – or required by the European Convention of Human Rights for that matter (ECtHRs judgments in the cases Norris v Ireland, Klass v Germany and Västberga taxi v Sweden).

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the scope of the trial, which I will comment upon in the next section. But it also pertains to the issue of standing in those cases where individuals are only allowed to bring a case, if they are affected by discharges of substances which may be hazardous to their health. In my understanding, this is a far too narrow delimitation of standing. Members of the public might be affected by many more discharges, disturbances and inconveniences from different activities and should, therefore, have the possibility to challenge administrative actions and inactions that concern those operations. In order to underline this, I would avoid the ‘double approach’ in the access to justice provisions in Article 11 of the EID Directive and Article 16 of the IPPC Directive, that is, the reference to the public concerned as those who have a sufficient interest or maintain the impairment of a right. I do not think there is a need for a specific reference to the right-based and the interest-based approaches when defining ‘members of the public’, as both approaches are covered by the general definition ‘likely to be affected by or having an interest in’. The specific definition is still an issue that I think preferably should be dealt with by the national courts, and at the end of the day, the CJEU. I think, therefore, it suffices to use a definition in Union law on standing for individuals in an Article 9(3) context that merely reflects Article 1(1)(e) in the EIA Directive.



3.3.3 Standing for ENGOs and groups

In contrast, in many of the Member States studied, standing for ENGOs is decided by criteria in express legislation. However, the picture is ambiguous and the varieties many, which is why there are strong reasons for using express criteria also at the Union level. As mentioned above, the criteria for ENGO standing in the proposal for an access to justice directive were that the organisation must be independent, and non-profit and that the action must fall within its geographic area of activity and be covered by the objective in the organisation’s statutes. There is additionally a time criterion, requiring that the ENGO must have been active for a fixed period of time, not exceeding three years. There is also a requirement for the ENGO to have its annual statements of accounts certified by a registered auditor. Registration of the ENGO was prescribed in the proposal, either on an ad hoc basis or by an advance recognition procedure. Those criteria are the same as the ones used in Article 11 of the Aarhus Regulation (1367/2006), except for the time criterion, which requires ENGOs to have been active for at least two years. Some of these criteria from the 2003 proposal should be used in the future legislation implementing Article 9(3) of the Aarhus Convention. For the most part, they seem to be judicious as they, on the one hand, recognize the importance of the influence of civil society in environmental decision making, and, on the other, require some level of stability or engagement of the ENGO in order to achieve standing. In my view, the most controversial criterion is the required time of activity, registration and the need to have the organisation’s annual

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accounts certified by an official auditor. The last mentioned criterion is economically burdensome for many smaller ENGOs and has little justification. Additionally, I am unable to see a need for a common requirement for registration of the ENGO, as this is an issue that can best be handled according to national legislation by the Member States. In addition to this, the time criterion is an effective barrier to access to justice for ad hoc organisations. As these organisations play an important role in the democratic participation in environmental decisions, this criterion should be abandoned. This view of mine has support from all the national experts of the study who have voiced their opinion on the issue. On the other hand, if there is a great resistance among the Member States to such a proposal, one might contemplate a ‘combined approach’, emphasising the democratic aspect. Such an approach would use a time criterion or the requirement for public support for the legal challenge, indicated by a number of signatures from members of the public in the area affected by the activity in question. This solution is found in some legal systems for ‘municipal action’, for example in Austria where 200 signatures are required in order to bring certain actions. If such a solution is preferable, I would propose a two year time requirement, combined with the possibility for ad hoc groups which have collected a certain number of signatures to get access to justice. In my view, the number required should, however, not exceed 100 signatures. Thus, standing would be allowed for ENGOs which have existed for two years and to ad hoc organisations with shorter time of activity if they are able to present evidence of democratic support.



3.3.4 An anti-discrimination clause

Another issue that needs to be addressed is about discrimination against foreign citizens and ENGOs. According to Article 3(9) of the Aarhus Convention, the public shall have access to justice without discrimination as to citizenship, nationality or domicile and, in the case of ENGOs, without discrimination as to where it has its registered seat or an effective centre of its activities. The reports from the countries say very little on this issue and, to my knowledge, very little has been done among the Member States to implement this prohibition against discrimination, at least in express terms. In order to clarify the situation, this is an issue that needs to be addressed in Union legislation. As with other geographic criteria, a solution to this can be to state that the statutes are decisive in this respect. However, it should be noted that foreign ENGOs may be affected by an operation in different ways – either because they are active for the protection of a certain area which is not confined by administrative country borders, or because they are active in an area which is affected by discharges or other kinds of disturbances from that operation. Examples of the latter can be long-ranging emissions of pollutants into the air or transboundary waste movements. Therefore, one might consider clarifying this in the coming Union

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legislation in order to meet the non-discriminatory requirement of Article 3(9) of the Aarhus Convention.



3.3.5 Participation as a prerequisite for standing

A very common prerequisite for standing in the studied Member States is participation in the decision-making procedure that precedes the contested decision. Even if this is a widespread practise, I have concerns as to the negative effect on access to justice. Individual members of the public have a basic confidence that the authorities are protecting their interests and rely on the idea that they are ‘doing their job’. It is actually quite common that even a permit decision comes as a surprise for neighbours and people residing in the vicinity. To respond to them afterwards with the argument that they should have showed more interest in the preparatory stage of the decision making is, therefore, not very convincing. In addition to this, one might argue that this issue was addressed and decided upon by the CJEU in the DLV case. Here, the court stated that the public concerned should have access to justice ‘regardless of the role they might have played in the examination of that request by taking part in the procedure before that [permit] body and by expressing their views’. 47 Although the issue at stake in the DLV case was not whether participation was a prerequisite for access to justice, the CJEU statement has widely been understood to mean that participation cannot be used as a condition for standing in environmental cases. 48 Be that as it may, I think it should be made clear in future legislation at Union level on access to justice that members of the public shall have standing even without having participated in the decision-making procedure. A solution for this might be to use the CJEU’s wording from the DLV case.

47

C-263/08 DLV, para. 39.

48

See for example Jans & Vedder at p. 232f. The CJEU statement was actually an answer to one of the questions from the Swedish Supreme Court, which had a less accurate formulation. Also, the arguments of the parties and interveners in the case in the CJEU did not clarify the issue. The Swedish Government, on the one hand, argued that there was no need for further access to justice for the public concerned, as the public already had been invited to participate in the decision-making procedure in the permit body, which happened to be a court (The Environmental Court of Stockholm). On the other hand, the Commission argued that any party who had participated in the preparatory procedure should have standing (the ‘indirect’ or ‘multi stage’ actio popularis view-point). The answer from the CJEU to this was that when the Environmental Court of Stockholm acted as a permit body, it was merely ‘exercising administrative powers’ (para. 37). Furthermore, the CJEU stated that the right to access to justice does not depend on whether the authority which adopted the decision or act at issue is an administrative body or a court of law. Finally, CJEU said ‘that participation in an environmental decision-making procedure is separate and has a different purpose from a legal review, since the latter may, where appropriate, be directed at a decision adopted at the end of that procedure. Therefore, participation in the decisionmaking procedure has no effect on the conditions for access to the review procedure’ (para. 38).

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3.4 The intensity or scope of the review 3.4.1 Introduction

As has been mentioned in section 2.3, effective access to justice for members of the public includes many more factors than just standing. A crucial question in this context is to what members of the public are entitled when they are allowed to challenge an environmental decision in court. The only guidance on this question lies within the wording ‘substantive and procedural legality’ in Article 9(2) and its implementation in EU law. In Article 9(3), the only determination of the scope of review is that members of the public shall have access to ‘administrative or judicial procedures’. In Article 4 of the proposal for an access to justice directive, this is specified as ‘environmental proceedings, […], in order to challenge the procedural and substantive legality of administrative acts and omissions in breach of environmental law’. The problem is that the expression ‘substantive legality’ is inherently ambiguous and that there are different ideas in the legal orders of the Member States as to what does or does not constitute effective judicial review. 49 In my understanding, this goes back to the different underlying philosophies for judicial review in the Member States. Whereas judicial review in some systems seems to be oriented towards protecting the rights of individuals, others are more aligned to protect from ‘wrongs’, that is to protect the law itself, or the lawful application of the legislation.50 In addition to this, some systems seem to use a presumption of legality in the administrative decision making, whereas in others courts do not give such preferential treatment to the authorities. In my understanding, the different conditions for obtaining injunctive relief reflect those disparities in perspectives on judicial review. These differences are clearly reflected even in the national understanding of those parts of the Aarhus Convention that are implemented in Union law. An example of this is shown in the national reports in this study, illustrating that in some countries the ENGOs’ access to justice only allows them to challenge issues concerning their participatory rights under the EIA and IPPC Directives. As already been mentioned, this is in breach of the Aarhus Convention. It is a misconception of the requirement for judicial review, as it is meaningless to have access to justice unless you are able to challenge the final outcome of the decision-making procedure, that is, the permit decision. Clearly, this is also the viewpoint of the CJEU in the DLV case and other Aarhus related judgments. In any event, I think this must be made clear also in any upcoming legislation at Union level implementing Article 9(3) of the Aarhus Convention. And this is where I think the Schutznormtheorie generates problems as regards the scope of the trial. According to the strict interpretation of that 49 50

See IT (Caranta) on p. 30 with references.

In my understanding, this is also the perspective that GA Kokott applies in her opinion in C-260/11 (2012-10-18).

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theory, members of the public – even if they are let through the gateway to the court – are only allowed to forward arguments that concern their individual or subjective public rights. Accordingly, a question of whether the decision is illegal in any other aspect lies outside the scope of the trial. In this respect, the Schutznormtheorie serves only a limited purpose as to legality control. Instead, it merely offers particular privileged interests protection and shields business and the administration from judicial control.51 Something similar can be said about those systems which restrict standing to individuals with property rights.52 In my view, this perspective is incompatible with modern environmental law and the ideas of protection of collective interests. It also decreases the possibilities for effective judicial control of the national applications of Union legislation and thus contravenes Article 19 TEU.



3.4.2 An express provision on the scope of the review

Basically, I think this is an issue that should be decided by the CJEU from national examples in Article 258 TFEU or Article 267 TFEU proceedings. The wording ‘the procedural and substantive legality of administrative acts and administrative omissions’ surely suffices to show that the trial concerns the legality of the administrative decision in all aspects. However, it might be worthwhile to make a clarification about the scope of the trial in legislation on access to justice. This would also be a way of emphasising that the national court has a responsibility to check the legality of an administrative action or inaction of its own accord in line with the ex officio principle, not least in order to improve the application of the principle of effective legal protection under EU law. At the same time, one would lighten the burden of proof required from members of the public challenging an administrative decision, something that has been highlighted as a problem in some of the national reports. A way of doing this could be to clarify the expression ‘substantive legality’, by stating that the applicant should have the possibility to challenge the ‘content of the contested decision’, as opposed to simply the manner in which it has been made. In addition to this, it should be made clear that the reviewing body is responsible for investigating the case in ‘any relevant aspect that the applicant invokes’. Obviously, there are other legal solutions to this problem, but, in my view, it needs to be addressed.

51

Wegener, B: Subjective Public Rights – Historic Roots and Requisite Adjustments to the Confines of Legal Protection (not yet published).

52

See Compliance Committee case C/2010/50 CZ para. 76.

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3.5 Administrative omissions 3.5.1 Introduction

Another issue that has been highlighted in the national reports of this study is the lack of possibilities to challenge administrative omissions. In nearly all Member States there are concerns on this subject. The proposal for an access to justice directive dealt with this issue by way of a procedure for request for internal review (Article 6). In case of administrative acts or omissions,53 the public concerned would be allowed to ask for internal review by an authority designated for this purpose, and the authority would then be obliged to deliver a written decision to the requester within certain time limits. If a decision was not delivered in time, or the requester found the answer unsatisfactory, he or she might initiate environmental proceedings in a court or another independent appeal body.



3.5.2 A prescribed procedure for the handling of administrative omissions I think this part of the proposal has many advantages, and therefore is worth considering. Preferably, this should be done not only in relation to Article 9(3) issues, but as a general concept for access to justice in environmental matters according to Union law. It has been observed in many Member States that the lack of possibilities to challenge administrative omissions is a lacuna in access to justice even despite provisions in place to implement Article 9(2) of the Aarhus Convention in existing directives. An example of this is given in section 3.2, relating to Article 25 IED, where the national authorities are obliged to reconsider the permit conditions for the installations in order to revise the existing emission limit values. Clearly, this is a situation where the authorities may be ‘legally required’ to take action. What if the authority does not act in accordance with the legal requirement? It has been reported that imaginative national legislators do not regard such a silence as a challengeable administrative omission, as this cannot clearly be read from the provisions in IPPC/IED Directives. I think that if they instead asked themselves how the CJEU would regard such an administrative omission, the answer would become obvious. In any event, as Union law commonly leaves much room for the national authorities to decide what administrative actions or inactions shall be regarded as ‘decisions’, and as administrative omissions are widely reported to be a major concern in relation to all kinds of environmental legislation at Union level, I think there is a need for clarification at that level as regards the state of affairs. The model used in the proposal for an access to justice directive is a way forward in doing so. 53

Administrative omission is defined in Article 2(e) as ‘any failure of a public authority to take administrative action under environmental law, where it is legally required to do so’.

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3.6 Costs in the environmental procedure 3.6.1 Introduction

As mentioned in section 2.4, the cost of judicial procedures is considered to have a clear chilling effect or even to constitute an obstacle to access to environmental justice in quite a few of the studied countries. The problems concern high court fees, the loser pays principle in relation to cost liability for the lawyers of the operator and/or the authorities, compulsory use of attorneys in court, expenses for expert witnesses and high bonds for obtaining injunctive relief. In addition to this, uncertainty as regards the cost issue is widely reported to amount to an important barrier to the willingness to challenge administrative decisions in environmental matters. This latter mentioned issue has in part been dealt with by the CJEU in the Irish costs case, where the court found that mere judicial discretion to decline to order the unsuccessful party to pay the costs of the procedure cannot be regarded as valid implementation of the requirement for a not prohibitively expensive cost regime.54



3.6.2 Express provision on ‘Not prohibitively expensive’

Obviously, there is a need to address these problems. Some basic requirements for the implementation of Article 9(4) of the Aarhus Convention should, thus, be given in future Union legislation on access to justice. In this section, I, therefore, make some proposals on the cost issue. The costs of bonds or cross-undertakings in damages will be discussed in next section. First of all, I think it should be stated that administrative fees for the participation in environmental decision making are not in line with the spirit of the Aarhus Convention and the principle of effective legal protection according to Union law. The legal systems shall/should encourage civil society’s early engagement in decision making, not discourage it. In cases in which administrative appeal fees or court fees are used in the national systems, they should be set at a reasonable level, preferably applying a flat rate. If a Streitwertkatalog is used, the value of the environmental cases should be set at a similar, reasonable level.



3.6.3 The application of the loser pays principle

Many Member States use the loser pays principle in judicial review of administrative decisions, even concerning environmental matters. Although that principle cannot be said to contravene the Aarhus Convention as such,55 its application may be restricted. One way of doing this, would be to pre54 55

See also Compliance Committee case C/2008/27 UK and C/2008/33 UK.

This was clarified in the discussion on the 4th session of the Meeting of the Parties to the Aarhus Convention in Chisinau (Moldova) in 2011. The background was that the Compliance Committee in the findings concerning Spain in C/2008/24 had found that an automatic application of the loser pays

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scribe certain conditions in the national cost regimes in environmental cases. In my view, the first of those conditions would be a general statement that the costs in environmental proceedings shall be set by the application of an objective test in relation to what is prohibitively expensive for an ordinary citizen, civil society group or ENGO in relation to the cost of living in the country. It is necessary to state that the insufficient financial capacity of the claimant may not constitute an obstacle for him or her to use legal means for challenging environmental decision making. It is also necessary to take due account of the public interest in environmental protection in the case. The rules on cost liability shall contribute to the aim of broad access to justice for members of the public.56 Another basic condition would be to put an end to the phenomenon that the public authorities have the possibility to recover their costs in the administrative and legal proceedings. Winning or losing, playing the part of the respondent in judicial review certainly is one of an administration’s basic tasks; it should not be reimbursed for performing this function. Instead, there should preferably be one-way cost shifting with respect to public authorities, that is, authorities still are obliged to pay the costs of the claimants if they are successful in their legal action. Additionally, in order to meet the requirement for predictability, schedules for the capping of costs in environmental proceedings are recommended. If cost schedules are not set by express legislation, there should exist a possibility for the applicant to get a separate decision on the cost issue, along the lines of the UK system of Protective Cost Orders. A problem with a system of specific measures with regard to the costs of litigation in environmental cases is the deterrent effect on the willingness of the lawyers to be engaged. Obviously, legal aid is a way to handle this and such a system is a general requirement according to Article 47 of the European Charter of Fundamental Rights.57 In my view, there should be a general requirement to consider the public interest at stake in the case when deciding whether to grant legal aid. Furthermore, the system should allow for ENGOs to receive legal aid under certain conditions, one of those being that the litigation is brought in the interest of the public or that the case is of general interest for some other reason. Finally, I want to draw attention to the fact that the weakening of the loser pays principle does not have straightforward consequences, something that has been highlighted by some of commenting national experts. A cap on costs that are to be reimbursed by the winning party can be problematic as it prevents principle at the level of appeal was not in line with the Convention (para. 117). This triggered an intense debate on the meeting. The MoP finally endorsed the findings (Decision IV/9f, para. 1(c)), but not the statement about the loser pays principle, arguing that the statement did not belong to the findings. This enabled the MoP to confirm its practise hitherto, i.e. to endorse findings of the Compliance Committee on non-compliance. For a further analysis on this, see Veit Koester in Environmental Policy and Law 41/4-5 (2011) p. 196-205, on page 197. 56 57

See opinion by AG Kokott in C-260/11, para. 49.

C-279/09.

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claimant lawyers from recovering their full costs. It has been noted that full costs recovery enables claimant lawyers to offset the loss from other cases, and thus make environmental representation possible, where it would otherwise not be. This is something that needs to be carefully considered in any future Union legislation on cost liability in environmental cases. It should also be made clear that the provisions on costs in a coming directive shall not impose to the Member States the application of a costs regime where it does not already exist.



3.6.4 Experts’ costs

Finally, there is a need to address the concerns with high – or even extremely high – experts’ costs. This is a complicated issue, which involves, among others, factors such as the competence of the reviewing body. Obviously, the problems are diminished, if appeal or judicial review is made to a specialized tribunal or court with experts of their own. In the Netherlands, for example, the court may ask the Administrative Courts Advisory Foundation to provide an extensive report on the technical elements of the case. This independent foundation, funded by the Dutch Government, hosts about 45 experts in all areas of environmental science and physical planning. Claimants can suggest the court ask for such a report, but it is up to the court to decide. However, the competence of the reviewing body is hardly an issue that can be addressed in an access to justice directive. What can be done, however, is to insert the provision mentioned in section 3.4.2 about the responsibility for that body – be it an administrative tribunal or a court of justice – to investigate all arguments in the case of its own accord in line with the ex officio principle. This way, the burden of proof for the litigants will be eased and accordingly their need to use experts of their own decreased.



3.6.5 Alternative Dispute Resolution

ADR (alternative dispute resolution) or mediation has also been discussed in the context of an access to justice directive. Such mechanisms already exist in many of the countries studied but play an insignificant role in environmental cases. In my view, it would, therefore, not be appropriate to propose ADR as an obligatory component of judicial review. The possibility to use such mechanisms could, however, be recommended on a voluntary basis.



3.7 Effectiveness in the procedure 3.7.1 Introduction

One of the major problems highlighted in the national reports concerns the effectiveness of the judicial procedures in environmental matters. This problem relates to the slowness and length of the procedure and the

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absence of suspensive effect of an appeal/judicial review proceedings, in combination with strict conditions or high costs for obtaining injunctive relief.



3.7.2 Criteria for injunctive relief

In those countries where an appeal or the launching of judicial review proceedings does not suspend the contested decision, the availability of the injunction is decisive in environmental cases. As has been shown in section 2.5, there are many cases that are ‘won in court, but lost on the ground’ in the countries studied due to the lack of effective instruments to stop the challenged activity. This might have been prevented, if the criteria for injunctions were not so strict. One might add that the existence of such cases clearly shows that there are strong reasons, also more generally, for a generous attitude towards those who challenge administrative decisions. This is particularly serious in environmental cases, because legal procedures can take many years, and once environmental damage has occurred, it may be impossible to repair. In some of the Member States studied, criteria for injunctions extend beyond the traditional ones about danger in delay, prima facie case and personal harm in that they give more room for weighing the interests in the conflict. Although this weighing of interests traditionally is at the discretion of the court, I think there is a need for a provision on injunctions in the future directive in order to signal a more generous attitude and remind the courts of their responsibility. The provision should emphasize that the interest of the operator should be weighed against the opposing interests and the effects to the environment, if the operation is allowed to commence. Attention should also be paid to how controversial the case is and the parties involved. If the operation concerns vital public interests or interests that are protected under EU environmental law, the starting point should be that the operator must have very strong reasons for commencing before the case is finally decided. To this end, mere economic interests do not suffice. The same should apply in situations where there is widespread resistance against the operation among the public.



3.7.3 Bonds or cross-undertakings in damages

Another aspect of a more generous attitude towards members of the public who take legal action to challenge administrative actions and inactions is the absence of bonds or cross-undertakings in damages. In my view, there is little reason for such a requirement. If the court grants injunctive relief, it has reason to do so and, accordingly, it follows that the operator then should have to wait for the final outcome of the proceedings. This perspective dominates in most of the studied countries, or, alternatively, it is regarded as unwise to proceed with an operation if judicial review has been granted.58 An express 58

Interestingly, this is also the opinion of the Association of European Administrative Judges (AEAJ) in their Recommendation on Interim Relief in Environmental Matters (adopted in Vilnius 22 Septem-

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provision which prohibits bonds or cross-undertakings in damages should, therefore, be inserted in the forthcoming Union legislation on access to justice.



3.7.4 Express provision on timeliness

Finally, there is a need for a provision stating that administrative appeal and judicial review shall be timely. As this is already required according to the EIA Directive and IPPC/IED Directives with little or no effect in the national courts, the provision should be expressed in a more stringent way. If there should be precise time limits, or just a general statement with some edge, leaving room for the national courts and the CJEU to decide, is an issue for further discussion.



3.7.5 Malicious or capricious actions

Still another issue concerning effectiveness of the environmental procedure should be addressed. The administration and the operators have a legitimate interest in avoiding actions which are malicious or capricious. In the studied countries, that issue is dealt with by way of stronger liability for costs for the claimant, in addition to a possibility for the court to directly dismiss such an action. As it is sometimes difficult to distinguish a well-founded action from malicious or capricious ones from the outset, I think this is a good way of dealing with the problem. Such a provision might, therefore, be included in the regulation of costs.



3.8 Some closing remarks

I close this synthesis report with some final words about the relationship between administrative appeal and judicial review in the environmental area. As a general trend in the studied countries, I would say that the barriers to access to justice for members of the public are bigger in those systems where the public merely has the possibility to apply for judicial review directly in court in order to challenge an administrative action or inaction, compared with the systems which include an intermediate step with administrative appeal. Commonly, administrative appeal offers a possibility to have the full case reviewed on the merits by a body higher up in the hierarchy, sometimes at the national level. It is reasonable to believe that such a body by virtue of its experience in analysing all – or at least all the most significant – appealed decisions will achieve a higher degree of competence. The appeal commonly has ber 2011), where the organisation expresses: ‘(T)he working group objects any liability of the appellant, when interim relief is granted and the court decides adversely in the main proceedings. Such a liability affects the right of effective legal protection. According to the Aarhus Convention and Directive 2003/35/EC legal remedies shall not be prohibitively expensive’, see http://www.aeaj.org/spip. php?rubrique52.

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suspensive effect, the reviewing body usually has an obligation to investigate the case, and administrative procedural law usually allows for more relaxed proceedings than those in a court. The procedure is often reformatory, effective and timely, and the costs for the parties are commonly low. Furthermore, if such an administrative body is independent and impartial and its decision final in the administrative proceedings, it may even meet the requirements for being a tribunal according to Article 6 of the European Convention of Human Rights and a court under Article 267 TFEU.59 Having done so, such bodies also meet the requirements of Article 9(3) of the Aarhus Convention in offering ‘administrative or judicial procedures’ for the members of the public. This further improves the effectiveness of such an order, as the subsequent judicial review can be confined to points of law in a written procedure. If and when the European Commission takes action towards legislation at Union level for the implementation of Article 9(3) of the Aarhus Convention, such a piece of legislation certainly will not include anything about the need for administrative appeal bodies, as this would be to interfere with the procedural autonomy of the Member States. However, and this is my final point, it would be worth studying the different administrative tribunals and their pros and cons, in order to improve and spread the knowledge of the good examples to other Member States and other Parties to the Aarhus Convention.



4 Summarizing the recommendations

General proposals There is a need for a Union directive on access to justice in environmental matters. The scope of application for that directive should mirror the 2003 proposal, covering all Union legislation that has the objective of protecting or improving the environment, including legislation relating to human health and the protection or the rational use of natural resources. Some of the 2003 proposal’s definitions should also be used, e.g. ‘administrative acts’ and ‘administrative omission’. Standing and the scope of the review The definition of those members of the public who shall be afforded access to justice possibilities under the directive may be copied from the basic one used in the EIA Directive, that is, ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures […]. For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’. 59

See C-205/08 about the Austrian Umweltsenat.

.

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The double approach to standing for individuals used in the EIA Directive and the IPPC/IED Directive, expressly referring to interest-based or right-based systems should be avoided. There are good reasons for having criteria for ENGO standing and they can – at least to some extent – reflect the ones used in the 2003 proposal. However, the requirements for registration and auditing of the annual accounts should be avoided. Also the time criterion may be abandoned, or, at least, combined with a general possibility to show public support by presenting 100 signatures from members of the public in the area affected by the activity at stake. The directive should contain an express provision on anti-discrimination, reflecting Article 3(9) of the Aarhus Convention. A provision clarifying that members of the public should have access to a review procedure regardless of the role they have played in the participatory stage of the decision making should also be included. The scope of review should include both the procedural and the substantive legality of the contested decision. In order to clarify the latter, the directive might indicate that the applicant should have the possibility to challenge the content of the contested decision and that the reviewing body is responsible for investigating the case in any relevant aspect that the applicant invokes. The issue of administrative omissions needs to be addressed. The model used in the 2003 proposal for an access to justice directive, which outlined a procedure for challenging non-decisions or passivity by the responsible public authorities, is a way forward for so doing. Costs in the environmental procedure Rules for the capping of costs in the environmental procedure should be included in the directive. However, those rules should be made generally applicable for all Union law on the environment. A general provision on costs should be included in the access to justice directive, emphasizing that the costs in environmental proceedings shall be set by the application of an objective test of what is prohibitively expensive for an ordinary citizen, civil society group or ENGO, taking into account the cost of living in the country. It shall also state the necessity to take due account of the public interest in environmental protection in the case. The rules on cost liability shall contribute to the aim of broad access to justice for members of the public. A provision is needed stating that appeal fees and court fees should be set at a reasonable level, preferably applying a flat rate. Schedules for the capping of costs in environmental proceedings are recommended. If cost schedules are not set by express legislation, there should exist a possibility for the applicant to get a separate decision on the cost issue at an early stage of the proceedings. With respect to public authorities, a provision on one-way cost shifting is needed.

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There is also a need for a provision stating that when deciding on legal aid, due account should be taken of the public’s interest in the case. In addition to this, the schemes should allow for ENGOs to receive legal aid under certain conditions. Stronger liability for costs may apply in malicious and capricious cases. Issues on effectiveness A provision on injunctive relief is needed which emphasizes the importance of the availability of such an interim decision from the reviewing body. The provision should be made generally applicable for all Union law on the environment. The provision on injunctive relief should stress the importance that national courts must give to environmental protection and other public interests when deciding on injunctive relief. If the operation concerns vital public interests or interests that are protected under EU environmental law, the starting point should be that the operator must have very strong reasons for commencing before the case is finally decided. To this end, mere economic reasons do not suffice. The same should apply in situations where there is widespread resistance against the operation. An express provision which prohibits bonds or cross-undertakings in damages should be inserted in the forthcoming directive. Finally, an express provision on the requirement of timeliness of the environmental procedure is needed. Annex A: Barriers in the environmental procedure This table represents my view of the main barriers to access to effective justice in the legal systems included in the study. An ‘X’ indicates that there are significant barriers to access to justice in the indicated area. As already mentioned, one must bear in mind that the table represents an extreme simplification of the reality. In order to get the full picture, the reader is advised to consult the national reports. Additionally, it also reflects my own understanding of the requirements of Articles 9(3) and 9(4) of the Aarhus Convention. My description of the ‘protected norm theory’ (Schutznormtheorie) as a barrier to access to justice, obviously, can be debated. One can also discuss to what extent it is a requirement of the Aarhus Convention that both individuals and ENGOs have standing in all kinds of cases covered by Article 9(3), but this is not necessary to determine in this context.

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Country

effective justice?

Indiv. stand

BE

NGOs stand

Costs

X

CY

X

X

CZ

(X)

X

Effective

Explanation

X

No standing for ENGOs in certain civil cases. Uncertain A2J in relation to administrative omissions. Unstable case law of the Supreme Administrative Court since the entry into force of the Aarhus Convention Schutznormtheorie, limited possibilities to challenge envtl decisions

X

Schutznormtheorie, administrative omissions, seldom injunctive relief and too late, some limitations in the possibilities to challenge land use plans and decisions on ‘noise exceptions’

DK

(X)

(X)

Problems with decisions (and non-decisions) that fall outside the administrative appeal system (NMK), potentially high costs in courts, lack of suspensive effect

FR

(X)

(X)

Costs, partly because of the mandatory representation by a lawyer

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DE

X

X

Country

Indiv. stand

NGOs stand

HU

X

X

IE

IT

(X)

LV

(X)

NL

(X)

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X

Limited possibilities for individuals to challenge environment decisions that do not ‘concern’ them according to a narrowly defined Schutznormtheorie, restricted A2J for ENGOs outside EIA procedure and nature conservation law Costs

Effective

Explanation Limited A2J in relation to administrative omissions

X

X

Wide access to JR, high legal costs, court proceedings can take considerable period of time, complexity of the environmental legislation

X

X

Uncertain A2J for local branches of ENGO, uncertain A2J in relation to administrative omissions, costs, lack of efficiency and timeliness…

X

Schutznormtheorie in relation to ENGOs in Constitutional Court, decisions on species protection not appealable, slowness

X1

Schutznormtheorie as regards arguments that the claimant can invoke on judicial review

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PL

effective justice?

X

X

Limited A2J in some sectorial legislation, administrative omissions, some decisions are made through non-appealable ‘plans’

PT

SK

X

ES

X

SE

UK

X

X

X

Slowness, costs of lawyers and of obtaining factual elements of proof, limited intensity of the legal review

X

Schutznormtheorie, limited A2J in relation to decision-making procedures without any public participation, problems with suspension and injunctive relief

X

Costs, slowness, some ‘plans’ (Janecek) and projects approved by parliamentary acts not appealable, general ineffectiveness in the legal system

X

No standing for ENGOs to challenge administrative omissions or decisions outside the scope of the Environmental Code X

X

Costs, inequality of arms in the procedure, complexity of the envtl legislation and legal system, limited scope of review

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Annex B: Costs in the environmental procedure This table depicts the costs in the environmental procedure. The table is divided into eight different categories, where an X represents the existence of administrative fees, court fees, mandatory lawyers in court (ML), the Loser Pays Principle (LPP), mitigating factors, such as schemes for lawyers fees or Protective Cost Orders (PCO), limited responsibility for the costs (one-way cost shifting, OCS) of authorities, legal aid available for the members of the public (LA) and funds available for ENGOs (FU). The table concludes with an evaluation of costs as a barrier to access to justice. Country

Adm. Fees

Court fees

ML

LPP

PCO etc

BE2

€6.20

€82-€350

(X)

(X)

X

CY

LA

FU

Costs as barrier to A2J?

X

(X)

Chilling effect

X3

CZ DK

OCS

€125€200 500 DKK (€60)

X4

€67€10,000

Yes (uncertainty)

X

X

(X)

(X)

X

X6

FR

€35€150

X

(X)

DE

SW: €5,000/i

X7

X

HU

€2-€10

X

X

X

IE

€200-€350

(X)8

(X)

(X)

IT

€60€1,500

X

(X)

Court fees

ML

LPP

Country

Adm. Fees

LV

€14-€28

NL

€150-€310

(X)

PL

€50/i

X10

PT

€50€2,500/i +

X

210

(X)

(X)

Yes (in courts)5 (X)

Yes

(X)

Yes

(X)

Yes Yes

PCO etc

OCS

LA

X (X)9

X

FU

Costs as barrier to A2J? No

X

X

In civil courts

X

X

No No top limit for costs

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effective justice?

SK

€66/i

ES

€50-€200 /€300€60011

SE

No

UK

€60€6,000

X12

X

X

X

X

(X)

X

Frequently

X

No Yes

Annex C: Effectiveness in the environmental procedure This table depicts issues pertaining to the effectiveness of the environmental procedure. The table is divided in to six different categories, where an X represents the existence of suspensive effect on administrative appeal (SE/AA), suspensive effect on judicial review (SE/JR), strict conditions for obtaining injunctive relief (IR/SC), a requirement for bonds to obtain injunctive relief (BO). An X in the TI-column means that there are problems with the timeliness of the procedure. And, finally, problems with the enforcement of administrative decisions and judgment are indicated by an X in the EnF-column. Country

SE/ AA

SE/ JR

IR/ SC

BE

TI

(X)

CY

X

CZ

X

DK

(X)

X

X

(X)

HU

X

Explanation

X

Bonds only in exceptional cases

X

Only in two cases provided by law, the judge must issue injunction

X

Problems with the enforcement of admin decisions

X

(X)

X

DE

EnF

X

FR

(X)

IE (X)13

X

LV

X

X14

X

(X)

X

IT

NL

BO

X

(X)

X

X

X

X

X

X 211

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Country

SE/ AA

PL

X

SE/ JR

PT SK

(X) X

ES

IR/ SC

BO

X

(X)

X

UK

X

EnF

X

X

X

X

X

X

X

X

X

X

X

Explanation Bonds only when challenging construction permits

X

X

SE

TI

X

If the applicant gets a ‘go-ahead decision’, the criteria for IR are quite generous for the PC

X

Complicated structure of appeal (60 different routes), reluctance to ask for IR because of the requirement for bonds

Footnotes to the Annexes A, B and C 1

In relation to decisions than can be reviewed by the administrative courts. If legal redress is only available for members of the public by way of action in civil courts, the system is less effective.

2

ML: Only in Supreme Court in civil cases, LPP only in general courts, not before the administrative courts, PCO: Allowance system before ordinary courts, LA: Only for individuals.

3

Preset schedules for litigation costs.

4 5

Only in higher courts.

Not in the Nature and Environment Appeal Board, which in many cases is the main road for appeal.

6 7

Only for individuals.

Only in higher courts.

8

IE has introduced special costs rules for certain categories of environmental litigation. Where the special costs rules apply, each side bears its own costs, subject to certain exceptions.

9

Lawyers are mandatory and loser pays principle apply in civil courts.

10 11

Not in the regional administrative courts.

Proposal pending for raise of court fees.

12 13

Mandatory to have two attorneys.

Suspension is possible in appeal procedures, but they are not really used.

14

For building permits only.

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Austria Verena Madner

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austria

1 Preliminary Remarks

Austria is a federal state and competences regarding environmental protection are fragmented. Both the federation and the states (Länder) have legislative and administrative powers in this field, but legislative competences of the federation predominate. The most important environmental legislative competences of the states (Länder) encompass nature preservation and zoning law. This division of competences sometimes hinders effective implementation of environmental law such as European directives. Austrian environmental law is mainly regulated in the field of public, or more precisely, administrative law. Hence, it is mostly administrative courts and tribunals that play a significant role in the application of both national as well as European environmental law. For decades, efforts have been made to create a two-tier administrative court system in Austria. Only recently has Parliament adopted an amendment to the constitution (BGBl I 2012/51), abolishing all existing independent administrative appellate bodies and instead establishing administrative courts of first instance both at the federal and state levels (Landesverwaltungsgerichte und Verwaltungsgerichte des Bundes). This reform of the administrative court system will enter into force as of 1 January 2014. Currently, however, there are no administrative courts of first instance in Austria. On an appellate level independent Administrative Tribunals of the Länder (Unabhängiger Verwaltungssenat – UVS) decide on legal remedies brought against administrative decisions in many fields. For matters regarding EIA and development consents, a special federal environmental tribunal, the Independent Environmental Senate (Umweltsenat), has been established. The Umweltsenat is the central authority for appeals with substantive and unlimited jurisdiction. The Umweltsenat is considered a court or tribunal for the purposes of Article 267 TFEU that can refer questions for preliminary ruling to the ECJ (C-205/08 Umweltanwalt von Kärnten [2009] ECR I-11525). The Constitutional Court (Verfassungsgerichtshof ), the Administrative Court (Verwaltungsgerichtshof ) and – concerning criminal and civil law – the Supreme Court (Oberster Gerichtshof ) act as courts of last instance. This report focuses on decisions of these courts, most notably on judgments of the Administrative Court, during the last ten years.



2 Direct Effect and State Liability

Time and again the question of direct effect of provisions of EU environmental legislation has been raised in national courts. In several cases the national courts found provisions of EU environmental directives to be not sufficiently precise or unconditional, and therefore dismissed claims based on their alleged direct effect. An example is the Constitutional Court’s judgment in

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VfSlg 18.585/2008. An association of concerned citizens (Bürgerinitative) challenged the approval for a highway project and claimed, i.a., that the competent administrative authority should have granted locus standi to NGOs in the permit procedure by directly applying Art. 10a of the EIA Directive. The Constitutional Court held that the relevant provisions of the EIA Directive were not unconditional in so far as Member States had to decide on the requirements that nongovernmental organizations had to fulfil in order to be recognized as an NGO promoting environmental protection in the sense of Article 1(2) and Article 10a EIA Directive. At the time no national provisions on the recognition of NGOs had been established and the Constitutional Court decided that it was impossible to hold Article 10a EIA Directive to be sufficiently precise and unconditional to have direct effect.1 More recently, the Constitutional Court held that in the light of the Lünen case (C-115/09) Art. 10a of the EIA Directive was not sufficiently precise and unconditional to have direct effect with regard to the determination of the competent bodies before which actions contesting an EIA permit decision may be brought. The direct effect of provisions in directives has been denied several times, but the Umweltsenat, and subsequently, the Administrative Court (VwGH 8 June 2005, 2004/03/0116) have for example found a provision of the Protocol on Soil Conservation (Art. 14 par 3.1) in the framework of the Alpine Convention to have direct effect. The provision was therefore applied in the proceedings concerning the enlargement of a skiing resort and the permit was eventually refused. Especially with regard to the implementation of the EIA Directive, national courts have also applied the Waddenzee/Kraaijeveld doctrine. For example, in two cases concerning EIA screening decisions for waste management facilities, the Administrative Court disagreed with the project developers and decided that the EIA directive was directly applicable where the thresholds set in the directive had been followed in implementation (cf. VwGH 18 November 2004, 2003/07/0127, see also VwSlg 16.018 A/2003). In such cases ‘indirect horizontal’ side effects (cf. Case 201/02 Wells [2004] ECR I-723) on third parties (e.g. license holders) may well occur (e.g. VwSlg 16018 A/2003). As to the direct effect of Treaty provisions, in several cases concerning waste management facilities, neighbours tried to invoke the proximity principle.2 They claimed – unsuccessfully in the result – that in the light of the proximity principle, a permit for a waste recovery facility must be refused in so far as the facility was intended to process waste from neighbouring EU countries.

1

Provisions on the recognition of NGOs have subsequently been established in EIA national legislation.

2

E .g. Umweltsenat, 11. 6. 2010, US 1A/2009/6-142 – (Heiligenkreuz).

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3 Consistent Interpretation

The doctrine of consistent interpretation is used by all national courts quite frequently. In one of the first judgments concerning EU environmental law (VwGH 23 October 1995, 95/10/0081), the Administrative Court decided that consistent interpretation applies only ‘so far as possible’ and therefore a transitory provision in the Austrian EIA Act, violating EU law by suspending the applicability of the EIA Directive, could not be interpreted so as to provide for the applicability of the directive. The Administrative Court went on to hold that regardless of direct effect, a national Act will not be applicable if there is a clause suspending its applicability. On another occasion the Administrative Court ruled that in the light of Art. 10 and 249(3) TEC, the contested Planning Act (Salzburger RaumordnungsG) had to be interpreted consistently with Art. 12 of the Seveso-II Directive, thus obliging the competent planning authorities when modifying a land-use plan (Flächenwidmungsplanänderung) to take into account the duty to maintain appropriate distances between residential areas and establishments falling under the directive.



4 State Liability

With regard to state liability claims, in 2009 the Constitutional Court dismissed a claim, based on alleged failure of the national legislator to adequately implement, i.a., the EIA Directive in connection with the enlargement of the Vienna International Airport (VfSlg 18.787). The Constitutional Court found that its jurisdiction was limited to cases where the harm is directly caused by the legislator’s action or inaction. It was not sufficient that an administrative or judicial violation of EU law was ‘compellingly pre-determined’ by the legislator’s inadequate transposition. In such cases the ordinary courts retain their jurisdiction over liability claims. This case finally ended up at the Supreme Court, which has recently submitted a question concerning the interpretation of the notion ‘material assets’ in Art. 3 EIA Directive to the CJEU.



5 Procedural Barriers

Generally, parties do not have to raise questions such as direct applicability but will usually do so if the point is contentious. In any case, the Administrative Court has to assess the conformity with EU law on its own motion. But unless the Administrative Court finds an act to be unlawful for lack of jurisdiction or violation of procedural rules, it can only review the contested decision on the grounds of the facts established by the lower authority and within the scope of the claims submitted (i.e. which rights the petitioner consid-

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ers to having been violated, see § 28 para 1 lit 4; § 41 para 1 Administrative Court Act). The rights of neighbours in procedures such as permitting for industrial installations are dependent on their substantive rights affected. Generally neighbours may claim health risks, serious nuisances and property rights, while issues such as permit conditions on emission limit values according to BAT, energy efficiency standards or obligations concerning nature preservation are considered to fall within public interest legislation, and compliance with such requirements is not enforced through neighbour rights. As a result, the relevant case law of the Administrative Court (VwGH 22 March 2000, 98/04/0019; VwGH 25 June 2008, 2005/04/0182) creates tensions with the CJEU’s wide concept of individual rights, (as established for example in Case C-237/07 Janecek [2008] ECR I-6221). Procedural barriers do exist with regard to the question of locus standi: The Austrian EIA Act does not grant locus standi to neighbours or NGOs in EIA screening procedures. The Administrative Court has decided in several cases that there is no obligation to grant standing to neighbors or NGOs with regard to the formal and binding decision as to whether an EIA needs to be performed for a project or not (VwGH 28 June 2005, 2004/05/0032; VwGH 30 June 2006, 2005/04/0195; VwGH 2006/07/0233; VwGH 22 April 2009, 2009/04/0019). NGOs and individuals have argued that it is not always possible to challenge the permit of a project at a later stage and to bring up the question that an EIA should have been performed; with regard to Art. 10a of the EIA Directive and taking into account the ECJ’s rulings in the Wells case (see above) and the Mellor case (C-75/08 [2009] ECR I-3799) they have raised doubts whether the decisions of the Administrative Court are in conformity with EU law. In spring 2012 the Commission has raised the issue in a letter to the Austrian Government. Recently, in proceedings concerning the EIA development consent for two high-speed railway projects (Angertalbrücke and Brenner Basistunnel), an NGO and the Environmental Ombudsman filed a complaint against the decision of the competent authority, the Ministry of Transport. The petitioners argued that implementation of Art. 10a of the EIA Directive in Austria was defective because the EIA development consent for a high-speed railway was not subject to full judicial review. For high-priority transport projects the Environmental Senate does not act as the authority of appeal, and such decisions can only be contested by filing a complaint with the Administrative Court. The Administrative Court, however, is a court of cassation. It can squash a decision if, i.a., substantial procedural provisions have been neglected or if an essential part of the facts needs to be stated more clearly, but it has no competence to ascertain the relevant facts of the case by itself or gather any evidence. The Administrative Court, therefore, agreed with the petitioners (VwGH 30 September 2010, 2009/03/0067, 0072). It decided that in order to fully apply European Union law and protect the rights conferred onto the public by Art. 10a of the EIA Directive the Umweltsenat has to be regarded as the competent appel-

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late authority in high-priority traffic projects, despite a provision in the Austrian EIA-Act to the contrary. The Constitutional Court, however, rejected this interpretation in a subsequent decision (VfSlg 19.425/2011). It held that the Administrative Court meets the requirements for a tribunal in the sense of Art. 6 ECHR. In its opinion this is sufficient for the purpose in question as the law of the European Union (Art. 47 Charter of Fundamental Rights) does not require courts to have ‘full jurisdiction’ in order to protect individual rights granted by the EIA Directive. The Constitutional Court referred, i.a., to the Upjohn case, while the Administrative Court had referred cases such as Dörr (C-136/03 [2005] ECR I-4759) and Wilson (C-506/04 [2006] ECR I-8613) to reinforce its position.



6 Constitutional Issues

Until very recently, claims in the Constitutional Court could not be based on rights emanating from primary or secondary EU law. Potential violations were regarded as equivalent to violations of rights granted in statutes rather than the constitution, and therefore fell entirely within the jurisdiction of the Administrative Court. But in its recent landmark decision (VfGH 14 March 2012, U 466/11-18, U 1836/11-13), the Constitutional Court decided that claims based on the violation of the EU Charter on Fundamental Rights could be brought before it. The Court argued that in the light of the entry into force of the Lisbon Treaty and the Charter having the same legal value as the Treaties, its previous case law could no longer be upheld and had to be overruled. Those Charter rights that correspond to national fundamental rights will constitute a valid base for constitutional claims, although for the time being it remains rather unclear which of the Charter rights will eventually be considered as ‘comparable’. The Constitutional Court will decide on this question on a case by case basis. Interestingly the supremacy of EU law, even over the national constitution, is undisputed in Austria and has been endorsed by the Constitutional Court in several judgments. Only basic principles of the Austrian constitution provide for a limitation of the supremacy of EU law (Integrationsschranken). According to the prevailing doctrine, the basic principles of the Austrian constitution have undergone substantial change (Gesamtänderung, ‘total revision’, submitted to a referendum) in the course of the Austrian accession, thus opening up the national legal order widely to EU legal supremacy and direct effect. It is also undisputed and has been confirmed time and again by the Austrian Constitutional Court that national constitutional law still has to be taken into account as far as there is any scope for interpretation. In such situations, the Austrian Constitutional Court applies the ‘principle of double scrutiny’ (Grundsatz der doppelten Bindung). According to this principle, an Act, transposing a directive etc, has to be in conformity both with EU and national constitutional law. If the transposing act contradicts the constitution, there are two basic solu-

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tions: either amend the constitution or change the transposing law in a way so that it conforms both to EU law and the – unaltered – constitution. The general provisions of the Constitution3 on the division of competences between the Federation and the States (Länder) are relevant also with regard to the implementation of EU law. Whether the Federation or the States have the legislative power to transpose a directive is determined solely by the Austrian Constitution. Hence, in a situation, where neither the federation nor the states have legislative power to transpose provisions of a directive, direct effect cannot make up for this deficiency. Unless the constitution is amended, providing for sufficient legislative competences, claims for state liability and infringement proceedings are the only remedies available. In a judgement concerning the transposition of the energy efficiency provisions in the IPPC Directive, the Austrian Constitutional Court held, accordingly (VfSlg 17.022/2003), that even if neither the Federation nor the States had sufficient legislative competences to transpose the directive, the problem could not be solved by direct effect. The fragmentation and division of competences among the Federation and the Länder is often an impediment for the timely and complete implementation of EU directives. Consequently, Austria has faced a number of infringment proceedings, e.g. concerning the implementation of the IPPC Directive, the SEA Directive or the Directive on Environmental Liability. Attempts to achieve a constitutional reform regarding the allocation of competences have not been successful to date. Neither has an overall reform designed to standardize and centralize the regulatory framework for licensing procedures (‘einheitliches Anlagenrecht’) been achieved. Yet, with the process of joining the European Union, a breakthrough was achieved at least in the field of EIA. In Austria, the EIA decision is integrated into a consolidated permit procedure, thus assuring comprehensive review of environmental impacts. The authority competent for the EIA (Landesregierung, State Government) is required to apply all relevant legislation both from the state and federal levels. Both the Administrative Court and the Constitutional Court confirmed that the doctrine of supremacy of EU law over national law has to be applied only so far as necessary. In other words, decisions of the national legislator should be upheld so far as possible. Along this line the Constitutional Court recently held (VfSlg 19.425/2011) that even if Art. 10a of the EIA Directive was deemed to require the competent court to have full jurisdiction in order to protect individual rights granted by the directive and even if, against the opinion of the court, Art. 10a of EIA Directive was deemed to be sufficiently precise and unconditional to have direct effect, constitutional law could only be overruled, if there was no equivalent option, less contradictory to the constitution. Hence, the Constitutional Court held that in the light of the Austrian Constitution the court/tribunal competence to judicial review concerning high-speed railway 3

Art. 23d B-VG.

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projects would fall within the jurisdiction of the Administrative Court rather than the Umweltsenat. The reception of EU environmental law is generally favourable. But, similar to the situation in Germany, for more than a decade now the legislative approach to transposition has been to avoid gold plating. In some respects EU environmental law follows an approach different from the traditional Austrian approach. In this situation the implementation of EU law can be difficult and implementation is often delayed. Examples include – emission standards based on BAT-standards vs. immission control values; – locus standi according to the impairment of substantive individual rights.



7 References to the CJEU

Generally, Austrian courts are not too reluctant, when it comes to submitting requests for preliminary rulings to the CJEU, and both the Administrative Court and ordinary courts are involving the CJEU quite actively. In 1999 the Austrian Constitutional Court (VfGH) was the first national Constitutional Court ever to submit a question to the European court for a preliminary ruling. 4 The Constitutional Court considers itself to be a court against whose decisions there is no judicial remedy under national law (Art. 267 TFEU, ex Art. 234 TEC, [formerly Art. 177 TEC respectively]) and which is, therefore, obliged to make a reference to the CJEU under the conditions of EU law. However, in practice, the need to do so occurs rarely, mainly due to the specifics of Austrian constitutional review (Grobprüfung, Vorrang, Denkunmöglichkeit). To date, the Constitutional Court has made three submissions. The Administrative Court (VwGH) makes references far more frequently and by 2011 had submitted around 70 cases, though only a very few were environmental – less than 5. The most important one probably was ASA Abfall Service (Case C-6/00 [2002] ECR I-1961), which was concerned with, whether the deposit of waste in a disused mine constitutes a disposal or recovery operation within the meaning of the Waste Framework Directive 75/442. In a case concerning the construction of a power line connecting Austrian and Italian networks in the Alpine Region an EIA screening procedure took place. The competent authority (Kärntner Landesregierung) determined that no assessment was required for the project because the length of the Austrian part of the project did not reach the required minimum threshold of 15 kilometers stipulated in the UVP-G 2000. The Environmental Ombudsman filed an appeal to the Umweltsenat against the decision seeking the annulment of the contested decision. The Ombudsman argued that, according to the aims of the EIA directive, the project as whole (and not only the Austrian part) has to be 4

VfSlg 15.450/2001, Vorlage-Beschluss VfGH 10. 3. 1999, B2251/97 u B2594/97; ECJ C-143/99; see e.g. .

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taken into consideration in the screening procedure. The Umweltsenat referred the question to the ECJ, which decided that the total length of a project was relevant, even in case of a cross-border project (US 8. 5. 2008, 8B/2008/2-8; Case C-205/08 Umweltanwalt von Kärnten, see above). The Austrian Supreme Court in both civil and criminal law matters is also regularly submitting questions for preliminary rulings which may have an influence on environmental law issues as well. As mentioned above, the Constitutional Court held that the ordinary courts are competent to decide on state liability cases unless the violation stems directly from the legislator. It is quite interesting that the case that had been dismissed by the Constitutional Court finally ended up at the Supreme Court. The latter just recently submitted a question concerning the interpretation of the notion ‘material assets’ in Art. 3 of the Directive on Environmental Impact Assessments (OGH 21 July 2011, 1Ob17/11y; ECJ, Case C-420/11 Leth [pending]) in this very case.

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belgium

1 Context

Article 34 of the Constitution states: ‘The exercise of specific powers can be assigned by a treaty or by an Act of Parliament to institutions of public international law.’ This provision forms the constitutional basis for EU Membership of Belgium. There is no other provision in the Belgian Constitution determining the relationship between international law, European law and domestic law. The principles were laid down by the Supreme Court (Cour de Cassation) in the Le Ski case.1 Before 1971, Belgium traditionally adhered to the theory implying that a treaty had the same legal force as any Act of Parliament. Pursuant to the principle lex posterior priori derogat, a treaty prevailed over earlier laws containing inconsistent provisions but not over Acts that came into effect later on. In Le Ski the Supreme Court ruled that a self-executing treaty prevails over both former and later Acts of Parliament, which should be declared inoperative by any court. Le Ski did not concern a conflict between a treaty and the Constitution, but it was generally agreed that a self-executing treaty prevails over the Constitution. Judicial decisions have not only acknowledged the primacy of self-executing provisions of the EU Treaties but also of secondary EU law. The primacy of the ECHR as well as other human rights conventions has also been recognized. 2 However, the Constitutional Court (created in 1984) is competent to review the compatibility of Acts of Parliament, including those by which a Treaty is ratified, with the rules that have been established by or in pursuance of the Constitution to determine the respective powers of the State, the Communities and the Regions or the articles of Title II ‘The Belgians and their Rights’ and Articles 170, 172 and 191 of the Constitution. This seems to indicate that Treaties should not contradict the Constitution before they can have primacy over that same Constitution. So far, there have been no cases in which the Constitutional Court found a contradiction between the Belgian Constitution and a Treaty or EU Act. To limit the risks for Belgium’s international liability and to avoid upsetting international relations because a Treaty that is already in force is found to be in contradiction with the Constitution by the Constitutional Court and is therefore (partially) annulled or declared void, the Special Act on the Constitutional Court limits the time frame in which actions for annulment can be brought before the Court. Actions for full or partial annulment of an Act of Parliament by which a convention is ratified shall only be admissible insofar as they are instituted within sixty days after the publication of the Act in the Official Journal (the normal period is 6 months). Furthermore, Acts of Parliament which ratify a Treaty establishing the European Union or the European Convention for the Protection of Human Rights and Fundamental Freedoms or an Additional Protocol to this Convention are excluded from the competence of the Consti1

Cass. 27 May 1971 Arr.Cass. 1971, 967.

2

Alen, Tilleman & Vander Stichele (1992) 29.

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tutional Court to give preliminary rulings to other courts and tribunals on the constitutionality of Acts of Parliaments.3



2 Application of International and European Law by the Courts



2.1 Introduction

In general, jurisprudence in Belgium holds that only international and European law that has direct effect can be invoked by citizens before the courts. 4 An exception in this respect is the Constitutional Court.5 According to the case law of the Belgian Constitutional Court, every pertinent rule of international or European law that is binding on Belgium can be invoked before it, in combination with the provisions of the Belgian Constitution and the Special Acts for which the Court is competent, irrespective of whether such rules have direct effect or not. As far as environmental law is concerned, in the last ten years, the UNFCC (1 case), the European Landscape Convention (1 case), the Kyoto Protocol (2 cases) and the Aarhus Convention (11 cases) were invoked before the Constitutional Court, either to justify one or another act or to attack them. About twenty Environmental Directives were invoked in over fifty cases. The CITES Regulation (EC) n° 338/87 was at issue in one case. Of course, if they have no direct effect, the legislators will have much more room for manoeuvre than if they do have such an effect, because then the provision will be relatively precise and unconditional. It seems that only provisions of treaties or directives that could be qualified as having direct effect have been used so far by the Constitutional Court to annul or to contribute to the annulment of an Act of Parliament. That was, e.g., the case in a judgment concerning the relaxation of the provisions of the Walloon legislation dealing with EIA for Annex II projects (violation of Art. 10, 11 and 23 of the Constitution in conjunction with the relevant provisions of Directive 85/337/EEC)6 and the judgment concerning a relaxation of some provisions of the Walloon Town and Country Planning Law (violation of Art. 23 of the Constitution in conjunction with Directive 2001/42/EC and Art. 7 of the Aarhus Convention).7 3

Vande Lanotte & Goedertier (2001), 105-112.

4

The Council of State was, based on the wording of Art. 6, of the opinion that the Bern convention on the conservation of European wildlife and natural habitats has no direct effect (Council of State, n° 191.265, 11 March 2009, vzw Werkgroep Natuurreservaten Linkeroever-Waasland and vzw Bond Beter Leefmilieu Vlaanderen).

5

All the judgments of the Constitutional Court are published on its website: www.const-court.be. The judgments of the Council of State are published on its website: www.raadvst-consetat.be. The judgments of the Supreme Court can be found on: www.cassonline.be.

6

Constitutional Court, n° 11/2005, 19 January 2005, Inter-Environnement Wallonie; in the same sense: Constitutional Court, n° 83/2005, 27 April 2005, Inter-Environnement Wallonie.

7

Constitutional Court, n° 137/2006, 14 September 2006, Inter-Environnement Wallonie.

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3 Direct Effect of EU Law

Environmental Directives The Council of State accepted expressis verbis 8 the direct effect of different provisions of environmental directives. That is the case with Art. 4(1), 4(2), 4(4), 5 and 9 of the Birds Directive9, Art. 2, 3, 4, 6(2), 6(3) and 6(4) of the Habitats Directive10, Art. 1, 2, 4, 5, 6, 7, 8 and Annex I, II and IV of the EIA Directive11 and Art. 3(2) and 13 of the SEA Directive.12 In at least one case, 8

Sometimes the Council of State takes into consideration provisions of European Environmental law, without first considering whether the provisions in question have direct effect or not. That is, e.g., the case with Council of State, n° 144.349, 12 May 2005, Feron and de Lantsheere (art. 9 of Directive 75/442/ EEC); Council of State, n° 191.266, 11 March 2009, Apers and Van Buel (art. 12 of Directive 96/82/EC – Seveso II Directive); Council of State, n° 199.664, 19 January 2010, Jacquinet (art. 15 Directive 2006/12/ EC – application of the polluter pays principle in waste affaires); Council of State, n° 209.866, 20 December 2010, Peirs, TMR 2011, 549-573 (Directives 2008/50/EC and 1999/30/EC – air quality standards); Council of State, n° 211.023, 3 February 2011, Dalhem (Directive 2000/60/EC- Water Framework Directive).

9

Council of State, n° 96.198, 7 June 2001, Wellens and others, Amén. 2002, 74-76; Council of State, n° 100.777, 13 November 2001, Ligue Royale belge pour la protection des oiseaux; Council of State, n° 109.563, 30 July 2002, Apers and Others, TMR 2003, 135-143; Council of State, n° 147.047, 30 June 2005, Soete and gemeente Knokke-Heist, TMR 2006, 93-106; Council of State, n° 191.265, 11 March 2009, vzw Werkgroep Natuurreservaten Linkeroever-Waasland and vzw Bond Beter Leefmilieu Vlaanderen; Council of State, n° 191.266, 11 March 2009, Apers and Van Buel.

10

Council of State, n° 94.527, 4 April 2001, asbl L’Erablière and Others, Amén. 314-323; Council of State, n° 96.097, 1 June 2001, asbl L’Erablière and Others; Council of State, n° 109.563, 30 July 2002, Apers and Others, TMR 2003, 135-143; Council of State, n° 147.047, 30 June 2005, Soete and gemeente Knokke-Heist, TMR 2006, 93-106; Council of State, n° 182.770, 8 May 2008, Commune de Watermael-Boitsfort; Council of State, n° 191.265, 11 March 2009, vzw Werkgroep Natuurreservaten Linkeroever-Waasland and vzw Bond Beter Leefmilieu Vlaanderen; Council of State, n° 191.266, 11 March 2009, Apers and Van Buel.

11

Council of State, n° 99.794, 15 October 2001, De Vries and Pana (suspension of the building permit for a waste incinerator), TMR 2001, 165-171; Council of State, n° 147.047, 30 June 2005, Soete and gemeente Knokke-Heist, TMR 2006, 93-106; Council of State, n° 154.217, 27 January 2006, Musschoot and others, TMR 2006, 492-494; Court of Cassation, 4 December 2008, A. and others, Arr. Cass., 2008, n° 696; Council of State, n° 195.230, 14 July 2009, Brussels Hoofdstedelijk Gewest and others; Council of State, n° 189.870, 29 January 2009, Massange de Collombs and de Tornaco, TMR 2009, 255-256 (art. 4.2,a) – implicit); Council of State, n° 191.924, 26 March 2009, Laga and others, TMR 2009, 466-468; Council of State, n° 192.592, 23 April 2009, VZW Beter Bruggestraat and others, TMR 2009, 780-791; Council of State, n° 208.572, 28 October 2010, asbl Grez-Doiceau Urbanisme et Environnement and Others; Council of State, n° 211.023, 3 February 2011, Dalhem.

12

Council of State, n° 163.267, 6 October 2006, Van Linden and Keirens, TMR 2009, 382-386 with annotation H. Schoukens; Council of State, n° 179.933, 20 February 2008, Van Poucke and Others, TMR 2009, 219-229 with annotation H. Schoukens; Council of State, n° 191.266, 11 March 2009, Apers and Van Buel (implicit); Council of State, n° 195.995, 14 September 2009, Van Pollaert, TMR 2010 394-398; Council of State, n° 206.078, 29 June 2010, nv Nieulandt Recycling and others, TMR 2011, 46-50; Council

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however, the Council of State was of the opinion that a plea derived from the violation of Art. 6(3) of the Habitat Directive and of Art. 10 of the EC Treaty should not be examined by the Council, because it was not part of the initial request, and only ‘public order pleas’ (moyens d’ordre public) can be introduced in a later stage of the proceedings.13 The Council of State also held that Art. 3(4) of the SEA Directive has no direct effect.14 Environmental principles In most of the cases where environmental principles are involved, reference is made to the principles enshrined in domestic law (federal or regional) which are the same as the European principles. Only exceptionally reference is made to the European version of the principles. The Supreme Court accepted, at least implicitly, the direct effect of the environmental principles of the EC Treaty, at that time enshrined in Art. 130r EEC, in a matter not regulated by EU law, while reviewing the conformity of a provision of the Flemish wastewater tax with the polluter pays principle. Taking into account the relevant case law of the CJEU15 it stated that ‘in view of the need to strike a balance between certain of the objectives and principles mentioned in Article 130r and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question whether’ in this case the legislator ‘committed a manifest error of appraisal regarding the conditions for the application of Article 130r of the Treaty’.16 The Council of State, after having stated that the polluter pays principle of Article 15 of the Waste Framework Directive was not applicable in the case before it, because the waste in question was not yet disposed of, judged that it was impossible to verify if the polluter pays principle of Article 174(2) EC Treaty was respected or not, since the decision at issue was not well reasoned on this point.17 In another case the Council of State held that the polluter pays principle, contained in Art. 174(2) of the EC Treaty, should inspire legislation, but is not a rule of positive law and thus cannot be invoked before the Council.18 Someof State, n° 208.918, 10 November 2010, vzw Natuur en Landschap Meetjesland, TMR 2011, 131-136; Council of State, n° 209.861, 20 December 2010, Kerckhof and others, TMR 2011, 307-308; Council of State, n° 211.806, 4 March 2011, bv Hydralibur, TMR 2011, 625-627; Council of State, n° 211.807, 4 March 2011, nv F. Industries, TMR 2011, 627-630; Council of State, n° 212.265, 28 March 2011, Seghers and others, TMR 2011, 630-632. 13

Council of State, n° 210.082, 21 December 2010, Koevoet.

14

Council of State, n° 179.933, 20 February 2008, Van Poucke and Others, TMR 2009, 219-229 with annotation H. Schoukens; Council of State, n° 195.995, 14 September 2009, Van Pollaert, TMR 2010 394-398; Council of State, n° 211.806, 4 March 2011, bv Hydralibur, TMR 2011, 625-627; Council of State, n° 211.807, 4 March 2011, nv F. Industries, TMR 2011, 627-630.

15

Case-341/95, Bettati v Safety Hi-Tech [1998] ECR I-4355.

16

Court of Cassation, 20 October 2006 (F.05.0075.N), Brussels International Airport Company nv, TMR 2007, 152-153.

17

Council of State, n° 199.664, 19 January 2010, Jacquinet.

18

Council of State, n° 210.082, 23 December 2010, Koevoet.

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times it is unclear if a domestic or the corresponding international or European environmental principle is at issue.19 In one case, where planning permission for a mobile phone mast was refused on the basis of the precautionary principle, and this decision was challenged before the Council of State because such a principle was not enshrined in the Walloon legislation, the Council of State referred to Article 174(2) of the EC Treaty and added that although the principle was not expressis verbis mentioned in the Walloon legislation, it is implicitly laid down in Article 23 of the Constitution (the right to the protection of health and the environment), Article 1 of the Walloon Town and Country Planning Code and Art. 6 of the EIA Decree. The Council was, thus, of the opinion that given the scientific uncertainties surrounding the radiation from mobile phone masts, the government could apply the precautionary principle.20 The Court of Appeal of Mons considered that the polluter pays principle is a general principle of law enshrined in different international and European legal texts and that it should be applied as ‘a principle of ecological public policy’.21 International Treaties The Council of State holds the view that the Bern Convention of 19 September 1979 on the Conservation of European Wildlife and Natural Habitats22 and Art. 9(2) of the Aarhus Convention in the period before ratification have no direct effect.23 Art. 2(5) and 9(2) of the Aarhus Convention, since the ratification of the Convention by Belgium, are believed to have direct effect. 24 Waddenzee/Kraaijeveld doctrine An application of the so-called Waddenzee/Kraaijeveld doctrine is seen in a case where the Council of State annulled a Ministerial Order of 27 May 1999 concerning the capture of finch and the promotion of finch breeding, because in derogating from the prohibition on capturing finch it did not respect the bound19

Council of State, n° 96.095, 1 June 2001, Beck; Court of Appeal, Liège, 29 November 2001, Amén. 2002, 158-160; Council of State, n° 109.508, 23 July 2002, sprl Azimut and Others, Amén. 2003, 49 (restrictions on kayaking not in violation of the precautionary principle since they tend to avoid the possible occurrence of harmful environmental impacts); Council of State, n° 172.507, 20 June 2007, Petit (suspension of planning permission for mobile phone mast that violates the obligation to give reasons and the precautionary principle).

20 21

Council of State, n° 118.214, 10 April 2003, sa Mobistar, Amén. 2003, 254.

Court of Appeal, Mons, 9 June 2009, Amén. 2009, 303.

22

Council of State, n° 113.102, 2 December 2002, VZW Koninklijk Belgisch Verbond voor Bescherming van de Vogels, TMR 2003, 276-284; Council of State, n° 191.265, 11 March 2009, vzw Werkgroep Natuurreservaten Linkeroever-Waasland and vzw Bond Beter Leefmilieu Vlaanderen.

23

Council of State, n° 166.651, 12 January 2007, vzw Werkgroep Natuurreservaten Linkeroever-Waasland and vzw Bond Beter Leefmilieu Vlaanderen, TMR 2007, 376-378 (treaty becoming binding on Belgium on 21 April 2003 – action for annulment dating from 1998).

24

Council of State, n° 193.593, 28 May 2009, vzw Milieufront Omer Watez, TMR 2009, 760-765; Council of State, n° 211.023, 3 February 2011, Dalhem.

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aries of the limited discretionary power of Member States contained in Art. 9(1) of the Birds Directive.25 On the other hand, in the Vlakte van de Raan case the Council of State was of the opinion that there was no breach of the limited discretionary power that Member States have under Art. 4 of the Birds Directive in not designating that area as a Special Protection Area and Art. 4 of the Habitats Directive in not designating the area as a Special Conservation Area.26 Inter-Environnement doctrine The Council of State applied the Inter-Environnement doctrine27 in the case where the Council of State had raised questions for a preliminary ruling that led to this doctrine, by annulling provisions of an Executive Order of the Walloon Government of 9 April 1992 that was found to be in violation of provisions of directives that should have been transposed in domestic law in the course of 1993 (March and December respectively).28 The Constitutional Court 29 referred to case C-129/96 in the pending case where it referred a question for a preliminary ruling to the ECJ.30 Indirect Horizontal Side-Effects When a permit is delivered in violation of an environmental directive, the Council of State will annul such a permit at the request of an interested party (neighbours, NGOs, etc.), thus clearly affecting a third party who will lose its right to build or operate a facility.31 This is seen as a normal effect of the judicial control exercised by the Council of State. To our knowledge the effect as such was explicitly discussed only a few times with reference to the Wells case.32 25

Council of State, n° 113.105, 2 December 2002, VZW Koninklijk Belgisch Verbond voor Bescherming van Vogels, TMR 2003, 292-297 (with reference to ECJ Case C-10/96); see also Council of State, n° 179.254, 1 February 2008, nv Electrabel and nv Ondernemingen De Nul (annulment of the designation of the Vlakte van de Raan as SPA for lack of scientific evidence).

26

Council of State, n° 147.047, 30 June 2005, Soete and gemeente Knokke-Heist, TMR 2006, 93-106 (with reference to the CJEU case law concerning that problem). See for similar cases: Council of State, n° 167.645, 9 February 2007, de Briey and Others, TMR 2007, 637-639 and various similar judgments on the same day.

27

Case C-129/96, Inter-Environnement Wallonie v Région wallonne [1997] ECR I-7411.

28

Council of State, n° 92.669, 25 January 2001, asbl Inter-Environnement Wallonie.

29 30 31

Constitutional Court, n° 149/2010, 22 December 2010, Belgische Petroleum Unie.

Pending Case C-26/11, Belgische Petroleum Unie and Others.

E.g. Council of State, n° 99.794, 15 October 2001, De Vries and Pana (suspension of the building permit for a waste incinerator), TMR 2001, 165-171; Council of State, n° 144.349, 12 May 2005, Feron and de Lantsheere (annulment of an amendment of a permit in violation of Art. 9 of Directive 75/442/EEC).

32

Council of State, n° 192.592, 23 April 2009, VZW Beter Bruggestraat and others, TMR 2009, 780-791 (annulment of the environmental permit of a slaughterhouse for violation of Directive 85/337/EEC); Council of State, n° 208.572, 28 October 2010, asbl Grez-Doiceau Urbanisme et Environnement and Others.

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Fratelli Costanzo There has been no application of the Fratelli Costanzo doctrine in the case law under review. The doctrine is applied in the Flemish Region for Annex II Projects of the EIA Directive that do not meet the thresholds defined in the Flemish EIA Legislation, and for which Belgium was found to be in non-compliance by the ECJ.33 As long as the legislation is not brought into conformity with the directive, public authorities are requested in a circular to apply directly the EIA Directive for Annex II projects not covered by the Flemish legislation with reference to Fratelli Costanzo, Wells and Kraaijeveld.34



4 Consistent/sympathetic Interpretation

Different examples of the application of this principle can be found in the case law. The Council of State refers to the SEA Guidance of the European Commission35 to interpret the notion of ‘reasonable alternative’ in the Flemish SEA legislation. The notion ‘where there is no other satisfactory solution’ in the Flemish Birds Protection legislation should be interpreted in conformity with the CJEU case law on Art. 9 of the Birds Directive36, while the definition of waste37 must be interpreted according to CJEU case law. The regional reduction programme established under Art. 7 of Directive 76/464/ EEC can at least be used as guidance while setting the conditions for the discharge of waste water containing blacklisted substances.38 Exceptions to access to environmental information should be interpreted narrowly according to Directive 2003/4/EC.39 Transboundary effects of projects should be fully taken into account according to Art. 7 of Directive 85/337/EEC. 40 The notion of ‘interest’ to bring a case must be interpreted broadly for environmental NGOs in accordance with Articles 2(5) and 9(2) of the Aarhus Convention. 41 The risk 33

Case C-435/09, 24 March 2011, Commission v. Belgium, nyr.

34 35

Omzendbrief LNE 2001/1 – 22 July 2011, Belgisch Staatsblad 31 August 2011.

Council of State, n° 200.738, 10 February 2010, bvba Pomphuis, NjW 2010, 279.

36

Council of State, n° 113.105, 2 December 2002, VZW Koninklijk Belgisch Verbond voor Bescherming van Vogels, TMR 2003, 292-297 (with reference to Case C-10/96); Council of State, n° 182.188, 21 April 2008, VZW Koninklijk Belgisch Verbond voor Bescherming van Vogels, TMR 2008, 818-822 (with reference to Case C-10/96).

37

Commercial Court, Ghent, 25 April 2007, nv RC t. nv NC, TMR 2007, 537-540 (with reference to Case C-1/03); Council of State, n° 205.744, 24 June 2010, sa PROLOG Benelux and Others (with reference to different CJEU Cases); Court of Appeal, Liège, 31 January 2011, M.P., Amén. 2011, 224.

38

Council of State, n° 187.297, 23 October 2008, NV Indaver, TMR 2009, 169-177; see for a similar case in relation to Directive 200/60/EC: Council of State, n° 202.973, 15 April 2010, nv Terumo Europe, TMR 2010, 708-712.

39

Council of State, n° 192.371, 14 April 2009, Van Der Straeten, TMR 2009, 438-442.

40 41

Council of State, n° 191.924, 26 March 2009, Laga and others, TMR 2009, 466-468.

Council of State, n° 193.593, 28 May 2009, vzw Milieufront Omer Watez, TMR 2009, 760-765.

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of significant effects on an SPA must be interpreted according to the case law of the CJEU. 42 The notion of a ‘highway’ in the EIA/SEA legislation must be interpreted in accordance with the EIA/SEA Directives. 43 A proper assessment in nature conservation law has to be understood in accordance with CJEU case law. 44 The notion of project/development consent/works in relation to airports and EIA legislation should be interpreted in conformity with EU law. 45



5 Supremacy of EU Law

The supremacy of EU law is accepted by the Belgian judiciary without reservation, and there are examples where this is illustrated in connection with European environmental law. The Council of State judged that a Ministerial Order of 27 May 1999 concerning the capture of finch and the promotion of finch breeding in the Flemish region violated Article 9 of the Birds Directive and should, therefore, be annulled. 46 There was a similar case involving Walloon regional regulations. 47 In another case, an amendment to the Executive Order of the Flemish Government containing general and sectoral environmental conditions was annulled for violation of Directive 2001/90/EC concerning dangerous substances, because the exceptions to the prohibition on using certain wood preservatives were not implemented. 48 The Council of State also annulled an amendment to a Regional Land Use Plan for violation of Art. 4 of the Birds Directive. 49 The Constitutional Court partially annulled an amendment to the Walloon Town and Country Planning Code for violation of Article 23 of the Constitution in conjunction with Directive 2001/42/EC and Art. 7 of the Aarhus Convention.50 It also annulled a significant reduction by a Decree of the Flemish Region 42

Council of State, n° 209.930, 21 December 2010, Van Der Poel, TMR 2011, 265-266 (with reference to ECJ, Case C-127/02).

43

Council of State, n° 189.508, 15 January 2009, Pierson and others; Council of State, n° 211.224, 14 February 2011, Keustermans, TMR, 2011, 311-313; Council of State, n° 211.023, 3 February 2011, Dalhem.

44

Council of State, n° 211.533, 24 February 2011, vzw Milieufront Omer Wattez, TMR 2011, 573-577 (references to Case C-241/08, Case C-127/02 and Case C-304/05).

45

Court of Cassation, 4 December 2008, A. and others, Arr. Cass., 2008, n° 696.

46

Council of State, n° 113.105, 2 December 2002, VZW Koninklijk Belgisch Verbond voor Bescherming van Vogels, TMR 2003, 292-297 (with reference to Case C-10/96).

47

Council of State, n° 100.777, 13 November 2001, Ligue Royale belge pour la protection des oiseaux.

48

Council of State, n° 177.448, 30 November 2007, nv VFT Belgium (with reference to Joined Cases C-281/03 and C-282/03 Cindu Chemicals and Arch Timber Protection); the Council of State also annulled a refusal of a request for derogation from continuous measurement that was wrongly based on Art. 11 and 18 of Directive 200/76/EC, because it was also applied to other parameters without proper justification; Council of State, n° 192.586, 23 April 2009, bvba Haltermann, TMR 2009, 755-759.

49 50

Council of State, n° 96.198, 7 June 2001, Wellens and others, Amén. 2002, 74-76.

Constitutional Court, n° 137/2006, 14 September 2006, vzw Inter-Environnement Wallonie, TMR 2006, 551-556.

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of the period available for lodging a judicial appeal in land use matters for violation of Art. 23 of the Constitution in conjunction with Art. 9 of the Aarhus Convention.51 The Correctional Tribunal of Ghent held that a provision of the Flemish bird protection regulations should be set aside, because it was found contrary to Art. 36 of CITES Regulation (EC) No. 180/2001.52 The Constitutional Court reviewed the constitutionality of a Decree of the Walloon Region on Bird Protection, taking into account the Birds Directive, the EC Treaty (Arts. 28-30) and the Benelux Committee of Ministers Decision M(99)9. After having referred some questions for a preliminary ruling to the ECJ53 and taking into account the answer given by the ECJ,54 the Court was of the opinion that the Decree was compatible with EU law.55 The Constitutional Court has on several occasions referred to the obligations of national courts derived from the loyalty obligation of Art. 10 EC as interpreted in the Kolpinghuis Nijmegen and Rewe cases.56 Now and then a difference in treatment is the result of the implementation of EU law. In general, the Constitutional Court will accept, when reviewing the equality principle, the necessity to apply EU law as a sufficient justification for the difference in treatment between categories of persons falling under the rules that implement EU law and those who fall outside the scope of such rules. The Constitutional Court was in that respect of the opinion that the necessity to designate Special Protection Areas on scientific criteria under Art. 4 of the Birds Directive57 could justify the Flemish Government designating such areas in the past without public participation. Those areas had already been notified to the European Commission some years earlier on the basis of provisional legislation to transpose the directive, while public participation is prescribed in general when protected areas under domestic legislation are designated and also when new SPAs are designated.58 In view of the respect for the legal certainty principle and to ensure that Belgium is able to give full effect to Directive 2008/101/EC (amending the Emission Trading Directive), the Constitutional Court held that the consequences of the annulment of the Decree of the Flemish Region must be postponed so that the matter of emission trading aviation can be regulated by a Co-operation Agreement between the Federal State and the Regions.59 51

Constitutional Court, n° 8/2011, 27 January 2011, TMR 2011, 396-406.

52 53

Correctional Tribunal, Ghent, 6 June 2006, O.M. v. E.R., TMR 2006, 564-567.

Constitutional Court, n° 139/2003, 29 October 2003, TMR 2004, 185-190.

54 55

Case C-480/03, Clerens (not published in ECR).

Constitutional Court, n° 28/2005, 9 February 2005, Clerens and bvba Valkeniersgilde TMR 2005, 285-288.

56 57

Constitutional Court, n° 151/2003, 26 November 200, Gemeente Beveren, TMR 2004, 190-198.

Case C-378/01 Commission v Italy [2003] ECR I-2857.

58

Constitutional Court, n° 31/200, 3 March 2004, vzw Hubertusvereniging Vlaanderen and Others, TMR 2004, 315-320; in the same sense: Council of State, n° 170.336, 7 February 2008, nv Maatschappij van de Brugse Zeevaartinrichtingen, TMR 2008, 646-653.

59

Constitutional Court, n° 33/2011, 2 March 2011, Brusselse Hoofdstedelijke Regering, TMR 2011, 249-254.

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There are, of course, a lot of cases in which national courts came to the conclusion that domestic law is not in conflict with EU law,60 or where they preferred to annul a regulation, permit or provision for violation of a domestic norm instead of going into the European environmental law pleas.61 60

Council of State, n° 109.508, 23 July 2002, sprl Azimut and Others, Amén. 2003, 49 (restrictions on kayaking not in violation of art. 43 EC Treaty); Court of Appeal, Ghent, 31 October 2003, OM and KBVB v. EC, TMR 2004, 581-582 (domestic provisions on birds born and reared in captivity are not in conflict with the Birds Directive); Court of Appeal, Antwerp, 8 January 2004, OM and Koninklijk Belgisch Verbond voor de Bescherming van de Vogels v. D.S., TMR 2004, 557-558 (domestic provisions on marking birds born and reared in captivity are not in conflict with the CITES Regulation); Council of State, n° 127.031, 12 January 2004, nv Wattplus (Flemish regulation concerning green certificates not violating Art. 28 et seq EC (with reference to ECJ, Case C-379/98, Preussen Elektra), but violating Belgian EMU principles); Constitutional Court, n° 69/2004, 5 May 2004, nv André Celis and Others, TMR 2004, 703-706 (regional tax on waste management operations is not in conflict with EC Treaty Provisions on the free movement of goods); Constitutional Court, n° 195/2004, 1 December 2004, nv Nestlé Waters and Others, TMR 2005, 61-73 (environmental taxes and bonuses on beverage packaging not conflicting with Directive 94/62/EC, 80 EC Treaty); Constitutional Court, n° 186/2005, 14 December 2005, nv Nesté Waters Benelux and nv Danone Water Brands Benelux, TMR 2006, 66-73 (idem); Council of State, n° 158.548, 9 May 2006, nv European Air Transport and others, TMR 2006, 341-349 (Brussels noise standards for aircraft noise not conflicting with Regulation (EEC) n° 2408/92 and Directive 92/13/EC); Corr. Tribunal Ghent, 6 June 2006, OM t. ER, TMR 2006, 564-567 (domestic provisions on birds born and reared in captivity are not in conflict with the Birds Directive); Constitutional Court, n° 92/2006, 7 June 2006, nv Cockerill Sambre and sa Arcelor, TMR 2006, 450-459 (annulment of initially allocated allowances when going out of business not conflicting with Directive 2003/87/EC and not violating Art. 43 EC Treaty); Constitutional Court, n° 143/2006, 20 September 2006, d’Arripe and Others (Amendment of Walloon Town and Country Planning Code not in contradiction with Art. 23 of the Constitution in conjunction with Directive 2001/42/EC and Art. 7 Aarhus Convention); Constitutional Court, n° 145/2006, 20 September 2006 (waste taxation not contradicting Directives 75/442/EEC, 2006/12/ EC and 2000/76/EC with reference to case C-444/00, Mayer Parry Recycling); Constitutional Court, n° 53/2008, 13 March 2008, vzw Fédération Royale de l’Industrie des Eaux et des Boissons refraîchissantes, TMR 2008, 545-548 (eco tax on beverage packaging not violating Art. 86, 87 and 90 EC Treaty and Directive 94/62/EC); Council of State, n° 183.356, 26 May 2008, Peirs and Others (regional land use plan for Ghent Railway Station and surroundings not violating Directive 1999/30/EC on air quality standards and Directive 2001/42/EC on SEA); Constitutional Court, n° 121/2008, 1 September 2008, VZW FEBELCEM, TMR 2008, 856-862 (Flemish waste tax not violating Directive 2002/12/EC, with reference to ECJ case C-444/00 Mayer Parry Recycling and Directive 200/76/EC); Constitutional Court, n° 2/2009, 15 January 2009, NV Belgacom Mobile and Others, TMR 2009,162-169 – the precautionary principle-inspired Brussels regional legislation on standards for mobile phone masts does not violate different directives concerning telecommunication); Council of State, n° 210.958, 2 February 2011, Stoclet (extending the protection of a monument to certain movables specially designed for the building not violating Art. 28 et seq EC Treaty).

61

E.g. Council of State, n° 94.211, 22 March 2001, asbl Inter-Environnement Wallonie, Amén. 2001, 312-314; Council of State, n° 108.540, 27 June 2002, Salaets (suspension of a tacitly delivered permit); Council of State, n° 129.417, 18 March 2004, Salaets (annulment of that same permit).

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6 State Liability

There seems to be no case law in Belgium on state liability for breaches of European environmental law.



7 National Courts Considering EU Law on Their Own Motion

In the vast majority of the cases where European environmental law is applied, it is done at the suggestion of one or more of the parties. Considering EU law on their own motion seems to be very exceptional, and only in cases where the definition of waste is involved, we see that judges refer to the pertinent case law of the CJEU when arguing that a given material should be considered as waste62 or not,63 even when parties do not seem to be at the origin of such references. National Courts and parallel infringement proceedings by the European Commission In the VLABAVER case, in which the Council of State suspended and later annulled a building permit for the construction of a waste incineration plant, because no EIA was produced and taken into account during the permitting procedure in violation of Art. 8 of Directive 85/337/EEC, the Council referred to a reasoned opinion of the European Commission of 28 June 2000 in which the Commission held that EIAs should also be taken into account in procedures for delivering building permits for projects where an environmental permit (with EIA) is also required.64 The Council of State also referred to reasoned opinions of the European Commission of 10 February 2000 and 19 July 2000 (and the reply of the Flemish Government of 12 May 2000 and 4 September 2000 to these opinions) concerning the bad implementation of the Birds and Habitats Directives in the case of the amendment of the regional land use plan of the region Sint-Niklaas-Lokeren. 65 In the Deurganck-dock case the Constitutional Court66 was of the opinion that, as the special permitting Decree concerned activities that could have a significant impact on a Special Protection Area, a proper assessment was needed, but that in the absence of alternative solutions the project could nevertheless be carried out for imperative reasons of overriding public interest, on 62

Corr. Ghent, 25 September 2001, TMR 2001, 195-196 (reference to the Vessoso and Zanetti case); Court of Appeal, Antwerp, 15 March 2005, Vlaamse Gewest v. BASF Antwerpen (with reference to the Arco Chemie case); Corr. Ghent, 8 March 2011, TMR 2011, 287-289 (with reference to the Van de Walle case); Court of Appeal, Mons, 31 January 2011, MP, Amén. 2011, 224.

63

Council of State, n° 172.529, 21 June 2007, bvba Zandgroeven Roelants.

64 65

Council of State, n° 99.794, 15 October 2001, De Vries and Pana, TMR, 165-171.

Council of State, n° 109.563, 30 July 2002, Apers and Others, TMR 2003, 135-143.

66

Constitutional Court, n° 94/2003, 2 July 2003, Creve and Others, TMR 2003, 485-494.

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the condition that all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected are taken and that the European Commission is informed of the compensatory measures adopted (Art. 6(4) Habitats Directive). The Court found that these conditions were met in the case under consideration but added that it was eventually up to the European Commission to assess if ‘the overall coherence of Natura 2000 is protected’, since the construction of the Natura 2000 network was still under way at that moment. The Court came to the conclusion that Art. 6(4) of the Habitats Directive, in conjunction with Art. 10 of the EC Treaty, was not violated ‘subject to another decision of the European Commission or the European Council, under the control of the ECJ as the case may be’. The European Commission, subsequently, closed the related infringement case and took no further action,67 being satisfied with the compensation measures taken.68



8 National Review of ‘Constitutionality’ of EU Law

The Constitutional Court was asked to review the constitutionality of the Decree of the Walloon Region of 10 November 2004 that transposed, more or less literally, Directive 2003/87/EC (on the European Emission Trading Scheme). The pleas in the cases were about violation of the equality principle (because of the inclusion of the steel industry and the exclusion of other sectors), violation of the principle of freedom of trade and industry and violation of property rights (because initially allocated allowances are annulled when the establishment is terminated within the trading period and these allowances are added to the reserve for newcomers). The Court rejected the appeal of its own accord, without consulting the ECJ on the validity of the directive on these points (the requesting parties asked to submit questions on the validity and the interpretation of the directive for preliminary ruling to the ECJ). The Court was of the opinion that Directive 2003/97/EC did not prohibit an extension of the scope of the domestic scheme to other sectors – so it was in the hands of the legislator to respect the equality principle of the Belgian Constitution – and that for the other points it left sufficient room for the legislator to implement the directive in a way that is compatible with the Belgian Constitution,69 so there was no need to consult the ECJ on the validity of the directive. Although the Constitutional Court did not review the constitutionality of Directive 2003/87/ EC as such, it reviewed the constitutionality of provisions of domestic law that transposed the directive very literally, so that this judgment could be seen as an ‘indirect review’ of the constitutionality of the directive. Eventually, this judg67

See in the same sense: Constitutional Court, n° 151/2003, Gemeente Beveren, 26 November 2003, TMR 2004, 190-198.

68

Council of State, n° 191.266, 11 March 2009, Apers and Van Buel.

69

Constitutional Court, n° 92/2006, 7 June 2006, nv Cockerill Sambre and sa Arcelor, TMR 2006, 450-459.

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ment worked out well, as the ECJ came several years later to the same conclusion when it was asked by the French Council of State to review the validity of the directive.70 Of course, if the Constitutional Court had serious doubts about the compatibility of the Decree (and thus the Directive) with the equality principle, it would not have been in a position to judge so without consulting the ECJ first, according to the Foto Frost case law.71 The Constitutional Court was also of the opinion that the criminal sanctions imposed by Walloon regional legislation for illegal activities with waste, did not violate the constitutional and conventional principle of legality in criminal law. With reference to the case law of the ECJ , the Court held that the notion of ‘waste’ was sufficiently clear.72 The Council of State was asked to annul a Ministerial Order designating a particular area as a special conservation area under the Brussels regional legislation transposing the Habitats Directive. Meanwhile, the site was included in Commission Decision 2004/813/EC adopting the list of sites of Community importance for the Atlantic biogeographical region. By Order of the Court of First Instance of 19 September 200673, the application for annulment of that Decision was dismissed as inadmissible. Subsequently, the Council of State held that Decision 2004/813/EC had become final so that the challenged Ministerial Order no longer had legal effect, and that the action for annulment had become without interest for the party concerned.74



9 Submissions to CJEU for Preliminary Rulings

The Constitutional Court, when confronted with questions of validity or interpretation of European law, consistently refers to the CILFITcriteria 75 to decide if a reference should be made or not.76 Different arguments 70

Case C-127/07 Arcelor Atlantique and Lorraine and Others [2008] ECR I-9895. See also: Case T-16/04 Arcelor v Parliament and Council [2010] ECR II-211.

71

See for such a case concerning the Belgian federal legislation to transpose Directive 2004/113/EEC on equal treatment of men and women: Constitutional Court, n° 130/2009, 18 June 2009, vzw Belgische Verbruikersunie Test-Aankoop; Case C-236/09, Association Belge des Consommateurs Test-Achats and Others, nyr; Constitutional Court, n° 116/2011, 30 June 2011, vzw Belgische Verbruikersunie Test-Aankoop.

72

Constitutional Court, n° 143/2008, 30 October 2008, OM and DG Directoraat-generaal natuurlijke rijkdommen en leefmilieu, TMR 2008, 805-807.

73

Case T-100/05 CFE v Commission [2006] ECR II-71.

74 75

Council of State, n° 212.005, 14 March 2011, sa Compagnie François d’entreprises.

Case 283/81 CILFIT v Ministero della Sanità [1982] ECR 3415.

76

Constitutional Court, n° 151/2003, Gemeente Beveren, 26 November 2003, TMR 2004, 190-198; Constitutional Court, n° 92/2006, 7 June 2006, nv Cockeril Sambre and sa Arcelor, TMR 2006, 450-459; Constitutional Court, n° 121/2008, 1 September 2008, VZW FEBELCEM, TMR 2008, 856-862; Council of State, n° 208.572, 28 October 2010, asbl Grez-Doiceau Urbanisme et Environnement and Others; Council of State, n° 209.866, 20 December 2010, Peirs, TMR 2011, 549-573.

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are used in the case law to avoid referral of a case to the CJEU for a preliminary ruling, such as (a) the interpretation of EU law proposed by the requesting party is based on a factual premise that is not proven77 or is wrong;78 (b) the questions proposed by the parties are badly drafted and not pertinent for the solution of the case;79 (c) the question(s) proposed by one or another party are outside the scope of Art. 234 EC Treaty (most of the time this argument is used when the proposed question is about the conformity of domestic law with EU law, not about the interpretation or the validity of EU law);80 (d) there is no reasonable doubt about the interpretation of EU law (acte clair or acte éclairé)81 or (e) the proposed questions are not pertinent for the solution of the case.82 According to the information available on the website of the CJEU, in the period up to the end of 2011, 21 cases concerning environmental law were referred by Belgian courts to the CJEU (of a total of 592 Belgian cases referred (3.5%) and a total of 208 environmental cases referred to the CJEU for a preliminary ruling (10%)). In the last decade, 17 cases were referred. Information note It has been shown that the search engines that can be used to consult the databases of the case law of the Supreme Court (www.cassonline.be) and the Supreme Administrative Court (www.raadvst-consetat.be) are not very well designed to find the information that was necessary to draft this report. Therefore we decided to use the judgments published in the last decade in the two main environmental law journals in Belgium (the Tijdschrift voor Milieurecht 77

Council of State, n° 200.738, 10 February 2010, bvba Pomphuis, NjW 2010, 281.

78

Council of State, n° 98.840, 13 September 2001, Ville de Péruwelz, Amén. 2002, 127-134; Council of State, n° 191.266, 11 March 2009, Apers and Van Buel.

79

Constitutional Court, n° 151/2003, Gemeente Beveren, 26 November 2003, TMR 2004, 190-198; Council of State, n° 206.078, 29 June 2010, nv Nieulandt Recycling and Others, TMR 2011, 50; Constitutional Court, n° 151/2003, Gemeente Beveren, 26 November 2003, TMR 2004, 190-198.

80

Constitutional Court, n° 94/2003, 2 July 2003, Creve and Others, TMR 2003, 495-496; Council of State, n° 211.023, 3 February 2011, Dalhem.

81

Constitutional Court, n° 151/2003, Gemeente Beveren, 26 November 2003, TMR 2004, 190-198 (obligations deriving from Art. 10 EC Treaty for national courts); Constitutional Court, n° 92/2006, 7 June 2006, nv Cockerill Sambre and sa Arcelor, TMR 2006, 450-459; Council of State, n° 192.592, 23 April 2009, VZW Beter Bruggestraat and others, TMR 2009, 780-791 (with reference to ECJ Case C-201/02 Wells); Council of State, n° 195.995, 14 September 2009, Van Pollaert, TMR 2010, 394-398; Council of State, n° 208.572, 28 October 2010, asbl Grez-Doiceau Urbanisme et Environnement and Others (with reference to different cases of the ECJ); Council of State, n° 210.958, 2 February 2011, Stoclet (with reference to the recent case law of the ECJ on the free movement of goods).

82

Constitutional Court, n° 92/2006, 7 June 2006, nv Cockerill Sambre and sa Arcelor, TMR 2006, 450-459; Council of State, n° 154.063, 7 February 2006, Apers and Others, TMR 490-492; Council of State, n° 170.336, 7 February 2008, nv Maatschappij van de Brugse Zeevaartinrichtingen; Constitutional Court, n° 121/2008, 1 September 2008, VZW FEBELCEM, TMR 2008, 856-862; Council of State, n° 209.866, 20 December 2010, Peirs, TMR 2011, 549-573.

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(TMR) (in Dutch) and Aménagement, environnement, urbanisme et droit foncier (Amén.) (in French)), because we believed that case law with a European law aspect of some importance would be selected by those journals for publication. Table of Environmental Cases Reffered by Belgian Courts (2002-2011) ECJ Case

Original Judgment

Final Judgment

Joined Cases C-53/02 and C-217/02 Commune de Braine-le-Château and Others [2004] ECR I-3251 Interpretation of Council Directive 75/442/EEC on waste, as amended by Council Directive 91/156/EEC Possibility of issuing a permit (Article 9) in the absence of a waste management plan including a geographical map showing precisely the locations planned for the disposal sites (Articles 4, 5 and 7 of the Directive)

Council of State, n° 103.473, 8 February 2002, Commune de Braine-le-Château Council of State, n° 107.085, 28 May 2002, Tillieut and Others

Council of State, n° 147.570, 11 July 2005, Commune de Braine-le-Château and Feron and Others Council of State, n° 166.262, 21 December 2006, Commune de Braine-le-Château and Feron and Others

Case C-472/02 Siomab [2004] ECR I-9971 Interpretation of Council Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, Articles 3(8), 4(3), 6(8), 7(4) and 26 – Doubt of the competent authority of dispatch as regards the classification of a proposed shipment as ‘for recovery’ - Options for action

Cour d’appel de Bruxelles, 20 December 2002

Not published

Case C-1/03 Van de Walle and Others [2004] ECR I-7613 Interpretation of Article 1 of Council Directive 75/442/ EEC on waste (as amended by Directive 91/156/EEC) – Meaning of ‘waste’, ‘producer of waste’ and ‘holder of waste’ – (Unexcavated) land infiltrated by leaking hydrocarbons – Petroleum company’s service station operated under an independent management contract excluding any control

Cour d’appel de Bruxelles, 3 December 2002

Not published

Case C-480/03 Clerens (not published) Interpretation of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds – Compatibility of national rules introducing a protective regime not only for naturally occurring birds in the wild state in European territory but also for birds born and raised in captivity

Constitutional Court, n° 139/2003, 29 October 2003 H. Clerens and bvba Valkeniersgilde

Constitutional Court, n° 28/2005, 9 February 2005 H. Clerens and bvba Valkeniersgilde

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Case C-186/04 Housieaux [2005] ECR I-3299 Interpretation of Articles 3(4) and 4 of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment -- Nature of the time limit within which a public authority is to respond to a request for information – Possibility for an individual to bring an action where a request for information has been ignored

Council of State, n° 130.058, 1 April 2004 Housieaux v. les Délégues du Conseil de la Région de Bruxelles-Capitale and Others

Council of State, n° 161.407, 19 July 2006, Housieaux v. les Délégues du Conseil de la Région de Bruxelles-Capitale and Others.

Case C-208/04 Inter-Environnement Wallonie (not published) Interpretation of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991 – Possibility for Member States to draw up a list of materials which can be considered as products – Materials which may fit the definition of waste or contain substances or objects which fit that definition

Council of State, n° 130.865, 29 April 2004, Inter-Environnement Wallonie ASBL v. Région wallonne

Council of State, n° 156.825, 23 March 2006, InterEnvironnement Wallonie ASBL v. Région wallonne

Case C-2/07 Abraham and Others [2008] ECR I-1197 Interpretation of Articles 1, 2 and 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment – Notion of ‘project liable to have significant effects on the environment’ – Airport with a runway of more than 2 100 metres in length – Work on infrastructures and work to restructure an existing airport without extension of the runway – Requirement for an impact assessment

Cour de cassation, 14 December 2006

Cour de Cassation, 4 December 2008, A. and others, Arr. Cass. 2008, n° 696 (Judgment of Court of Appeal of Liège has been quashed – case referred to Court of Appeal in Brussels)

Case C-219/07 Nationale Raad van Dierenkwekers en Liefhebbers and Andibel [2008] ECR I-4475 Interpretation of Article 30 EC and of Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein – National legislation providing a list of species which may be held in the Member State concerned, whose effect is to rule out the holding of the species referred to in Annexes B, C or D to the regulation – Holding authorized in other Member States whose legislation is in conformity with the regulation

Council of State, n° 170.061, 16 April 2007, Nationale Raad van Dierenkwekers en Liefhebbers VZW and Andibel VZW v. Belgische Staat

Council of State, n° 191.161, 9 March 2011, Nationale Raad van Dierenkwekers en Liefhebbers VZW and Andibel VZW v. Belgische Staat

Joined Cases C-105/09 and C-110/09 Terre wallonne and Inter-Environnement Wallonie [2010] ECR I-5609 Interpretation of Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources and Arts 3(2) and (4) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment – Drawing up of management plans relating to designated vulnerable zones – Nature and scope of the obligation – Necessary assessment of the impact of the nitrogen management plan on the environment

Council of State, n° 191.271, 11 March 2009, asbl Terre Wallonne v. Région wallonne Council of State, n° 191.2972, 11 March 2009, Asbl InterEnvironnement Wallonnie v. Région wallonne

Council of State, n° 210.483, 18 January 2011, asbl Inter-Environnement Wallonnie and Terre Wallonne (new referral to ECJ – Case C-41/11)

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Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Others (Judgment of 18 October 2011, nyr) Interpretation of Articles 1, 5, 6, 7, 8 and 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997 and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Directives 85/337/EEC and 96/61/EC – Interpretation of Articles 6 and 9 of the Aarhus Convention on access to information, public participation in decisionmaking and access to justice in environmental matters, concluded on 25 June 1998 and approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 – Recognition, as specific national legislative acts, of certain consents ‘ratified’ by decree in respect of which there are overriding reasons in the general interest – Absence of complete right of action against a decision to authorise projects capable of having significant effects on the environment – Whether the existence of such a right is optional or obligatory – Infrastructure works relating to the extension of the Liège-Bierset Airport runway

Council of State, n° 191.950, 27 March 2009, A. Boxus and W. Roua (and various other judgments)

Pending

Joined Cases C-177/09 and C-179/09 Le Poumon vert de la Hulpe and Others(Order of 17 November 2011, not published) Interpretation of Articles 1, 5, 6, 7, 8 and 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997 and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Directives 85/337/EEC and 96/61/ EC – Interpretation of Articles 6 and 9 of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, concluded on 25 June 1998 and approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 – Recognition, as specific national legislative acts, of certain consents ‘ratified’ by decree in respect of which there are overriding reasons in the general interest – Absence of complete right of action against a decision to authorise projects capable of having significant effects on the environment – Whether the existence of such a right is optional or obligatory – Environmental consent granted for the operation of an administrative and training centre in la Hulpe

Council of State, n° 192.192, 2 April 2009, asbl Le Poumon vert de la Hulpe and Others (and various other judgments)

Pending

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Case C-120/10 European Air Transport (Judgment 8 September 2011, nyr) Interpretation of Articles 2(e), 4(4) and 6(2) of Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports – Limits on noise levels to be complied with by aircraft over-flying urban territories located near an airport – Concept of ‘operating restrictions’ – Restrictions adopted in connection with aircraft which are marginally compliant – Whether it is possible to impose such restrictions on the basis of the noise level as measured on the ground – Effect of the Convention on International Civil Aviation (Chicago Convention)

Council of State, n° 201.373, 26 February 2010, sa European air Transport

Council of State, n° 217.243, 16 January 2012, sa European air Transport

Case C-182/10 Solvay and Others (Judgment of 16 February 2012,nyr) Interpretation of Articles 2(2), 3(9), 6(9) and 9(2), (3) and (4) of the Aarhus Convention on access to information, public participation in the decisionmaking process and access to justice in environmental matters concluded on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 – Interpretation of Articles 1(5), 9(1) and 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment – Interpretation of Article 6(3) and (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora – Concept of ‘public authority’ – Value and scope of the guidance given in the Aarhus Convention Implementation Guide – Whether legislative acts such as town-planning or environmental consents granted by means of decree by a regional legislature are outside the scope of the Aarhus Convention – Whether a procedure leading to the granting of consents which can be challenged only by an action brought before the Cour constitutionnelle and the ordinary courts is compatible with the Convention and with Community law – Project authorised without an appropriate environmental impact assessment

Constitutional Court, n° 30/2010, 30 March 2010, M.-N. Solvay and Others

Constitutional Court, n° 144/2012, 22 November 2012, M.-N. Solvay and Others

Case C-567/10 Inter-Environnement Bruxelles and Others (Judgment of 22 March 2012, nyr) Interpretation of Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment - Applicability of the Directive to a procedure for the total or partial repeal of a ‘plan particulier d’affectation du sol’ (specific land-use plan) - Interpretation of the concept of ‘required plans and programmes’ - Exclusion of plans the adoption of which is not compulsory

Constitutional Court, n° 133/2010, 25 November 2010, asbl Inter-Environnement Bruxelles and Others

Constitutional Court, n° 95/2012, 19 July 2012, asbl Inter-Environnement Bruxelles and Others

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Case C-26/11 Belgische Petroleum Unie and Others(Judgment of 31 January 2013,nyr) Interpretation of Article 4(3) TEU, Articles 26(2), 28, 34, 35 and 36 TFEU, Articles 3, 4 and 5 of Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EC and Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services – National rules requiring petroleum companies releasing petrol and diesel products for consumption also to make available for consumption in the same year a quantity of bio-ethanol, pure or in the form of bio-ETBE, and fatty acid methyl esters (FAME)

Constitutional Court, n° 149/2010, 22 December 2010, Vzw Belgische Petroleum Unie and Others

Pending

Case C-41/11 Inter-Environnement Wallonie and Terre wallonne (Judgment of 28 February 2012,nyr) Assessment of the effects of certain plans and programmes on the environment – Protection of waters against pollution caused by nitrates from agricultural sources – Annulment of a national rule found to be contrary to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment – Possibility of maintaining, for a short period, the effects of that rule

Council of State, n° 210.483, 18 January 2011, asbl InterEnvironnement Wallonnie and Terre Wallonne

Pending – Interlocutory Judgment: Council of State, n° 220.914, 9 October 2012, asbl Inter-Environnement Wallonnie and Terre Wallonne – Questions to the parties

Pending Case C-121/11 Pro-Braine and Others Interpretation of Article 14(b) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste and of Article 1(2) of Council Directive 85/337 /EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment Decision on the carrying on of operations at an authorised landfill site, in the absence of an Environmental Impact Assessment Concept of ‘consent’ – Scope

Council of State, n° 211.521, 24 February 2011 asbl Pro-Braine and Others

-

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Croatia Lana Ofak

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croatia

1 Incorporation of EU law within the national legal system Croatia completed accession negotiations with the EU in June 2011, with the Accession Treaty being signed on 9 December 2011. The EU accession referendum in Croatia was held in January 2012 with a positive outcome – 66.27% of Croatian citizens voted in favour of Croatian accession to the European Union and 33.13% of votes were against the accession. Following the ratification of the Accession Treaty by the 27 EU member states, accession of Croatia to the EU is expected to take place on 1 July 2013. In June 2010 the Croatian Parliament adopted amendments to the country’s Constitution enabling it to finalize its EU accession negotiations. The new part VIII (entitled ‘European Union’) regulates the status of EU law within the national legal order. Provisions regarding Croatia’s participation in European Union institutions, the status of the European Union law and the rights of European Union citizens will enter into force on the date of the accession of the Republic of Croatia to the EU. The relationship between Croatian law and EU law is regulated in Article 145 of the Constitution which reads as follows: ‘1. The exercise of the rights ensuing from the European Union acquis communautaire shall be made equal to the exercise of rights under Croatian law. 2. All the legal acts and decisions accepted by the Republic of Croatia in European Union institutions shall be applied in the Republic of Croatia in accordance with the European Union acquis communautaire. 3. Croatian courts shall protect subjective rights based on the European Union acquis communautaire. 4. Governmental agencies, bodies of local and regional self-government and legal persons vested with public authority shall apply European Union law directly.’1

The Croatian constitutional legal order accepts the system of legal monism. Under Article 141 of the Constitution, international treaties which have been concluded and ratified in accordance with the Constitution, published and which have entered into force shall be a component of the domestic legal order of the Republic of Croatia and shall have primacy over domestic law. Their provisions may be altered or repealed only under the conditions and in the manner specified within the treaties or in accordance with the general rules of international law. The Croatian Constitution does not explicitly empower the Constitutional Court of the Republic of Croatia to review the conformity of a national law with international treaties. Nevertheless, in its case law the Constitutional Court has accepted the competence of reviewing the conformity of a national law with international treaties which have been ratified in the Republic of Croatia.2 1

The Constitution of the Republic of Croatia (consolidated text), Narodne novine (Official Gazette), no. 85/10, http://www.sabor.hr/fgs.axd?id=17074.

2

Omejec (2009) .

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Article 145 of the Constitution (cited above) does not explicitly prescribe supremacy of primary and secondary EU law over national law, but it does implicitly refer to the doctrine of the supremacy as a constituent part of the acquis communautaire (paragraph 2).



2 Consistent Interpretation

Application of the doctrine of consistent (sympathetic) interpretation by public authorities in Croatia, including the courts, even before EU membership, is an instrument for achieving real harmonization of national law with the legislation of the European Union.3 The Constitutional Court confirmed this viewpoint in a case concerning the competition law. 4 When applying harmonized legislation, public authorities are obliged to apply it as it would be applied in the EU, i.e. with regard to the purpose and spirit of the provisions with which the legislation is harmonized.5 To my knowledge, though, EU principles have not yet been applied to environmental cases. The whole process of the harmonization of Croatian law with EU law took place very quickly due to the pressure of completing the accession negotiations as quickly as possible. EU legislation was rapidly translated, sometimes with translation errors, and new Croatian legislation was mostly adopted using a copy and paste method. Croatian courts will soon have to correct the failure of the lawmaker to properly implement EU directives into national law and they will have to interpret Croatian legislation in conformity with the EU law. The Constitutional Court in its recent communication stated that a legal practice in Croatia shows that ‘there is still a prevalent juridical (‘textual’) positivism, which is characterised by narrow and partial interpretation of individual legal norms without their necessary contextualisation and without finding their social purpose based on the principle of proportionality and without looking at the constitutional values which are the foundation of the Croatian constitutional state.’6 A long tradition of strict formalism and positivism in Central and Eastern Europe leaves judges unprepared for their role in the European legal order.7 Croatian judges mostly view legal rules ‘as an end in themselves, rather than as a means of achieving certain social objectives and policy choices’.8 A formalistic judge will have difficulty in applying EU legal principles ‘which cannot be 3

Ćapeta (2006) at 1476.

4

Decision of the Constitutional Court of Republic of Croatia, U-III-1410/2007, 13 February 2008. English translation: Venice Commission Bulletin 2008/1, CRO-2008-1-003.

5

Ibid.

6

Communication of the Constitutional Court of the Republic of Croatia, UVII/5293/2011, 12 November 2011, Official Gazette, no. 133/11.

7

Ćapeta (2005).

8

Ibid.

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simply listed and learned’,9 but which require judges to take social objectives and policy choices into consideration in the adjudication process.10



3 Direct Effect and State Liability

Direct effect doctrine derives from Article 145 paragraphs 2, 3 and 4 of the Croatian Constitution (cited above). Article 145(2) can be understood as a legal norm which implicitly prescribes direct effect and supremacy of EU law over Croatian law.11 Croatian courts have an obligation to protect subjective rights based on the EU acquis communautaire (Article 145(3)). This provision acknowledges the direct effect of EU law in the Croatian legal system.12 Article 145(3) prescribes administrative direct effect.13 Administrative authorities, including municipal authorities and other legal persons vested with public authority, shall be under the same obligation as a national court to apply the direct effect doctrine. The Croatian legal system accepts an objective State liability approach (independent of the civil servant’s fault): ‘The damage suffered by a citizen, a legal person or another party due to illegal or irregular act of state administration bodies, bodies of local and regional selfgovernment units or legal persons vested with public authority in state administration activities transferred to them shall be compensated by the Republic of Croatia.’14

The state shall be liable to compensate for damage caused by an illegal or irregular act of a public authority and the question of whether the infringement has subjective fault or not is irrelevant. The Constitutional Court has stated that primary and direct State liability is a special expression of the rule of law, which is one of the highest values of the constitutional order of the Republic of Croatia prescribed in Article 3 of the Constitution.15 State liability for damages, which is a public-law liability, exists within the meaning of Article 13 (now Article 14) of the Act on the State Administration System, when each of three legal conditions is satisfied: first, there is an illegal or irregular act of the bodies of state administration and judiciary, second, the 9

Ibid.

10 11

Ibid.

Rodin (2011) at 89.

12 13

Ibid., at 90.

Ibid.

14

Article 14 of the Act on the State Administration System, Narodne novine, no. 150/11. The same was prescribed in Article 13 of the previous Act on the State Administration System, Narodne novine, no. 75/93, 92/96, 48/99, 15/00, 59/01, 199/03 and 79/07.

15

Decision of the Constitutional Court of Republic of Croatia, U-III-2314/2006, 21 February 2007.

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existence of the damage that has occurred to the applicant, and third, there is a causal link between the unlawful or irregular act of state administration or judiciary and damage to the applicant (where it is essential to prove that actual damage is a direct result of illegal or improper operations of state administration or judiciary, i.e. that the damage would not exist if there was no illegal or improper operations).16 However, the Supreme Court of the Republic Croatia has not accepted that the State liability is objective. According to the Supreme Court, the meaning of the provisions of Article 13 is that the State is liable for damages in cases where there was a conscious act of public authority contrary to the law, with the intention to cause someone damage. In its decision U-III-2314/2006 the Constitutional Court stated that such an interpretation is entirely unacceptable. Clearly, the Supreme Court was mistaken to think that without some conscious or intentional element there can be no illegal or improper act by a public authority.



4 Procedural Barriers

There are no examples of environmental cases where national procedural rules have been held contrary to EU principles (including those contained in Directives implementing the Aarhus Convention). However, this does not imply the full conformity of the Croatian legal system with the Aarhus Convention and Directive 2003/35/EC but just means that the issue of procedural barriers has not yet been raised in practice. One example will be given to illustrate that procedural barriers do exist. In order to fulfil Croatia’s obligations regarding Article 9(3) of the Aarhus Convention, the new Environmental Protection Act17 introduced a new legal remedy for re-examining decisions, acts or omissions of public authorities and actions or omissions on the part of legal and natural persons (such as: an operator, company, polluter) in environmental issues (Article 146). This remedy has never been used in practice by any member of the public, and, in my opinion, there are several factors which seriously impair its availability to the public concerned. Firstly, in order to be eligible for filing the action, the plaintiff has to prove a permanent violation of his or her right.18 What does permanent violation mean? Violation with irreversible consequences? Violation of a long duration? There are 16 17

Decision of the Constitutional Court of Republic of Croatia, U-III-964/2008, 7 July 2009.

 Narodne novine, no. 110/07.

18

Any natural or legal person which can, in conformity with the law, prove a permanent violation of a right, due to the location of the project and/or the nature and impact of the project shall have the right to a legal remedy for re-examination of decisions, acts or omissions of public authorities and actions or omissions on the part of legal and natural in environmental issues (Article 146(1) which refers to Article 144(1) of the Environmental Protection Act).

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no other examples in Croatia where permanent violation is a requirement for ius standi, and in general, the plaintiff only has to deem that his or her rights or legal interest have been violated, rather than permanently violated. Why was this tough requirement introduced in the Environmental Protection Act? One possible answer is that it was a consequence of an error in translation of Directive 2003/35/EC from English to Croatian which was then reflected in the Environmental Protection Act. Namely, in the Croatian working (still unofficial) version of Directive 2003/35/EC the phrase ‘maintaining the impairment of a right’ in Articles 10a and 15a has been translated as ‘permanently violate rights’. It seems likely that this mistranslation was the basis for drafting the provisions on access to justice contained in the Environmental Protection Act. A second factor inhibiting the use of the new remedy is the time limits for instituting proceedings which are very strict and arguably impossible to fulfil. The complaint must be submitted before a competent court within 30 days from the date on which the contested decision was issued or in the case of an act or omission, within 15 days from the date on which the deadline for performing the act or issuing the decision expired.19 These time limits are contrary to the rules of Croatian administrative procedural law (i.e. General Administrative Procedure Act 20 and Act on Administrative Disputes),21 according to which the time limits start running from the date the decision was delivered to the applicant and not from the date on which the contested decision was issued.22 Where a decision was not delivered to the party according to the prescribed service rules, a complaint may be submitted within 90 days of the moment the party learned or could have learned about the decision.23 In the case of failure to act or issue a decision, typically there are no time limits for instituting the proceedings. An appeal or a lawsuit can only be premature, if an applicant did not wait for a prescribed time limit, in which a public authority had to act or issue a decision, to expire.24 However, once this time has passed an appeal or a lawsuit cannot be regarded as untimely, if the failure to act or issue a decision still occurs. Additionally, it can be argued that the time limit of 15 days for filing a lawsuit, which applies in the case of an act or omission, is unreasonably short. Finally, the requirement of having to prove permanent violation of individual rights in order to be granted locus standi bars almost all environmental organisations from using this legal remedy. In conclusion, the legal remedy provided by 19

Article 146/2 of the Environmental Protection Act.

20 21

 Narodne novine, no. 47/09.

 Narodne novine, no. 20/10.

22

See: Article 109 of the General Administrative Procedure Act and Article 24(1) of the Act on Administrative Disputes.

23

Article 24(3) of the Act on Administrative Disputes.

24

Where an administrative dispute is initiated by reason of a failure to take a decision or act within the fixed time limit, the complaint may be submitted to the court eight days after the expiration of the prescribed time limit at the earliest (Article 24(2) of the Act on Administrative Disputes).

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Article 146 of the Environmental Protection Act has to date not been used in practice and most likely never will be.



5 Constitutional Issues

International treaties, which have entered into force in Croatia, have primacy over domestic statutes (acts). They enjoy a supra-legislative status, but in relation to the national Constitution they retain a sub-constitutional status. However, the case law of the Croatian Constitutional Court shows that international treaties actually enjoy a quasi-constitutional status in the Croatian constitutional legal order.25 The Croatian constitutional legal order does not provide for the review of the constitutionality of international treaties.26 The Constitutional Court is competent to review the constitutionality of national statutes (acts) and the constitutionality and legality of other national regulations. National checking of ‘constitutionality’ of EU law could potentially be indirect, by reviewing the constitutionality of national acts or other regulations which implement EU law.

25

Omejec (2009) .

26

Ibid.

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Appendix At present only judgements of the Supreme Court 27 and the Constitutional Court28 are systematically published on the Internet. Judgements of other courts can be accessed only through court records. There are several projects of publicising case law on the Internet (e.g. ongoing project of the association Judges Web, PHARE project ‘Harmonisation and publication of case law in Croatia’). However, they do not specifically concern the environmental case law. In order to collect the data for the purposes of this Report, e-mails were sent to the High Administrative Court of the Republic of Croatia and to 20 municipal courts in Croatia located in the 20 seats of the counties into which Croatia is divided. 14 courts replied. These indicated that in the past five years (i.e. from 2007, when the new Environmental Protection Act entered into force): • 10 had not had a single environmental case; • 3 had only handled environmental criminal cases • 1 had had only labour disputes concerning illness or injury due to harmful environmental influences. There has been no procedure in which the court applied and interpreted the Croatian environmental legislation taking into account the rules, standards and principles of EU environmental law. None of the courts has ever applied any of the international conventions in environmental matters.29 Bibliography • Ćapeta (2005) T. Ćapeta, ‘Courts, legal culture and EU enlargement, (2005) Croatian Yearbook of European Law and Policy 23-53, available at http://hrcak.srce.hr/ file/33279 • Ćapeta (2006) T. Ćapeta, ‘Interpretativni učinak europskog prava u članstvu i prije članstva u EU’ (Interpretative effect of European law in and before EU membership), (2006/5) Zbornik Pravnog fakulteta u Zagrebu 1443-1494 • Omejec (2009) J. Omejec, Report: Legal framework and case law of the Constitutional Court of Croatia in deciding on the conformity of laws with international treaties (Podgorica 2009) Venice Commission, available at: http://www.venice.coe. int/docs/2009/CDL-JU(2009)035-e.pdf • Rodin (2011) S. Rodin, ‘Pravo Europske unije i pravni poredak Republike Hrvatske nakon 27

See: http://sudskapraksa.vsrh.hr/supra/.

28

Available in English language: http://www.usud.hr/default.aspx?Show=c_praksa_ustavnog_ suda&m1=23&m2=0&Lang=en.

29

The following courts that responded to the request for information on environmental case law: municipal courts in Karlovac, Split, Požega, Sisak, Vukovar, Bjelovar, Pazin, Varaždin, Krapina, Koprivnica, Zagreb, Slavonski Brod, Dubrovnik and Gospić.

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20 godina hrvatskog Ustava’ (EU Law and Croatian Legal Order on 20th Anniversary of the Croatian Constitution), in: A. Bačić (ed.), Dvadeseta obljetnica Ustava Republike Hrvatske (The 20th anniversary of the Constitution of the Republic of Croatia), (Zagreb 2011), 87-118.

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Czech Republic Vojtech Vomacka & Ilona Jancarova

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czech republic

1 Incorporation of EU law

Environmental cases form a marginal, yet very interesting, group when it comes to application of EU law by Czech administrative courts. But it should first be noted that while the consistent interpretation of national law became the daily bread of administrative judges in areas of law such as tax, refugee, customs or competition, this has been rarer in the environmental field. And even then, some complex questions have been frequently challenged in limited specific areas such as transboundary movement of wastes and environmental impact assessment – the former is associated with a strong transboundary element and EU regulation, the latter is an integral part or a prerequisite of further administrative proceedings covering both protection of environment and public participation. In the Czech Republic, the Code of Administrative Justice creates a single system of judicial review with regional courts acting as courts of first and last instance with no appeal or other ordinary judicial remedy being permissible. The cassation complaint presents a distinctive remedy and the Nejvyšší Správní Soud (Supreme Administrative Court; SAC) is responsible in this context. Besides the SAC, the Constitutional Court represents the judicial body responsible for the protection of constitutionality as a single-instance court. There is no provision of the Czech Constitution dealing expressly with the primacy of EU law over the domestic legal system or with EU membership. Support for the application of EU law is provided by the competence clause of Articel 10a of the Constitution that says that certain powers of Czech Republic authorities may be transferred by treaty to an international organization or institution. Hence, the direct applicability and principle of supremacy follows from the doctrine of EU law itself.



2 Consistent interpretation

Administrative courts in the Czech Republic have consistently expressed a preference for interpretation in conformity with EU law. To arrive at an outcome that is consistent with EU law, they are usually required to determine whether the application of a particular provision of the national law is in compliance with provisions of EU law or, in general, with the purpose of EU law. There has not been a large amount of references for a preliminary ruling made by the Czech courts – by June 2012, 25 references requests had been submitted. Of these, only one focused on environmental questions.1 A preliminary ruling lodged by the SAC referred to the Shipments of Waste Regulation, 2 1

ECJ, Case C-299/09 DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH v the Ministry of Environment, withdrawn.

2

Regulation (EEC) 259/93 on the supervision and control of shipments of waste within, into and out of the European Community and Directive 75/442/EEC on waste.

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and related to the importation of waste from one Member State to another. The Czech Republic prohibited the importation of waste from other member states to its territory, if it was designated for disposal. The SAC considered a dispute between a German company importing waste to the Czech incineration plant and the Czech Ministry of Environment which claimed the primary purpose of the importation of the waste was its disposal in the Czech Republic. The German importer argued that the incineration plant used the waste to produce energy and heat. The Supreme Administrative Court asked whether production of energy can be still considered as the primary purpose of the import, even if the incineration plant does not pay to the importer, but the importer pays the incineration plant for receiving the waste. However, the application and reference was withdrawn. Nevertheless, there have been more cases where the SAC had to contemplate over the nature of waste. It refused to request a preliminary ruling in case of stillage from alcohol (acte éclairé) and referred to case law of the ECJ,3 the reasoning of the directive and basic environmental principles enshrined in Article 174(2) of the EC Treaty. 4



3 Environmental principles

The Supreme Administrative Court adopted a broad use of the basic legal principles such as legal certainty or proportionality of regulation in cases with environmental aspects. Violation of these principles is sometimes the main reason for the court to quash an administrative decision or a measure of general nature on substantive grounds.5 However, the SAC does not tend to invoke national environmental law principles to support its reasoning, and only exceptionally EU environmental principles. In the judgment of August 2008,6 the SAC had to deal with the complainant‘s objections that the interpretation made by the county court was incorrect. The transfrontier movement of wastes was destined for recovery operations in this case, and therefore the principles of self-sufficiency and proximity were not applicable. To answer the question whether the waste was truly destined for recovery or disposal, the SAC referred to several judgments of the ECJ and expressly addressed the EU environmental principles. In another judgment, the 3

Among others, judgments in Cases C-129/96 Inter-Environement Wallonie; C-1/03 Van de Walle and others; C-252/05 Thames Water Utilities; C-419/97 ARCO Chemie Nederland and others; C-330/94, C-342/94 and C-224/95 Tombesi and others; C-206/88 and C-207/88 Vessoso and Zanetti; C-9/00 Palin Granit; C-114/01 AvestaPolarit Chrome; C-457/02, Niselli.

4 5

Supreme Administrative Court, judgment of 23 February 2011, case 7 As 6/2011 – 63.

Measure of a general nature is a special administrative act which is neither the decision nor legislative act. It is related to the specific situation and, at the same time, it is legally binding upon unspecified range of persons. This form of administrative act is used, for example, for land-use planning documents.

6

Supreme Administrative Court, judgment of 31 August 2008, case 2 As 44/2007 – 212.

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SAC interpreted national regulations pointing out the meaning and purpose of EU waste legislation and the aforementioned principles again: ‘The purpose of Council Regulation No 259/93 is to encourage the use of waste throughout the European Union, using the most powerful techniques. To this end, waste destined for recovery moves freely between the Member States, and the principles of proximity and self-sufficiency do not apply for this type of waste (see judgment of June 25th 1998 in Case Chemische Afvalstoffen Dusseldorp BV ea, C-203/96, ECR I-4075). Another goal of the Regulation is to contribute to environmental protection and not to burden the environment of the Member States outside the country of origin of the waste. Application of the principle of proximity and self-sufficiency in the case of waste destined for disposal serves this purpose (see the preamble to Regulation No 259/93).’7

Further in this judgment, the SAC concluded that it is fundamentally impossible that a single activity would violate both the obligation under the Regulation and the same obligation imposed by Czech law. In other cases where the SAC based its decision on other environmental principles, it had rarely stepped into the European dimension of these principles.



4 Compliance with provisions of EU law

Prior to the accession to the EU, Czech courts had to deal with a generally framed obligation of gradual approximation with EU law. Bobek and Kühn notice there were only very few and rather exceptional instances when Czech judges were ready to employ EU law as persuasive authority.8 After the accession, it was first the Constitutional Court that was called upon to explain the primacy and direct applicability of EU law and emphasise the importance of consistent interpretation of domestic law.9 Nevertheless, in the environmental protection area, it was the SAC which very soon after applied these principles while interpreting the Aarhus Convention. In the judgment of 18 July 2006 it concluded with a reference to the ECJ case law that even if the provisions of the Convention were not directly binding, the Member States would still have the obligation of consistent interpretation, i.e. to interpret their own legislation in accordance with international legal obligations of the European Community. Consequently, when it is not clear whether a land use plan or its amendments are subject to judicial review according to the Czech law, the requirements of 7

Supreme Administrative Court, judgment of 9 February 2011, case 1 As 110/2010 – 151.

8

M. Bobek, Z. Kühn, ‘What About That ‘Incoming Tide’? The Application of EU Law in the Czech Republic’. In A. Lazowski, The Application of EU Law in the New Member States – Brave New World. T.M.C. Asser Press and Cambridge University Press, 2009, p. 329.

9

Czech Constitutional Court, judgment of 8 March 2006, case Pl. ÚS 50/04 (re Sugar Quota II), no 154/2006 Coll. Available in English at www.concourt.cz.

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the Aarhus Convention as a part of the Community law must be met and must prevail in case of doubt. Subsequently, the principle of consistent interpretation has been mentioned by the SAC in a small number of environmental cases, but merely as a supporting rather than key argument. In its judgment of 19 January 2010,10 the SAC concluded that even in 2009 the local authority was obliged to take into account an EIA statement released in 1996 under the former national EIA act which was replaced in 2001. The main reason for this was the duty of consistent interpretation: ‘It is not possible to accept that after joining the European Union on May 1st 2004 the transitional provisions of national law (§ 24 of Act No. 100/2001 Coll. – Eia Act) would deprive a Member State of its obligations under the EIA Directive, i.e. from the obligation to take into account the EIA statement in any subsequent administrative proceedings.’



5 Direct effect

Perhaps the most comprehensive case law where the direct effect doctrine has been applied concerns the EIA Directive. The EIA procedure is, according to the Czech EIA Act, concluded by a non-binding EIA statement on the part of the responsible authority. No subsequent administrative decision necessary for realization of the project (development consent) can be issued before this EIA statement exists.11 If a finding of no significant impact on the environment (FONSI) results from the screening procedure indicating that no environmental impact assessment is necessary for the specific project, then the screening conclusion issued by the competent administrative authority is sufficient for proceeding with a decision-making procedure. Several members of the public concerned, especially NGOs, have attempted to achieve judicial review of the EIA statement or the screening conclusion. According to the SAC, Article 10a of the EIA Directive does not apply directly as it is possible to challenge the final decision. In its judgment of 14 June 2007 the SAC concluded that this concerned an acte clair and refused to request a preliminary ruling.12 It also compared different language versions of the directive and stated the EIA Directive requires adoption of further legislation to determine 10 11

Supreme Administrative Court, judgment of 19 January 2010, case 1 As 91/2009 – 83.

According to administrative doctrine and consistent case law, the EIA statement belongs to the category of so called ‘other administrative acts’ – opinions, statements or expressions of the administrative bodies protecting public interests. Generally, they are not considered to be decisions as they do not create, change, nullify nor prove specific legal relations. Therefore, they cannot be subject to separate judicial review. Regarding the EIA statement, the SAC has repeatedly decided that it cannot be challenged at court directly because of its legal nature. See for example SAC, judgment of 28 August, 2007, case 1 As 13/2007 – 63.

12

Supreme Administrative Court, judgment of 26 June 2007, case 4 As 70/2006 – 72.

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the appropriate stage of the review and the Member States are granted a broad discretion in this respect. A review at a later phase is sufficient, if the conditions of justice, fairness, timeliness and affordability of such a review are met. However, the SAC emphasised that on the basis of Community law provisions, it is necessary to agree to requests for the suspensive effect of a legal action to avoid the administrative decision being irreversible in practice. Otherwise there would be a violation of Article 9 par. 4 of the Aarhus Convention and Article 10a of the EIA Directive. A few days later, in the judgment of 26 June 2007,13 the SAC repeated its opinion and referred to practice in other Member States: ‘The conclusion of the Court is entirely consistent with Community law and the international obligations of the Czech Republic. This is also confirmed by a similar statutory framework of the judicial review of the EIA procedure in other EU member states.’

In 2010, the SAC once again expressed its opinion on the position of the Aarhus Convention in Czech legal system in the decision14 concerning the strategic environmental assessment of the Development principles of the City of Prague (territorial planning documentation). It concluded that also in this case it is not contrary to the Aarhus Convention to review the process at a later phase and this conclusion is reinforced by the fact that, in contrast to the EIA Directive, the SEA Directive lacks any provisions regarding the judicial review. The SAC refused to request a preliminary ruling after a thorough analysis of the ECJ case law regarding Articles 4 and 6 of the Habitats Directive.15 It held that the relevant domestic law was compliant with the Habitats Directive and must be interpreted so that sites proposed for inclusion on the European list must be suitably protected from the moment they figure on the national list. These conclusions were later confirmed by the Constitutional Court which refused to follow the constitutional complaint associated with the proposal for submission to the Court of Justice.16 The Court referred, i.a., to its pre-accession judgment17 concerning interpretation of the EIA procedure from the perspective of the Aarhus Convention. For the Constitutional Court, it does not matter which type of the international treaty the Aarhus convention is (exclusive, mixed or other) as long as the Czech regulation is in accordance with it. The SAC has also addressed the Reasoned Opinion of the Commission of June 27, 2007, No. 2006/2271, (2007)2927, where the Commission informed the Czech Republic that it had not fully implemented Art. 10a of the EIA Direc13

Supreme Administrative Court, judgment of 9 February 2011, case 1 As 110/2010 – 151.

14 15

Supreme Administrative Court, judgment of 20 May, 2010, case 8 Ao 2/2010 – 644.

ECJ, Case C-117/03 Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma Friuli Venezia Giulia [2005] ECR I-167; Case C-244/05 Bund Naturschutz in Bayern eV and Others v Freistaat Bayern [2006] ECR I-8445.

16 17

Czech Constitutional Court, Resolution of 24 July 2008, case III. ÚS 2738/07.

Czech Constitutional Court, judgment of 12 October 2001, case Pl. ÚS 24/2000.

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tive.18 The Commission claimed that the Czech legislation may under specific circumstances be incompatible with the directive. This situation could occur, for example, when the environmental impact statement cannot be separately contestable and the public subsequently does not have standing to challenge the decision which was adopted on the basis of the environmental impact statement. The SAC interpreted the position of the Commission as requiring both above mentioned circumstances to exist cumulatively. Only in this case, the Czech national law becomes incompatible with the directive. However, this was not the situation in the case concerned, since the complainant had standing in both administrative and judicial proceedings related to the decision which was adopted on the basis of the environmental impact assessment (and therefore the public could incidentally challenge the environmental impact statement). In summary, according to the SAC, even the Commission does not require separate contestability of environmental impact statements. As a consequence, in June 2010 (C-378/09, [2010] ECR I-78), the ECJ ruled that the Czech Republic was failing to comply with the EIA Directive. Problems were identified with several aspects of the access to justice provisions of the Czech transposition provisions. Although the Czech Republic amended its legislation in 2009, the Commission was still not convinced that the transposition ensures adequate access to justice. The main point of concern was that the new legislation only applies to projects for which the environmental impact assessment began after 11 December 2009. According to the Commission, the new legislation had to be widened to include all projects for which the impact assessment was already under way before that date and where separate authorisation procedure for the project had still not been initiated. Even though the legislation was changed once again, it still remains controversial, as it expressly excludes the suspensive effect of a legal action based on the EIA Act. This particular provision has not been subject to a judicial review as the public concerned does not take part in the EIA proceedings very often. Hence, its legal actions are usually based on other Acts (for example, the Construction Act) where suspensive effect is not excluded. In August 2010, the SAC took full advantage of opportunities to develop its decision-making practice, as it was asked to review a specific measure of general nature, the Visiting Rules of the National Park Šumava.19 It concluded that Article 10a of the EIA Directive may be granted direct effect in certain situations and went on the following considerations: ‘The aim of Article 10a of the EIA Directive [...] is to ensure the public access to judicial review in matters falling within the scope of the Directive and this goal is clearly perceptible. Member States, however, are left room for consideration as to how to achieve this objective, inter alia, that determines the phase in which judicial review will be allowed [...]. In the case now pending before the Supreme 18

Supreme Administrative Court, judgment of 29 August 2007, case 1 As 13/2007 – 63.

19

Supreme Administrative Court, judgment of June 29, 2011, case 9 As 7/2011 – 70.

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Administrative Court, however, the final act is the outcome of a single administrative proceeding. The visiting rules reserving places for water sports may be subject to judicial review in a single type of legal proceedings. It is obvious that in this case, the discretion conferred upon the Czech Republic, respectively upon its legislators, could not apply if there is no room to determine the stage in which the visiting rules can be judicially reviewed. In this case it is necessary to fulfil the objective of the aforementioned provision and allow the public access to court [...] The Supreme Administrative Court considered the question of locus standi of the petitioners in these proceedings pursuant to § 101a of the Code of Administrative Procedure in conjunction with Article 10a of the EIA Directive. Also based on the definition of the public concerned in Article 1 par. 2, taking account its interpretation made by the Court of Justice in Case C-263/08, Djurgarden-Lilla Värtans Miljöskyddsförening.’

In another case20 worth mentioning, the SAC dealt with the interpretation of Council Regulation (EEC) 2204/90 which requires prior authorization of the use of casein and caseinates in cheese. The SAC concluded that while the Regulation was directly applicable, until June 2006 there was no implementing legal regulation at national or EU level regarding the administrative authority competent to authorize. Consequently, the complainant could not be punished for not obtaining the authorization.



6 Procedural Barriers

Access to justice in environmental matters in the Czech Republic is generally oriented on the protection of public subjective rights. To have locus standi, the applicant has to assert and prove a breach of his individual rights. Actio popularis can be brought by the Supreme Prosecutor and by the Ombudsman.21 This is particularly important for NGOs which are granted solely protection of their procedural rights in administrative proceedings relating to the environment having no other public subjective rights, i.e. the right to a favourable environment. Černý describes that this fact caused pressure on NGOs to start to base their lawsuits on the assertion that their right to fair trial has been infringed, despite the fact that the real aim of the suit was the protection of the environment.22 Both claimants and Courts are, therefore, focusing on the procedural errors of administrative bodies rather than on the essence of the dispute itself. A negative consequence of this situation is that NGOs are being accused of obstruction and formalism rather than protecting the environment itself. 20 21

Supreme Administrative Court, judgment of August 29, 2007, case 1 As 13/2007 – 63.

Since the beginning of 2012 when the Ombudsman was given such power, he has not yet used it.

22

P. Černý, ‘Lawsuits of Non-Governmental Organizations in the Czech Legal System – An Efficient Tool of Environmental Protection?’ The Common Law Review, November, 2010, p. 14.

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In recent years, there have been some minor changes to this approach. Firstly, the SAC recognized that Article 10a of the EIA Directive provides the public concerned with the right to challenge both substantive and procedural legality: ‘It however cannot be deduced that civic associations defending the public interest in terms of environmental protection have different procedural rights than other participants. Courts therefore to some extent also review the substantive requirements of the administrative action and conflicts with substantive treatment. An exception in this direction is the provision of § 23 para 10 of the EIA act [...] The complainant should therefore seek to review the decision in fully substantive terms if his locus standi was derived from this provision, or from the directly applicable Article 10a of the EIA Directive (see judgment of the Supreme Administrative Court of 13 August 2010, 6 Ao 5/2010 – 43, www.nssoud.cz, and the judgment of the ECJ of 12 May 2011, 2011, C-115/09, Trianel Kohlekraftwerk Lünen).’

This conclusion seems to be much more consistent with Article 9(2) of the Aarhus Convention which states that members of the concerned public, including environmental NGOs, shall have the right to challenge the ‘substantive and procedural legality of any acts, decisions or omissions’. Nevertheless, this provision is limited to the activities listed in Annex I of the Convention. Besides, the Czech courts are consistent in opinion that the Convention is not directly applicable in the sense of Article 10 of the Czech Constitution. Secondly, the Aarhus Convention recently served as a guide for the SAC when considering the position of NGOs in the system of environmental protection. The Regional Authority objected that NGOs founded ad hoc after the initiation of administrative proceedings cannot enter the proceedings as participants as this would easily result in a chain of obstructive behaviour. The SAC concluded that this interpretation of domestic law would: ‘suppress public participation in environmental protection at the lowest level, especially when civic associations as defined in the second group would be forced to “professionalise”, to exist without substance and to file preventive applications to obtain information concerning the proceedings commenced. If environmental protection is expressly the objective of the law, respectively it is a public interest for whose conservation, protection or support the law clearly aims, then there is no logical reason to use protective laws in a various ways where there is the same imminent damage to the environment.’23

In another recent case,24 the SAC faced arguments against the programme to improve air quality which was passed in form of the Amendment of Annex 2 23

Supreme Administrative Court, judgment of 27 April, 2012, case 7 As 25/2012 – 21.

24

Supreme Administrative Court, resolution of 21 January, 2011, case 8 Ao 7/2010 – 65.

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of the Regulation of the South Moravian Region. The claimants among others pointed to the Dieter Janecek case25 in which the ECJ concluded that: ‘the natural or legal persons directly concerned by a risk that the limit values or alert thresholds may be exceeded must be in a position to require the competent authorities to draw up an action plan where such a risk exists, if necessary by bringing an action before the competent courts.’

The SAC found the proposal unacceptable and held that the Regulation concerned is neither a decision nor a measure of general nature as its form is clearly prescribed (secondary legislation): ‘In addition to other means which may be sought after to ensure air quality (e.g., a separate assessment for the approval of planning documentation, etc.), adequate judicial protection is ensured in the Czech Republic in the form of the annulment review of a legal regulation by the Constitutional Court. If it concludes that the legal regulation does not represent a legal act, then a judicial review in administrative justice is possible. There is therefore no conflict with the requirements of Community Law (Article 7 et seq. of Council Directive 96/62/EC).’

This case illustrates the fact that there are two separate issues regarding the action plans – inactivity of the responsible authority to draw up a plan pursuant to the legal regulation and content and essentials of the legal regulation itself.



7 Conclusion

Generally speaking, Czech administrative courts with the Supreme Administrative Court at the highest level are to a large extent progressive in the way they reflect decisions of the Court of Justice of the European Union. Furthermore, administrative courts in the Czech Republic are usually the last ones to be blamed for the non-application of EU law as this is mainly caused by late or improper transposition or misinterpretation of EU law. On the other hand, environmental cases present merely a small portion of the total caseload. In some areas, application of EU law seems to be more demanding and the case law develops continuously and comprehensively while elsewhere to date it hardly reaches the gates of administrative courts.

25

ECJ, Case C-237/07 Dieter Janecek v Freistaat Bayern [2008] ECR I-6221.

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denmark

1 The Danish legal system – constitutional aspects

Before addressing the role of EU environmental law before Danish Courts some basic information about the Danish judicial system is needed. The Danish legal system is somewhere between the common law and civil law. Basic legal principles such as the rule of law, proportionality, equality and liability are not codified in legislation but are derived from case law. Distinct from most civil law systems, Denmark does not have an administrative court system parallel to the civil courts but instead has just one court system based on three levels: the lower courts, two high courts and a single Supreme Court. Case law before Danish courts includes criminal cases, ordinary civil law cases between private parties and cases in which a private party challenges an administrative decision, an action or omission of a public authority or the legal validity of legislation. Except for criminal cases, litigation against authorities is based on the adversarial approach leaving allegations, arguments and fact to the parties, with the court being placed in a rather passive role. Besides the court system, Denmark has more than a hundred administrative appeal boards in different areas which from a constitutional perspective are formally part of the executive but are actually independent and not under the control of the Ministry. As with any other decisions by public authorities, decisions of the administrative appeal boards can be challenged by parties before an ordinary Danish court. Regarding environmental cases, the administrative appeal board is the Nature and Environmental Appeal Board established in 2011 as an organizational unification of the former Nature Appeal Board and the Environmental Appeal Board but with the same division of tasks and composition as when it was formally two boards. The Nature Appeal Board deals with administrative appeals regarding nature protection and planning and is headed by a chairman appointed by the Minister of the Environment, seven politicians elected by the Parliament and two Supreme Court judges. The Environmental Appeal Board handles administrative appeals under the environmental protection act and a number of other environmental laws and the board is headed by a chairman appointed by the minister and supplemented by independent experts. Decisions of the Nature and Environmental Appeal Board can be brought before the lower court and by appeal to the High Court – and in principal to the Supreme Court. Not all environmental decisions can be brought before the Nature and Environmental Appeal Board – administrative appeals against a decision of the competent authority can be brought before the Appeal Board only when provided for by legislation. For example, there are no such appeals against enforcement decisions under the Environmental Protection Act and the Nature Protection Act, decisions on wastewater plans and on waste plans. It is arguable whether this restriction of administrative appeal is in accordance with Article 9(3) of the Aarhus Convention, but the question has yet to be addressed by the Appeal Board.

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2 Dualistic approach towards international law

Danish law has a traditional dualistic approach towards international obligations. Such obligations are only recognized by Danish Court, if they have been transformed into national legislation, unless the international obligation can be interpreted into the existing legislation. For this reason, Parliament in 1992 adopted the Act on Human Rights, giving the European Convention on Human Right (ECHR) as interpreted by the European Human Rights Court supremacy over national legislation and ranking between the Constitution and legislation adopted by the Danish Parliament. Regarding international obligations other than ECHR, Danish law is dualistic, leaving it to the legislator to decide how to implement the international obligations into national Danish law. Danish Courts recognize the principle of consistent interpretation, but this is more in legal theory than actual practice. During the last 50 years, less than a handful of published court cases applied the principle of consistent interpretation regarding international obligations1 and no environmental cases have been reported. To understand this approach, one should keep in mind that Danish people strongly believe that Denmark – in contrast to many other states – always implements international obligations correctly. Even though legal analysis does not support this belief, it is a perception shared by most Danish lawyers. Thus, legal reasoning based on international treaties before Danish Courts is rare, and since there is no legal argument on the subject, courts have no need to address the implications of various international treaties. In this regard, international environmental law is no exception. The questioning of the Danish implementation of an international environmental treaty is not raised in Danish case law. However, in the last decade references to the Aarhus Convention have been made in about 20 environmental cases by one of the parties – but until now without response from the court in form of any judicial interpretation of the Aarhus convention. No Danish case law has reflected the fact that the ECJ in Case C-213/02 concluded that EU ratification of an international environmental treaty makes the treaty directly applicable at national law to the extent the provisions are sufficient precise and unconditional. In conclusion, apart from where it has been formally implemented into national law, international environmental law is a dormant area of law in Denmark.

1

The latest case in which reference has been given to the principle of consistent interpretation of international obligation is a Supreme Court ruling from 2003 (UfR 2003.988 H) regarding the double tax agreement with US and Canada, and since the internal effect of these agreements actually follows from the Danish tax legislation, it is questionable whether the case should be counted as consistent interpretation. .

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3 EU Law at Danish Courts

The dualistic approach towards international law has influenced Danish relations towards the EU. First, the fact that EU law in the form of regulations is directly applicable within national law defined the constitutional status of the Danish membership of EU, since it implied that the Danish ratification of the EU Treaty could only be decided either by referendum or by 5/6 majority of the Parliament according to section 20 of the Constitution. The dualistic approach towards international law also explains why EU law was a rather new experience for judges, lawyers and public legal servants in Denmark. To deal with this challenge, the Danish government established a special body named Juridisk Specialudvalg (Special Legal Committee – JS) which has the overall responsibility for dealing with EU law including implementation and infringement procedures. In 1975, the tasks of JS were extended to include an advisory role on preliminary questions from Danish courts in criminal cases and in civil litigation against the different ministries and other state bodies. The JS mechanism starts if a defendant in a criminal case or the plaintiff or defendant in a civil case against the State raises the question that the Danish legislation or the decision taken by Danish authorities is not in compliance with EU law. If such an allegation is raised, the prosecutor (in criminal cases) or the lawyer of the state (in civil cases) must request the Danish court to postpone the case and ask the JS if the issue raises problem of compliance with EU law and whether a question should be referred to the Court of Justice of the European Union. Before the lower and high courts such a request will be followed by the court which will then wait for a memo from the JS which states how the committee considers the legal problem should be resolved. Unless infringement proceedings before the CJEU has already been initiated by the European Commission, the JS normally concludes there is no need to raise a preliminary question before the CJEU – and this guidance from the Ministry will normally be followed by judges at the lower courts and the high courts. In this context, it should be mentioned that the JS is also the expert body responsible for Danish compliance with EU law, and furthermore the members of committee are high ranking legal officers of the Ministry of Justice.2 In contrast to the lower courts, the Supreme Court does not accept this involvement of a governmental body in the judicial procedure. The position of the Supreme Court is, in my opinion, well founded since the JS mechanism look too much like the government advising the judges how to make judicial decisions. Moreover, it is questionable if the JS mechanism is in accordance with the EU principle of loyalty and the principle of equality of arms under ECHR Art.

2

The former president of the ECJ, Ole Due was the first chairman of JS, and some of the next chairmen of JS have become president of the Supreme Court (2) or Supreme Court Judges. One later chairman is now the Queens Lawyer responsible for civil litigation against the State and advising the Ministries and even the Parliament on legal matters.

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6.3 For example, in a criminal case concerning a fish farm, Danish implementation of Directive 78/659 on the quality for fresh water for fish was questioned. The Western High Court simply accepted a memo from the JS and concluded a crime had been committed, while rejecting the defendant’s request for an alternative legal expert opinion. 4



4 EU doctrines of efficiency before Danish courts

The EU doctrines on consistent interpretation, on direct effect and on state liability are fully recognized in Danish law and legal theory and have never been questioned by Danish courts or by the Nature and Environmental Appeal Board. Thus, regarding EU law Danish judges had at least formally departed from the dualistic approach and accepted the importance and distinctive legal status of EU law. If the CJEU has decided conclusively on a specific matter of EU law, the Danish Courts will follow – provided the court knows of the CJEU case law and provided it is sufficiently clear. Since rather few Danish judges (and few environmental lawyers) follow the European case law, the lack of knowledge itself is a cause of delay in Danish decisions adapting to CJEU case law. Moreover, the impact of the JS advice system discussed in the previous section might also help to explain why the lower and high courts in many cases have been so reluctant to raise preliminary questions before the CJEU. This can be illustrated with the example of a criminal case concerning the use of jet skis on non-designated waters. The defendant claimed that the Danish restrictions on use of jet skis were contrary to Article 34 TFEU. Despite the fact that a very similar Swedish case was pending before the ECJ (C-142/05 Mickelsson & Roos), the lower court and the higher court with majority found the defendant guilty and rejected referring the question to the European Court or waiting for the conclusion of the Swedish case before the Court.5 The High Court conviction was appealed to the Supreme Court, which decided to wait for the ruling of the CJEU. Following the CJEU decision in Mickelsson & Roos, the Supreme Court concluded that the Danish ban was invalid, and therefore no crime was committed.6 Another example is Case 215/04 Marius Pedersen on Regulation 259/93 on the shipment of waste which was concluded at the Eastern High Court by majority and then referred to the European Court by the Supreme Court.

3

For a comprehensive analysis of the practice of JS see Pagh: UfR 2004B, p. 305. An analysis of later practice is published in 2008 in the book: Europæiseringen af Dansk Ret (p. 475-512). See also Fenger & Broberg: Ugeskrift for Retsvæsen, 2009B, p. 5.

4 5

Western High Court 8 July 2005 – published in MAD 2005.1131.

Western High Court 7 September 2006 – published in MAD 2006.1184.

6

Supreme Court 19 November 2010 – published in MAD 2010.2497.

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5 Consistent interpretation in Danish environmental case law Consistent interpretation of EU law is acknowledged in Danish law, but it is rather rare for the issue to be addressed by the national courts – during the last decade, there have been no environmental cases before a Danish court where the doctrine has been applied. The principle of consistent interpretation has been applied by the Nature and Environmental Appeal Board in at least 5 published cases during the last decade concerning the protection of Natura 2000 sites under the Habitats Directive. One example is a case where the local council allowed the re-establishing of agricultural cultivation on noncultivated fields within a Natura 2000 site. The Nature Appeal Board reversed the decision stating: ‘The possibility for the local council to wait for the Natura 2000 plan before it is decided if the cultivation will have a negative impact on the Natura 2000 site is an exception in the Danish Nature Protection Act from the main rule in the Act according to which the local council has the obligation to prevent damaging activity. The exception must after normal principles of interpretation be interpreted restrictively and following the principles of EU consistent interpretation been understood in accordance with Article 6(3) of the habitat Directive and in accordance with ECJ case law.’7

The same wording has been used by the Environmental Appeal Board in three cases on how dumping of extracted materials from ports could effect Natura 2000 sites,8 and in one case in which the Environmental Appeal Board annulled an environmental permit to a fish farm, referring to the Waddenzee case. The reference to the principle of consistent interpretation in the fish farm case was, however, rather misleading, since the Danish legislation at that time was not even close to Article 6(3) of the Habitats Directive.9 The wording used by the Environmental Appeal Board might be explained by the fact that acknowledging direct effect at the time when the Commission was initiating an infringement procedure against Denmark on the same matter might be seen as an admission that there was a breach of EU law.



6 Direct effect and State Liability in Danish environmental case law In most of the environmental cases before courts and the Nature and Environmental Appeal Board, the question of direct effect is 7

Published in MAD 2010.3189 – my own translation.

8

Published in MAD 2007.2149, MAD 2008.1007 and MAD 2010.614.

9

Environmental Appeal Board 23 November 2004 – published in MAD 2004.1538.

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ignored, because it is assumed that the Danish legislation is in accordance with EU environmental law, even though in many instances this is rather questionable. The reason for this is simple. If the Danish authorities claim that case law of the CJEU cannot be applied because of a lack of Danish legislation, the authority acknowledges that the implementation of the EU legislation is incorrect. Such a conclusion is unacceptable for the Ministry of the Environment and the government, since it could lead to confrontation with the EU Commission. To avoid this, the strategy of the Danish authorities has been to accept even the most peculiar interpretation of Danish legislation, arguing that the concrete conclusion of the case is within the discretion of the authorities allowed for by CJEU case law. For example in the case on the introduction of the beaver into a Natura 2000 site, the Anglers Association claimed that the decision was in conflict with Article 6(3) of the Habitats Directive. This claim was not disputed directly by either the Nature Appeal Board or the Ministry of the Environment which instead observed that Article 6(3) was implemented by the Ministerial Order on Natura 2000 from 1998 and that the decision was in accordance with the directive as well at the statutory order – although it was obvious that the Ministerial Order from 1998 did not contain any provision similar to Article 6(3).10 The implication of the strategy was that the Western High Court did not apply or address the direct effect doctrine but instead concluded that the introduction of the beaver was contrary to the Ministerial Order on Natura 2000 sites.11 The same strategy has been followed by the authorities in most environmental cases and accepted by the Danish courts and the Nature Appeal Board. The principle of direct effect has, however, been applied by the Nature and Environmental Appeal Board in cases regarding the protection of Natura 2000 sites under Article 6(3) of the Habitats Directive and regarding the protection of endangered species under Article 12 of the Habitats Directive. While the direct effect of Article 6(3) of the Habitats Directive was established by reference to Case C-127/02 Waddenzee,12 the Nature and Environmental Appeal Board has more specifically argued for the direct effect of Article 12 of the Habitats Directive which was not implemented correctly in Danish law before 2009. In a case from 2006 regarding a local plan for a summerhouse area in which complaints were made regarding the risk of damaging endangered species covered by annex IV of the Habitats Directive, the Appeal Board stated: ‘The obligations under Article 12(1)(b) and (d) has not been implemented in binding Danish legislation and is therefore not fully implemented in Danish legislation. Article 12(1)(b) and (d) has however direct effect and is directly binding for the authorities. The Local Council of Helsinge Municipality is therefore obliged to comply with the obligations under the Directive.’ 10 11

Later accepted by the Ministry after an opening letter from the Commission.

Western High Court 13 November 2003 – published in UfR 2004.622.

12

Published in MAD 2004.1538, MAD 2006.238, MAD 2008.393, MAD 2010.2851 and MAD 2011.677.

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The Appeal Board found, however, insufficient evidence that the adoption of the local plan would damage endangered species and upheld the decision.13 The same position was taken in another case regarding a highway.14 Except from the few cases on the Habitats Directive, the Nature and Environmental Appeal Board and Danish Courts have generally avoided confronting the direct effect of EU law or questioning Danish implementation. The result is confusion as can be illustrated by the way the Nature Appeal Board misunderstood the ECJ ruling in Waddenzee, because for a long period it was unaware of the distinction between EIA and assessment under Article 6(3) of the Habitats Directive. The confusion over the relationship between the EIA Directive and Article 6(3) of the Habitats Directive can be illustrated by the Vestamager Dyke case regarding the enlargement of a 6 km long dyke (from 3.7 meter to 5.9 meter) in a Special Protected Area (SPA). The enlargement would destroy a wetland area used by the birds, and required dispensation from nature conservation and a zone permit. In the first ruling from 25 March 2009, the Nature Appeal Board (with 2 Supreme Court judges) upheld the dispensation concluding that no assessment of the impact of the SPA was necessary.15 Four months later, the Nature Appeal Board annulled the suspension effect of an appeal of the zone permit.16 One year later, the Nature Appeal Board concluded that the zone permit was invalid because of an inadequate EIA arguing that the EIA did not include sufficient assessment of the impact on the SPA. Because of this, the Nature Appeal Board annulled the zone permit which implied that the ongoing operation stopped until an adequate EIA was made (but by this time a great deal of the damage to the site had already occurred).17 The state liability doctrine has been raised as an issue in three environmental cases. But because the Ministry of Environment in the first case was found liable under Danish law and the case later closed, while causation was rejected in the other two a detailed review of the conditions for state liability was never conducted.18

13

Published in MAD 2006.2123.

14 15

Published in MAD 2006.2146.

Published in MAD 2009.2111.

16 17

Published in MAD 2009.2131.

Published in MAD 2010.3115.

18

The first case was on whether a Danish ban of a pesticide was in compliance with Directive 91/414 on marketing of pesticides (Eastern High Court 18 January 2005 – published in MAD 2005.116). The second case was on restriction of exporting waste for recovery. Based on the ECJ conclusion in C-215/04 Marius Pedersen the Supreme Court concluded that although the Danish EPA has acted beyond its discretion the failure was not cause to a documented economic loss (Supreme Court 20 May 2009 – published in UfR 2009.2203). The third case relates to the Danish ban on use of can for beers and in this case the Supreme Court concluded that no economic loss was documented (Supreme Court 19 January 2010 – published in MAD 2010.137).

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7 Legal remedies and procedural barriers

Although Article 9(4) of the Aarhus Convention establishes minimum standards regarding legal remedies in environmental cases, this has not yet been an issue addressed by either the Danish Courts or by the Nature and Environmental Appeal Board which until now seems solely to rely on the relevant Danish legislation. In cases raised by NGOs against the Danish State on insufficient environmental protection, the State often has claimed lack of standing. The allegation has delayed proceedings but has been rejected by the courts which in all major cases have accepted the standing of NGOs.19 The last example is a case regarding the establishment of a test centre for 250 metres high windmills nearby 3 Special Protected Areas and Natura 2000 sites. The decision was taken by a legislative Act of the Danish Parliament using the derogation in Art. 1(5) of the EIA Directive. But the Act leaves it to the Minister of the Environment to decide how to prevent damage to the SPA and Natura 2000 sites. It is, therefore, questionable whether the Act meets the requirement of a final permit dealing with all major environmental impact as stated by the ECJ in the Case C-128/09 Boxus a.o. The standing of NGOs and local neighbours was challenged by the Minister of Environment. The Western High Court and the Supreme Court concluded that the NGO has standing but rejected any suspension effect.20 It is remarkable that the court recognized that violation of Article 6(3) of the Habitats Directive could not be excluded, and then balanced the economic interests of the plaintiffs with the interests of the State and its climate policy. This was upheld by the Supreme Court without balancing the risk of irreversible or serious damages at the Natura 2000 sites or the potential violation of EU law. Moreover, this reasoning on suspension might also explain why Denmark has never used the derogation in Article 6(4) of the Habitats Directive. The suspension effect of legal actions before national court challenging decision of public authorities is in principle governed by section 63 of the Danish Constitution. This gives the right to bring decisions of public authorities before Danish courts but states that such legal action does not have suspensive effect. Moreover, according to the Civil Procedural Code section 641 injunctive relief is not possible in legal actions against decision taken by authorities. However, inspired by the ECJ ruling in Case 213/89 Factortame, the Supreme Court in 1994 in a competition law case (UfR 1994.823) concluded that section 63 of the Danish Constitution does not prevent the suspensive effect of legal action against public authorities in special cases. The Supreme Court did not justify this by the direct effect of EU law but found that suspensive effect is in 19

In the Oresund Bridge case standing of Greenpeace was recognized by the Eastern High Court in 1994 (UfR 1994.780). In the Beaver case standing of the Danish Anglers Association was recognized by the Western High Court in 2001 (UfR 2001.1594). .

20

Supreme Court ruling of 3 May 2012 – see UfR 2012.2572. .

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principle possible under the Danish constitution which also seems to define the very narrow scope for applying suspension. In practice, suspension has not been accepted in any case to date to prevent authorities from damaging the environment.



8 Latest development – no questioning the discretion of local authorities The latest development in how Danish case law applies EU environmental law can be illustrated by the Tåsinge Windmill Farm case ending with the Supreme Court ruling 7 September 2012. This concerned the erection of two 126 metres high windmills about 500 metres from a Special Bird Protected Area, and replacing some old small windmills in the same area. Based on an EIA procedure, but without an assessment under Article 6(3) of the Habitats Directive, the local Council gave permission to the project in 2007 – before Denmark had implemented Article 6(3) correctly. The decision was appealed by local neighbours. It was not disputed that the conclusion of the local council was based on a wrong calculation of the number of birds in the SPA and did not take into account the impact of the project on the area, but the Nature Appeal Board upheld the decision, arguing that there was no reason to question the conclusion of the local council that an assessment under Article 6(3) was not needed. The decision of the Nature Appeal Board was later upheld by the Eastern High Court (MAD 2010.2581) and by the Supreme Court (September 2012). The interesting part of the decision is the reasoning combined with the facts. First, the Supreme Court quoted the wording of the ECJ in Waddenzee (Case C-127/02) as to when Article 6(3) assessment is needed. Since it was undisputed that the conclusion of the local council was based on insufficient data, underestimating the number of birds in the SPA and their location, this should logically lead to the annulment of the permit. But the Supreme Court did not take that course. Instead, it stated that it was not documented that the Nature Appeal Board acted beyond its discretion and that the benefits for the birds by closing old windmills should be taken into account in assessing whether the project had such a substantial impact on the SPA that an assessment under Article 6(3) was necessary. In other words, formally EU environmental law, as interpreted by the CJEU, is fully recognized by Danish courts, but they hesitate from questioning the discretion of authorities and refrain from testing the scientific review made by the local authorities in so far this has not been questioned by the Nature and Environmental Appeal Board. This leads to one possible explanation of why the principles of consistent interpretation and direct effect are rarely used in Danish environmental case law. Consistent interpretation and direct effect are only a relevant issue, if there is a gap between EU law and Danish law. Since the Danish Ministry of Envi-

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ronment constantly claims no such gap exists, the national court as well as the Nature and Environmental Appeal Board have no reason to question whether the Danish legislation can be interpreted as in accordance with the way the ECJ has interpreted the relevant EU law. So, as they say in Germany keine Hexerei, nur Behendigkeit.

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1 Direct Effect Doctrine

There are numerous cases where the direct effect doctrine has been raised in front of national courts in relation to EU environmental legislation. A notable example of where a Federal Administrative Court held a provision of an environmental Directive to be insufficiently precise and certain to have direct effect is Bundesverwaltungsgericht (BVerwG, the Federal Administrative Court), judgment of 18 March 2011, 9 A 41.07. The two plaintiffs who have their homes in the vicinity of a planned tranche of highway A 44 challenged the plan approval for the project alleging, i.a., that the traffic would cause air pollution through emission of arsenic, nickel, cadmium and policyclic aromatic hydrocarbons. They invoked Directive 2004/104 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air – this had not yet been transposed into national law although the deadline had already passed at the time of issuance of the plan approval. Art. 3(1) of the 2004 Directive reads: ‘1. Member States shall take all necessary measures not entailing disproportionate costs to ensure that, as from 31 December 2012, concentrations of arsenic, cadmium, nickel and benzo(a)pyrene, used as a marker for the carcinogenic risk of polycyclic aromatic hydrocarbons, in ambient air, as assessed in accordance with Article 4, do not exceed the target values laid down in Annex I. Annex I sets up quantified ambient air target values for arsenic, cadmium nickel and benzo(a)pyren.’

The BVerwG held these provisions not to be precise and unconditional, arguing that (1) they are target, not limit values, (2) according to Annex V the MS were given a choice between two different reference methods, and (3) there were still on-going deliberations on the appropriate reference methodology. The court further considered whether the doctrine of anticipatory effect was applicable in view of the fact that the target values were to be reached only in 2012. It, however, rejected this argument for the reason given above, i.e. the fact the reference methodology was not yet clearly determined. Our own view is that the judgment is not convincing. The target values are in fact limit values for the future and fix a clear and precise threshold. That further research is needed on reference methodology cannot deny the fact that Annex V does specify the two methods from which the Member State must choose. Provisions in international treaties concluded by the European Union have not been held to have direct effect in the sense of overriding national laws. But they have been used as an aid to interpretation in conformity with national law. An example is BVerwG, judgment of 21 February 2008, 4 C 13.07, BVerwGE 130, 223. The Land Greater Hesse had granted access to a data base assembling comments on the enlargement of the Frankfurt airport for a number of private persons, companies, communes and a non-incorporated citizen initiative. The

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operator of the airport filed a complaint against this decision which was rejected by the appellate administrative court of Greater Hesse (Hess.VGH). The BVerwG upheld the judgment of the Hess.VGH. One of the issues was whether a non-incorporated citizen group can be holder of rights to access to the data-base. The court affirms this invoking Art. 4(1) of the Aarhus Convention which does not use a narrow legal definition of natural and legal persons but aims at (in the words of the BVerwG) ‘including the multitude of organisational settings which can contribute to the sharpening of environmental consciousness and free exchange of views in environmental matters’. There are also examples of cases where national courts have relied upon the so-called Waddenzee/Kraaijveld doctrine under which a national court is required to examine whether the national legislature/administrative authority has remained within the limits of discretion allowed by the directive. These involve both the EIA Directive and the Habitats Directive.



1.1 EIA Directive

In BVerwG, judgment of 25 January 1996, 4 C 5.95, BVerwGE 100, 238, farmers whose land was to be expropriated for the construction of highway A 60 alleged that the project lacked a proper EIA. The application for project authorisation had been published before the date of expiry of the transposition deadline of the EIA Directive. The relevant German EIA Act which excluded projects from EIA requirement if the application was published before this date was found by the European Court in the Großkrotzenburg case (C-431/92) to breach the directive. In the same case the Court also ruled that Articles 2, 3 and 8 of the directive were precise and unconditional and hence directly applicable. Following the European Court, the BVerwG held that the directive was directly applicable in the present case. Contrary to previous doctrinal views, the court emphasised, once again following the ECJ, that the right of an individual to invoke the directive contra legem nationalem was not a prerequisite but a consequence of the direct effect. The BVerwG conceived the EIA as a procedural requirement. It affirmed that Art. 8 of the directive provides that the EIA must be considered in the decision but constructs this not to be an enrichment of the substantive criteria of the relevant law.1 In addition, and once more reflecting the Großkrotzenburg judgment (but without expressly referring to it), the BVerwG did not require a formal comprehensive document called EIA but looked at the scope and content of the information collected by the administrative agency. It was sufficient that the information covers all aspects required by the substantive standard of the relevant law and is not factually flawed. 1

It is arguable that this is somewhat artificial because the wrongful or incomplete facts may, by implication, render the application of a substantive standard wrongful.

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Assuming that the EIA was flawed, the BVerwG then considered how such procedural failure would be treated under general German administrative law, and if this treatment is compatible with the EIA Directive. According to German law two more tests apply both of which limit the relevance of procedural mistakes: Procedural mistakes alleged by individual plaintiffs in an action for quashing an administrative act are only relevant if they affect a material individual right the plaintiff possesses. The possibility of participating in a procedure normally assists the administrative agency in collecting the necessary information and allowing it to render a decision in the public interest. Only insofar as the individual has a substantive stake does their participation serve to protect an individual right.2 Considering whether this doctrine was compatible with the EIA Directive, the BVerwG ruled that the directive did not in general protect the interests of individuals but only insofar as it provided the ‘concerned’ public with a right to comment. In addition, according to a general rule of German administrative law procedural failure only leads to a quashing of the resulting administrative act if there is a ‘concrete possibility’ (konkrete Möglichkeit) that without it another decision would have resulted from the proceedings. The BVerwG also applied this test in the present case. Considering that this test might fail to enforce the EIA Directive effectively, the court discussed whether the EU principle of effective implementation requires that any procedural failure must lead to the quashing of the decision. The court denied this, asserting that the principle of effectiveness allows for a relevance test and permits the Member State some discretion how to elaborate it. Another case concerned a provision of the German law transposing Directive 2003/35/EC (Rechtsbehelfsgesetz). The law regulates association actions and, oddly enough, provides that a procedural failure concerning EIAs is relevant only if the EIA or the preliminary test of whether an EIA is needed (screening) is completely missing. Flaws within an existing EIA or the preliminary screening test do not trigger the quashing of the resulting permit. The Higher Administrative Court of Hessen ruled that this provision is in principle compatible with the directive, even with its provision that the public concerned shall have access to a review to challenge the substantive and procedural legality of decisions. The court, however, indicated that cases of grave flaws might be treated differently (VGH Hessen Decision of 16 September 2009, 6 C 1005/08, n. 91).3 2

In terms of political theory, the citoyen is welcome to participate in proceedings but is not given legal protection in so doing; rather it is the bourgeois whose substantive interest is at stake whose participation is legally protected.

3

The judgment was appealed to the BVerwG which has submitted questions to the CJEU on whether the relevance requirement of the Rechtsbehelfsgesetz is too restrictive in view of Directive 2003/35/EC (BVerwG, Decision of 10 November 2012, 7 C 20.11). Cf. also pending Case C-72/12 Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider v Rhineland-Palatinate.

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1.2 Birds and Habitats Directives

An example is BVerwG, judgment of 19 May 1998, 4 A 9.97, BVerwGE 107, 1 where the plaintiff, a nature protection NGO, challenged the plan approval for highway A 20, arguing that it would destroy an area qualifying for a bird protection as well as for an Special Area of Conservation under the Habitats Directive. The legal requirements of the Birds Directive had been transposed into German law, but the administrative implementation of identifying and protecting appropriate sites was flawed. Citing the CJEU case law in the cases C-57/89 (Leybucht), C-355/90 (Santona) and C-44/95 (Lappel Bank), the BVerwG acknowledged that the protection requirements of the Birds Directive had direct effect. This meant that in areas qualifying for bird protection the regime prohibiting adverse effects applied. The court left open the question whether this regime was the stricter one under the Birds Directive or the more lenient one under Art. 7 Habitats Directive. At the relevant time the requirements of the Habitats Directive concerning the selection and notification of Special Areas of Conservation had not been transposed into national law, nor had the German authorities actually selected and notified the relevant areas within the deadlines established by Art. 4 of the directive. The court ruled that the Habitats regime can have direct effect. It argued that the criteria set out by the directive concerning the selection of sites were precise and did not involve a broad margin of discretion in weighing up non-ecological concerns. However, looking at the actual facts of the case, the court held that the project did not adversely affect the area under either Birds or Habitats Directives. This was due to the fact that only the next tranche of the project would actually affect the sensitive area, and the court considered that it might subsequently be decided that a tunnel should not be built underneath the site, thus preventing any adverse effects. Under the so-called Inter-Environnement doctrine the Court of Justice ruled that during the transposition period of the directive Member States must refrain from taking any measures liable seriously to compromise the result prescribed. 4 Until now the doctrine has only been applied in cases concerning potential SAC sites under the Habitats Directive which have not yet been designated as such – see for example BVerwG, judgment of 19 May 1998, 4 A 9.97, BVerwGE 107, 1.5 The dates for activating the protection obligations according to Art. 4(3) and (5) (i.e. 5 June 1998) could not be satisfied, because the German authorities failed to meet their deadlines for notifying sites for inclusion in the Commission list. Citing Inter-Environnement, the BVerwG ruled that the principle of ‘Vertragstreue’ (bona fide treaty compliance) required a Member State not to compromise the goals of a directive during the term set for transposition. Going 4 5

Case C-129/96 Inter-Environnement Wallonie.

The facts are described above.

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beyond a mere standstill duty, it even applied the protection requirements of Art. 6(2)-(4) in such cases, but as mentioned above, the Court held that on the facts the site was not threatened. As to Treaty provisions, there appear to be no cases to date where the environmental principles of the Treaty have been held to have direct effect. More often the courts have applied direct effect of the free trade principles of the treaties in environmental cases, an example being BVerwG, judgment of 29 April 2004, 3 C 38.03. In that case, Italian and German authorities had approved the placing on the market of a pesticide Micene DF. The plaintiff intended to import the pesticide from Italy into Germany (so-called parallel importation), and the German authorities required a separate approval for this purpose. The plaintiff appealed to the BVerwG which held that requiring an approval for a product that was identical in substance and effect with another already authorised one only for the reason that there are two different producers infringed the principle of free movement of goods. Parallel importation of products identical in substance and effect was, thus, permitted without needing special approval.6 But in respect of the Treaty environmental principles, we would argue that the CJEU case law in Mangold (C-144/04) and Kükükdevici (C-555/07) may become relevant. In these cases the principle of non-discrimination of age was, through Directive 2000/78, made directly applicable setting aside national worker’s dismissal regulation that discriminated elderly (Mangold) and younger (Kükükdevici) workers as compared with middle age workers. Applying this approach, it is arguable that the environmental protection principles established by Articles 114 and 191 TFEU as well as of Article 37 Charter of Fundamental Rights may been given legal effect as guidance and a complement to EU environmental law acts. The concept of the emanation of the state is central to vertical nature of the direct effect doctrine, but this has not yet been significant in German environmental cases. Directives lack ‘inverse direct effect’ in that a public authority cannot invoke a directive against an individual in the absence of transposing measures. Administrative agencies in German are generally anyway unwilling to make use of the direct effect doctrine by themselves, and therefore do not feel hampered by the direct effect concept. On the other hand, it should be noted that there is no doubt in German court case law that all public authorities are subject to the obligation to directly apply directives, if the preconditions are given.7 There are, though, examples of cases where the direct effect doctrine has an indirect horizontal side-effect on third parties. An example concerning access to environmental information is Hess.VGH, decision of 16 March 2006, 2 Q 590/06. Three enterprises situated in the vicinity of the Frankfurt Airport were denied access to a data base operated by the competent Land authority. This data 6

This principle is now contained in Art. 52 Regulation (EC) 1107/2009 on the placing on the market of pesticides.

7

Cf. Fratelli Costanzo.

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base contained a collection of arguments against the enlargement of the airport as well as the replies made by the operator of the airport, a company under private law. The enterprises filed a complaint at the Hess.VGH and asked for a preliminary ruling of the case. The court by a preliminary ruling granted the access that was sought. At the time of the case Directive 2003/4 had not yet been transposed into Land legislation of Greater Hesse, but the court directly applied the directive, including the access right itself as well as possible exceptions. The court did not address the question whether the fact that the operator of the airport was negatively affected by the disclosure of its comments excluded the direct applicability of the directive.



2 Consistent/Sympathetic Interpretation

The doctrine of consistent interpretation8 of EU environmental law is frequently applied in environmental cases. For instance, in many cases the national access to environmental information legislation of the Bund and the Länder was interpreted in the light of Directive 2003/4 – see, for example, BVerwG, judgment of 21 February 2008, 4 C 13.07, BVerwGE 130, 223 where the court assumes from the directive and the interpretation by the CJEU (C-312/96) that the notion of environmental information must be broadly defined. More recently, the Administrative Court of Wiesbaden (VG Wiesbaden, 4 K 757/11.WI(1) of 10 October 2011) applied the doctrine of consistent interpretation to broaden the rules on standing, thereby following the CJEU decision in the Slovak Brown Bear case (C-240/09 of 8 March 2011, see further below). The doctrine of consistent interpretation applies only ‘so far as possible’, and according to German court case law the line between consistent interpretation and direct effect contra legem is drawn by the wording and the semantic interpretation of a national provision. If the wording is precise, the national law cannot be consistently reinterpreted, and the criteria of direct effect must be restrained in these cases.



3 State Liability

There appear to be no cases to date in Germany where there have been claims for state liability under the Francovich doctrine due to a national failure to implement an environmental directive.

8

Marleasing [1990] ECR I-4135 and Pfeiffer [2004] ECR I-8835.

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4 National Courts Considering EU Law on Their Own Motion

The principles in Kraaijeveld 9 that national courts are obliged to raise issues of EU on their own motion does not pose a challenge in Germany. German courts do not require the parties to raise the questions such as of direct effect, and according to the principle curia novit iura courts have to do this by their own motion. However, as judges are sometimes uninformed, it is wise for counsel to point to the issue if appropriate.



5 National Procedural Rules

Traditionally, EU principles have left a large degree of national autonomy when it comes to procedural rules, but this is not always the case, and there have been quite a few environmental cases in Germany where national rules of procedure have been held contrary to EU principles. German rules on standing in particular are undergoing changes stipulated by EU law and the case law of the CJEU. The most prominent and recent case is the so called BUND/Trianel, Case C-115/09. Here the CJEU granted environmental NGOs standing before German courts despite German legislation to the contrary. Meanwhile, the Oberverwaltungsgericht Münster (OVG High Administrative Court of North Rhine Westphalia) applied the decision of the CJEU, gave the BUND (Bund Umwelt und Naturschutz – the biggest German environmental NGO) standing and declared the building permission of a coal power plant void. The Slovak Brown Bear case, Case C-240/09, might be of even more relevance here in that it seems to give NGOs (and potentially also individual plaintiffs) a more general right to challenge national administrative acts before the national courts.10 In the meantime, the lower administrative court of Wiesbaden (Verwaltungsgericht Wiesbaden, Az. 4 K 757/11.WI(1), 10 October 2011, p. 15 ff. (Luftreinhalteplanung) decided, that, following the CJEU decision in the brown bear case, an environmental NGO has standing to ask for the drawing up and the implementation of a clean-air action plan. German law by itself does not provide standing for NGOs in such cases. In the Janecek case, the ECJ decided in a preliminary ruling procedure about the interpretation of Article 7(3) of Directive 96/62/EC on ambient air quality assessment and management in connection with the procedure of drawing up air quality plans (Janecek/Freistaat Bayern, Case C-237/07). Directive 96/62/ EC was transposed into German law by the Federal law on combating pollution 9

[1996] ECR I-5403.

10

For a critical analysis of this judgment see: J.H. Jans, ‘Who is the Referee? Access to Justice in a Globalised Legal Order: A Case Analysis of ECJ Judgment C-240/09 Lesoochranárske Zoskupenie of 8 March 2011’. In: REALaw 2011/1, p. 85-97.

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(BImSchG) where action plans (Article 7(3) of Council Directive 96/62/EC) are regulated in § 47 BImSchG. Mr Janecek lived about 900 metres away from an air quality measuring station in Munich where measurements have shown that the limit value for emissions of particulate matter PM10 was exceeded more than 35 times a year. He brought an action before the Verwaltungsgericht (Administrative Court) Munich for an order requiring the Freistaat Bayern to draw up an air quality action plan in the district where he lives. This action was dismissed as unfounded. The appeal court (Verwaltungsgerichtshof Munich; Higher Administrative Court of 18 May 2006, 22 BV 05.2462) ruled that concerned residents may have a right of action against the competent authorities to draw up an action plan. According to the Bundesverwaltungsgericht (BVerwG 29 March 2007, 7 C 9.06), Mr Janecek cannot rely on any entitlement to have an action plan drawn up pursuant to § 47 II BImSchG. The Bundesverwaltungsgericht argued that neither the spirit nor the letter of Article 7(3) of Directive 96/62/EC confers a personal right to have an action plan drawn up. Moreover, Article 7(3) of Directive 96/62/EC does not contain an obligation to grant concerned residents a right to require an action plan to be drawn up. Based on European Community law, the directive’s intention to protect public health does not include that requirement. Member States have in fact a discretion as to how to regulate the details of the procedure guaranteeing the protection of public health as contemplated in Article 7(3) of Directive 96/62/EC. According to the Bundesverwaltungsgericht concerned people still have other courses of action available such as specific measures to reduce pollution. But to doubts of interpretation based on dissenting schools of thought the Bundesverwaltungsgericht decided to refer the question about the interpretation of Article 7(3) of Directive 96/62/EC to the CJEU. The European Court ruled that Art. 7(3) of Directive 96/62/EC must be interpreted as meaning that persons directly concerned are in a position to require the competent national authorities to draw up an action plan, if there is, say, a risk that the limit values may be exceeded. That right has to be granted, even if other courses of action are available for themselves to require measures being taken by authorities under national law to combat air pollution. This answer follows the reading of Art. 7(3) of Directive 96/62/EC defining action plans as a concrete instrument which constricts the discretion of Member States. Furthermore, the court refers to its case law concerning directives which are unconditional and sufficiently precise. Art. 288 TFEU defines that directives are binding and this would be incompatible with the exclusion of concerned people being able to require national authorities to draw up an action plan directly based on the directive. The fact that there are other courses of action available does not exclude the possibility of requiring the competent national authorities to draw up action plans as Directive 96/62/EC does not place any

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restrictions on measures which may be adopted pursuant to other provisions of national law. Currently, there is some discussion about the extent to which EU law may limit the so-called ‘Präklusion’ doctrine in German law. ‘Präklusion’ describes a legal burden to challenge an administrative decision in a substantiated manner. The burden is on the potential plaintiff to criticize all relevant aspects of an administrative decision at the stage of public participation, and if this is not done, the plaintiff is then prevented from challenging the administrative decision before the court. Some authors are arguing that the instrument of Präklusion is not in conformity with EU law and its interpretation by the European Court in the Djurgarden Lilla case (Case C-263/08). The Bundesverwaltungsgericht (BVerwG 4 B 57.09 of 11 November 2009) has – probably with good reasons – rejected this interpretation of the Court’s judgment. Future discussions will probably focus on the compatability of a number of rules in German administrative procedural law that deal with the relative importance of procedural standards. Under the current system, almost all deficits of an administrative decision-making-procedure (such as lack of public participation, deficits in consultation, reasoning etc.) be corrected by the administrative authorities at a later stage, sometimes as late as in the court-room. This ‘Heilung’ (healing) of procedural deficits reduces the importance of procedural guaranties provided for by EU law. Finally, one could mention the older discussion about the CJEU’s rulings on the incorrect transformation of EU-directives into German Law via the so called ‘Normkonkretisierende Verwaltungsvorschriften’. Here the European Court argued, that the definition of EU standards in national rules of a legally uncertain quality (no proper generally binding norms able to create individual rights) is an insufficient transformation of the directive (see Case C-361/88 Commission/ Germany [1991] ECR I-2567, 2597 ff.; Case C-59/89 Commission/Germany [1991] ECR I-2607, 2626 ff.).



6 National Courts and the Legality of EU Legislation To date, German national courts have explored the compatibility of EU environmental legislation with EU primary law only in connection with European fundamental rights. In doing so, the courts performed their own check and did not to refer the question to the CJEU, because they did not establish a violation. In 2005 (judgment of 30 June 2005 – 7 C 26.04) the Bundesverwaltungsgericht had to decide whether the implementation of the EU emissions trading scheme based on Directive 2003/87/EC11 is in conformity with higher-ranking principles of law. In a previous instance the Verwaltungsgericht Würzburg (deci11

Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC.

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sion of 9 November 2004, 4 K 04.948) did not check the compatibility of the implementation of the EU emissions trading scheme with superior rules of law at all. Compatibility with German constitutional law was not checked based on the case law of the Bundesverfassungsgericht (Federal Constitutional Court, ‘Solange – II’ judgment of 22 October 1986, 2 BvR 197/83 and ‘Bananenmarktordnung’ of 7 June 2000, 2 BvL 1/97). According to these decisions, EU legal acts are not to be reviewed against the standards of the national fundamental rights as long as the standards guaranteed on the European level are equal to the national ones. As consequence of this judgment, the Verwaltungsgericht Würzburg came to the conclusion that EU fundamental rights could not be checked by national courts if the directive, as would be the case here, leaves no scope for Member States for implementation. On appeal, the Bundesverwaltungsgericht disagreed, and held that national courts have to check the conformity of EU legal acts with EU primary law, if the legal act is required to be implemented at national level. If national courts conclude that the EU legal act in question is in breach of EU primary law, they must then stay the proceeding and refer the question to the CJEU. The Bundesverwaltungsgericht checked the conformity EU emissions trading scheme with the European fundamental rights of property and the freedom of profession, and after a detailed examination the court decided that the introduction of the EU emissions trading scheme is not in breach of EU primary law. As a result, the Bundesverwaltungsgericht was not required to refer these questions to the CJEU. The matter was also not referred to the European Court, as the BVerwG considered the answer to be sufficiently clear cut. In determining whether the emission of CO2 could be the object of a constitutionally protected property right the court considered two variants: a separate right to emission conveyed by the authorization for the installation, and a right to emission as part of the property in the installation. The Court held that the authorization does not extend to a right of emission but considered the emission of CO2 as part of the property in the installation. The prohibition of unlimited emissions, according to the Court, did not expropriate property but only restricted its use. The Court, then, considered whether this restriction is in the public interest and proportionate, and found that climate protection pursued the public interest, and that the restriction was proportionate taking into account that the emission allowances were allocated for free. The following constitutional appeal to the Bundesverfassungsgericht was not accepted (decision of 14 May 2007, 1 BvR 2036/05). The appeal did not fulfil the requirements according to the decision ‘Bananenmarktordnung’ (see above), because the appellant did not expose a lack of protection of fundamental rights at European level. Furthermore, the Bundesverfassungsgericht established that the refusal to refer the question to the CJEU is not necessarily a violation of the right to a lawful judge under Art. 101 I GG. The Bundesverfassungsgericht argued that the Bundesverwaltungsgericht did not act arbitrarily in consideration of the cooperation between national courts and the CJEU, but rather respected the CJEU

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case law and specifications with regard to the protection of European fundamental rights, and had checked the breach of EU fundamental rights in detail. Another field in which the breach of fundamental rights was put forward is in connection with Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the context of the three-step-procedure (Art. 4 of Directive 92/43/EEC) for designating special areas of conservation. Several German proceedings (OVG Lüneburg of 21 March 2006, 8 LA 150/02; OVG Münster of 14 May 2003, 8 A 4229/01; OVG Bremen of 31 May 2005, 1 A 346/02, next instance Bundesverwaltungsgericht of 7 April 2006, 4 B 58/05) dealt with lists of sites indicating natural habitat types by the Member States and their transmission to the European Commission according to Art. 4(1) of Directive 92/43/EEC. Land-owners claimed that their property rights were directly and individually affected by denying their applications to be taken off those lists. They argued that the notification by German authorities had a similar effect to a final decision as the Commission itself would have no scope deciding about sites being listed according to Art. 4(2) of Directive 92/43/EEC. Furthermore, the right to dispose of their property had been constricted from the moment it was listed by the Member State. All actions were dismissed by national courts. Most of them did not check the breach of fundamental rights at all, but the actions were held to be inadmissible. The act of notification and transmission to the European Commission was characterized as an internal administrative process and could, therefore, not determine any legal relationship which would have been an indispensable condition for an admissible declaratory relief. The claimants were told to seek legal remedies against national official decrees designating concrete sites as special areas of conservation (step three according to Art. 4(4) of Directive 92/43/EEC). To date there appear to be have been no legal challenges to a designated site of Community importance. Some land-owners from Germany brought their cases to the European Court and claimed that their property rights were directly and individually affected by the decision of the Commission regarding Art. 4(2) of Directive 92/43/EEC. The European Court of First Instance dismissed such an action for annulment of a Commission Decision in Case T-117/05 R (Rodenbroeker and Others v Commission) by interim measures, Art. 278, 279 AEUV and Art. 263 AEUV, on 05.07.2005 as well as in its order following the main proceedings on 19 September 2006 (Case T-117/05). Dealing with claimants from Finland the European Court dismissed in Case C 362/06 P (Sahlstedt and others v Commission) an appeal against a decision of the Court of First Instance (T-150/05) to set aside an order by which the Court of First Instance dismissed itself an action for annulment of a Commission Decision. Both courts did not check a breach of fundamental law. The responsible chambers decided in each case that the claimants were not individually concerned in accordance with Art. 263(4) TFEU. In Case C-362/06 P the Court stated that the national courts were under a duty […] to interpret and apply national procedural rules governing the exercise of rights of action in a way .

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that enables those persons to challenge before the national courts the legality of any decision or other national measure relative to the application to them of a Community act such as that at issue, by pleading the illegality of such an act and by asking those courts to make a reference to the Court of Justice for a preliminary ruling on legality. In case Verwaltungsgericht Bayreuth of 28 January 2010, 2 K 09.739 a national court checked the violation of European fundamental law. It ruled that the act of including to the list of sites of Community importance by the Commission did not breach European law. Verwaltungsgericht Bayreuth referred to the decision of the Bundesverwaltungsgericht of 30 June 2005 (see above) and checked whether Directive 92/43/EEC breaches the property right in its European dimension. It came to the conclusion that Directive 92/43/EEC did not force expropriation and that it was necessary, adequate and proportionate to protect important natural habitat types.

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Hungary Gyula Bándi

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1 Context

In the first eight years of EU membership, controversial environmental legal problems have arisen relating to Hungary’s improper transposition of EU environmental law. Examples include difficulties within Natura 2000 protection,1 non-transposition of the 2008 Waste Framework Directive, and serious doubts over the draft waste law due to the attempts of the Government towards a degree of nationalization of the municipal solid waste management system. Frankly, Hungary’s transposition problems are probably no better or worse than those of other Member States, and we are really in the middle of the EU environmental implementation puzzle. It is no wonder that the examination of the relationship of judicial practice and EU law becomes such a key legal question in Hungary and other Member States. Since Hungary joined the EU, there have been few significant environmental cases relating to EU environmental law – and Hungarian environmental case law in general is not well developed – and hence many of the examples of direct effect and consistent interpretation considered below concern areas of law other than the environment. But there should be little significant difference concerning the interpretation of European legal requirements in non-environmental and environmental areas of law. It is important to also bear in mind the description of the European Commission on the realities of transposition and implementation of environ1

http://www.greenpeace.org/hungary/hu/Mivel-foglalkozunk/Vegyi-anyagok/almasfuzito/. Greenpeace turned to the Commission, initiating an infringement case. The Észak-Dunántúli Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség (North-Transdanubian Environmental Protection, Nature Conservation ad Water Management Inspectorate – further: Inspectorate) issued the unified environmental permit (IPPC permit) and environmental operational No. 392-6/2010. to the Tatai Környezetvédelmi Zrt., for R3 operations, covering composting and biological treatment of 132.000 t/year hazardous waste and 280.000 t/year non-hazardous waste, in order to cover the Almásfüzítő VII. red-mud pond with artificial soil (cover) with the aim of minimizing the contamination of the red-mud pond. The permit has been issued as the deadline of the previous permit (see details below!) was passed and due to the legal requirements in force, the activity had to undergo an overall environmental review process on the basis of Gov. Decree No. 314/2005 (XII.25) Korm. rendelet, which also covers the unified environmental permit process (IPPC permit – Directive 61/96 EC). The affected Natura 2000 site in this case is the ‘Danube and its floodplain’, the number of which is HUD120034 within the area of the Duna-Ipoly Natural Park Directorate. The new permit of 2010, while seriously infringing the EU and domestic legal requirements related to Natura 2000 sites by failing to examine the likely significant effects, only covers the whole problem with two sentences: ‘The area [...] is not a part of a Natura 2000 site. The operation does not harm nature conservation and landscape interests.’ Considering the above mentioned two sentences of the decision is becomes clear that the authority has not even looked at the possible adverse effect and consequences, while there is a direct legal obligation to do so. Undoubtedly the likelihood of a significant effect should have been examined in the case of such a huge amount of waste, including hazardous waste.

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mental law, published in 2007 in the mid-term review of the 6th EAP.2 The Commission claimed that at least 80% of domestic environmental law of the MS is determined by EU legal requirements, a figure that can be considered correct in the case of Hungary. It is all too easy to criticize EU environmental law on several counts, but without this body of law Central and Eastern European countries at least could not have reached the present stage of environmental law development. But unfortunately environmental authorities are still not very effective, and thus it is even more important to rely on EU legal requirements. The quality of environmental decisions is not satisfactory in many cases, the proper understanding of the law is at a low level, and the available means of monitoring even weaker. The relatively modern environmental case law of CJEU can provide an important source of understanding. Reference to the practice of the European Court can be a useful tool to be used extensively, and is valuable for honest operators faced with conservative and often times restrictive practice of the authorities. It can be equally helpful to NGOs, trying to push for stricter enforcement and a more protective precautionary vision. Some recent Hungarian cases illustrate how essential parts of the judgments found their correct legal basis in EU law, as supported by the practice of the CJEU. The Supreme Court3 in a judgment of 20114 examined the definition of waste in connection with a by-product. The major question to be answered was that whether the further use of the by-product in question was possible or not. The Court analysed the definitions and provisions of the Hungarian waste legislation and then turned to Directives 75/442/EEC and 2006/12/EC. The Court stressed that if there was an urgent need for an interpretation, Hungarian law should be understood in the light of EU law and jurisprudence. The Court also referred to the Commission Communication of 2007, to C-9/00 case (Palin Granit), to C-235/02 case (Saetti) and C-444/00 (Mayer Mary) and several others. The Court examined the test developed by the European Court consisting of three aspects when deciding about the possibility to describe something as a by-product. A similar approach is found in a different case of the Supreme Court, related this time to Natura 2000 areas.5 The legal problem, as so often is the case, was the improper assessment of the likely significant effects of a proposed battery recycling operation on these areas – in this case the HUHN10003 and HUHN20013 sites, where the great bustard is living. As well as the transposing regulations in Hungary, the Court referred to Art. 6(4) of the Habitats Directive, when discussing the problem of the lack of necessary assessment. The Court 2

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-term review of the Sixth Community Environment Action Programme, Brussels, 30.4.2007, COM(2007) 225 final.

3

Since January 1, 2012 the correct term is Curia.

4 5

EBH 2279/2010 (Legf. Bír. Kfv. III. 37.395/2010).

EBH 1752/2007, (Legf. Bír. Kfv. IV. 37.240/2007).

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also used the arguments of Case C-117/03 (Dragaggi), holding that the protection should be effective even before the decision on Natura 200 sites are made by the Commission. In a recent non-environmental case concerning public procurement procedures relating to the rail transport line of Budapest-Győr-Wien-Munich, the Fővárosi Ítélőtábla (Regional Appeal Court)6 refused the appeal of the defendant (the Arbitration Council of Procurements) mostly using the practice of the CJEU relating to public procurement. The defendant could not prove why there was a need to have an exclusive tender, since they could not prove the existence of the technical specificities, which could have served as the basis of an individual, exceptional procedure. Consequently, the defendant infringed the procurement rules.



2 Constitutional background

One of the first decisions of the newly elected Parliament – with a 2/3 majority of the ruling party coalition (FIDESZ and Christian Democrats) – was to develop a new Constitution as soon as possible. This finally happened at 25th April, 2011, with the new constitutional provisions mostly entering into force at 1st January 2012. This new Constitution now forms an essential backdrop to any analysis of EU environmental law and its implementation within Hungary. Even the name of the constitution – the Fundamental Law – has a specific message, referring, i.a., to the Austro-German origin of our legal system, and an explicit break from the Soviet times. This new law marks a conceptual change of the Hungarian legal and political system, and a real ‘system change’ that could not have happened in the past 20 years.7 The ideas behind this Law may be also characterized as being conservative, Christian, and somewhat nationalistic (some say very nationalistic), relying more on the past successes of Hungarian history while ignoring the half century-long socialist era.8 However, even its critics would admit that compared to its predecessors the new constitution contains many more references to the environment and provides significantly stronger environmental theoretical foundations, references to the interests of future generations, and obligations for landowners. The new constitution is divided into the following parts, each represented by different ways of numbering: • National Profession (‘Credo’), acting as a long preamble; • Groundwork or Foundation, covering several core basic rules and also procedural elements; • Freedom and Responsibility – the human rights; • The State, including the budgetary or defence issues. 6 7

3.Kf.27.340/2010/3.

At least according to the present majority party.

8

See, for example, the Preamble which states, ‘We do not recognise the suspension of our historical constitution due to foreign occupations.’

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Rather than considering the detailed environmental provisions in the Constitution, we will focus on those provisions referring to the country’s relationship with the EU and those concerning the role of the court interpretation. Article E of the Groundwork Part provides: ‘1) In order to enhance the liberty, prosperity and security of European nations, Hungary shall contribute to the creation of European unity. 2) With a view to participating in the European Union as a member state, Hungary may exercise some of its competences arising from the Fundamental Law jointly with other member states through the institutions of the European Union under an international agreement, to the extent required for the exercise of the rights and the fulfilment of the obligations arising from the Founding Treaties. 3) The law of the European Union may stipulate a generally binding rule of conduct subject to the conditions set out in Paragraph (2). 4) The authorisation to recognise the binding nature of an international agreement referred to in Paragraph (2) shall require a two-thirds majority of the votes of the Members of Parliament.’

The relationship with the EU does, therefore, not change and the new Constitution remains in line with the 1994 association agreement and membership of the EU. It emphasises the difference between EU law as being obligatory and those international obligations which still need the approval of the Parliament (reflecting a dualist system of public international law). International obligations are discussed also in Article Q – with a specific reference to the sustainable development of humanity in Par. 1 – as follows: ‘(3) Hungary shall accept the generally recognised rules of international law. Other sources of international law shall become part of the Hungarian legal system by publication in the form of legislation.’

Again the difference between EU law and general international law is made absolutely clear. The new Constitution provides for the role of legal interpretation as such by the courts, but one should first refer to some important previous decisions of the Constitutional Court in connection with the role and understanding of EU law. This case law is still relevant, since the new Constitution has not changed Hungary’s relationship with the EU.9 The Constitutional Court always has had and continues to have a key role in the process of legal interpretation. This includes EU law, and consequently the relevant CJEU judgments. There have been several cases, where the applicants10 9

The same argument will apply to the right to environment provisions of the Constitution.

10

Till the end of 2011 a kind of actio popularis was open to anybody to question the constitutionality of a legal regulation, since 1 January 2012 is much more limited to some institutions, such as the ombudsman or prosecutor.

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argued using references to EU legislation, claiming that the Hungarian legal regulations were not in line with EU requirements. Accordingly, the way that the Constitutional Court has approached EU law and the relevant judgments of the CJEU has an important impact on the whole question of interpretation. In most of these cases,11 the Court, referring to its previous decisions12 stated: ‘The founding treaties and their amendments as primary sources of Community legislation from the point of view of the scope of authority of the Constitutional Court may not be taken as international conventions. Instead, Community law forms an inherent part of domestic law, due to the fact that Hungary is a member of EU since 1 May, 2004. From the point of view of the scope of authority of the Constitutional Court, Community law may not be taken as international law, thus the reference to Art. 7(1) of the Constitution is not valid in this respect.’

It is important to mention the difference made by new Constitution between EU law and the international legal order. The most important consequence is that the Court does not have the competence to decide whether a provision of domestic law may or may not infringe the Union legal order. As Union law shall be taken as domestic law, this is not a valid question for the Court in a same way that it has competence to check the legality of EU law as against domestic law. Of course, if there is a conflict between EU based domestic law and non-EU based domestic law, there may be a need for the interpretation of constitutionality of the latter. Something similar happened in a case dealing with problems of the Act on the control of commercials, especially as it relates to tobacco (Act 2008. évi XLVIII. törvény).13 Commercials fall within the freedom of services of the EU, but this does not imply a total freedom without limits. The Court in its decisions looked at the EU directives in this respect (89/552/EEC, 97/36/EC, 98/43/EC,14 and 2003/33/EC). There are specified limitations to advertisements, but Member States may add additional means of protection based, i.a., on human health reasons. The Court referred to the ECJ judgment in C-380/03,15 as well as provisions concerning tobacco advertisements within Directive 2001/37/EC.16 In this respect the Court examined the legal clarity of the Hungarian implementing regulations, mostly in connection with the proportionality of the legal limita11

Such as in decision No. 8/2011. (II. 18) AB határozat.

12

Such as decision No. 72/2006. (XII.15) AB határozat, No. 1053/E/2005. AB határozat, No. 87/2008. (VI. 18) AB határozat.

13

Decision No. 23/2010. (III. 4) AB határozat.

14 15

Annulled by the ECJ in the judgment C-376/98.

 Federal Republic of Germany v European Parliament and Council of the European Union [2006] ECR I-11573.

16

Directive 2001/37/EC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products.

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tions, when looking at the possible effects of the provisions on fundamental rights. Finally, in connection with the clarification of the role of EU law in the domestic system, one should mention another significant case of the Constitutional Court, where the claimant filed the case against the Act proclaiming the Lisbon Treaty.17 It was argued that the Lisbon Treaty in merging the former second and third pillar acquis into one single system had restricted the sovereignty of Hungary in such a way that the country could no longer be treated as an independent legal state. According to the Court, the argument raised similar constitutional aspects that had been raised in several Member States before the ratification of the Lisbon Treaty. The different Constitutional Courts either agreed that the Treaty was consistent with the respective national constitutions, or that some laws required minor constitutional changes. According to the Court, the Lisbon Treaty from a formal regulatory point of view does not represent a new act in Hungary but is rather an amendment of the existing acts related to the accession to the EU. The Treaty may be taken as an international legal norm until it enters into force but then becomes part of the domestic legal system as all other EU legal provisions.18 Everything has to be examined from the perspective that any legal supervision of domestic regulations should not impact on Hungary’s obligations resulting from EU membership. According to the Court, it is the duty of the Hungarian legislator to create such a situation in our legal system. The Court had already underlined in many decisions that the interpretation of EU primary and secondary legislation is the competence of the CJEU and not the Constitutional Court. Of course, the Constitutional Court may refer to EU law as a given norm without having to interpret it. The decision stressed that, according to the Hungarian Constitution,19 there is a constitutional empowerment for the transfer of sovereignty, as the legislator had to establish the constitutional foundation for joining the EU. This had been decided by a 2/3 majority at the time of amending the Constitution before the accession. Article E of the new constitution reinforces these conditions. Sovereignty is an important element of the definition of the state as an object of international law. The Hungarian Court provided a description of sovereignty but also emphasized that this may not be unlimited.20 Sovereignty is actually already limited by international law, meaning the self-abridgement of the state. This is exercised via international conventions, and this simply means a precondition for cooperation with other states. In one other case21 the whole problem of sovereignty was raised from the point of view of EU accession. According to this latter decision, the major requirement related to legitimacy of such kind of deci17

Discussed in the decision No. 143/2010. (VII. 14) AB határozat.

18

During this period it may be interpreted from a different perspective.

19

Art. 2/a before the entering into force of the new constitution on 1 January 2012.

20 21

Decision No. 5/2001. (II. 28) AB határozat.

Decision No. 30/1998. (VI. 25) AB határozat.

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sions is that these rules should have their foundation in the sovereignty itself and this is the basis of democratic legitimacy. Art. 2/A of the Constitution could provide this legitimacy. The Court also mentioned Art. 6(4) of the Constitution which had been inserted into it along the line of accession, as a basic provision related to the objective of the state, taking into consideration that participation in the EU is not an end in itself, but it should serve the extension of human rights, wellbeing and security (see also Art. E Par. 1 above of the Fundamental Law). The Court stressed that the Lisbon Treaty does not create a European superstate but implies that sovereign states share their sovereignty with each other in order to enhance cooperation. As a consequence, the Treaty does not change the foundations or essence of the EU but mainly provides institutional reforms in order to have a stronger Union. The Protocol No. 2 of the Lisbon Treaty on subsidiarity and proportionality provides the possibility for national Parliaments to control the EU. According to the Court, these procedures provide the necessary guarantees in a way that the competences based on the Constitution shall be managed through the institutions of the EU in cooperation with other Member States. The Court listed the following as good examples: TEU Art. 48(2)-(5), Art. 48(6)-(7), TFEU Art. 81(3). According to the Court, the Lisbon Treaty is a major step forward in developing European citizenship. The Charter of Fundamental Rights represents another set of guarantees, open for all the citizens of the EU and supervised by the CJEU. Also TEU Art. 6(2) and (3) speak about the European human rights conventions. In summary, the Lisbon Treaty did not annul either the independence of the Hungarian State or the rule of law in Hungary. Going back to the general question of interpretation as provided in the new Fundamental Law, Article 28 reads: ‘In applying laws, courts shall primarily interpret the text of any law in accordance with its goals and the Fundamental Law. The interpretation of the Fundamental Law and other laws shall be based on the assumption that they serve a moral and economical purpose corresponding to common sense and the public benefit.’

There are important elements which need some further minimal clarification: • the goals or objective of any law must be taken into consideration, which raises the question as to how this objective is to be determined. Hungary does not use preambles to assist in interpretation, and only high level legal regulations (Acts, and sometimes Government Decrees) have some explanatory memorandum; • the reference to the Fundamental Law is a necessity and remains in the background to any interpretation; • the assumption is a positive presumption that legal norms are taken as useful and reflect elements of common sense and public benefit, and consequently the burden is to prove that it is not the case;

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• it will be sometimes difficult to differentiate between moral and economical purposes, as they do not necessarily mean the same, or are they always compatible, as it is the case, for example, in the field of environment; • all the conditions above also apply to EU law since this has the same status as domestic law.



3 Supremacy of EU law

The question of supremacy of EU law has been mentioned in many cases in Hungary, such as in the state liability problem raised below in the judgment of Fővárosi Ítélőtábla (Regional Appeal Court).22 There the court emphasized the primacy of European law and the role of domestic courts in giving life to this doctrine, referring to Case 6/64 (Costa v ENEL), and to Case 106/77 (Simmenthal). In its decision23 the Supreme Court examined the legality of a permit for a planned motor rally race close to a nature protection area, and affecting Natura 2000 areas. The environmental authority issued the permit with specific conditions concerning nature protection. Environmental NGOs appealed against the decision, and the authorities prohibited the race with an immediately executable decision. It means that there was on the one hand a permit and on the other direct intervention by the authorities. Environmental NGOs filed a case against the permit, referring to Natura 2000 regulations, and argued that in the case of a likely significant effect only public interest activities may be permitted in Natura 2000 areas. The Supreme Court underlined that it is the responsibility of the authorities to examine carefully the possible effects of different activities on Natura 2000 sites, and that although part of the site was not a Natura 2000 area, the assessment of the likelihood of the effects could not be disregarded. The Court also emphasized that, according to the EU legal requirements, the significant effects may occur outside the Natura 2000 areas and not just inside. The fact that the authorities failed to carry out the assessment was a serious infringement and could provide the legal basis to dismiss the decision.



4 Direct effect

An example is a relatively straightforward case,24 concerning transboundary movement of waste since this involved an EU regulation. In EU law there is a difference made between movement with an objective of recycling and movement with an objective of disposal. From its beginnings, Hungar22 23

5.Pf.21.533/2011/7.

EBH 2283/2010 case – (Legf. Bír. Kfv. IV. 37.938/2009).

24

Case 13.K.33.869/2008. of the Municipal Court of Budapest.

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ian waste management legislation promoted specific treatment condition, the ‘pre-treatment’ of wastes, which is different from the general EU perception. This would not usually create a problem provided in cases of transboundary movement the environmental authorities do not use this treatment option as third category distinct from recycling and disposal. In a claim challenging the decision of the environmental authority, the Municipal Court of Budapest agreed that there is no third way in evaluating the notification or request for the transboundary movement. As the EU regulation does not make a distinction of a third kind, an operation had to be shall be regarded as either recycling or disposal, and not some in-between option. The Supreme Court has in several cases examined the problem of direct effect in more challenging areas when the source was not a regulation. In a labour case,25 the plaintiff argued that the access work should be reimbursed according to Hungarian law and also according to Directive 93/104/EC. The defendant argued that this directive had not been transposed into domestic law. The case was about the access fee paid to the doctors working in attendance in hospital. The courts in the procedure used, i.a., the arguments in judgment C-188/89 (Foster) in terms of obligations related to public services, as well as making reference to C-151/02 (Jaeger). The defendant argued in the review procedure that the second instance court applied a legal requirement contrary to the domestic law in force, and that it is only an EC regulation which has a direct effect and not the directive. Also they argued that, according to Art. 234 of the EC Treaty, the domestic court should have asked the European Court for a preliminary ruling and as it did not happen, the judgment is not valid. The Supreme Court referred to Art. 2/A (1) of the Constitution, which covers the possibility that Community law may be applied without national transposition. Furthermore. Hungary in the act on accession26 agreed that in the line with Art. 10 of the Treaty, the interpretation of the CJEU must also be applied. The Court has consistently permitted reference to a directive in a legal dispute with the public organ or other organs undertaking public services, provided the provision of the directive is sufficiently precise and unconditional. The domestic court has no obligation to ask for a preliminary ruling, if the provision in question is unambiguous and its implementation is clear in practice (e.g. Kolpinghuis Nijmegen Case C-80/86, Kampelmann Case C-253/96). Thus, the plaintiffs could refer to the direct effect of the given Community provisions.27 The Supreme Court, in another case, stresses that if it is evident that domestic law did not transpose EU law properly, then the directive shall be applied if the other conditions are met.28 The case involved the improper label25

EBH 1442/2006 (Legf. Bír. Mfv. II. 10.921/2005).

26 27

Act I. of 1994.

The Supreme Court also relied upon directive 93/104/EC. It is worth mentioning as well that the Supreme Court on the merits of the case argued along the line of the ECJ practice (Simap Case C-303/98. 52.; Jaeger Case C-151/02. 71., 75. and 103.; Pfeiffer Case C-397/01. 93).

28

EBH 1745/2007 (Legf. Bír. Kfv. III. 37.043/2007).

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ling of chemicals, infringing the chemical safety regulations according to the consumer protection authority. The plaintiff – who was fined by the authority – in his claim to the Supreme Court referred to Commission Directive 2001/60/ EC, according to which the labelling used must satisfy the requirements of EU law. Domestic law did not transpose these provisions, and according to the Court the plaintiff was right. The directive in question was clear, unambiguous, without further conditions and did not provide room for internal legislation to depart from it. There are other cases – not listed here – where the courts have applied the direct effect doctrine, although not all the issues associated with the doctrine have been raised or answered in Hungary. For example, there have been no judgments in environmental cases to date referring to the so-called Waddenzee/Kraaijeveld doctrine,29 and as yet no cases – environmental or otherwise – have mentioned the ‘Inter-Environnement’ doctrine, the ‘indirect’ effect or the ‘inverse’ horizontal effect.



5 Consistent Interpretation

This doctrine does not appeared to have featured to date in Hungarian judicial practice.



6 State liability issues

As to the Francovich doctrine the possibility is open in the Hungarian legal system to ask for compensation if the administration’s fault or failure proved to be the direct cause of the damage.30 In the environmental field the Francovich doctrine has not been used, but it has been used in other areas. The Regional Appeal Court of Budapest in its recent judgment examined several basic questions of interpretation of European law, in connection with a civil law case related to compensation.31 The Court, first of all, underlines as a simple legal fact that since May 1, 2004 European Union law is also the law of Hungary. The other fact is the primacy of European law and as the major condition for its effective implementation is the role of domestic court, giving life to this doctrine (here the Court referred to Case 6/64 (Costa v ENEL), and to Case 106/77 (Simmenthal)). In this case the Hungarian ministry, when adopting a legal regulation, which according to the plaintiff was contrary to European law caused damage to the plaintiff. The plaintiff referred to Joined Cases C-6-9/90 (Francovich) 29

There is an on-going case concerning EIA procedures and a cement factory which may involve the doctrine.

30 31

Act IV. of 1959, Civil Code, Art. 349.

 Fővárosi Ítélőtábla 5.Pf.21.533/2011/7.

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listing the three conditions of state responsibility. The defendant – the ministry – replied that not being a legislator itself, only an executive authority was not able to meet the requirements of the accession treaty. The court emphasized that the treaty obligations refer to all the law-making organs of the state, and all the deficiencies in implementing the EU law fall within the scope of interests of the defendant. Consequently, the infringement of legal harmonisation obligations is possible. The court agreed that EU law is different from international law, being a sui generis system, and was infringed by the defendant. The major legal problem here was that the EU law in connection with VAT did not allow stricter measures – in the given case it meant the limitation of tax reduction. The state responsibility to pay compensation was open in theory, but unfortunately it was not requested by the plaintiff. The court examined the whole legal problem in details. As the EU law is part of the domestic system, it does not create an individual system within that – see Case 33/76 (Rewe). As a result, the plaintiff could have referred to the tax reduction problems in the annual return of income, and in that case the taxation authority could have issued a negative decision, which could have been questioned in front of the court in public law litigation. The plaintiff had failed to choose this option, and as the opportunity to require a refund of the tax was open under public law, the plaintiff could not ask a compensation under civil law.



7 Problems with national procedural rules

Art. 9(3) or the Aarhus Convention speaks about challenging ‘acts and omissions’ by private persons and public authorities which contravene provisions of its national law relating to the environment’ in an administrative or judicial procedure. The current options to challenge administrative decisions and all other procedural conditions of the Hungarian legislation relate to a positive actions by authorities but do not cover the negative behaviour, omissions, or no action. So the major question is whether it is possible under Hungarian law to make a challenge in such cases. As an example, we may mention a case,32 where the plaintiffs, who were private landowners wanted to refer to the access to justice provisions of the environmental act in connection with a draft physical plan around the lake Balaton, discussed by the local government. They argued the court should stop the process since adoption of the draft would harm their interests. According to the court, access to justice rights could not be granted for two main reasons: first, the process is a regulatory process, and regulatory activities or omissions may not be covered by the general courts; second, the environmental danger and the damage to the environment should have a direct causal link and this was not apparent in the case. 32

Published as BH2007. 259 in the compound of judicial decisions, on the basis of Legf. Bír. Pfv. III. 20.436/2006.

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The Janecek case covers the possibility of an interested person enforcing the legal obligation of the public bodies to make a plan. This type of option has been hardly available in Hungary, or at least in a very indirect and doubtful way. In the environmental protection act of Hungary 33 there are several possibilities open for NGOs: in subpar a) of Art. 99(1) the association may require the authority to take action, and in subpar b) the same association may go to court against the operator. Something is clearly missing – what happens if the authority does not react. The clear message of the provision is that if the given public organ does not make any steps, action must be taken against the operator, not the authority. According to the Ket,34 Art. 12(1), the administrative procedure regulations are made for authority proceedings. Par (2) defines such proceedings: ‘a) every case, within which the public authority establishes a right or duty of the client, confirms data, fact or right, conducts a public register or undertakes control’.35

Outside this definition the act on administrative procedure does not apply. The no-action alternative is not really included within this definition, and there is no case law supporting the possibility of challenging omissions of public administration. This is the weakest point in the Hungarian legal system. The general right for complaint, etc. does not provide an answer as there are no decisions at the end, and the claimant only has to be informed. The provision of information, as such, is not something appealable. If it is a question of normative decision-making – order, decree, normative decision (as opposed to a decision in an individual case) – the legality/constitutionality may be challenged by a limited number of applicants, but the lack of a norm may not.



8 Interpretation in general by national courts

According to the principles in Kraaijeveld national courts are obliged to raise issues of EU on their own motion.36 Until now the practice in Hungary is that parties in environmental litigation have always raised EU issues themselves before the courts,37 and the court are willing to listen to them. The courts will also use both EU and also national substantive principles in their 33

Act LIII of 1995, but the same applies for nature conservation cases, according to the Nature Conservation Act (LIII of 1996), Art. 65.

34 35

Act CXL of 2004 on the general provisions of the administrative procedure.

Subpar b) is not relevant here, as it is connected with registers necessary for specific activities (like attorney, expert, etc.) .

36 37

[1996] ECR I-5403.

EU issues are raised in around 50% of environmental cases.

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arguments. An example is a case concerning odour before the Supreme Court.38 The case, treated as a civil law case under Hungarian law, was initiated by the prosecutor, supported by NGOs, and the then Parliamentary Commissioner for Future Generations also intervened. The lower court in its decision prohibited the operation, and the defendant appealed against the decision. Due to lack of clear standards concern odours levels, the plaintiff made reference to BAT requirements, since the plant was subject to IPPC. The Court accepted this reference, and held that the odour emissions were the consequence of a lack of proper use of BAT which should have been used. There was also a reference to Directive 96/61/EC and also to the case law of the CJEU, requiring the domestic court to interpret domestic law along the lines with EU legal requirements. A key issue was the interpretation of the definition of environmental pollution – the plaintiff and the intervenor advocated a broad approach, supported by references to the practice of the European Court, while the defendant argued for a strictly technical approach based on the emission standards. The Supreme Court referred to the problems of domestic law not having clear odour standards. Also according to the Court, the Hungarian legal system uses both public and civil law elements in order to limit excessive odour, a complex system of legal protection for the environment. The Court’s arguments were detailed and interesting, referring to principles such as sustainable development, right to environment, quality of life, and integrated protection. The Court accepted the reference to nuisance law but also referred to compensation provisions of the Civil Code. As there was a parallel system of legal protection – public and civil law – it meant that public authorities could employ their powers but also that the court has the right to intervene. Finally, there was a part of the judgment that used the principle of proportionality. The defendant argued that its operation of waste recycling was in the public interest line – and that it would be disproportionate to impose limitations beyond those needed to prevent environmental damages or nuisance. As a result, the court did not prohibit the whole operation but only that part of it which was causing the odour.



9 National checking of ‘Constitutionality’ and EU law

A major role in national legal interpretation is undertaken by the Constitutional Court, and a number of its cases have already been discussed. It is worth mentioning one decision,39 where the Court found some elements of the legislation unconstitutional in that they deprive people retrospectively from a part of their income. Human dignity and fundamental rights are all discussed in this context, with at its core a reference to European legal principles, such as requirement relating to a state intervention, which must find the proper balance 38

EBH 2233/2010 case (Legf. Bír. Pfv. VIII. 21.492/2010.

39

37/2011. (V. 10) AB határozat.

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between the protection the privacy of individuals and the social, political and economic reasons of the regulation. In its decision related the new strict liability provisions of traffic regulations, 40 the Constitutional Court considered the White Paper of the Commission related to European traffic (COM (2001) 370), the major aim of which is to diminish the number of fatal accidents. This served as an argument in evaluating the necessity of having stricter measures. The financial support system under the Common agricultural policy was the core issue of a recent decision. 41 Of course, the Court was clearly aware of the different regulations covering this issue (such as 1782/2003/EC, 73/2009/EC, 583/2004/EC), but as the EU system was originally developed before Hungarian accession, there remains a certain margin of discretion for the Hungarian legislator in the conditions it introduces under regulations. Since not all the provisions of the Hungarian law are directly derived from EU legislation, the implementing Hungarian regulations may be evaluated by the Court. The Hungarian Parliament had an obligation under EU law to create a new system of support but also had a margin of discretion in how it went about the task. This discretionary element provided the basis for the Constitutional Court in its review, as it has already been declared that the Court does not examine the legality of EU legislation. The major problem in this case raised by the President of the Republic was directly connected with European legal values, such as legal certainty, legitimate expectation – for example, that an expectation that the law will be stable, and can be relied upon by individuals when making decisions. The time open for the preparation of the new requirements was considered far from being satisfactory. There were also other principles mentioned, such as the prohibition on retrospective effect and the protection of vested rights, with the Constitutional Court referring to several cases of the ECJ and the Court of First Instance in connection with legal certainty (T-466/93, T-469/93, T-473/93, T-474/93, T-477/93, C-376/02, etc.) According to the Constitutional Court, the principles of legitimate expectation and legal certainty do not necessarily mean the same in domestic and Union law, although they are in alignment. The Court had discussed previously the following elements of legal certainty: clarity of the norm, the requirements related to the entering into force of the regulation, and the prohibition of retrospective effect. According to the Court, legitimate expectation as an element of the principle of legal certainty does not necessarily mean the protection of vested rights or the prohibition of retrospective effect, but it is a broader approach.

40 41

60/2009. (V. 28) AB határozat.

142/2010. (VII. 14) AB határozat.

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1 Incorporation of EU law

In Italy, the relationship between domestic law and the International legal system is regulated primarily by Articles 10, 11 and 117(1) of the Italian Constitution. These provisions lay down the conditions under which the sources of International law and EU law can become part of the Italian legal order. Article 10 provides that: ‘the Italian legal system conforms to the generally recognized principles of international law’. This provision proposes a system of ‘automatic adjustment’ reserved to the customary International law and reveals a dualistic approach, in which the two legal systems are both existing and valid, and formed by their own distinct rules tending towards self-sufficiency. On the basis of this provision, international customary law rule becomes part of the Italian order directly and acquires a higher value than the ordinary sources, without the need of any specific procedure to be followed. As to international treaty law, there are two specific procedures which allow its incorporation into domestic law: the ‘execution order’ and the ‘ordinary procedure’. The first one is a special procedure where the intention to implement the treaty is expressed in a law or in an administrative act without reformulating its rules. Generally, the ‘execution order’ is issued through an ‘authorization act to ratify’ the International treaty issued by the Parliament to the President of the Republic (Article 87, Constitution). In the past, the effectiveness of a treaty within the domestic law depended on the ‘execution order’ only, so that the International agreement took the same status in the hierarchy of sources of the act with which it was implemented. With the new text of Article 117 of the Constitution (as amended by Constitutional law No. 3/2001) things have changed. Indeed, the Constitution now provides that: ‘Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations’ [Article 117(1), Constitution].

This new formula explicitly requires national and regional lawmakers to comply with International obligations and EU legislation. The Constitutional Court has recognized (Constitutional Court, Decision No. 348/2007 and 349/2007) that International treaties are binding on primary sources, and thus they operate as ‘interposed norms’ in the judicial review, so that domestic laws in conflict with their content shall be declared unconstitutional. The second proceeding, namely the ‘ordinary’ one, is generally used when a treaty does not possess all the elements that enable its immediate implementation through the special procedure. In these cases an ordinary legislative process is applied, which leads to a law enacted by the Parliament. Italy complied with the EC/EU Treaties and their following amendments and agreements, such as the EU Treaty, with an ‘execution order’ issued through an

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ordinary law. This situation initially caused some problems with regard to the relationship between the two legal orders, since the Constitution did not provide a textual recognition of the Italian membership to European Union. Therefore, it could be argued that the relationships between domestic laws and EC sources were to be regulated under the ‘chronological principle’ (lex posterior derogat priori). As a consequence, new ordinary domestic laws could theoretically amend treaty rules (Constitutional Court, Decision No. 14/1964). However, the Constitutional Court, with a broad interpretation of Article 11 of the Constitution,1 recognized EC Treaty rules as having higher value than the ordinary sources in the hierarchy of norms, thus stating its competence to declare the unconstitutionality of any ordinary law in conflict with EC/EU rules. (Constitutional Court, Decision No. 232/1975). According to this interpretation, national laws in conflict with EC/EU treaty provisions could be declared unconstitutional for indirect violation of Articles 11 of the Constitution. However, the adaptation of the EU legislation into the national legal order depends on the type of EU act adopted. Along with the recognition of the constitutional value of the EU Treaties, the Constitutional Court also recognized the direct applicability of the EU regulations (Constitutional Court, Dec. No. 284/2007). Directives and decisions follow, instead, an ordinary procedure of adaptation. In such context, a special exception is represented by the self-executing directives that, under certain conditions, may have direct effect. The Italian legal order provides for a specific mechanism for the incorporation of EC/EU law: the so-called ‘Community law’ introduced with law No. 86/1989 and amended by law No 11/2005. This law is approved annually by the Parliament, following a Government proposal, for the implementation of the EC/EU obligations arising from non-transposed directives and ECJ judgments.



2 Consistent interpretation

The case law of Italian courts is theoretically very supportive on interpreting national law as far as possible in conformity with EU law, by giving full application to the doctrine of consistent interpretation. National courts in principle try to avoid an interpretation of the national provisions which may be in conflict with EU law, and this approach has been upheld by the Italian Constitutional Court in many cases. 1

Article 11 of the Constitution, which represents the legal basis for the implementation of EU law (and International law) in Italy, provides that ‘Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among Nations. Italy promotes and encourages international organisations furthering such ends’. Moreover, this provision must be read in conjunction with Article 117(1), as amended in 2001, which recognizes in general that the EU obligations constitute a limit to the discretionary legislative powers of the national authorities as well as of the regional and local authorities.

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In fact, the consistent interpretation doctrine has been referred to by Italian Courts mostly in cases not related to the environment. Moreover, with a specific regard to the interpretation of EU environmental law by the national courts, the way that the consistent interpretation doctrine is in practice applied by Italian courts has not always been fully consistent. For instance, in a case regarding the correct interpretation of the definition of waste contained in the Italian legislation implementing Directive 75/442, the Court of Cassation (criminal branch) called for ‘an interpretation of national law in line with the EU law principles and norms as interpreted by the ECJ’.2 In a different case, regarding the determination of whether to make a project for the construction of a plant for the disposal of dangerous waste subject to EIA procedures, the Council of State – the Italian Supreme Administrative Court – has held that the national legislation ‘must be interpreted in a logic connection’ with the pertinent norms of EU law, in that case represented by Directive 85/337.3 Finally, in another example, the Supreme Court of Cassation (criminal branch), in a case regarding the Italian legislation on waste management and its relationship with the provisions of the Regulation 1774/2002 laying down health rules concerning animal by-products not intended for human consumption, declared that all courts should give, as far as possible, ‘an interpretation of national law which is in conformity with EU law’. 4 A specific field, where the relevance of the consistent interpretation doctrine has been much discussed relates to the issuing of the authorisations for new wind power plants. Administrative courts have held that the procedures for the issuance of such authorizations must take into account and implement the ‘duty’ contained in Directive 2001/77 to reduce the regulatory and non-regulatory barriers and speed up the administrative procedures for the increase of electricity production from renewable energy. Such procedures should, therefore, be as simple and as speedy as possible. This reasoning has been directly inspired by the doctrine of consistent interpretation.5 Moreover, in the field of the consistent interpretation of criminal environmental law, Italian courts have consistently followed the Arcaro case law, according to which it is not possible to interpret EU directives so as to create criminal offences not provided for the national legislation.6

2 3

See Court of Cassation, Sec. III (criminal section), 4 Otober 2006, No. 37303.

See Council of State, Sec. V, 28 May 2004, No. 3451.

4 5

See Court of Cassation, Sec. III (criminal section), 24 March No. 12844.

See Regional Administrative Court (T.A.R.) Umbria, Sec. I, 3 May 2011, No. 124; see also Regional Administrative Court (T.A.R.), Sardegna, Sec. I, 14 January 2011, No. 37.

6

See Court of Cassation, Sec. III (criminal section), 30 September 2008, No. 41839.

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3 Direct effect and State liability

Italian courts have often recognized the applicability of the direct effect doctrine and have consistently applied provisions of the EU Directives, insofar they have been considered as having direct effect. However, the application of this doctrine has often been interconnected with the doctrine of the supremacy of EU law. In any case, both doctrines are given full effect into the Italian legal order pursuant to Article 11, in conjunction with Article 117(1), of the Italian Constitution. Italian courts commonly accept that, in line with the ECJ case law, provisions of Union law have direct effect, when they fulfil the two criteria of being ‘unconditional and sufficiently precise’. As to the understanding and application of the direct effect doctrine in practice by the Italian courts, this is often linked to the direct applicability of the Union law provision into the Italian legal order, without the need for the member states institutions to take any further measures. This is linked to the application of the ‘unconditional’ criterion, though in a minority of cases, Italian courts have stressed the ‘sufficiently precise’ criterion.7 The analysis of the relevant case law shows that the application of the direct effect doctrine is often connected with the doctrine of the supremacy of EU law. In most cases regarding environmental matters, where there is a potential conflict between EU law and national law, Italian courts often refer at the same time to the direct effect doctrine and the principle of the supremacy of EU law. The contact point between the two doctrines is represented by the question relating to the application of EU law under the line of reasoning of the ECJ Simmental II case. As it is well known, according to the ECJ, in order to nullify the unlawful consequences of a breach of EU law by a Member State, in case of a conflict among norms of the two competing legal orders, national courts must apply in its entirety EU law and set aside any provision of national law which is in conflict with it. In cases of a conflict between EU law and national law, Italian courts may be normally faced with one of the following two types of situations: a) the conflict between the norms may refer to a self-executing EU provision (a regulation or sometimes a directive, most notably in the case of the so-called ‘detailed directives’): in such a case the national court should, first of all, verify whether the EU norm may be directly applicable and, if so, should apply it directly and set aside the conflicting national provision;8 b) t he conflict may refer to a non-self executing provision of EU law. In such a case, the national court will not be allowed to set aside national law provisions and apply EU law directly. 7

See Council of State (Consiglio di Stato), Section IV, 23 February 2009, No. 1054; Constitutional Court (Corte Costituzionale) 28 January 2010, No. 28; Court of Cassation (Corte di Cassazione), Section III (criminal section), 16 January 2006, Order No. 1414; Council of State (Consiglio di Stato), Section IV, 19 February 2008, No. 529.

8

See Constitutional Court, 5 June 1984, No. 170 (Granital).

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In this context, one should clarify how Italian courts understand self-executing provisions of EU law. Originally, in the Constitutional Court approach, since the Granital case (Constitutional Court, Decision No. 170/1984)9 the self-executing character was limited to regulations and ECJ case law providing interpretation of unclear EU law provisions. Moreover, the direct applicability of such norms, has been often used by the Italian Constitutional Court to reinforce the application of the supremacy of EU law doctrine.10 As to EU Directives, the recognition of their self-executing character has always been limited by all Italian courts to the so-called ‘detailed directives’. In addition to that, only recently have some administrative courts provided a comprehensive and clear definition of self-executing directives. This is the case, for example, of the Regional Administrative Court of Campania that defined self-executing directives in some recent decisions (2011) in the following way: ‘The so-called detailed or self-executing Directives are legal acts containing detailed provisions, which by their nature leave a very limited discretionary power to the Member States, which have to implement them into their national legal order through a mere transposition’.11

The case law of Italian Courts has consistently stated that the possibility for national courts to set aside national law should be limited to the self-executing provisions of EU law, thereby including the provisions of EU environmental law directives. It seems that, along this line of reasoning, the concept of self-executing provisions of a directive is equivalent to the concept of provisions with direct effect. This is exemplified by the case law of the Court of Cassation (criminal branch) – the Italian Supreme Criminal Court – which has argued as follows: ‘The power/duty of the Court to set aside the national law in conflict with EU law is limited to the cases in which the latter is provided with direct effect’.12

The same line of reasoning is followed by the Council of State. To this effect, the Council of State stated that the possibility to set aside national legal provisions conflicting with Union law should be limited to ‘unconditional and sufficiently precise’ provisions of EU Directives, whose deadline for implementation has expired.13 9

Ibidem.

10 11

Ibidem. See also Constitutional Court, 23 April 1985, No. 113.

See Regional Administrative Court (T.A.R.) Campania, Salerno, Sec. I, 27 September 2011, No. 1584. See also Regional Administrative Court (T.A.R.), Campania, Salerno, Sec. I, 27 September 2011, No. 1586; See Regional Administrative Court (T.A.R.) Campania, Salerno, Sec. I, 27 September 2011, No. 1590.

12

See Court of Cassation, Sec. III (criminal section), 30 September 2008, No. 41839; see also Court of Cassation, Sec. III (criminal section), 13 May 2005, No. 17836.

13

See Council of State, Sec. IV, 19 February 2008, No. 529: ‘The direct application of the EU Directives into the national legal order of the Member States is conditioned by the fact that the deadline for their

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A recent decision of the Constitutional Court, namely Decision 28/2010, summarizes quite well the legal reasoning of the Italian case law on the direct effect doctrine and on the (constitutional) judicial review by stating that: 1) ‘the direct effect of a directive is allowed, according to ECJ and national case law, only if the Directive provides a right to individuals which can be relied upon in front of national courts against the member State’; 2) ‘the duty to apply the national law which is conflicting with the provision of a EU directive, not having direct effect, does not mean that such a provision may not be subject to a judicial review under EU law, which falls within the competence of the Constitutional Court, before which the national judge may raise a judicial review question with regard to the Italian Constitution for the alleged violation of Articles 11 and 117(1) of the Italian Constitution’.14

With this line of reasoning, the Italian Constitutional Court seems to confirm and restate its tendency to centralize as far as possible judicial review (constitutional judicial review) of the Italian norms implementing EU law provisions with no direct effect (often referred to as non-self-executing norms by Italian courts). National courts may, therefore, directly resolve the conflicts between Italian and EU norms only in the case of EU law provisions having direct effect. In the other cases, they should preferably raise a judicial review question to the Constitutional Court. This reasoning has been constantly applied by lower courts and the Italian Supreme Court of Cassation, both in civil and criminal cases regarding environmental matters, for instance in the field of waste law. In fact, in this field, there is a broad case law of the Supreme Court of Cassation (criminal branch), which addresses the compatibility of the Italian legislation on the definition of waste with Article 1 of the EC Directive 75/442. Part of the case law has recognised the direct effect of the relevant EU law provision and the duty of the national courts to set aside the national provision conflicting with the EU norm,15 whereas most of the case law has held the pertinent EU law norm as not being self-executing (rectius as not having direct effect), with the consequence that the national provision remains fully valid and should be applied by the national courts, until nullified by a decision of the Constitutional Court.16 The non-implementation of a directive also raises the problem of the lack of ‘inverse direct effect’, by which a public authority cannot invoke a directive against an individual and thereby require him to act in conformity with its provisions, as long as the obligations contained in the directive have not yet implementation has expired and that they contain detailed provisions’. 14 15

See also Constitutional Court, decisions No. 170/1984, No. 317/1996, No. 284/2007.

See Court of Cassation, Sec. III (criminal section), 17 January 2003, No. 2125 (Ferretti); Sec. III, 09/04/2002, No. 14762 (Amadori); Sec. III, 15 April 2003, No. 17656 (Gonzales et al.);.

16

See Court of Cassation, Sec. III, 29 January 2003, No. 4052 (Passerotti); Sec. III, 29 January 2003, No. 4051 (Ronco); Sec. III, 26 February, No. 9057 (Costa); Sec. III, 24 March 2003, No. 13114 (Mortellaro); Sec. III, 31 July 2003, No. 32235 (Agogliati et al.); Sec. III, 19 October 2003, No. 38567 (De Fronzo).

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been implemented in the national legal order. In this context, we can mention a decision of the Regional Administrative Court of Veneto.17 In that case, the Administrative Court stated that a Municipality cannot apply the provisions of a directive, when it has not been implemented yet into the Italian legal order or it is not fully in force. In this sense, any anticipated application of the norms of a directive seems to be prohibited as going beyond the powers of the national administrative authorities. The question of State liability due to the failure to implement a EU directive has rarely been raised in front of Italian courts. Moreover, the right to compensation due to the State failure to transpose EU directives has been recognized only gradually by the Supreme Court of Cassation.18



4 Procedural barriers

EU principles often leave a large degree of national autonomy, when it comes to procedural rules. On this basis, in some cases some national procedural rules (e.g. limitation periods, standing) have been held contrary to EU principles. Once again with regard to the issuance of authorisations for building new wind power plants, Italian courts have in several cases considered unlawful the behaviour of national authorities which suspended or delayed the issuance of the authorization for new wind power plants beyond the maximum duration period of 180 days, as prescribed in the administrative procedure in question by Legislative Decree 387/2003. Such decisions have been based on the reasoning that such delays were not in conformity, i.a., with the principles and the objectives of EU law, in particular those contained in Article 6 of Directive 2001/77, which calls for ‘reducing the regulatory and non-regulatory barriers to the increase in electricity production from renewable energy sources’ as well as for ‘streamlining and expediting procedures at the appropriate administrative level’.19 17

See Regional Administrative Court (T.A.R.) Veneto, Venezia, Sec. III, 10 March 2005, No. 850. This case dealt with the claims raised by some citizens against the decision of the Municipality of Padua to adopt stricter limits to the circulation of vehicles than those established by EU law as implemented into national law. The Municipality based its decision on a EU directive on air emission limit values that was not fully in force at that time.

18

The first cases in which was recognized the right to compensation by the Italian Court of Cassation date from 2003, regarded transposition of Directive 82/76/EC, and the compensation for anyone attended medical specialization courses in the time before its implementation. See Court of Cassation, Sec. III (civil section), 1 april 2003, n. 4915; Court of Cassation, Sec. III (civil section), 16 May 2003, n. 7630. See Court of Cassation, Sec. III (civil section), 17 May 2011, n. 10813. An also: Tribunal of Genova, Sec. II, (civil section), 1 September 2005; Tribunal of Catania, Sec. I, (civil section), 28 February 2004, No. 734. Tribunal of Catanzaro, 20 April 2009.

19

Constitutional Court, 1 April 2010, No. 124; Regional Administrative Court (T.A.R.) Molise, 29 November 2006, No. 984; Regional Administrative Court (T.A.R.) Calabria, Catanzaro, Sec. C, 24 August 2011, No. 1144.

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5 Constitutional issues

Beyond the issues highlighted above with regard to the incorporation of EU law into the national legal order, some cases decided by the Constitutional Court reflect a certain tension between the implementation of EU environmental laws and principles on one side, and national constitutional principles on the other. One of these concerned the building and localisation of new renewable energy facilities in several Regions.20 This issue refers to the limits provided by the applicable Regional laws for the development of new renewable energy facilities. These limits are finalized to the highest level of protection of the environment (landscape, habitats, wild birds, cultural and environmental heritage) but ‘shall be balanced with the constitutional principle of private economic initiative and the EU principles of promotion of renewable energy’.



6 References to the CJEU

From January 2000 to January 2012, the references for preliminary rulings submitted by Italian courts have been 17, mostly raised by courts of first instance of administrative and civil jurisdiction. Waste has been the key issue of most of these cases. In contrast, the Italian Constitutional Court has always been quite reluctant to make use of the preliminary ruling procedure. In fact, it has submitted a reference for a preliminary ruling only once, in a recent case but never with regard to environmental matters.21 In a recent environmental case, the parties of the proceeding asked for a reference to ECJ for a preliminary ruling, but the Constitutional Court considered it ‘not necessary when the meaning of the EU law provision is evident, also having been clarified by the ECJ, and is needed just when a interpretative question exists’.22



7 Conclusion

Italian Courts in principle recognise and apply the direct effect and the consistent interpretation doctrines, although the national case law is not always very clear and consistent in this regard. The direct effect is often applied in connection with the principle of the supremacy of EU law, with regard to self-executing provisions of EU law. A problem remains with the not always 20

See Constitutional Court, 11 November 2011, No. 308; Constitutional Court, 11 February 2011, No. 44; Constitutional Court, 26 November 2010, No. 344; Constitutional Court, 6 May 2010, No. 168; Constitutional Court, 1 April 2010, No. 124; Constitutional Court, 26 March 2010, No. 119; Constitutional Court, 29 May 2009, No. 166.

21

See Constitutional Court, 12 February 2008, No. 103.

22

See Constitutional Court, 28 January 2010, No. 28.

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completely unambiguous interpretation of the boundaries of the concept of selfexecuting EU norms. Moreover, the Constitutional Court seems to give itself an active but overstretched role in the (constitutional) judicial review of EU law provisions with no direct effect. This, in turn, seems to influence the behaviour of all Italian courts, which are not applying to the maximum extent possible the concrete application of the direct effect and the consistent interpretation doctrines.

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The Netherlands Jan H. Jans

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1 Context1

The case law of the Court of Justice on direct effect goes back to the very beginnings of Union law. Indeed, it was a Dutch case that was at the very cradle of the principle’s development, namely Van Gend & Loos.2 In this case, Van Gend & Loos argued before the Dutch court having jurisdiction in revenue cases that an administrative decision imposing certain import duties on the company was unlawful in the light of the ban on customs duties and charges having equivalent effect. The fundamental question at issue in the case was whether Union law confers rights on individuals, and whether they can rely upon these rights before a national court. In its judgment the Court observed that Union law is intended to confer rights on individuals independently of the legislation of Member States. It, thus, acknowledged the possibility of relying on Union law within the national legal order. What is particularly striking is that the Court held this possibility to be independent of the law of the Member States. In this sense, Union law is understood as an ‘independent legal order’, whose legitimacy is based on that same legal order.3 In this view, national constitutional provisions which make it possible to apply international law within the national legal order play a facilitating rather than a fundamental role. Dutch case law confirms this. Articles 93 and 94 of the Dutch Grondwet (Constitution) provide for the application of international law in the Netherlands. They state: ‘Article 93: Provisions of treaties and of decisions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published.’ ‘Article 94: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of decisions by international institutions.’

Dutch courts have accepted, following Costa v ENEL, that these articles are in fact irrelevant as regards the direct effect of Union law in the Dutch legal order. The Raad van State (Council of State) observed in Metten that the principle of primacy, as developed by the Court of Justice in Costa v ENEL and Simmenthal, 1

National case law before 2006 is in general not being taken into account. See for that J.H. Jans, ‘Directe werking van Europese milieurichtlijnen in de Nederlandse rechtspraak’, in: Rechtsbescherming in het milieurecht (Red. Damen en Uylenburg) (Zwolle 1990), p. 81-102; J.H. Jans, Jans, ‘Legal Protection in European Environmental Law: An Overview’, in Han Somsen (ed.), Protecting the European Environment: enforcing EC environmental law (Blackwell 1996), p. 49 et. seq.; Chapter II of the second edition of J.H. Jans, European Environmental Law (available at SSRN: http://ssrn.com/abstract=1276169). All references in the case law below with a so-called ‘LJN’ can be found, in Dutch, at www.rechtspraak.nl.

2 3

Case 26/62 Van Gend & Loos [1963] ECR 1.

Cf. Case 6/64 Costa v Enel [1964] ECR 585.

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also applies to provisions of Union law that are not directly effective. 4 It, thereby, implicitly ignored the requirement of Article 94 of the Dutch Grondwet that only ‘provisions of treaties that are binding on all persons’ may be relied upon.5 Even clearer are the words of the Dutch Hoge Raad (Supreme Court). It observed that the direct applicability of Union regulations implies that they enter into force and are applied, either to the benefit or to the disadvantage of individuals, without any further measure of incorporation into national law. A regulation adopted on the basis of the TFEU has force of law and is directly applicable in every Member State pursuant to that Treaty and not pursuant to any national measure. In its view, that force of law is not based on the system of Articles 93 and 94 of the Grondwet.6

However, when an individual invokes an international environmental treaty or the European Convention of Human Rights, it will be assessed whether their provisions meet the standards of invocability of the Dutch Constitution, which is arguably a tougher threshold to be passed than the conditions for direct effect of the CJEU. In this respect, it is remarkable to note that in a recent judgment the Council of State ruled that, since this provision according to the CJEU’s Slovak Bears judgment 7 is not directly effective, it is neither directly effective as a matter of national law, because it does not meet the standards of the aforementioned provisions in the Grondwet.8



2 The Relationship between Direct Effect and Consistent Interpretation Direct effect and consistent interpretation must be regarded as instruments for solving problems and tensions between Union and national law. However, it is legitimate to consider whether either of the two judicial instruments ranks above the other. Are national courts first expected to try to find a solution by means of consistent interpretation and only if they fail in this proceed to apply directly effective norms? There is a lot to be said for national courts first attempting to resolve disputes by means of interpretation. As a judicial instrument it is less invasive, more finely-tuned, and more consistent with the idea of subsidiarity. Moreover, it does indeed have a reconciliatory effect in a situation involving a conflict. The case law of the Court of Justice, the Dominguez case in particular, also exhibits a preference for consistent interpretation.9 4 5

Council of State 7 July 1995 Metten AB 1997, 117.

Emphasis added.

6 7

Dutch Hoge Raad 2 November 2004, LJN: AR1797.

Case C-240/09 Lesoochranárske zoskupenie VLK, judgment of 8 March 2011.

8

Council of State 29 July 2011, LJN: BR4025.

9

Case C-282/10 Dominguez, judgment of 24 January 2012, para. 23.

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Administrative courts in the Netherlands have, even well before the Dominguez judgment of the CJEU, fairly consistently expressed a preference for interpretation in conformity with EU law. The default formula is that ‘before the Council of State proceeds to the question whether, in the present case, Article [X] of Directive [XX/X] can be invoked directly, it must be examined whether the applicable national law can be interpreted in conformity with the directive.10



3 Consistent Interpretation

According to the Court of Justice, national law must, as far as possible, be interpreted in conformity with EU law. The doctrine as such has been internalised and accepted by the Dutch courts. There are numerous judgments in environmental law alone to illustrate this. A recent example is a judgment of the Council of State in which it interpreted the national provision on access to information in the light of Directive 2003/4.11 The result was that an existing exception for access in Dutch law had to be interpreted in a more restrictive manner than usual.

However, the recent case law of the CJEU regarding the duty to interpret national law as far as possible in the light of Article 9(3) of the Aarhus Convention seems to cause some problems.12 In a couple of cases, some of them decided after the Slovak Bears case, the Council of State never considered in so many words the duty of Aarhus consistent interpretation. In the Buitenring Parkstad Limburg case the Council of State explicitly referred to the Slovak Bears case with respect to the Court’s decision that Article 9(3) does not have direct effect, but it failed to mention or to consider the duty of consistent interpretation.13 ‘As far as possible’ According to the Court of Justice, national law must, as far as possible, be interpreted in conformity with EU law. Courts are required to be active, innovative and, if necessary, to break new ground. However, though they are required to do their best, this requirement is not without limits and there is no question of their having to produce an interpretation that is consistent with European law come what may. Courts are not required to achieve the impossible. For the average national court the obligation to interpret national law consistently is often easier said than done. This is especially true, because the Court of Justice has not indicated what exactly it means by ‘as far as possible’. Judges 10

E.g. Council of State 7 May 2008, LJN: BD1090. The case involved an interpretation of Dutch nature conservation law in the light of the Habitats Directive.

11

Council of State 3 June 2009, LJN: BI6049.

12 13

Case C-240/09 Lesoochranárske zoskupenie VLK, judgment of 8 March 2011.

Council of State 29 July 2011, LJN: BR4025.

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always have to interpret the law, that is their job. The addition of the qualification ‘as far as possible’ must, therefore, imply that judges are required to make an additional effort in order to arrive at an outcome that is consistent with European law. Courts are not required to do the impossible. As the Court of Justice has repeatedly stated, the requirement must be exercised ‘within [the national court’s] jurisdiction’.14 According to consistent case law of the Council of State consistent interpretation is only possible ‘within the framework of the regulation’ (‘binnen het kader van de wet’).15 This seems to be more restricted than the formula used by the European Court: ‘for matters within its jurisdiction’. The concept ‘within the framework of the regulation’ prohibits a contra legem application of the law, according to the Council of State. In this context I would like to refer to a judgment of the Council of State on the question to what extent the location of GMO experiments must be made available to the public.16 The Council of State found that the national law required this information to be kept secret, while the relevant directive requires this information to be made available. In this context the Council of State ruled that is was impossible to interpret national law consistent with the directive.17 In the meantime this has become standard case law of the Council of State.

Nor does the Council of State allow the doctrine of consistent interpretation to broaden a prohibition if this not foreseeable by those who are subject to that prohibition.18 The case concerned Dutch conservation law and its compatibility with the Habitats Directive. As with most environmental law the general regulatory framework is as follows: certain activities are prohibited unless the individual has applied for a permit/license and that permit/license has been granted. To broaden such a prohibition to other activities in order to have national law to comply with the Habitats Direct is in conflict with the principle of legal certainty if this interpretation is not foreseeable for those who are the addressees of the prohibition.

In other words, an existing obligation under national environmental law can be modified via consistent interpretation to the standards of a European directive. But a non-existing obligation cannot be created by consistent interpretation. Consistent interpretation presupposes the existence, in national law, of certain permit-requirements. If national law is silent, there is ‘nothing’ which can be interpreted at all. 14 15

See, for example, Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835.

Council of State 29 May 2001, AB 2001/349; RAwb 2001, 98.

16 17

Council of State 25 November 2009, M en R 2010, nr. 43.

Cf. Case C-105/03 Pupino [2005] ECR I-5285, para. 47; Case C-212/04 Adeneler [2006] ECR. I-6057.

18

Council of State 28 February 2007, LJN: AZ9494.

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Another example that shows the limits of the doctrine of ‘consistent interpretation’, is the following judgment of the district court of Utrecht.19 This case concerned once again Dutch conservation law and the Wild Birds Directive. Regional authorities had granted permission for the ‘gassing’ of Canadian geese, because of the damage they cause. After a careful analysis of the Dutch legislation the court argued that there was no explicit mentioning of ‘gassing’ as a legitimate method to capture the birds and that therefore the national legislation did not provide a sufficient legal ground to allow ‘gassing’. The regional authority’s argument for a consistent interpretation of Dutch law with the directive was subsequently rejected. According to the district court the Wild Birds Directive explicitly requires in Article 9 that the means, arrangements or methods authorised for capture or killing must be specified. And as ‘gassing’ was not mentioned in Dutch law this method cannot be used, although the method as such does not seem to be problematic in the light of the directive. The basic rule applied by the district court in this case seem to be that one cannot create via consistent interpretation a legal basis for decisions of public authorities.

However, if there is a ‘connecting point’ in national law, the consequences of consistent interpretation can be far reaching as is shown in the following example.20 A ruling on a permit issued under Article 23 of the Besluit genetisch gemodificeerde organismen (Decree on Genetically Modified Organisms) illustrates the potentially far-reaching scope of ‘reading the directive into national legislation’. Greenpeace Nederland argued among other things that a permit granted to Advanta Seeds for small-scale tests with flowering GM oil-seed rape was incompatible with Article 4 of Directive 2001/18/EC on the deliberate release of GMOs into the environment. The Council of State did not, in this case, address the question of whether Article 4 of the directive had direct effect, as it came to the conclusion that even if there was an issue of incorrect implementation national law could be interpreted in accordance with the directive. It subsequently concluded: ‘that interpretation of Article 26 of the Wet milieugevaarlijke stoffen (Environmentally Hazardous Substances Act) and Article 23 of the Decree on Genetically Modified Organisms in accordance with the directive implies that in light of the aims of Directive 2001/18/EC, any negative consequences of the introduction must be assessed carefully on a case-by-case basis. In the Council of State ’s opinion, the criteria defined in Annex II of the directive should be observed whenever an environmental risk assessment is drawn up. The respondent argued at the hearing that Annex II of the directive is actually used when assessing applications. As the Dutch law only spoke in general terms of the ‘protection of man and the environment’, the 19

District Court Utrecht 3 June 2010, LJN: BM6676.

20

Council of State 28 July 2004, LJN: AQ5732.

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Dutch court more or less read into that law the rather precise requirements of Annex II of the directive.

Mandatory duties and alike Consistent interpretation seems unable to produce an extension of the assessment framework of national law where the assessment framework provided for by the national statutory system is exclusive. The Dutch case law below seems to be at odds with recent case law of the Court of Justice. In one case the CJEU required consistent interpretation and in another a national public authority is ‘carrying out its mandatory duty’ under national law.21 So even in the case that national law does not provide any discretion for the public authority to take a provision of a directive into account, the duty of consistent interpretation still prevails. The Court’s judgment is, however, unclear on how this duty relates to it’s case law stating that, in view of the principle of legal certainty, a contra legem interpretation by the national court is not required under this doctrine. Illustrative in this context is a decision of the Council of State on possible consistent interpretation of the Dutch environmental legislation in the light of Article 9(4) of the IPPC Directive, at least in relation to agricultural installations.22 The case concerned an environmental permit granted for the keeping of several thousand chickens and several hundred pigs. A local resident contested the permit, relying among other things on Article 9(4) of the IPPC Directive. The ammonia deposits made possible by the permit were allegedly incompatible with the directive’s requirement that ‘best available techniques’ should be applied. The court, having established that the IPPC Directive did apply in the case, first examined whether the Dutch environmental legislation could be interpreted in conformity with the directive, in other words whether the assessment framework of the IPPC Directive could be ‘read into’ the existing Dutch environmental legislation. However, in this case the legislation allowed the authorities no discretion whatever to refuse the permit or to apply the more stringent BAT requirements of the directive. Under the national legislation a permit to keep livestock could not be refused for reasons connected with ammonia deposits if the deposits that might be left on the nearest area sensitive to acidity did not exceed the value set by law. In this case, the ammonia deposits remained below the statutory limit and so the permit had to be granted. As regards the possibility of interpreting the law in conformity with the directive, the Council of State observed that the national legislation in question constituted the ‘exclusive assessment framework’ for assessing the ammonia deposits from livestock farms so that there was no room to apply insights of environmental hygiene connected with ammonia deposits other than those contained in the legislation. The conclusion was therefore inevitable: the 21

Case C-53/10 Mücksch, judgment of 15 September 2011.

22

Council of State 13 November 2002, M en R 2003, nr. 39.

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national legislation allowed ‘no room to prescribe emission limit values based on best available techniques’. Another example of a statutory system for which the assessment framework cannot be extended by means of consistent interpretation concerns the granting of building permits. Article 44(1) of the ‘old’ Woningwet provided: ‘A normal building permit may only and must be refused if: [...].’ There follows an exhaustive list of grounds for refusing a permit. In my view the exhaustive, mandatory system of the Woningwet precludes extension by the assessment framework of, for instance, the IPPC Directive or the air quality directives. Consistent interpretation cannot change an exhaustive system into one that is non-exhaustive. In fact, this would amount to a contra legem interpretation of Article 44, as ‘may only and must be refused’ would then have to be interpreted as ‘may, i.a., be refused’. Such an interpretation would be unacceptable in the light of the principle of legal certainty and would almost certainly not be allowed.

Where it is impossible to apply consistent interpretation, all that remains is the direct effect of European law. This is also standard case law of the Council of State. Inverse consistent interpretation? Administrative authorities are not permitted to apply directives that have not been implemented when this essentially amounts to creating obligations for individuals. The case law of the CJEU on ‘no inverse direct effect’ is rather consistent in this respect. It would then seem contradictory to allow consistent interpretation where this would in fact benefit the administration to the detriment of the individual. The Court of Justice’s decision in Arcaro is often raised in support of this view.23 It should, however, be remembered that consistent interpretation is ultimately about applying national law. And that consistent interpretation, where it benefits the administration, is only possible, if the national legislation provides sufficient basis for this. This is why it seems unnecessary to rule out, a priori, consistent interpretation to the advantage of the administration. Clearly, the general principles of law, and in particular the principle of legal certainty, will figure even more prominently in such cases. Recently, the CJEU seems to have endorsed this view in the German Mücksch case.24 The Dutch case law is consistent with that judgment. There are several examples of decisions handed down by Dutch administrative courts from which it can be implied that interpreting in light of the wording and purpose of a directive where the administration benefits cannot be altogether ruled out. 23

Case C-168/95 Arcaro [1996] ECR I-4705. Cf. also Dutch Council of State 28 February 2007, LJN: AZ9494, where the Council of State did not accept creating ‘unforseeable’ obligations by way of consistent interpretation.

24

Case C-53/10 Mücksch, judgment of 15 September 2011.

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For example, it emerged from a decision of the Council of State that Directive 2001/18 on the deliberate release into the environment of genetically modified organisms had not been transposed into Dutch law, specifically the (now repealed) Wet milieugevaarlijke stoffen (Environmentally Dangerous Substances Act; Wms).25 Under that Act, authorisation had been granted for small-scale trials with flowering genetically modified rape. Pursuant to the second paragraph of Article 26 of the Act, the authorisation could only be refused ‘in the interest of the protection of man and the environment’. According to the court this statutory framework provided sufficient basis for the court to interpret in the light of the directive. The obligations set out in the directive, including the precautionary principle and the duty to carry out a specific environmental risk assessment in accordance with the criteria of Annex II of the directive, were ‘read into’ the national law. Clearly, this means that applicants are confronted with obligations arising out of a directive that has not been transposed.

The fine line between inverse consistent interpretation and inverse direct effect A most interesting, but complex, case deals with the sometimes rather fine line between inverse consistent interpretation and inverse direct effect.26 The case concerned a refusal for a permit under the Management Water Works Act to establish a wind farm in the exclusive economic zone (EEZ). The grounds for refusal were related to the Wild Birds and Habitats Directive. At that time Dutch Nature Conservation law was not applicable in the EEZ. One could argue therefore, that at that time the Wild Birds and Habitats Directives were not implemented properly as far as it concerns the EEZ. Under Article 3, second paragraph of the Management Water Works Act the permitting authority (the minister for Transport and Waterworks) should take into account the protection of the water works associated interests. With respect to this rather broad competence the minister issued ‘policy rules’ in which the minister tried to comply with the EU directives as far as possible. Policy rules are binding in the sense that public authorities have to apply them, but do not have direct external binding effect on individuals. However, they will be confronted with the effects when applying for a permit. In this case, the applicant argued that applying the policy rules amounts to inverse direct effect of the Wild Birds and Habitats Directives. The district court did not agree. Policy rules must be understood as setting a general rule for weighing interests, determining facts or interpreting statutory regulations in the exercise of an existing competence of a public authority. In other words, policy rules make it possible that an existing competence will be applied consistent with a directive.

25

Dutch Council of State 28 June 2004, M en R 2004/10, nr. 104.

26

District Court Rotterdam 30 December 2010 LJN: BO9530.

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4 Direct Effect

‘Unconditional and sufficiently precise’ Whether provisions of Union law are directly effective will depend on whether they are found to be unconditional and sufficiently precise. Every now and again judgments can be found where the Council of State finds a provision of a directive that is not ‘unconditional and sufficiently precise. The Council of State found that Article 3 of Directive 2006/11 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community did not meet the required conditions for being directly effective.27 Article 3 reads: ‘Member States shall take the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of Annex I, hereinafter referred to as “List I substances”, and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of Annex I, hereinafter referred to as “List II substances”, in accordance with this Directive.’

However in the Kraaijeveld en Waddenzee cases the European Court acknowledged that individuals may also rely on provisions that allow discretion and that the national court must then examine whether the national authorities have stayed within the limits of the law when exercising their powers.28 This case law on the Kraaijeveld doctrine is accepted and applied by the Council of State without reservation.29 Article 25(4) of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms does leave the authorities a certain margin of appreciation. Therefore the provision can be relied upon before the national court, the Council of State ruled.30 With respect to confidentiality this provisions reads: ‘In no case may the following information when submitted according to Articles 6, 7, 8, 13, 17, 20 or 23 be kept confidential: - general description of the GMO or GMOs, name and address of the notifier, purpose of the release, location of release and intended uses; - methods and plans for monitoring of the GMO or GMOs and for emergency response; - environmental risk assessment. Also with respect to Article 9(4) of the IPPC Directive the Council of State ruled 27

Council of State 23 December 2009, LJN: BK7483.

28

Case C-72/95 Kraaijeveld [1996] ECR I-5403 and Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee [2004] ECR I-7405.

29

Cf. Council of State 29 April 2009, LJN: BI2684 (the referral for a preliminary ruling of Case C-165/09).

30

Council of State 16 July 2008, LJN: BD7384.

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that the limits of the discretion enjoyed by the Member States in that provision are unconditionally and sufficiently clear to be relied upon before the national court.31

In a few cases, mainly at district court level, the Kraaijeveld doctrine is applied incorrectly.32 In a Janacek-like case parties wanted to rely upon Articles 7 and 8 of Directive 96/62, as well as Articles 4 and 5 of Directive 1999/30. The Den Haag district court ruled that these provisions were not precise enough concerning the measures to be taken and that the authorities enjoy discretion in that regard. They concluded that these provisions are not directly effective. The district court failed to see the difference between the obligation to draw an action plan as such and the obligation to take concrete measures to be taken.

Direct effect and Marks & Spencer There has been extensive discussion in English and Dutch academic writing and practice of the question whether, where the legislature has implemented Union law properly but the legislation has subsequently been improperly applied by national administrative authorities, it is in fact possible to rely at all on directly effective provisions of a directive. Originally, the Dutch courts took the view that that where a directive has been properly implemented it achieves its effect for individuals through the implementing measures taken by the Member State in question. Only where a directive has not been properly implemented within the time limit for implementation can an individual rely directly on that directive, and then only on the provisions that are unconditional and sufficiently precise.33 However, the ECJ ruled in Marks & Spencer otherwise and found that even when implemented correctly individuals can rely on its provisions.34 In its ruling of 5 September 2007, the Council changed its case law.35 The case concerned the implementation in the Netherlands of WEEE Directive 2002/96. The Council of State ruled: ‘According to established case law of the Court of Justice, a distinction should be made between the correct and the incorrect transposition of directives, to determine the effects of the directive. In case of correct transposition, private parties perceive the effects of a directive in the application of the national legislation into which the Member State has transposed the directive. Only if a directive, after the prescribed deadline, has not been transposed 31

Council of State 20 September 2006, LJN: AY8488.

32

Rb. ’s-Gravenhage 27 April 2006, LJN: AY6653. Upheld by the Council of State albeit on different grounds 16 July 2008, LJN: BD7384. Cf. for a similar restrictive approach: District Court Utrecht 22 November 2006, AB 2007/171.

33

Cf. Dutch Council of State 26 January 2005, LJN: AS3915 and 21 March 2007, LJN: BA1186.

34 35

Case C-62/00 Marks & Spencer [2002] ECR I-6325.

As translated by R. Ortlep & M.J.M. Verhoeven, ‘The Struggle of the Dutch Council of State in Applying Marks & Spencer’, REALaw 2008/1, p 91-100.

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into national law at all, or not in time, or not correctly, can a private party directly rely on that directive, and even then only on those provisions that are unconditional and sufficiently precise. (Case 8/81 Becker [1982] ECR 53). The same is true when complete application of the directive is not actually ensured. (Case C-62/00 Marks & Spencer [2002] ECR I-6325, par. 26-27). According to the Court’s established case law, it is up to the Member States’ national courts to ensure the legal protection that individuals derive from the direct effect of Community law. (Case C-312/93 Peterbroeck [1995] ECR I-4599, par. 12). The foregoing shows, that the directly effective provisions of directives can only be relied upon in case of incorrect transposition or when complete application of the directive concerned is not actually ensured. It has not been found that the IPPC Directive, insofar as relevant in this case, has been incorrectly transposed into the Dutch Environmental Management Act. Moreover, the arguments brought forward by the appellants provide insufficient reasons to find that full application of the directive is not actually ensured. Therefore, a direct appeal on the provisions of the IPPC Directive is not appropriate in this case.’36

The Inter-Environnement doctrine It is important to note that individuals can rely upon directly effective provisions of a directive only after expiry of the period for transposition. In the InterEnvironnement judgment, however, the Court of Justice introduced an important nuance.37 Having acknowledged the basic rule that Member States cannot be faulted for not having transposed a directive into their internal legal order before expiry of the transposition period, it went on to observe that it followed from Article 4(3) TEU in conjunction with Article 288 TFEU ‘that during that period they must refrain from taking any measures liable seriously to compromise the result prescribed.’ The Dutch Council of State has applied this rule – and therefore seems to have accepted that it is directly effective – in many cases involving the Habitats Directive.38 It observed that the principle of Union loyalty meant that, in a case like the one before it, Member States and their national authorities must refrain from activities which could seriously jeopardise the result prescribed by the directive during the period between the transmission of a list as referred to in Article 4(1) of the directive and adoption of the list by the Commission. As the government had not taken this into account in its decision-making, the decision was annulled for lack of due care in its preparation. 36 37

Case C-62/00 Marks & Spencer [2002] ECR I-6325.

Case C-129/96 Inter-Environnement [1997] ECR I-7411 and Case C-212/04 Adeneler [2006] ECR I-6057, stating that this obligation applies just as much to national courts as to all other authorities.

38

E.g. Dutch Council of State 11 July 2001, MR 2001/38.

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It is not quite clear on which level the ‘not seriously to compromise’ test has to be applied. Not seriously to compromise the directive ‘as such’ or does it suffice if the national measures seriously compromise an individual and specific obligation of the directive? Dutch courts seem to endorse the latter view.39 Horizontal or third-party effect Directives do not produce horizontal or third-party effects in the sense that, in the absence of national implementing measures, they directly result in obligations for private individuals. 40 In short, an individual can invoke a directive visà-vis national authorities but not vis-à-vis another individual. This doctrine has been applied consistently in Dutch courts. 41 Apart from lacking horizontal effect, a directive a fortiori also lacks ‘inverse direct effect’. 42 In other words, a public authority cannot invoke a directive against an individual and thereby require him to act in conformity with the directive, where the obligations contained in the directive have not yet been implemented in the national legal order. 43 If the Member State is at fault, this cannot be held against the individual. Direct effect and Wells There are other ways in which environmental directives can produce indirect horizontal effects. Thus, where an interested third party invokes a directly effective provision of an environmental directive, for example in an appeal against the grant of an environmental permit, a successful appeal would mean that the permit-holder would be placed in a less favourable position, because his permit would be void. There is nothing special about this, because a permit that contravenes national environmental law can be annulled. The Court of Justice addressed and accepted this in the Wells case. 44 That ‘third parties’ (including interest groups such as environmental organisations) can rely on directly effective provisions of European environmental law before administrative courts, in addition to the applicant, is generally recognised in Dutch administrative law. 45 Successful reliance results in annulment of the contested decision. 39

Zie bijvoorbeeld Council of State 26 January 2005, LJN: AS3915. See also Case C-138/05 Stichting ZuidHollandse Milieufederatie, [2006] ECR I-8339. And for the final judgment in this case CBB 4 May 2007, LJN: BA4402.

40 41

Case 152/84 Marshall I [1986] ECR 737.

Dutch District Court Assen 11 April 1989 Drenthe Crows [1989] M&R 372-374.

42

Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545, in particular para. 19. Cf. also Case 80/86 Kolpinghuis [1987] ECR 3969.

43

Council of State 8 February 2010, LJN: BL4179. Cf. for a similar judgment with respect to the Habitats Directive, Council of State 31 March 2010, LJN: BL9657.

44

Case C-201/02 Wells [2004] ECR I-723. Confirmed in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee [2004] ECR I-7405.

45

Cf. J.H. Jans, R. de Lange, S. Prechal, R.J.G.M. Widdershoven, Europeanisation of Public Law (Groningen 2007), in particular Chapter III.

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Application of the Costanzo doctrine? From the case law of the European Court of Justice, in particular Costanzo, it emerges that there is another side to the possibility of invoking directly effective European law before a national court. 46 Namely, the fact that administrative authorities are then also required to apply that same directly effective European law. According to the ruling of the ECJ in Costanzo, the doctrine of direct effect also implies that all organs of the administration, including decentralised authorities, are obliged to apply directly effective provisions. 47 Administrative authorities have an independent responsibility to ensure the fulfilment of Union law obligations. A good example is a decision of the Council of State in a case involving Directive 2000/53 (end-of-life vehicles). The Council of State required the provincial authorities, in their decision-making, to take account of whether the legislation adopted in implementation of Directive 2000/53 was consistent with Article 35 TFEU. By simply assuming that the implementing legislation adopted by central government was lawful, the provincial authorities had acted without due care. It is hard to imagine a clearer illustration of decentralised public authorities’ own responsibility. 48

The Costanzo case law is, however, not quite clear how this duty relates to what is described earlier as ‘inverse direct effect’. To illustrate this the Boxtel case, a judgment of the Council of State, has to be mentioned. 49 The case concerned the refusal by the municipal executive of Boxtel to grant an environmental permit for a pig and cattle farm. The refusal was based on the increase of ammonia deposits in a Habitats Directive area. In other words, the local authorities felt obliged to refuse a permit to ensure that the Habitats Directive would not be infringed if it were granted. However, the legislation provided that, as regards decisions concerning an environmental permit for the establishment or change of a livestock farm, the competent authority should only determine the consequences of ammonia emissions from the animals’ quarters on the farm in the manner provided for by law. In this case it was clear that the system of the law allowed no room to refuse the permit. As regards the question whether the refusal could not then be based on the Habitats Directive the Council of State observed: ‘Given the wording of the law it was also not possible to interpret the law in the 46

Case 103/88 Fratelli Costanzo [1989] ECR 1839, para. 31, later confirmed in Case C-198/01 Consorzio Industrie Fiammiferi [2003] ECR I-8055.

47

Case 103/88 Fratelli Costanzo [1989] ECR 1839.

48

Dutch Council of State 26 November 2003, M en R 2004/4, nr. 39.

49

Council of State 7 December 2005, M en R 2006, nr. 19. Cf. also Council of State 1 February 2006, LJN: AV0959.

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light of the wording and purpose of Article 6(3) of the Habitats Directive and base the contended decision on this interpretation. Nor could the respondent directly rely on Article 6(3) of the directive vis-à-vis the appellant as a ground for refusing the permit, as no private individual has requested that in this case. It is established case law of the Court of the Justice of the European Communities that a directive cannot of itself impose obligations on individuals and that the provision of a directive cannot as such be relied upon vis-à-vis an individual (Judgments of 26 February 1986 Marshall, C-152/84 [1986] ECR 723; 14 July 1994 Faccini Dori, C-91/92 ECR I-3325 and 7 January 2004 Wells, C-201/02 […]) This is precluded by the principle of legal certainty.’ The same problem can also be illustrated by referring to two judgments of the Dutch Council of State relating to Article 3(4) of Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community.50 This provision read: ‘in the case of existing discharges of any such substance into the waters referred to in Article 1, the dischargers must comply with the conditions laid down in the authorisation within the period stipulated therein. This period may not exceed the limits laid down in accordance with Article 6(4)’. According to the Council of State, this provision is directly effective in the national legal order. Authorisations to emit substances on the ‘black list’ that had been issued for an unlimited period were therefore contrary to Article 3(4) of the directive and were consequently revoked. However, in a subsequent case where a public authority applied the rule in Costanzo and issued an authorisation for a limited period of time, the Council of State annulled the decision, arguing that this would imply the horizontal direct effect of a directive not properly transposed into national law.

Administrative authorities may not themselves refuse a permit as being contrary to the Habitats Directive unless a third party opposes the granting of the permit. The administrative authority must make its judgment based on the national legislation. Adopting the Habitats Directive as a ground for refusal would, in the opinion of the Council of State, amount to imposing obligations under the directive on an individual. In other words, national law remains effective unless a third party relies on directly effective European law. The case law of the Council of State amounts to the following: if an administrative authority grants a permit in accordance with national law but contrary to a directly effective provision of a directive and a third party appeals against this, the Council of State will annul the permit.51 However, if the administrative authority applies the directly effective provision itself by refusing a permit and 50

Dutch Council of State 23 October 2002, M en R 2003/1, nrs. 4 and 5. The cases are also mentioned in Annex VI, Application of Union law by national courts: a survey. Twentieth annual report on monitoring the application of Union law (2002), COM(2003) 669 final. Similar problems occurred with respect to the duty to apply Article 6(3) of the Habitats Directive, Dutch Council of State 7 December 2005, M en R 2006/2, nr. 19.

51

Cf. also Council of State 15 March 2006, LJN: AV5036.

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the permit holder appeals against this, the decision will be annulled, because, according to the Council of State, this would amount to a form of improper ‘inverse direct effect’ – at any rate, if no basis can be found in national law for such a refusal. Administrative authorities are, thus, faced with a difficult choice. If they apply national law, the Council of State will annul the decision as being contrary to the directive, if they apply European law, the Council of State will annul the decision, because they have ignored the national legal basis even though a directive cannot of itself be relied upon against individuals. The Council of State’s approach, sometimes described as the Boxtel paradox, has been severely criticised in the literature.52 Direct effect of international treaties concluded by the EU It has been acknowledged by the Court that provisions of international treaties concluded by the Union could be directly effective, when these provisions contain clear and precise obligations which are not subject, in their implementation or effects, to the adoption of any subsequent measures.53 In that case, national law can be reviewed directly, as a matter of Union law, in the light of the international environmental treaty concerned. It is not quite clear how the following judgment of the Council of State relates to the case law of the CJEU. On 31 March 2010, legislation – the Crisis and Recovery Act (Crisis- en herstelwet, Chw) – entered in force in the Netherlands which, among other things, shortens the procedures required before construction projects can commence. It covers, for example, the construction of roads and business parks as well as houses and wind farms. Various provisions of this legislation concern Dutch administrative procedural law.54 Section 1.4 of the Act, for example, provides that – contrary to the first paragraph of section 8:1 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb) – a legal entity established pursuant to public law and not being part of the central government, or an administrative body not being part of the central government, may not appeal against a decision if that decision is not addressed to that legal entity or to an organ of the legal entity, administrative body or the legal entity of which that administrative body is part. What is more, section 1.6, paragraph 2, and section 1.6a of the Crisis and Recovery Act make it impossible to lodge a pro forma appeal: an appeal will be declared inadmissible if it does not state the grounds on which it is based. Interested parties have argued in a number of procedures before the Council of State that these provisions are contrary to Article 9(2) and (4), among others, of the Aarhus Convention. In the Rijksweg 31 Leeuwarden case one of the parties wanted to rely on Article 9(2) of the 52

Cf. M.J.M. Verhoeven, The Costanzo Obligation of National Administrative Authorities (Antwerpen 2011), chapter 5 in particular.

53

Cf. Case C-213/03 Pêcheurs de l’étang de Berre [2004] ECR I-7357.

54

It is, incidentally, intended to incorporate a number of provisions of the Crisis and Recovery Act in the General Administrative Law Act so that they become generally applicable. See the legislative proposal Wetsvoorstel aanpassing bestuursprocesrecht, Kamerstukken 2009/10, 32450, nr. 1-4.

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Aarhus Convention.55 The Council of State argued that Article 9(2) was implemented in the EU by means of Directive 2003/35 and that therefore one cannot rely on Article 9(2) of the Aarhus Convention, but that it suffices to see whether national law is compatible with the directive. In other words, in the case the international treaty is being implemented in the EU by an EU measure, the option of relying on the treaty directly is no longer available. In forming its point of view the Council of State relied upon the Merck judgment, where the European Court in paragraph 35 ruled: ‘On the other hand, if it should be found that there are Community rules in the sphere in question, Community law will apply, which will mean that it is necessary, as far as may be possible, to supply an interpretation in keeping with the TRIPs Agreement […], although no direct effect may be given to the provision of that agreement at issue’.56

According to the Council of State, it is not possible to rely directly on a provision from a mixed agreement before the national courts, if the rule from the agreement concerns a sphere in which the European Union has laid down rules. In its view, all that remains for the national court in this kind of case is to examine whether national law is consistent with the implementing legislation of the Union. With all due respect, the reference to that judgment is clearly wrong. The CJEU has consistently held that WTO law is not directly effective in the EU legal order. However, it is generally acknowledged that its case law on the invocability of WTO-law is rather ‘specific’, to say the least. One cannot deduce from this judgment a general rule that individuals cannot rely on a provision of an international environmental treaty concluded by the EU whenever the Union legislature has legislated. On the contrary, Member States have an independent duty in law to ensure they do not act in contravention of international obligations entered into by the Union. When faced with the question of whether a number of provisions of Dutch administrative procedural law conflict with Article 9(2) and (4) of the Aarhus Convention, among others, the Council of State should not have hidden behind Directive 2003/35. After all, under Article 216(2) TFEU agreements concluded by the EU are binding on the institutions of the Union and on its Member States; this means that Member States have a responsibility of their own to ensure they do not act in contravention of international obligations entered into by the Union.57 By merely examining whether national law was consistent with Directive 2003/35, the Council of State was basically sidelining the 55

Council of State 17 November 2010, LJN: BO4217. See for a similar judgment with respect to what extent it is possible to rely on Article 6(4) of the Aarhus Convention (answer by the Council of State: no), Council of State 19 January 2011, LJN: BP1342.

56 57

C-431/05 Merck Genéricos [2007] ECR I-7001.

The parallel can be drawn with the Costanzo doctrine, in the way local and regional authorities cannot hide behind conflicting national legislation to implement Union measures. See for a detailed consideration M.J.M. Verhoeven, The Costanzo Obligation. The obligation of national administrative authorities in case of incompatibility between national law and European Law, Antwerp: Intersentia 2011.

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Aarhus Convention and rendering it ineffective. And, if the Council of State had any doubts concerning the direct effect or otherwise of Article 9(2) of the Convention,58 or the consequences entailed by the requirement to interpret in a manner which is consistent with the Convention, it should, as the highest national court in this area, have referred the matter to the Court of Justice for a preliminary ruling in accordance with Article 267 TFEU. Direct effect and the national law context European law does not require an administrative authority to take all directly effective European law into consideration for every decision it makes. Certainly, EU directives must be observed, but from a European law point of view how this is done is wholly irrelevant. In other words, as long as the fulfilment of European law obligations can be guaranteed by or pursuant to provisions of a legislative system, that is – from a European law point of view – sufficient. The case law of the Dutch Council of State seems to reflect the same view.59 Consider, for example, a decision concerning the appeal of an environmental organisation against a permit granted under the Natuurbeschermingswet to plant and then harvest mussels and oysters from Ireland and the United Kingdom in the Eastern Schelde, or Oosterschelde, a national conservation area. According to the decision, the administrative authority primarily took the view that to refuse the permit would be contrary to the free movement of goods. The question that was at issue was therefore whether the assessment framework of the Natuurbeschermingswet, designed to protect the environment, should be extended on European law grounds in order to permit the economic and market interests to play a part in the decision whether or not to grant a permit under the Natuurbeschermingswet. The Council of State ruled that this was not necessary, because a permit to plant mussel seed was also required under the Visserijwet (Fisheries Act) and the Treaty rules on free movement of goods could be considered in the context of that procedure. Even clearer is the case law of the Council of State on the question to which statutory system the assessment framework of the Habitats Directive should be reckoned. The Netherlands was long in default regarding implementation of the Habitats Directive. Ultimately this resulted in the inclusion of a special section in the Natuurbeschermingswet, under which activities with possible significant effects on a special protection area would have to be subjected to a ‘special’ Habitats Directive test. Under Article 19d of the Natuurbeschermingswet it is prohibited, given the aim of preventing the deterioration of natural habitats and the habitats of species and the disturbance of the species for which the areas have been designated, to carry out projects or other plans which could have such an effect on those habitats or species without a provincial permit or without observing any 58

In particular not as it can be derived from the judgment of the CJEU in Trianel, that at least parts of Art. 9(2) of the Aarhus Convention are directly effective.

59

Council of State 22 March 2006, LJN: AV6289.

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regulations or restrictions imposed by such a permit. According to the Council of State the legislature’s intention when it passed this provision was to create an exclusive assessment framework and there is therefore no discretion to involve the assessment framework of the Habitats Directive in other statutory permit systems such as those under the Wet milieubeheer (Environmental Management Act), the Woningwet (Housing Act), or the Wet op de Ruimtelijke Ordening (Spatial Planning Act).60 See also the final judgment of the Council of State in the Dutch NEC Directive case.61 Some of the parties relied upon provisions of the Habitats Directive in order to challenge the permit for a multi-fuel power plant issued on the basis of the Environmental Management Act. The Council of State, however, noticed that the applicant also needs a permit according to the Nature Conservation Act. In a procedure to challenge that permit Greenpeace can use any argument related to the Habitats Directive. But it cannot use this argument to challenge the permit for a multi-fuel power plant issued on the basis of the Environmental Management Act.

Methods of review Article 3:2 of the Dutch Algemene wet bestuursrecht (General Administrative Law Act) plays a central role in ensuring the highest possible quality of legal decision making by public authorities. ‘When preparing an order an administrative authority shall gather the necessary information concerning the relevant facts and the interests to be weighed,’ says the provision. This requirement of due care gives rise to a number of factors. It puts demands on the way in which citizens are treated by public authorities (they have a duty to report and warn; they must treat the public with due respect and involve them in the consultation procedure etc.); it puts demands on the way the facts are verified (the obligation to have things investigated in depth and to obtain advice, collection of evidence); it demands due care and attention in the decision-making procedure and puts demands not least on the decision making itself. There is now a reasonable body of legal precedent to substantiate the opinion that public authorities have a duty to investigate whether their decisions conflict with ‘direct effect’ European law under the requirement of due care.62 A ruling by the Dutch Council of State (Council of State) regarding the IPPC Directive provides an appropriate example.63 A local authority had issued an environmental permit for a pork farm. A local resident launched an appeal based on the fact that the decision contravened Article 9(4) of the IPPC Directive, in particular 60 61

Council of State 21 February 2007, LJN: AZ9028.

Council of State 30 November 2011 (200800181/1/M1-A), applying the judgment of the CJEU in Joined Cases C-165/09 – C-167/09 Stichting Natuur en Milieu, judgment of 26 May 2011.

62

Cf. for a similar approach by the Court of Justice: Case C-320/03 Commission v Austria [2005] ECR I-9871.

63

Council of State 13 November 2002, M en R 2003/4, no. 39.

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the obligation to utilise the ‘best available techniques’. This obligation, stated the Council of State, had not been implemented in national legislation, hence there could be no guarantee that the granting of the permit would not conflict with Article 9(4) of the IPPC Directive. The Council of State found that the public authority should have investigated whether or not its decision and the emissions sanctioned thereunder were indeed based on the best available techniques. Because the public authority did not draw on the assessment framework for the IPPC Directive in its deliberations, the Council of State came to the conclusion that the contentious decision ‘did contravene the terms of Article 3:2 of the Algemene wet bestuursrecht that require that the public authority gather the knowledge relating to the relevant facts’. In other words, the public authority should, if necessary, investigate whether the ‘normal’ national assessment framework is indeed the right framework in light of potential ‘direct effect’ provisions in European law. Neglecting to perform such an investigation constitutes a violation of the terms of Article 3:2 of the Algemene wet bestuursrecht.

The ‘default’ method used by Dutch administrative courts to avoid conflicts with Union directives is as I described earlier the method of ‘concrete review’.64 The permit can be directly reviewed against the provisions of the directive.65 If it is shown that the public authorities have failed to take Union law into account in the exercise of their powers, the permit will be annulled. Apart from concrete review of permits against a directive, the Dutch courts have also applied the ‘abstract review method’. This type of review does not involve direct review of a permit against a directive, but the interpretation of the national legislation on the basis of which the permit has been granted in the light of the directive. If the national legislation does not comply with the requirements of Union law, than it will not be applied. The permit will, subsequently, more or less automatically, be quashed on the ground of breach of statutory requirements. This is because after setting aside the contravening provisions of national environmental law, the legal basis for the permit has disappeared. We may refer to a judgment of the Council of State concerning, once again, the Habitats Directive.66 The case concerned the protection of the habitat of the so called ‘Natterjack Toad’ in a polder in North Holland. In order to make it possible that the polder be developed for various building purposes, the competent authority gave consent to exempt the Natterjack Toad from the protection requirements in the Dutch Flora and Fauna Act. The details for exemption were regulated in a Crown Decree. The Council of State found that the conditions under which the Crown Decree allowed the exemption to be granted were in violation of the Habitats Directive. It ruled that this provision in the Crown Decree could not be 64

Cf. on this J.H. Jans, Jans, ‘Legal Protection in European Environmental Law: An Overview’, in Han Somsen (ed.), Protecting the European Environment: enforcing EC environmental law (Blackwell 1996), p. 49 et. seq.

65

E.g. Council of State 9 February 2005, LJN: AS5471; Council of State 22 March 2006, LJN: AV6289.

66

Council of State 21 January 2009, LJN: BH0446.

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applied and that therefore the exemption could not find its necessary legal basis in that provision.

The consequence of abstract review is that the national legal basis for the decision that has been quashed has disappeared. Hence, the legal basis has been set aside by the national court. This implies that, for as long as the incompatible legislation has not been amended, the national authorities are unable to act lawfully. This is even so when the national authorities in the particular case at hand have acted in accordance with the directive. The consequences of concrete review are clearly less profound. Even when the implementing legislation does not comply with the directive, as long as the competent authorities ensure that the conditions in the individual permit are in accordance with the conditions of the directive, the permit will have been lawfully granted. However, and with respect to ‘abstract review’ the Dutch courts are able to find ‘middle ground’. In the sense that, in case of a conflict between national legislation and Union law, it can declare that the conflicting rule may not be applies ‘as far as it is in conflict with Union law’. In other words, it can separate the invalid part of the rule from the valid parts. The rule will be, more or less, split into a valid and invalid part. Such a division is, however, not always possible and the court will not apply the conflicting rule in its entirety, in particular when the internal logic and system of the rules resists such a split.67



5 Procedural Aspects

According to the established case law of the Court of Justice, it is, in the absence of Union law, for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights that individuals acquire through the direct effect of Union law.68 This is known in European law as the principle of procedural autonomy. However, the Court went on to introduce two requirements which these procedural rules must satisfy. In the first place the rules that govern a dispute with a Union dimension may not be less favourable than those governing similar domestic actions (principle of equivalence). In the second place the rules must not render virtually impossible or, at the very least, excessively difficult the exercise of rights conferred by the Union legal order (principle of effectiveness). However, the freedom enjoyed by the Member States

67

Cf. Council of State 7 September 2011, LJN: BR6898. The case concerned a conflict between the Birds Directive and a provision in the Dutch Act on Nature Conservation. In view of the internal system of the Act on Nature Conservation the Council of State saw no other possibility to declare that the conflicting rule cannot be applied in its entirety (‘volledig’).

68

Case 45/76 Comet [1976] ECR 2043; Case 33/76 Rewe [1976] ECR 1989.

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under this doctrine seems to be restricted by the judgment of the CJEU in the Slovak Bears case.69 The Court stated, that under the principle of effectiveness ‘if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law’. Consequently, ‘it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.’

Although under the principle of procedural autonomy, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights that individuals derive from EU law, their discretion seems to be restricted by the Aarhus Convention. In other words, as a matter of Union law there is an obligation on the Member States to interpret their access to justice laws in the light of Article 9(3) of the Aarhus Convention. If this analysis is correct, this can only mean that through the use of consistent interpretation Article 9(3) of the Aarhus Convention is applicable across the full breadth of European environmental law. Recently, the Council of State gave a couple of judgments on the Dutch Crisis and Recovery Act. In order to speed up procedures, in particular in the area of environmental law and planning law, this Act provides that: • local and regional authorities cannot challenge any longer, as a third party, decisions taken at central level; • a Schutznorm requirement has to be applied by the administrative courts; • parties challenging decisions are required to present all their grounds for appeal within the statutory appeal time (6 weeks). Supplementary arguments after that period are not allowed. Article 1:2, paragraphs 1 and 2 of the Dutch General Administrative Law Act reads as follows: ‘1. “Interested party” means a person whose interest is directly affected by an order. 2. As regards administrative authorities, the interests entrusted to them are deemed to be their interests.’

These provisions make it possible for administrative authorities to challenge decisions of other authorities, either if their interests as property owner or employer are affected (under para. 1) or when those decisions have a negative impact on the exercise of powers entrusted to them by the legislature (under 69

Case C-240/09 Lesoochranárske zoskupenie VLK, judgment of 8 March 2011.

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para. 2). However, according to Article 1.4 of the Dutch Crisis and Recovery Act, local and regional authorities do not have access to the administrative court any longer to challenge, as a third party, decisions taken at central level. It did not take long before the Council of State had to decide on the compatibility of Article 1.4 of the Dutch Crisis and Recovery Act with EU environmental law.70 The Council of State did not find this provision in conflict with: • Article 13 ECHR, as this provision is not applicable to public authorities; • The European Charter of Local Self-Government, as its provisions do not have direct effect in the meaning of Articles 93/94 of the Dutch Constitution; • Article 10a EIA Directive as amended by Directive 2003/35, because it is doubtful that public authorities can be considered to be ‘public concerned’; • Article 9(2) and 9(4) of the Aarhus Convention, because that provision is implemented in the EU by means of Directive 2003/35 and that therefore one cannot rely on Article 9(2) of the Aarhus Convention (see above); • Article 9(3) of the Aarhus Convention as, with a reference to Slovak Bears, this provision is not directly effect as a matter of EU law, nor directly effective under Articles 93/94 of the Dutch Constitution; • The principle of effectiveness, as the public authorities are still allowed to start a civil law based tort claim against the State. As an obiter dictum the Council of State ruled that even if one would allow the parties to rely on Article 9(3) and (4) Aarhus, this is not a problem since the Convention makes an explicit reference to ‘where they meet the criteria, if any, laid down in its national law’ providing the contracting parties the necessary leeway in this respect. According to Article 1.6 Crisis and Recovery Act, parties challenging decisions are required to present all their grounds for appeal within the statutory appeal time (6 weeks). Supplementary arguments after that period are not allowed. The Council of State did not find this in violation of either Directive 2003/35 and or Article 9 Aarhus Convention.71 Once again the standard reasoning: • Article 9(2) and 9(4) of the Aarhus Convention, because that provision is implemented in the EU by means of Directive 2003/35 and that therefore one cannot rely on Article 9(2) of the Aarhus Convention (see above); • Article 9(3) of the Aarhus Convention as, with a reference to Slovak Bears, this provision is not directly effect as a matter of EU law, nor directly effective under Articles 93/94 of the Dutch Constitution; • The principle of effectiveness, nor the principle of equivalence are affected. One of the major changes brought about by the Crisis and Recovery Act is the introduction of the so-called ‘relativity-principle’ or Schutznorm-requirement. Access to the administrative courts in the Netherlands is regulated in such a way 70 71

Cf. for instance Council of State 29 July 2011, LJN: BR4025.

Council of State 17 November 2010 LJN: BO4217.

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that once a person has been deemed an interested party under the GALA, that person then has access to the courts and in judicial proceedings against a decision can and may put forward any argument that will lead to the decision being quashed, regardless of whether there is any relationship between the claimant’s interest and the argument put forward or the reason for quashing the decision. Thus, an action instituted by an environmental organisation may result in a decision being quashed, even if the rule infringed is one that is not designed to protect the interests the environmental organisation is seeking to protect. In a judgment prior to the German Trianel and the Slovak Bears cases,72 the Council of State did not consider whether this Dutch style Schutznorm-requirement violates Union law or not.73 It has been argued in the literature that the Council of State is well advised to deal with this issue in subsequent rulings in the light of these CJEU judgments. In Case C-453/00, Kühne & Heitz the European Court decided that, in general, administrative authorities are not under an obligation to reopen an administrative decision that has become final, even if this decision is contrary to Union law.74 In a case before the Council of State a party in a case challenging a planning decision of 2009, where previous planning decisions in 2000 were found to be in violation of the Wild Birds Directive. The Council of State applied the rule developed in Kühne & Heitz and argued that the 2000 decisions were final and their legitimacy cannot be challenged after the expiration of the appeal period of those decision.75

72

Case C-115/09 Trianel Kohlekraftwerk Lünen, judgment of 12 May 2011 and Case C-240/09 Lesoochranárske zoskupenie, judgment of 8 March 2011. See on the latter judgment J.H. Jans, ‘Who is the referee? Access to Justice in a Globalised Legal Order. A Case Analysis of ECJ Judgment C-240/09 Lesoochranárske zoskupenie of 8 March 2011’. In: REALaw 2011/1, p. 85-97.

73

Council of State19 January 2010, LJN: BP1352.

74 75

Case C-453/00 Kühne & Heitz [2004] ECR I-837.

Council of State 21 July 2010, LJN: BN1937.

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Portugal Alexandra Aragão

chapter 18



portugal

1 Consistent Interpretation

Considering only cases decided by the superior courts, there is one emblematic case1 where the national courts have used the doctrine of consistent and teleological interpretation of EU environmental law in Portugal. It concerned the construction of a major hydroelectric project in the Sabor river. Sabor river is called the ‘last wild river’ and the construction of a dam has been very contested. The Central Administrative Court had to decide whether the promoter of the project, the national electrical company – Electricidade de Portugal (EDP), was obliged to provide wide access to environmental information in accordance with Directive 2003/4. According to EDP’s interpretation, the concept of ‘public authority’ was not applicable, since only concessionaries having special sovereign powers were covered by the law. The Court interpreted the national transposition law in the light of the scope and objectives of the directive, and rejected the restrictive interpretation of EDP. On the 11th August 2008, the Court, while acknowledging that EDP had no special powers (as normally a state agency would have), nevertheless declared that all the concessionaries developing activities ‘in relation to the environment’ were obliged to disclose environmental information. The Portuguese law on access to information, interpreted exclusively in the national context, would clearly have allowed the national electrical company to refuse access to environmental information with the argument that only legal persons having public responsibilities and authority were obliged to make environmental information available. In the end, it was the scope of the directive which allowed a broader interpretation and obliged EDP to disclose the requested information. There are no cases identified where the doctrine of consistent interpretation is applied only ‘as far as possible’ in the sense of Arcaro.



2 Direct Effect

The direct effect doctrine has relatively low importance in Portugal, because directives are rarely invoked in court. Even when they are, it is as an additional reference to reinforce the main arguments based on national laws. With respect to the Treaty environmental principles, they have been raised before the national courts only as general principles of law, repeated in the constitution and in the national environmental laws, and not specifically as Treaty principles. For instance, the effects of the precautionary principle were mentioned in an environmental case decided by the Central Administrative Court on the 30th September 2010 (Case n. 5090/09) when dealing with the risks of using dangerous wastes as fuel in cement kilns. The fact that the precautionary principle is a Treaty principle was not mentioned. 1

Case 4090/08 decided on the 11th August 2008.

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As to the direct effect of provisions in environmental treaties concluded by the Union (like in Pêcheurs de l’étang de Berre), there are no cases to date in the Portuguese case law. The same can be said about ‘indirect horizontal sideeffects’ (Delena Wells) and ‘inverse direct effect’. Furthermore, the courts have not yet invoked the discretion limits given by EU directives (Waddenzee/Kraaijeveld) nor have they affirmed the duty of all national administrative authorities (including regional and local authorities) to apply directly effective provisions of Union law. On the contrary, national courts do not lose the opportunity to declare that EU environmental directives were insufficiently precise and unconditional to have direct effect. In 1995, the Superior Administrative Court decided that the Birds Directive was not sufficiently precise and unconditional to have direct effect. The decision was not obvious considering the context of the case. In fact, the directive had been transposed – at least formally – by means of a decree-law, but what was missing was the specific designation of special protection areas for the birds. Although the Portuguese government had already notified the European Commission of the list of Portuguese special protection areas, there were two additional requirements established by the Portuguese law which had not been fulfilled: the approval of the list of the designated special protection areas by a decree-law and its publication in the official journal (Diário da República). As a consequence, the Supreme Court declared that: • the list of SPAs sent to Brussels was not valid; • the directive was not sufficiently precise and unconditional to have direct effect; • even if it was so, it could not have vertical direct effect. In conclusion, the Court considered that there were no SPAs to be protected in Portugal. A noteworthy aspect is the fact that this decision was taken after the ECJs judgment in the Marismas de Santoña case. Regarding the ‘stand still’ obligation of the Inter-Environnement doctrine, there are no court cases to date stating that, during the transposition period, Member States must refrain from taking any measures likely to compromise the result prescribed. Still, the Inter-Environnement doctrine has been taken into account in some administrative procedures. In fact, during the preparation of the National Program for the Territorial Planning Policy in 2003, the Strategic Environmental Assessment (SEA) directive had not yet been transposed.2 So the question raised was: could the government approve such an important strategic document, setting the guidelines for all territorial plans and for all future planning decisions without a strategic environmental assessment? The answer, strictly based on formal grounds, was ‘yes’. Indeed, the first preparatory act (the decision that a National Programme for the Territorial Planning Policy had to be prepared) had already been taken before the entry into force of the directive, leaving the National Program out of the SEA regime, according to Article 13 nº.3 2

It should have been by June 2004 but it was only transposed to Portuguese law in June 2007.

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of the directive. In spite of the decision, the fact that the question was formally raised shows an implicit recognition of the stand still doctrine. The most meaningful case, involving EU environmental law, where the concept of the ‘emanation of the state’ was taken into account was the case on the Sabor river, mentioned above. Looking at the national case law, it looks evident that one thing is very clear, for the national courts: in the absence of national implementing measures, directives do not produce obligations for private individuals. In other words, they do not produce horizontal effects. In a case decided by the Supreme Court of Justice in 2006 on the application of the national and the European rules on landfills for industrial wastes, the court clearly said that before transposition, the European directives cannot produce direct horizontal effects but only vertical ones.3



3 State Liability

There are no cases to date concerning state liability under the Francovich doctrine.



4 Procedural Barriers

In Portugal, very broad access to civil, administrative or penal jurisdiction is granted both by the Constitution and the law. Since 1989, Article 52, no. 3 of the Constitution states: ‘Everyone, personally or through associations for the defence of the interests at stake, is conferred the right of actio popularis, in the cases and in the terms of the law, including the right to claim compensation on behalf of the injured person, namely: -to promote the prevention, the cessation and the prosecution of offences against public health, consumer rights, quality of life and the preservation of the environment and cultural heritage; -to safeguard the assets of the State, the autonomous regions and local authorities’.

This norm should extend the access to justice to any person claiming the protection of the so called ‘diffuse’ environmental interests. However, considering that the Constitution refers to the law for the definition of the conditions of popular action, the legal doctrine was almost unanimous in considering that this norm was not directly applicable. Indeed, it was not applied before 1995, and for six years the absence of any law prevented the exercise of the constitutional right. 3

Case 5B3661 decided on the 26th January 2006.

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On the 31st August 1995, the Popular Action Law4 regulating actio popularis was finally adopted but still left many unregulated aspects. Now, Article 2 of the Popular Action Law recognizes as holders of rights of actio popularis, any citizens in full enjoyment of his civil and political rights as well as any association and foundation created for the protection of the interests at stake, regardless of whether they have a direct interest in the claim or not. Municipal authorities also have the right of actio popularis for the protection of the interests of the residents in that municipality. The legal standing of environmental NGOs was first recognized in 1987. In 1998, the Law on Environmental NGOs (still in force), grants every environmental NGO, whether or not they have a direct interest in the claim, the right to ‘propose legal actions necessary for the prevention, correction, suspension and termination of acts or omissions of public or private entities that are or could be a factor in environmental degradation, initiate, under the law, legal actions to enforce civil liability relating to acts or omissions mentioned in the previous paragraph; contentiously appeal of administrative acts and regulations that violate laws that protect the environment; present complaints and reports, as well as assist criminal proceedings for crimes against the environment and follow the administrative offence process, present memorials, technical advice, suggestions for examinations or other measures of proof until the process is ready for final decision’.5 One important aspect of this liberal regime is the exemption of fees and costs as long as the NGOs act in good faith.6 In the case of other authors of popular actions (citizens or municipalities), any exemption is related to the outcome of the case, and depends on at least a partial granting of the request. In case the application is refused, the applicant pays a small amount ranging from 10% to half the normal fee.7 But despite the broad standing and special conditions of access to justice, the number of environmental proceedings is still relatively small. The explanation for this paradox, according to the authors of a study sponsored by the Commission ten years ago,8 were: ‘structural problems of judiciary system (long delays in proceedings); lack of procedural regulation (regarding popular action and administrative ‘embargos’); resistance of judiciary system to a change of values and priorities (from economic and social rights, such as employment, to new rights such as to a healthy environment); complexity of administrative law and its organisational structures (making it inaccessible for those not having a deep 4 5

Law no. 83/95.

Article 10 of the Law no. 35/98 of the 18th July.

6 7

Article 11.

 A ctio Popularis Law, Article 20.

8

Study on ‘Access to Justice in Environmental Matters’, coordinated by Miriam Dross, (Öko-Institut e.V), Nicolas de Sadeleer (Centre d’Etudes du Droit de l’Environnement – C.E.D.R.E.) and Gerhard Roller (Fachhochschule Bingen – University of Applied Sciences), in 2002.

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knowledge of it); a preference to solve conflicts through non-judiciary solutions; young and undeveloped environmentalist associative movement’.9 Yet, there may be other reasons to justify the low litigation rates compared with the magnitude of the environmental problems, like the following. The slowness of justice Portugal has been condemned more than once by the Court of Human Rights for excessive delay in the judicial decisions. The delays are so long that they often lead to the prescription of rights. A lawsuit asking for an injunction granting interim measures can take up to 5 years10 and the full proceedings until the final decision can take up to 10 years.11 In the meantime, natural sites that were supposed not to be destroyed simply disappear, and the projects that were supposed not to be built are completed. In effect, it is a fait accompli policy. As a consequence, in the eyes of the citizens, the courts are not considered as an effective way to obtain protection. This partly explains why people often reject the right of access to the courts in cases of environmental threats or damages. The costs of justice Despite the exemption from justice fees in popular actions in the conditions explained above, legal representation by a good lawyer must be borne by the applicant. In addition, any scientific advice or any expert opinions are additional costs which cannot be ignored. The production of evidence is also a relevant cost. Aerial photos or laboratory analysis, for instance, have costs which are beyond the reach of most NGOs. Difficulties of proof are behind a long history of decisions refusing to grant interim measures of protection, and namely the refusal to suspend administrative acts authorizing large investments in projects potentially harmful to the environment. The courts seem to be more concerned with the risk of compensation claims by the investors than with the damages to the environment itself. Difficult access to information The difficulties and excessive delays to obtain the documents necessary are essential to produce the application and to ground the request. Nowadays, it is increasingly rare to listen to plain refusals of access to information, but it still happens. Going to court to request access to information is possible and normally the requests succeed. But it takes time – up to 6 months to obtain an injunction that will grant access to the documents. And if the time to initiate the process is shorter (normally two months), then the lawyer will have literally to ‘invent’ the content of the application based on supposed facts and correct it later on. 9

 A ccess to Justice in Environmental Matters, Part III, Portugal, p 24.

10 11

E.g. the case against the Pescanova factory in Mira municipality, still pending.

E.g. the case against Valença landfill, won by the NGOs after one decade of waste deposit.

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But there are even more subtle ways of denying essential information: in administrative procedures (an authorisation for instance) all the communications among different public authorities and even with the private parties are now done through electronic means. There is no longer a ‘physical’ dossier anymore. The fact that the files are electronic makes it more difficult to obtain all the documents necessary. The petitioner asks for the complete dossier, but when he receives the documents, he realises that there are other documents which are mentioned and that were not included in the file. In some cases it is a mere question of disorganization. No one knows where the e-mail sent by the director or head of division is. Again going to court is the only solution, but it takes time.



4 Constitutional Issues

The topic of supremacy has not been raised since there were no cases before national courts questioning the constitutionality of an EU legal act. Neither has the legality of an EU legal norm, supposedly in breach of EU primary law, been questioned.

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Slovenia Rajko Knez & Verena Rošic Feguš

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slovenia

1 Introduction

The following national report is a result of the analysis of the Slovenian courts’ case law including all three levels of courts legal protection in Slovenia (District court, High court, Supreme court), as well as case law of the Administrative court and the Constitutional court of Slovenia. Although the main focus of the report is on environmental law, the analysis was not limited solely to this area of law – where appropriate, case law in other fields of law is mentioned to provide a general impression on the application of the EU law in Slovenian case law. At the outset it has to be noted, that the number of cases where courts have used primary or secondary EU law, especially the Treaty on the Functioning of the EU (TFEU) and the Treaty on the European Union (TEU), has substantially increased in the last few years. In the first years of Slovenian membership in the EU, references to secondary law, regulations and directives, mostly prevailed. Additionally, in general, the quantity of cases involving transboundary issues between EU Member States, as well as with classical transboundary element in international law, has increased.1 Cases from the field of the environmental law are among the other areas of law where the EU legal rules prevail. Consequently, the opportunities for the administrative authorities and courts to apply EU law (and the case law of the Court of the EU) are rather high. This reasoning is confirmed by number of cases where the national courts in the environmental matters apply the EU law using direct effect or by way of the consistent interpretation. Since the trend is in favour of the latter, the article will first deal with the consistent interpretation doctrine.



2 Consistent interpretation

The application of EU law by Slovenian courts (and attorneys also) has increased with years, which indicates an increased awareness of EU law as an integral part of the national legal system. If in the past cases could be found where the courts shall have applied EU law but failed to do so,2 this generally is not the situation today. Despite that, it still has to be emphasized that every use of national law has to be seen first through the prism of international and then EU law; for international as well as for EU law the principle of consistent interpretation is of elementary importance. In practice consistent interpretation has been long overlooked, but it is now gaining importance and applicability equivalent to that found in the legal systems of other EU Member States. It is used even more than the direct effect doctrine. 1

Case law cited in this article is not dealing only with the transboundary issues. Secondary EU law is applicable also in purely national cases.

2

For example an improper argument regarding the use of ECHR in case P 166/2006 (i.e. that the parties have to file a suit at the ECtHR if wants to apply it).

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The Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty to take all appropriate measures to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the administrative authorities and the courts. In applying national law, the national court called upon to interpret national law, is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter (doctrine of consistent interpretation). Although the mentioned rule has quite often been used by the Slovenian courts, it has been applied only in a few environmental cases. One of such cases refers to habitat directives.3 Against that, there are no cases in Slovenian case law, where principles of legal certainty or the prohibition of interpretation of national law contra legem have prevented the application of the doctrine of consistent interpretation. This holds true for the area of environmental law as well as for other fields of law.



3 The direct effect doctrine

In general, cases concerning issues of the environmental law appear habitually before Slovenian courts. An analysis of the case law indicates that most of these cases concern environmental law in a rather broader sense, such as questions concerning allowances or permits necessary to construct a different kind of infrastructure or buildings. These issues are usually not related to EU environmental legislation, except in cases where environmental impact assessment or strategic environmental assessment is needed in accordance with the EIA, SEA, and IPPC Directives. However, the majority of cases do not refer to the EU legislation as such, nor to the doctrines of the direct effect, direct applicability or consistent interpretation. The few cases where references to EU environmental legislation are made are rather the exception than the rule, and, at the time of conducting the research of case law, there were no cases where the national courts have held the provisions of EU environmental directives to be insufficiently precise and unconditional to have direct effect. Regarding the direct effect of provisions in the international environmental treaties, concluded by the Union, there are several court cases where Slovenian national courts have held provisions of the EU treaties to be directly applicable; however, these cases refer to non-environmental law issues (such as general prohibition of discrimination, asylum cases, denationalizations, industrial property right, agricultural policy, access to the information of public nature, effectiveness of legal remedies). 4 Additionally, in Slovenian case law there are 3

See in particular judgment of the Administrative court UPRS I U 1809/2010.

4

See more in particular the following cases: Supreme court I-Up 3/2007, Supreme court I-Up 69/2008, Supreme court I-Up 365/2007, I-Up 1657/2005, Supreme court III Ips 68/2010, Supreme court III Ips 179/2007, Administrative court UPRS U 14/2007, Administrative court UPRS U 38/2006, Admin-

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also no cases – either in the field of the environmental law nor in other areas of law – where national courts have examined whether the national legislature/ administrative authority has remained within the limits of discretion allowed by the directive (so called Waddenzee/Kraaijeveld doctrine). This issue has not yet been raised and answered before Slovenian courts. In relation to Kraaijeveld, the Administrative courts have, however, held in one or two cases that EU law must be raised by the court on its own motion (ex officio, as held in case Kraaijeveld [1996] ECR I-5403) but not yet in the field of the environmental law. The situation in case law is the same also in respect of the so-called Inter-Environnement doctrine in environmental cases – national courts have not yet ruled that during the transposition period of the directive the State must refrain from taking any measures liable seriously to compromise the result prescribed by the directive. Situations, where secondary legislation of the EU environmental law is applicable, have appeared quite often before Slovenian courts, but the courts only refer to national law. From the case law it can be concluded that it would have been possible for the courts to refer to EU environmental principles as well, but neither the parties nor the courts have proceeded in such way. The result is that none of the cases, which refer to the environmental planning, strategic environmental assessment, environmental permits, environmental impact assessment and precautionary principle, refer to the environmental principles. On the other hand, in parallel with this conclusion, cases concerning nature conservation are to be found where different general EU principles, such as the principle of proportionality, were considered and applied by national court. Another legal aspect regarding the direct application of the EU law concerns the issue of vertical effect, as well as the concept of the emanation of the state. This rather significant question has to be seen in the light of a number of stateown companies (one of the consequences of the previous socialist system where all commercial entities were state owned). Interestingly, the question has not been yet raised before the Slovenian courts. In general, directives do not produce horizontal or third-party effect in the sense that, in the absence of national implementing measures, they directly result in obligations for private individuals. Although in Slovenian case law there are number of cases where the courts referred to consistent interpretation, none of these cases include the assessment of national implementing measures in the field of the EU environmental law. Furthermore, there are no cases in the case law of the Slovenian courts which refer to a directive’s lack of ‘inverse direct effect’, according to which a public authority was not able to invoke a directive against an individual (and thereby require him to act in conformity with the directive, because the obligations contained in the directive, have not yet been implemented in the national legal order). This issue has not been raised in environmental cases or other fields of law. Regarding the potential direct effect of the environmental directives and their ‘indirect horizontal’ side effects there also appears to be no case law to date. istrative court UPRS U 655/2004, Constitutional court UP-1201/05, High court in Ljubljana II Cp 5686/2005.

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The European Court’s ruling in the case Fratelli Costanzo has actually never been used by the Slovenian courts, but there are cases referenced in the literature, where administrative authorities expressed the view that directives do not bind the administrative authorities, but merely the courts.5 This view point was attacked by lawyers and experts, who referred to Frattelli Costanzo. We are, however, still awaiting for the Fratelli Costanzo doctrine to be upheld by the Slovenian courts. Our view is that this is due to a lack of suitable cases, since a substantive number of cases never reach court but remain within administrative procedures. Last but not least, the state liability due to a national failure to implement a directive (Francovich doctrine) has never been upheld or applied by the Slovenian courts. Currently, however, there is one case pending at the court in Maribor regarding the directive dealing with late payments.6



4 Procedural barriers

EU law in general does not intervene with national procedural rules (exceptions are rules with international element, on the basis of Article 81 of TFEU). In most of the situations it determines only that judicial protection of the EU rules has to be granted. Traditionally, EU principles have, therefore, left a large degree of national autonomy when it comes to procedural rules, but this is not always the case. But there is no case law of the Slovenian courts, referring to questions of procedural rules influenced by the EU law, either in the field of environmental law or elsewhere. There is also no record of a tension between EU substantive principles of the environmental protection and other national law principles. With respect to the preliminary rulings procedures, national courts have not sent many preliminary questions to the CJEU – to date, only three preliminary rulings have been sent to CJEU and none of them concern the environmental law. One can conclude that judges generally use the preliminary reference procedure only on the application of the parties, and although the decision to make a reference is one for the court, regardless to parties’ interests, quite a number of cases can be found, where the courts upheld the arguments of the parties why the preliminary ruling was or was necessary.7 It is worth adding that experience indicates that CJEU rulings, once received, are fully followed by the Slovenian national courts. It is also worth noting that there is no record of a case involving defective implementation of the EU law where the existence of a parallel 5

For references and the criticism see in particular R. Knez, ‘Unmittelbare und mittelbare Anwendung der Richtlinien im Bereich des Umweltschutzes’. In: T. Borić, (ed.). Öffnung und Wandel – Die internationale Dimension des Rechts II: Fetschrift für Willibald Posch. Wien: LexisNexis, 2011, str. 315-326.

6 7

Directive 2000/35/EC on combating late payment in commercial transactions.

As can be seen from cases such as G 8-2005, R 68-2004, III Ips 156-2007.

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infringement proceeding by the European Commission has had a significant impact on the national proceedings.



5 Constitutional Issues

Although the principle of supremacy remains unwritten in the European Treaties it is settled case law that, in relation to national law, EU law is supreme and holds priority. The principle of supremacy is taken into account in the case law of the Slovenian national courts in order to disapply national law, but the cases mainly concern the general prohibition of discrimination under Article 12 of the former Treaty of the European Community rather than environmental law. Slovenian courts have not yet been faced with the issue of whether an EU legal act is in breach of the EU Treaties. Additionally, so far no Slovenian court has identified an EU rule as in contradiction with the Slovenian Constitution. The Slovenian Constitutional court decided years ago,8 that opening the door to EU law was in the line with the Constitution, is in line with the latter and this is the only case, where it was questioned whether EU law was in general, in breach of the national Constitution.



6 Conclusion

The review of national case law, referring to different issues regarding environmental law, as well as the cases taking account of EU law in general, leads to a general assessment. Compared to the period immediately following EU membership, EU law is now used much more frequently before the Slovenian national courts, but unfortunately this cannot yet be said when EU environmental rules are at stake. It should be stressed – though it is not a complete excuse – that Slovenia only joined the EU in 2004, and therefore a comparison with case law of Member States who joined years ago or were even founding members would be unfair. There are a number of cases where the Slovenian courts could apply EU environmental law, either by direct effect or by way of consistent interpretation. This is especially true in various cases considering environmental planning and environmental impact assessment, strategic environmental assessment, as well as different environmental and nature permits. The lack of consistent interpretation may also be found in environmental criminal cases, especially with respect to the penalties in the field of the environmental law, which are also foreseen by Directive 2008/99/EC. Some decisions in criminal matters are not consistent with this Directive at all (for instance the decision of a Slovenian court that there is no crime committed, if certain action is not defined as prohibited in the environmental legislation. 8

Opinion of the Constitutional Court of the RS, Rm-1/97, 5 June 1997.

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Hence, if somebody causes an oil spill into the environment as the result of a road tanker accident, this cannot be defined as a criminal act. As explained by the court, this is due to the fact that such an action or omission is not prohibited by environmental legislation, but instead by laws concerning traffic safety.9 It is also problematic that some administrative bodies and authorities competent to decide environmental cases from the administrative point of view are of the opinion that secondary legislation, especially directives, cannot bind them, although this view is clearly contrary the Fratelli Costanzo rule. Moreover, such a position is not logical, since it would lead to the conclusion that within the administrative procedure there is one legal cause of action, but once the case reaches the court, the court shall change this legal cause of action from national to EU law. Such a step-change would be inappropriate and not in line with the principle of legal expectations and legal certainty. Consequently, it is our opinion that it is legally logical that administrative authorities as well as courts are directly and ex officio bound to apply EU law – primary and secondary law, including the directives and the case law of the CJEU. Controversial and well-publicized national cases can play an important role in bringing wider attention to the importance of EU environmental law. In the past few years, there is an important case going on concerning plans made by the Republic of Italy to construct gas terminals in the Gulf of Trieste.10 This is of significant importance for Slovenia, especially for people living at the northern Adriatic coast on the Slovenian side. The case can only be evaluated and judged in the line with EU environmental law (especially SEA, EIA Directives, Environmental impact assessment directive as well as the Seveso Directive). This case is also raising awareness of the existence and importance of the EU environmental legislation among Slovenian administrative authorities and Slovenian citizens, and may well have longer term and positive impacts in this regard.

9

See more in particular the judgment of the Supreme Court, VS I Ips 96/2000.

10

L. Kajfež Bogataj, Znanost enotna – plinski terminali v Tržaškem zalivu nesprejemljivi (Science unanimously – gas terminals in Gulf of Trieste are not acceptable), article on http://www.rtvslo.si/okolje/ kajfez-bogatajeva-znanost-enotna-plinski-terminali-v-trzaskem-zalivu-nesprejemljivi/266323. R. Knez, P. Ferk, Slovenia. In: Cameron, Peter D. (ed.), Laffranque, Julia (ed.). The Interface European Union Energy, Environmental and Competition Law: reports of the XXV FIDE Congress Tallinn 2012. Tallinn: Tartu University Press, 2012, p. 428. Also R. Knez, Plinski terminali – primeren premik od politike k pravu (Gas Terminals – a shift from politic to law). Legal Practice, 2009/28, Nr. 46, p. 3.

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Spain Agustín García-Ureta & Angel-Manuel Moreno Molina

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1 Introduction

The present report1 is the result of an analysis of the case law of the courts that, in Spain, perform the most important adjudicatory functions in the domain of environmental law and protection. Two preliminary matters should be emphasized from the outset. On the one hand, Spain is a country of Droit administratif tradition. This means that courts have a reduced capacity to create law, and are usually regarded as pure ‘applicators’ of written rules. Judicial case law (or Jurisprudencia, in Spanish) plays a lesser role. It is understood that at least three identical rulings of the Supreme Court on the same isssue are needed in order to create a precedent. It is also important to note that, in Spain, the judiciary is structured along five different jurisdictional tracks, according to the subject matter of the case (a) civil and commercial courts; (b) criminal courts; (c) administrative courts ( jurisdicción contencioso-administrativa); (d) labor and employment courts; and (e) military courts. Environmental law mainly falls within administrative law and is preferentially implemented by various sorts of administrative agencies. Administrative courts perform the predominant role in environmental matters, civil and criminal courts have a minor role, and there is no role for labor and military courts.



2 EU law and Spanish law

The Spanish Constitution enshrines a monist system regarding international law. Validly concluded international treaties, once officially published in Spain, are part of the internal legal system.2 The supremacy of EU law is not discussed, albeit it was considered by the Constitutional Court in its Opinion 1/2004. A reference to this principle was made by the Supreme Court in an environmental case concerning a railway line project. The principle of supremacy is one of the reasons why the Supreme Court acted in accordance with the ECJ ruling in Case C-227/01 Commission v Spain, which came to the conclusion that Spain had infringed the EIA Directive for projects. In a case concerning Directive 79/409 and hunting rules, the Spanish Supreme Court recalled the basics of EU law by holding that the effet utile of Directives means that private individuals are entitled to invoke them before the 1

The research has focused on rulings issued by ‘administrative courts’, especially by the Supreme Court (Tribunal Supremo) and the High Courts of the 17 Autonomous Communities or ‘regions’. There is also one case adjudicated by the ‘Audiencia Nacional’, a central high administrative chamber that controls the decisions of Ministers. Rulings by lower courts have not be taken into consideration because of their huge number and because they largely remain unreported. The research has been made using the most usual search engines and databases. Appropriate literature has always been checked. The report covers court decision of the last 10 years, although some previous important decisions are also mentioned, where needed.

2

Articles 93-96 of the Spanish Constitution.

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courts and that the courts are compelled to set aside any national rules contrary to EU law.3 The adaptation of Spanish law to access to information legislation was subject to a judgment from the Supreme Court of 4 April 2006, 4 where the Court held that the existing Law 38/1995, of 12 December, had to be interpreted in the light of the Aarhus Convention and Directive 2003/4.5 As regards to the checking of ‘constitutionality’ of EU law by the Spanish courts, two different aspects should be considered. First, a national court may consider that an EU legal act is in breach of EU primary law, but only one reported case can be found on this issue. The judgment of the Supreme Court of 17 July 2009 rejected an appeal formulated by an iron and steel company (Arcelor) against the decision of the Council of Ministers to allocate individual emissions rights under Directive 2003/87. The company claimed, i.a., that the inclusion of the iron and steel sector in the European emissions trading mechanism was in breach of the principle of equality, lacked any objective justification and was in breach of the principle of proportionality. If the directive were void for these reasons, then the national implementing legislation (Law 1/2005) must also be void, and the decision of the Council of Ministers, taken on the ground of the this Act, would also be illegal. However, the Supreme Court refused to submit a preliminary ruling to the CJEU, mainly because a similar preliminary ruling on the validity of the directive had been previously formulated by the French Conseil d’État, and was rejected by the European Court in its Ruling of 16 December 2008. Constitutionality checking may also involve a national court questioning whether an EU legal act is in breach of the national Constitution, but here no cases to date have been found. An assessment of the reception of EU environmental law in Spanish courts cannot be made in isolation but has to been seen in the context of how the courts generally handle EU law. There are no specialized environmental courts, and therefore no distinctive picture for EU environmental law. As to the general reception of EU law by the courts, there are a number of distinct phases. In a first, short period after the accession of Spain in the European Communities (1986 – early nineties), there were important deficiencies in the application of core principles of EU law. EU law was, to a large extent, seen as a new body of law; the case law of the ECJ was not available in Spanish; and the vast majority of justices in the higher courts had received no specific training in EU law, etc. In this period, it is possible to find decisions of the Supreme Court that, for instance, betrayed a misunderstanding of the direct effect doctrine of directives: an assumption that, once a directive has been transposed into domestic law, it could not have direct effect even if the transposition was deficient was not uncommon.6 3

Judgment of 24 February 2010, appeal 5911/2007.

4 5

Appeal 311/2003.

See also the judgment of 4 February 2004, appeal 3457/2000.

6

See, for instance, the ruling of the Supreme Ct, administrative chamber, of 30 November, 1990.

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This was followed by a period where it can be said that EU environmental law was sufficiently known and applied by the competent courts. The regular application of EU environmental law by the courts is due to a number of factors. A younger generation of judges is now filling key positions in the judiciary; knowledge about CJEU case law has been improved by it becoming available in Spanish translation; and there is an increasing legal literature in the field. Nowadays it is by no means a surprise to find, where needed, extensive references to the applicable rulings and judicial doctrines developed by the CJEU. However, certain problems remain, such as the overall reluctance of Spanish courts to formulate preliminary rulings or the unsatisfactory role of interim measures, particularly in the case of large scale projects. Straightforward, mainstream doctrines are usually invoked and applied by domestic case law (for instance the direct effect of directives), but it is hard to find more complex and sophisticated elaborations. On the other hand, too many citations to CJEU rulings have been found, with just a reference to the case but no further discussion – subsequent case law often refers to these citations in a one ‘copy and paste’ sentence, even where the CJEU rulings do not have a clear connection with the case under examination. Substantial improvements could also be made in the knowledge and use in courts of EU principles and doctrines. EU law courses do not have the weight they deserve in the regular curricula of most Spanish law schools. In addition, law graduates become judges by succeeding in a recruitment procedure which is long and hard to prepare, but where EU law subjects have small importance. Therefore, there is a disappointing situation concerning the training and technical background of most judges in the domain of EU law. The same remark can be made in the narrower field of environmental law. Most law graduates never study this subject in their law schools, and prospective judges do not need to pass exams on this subject. All this helps to explain why – apart from some exceptions – invoking or using EU law doctrines in actual legal proceedings is less usual than it would be expected.



3 Consistent interpretation

Spanish Courts are well aware of the Marleasing doctrine. However, it is seldom mentioned in environmental cases.7 A rare example can be found in the judgment of the Higher Regional Court of Valencia (administrative chamber) of 5 June 2009. This case concerned a lawsuit triggered by an association of affected people who challenged a decision of the General Director of Public Works of the Regional government of Valencia approving the construction of a highway between two cities of the region. The project was adopted without a preliminary EIA. Once the works had begun, the regional authorities 7

See the judgment of the High Court of the Autonomous Community of the Canary Islands of 15 October 2008, appeal 883/2006.

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conducted an EIA but also approved a second decision, which simply reproduced the first one word for word. From a technical viewpoint, one could claim that the second administrative decision had been duly preceded by an EIA, but it is clear it just reproduced the first one and did not incorporate any of the findings of the EIA. The fact that the EIA had been carried out ex post facto had been disguised by the issuance of a second decision. In deciding whether such an outcome was possible under EU and Spanish law, the court invoked the Marleasing case as a tool to interpret the applicable domestic provisions on the ‘ex post validation’ of a invalid administrative decision. The court understood that those domestic provisions should be interpreted in a way that made them compatible and proactive with the effet utile of EU law. Therefore, the court concluded that it was not possible to validate an illegal administrative decision (the approval of a project without an EIA) by issuing a late EIA and a second decision reproducing the first one. The EIA could not play its role when the environmental agency had to evaluate a project that had already been approved, and where the agency responsible for the project had dismissed other possible alternatives. In accordance with this analysis, both the first and the second decisions were quashed by the Regional Court.



4 Direct effect doctrine and State liability 3.1 Direct effect

Some Treaty environmental principles have been raised before Spanish courts, and two principles deserve particular attention: the polluter pays principle (PPP) and the principle of precaution/preventive action. As regards the first principle, there are relatively frequent references in court decisions.8 However, rather than referring to it as a principle of EU law, the courts usually make vague and imprecise references. There are two fields where this principle is likely to be cited: in tax matters (environmental charges and taxes) and indemnities in the field of civil damages. In relation to tax, the Constitutional Court ruling of 30 November 2000 affirmed that a regional statute establishing a tax on air polluting emissions was unconstitutional. Although the Court made several references to the PPP, it did not explicitly identify it as a ‘Community principle’. In relation to taxes and charges, there are rulings both from the Supreme Court and from the High Courts of the Autonomous Communities (administrative chambers). Thus, the charge levied on water discharges (canon de vertido) has produced a body of case law from administrative courts in cases claiming that the actual amount to be paid is disproportionate or excessive. The judgment of the High Court of Andalucía of 3 April 2002 accepted 8

For a broader description, see a.M. Moreno, ‘The application of the Core Environmental Principles by Spanish courts’, in R. Macrory (ed.), Principles of European Environmental Law. Europa Law Publishing, 2004, 179-192.

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the plaintiff ´s contention that, in establishing the amount to be paid, the Water Agency had not determined in an appropriate way the pollution produced by the taxpayer, or the volume of polluted waters. The court included an extensive elaboration on PPP as an ‘EC principle’, referring explicitly to Articles 130R, 130S and 130T of the EC Treaty (currently Article 191-193 TFEU). The key result was that while PPP certainly authorised the setting of environmental charges, the tax could not be excessive or disproportionate and could be devised solely as a source of income for the Agency. The PPP is also referred to in cases involving taxes and fees charged by local or regional governments for the discharge of public services. An example is the judgment of the High Court of Castilla-La Mancha of 13 January 2003, concerning a local charge for the purification of residual waters. The plaintiffs claimed that the actual amount was too high and that the total amount of money collected by the agency was higher than the real cost of the service. The court stated that this situation was contrary ‘the Community principle of the polluter pays’. The principle of precaution has been repeatedly invoked in Spanish courts in connection with the construction and operation of telephone aerials and antennae, and in most cases, the claims and counterclaims include a more or less implicit reference to the precautionary/preventive action principle. Examples of such litigation are, among others, the judgment of the Supreme court of 18 June 2001 (Telefónica v City Council of Barcelona) or the judgment of the High Court of Valencia of 17 March 2003 (Telefónica v City Council of Albaterra). However, the litigation in this field was reduced when the national government enacted a technical regulation on the matter (Royal Decree of 28 September, 2001). There are several cases where the direct effect doctrine has been raised in front of national courts in relation to EU environmental legislation. The most usual references are made to Directive 85/337 (EIA of projects) and Directive 2001/42 (‘strategic environmental assessment, SEA, of plans), as well as to nature conservation directives (to a minor extent).9 The usual scenario for claiming the direct effect of those directives is the following one: a) A governmental agency approves a plan (land-use, transport, etc.) or a project (usually a public infrastructure), without performing either an EIA or a SEA. b) A local NGO, or a group of land-owners, challenges the legality of the administrative decision in the administrative courts. To support its claim, direct effect of the mentioned directives is invoked as a supplementary supporting argument. c) The administrative court usually recognizes such direct effect as an additional argument for accepting the plaintiff ´s challenge. In the case of the 85/337 Directive, the Spanish Supreme Court has in some cases supported the view that EIA are not only required for ‘projects’ as such and in the 9

The Spanish Supreme Court has indicated that Directive 79/409 has direct effect by declaring that public authorities do not enjoy discretion concerning the classification of SPAs, e.g., judgment of 26 February 2010, appeal 276/2006.

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narrow sense but also for ‘plans’, where those plans constitute the administrative decision that makes possible the building or realization of the infrastructure or of the project. Examples of such case law are the following judgments: judgment of 30 October 2003; judgment of 30 October 2009; judgment of 3 March 2004; judgment of 15 March 2006 (a partial land development plan in Miranda de Ebro). In other cases administrative courts have supported a different view, by declaring that the ‘plan’ under scrutiny could not be considered to be properly covered by EIA rules.10 An interesting case is the one adjudicated by the judgment of the High Court of the Balearic Islands (Administrative law chamber) of 8 November 2006. An NGO challenged a decision of the Regional Council of the Balearic Islands approving a modification in the Regional Roads Master Plan, by claiming that it was illegal, because a preliminary EIA had not been carried out. The regional court reasoned that such a ‘plan’ was not covered by either Directive 85/337 or the domestic legislation. Therefore, the lack of environmental assessment for the modified roads plan was not a sufficient reason to quash it. The same reasoning was applied by the same court in a subsequent legal challenge against the same roads plan, triggered in this case by a group of land-owners.11 Both rulings mentioned the Inter-Environnement Wallonie doctrine to support the position that, before the end of the transposition period of Directive 2011/42, no SEA was necessary for plans. In the case of Directive 2001/42, it is important to note that Spain failed to meet the transposition deadline of 21 July 2004. Transposition was performed by Act 9/2006, of 28 April, 2006, which entered in force on 30 April 2006. Administrative courts have, therefore, ruled that Directive 2001/42 had direct effect and, consequently, all land-use and similar plans approved by administrative agencies as of 21 July 2004 should have been subjected to a SEA, notwithstanding the fact that this requirement was not obligatory under domestic law until two years later. There are several administrative courts rulings on the same line. Most of them deal with the approval of some sorts of land use development plans. The doctrine is followed not only by the Spanish Supreme Court but also by High Courts of the Autonomous Communities, and the following rulings may be mentioned: • Judgment of 4 June 2010: challenge to the General Land Use Plan of the Municipality of Haria (Island of Lanzarote). This decision explicitly says (using a wording that is repeated in similar decisions ) that: ‘ the direct effect of the Directive on SEA is clear in respect with the land development plans and programs regulated in the urban planning legislation of the Canary Islands [...] the directive is clear and unconditional [...]’. • Judgment of 13 January 2010: challenge to the adaptation of the General 10 11

Judgment of the Spanish Supreme Court of 24 February 2004.

Judgment of the High Court of Balearic Islands (Administrative law chamber) of 22 February 2007.

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Land Use Plan of the Municipality of Ingenio. • Judgment of 3 September 2010: challenge to the General Land Use Plan of the Municipality of San Nicolas (Island of Gran Canaria). • Judgment of 17 June 2011: challenge to the Adaptation of land development regulations of the Municipality of Teror. • Judgment of 13 January 2010: challenge to the General Land Use Plan of Gáldar (Gran Canaria Island). Several of those judgments were appealed to the Supreme Court by the defendant regional government, but as a rule the appeals were unsuccessful. Spanish Courts neither consider whether international treaties may have direct effect nor submit a preliminary question to the ECJ requesting guidance on that issue (nothing surprising bearing in mind the very limited number of referrals). However, the Spanish Supreme Court concluded in a judgment of 25 June 2008 (appeal 905/2007) that the Aarhus Convention had been breached in a case concerning access to justice. It should be noted that the Court mainly referred to the Convention itself as part of Spanish law, but references were also made to EU law and to EU ratification of the Convention.



4.2 State liability

In the general field of administrative law, the higher courts have duly recognised and used the Francovich rule. This has produced a substantive enlargement of the scope of governmental liability in the way it was traditionally applied in Spanish law. But in the narrower area of environmental law, there is no case law to date. A slight environmental connection can, nevertheless, be found in the judgment of the Supreme Court of 22 December 2010. In this case a corporation working in the field of environmental services and called ‘Environmental Services of Galicia’ (Servicios ambientales de Galicia), claimed indemnities for a defective transposition of an EU Directive (the Sixth Directive on Value Added Tax) by means of the domestic Act on VAT. The key point was that the domestic legislation did not allow some fiscal deductions which were permitted under the Sixth Directive. In its ruling, the Supreme Court acknowledged that the domestic rule did not incorporate correctly the Sixth directive and, by citing extensively the Francovich and Factortame rulings, recognised the liability of the State and awarded the claimant more than ECU 1,4 million in compensation.



5 Procedural matters and barriers

As far as we know, there have been no cases where national procedural rules (e.g. limitation periods, standing and the like) have been held contrary to EU principles. However, the Spanish Supreme Court has held

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that environmental assessments (declaración de impacto ambiental) carried out by public authorities cannot be challenged in isolation.12 The assessment is a decision in itself but since it represents a prior step in a lengthy authorisation procedure, it can only be appealed against alongside the final decision on the plan or project. No preliminary ruling has ever been submitted to the CJEU requesting clarification as to the compatibility of this ruling with Article 8 of the EIA Directive. Likewise, the Spanish Supreme Court has held that urban plans are approved if the time-lapse for their adoption expires without an express decision.13 However, this conclusion contradicts CJEU decisions (admittedly concerning individual decisions), according to which neither the process of tacit authorisation nor that of tacit refusal can be considered to satisfy the requirements of certain directives, e.g., Directive 85/337, because otherwise it would be impossible to guarantee that the project was only granted after the conditions laid down by the relevant directive as to the content of the authorisation and the inquiry procedures prior to its grant had been met.14 In cases concerning the designation of SPAs, the Spanish Supreme Court has indicated that there is no need to guarantee the right to be heard because the directive does not mention it.15 Interim measures are not granted automatically. Plaintiffs have the burden to clearly identify a workable line of reasoning and the court has to make a balance between the possible public costs and the benefits of issuing a motion to stop the project. What is more, to secure suspension of the works the plaintiff must provide a guarantee, which maybe enormously costly. In EIA cases, the Spanish Supreme Court has held that the halting of a project due to the lack of EIA would otherwise resolve the subject-matter of the case, i.e., whether the project (e.g., a jail affecting a Natura 2000 site) should have been subject to EIA; however, in the Court’s view, Spanish procedural rules, namely Law 29/1998 on the jurisdiction of administrative law courts, precludes that outcome when granting interim measures.16 Spanish law does not set out any time limits for courts to decide on a request for the adoption of interim measures. In the above mentioned Natura 2000 case, it took nearly four months for the Supreme Court to make a decision, and by that time the project was almost executed. The Spanish Supreme Court has indicated in a judgment concerning EIA that the question whether EU law has direct effect or whether it overrules national law are issues included within the curia novit iura principle and that they must automatically be applied by courts.17 In addition, administrative litigation is inspired upon the ‘ex officio’ principle, which means that the court may raise any procedural or substantive question that is relevant to the case, even if 12 13

Judgment of Judgment of 17 November 1998.

Judgment of 27 April 2009, appeal 11342/2004; judgment of 30 September 2009, appeal 2978/2005.

14 15

Case C-230/00, Commission v Belgium.

Judgment of 20 May 2008, appeal 2719/2004.

16

Order of 13 July 2009; see further A. Garcia-Ureta, ‘Habitats Directive and jails: Why the Spanish Supreme Court has got it wrong’, (2011) Environmental Liability 53-62.

17

Order of 10 July 2002, appeal 860/2002.

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the parties have not raised them. Spanish procedural rules are aligned with the Kraaijeveld case, i.e., Articles 33(2) and 65(2) of Law 29/1998, on the jurisdiction of administrative law courts. These two provisions empower the courts to address on their own motion questions concerning the application of matters not addressed by the parties. So far, the Kraaijeveld case has been mentioned by the Spanish Supreme Court in EIA cases but mainly to affirm that the scope of Directive 85/335 is broad.18 The Audiencia Nacional has also mentioned Kraaijeveld by holding that the public authorities are under the obligation to carefully examine, if an Annex II project is likely to have significant environmental effects.19 The case has also been mentioned by the High Court of the Canary Islands.20 However, when courts invoke Kraaijeveld, they just mention this case amongst other references – there is no substantive analysis of the Kraaijeveld doctrine. A procedural matter, linked with Kraaijeveld, is also relevant. According to Law 29/1998, on the jurisdiction of administrative law courts, it is not possible to invoke new matters in appeal cases before the Supreme Court (casación). This type of appeal can only be based on the breach of rules already invoked before or considered by lower courts.21 Arguably, this position limits the application of Kraaijeveld in the sense that the Supreme Court would not consider on its own motion a breach of rules not previously invoked by the parties but relevant for the case despite the wording of Articles 33(2) and 65(2) of Law 29/1998. A regulation on judicial procedure, Law 37/2011 introduced new procedural rules within, among other areas, the Administrative jurisdiction. Prima facie, the goal of the law is to combat judicial slowness and to reduce the duration of lawsuits in the administrative courts. To this end, this Act establishes two new rules. First, for a case to be heard by the Supreme court (in a proceeding called ‘casación’ appeal), the case must involve a litigious issue with a monetary equivalence of value of, at least, €600,000 (the previous figure was € 150,000). The idea is to prevent unimportant cases reaching the Supreme Court. Second, the Act establishes that the litigation costs will be borne by the party that loses the case, in first instance or on appeal – previously, this ‘the loser pays’ rule applied only to appeals. A further matter to mention is the impact of Case C-128/09 Boxus. As the Court of Justice has conclusively held, Member States must guarantee access to a court when challenging a law adopting (or ratifying) a project subject to the EIA Directive (Article 9(2) of the Aarhus Convention). This is not possible under current Spanish procedural legislation. Laws can only be directly challenged before the Constitutional Court (unless any judge decides to submit a prelimi18

Judgments of 16 December 2004, appeal 4723/2001; of 15 March 2006, appeal 8394/2002; and of 20 December 2006, appeal 765/2004.

19

Judgment of 29 October 2010, appeal 651/2008.

20

Judgment of 15 January 2010, appeal 200/2009; judgment of 7 April 2008, appeal 1381/2003; judgment of 15 October 15 October 2008, appeal 883/2006.

21

Judgment of 18 July 2009, appeal 1833/2005.

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nary question to this Court requesting guidance). In any case, the Constitutional Court can only review the law in the light of the Constitution, and therefore the range of matters is limited; likewise the number of persons enjoying locus standi. Certain Autonomous Communities have approved projects subject to EIA to avoid likely challenges before administrative law courts, and laws have also been adopted to approve projects previously quashed by a court, as happened in the Itoiz dam case. In order to avoid a conflict between the Spanish Constitution and the Aarhus Convention, the outcome of the Boxus case arguably forces an amendment of Law 29/1998, on the jurisdiction of administrative law courts, by allowing those mentioned in Article 9(2) of the Aarhus Convention to challenge laws adopting projects under the EIA Directive and also plans under the SEA Directive. Finally, despite the reference in the Constitution to the participation of citizens in the administration of justice, Spanish administrative law does not allow for an amicus curiae permitting the submission of opinions by third parties not involved in a case and explaining to the court the likely complexities of the subject-matter.



6 References to the ECJ

The practice of Spanish courts in this domain is rather poor and unsatisfactory. So far only one preliminary ruling has ever been formulated by a Spanish court within the filed of environmental protection in the last thirty years since the accession to the European Communities in 1986. It has been argued in some judicial quarters that the lack of references to the CJEU may be the result of already slow judicial procedures in Spain, a further submission to Luxembourg exacerbating the situation and opening up the possibility of a case before the Strasbourg Court under Article 6 ECHR. The only preliminary ruling so far made in the field of environmental protection was C-142/07 Ecologistas en acción – CODA v city Council of Madrid’, of 25 July 2008. This preliminary ruling was submitted by a first instance administrative judge in connection with a challenge to the decision of the City Council of Madrid to carry out a massive project transforming an important ring highway in Madrid, called ‘M-30’. The local authority decided to execute the project without an EIA on the ground that the road was classified as an ‘urban’ road or street under Spanish law and ‘urban road construction projects’ did not fall within the scope of the Spanish rules implementing the EIA Directive at that time. The ECJ clarified the interpretation of Directive 85/337/EEC by holding that it had to be interpreted as meaning that it provided for environmental impact assessment of refurbishment and improvement projects for urban roads. After the ECJ ruling, the referring domestic court issued its judgment of 16 October 2008, which declared that the Madrid city council decisions were illegal. The City Council appealed this ruling in the Higher Regional court (admin-

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istrative chamber of Madrid), but the appeal was dismissed, and the ruling confirmed.22 The fact that the ECJ issued its preliminary ruling had implications for other cases that were connected with the main one. For instance, the judgment of the High Court of Madrid of 11 February 2011 (same date, but a different case than the one mentioned above) accepted an appeal brought by a group of citizens who had challenged the M-30 public works, but whose claims had been rejected by the first-instance court. That court had understood that no EIA was necessary for the project, but the ECJ ruling changed dramatically the understanding of the case in the appeal procedure. It should be observed that by the time the cases were adjudicated by the national court on the merits, the road project had already been completed and was fully operational. Apart from that case, the submission of a preliminary ruling is seldom asked by litigants in environmental cases , and usually with no success. Spanish courts apply in a rather correct way the legal reasoning and tests to decide about the importance and relevance of formulating such preliminary ruling. The following cases may be mentioned: a) In the judgment of the Supreme Court of 17 July 2009 the court refused to refer for a preliminary ruling. The national regulation on emissions trading scheme states that, when an installation is closed down, the company loses the emissions rights that were assigned to it and were not yet surrendered. In this sense, the plaintiff company claimed that the said domestic regulation was contrary to the European Directive 2003/87. However, the Supreme Court made its own interpretation of the case, and found that the system enshrined in the Spanish legislation did not openly contradict Directive 2003/87. The Court, therefore, refused to make a reference as demanded by the plaintiff. In fact, the European Court of First Instance had previously adjudicated a similar claim, in connection with the German system of allocation of tradable emissions, and found no contradiction with the directive. b) In the judgment of the Supreme Court of 29 May 2011 a group of municipalities submitted a challenge against a decision of the Council of Ministers of 28 March 2008, which authorized the transfer of waters between two water basins. Among other claims, the plaintiffs asked the Supreme Court to formulate a preliminary ruling on the interpretation of Directive 85/337, to see whether such transfer was covered by the directive. However, the plaintiffs did not elaborate any argument about the possible dubious interpretation of the directive. They did not produce a ‘reasonable shadow of a doubt’ as to the right interpretation of the directive. The court rejected the submission of a preliminary ruling on the ground that the matter was clear and that the preliminary ruling was not necessary. c) In the judgment of the Supreme Court of 27 July 2011 the same group of municipalities submitted a second challenge against a new decision of the Council of Ministers (in this case, of 18 July 2008, which authorized a second transfer of waters between the same two water basins). Among other 22

Judgment of the Higher Regional court of Madrid of 11 February 2011.

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claims, the plaintiffs also asked the Supreme Court to present a preliminary ruling on the interpretation of Directive 85/337, to see whether such transfer was included in the scope of application of the directive. Since the litigation was substantially identical as the one adjudicated by the ruling of 19 May 2011, the Court refused to do so. The Spanish Constitutional Court has only submitted one preliminary ruling in June 2011, in the context of the EU Framework Decision 2002/584 and the execution of an European arrest warrant. Previously, this Court had consistently refused to refer for preliminary rulings, when asked by the parties, by claiming that its strict role was to guarantee the proper interpretation and application of the Constitution.

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1 Context1

The United Kingdom joined the then European Community in 1973 at the same time as the Community was beginning to develop its environmental policy. Most of the national political discussion at the time was about the potential trade benefits of membership, and very little was said about the supremacy of Community law and its implications, even though the European Court of Justice had already well established the supremacy doctrine (Costa v ENEL). Before considering examples of environmental case law concerning the transposing doctrines of the European Court of Justice, it is important to understand the legal basis on which these doctrines are applied within the national jurisdiction. The United Kingdom has long adopted a dualist approach towards international law, avoiding any principle that international law should in some way be considered superior to national law. The leitmotif that has run through much of British constitutional law has been the notion of the sovereignty of Parliament, and, given that there was no written constitution to amend when Britain joined the European Community, accession was achieved by an ordinary Act of Parliament that ‘went so far as was thought possible in instructing British courts how to apply EC law in the future.’2 Section 2(1) of the European Communities Act 1972 which still applies, provided in the broadest of terms for the Community legal principles to become an integral part of the national legal system by requiring that: ‘All such rights, powers, liabilities, obligations and restrictions from time to time created by or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties and without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed and followed accordingly [...]’ [s 2(1)]

The implication of that section is that ‘the Act adopted at a stroke’3 within national law the body of existing Community law which was directly applicable – nearly all Community regulations, and those provisions of directives, decisions and the Treaties which have direct effect. As to the future, section 2 uses the term ‘from time to time’ implying that all future Community (and now Union) law which has direct application is to have similar effect. The Act goes on to provide expressly for the principles developed by the European Court to be recognized by courts at national level by providing in section 3 that: 1

I am very grateful to Heather Hamilton, LLM and solicitor, for assistance in the research.

2

A. Bradley, ‘The Sovereignty of Parliament – Form of Substance?’, in J. Jowell and D. Oliver (eds), The Changing Constitution Oxford University Press (2011) at 54.

3

C. Turpin, British Government and the Constitution, Weidenfeld and Nicholson (1990), at 333.

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For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court). (2)Judicial notice shall be taken of the Treaties, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of the EU or of any EU institution. 4

The broad implications of the European Communities Act was quickly recognized by the national courts. In 1974, the Court of Appeal noted, ‘The statute is expressed in forthright terms which are absolute and all-embracing. Any rights or obligations created by the Treaty are to be given legal effect in England without more ado.’5 The European Communities Act 1972 avoided a provision that expressly stating the primacy of Community law over existing and future national legislation, probably to avoid raising political sensitivities.6 But indirectly the legislation allows for this by providing in s 2(4) of the Act that: ‘[...]any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section [...]’ [emphasis added].

Since the Act provides for the doctrines of the European court to be recognized, this rather ambiguously worded provision has the effect of apply the primacy doctrine to future national laws. This, though, in itself raises a potential conflict between long established national legal principles based on the notions of the sovereignty of Parliament that where there is a conflict between a later and earlier piece of legislation, the later provision prevails as representing the most recent will of Parliament. So if a post-1972 piece of legislation appears to conflict with EU law – and no amount of consistent interpretation can resolve the issue – do the implications of the 1972 Act that EU law will prevail continue to apply, or should the court assume they are effectively disapplied by the more recent norms? The issue was eventually largely resolved in the Factortame litigation in the early 1990’s where a conflict between national legislation passed in 1988, the Merchant Shipping Act, and Articles of the European Treaty were at issue. The House of Lords, the highest court, followed a decision of the European Court of 4 5

European Communities Act 1972 as amended European Union (Amendment) Act 2008.

Per Lord Denning, Bulmer v Bollinger SA [1974] Ch 401, 419. In the same case, Lord Denning described the effect of Community law in vivid terms – ‘[...] When we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’

6

Turpin, fn 2 supra, at 334.

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Justice7 and was prepared to grant interim relief to suspend the operation of a statute, the Merchant Shipping Act 1988, passed after the European Communities Act 1972 and alleged to be in conflict with Treaty Articles. At the time, the lead judgment of Lord Bridge dampened any conclusions that the decision represented a major challenge to the sovereignty of Parliament: ‘If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the E.E.C. Treaty (Cmnd. 5179-II) it was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.’8

Subsequently, many of the senior judiciary, both in case law and speaking extrajudicially, have explained the approach to resolving conflicts between European and national law as essentially one of statutory construction of national legislation, a clearly attractive approach meaning that ‘Clashes between EU law and national law can be reconciled while preserving the formal veneer of national sovereignty.’9 Under this approach the national doctrine that provides an implied repeal of earlier legislation that conflicts with later legislation does not apply to fundamental laws such as the European Communities Act which can be described as ‘constitutional statutes.’10 Only in the case of ‘[...] express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible’11 could the provisions of the European Communities Act not apply, an approach that echoes the contra legem principle of the European Court. National courts have become increasingly familiar with European doctrines, and there have been no major doctrinal disputes concerning conflicts of supremacy, since the key principles are seen to derive from the broad wording of an Act of Parliament.12 Ten years or so, it used be said that the lower courts were variable in how they treated European Union law, the Court of Appeal tended 7

Case C-213/89 R v Secretary of State for Transport ex parte Factortame [1990] ECR I-2433.

8

 R v Secretary of State for Transport ex parte Factortame Ltd (NO 2) [1991] 1 AC 603 para. 4.

9

P. Craig, ‘Britain in the European Union’, J. Jowell and D. Oliver (eds), The Changing Constitution Oxford University Press (2011) at 119.

10 11

per Laws LJ Thorburn v Sunderland City Council [2003] QB 151 para. 62.

Ibid, para. 63.

12

Aside from the EU legal principles, the introduction of the Human Rights Act 1998 has also fundamentally shifted the relationship of the courts to legislation, and contains the requirement that, ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

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to be rather more nationalistic and was reluctant to make referrals, while the House of Lords (now the Supreme Court) was far more alive and sensitive to the implications of European Union law. But the picture is now far more nuanced, and there is a greater familiarity with and sensitivity to EU issues at all levels.



2 Environmental Law and the EU Doctrines

Despite the early acknowledgement by the higher courts of the implications of the superiority of EU law, and acceptance of the doctrines of direct effect and sympathetic interpretation, it was not until the 1980’s and early 1990’s that environmental litigation, especially involving judicial review against decisions of public bodies, began regularly to see EU issues being raised. The results were often dispiriting with national courts often making questionable decisions, showing a reluctance to make a reference to the Court of Justice, and avoiding applying EU principles to upset familiar practice.13 For example, the Scottish Court of Session held that because public authorities had discretion under the EU Environmental Assessment whether to apply assessment procedures to Annex II projects, then none of the provisions could have direct effect in relation to such projects.14 The High Court held that a decision whether a proposal fell with one of the project classes in the Strategic Assessment Directive was solely a matter of discretion for the public authority, unless they had acted wholly irrationally,15 an approach rejected by the Court of Appeal two years later who rightly held that classification issues were essentially a question of law.16 In 1994 the High Court doubted whether the drinking water directive gave any Community rights to Friends of the Earth, a national NGO.17 Even where the courts accepted that Community law had been infringed, they often refused to exercise their discretionary powers to grant a remedy. In environmental assessment cases, they argued that the information was available in some form, or that there would have been no difference in the final decision had the directive been applied,18 or that the applicant had suffered no prejudice.19 A statistical analysis of reported case law indicated that between 1973 and 1998 European legal issues were raised in over 1000 cases, but the majority of case law concerns a fairly narrow spread of the European Community law, 13

For a gloomy assessment of this period see C. Hilson, ‘Community rights in environmental law – rhetoric or reality?’, in J. Holder (ed), The Impact of EC Environmental Law in the United Kingdom, Wiley, Chichester (1997).

14 15

 Kincardine and Deeside District Council v Forestry Commissioners [1993] Env LR 151.

R v Swale Metropolitan Borough Council ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6.

16 17

 R (Goodman) v London Borough of Lewisham and Big Yellow Property Company Ltd [2003] EWCA Civ 140.

 R v Secretary of State for the Environment ex parte Friends of the Earth (1994) 2 CMLR 760.

18

 R v Poole Borough Council ex parte Beebee and others (1991) JEL Vol 3, 293, Wychavon District Council v Secretary of State for the Environment and Velcourt Ltd (1994) JEL Vol 6 351.

19

 Twyford Parish Council v Secretary of State for Transport (1992) JEL Vol 4 273.

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notably taxation, sex discrimination, free movement, and intellectual property.20 But in the area of the environment, the figures indicated only 39 cases, of which 31 were in the period 1995-1998’.21 In the environmental field, a key turning point concerning the impact of EU environmental law, particularly in the question of discretionary remedies, was the 2001 decision of the House of Lords in Berkeley v Secretary of State concerning the environmental assessment Directive. No environmental assessment had been undertaken in the case, but the lower courts including the Court of Appeal had adopted the conventional national approach, holding that all the information was around at the time, and that there would have been no difference to the final decision even if a formal EA had been undertaken. The House of Lords utterly rejected this approach and quashed the decision, emphasizing that the directive was as much about public participation as anything: ‘The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues [...]. A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues.’ [Lord Hoffman]

Furthermore, while UK courts still have a discretion as to a remedy to be granted where illegality is found, the House of Lords signaled that when it came to non-compliance with EU law, the discretion was severely limited: ‘I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under Article 10 (ex Article 5) of the EC Treaty to ensure fulfilment of the United Kingdom’s obligations under the Treaty’. [Lord Hoffman]

The decision sent a powerful signal to lower courts of the need to respect the requirements of EU environmental legislation. One consequence of the case was that those wishing to challenge developments were encouraged to look for the slightest of variation from EU EIA requirements as a basis of challenge, but the Court of Appeal in a number of decisions warned against a blind appli20

D. Chalmers, The Much Ado about Judicial Politics in the United Kingdom Jean Monnet Centre for International and Regional Economic Law and Justice, NYU Law School Working Paper 1/00 (2000).

21

Ibid, III.

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cation of the rules, arguing that EIA procedures were meant to be an aid to decision-making rather than a legal obstacle race. Very recently, the Supreme Court (which has replaced the House of Lords) has suggested that in relation to national remedies EU law gives more discretion that the Berkeley decision suggested (see below on National Procedural Rules). Full transposition of a Directive should avoid the need of raising doctrines such as direct effect or consistent interpretation, and the UK Government have become more sensitive to the requirements of transposition. In the environmental field, it has be said that in the early days, the UK Government tended to view Directives ‘as helpful if eccentric recommendations to be gently eased into the United Kingdom scheme of things, ideally by government circular rather than legislation and ideally without cost.’22

Formal transposition has improved over the years (though still with delays from the devolved jurisdictions such as Northern Ireland), but there remains some significant gaps (such as access to justice provisions) where given the absence of comprehensive transposition measures, court intervention and the use of direct effect doctrines have proved important. Despite a general picture of improved formal transposition, national environmental case law over the last ten years illustrates that the ‘transposing’ principles of the European Court of Justice – the direct effect doctrine and the principle of consistent interpretation – still come into play in environmental cases. Research for this contribution has been confined to those decisions that are reported, and this creates a bias in favour of cases that are considered to be significant and raise novel issues of law.23 Research has suggested that, in line with the national report from the Netherlands, the doctrine of consistent interpretation is generally applied more widely by British courts than direct effect,24 though in the last ten year period in the environmental field direct effect cases appear to have been predominant.



3 Direct Effect

In the last ten years, there appear to be around twenty reported cases in the higher courts (High Court, Court of Appeal, Supreme Court) where 22

D. Wyatt, ‘Litigating Community Environmental Law – Thoughts on the Direct Effect Doctrine’ JEL (1998) 10(1) 9-19.

23

Case law search has been confined to the last ten years, and mainly conducted through LEXIS and BAILII data-bases which pick up most of the important UK decisions. Web-sites of some of the chambers of specialist environmental barristers has also provided information on recent cases.

24

D. Chalmers, ‘The Positioning of EU judicial politics within the United Kingdom’, [2000] 23 WEP 169, 190.

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the direct effect doctrine has been raised in relation to environmental directives. In a number of cases, the parties have simply raised the issue, without it being germane to the actual decisions of the court, but some of the key decisions are as follows:



3.1 Substantive Areas

(a) Environmental Assessment There seems to be a much greater acceptance these days by both government lawyers and the courts that the EA Directive has direct effect generally. This is in sharp contrast to decisions in the early 1990’s where national courts have held, i.a., that the direct effect doctrine could not apply to Annex II projects because of the discretionary element involved. R (on the application of Gavin) v Haringey London Borough Council [2003] EWHC 2591 (Admin) concerned the urban development of a site, and it was argued that environmental assessment procedures had not been followed. The actual case was lost by the applicants due to delays in bringing proceedings, but the High Court had no doubt that the directive created directly enforceable rights: ‘[...] Berkeley makes clear that individuals affected by the development have a directly enforceable right to have the need for an environmental statement considered before the grant of planning permission and that, where the question has not been considered, it is not normally permissible for the court to withhold relief in the exercise of its discretion.’

Walton et al v Scottish Ministers [2011] CSOH 131 was a decision of the Scottish Court of Sessions concerning the legality of a ring road.25 Those challenging the decision claimed that they have not been given an early right of participation as provided in Art. 6(4) of the Environmental Assessment directive, reflecting Aarhus Convention requirements.26 The reference to early participation was not mentioned in the transposing regulation, but the Court had no doubt that they could be invoked on direct effect principles: ‘it was common ground that if full and effective transposition had not been achieved, the appellants could rely upon the direct effect of the EIA Directive as amended [...] I proceed upon the basis that the appellants had a directly effec25

On appeal the Supreme Court in 2012 held that changes to the road scheme did not require any fresh environmental assessment but the judgment contains important observation concerning national judicial discretion where EU law is concerned – see below – National Procedural Rules.

26

Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (codification): ‘The public concerned shall be given early and effective opportunities to participate in the environmental decision- making procedures referred to in Article 2(2) [...]’ (art 6(4)).

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tive Community law right under Article 6(4) to early public participation, when all options were open and effective public participation could take place.’ [para. 32]

After a lengthy examination of the facts the court concluded that there had in practice been sufficient opportunities for early participation to meet the requirements of the directive. (b) Access to Justice Provisions in Environmental Assessment Directive concerning access to justice In the last two years the British courts have held that provisions in the access to justice requirements of the Environmental Assessment Directive as amended to reflect Aarhus and providing, i.a., that review procedures before an independent court or tribunal ‘shall be fair, equitable, timely and not prohibitively expensive’27 have direct effect. This is highly significant. The ‘not prohibitively expensive’ requirements have not to date been transposed into national legislation concerning environmental assessment and integrated pollution and prevention control, and there is a long running dispute between the UK Government and the European Commission as to whether costs rules in the UK satisfy the Aarhus requirements, especially given that in public law cases the losing party must generally pay the winning party’s legal costs. The issue is now going to the Court of Justice of the European Union in an infringement action brought by the European Commission.28 The Government avoided transposition, essentially leaving this to court discretion over costs. The Aarhus Convention itself cannot be invoked directly before UK courts because of the strict dualist approach to international law applies, and the potential direct effect of the provisions reflected in EU environmental directives therefore becomes highly important in terms of national remedies. In one of the first cases to refer directly to the issue the Court of Appeal in Morgan and another v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107 doubted whether the Court procedural rules giving wide discretion to the courts in handling costs would satisfy EU law and its need for certainty and transparence, though since the case involved a private nuisance dispute the actual directives were not in issue: ‘Certain EU Directives (not applicable in this case) have incorporated Aarhus principles, and thus given them direct effect in domestic law. In those cases, in the light of the Advocate-General’s opinion in the Irish cases, the court’s discretion may not be regarded as adequate implementation of the rule against prohibitive 27

Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (codification) Art. 11(4).

28

Europa Press Release 6 April 2011 IP/11/439 ‘Environment: Commission takes UK to court over excessive cost of challenging decisions’.

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costs. Some more specific modification of the rules may need to be considered.’ [para. 47]

R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006 was a dispute over the legality of planning permission granted by a local authority for the comprehensive development of a railway station close to one of London’s major historic palaces, Hampton Court. Unlike the Morgan case, the EU Environmental Assessment Directive was potentially applicable. In preliminary proceedings, the applicants who were not excessively wealthy sought a Court Order to limit their exposure to costs should they eventually lose the case. UK Courts have long a discretion to limit such exposure by granting in advance a ‘Protective Costs Order’, but in 2005 the Court of Appeal in a nonenvironmental case29 laid down general principles providing that such Orders should only be granted in cases raising issues of general public importance and where the claimant had no private interest in the matter. These qualifications (general public importance and no private interest) are not reflected in the access to justice provisions in the directive, and the Court of Appeal held that these conditions could not apply where the directives as amended applied through the direct effect doctrine: ‘It is common ground that the Directive has a direct effect in our domestic law. In such a case, the Court of Appeal recognised in Morgan (see paragraph 47(ii)) that some more specific modification of our domestic costs rules may be required’. [para. 32]

Later the Court concludes that ensuring compliance with the directive’s provisions on access to justice is a matter of general importance: ‘[...] under EU law it is a matter of general public importance that those environmental decisions subject to the Directive are taken in a lawful manner, and, if there is an issue as to that, the general public interest does require that that issue be resolved in an effective review process’. [para. 39]

The Court also invoked Marleasing principle of consistent interpretation (see below) to justify a change in approach. The decision is especially significant in the UK context, because strict rules of precedent normally provide that the Court of Appeal must follow a previous decision of the Court of Appeal on the same legal issue, leaving any resolution to be determined by the Supreme Court. Here the Court clearly felt uninhibited by such precedent principles, and held that the direct effect requirements justified a distinction being made from previous case law.30 29 30

 R Corner House Research v the Secretary of State for Trade and Industry [2005] 1 WLR 2600.

Another way of analysis the decision which reduces the conflict between the previous Court of Appeal decision is that here the Court simply held that any issue involving the correct application of EU law

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Another recent case concerning a Protective Costs Order involved a challenge by objectors to the legality of a grant of planning permission for a biomass waste plant, the High Court had no doubt that the Environmental Assessment directive had direct effect. In Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 the court noted: ‘There is no dispute but that the Defendant’s decision to grant planning permission to the First Interested Party for a power station at Avonmouth is a decision to which Directive 85/377 EEC (as amended) applies. It is also common ground that the Directive has a direct effect’. [para. 10]

On the facts, however, the court held that the objectors who came from another part of the country were not members of the ‘public concerned’ with the terms of the directive and therefore the directive was not relevant in the decision concerning the Protective Costs Order.



3.2 General Conditions for applicability of Direct Effect

Cases continue to arise where a directive is invoked, but its provisions are held not be sufficiently precise or unconditional to have direct effect. In Ardley against Incineration v Secretary of State for Communities and Local Government [2011] EWHC 2230, local residents challenged the legality of the decision to approve a waste incineration plant, on the grounds, i.a., that local concerns about air pollution had not be properly addressed and that Art. 13 of 2008 Waste Directive (‘Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment…’) had direct effect. The Court of Appeal held that it did not have direct effect, hardly too surprisingly a conclusion given that the ECJ had already made the same point in relation to Art. 4 of the 1975 Directive, its predecessor:31 ‘Article 13 sets the objectives which have to be achieved but it does not prescribe unequivocally what in any particular case those objectives may require. Its implementation requires decisions by national authorities. It is thus neither unconditional nor sufficiently precise to be directly relied on by individuals.’ [para. 57]

Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 concerned a request for information under UK Environmental Informaraised issues of general public importance – see judgment at para. 39: ‘Under community law it is a matter of general public importance that those environmental decisions subject to the Directive are taken in a lawful manner, and, if there is an issue as to that, the general public interest does require that that issue be resolved in an effective review process’. 31

Case C-236/92 Comitato di coordinamento per la Difesa della Cava and others v Regione Lombardia and others [1994] ECR 1-483.

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tion Regulations which Government claimed was exempt from disclosure on grounds that these were internal communications and no public interest outweighed to justify disclosure. The Government challenged the reasoning of the Information Tribunal which had granted the request for information, and most of the argument concerned the interpretation of the UK transposing regulations and the application of the relevant tests. The Court, however, traced the history of information regulations and the EU Directive 2003/4/EC on Public Access to Environmental Information. None of the parties had argued that the national regulations did not transpose the directive correctly, but the court held, without further discussion: ‘The Directive has direct effect as regards its object in domestic law, but it is otherwise not of direct effect. It is, however, a powerful aid to the interpretation of domestic legislation passed into law to give effect to it.’ [para. 20]

It is frankly rather unclear what is meant by the objective having direct effect, or the distinction being made by the court. Article I of the directive contains two ‘Objectives’ which are expressed in broad terms, and unlikely to be held to have direct effect in its conventional sense, especially if other more precise provisions of the directive do not. In an economic structure where many public services have been privatized, the division between the state and the private sector has become far more blurred, and the core condition for direct effect that it involves an emanation of the state becomes less meaningful. The issue has been raised in a number of recent environmental cases, though in the event not proved conclusive. In 3C Waste Ltd v Mersey Waste Holdings Ltd and another [2006] EWHC 2598 the court was considering the validity of waste disposal contracts. Mercy Waste was a wholly owned subsidiary company of the local authority – the court considered it raised ‘interesting issues’ as to whether the company was an emanation of the state for the purpose of direct effect of the Landfill Directive, but did not have to deal further with this issue in resolving the case. In an interesting and controversial decision the Upper Tribunal (equivalent to the High Court in legal standing) held in Smartsource v Information Commissioner and a Group of 19 additional parties [2010] UKUT 415 that a privatized water company was not a ‘public authority’ for the purposes of the Environmental Information regulations. Earlier case law had held that such privatized authorities were emanations of the state for the purposes of the direct effect doctrine (in EC employment law),32 but the Tribunal held the tests were not necessarily the same.33 The fact that the authorities received no subsidies from government and had private shareholders were significant factors: 32 33

 Griffin v South West Water Service Limited [1995] IRLR 15.

‘The fact that a privatised water company was found to be a State authority against which the Directive was in principle capable of direct enforcement cannot be decisive in applying the test for a public authority under the EIR 2004.’ [para. 59]

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‘The notion of a ‘public authority’ is both place- and time-specific. We have already identified the differences that exist within the United Kingdom, without having to refer to differences across Europe as a whole today. As regards the passage of time, the Information Tribunal observed in the Network Rail case that ‘Whatever the position in 1947, running a railway is not seen nowadays in the United Kingdom as a function normally performed by a government authority.’ In the same way, perceptions of the water industry have shifted over time.’ [paras. 105/6]

In two fairly recent environmental cases, the courts have had to consider whether the state itself can claim benefit of the direct effect doctrine. In United Utilities Water plc v Environment Agency for England and Wales [2007] UKHL 41 the claimant argued that no IPCC permit was required for certain sewerage sludge works. The case reached the House of Lords, but in the Court of Appeal part of the argument concerned the question whether national transposing laws had mistakenly extended the ambit of the directive concerning activities on the same site. Though the issue was not raised by the parties, the Court of Appeal34 considered whether Directive could have direct effect in this context but rejected argument: ‘Though we have not heard argument as to the jurisprudence relating to the ‘direct effect’ doctrine, I should say that I greatly doubt whether such a submission could properly have been made. The Environment Agency is an arm of the State, and the State was of course responsible for transposing the IPPC Directive into domestic law. If it has been transposed on a basis too onerous to the State regulator, I do not consider that the State can take advantage of the mistake. The Environment Agency must, so to speak, live or die by the PPC Regulations.’ [para. 42]

Another decision concerned a dispute between two local authorities. In R (on the application of Westminster City Council and another) v Mayor of London [2002] EWHC 2440 (Admin), a London Borough Council challenged the Mayor of London’s decision to introduce a traffic congestion charge in Central London, partly on the grounds of a failure to conduct an environmental assessment. Considering whether the directive had direct effect, the court noted that the both parties were emanations of the state, and held the direct effect doctrine could not be invoked by one emanation of the state however innocent against another part of the state: ‘I conclude that the language used in the Court of Justice and in the English cases – ‘individuals’, ‘citizens’, ‘a recognised interest in implementation’ – is deliberate. It does not extend to public authorities.’

The leading case concerning the indirect horizontal impact of the direct effect remains UK R v Durham County Council Ltd and others, ex parte Huddleston 34

[2006] EWCA Civ 633.

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[2000] All ER (D) 297, just over ten years old but still quoted today. It concerned the application of the environmental assessment directive to old mining permissions. An owner wishes to revive an old planning permission after the EA Directive came into force, but the national transposing legislation had failed to apply the directive, wrongly, to such cases. The decision of the local authority to grant the permission was challenged by a local resident and the question was whether the application of the direct effect doctrine would alter the legal relations between the owner and the local citizen or as the court put it, ‘is this the forbidden territory of horizontal direct effect?’ The court noted ECJ decisions such as Bozen and Fratelli Costanzo, and held that the direct effect could be invoked here. Requiring the developer to obtain a permission before he proceeded with a development did not make his existing conduct criminal or affect private relationships in the way prohibited by the ECJ. ‘To read “the imposition on an individual of an obligation laid down by a directive which has not been transposed” as including the application to an individual of conditions laid down by such a directive for the grant of a necessary permission by the state would be to nullify the Court’s decisions and reasoning in Paftitis, Smith & Nephew, Costanzo and Bozen [...] what is at issue in the present case is on what terms the local state can lawfully authorise a particular activity for which the company requires the state’s permission. As the manner of bringing the claim underlines, this is a pure question of public law: that is to say, a question of the limits of the state’s powers in a field where authority has been delegated by Parliament to what is now the European Union.’

The issue of so-called principle of Inverse Direct Effect has been raised in one recent case, Wirral Borough Council v Brock plc [2004] EWCA Civ 1611 though in the event did not prove decisive to the actual decision. Essentially, the local authority tried to require a private applicant, Brock, to submit an Environmental Statement in accordance with the directive, even though the then national transposing regulations wrongly failed to apply to the directive to this type of case. The Court of Appeal noted the force of the local authorities arguments that: ‘The authorities seem to establish that an individual may enforce a Directive against the State when the State has not implemented the Directive. There is also support for the proposition that the courts will not impose obligations derived from a Directive on private parties. Those propositions support Brock’s submission that to disregard the rights given to Brock under paragraph 9(9) of the Schedule would, upon assumptions being made, amount to giving direct effect to the Directive against an individual. However there is force in the Council’s submission that, if the Directive can be enforced at the suit of an individual as against the Council, and therefore indirectly against Brock, it is odd that the court, in litigation between Brock and the Council, should not give effect to it. The answer may

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be that the Council have in their power a remedy namely that they can revoke the conditions subject to paying compensation if appropriate. [para. 48]

But the judge indicated that if it had been decisive, he would not have permitted the local authority to enforce the directive in this way.



4 Consistent/Sympathetic Interpretation

As mentioned above, the doctrine of consistent interpretation appears to have been applied more often than direct effect, when one looks at cases generally. Certainly, Marleasing is quite often raised in environmental cases and acknowledged by the judges, but consistent interpretation does not seem often to have a significant impact on outcomes. But in a recent case concerning environmental assessment, it was of critical importance. R (on the application of Baker v Bath and North East Somerset Council [2009] EWHC 595 (Admin), concerned an extension of a waste management site falling within Annex II of the environmental assessment directive. The UK transposing regulations stated that when it came to assessing the likely significant impacts of an extension to determine whether it required environmental assessment, the authority should confine itself to the likely impacts of the extension only rather that the whole site as extended. No such limitation appears in the directive itself, and the High Court felt able to disapply the offending words in the regulations: ‘This court clearly is able to disapply a particular provision of the regulations if that provision is inconsistent with a Directive which it purports to implement and that is what I am asked to do in the circumstances of this case [...].’ [para. 35]

The court concluded that, indeed, there was an inconsistency between the transposing regulations and the obvious intention of the directive: ‘I have come to the conclusion that the regulations do not [...] properly implement the Directive. This is because they seek to limit consideration for the purposes of screening to consideration of the change or extension on its own. That is, in my view, contrary to the purpose of and the language of the Directive and the approach that should be adopted as set out by the court.’ [para. 53]

The relevant planning permissions were quashed by the court and until Government amended the regulations one would presume that local authorities, when handling planning applications, were entitled and indeed obliged to ignore the offending words in the regulations.35 35

Schedule 2 Town and Country Planning (Environmental Impact Assessment) Regulations 2011/1824 now reflects the judgment.

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R (on the application of Anti-Waste Ltd) v Environment Agency [2007] EWHC 717 was a complex case exploring whether the Landfill Directive and the UK implementing regulations allowed permits for landfill waste disposal on top of pre-existing closed landfills. As part of its approach, the Court noted: ‘I remind myself that a national measure which is enacted in order to implement a Directive must be interpreted as far as possible, in the light of the wording and the purpose of the Directive, in order to achieve the result pursued by the Directive: see Marleasing [1990] ECR I-4135, [1992] 1 CMLR 305, [1993] BCC 421. The courts’ obligation to achieve, so far as possible, the result the Directive has in view exists whether or not the national law has specifically enacted legislation which purports to implement the Directive: see Connect Austria [2003] ECR I-5197 at para. 38. Thus if there is any ambiguity in the national law, the wording and the purpose of the Directive must prevail.’ [para. 7]

In the event the court decided that the directive and the Regulations did permit this sort of activity. And, as the Court of Appeal noted in a case United Utilities Water plc v Environment Agency for England and Wales [2006] EWCA Civ 633: ‘It is elementary that a national measure purporting to implement a Directive must be interpreted ‘as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter’: Marleasing [1990] ECR I-4135, [1992] 1 CMLR 305, [1993] BCC 421’. [para. 25]

R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006 (discussed above under ‘direct effect’) is unusual – and particularly relevant to a common law jurisdiction – in that the principle of consistent interpretation was applied not to a piece of national legislation but to previous principles laid down by the courts. The case concerned costs principles in the courts, and the Court of Appeal concluded that a previous decision of the Court of Appeal laying down principles of protective costs orders applicable to all classes of cases was inconsistent with the access to justice requirements in the environmental assessment Directive. Generally, court made precedent rules dictate that the Court of Appeal is bound by its previous decisions of the Court of Appeal on the same point.. As the court noted: ‘The Corner House principles are judge-made law and in accordance with the Marleasing principle [...] those judge-made rules for PCOs must be interpreted and applied in such a way as to secure conformity with the Directive.’ [para. 39]

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5 Francovich State Liability There do not appear to be any environmental cases where claims for compensation have successfully been made. Bowden v South-West Water Services Ltd (Court of Appeal [1999] 3 CMLR 180 remains the closest such application of the principle in an environmental case. A mussel fisherman had suffered income loss, because local fisheries had been restricted due to pollution levels being in breach of relevant EU directives. The courts found that he had no right of compensation under national law, and in the High Court the judge held that none of the directives created rights for fisherman meaning that Frankovitch principles could not apply. The Court of Appeal, however, concluded that the Shellfish Waters Directive (79/923/EC) could be interpreted as creating individual rights, though the issue did not have be determined by the Court since this was a preliminary hearing36 where the defendants sought to strike out the case as disclosing no cause of action: ‘Turning to the words of the Shellfish Directive (79/923/EEC), the recitals make clear that the purpose of the Directive is to safeguard shellfish populations from various harmful consequences. The directive had in mind that the failure to protect the shellfish populations could result in unequal conditions of competition which suggests that those who collect and market shellfish may have been intended to have a right of reparation if there was a failure to implement the Directives requirements. As is so often the case, the statement of the principles which should guide the court in reaching a decision is easier than the application of those principles to specific circumstances. I do not regard the plaintiff’s claim that the Directive was intended to confer a right upon him as unarguable, though I emphasise that it will be for the court which finally hears this case to decide the question. I do not think this averment should be struck out at this stage.’

But in a recent case Cooper v Attorney-General [2010] EWCA Civ 464, the Court of Appeal considered a damages claim based on the erroneous decisions of the Court of Appeal (as made clear in a subsequent decision of the European Court of Justice) in previous cases on environmental assessment, included the fact that no reference to the ECJ had been made. After a detailed analysis of the Köbler case law, and the actual facts and decisions in questions, the Court concluded there had not been a sufficiently serious breach of Community law to justify a claim: ‘In our judgment, in all the circumstances set out above, the failure to make a reference on the ‘development consent’ point at the time of the first impugned decision, and even more at the time of the second decision, was excusable and did not amount to a sufficiently serious breach of Community law to engage Köbler 36

It appears that no claim was eventually made because the sums were reasonably small compared to the expence of bringing and proving the claim.

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liability. The domestic courts considered the point and reached a different view from the Court of Justice on a matter of interpretation.’ [para. 114]



6 National Courts Considering EU Law of Their Own Motion

In Kraaijeveld (Case C-72/95 ELR 1996 I-5403) the Court of Justice held that the general Treaty obligation of Member States to take all necessary measures to ensure the effective application of directives applied to national courts for matters within their jurisdiction. The judgement does not quite hold explicitly that national courts are obliged to raise issues of EU law if not put forward by the parties, but states this must be the case where by virtue of national law, courts are obliged to raise points of national law on their own motion. Equally, where there is a discretion to do so: ‘The position is the same if national law confers on courts and tribunals a discretion to apply of their own motion binding rules of law. Indeed, pursuant to the principle of cooperation laid down in Article 5 of the Treaty, it is for national courts to ensure the legal protection which persons derive from the direct effect of provisions of Community law’. [para. 58]

UK legal tradition, even in the field of public law, still rests very much on the adversarial approach with opposing parties expected to raise all relevant issues of law before a judge who may well not be expert in the field of law concerned. The concept of a court have an obligation to raise EU issues of its own motion, therefore, remains especially challenging in this context, and the Court of Appeal to date has shown they are not happy with lawyers who in their view, exaggerate the implications of Kraaijeveld. In Cooper v AG [2010] EWCA Civ 464, the Court of Appeal was clearly uncomfortable with the idea of the Court itself raising issues, and declined to do so: ‘A national judge applying Community law is not expected to do more, by way of taking a point of his own motion, than a judge would normally be entitled or bound to do in his jurisdiction. If the position were otherwise, it might give rise to issues of a fundamental constitutional nature.’ [para. 79]

Condron (R on the application of) v Merthyr Tydfil County Borough Council & Ors [2010] EWCA Civ 534 concerned the Environmental Assessment Directive where the lawyer for one of the parties suggested that in addition to questions for possible referral to the ECJ, the court was obliged to consider other aspects of the directive not addressed by them. The Court was clearly frustrated with

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the way the claimant’s lawyers had handled the case, raising late issues etc., and noted that: ‘The court is not obliged to deal with points raised in this way, and for the reasons given in paragraphs 79 and 104 of Cooper v Attorney General [2010] EWCA Civ 464, there is no obligation on this court under European Union law to take a point which a party has elected not to take at the due time.’ [para. 42]

In a more recent case, again the Court of Appeal has rejected an over ambitious interpretation of Kraaijeveld. In Ardley against Incineration v Secretary of State [2011] EWCA Civ 1408, the Court of Appeal refused to allow the applicant to raise new points out of time and amend their grounds of appeal: ‘I am satisfied that the refusal of permission to amend on this, and on the point I have previously covered, is a permissible and proper application of ordinary procedural rules of national law and engages no issue of EU law. I do not accept Mr Buxton’s contention that Case C-72/95 Kraaijeveld, in referring at paragraph 60 to the obligations of the national court, lays down, even arguably, any principle that displaces the normal procedural rules of national law or somehow provides a trump card requiring this court to allow EU points to be taken at a stage where such points could not be allowed to be taken under the national procedural rules.’



7 Procedural Rules



7.1 Limitation Periods

The approach to limitation periods for bring judicial review claims has recently been changed by the courts in relation to cases involving EU environmental law. Under court procedural rules a claim for judicial review must be brought ‘promptly’ and in any event within 3 months of the relevant decision; the courts have held that it is dangerous to assume that keeping just within the 3 months is sufficient – depending on the circumstances, promptness may require a claim to launched earlier. In Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] PTSR 1377 the CJEU held that a similarly worded time-limit in regulations concerning public contracts was contrary to requirements of legal certainty under EU law – the ‘promptness’ test gave too much discretion to individual judges, and was not sufficiently predictable. In two recent cases, the British courts have held that there is no reason to confine the reasoning of Uniplex to EU legislation concerning public contracts, and that it should be extended to other areas, including EU environmental law. In R (on the application of Buglife v Medway Council [2011] EWHC 746 the court held:

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‘The requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the Directive in a national court has general application to such enforcement proceedings arising out of any directive’. [para. 63]

The promptness requirement was not applied, and the same approach was adopted in R (on the application of U & Partners (East Anglia) Ltd) v Broads Authority [2011] EWHC 1824. Although the judge felt obliged to follow Uniplex he criticized the reasoning of the court and felt that they had failed to understand that a court’s discretion in UK law had to be applied in accordance with principles. In the most recent case on the issue of limitation periods, R (on the application of Macrae) v County of Herefordshire District Council [2011] EWHC 2810, the court held that these principles only applied to cases where EU law was involved. In a case such as the present which concerned only UK domestic planning law, the promptness test still applied.



7.2 Judicial discretion as to remedies

Even where a decision of a public body is found to be illegal, national law gives judges considerable discretion as to whether to quash the discretion or not. In the early days of dealing with EIA and the EIA Directive, courts often asked themselves whether compliance with the requirements would have had any impact on the decision in question, and if not the decision would not have been quashed. The 2001 Berkeley decision of the House of Lords (then the UK’s highest court ) argued that where EU law was involved that discretion was extremely limited if not non-existent, because of the court’s overriding duty to ensure that EU was effectively applied. Recently, the Supreme Court (which replaced the House of Lords as the highest court in 2009) has called for a reevaluation of this approach. Walton v The Scottish Ministers ([2012] UKSC 44, 17 October 2012) was the legal conclusion to a long standing challenge to the Aberdeen By-Pass which has been planned for over fifteen years. The Supreme Court dismissed the challenge to the legality of the procedures based on noncompliance with EU environmental assessment requirements. Although therefore not strictly necessary to the decision, Lord Carnwath, the UK’s most senior and experienced environmental judicial specialist noted that Berkeley itself was an unusual decision, and one where the developer was not actually represented in the House of Lords since the project itself had been abandoned by the time of the hearing. He observed that key decisions of the European Court emphasised the principle of national procedural autonomy, while promoting the principles of equivalence and effectiveness. Berkeley, he suggested, probably turned on its own facts, and concluded that ‘Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, I see nothing in principle or authority to

397

national courts and eu environmental law

require the courts to adopt a different approach merely because the procedural requirements arises from a European rather than a domestic source.’ This is an issue that, as he suggested, will call for more detailed analysis in a later case.



8 Referrals to the Court of Justice of the European Union

One of the earliest, iconic cases about the impact of European Community law on Britain referred to in the first section of this chapter37 contained guidance from the Court of Appeal to the courts as to when they should or should not make referrals to the Court of Justice. There do not seem to be any comprehensive data at national level on the number of referrals, but comparative data of some 3000 references (up until 1995) has dispelled theories that British courts were loath to make references compared to other countries, but that there is a variation across different fields of law. The figures indicate that in the environmental field the UK has referred more cases than any other country with the exception of France, Italy and the Netherlands.38 Nevertheless, courts are very sensitive to the time implications of a referral particularly in a case involving say private developers. Looking at the reported cases over the last ten years there appear to have been thirteen decided cases of the European Court on preliminary references in the environmental field with two currently pending. The highest number of refers have come from the High Court which handles judicial reviews at the first instance, and covering a range of subjects: waste recycling (C-444/00), environmental assessment (C-201/02), waste water (C-252/05), ship source pollution (C-308/06), REACH (chemicals) C-558/07, fuel additives (C-343/09), dangerous substances (C-14/00 and C-15/00), emissions trading (C-366/10). There was only one references from the Court of Appeal in England and Wales – environmental assessment (C-75/08) and one from the Court of Appeal in Northern Ireland – strategic environmental assessment (C-474/10). One reference was made from the House of Lords, again concerning environmental assessment (C-290/03) and one from the Supreme Court which replaced the House of Lords in 2009 – concerning access to environmental information (C-71/10). It is noticeable that no Scottish courts have appeared to have made any references on environmental matters, and that references have been confined to the higher courts.

37

 Bulmer v Bollinger SA [1974] Ch 401.

38

Sweet and Brunell, European Court and the National Courts: A Statistical Analysis 1961-1995 Jean Monnet Paper (1997).

398

Index*

*

Inga Bach, student at the University of Groningen, assisted the editors in preparing the index for this book. Her research assistance is highly appreciated.

national courts and eu environmental law

Aarhus Compliance Committee 85, 149-162

-Germany 282, 286 -Netherlands 326, 329 -Slovenia 358 -UK 381 Costanzo principle 6, 75, 96, 104 -Belgium 231 -Germany 285 -Netherlands 335 -Slovenia 360, 362 -UK 391 Costa v. ENEL case -Hungary 302, 304 -Netherlands 323 Court fees 171, 180,199, 205, 210

Aarhus Convention 81, 146-166 -Art. 2(5) 229 -Art. 6 15, 30 -Art. 6(2) 18 -Art. 6(4) 31 -Art. 6(6) 17 -Art. 9 233 -Art. 9(2) 15, 32, 162, 190, 229 -Art. 9(3) 15, 148, 153, 162, 190, 305 -Art. 9(4) 155, 162, 190 -Art. 9(5) 162, 190 Acte clair 134, 238, 260 Acte éclairé 238, 258 Actio popularis 64, 65, 156, 176-178, 192, Direct effect 55, 56, 57, 61-71, 75-90, 215 263, 351-352 -Austria 215, 216 Athens Protocol to the Barcelona -Belgium 226, 227-229 Convention -Croatia 249 -Art. 6(3) 81 -Czech Republic 260 -Denmark 272, 273-277 Boxus a. o. case 91, 190 -Germany 281, 285 -Belgium 241 -Hungary 302-304 -Denmark 276 -Italy 312, 314-316 -Spain 373, 374 -Netherlands 323, 324, 331-342 -Portugal 349, 350 CILFIT case 134, 237 -Slovenia 358, 359 Conferral (principle of) 124, 127 -Spain 366, 368-372 Consistent interpretation 3, 6, 11-12, -UK 95, 382, 384, 388-391

37-49, 56, 60, 68-71

-Austria 217 -Belgium 231 -Croatia 248 -Czech Republic 257, 259 -Denmark 270, 272, 273, 277 -Germany 286 -Hungary 295, 304 -Italy 312, 318 -Netherlands 324, 325-330 -Portugal 349 -Slovenia 357, 361 -Spain 367 -UK 380, 384, 387, 392-393 Contra legem interpretation 6, 44, 49, 68

400

-horizontal 6, 46, 93, 104 -international treaties 104, 151, 153 -inverse 6, 92, 104, 285, 304, 316 -vertical 46, 92 Djurgården (DLV) case 20, 154, 157,

195-196, 263, 289

ECHR 110, 111, 225, 270, 324 -Art. 6 150, 219, 271, 374 -Art. 13 150, 344 ECtHR 11, 150, 353 Effectiveness (principle of) 12-14, 31, 183, 201-203 -Germany 283 -Netherlands 342-344 -UK 397

index

EIA Directive 17, 84-87, 88 -Austria 216-221 -Belgium 227 -Czech Republic 260-264 -Denmark 275, 276 -Germany 282, 283 -Netherlands 344 -Spain 372-374 -UK 385 Equality (principle of) 110, 111, 116, 118 -Belgium 130, 233, 236 -Denmark 269 -France 131 -Spain 134 Equivalence (principle of) 12, 44 -Netherlands 342 Estoppel (principle of) 47, 71 EU Charter of Fundamental Rights 60, 110 -Art. 37 125, 285 -Art. 41 12, 15, -Art. 47 13, 32, 150, 188, 200 -Art. 51 13, 111 -Art. 52 111 -Austria 219 -Germany 285 Factortame case -Denmark -Spain -UK Foto Frost case -Belgium -Germany Francovich liability

276 371 380 112, 131 237

High level of protection

120

Individual rights 54, 77, 159,176 -Austria 218-221 -Croatia 251 -Czech Republic 263 -UK 394 Integration principle 120, 122,125 Inter-Environnement doctrine 30, 90-92 -Belgium 230, 240 -Germany 284 -Netherlands 333 -Portugal 350 -Slovenia 359 -Spain 370 Interim relief 113, 182, 187 IPPC (and IED) Directive 16-19, 46, 104, 169, 190, 193 -Austria 220 -Netherlands 328, 331, 333, 340 -Slovenia 358 -UK 390 Kraaijeveld doctrine -Austria -Belgium -Germany -Hungary -Netherlands -Portugal -Slovenia -Spain -UK

88-90 216 229 287 304, 306 331, 332 350 359 373 395

132 see State liability

Habitats Directive 88-92, 104, 123, 159 -Belgium 227, 236 -Czech Republic 261 -Denmark 273-277 -Germany 284 -Hungary 296 -Netherlands 326, 330, 333, 335-336, 339-341

Lawyers’ fees Legal certainty -Belgium -Czech Republic -Hungary -Netherlands -Slovenia -UK Legality principle Locus standi

401

171, 180-182 45, 68, 112, 186 233 258 308 326, 328-329 358, 362 396 96, 131, 237, 306 32, 86, 91

national courts and eu environmental law

-Austria -Croatia -Czech Republic -Spain Leybucht case Loser pays principle -Belgium -Czech Republic -Italy -Spain Loyal cooperation

367, 368

-Portugal 349 -Slovenia 359 Preclusion 16, 19-21, 157, 289 -Netherlands 157, 289 -Germany 289 Preliminary rulings procedure (Art. 267 TFEU) 55, 61, 112, 126, 155 -Austria 215, 221 -Netherlands 339 -Slovenia 360 Prevention principle 120 Primacy see Supremacy Procedural mistakes/failures 11, 15, 21-26, 29 -Germany 283 Protective Cost Order 182, 200, 210, 393 Protective rights doctrine see

387, 392

Schutznorm

216, 218 251 263 374 3, 284 174, 181-182, 199, 210 174 182 182 174, 373 see

Sincere cooperation (Art. 4(3) TEU)

Mangold case -Germany Marleasing case -Spain -UK Marks & Spencer case -Netherlands Marshall doctrine -Netherlands Merck Genéricos case -Netherlands Nulla poena sine lege Natura 2000 -Belgium -Denmark -Hungary

42 285 39-40, 43, 46

83 46, 93-94 94, 336 149-154, 338 56, 68 15, 79, 89, 236 273 295, 302

Pêcheurs de l’étang de Berre case 81, 337, 350 Pfeiffer case 39, 40 Polluter pays principle 45, 59, 60, 80, 104, 120, 122, 124 -Belgium 228 -Spain 368 Praeter legem 68 Präklusion see Preclusion Precautionary principle 60, 121, 123 -Belgium 229 -Netherlands 330

402

Proportionality principle

119, 120

332

Rewe principle Relativity principle

12-14 see Schutznorm

Schutznorm 176, 192, 206-209 -Netherlands 343-345 -Relativity principle 344 Sincere cooperation (Art. 4(3) TEU) 39, 47, 128, 135,136 -Netherlands Source principle Stand still doctrine

333 120 see

Inter-Environnement doctrine

Slovak Brown Bear case 11, 18, 58, 64-66,

81, 145-146, 150, 152,159, 166, 169, 188

-Germany -Netherlands State liability -Austria -Belgium -Croatia -Denmark -Germany -Hungary

286-287 324, 325, 343-345 4, 53, 58-59, 62, 98-104 217, 220, 222 235 249 272, 273, 275 286 302, 304

index

-Italy 314, 317 -Portugal 351 -Slovenia 360 -Spain 368, 371 -UK 394 -Köbler case 394 Subsidiarity 37, 111, 119, 145, 191 -Hungary 301 Supremacy 12, 43, 48, 60-62, 111, 125-127 -Austria 219 -Belgium 225, 232 -Croatia 127, 247, 249, 252 -Czech Republic 257 -Denmark 270 -Hungary 302, 304 -Italy 314, 315 -Netherlands 323 -Portugal 354 -Slovenia 361 -Spain 365 -UK 379-381 Trianel (Lünen) case -Czech Republic -Germany -Netherlands Waddenzee doctrine

-Austria -Belgium -Denmark -Germany -Hungary -Netherlands Wells case -Austria -Belgium -Netherlands Wild Birds Directive -Belgium -Germany -Netherlands -Portugal

81, 87, 159, 169 264 287 323 88, 104 see also Kraaijeveld 216 229 275 282 304 331 94, 104 218 230 334 87 227, 230-233 284 327, 345 350

403