Access to Justice

Legal standing is the entitlement to bring a legal challenge to a court of law or other independent and impartial body in order to protect a right or interest of the claimant regarding the legality of a decision, act or omission of a public authority. Legal standing can vary depending on the subject-matter of the contested decision, act or omission. It can also vary depending on whether the claimant is an individual or a recognised environmental NGO.

The basis for legal standing varies according to the subject-matter of the decision, act or omission sought to be challenged. Four main categories can be formulated:

• Requests for environmental information and entitlement to receive information
• Specific activities that are subject to public participation requirements
• Requests for action under environmental liability rules
• Other subject-matter, such as national implementing legislation, general regulatory acts, plans and programmes and derogations

As regards the first category, EU environmental law confers rights on natural and legal persons to request environmental information according to the Access to Environmental Information Directive 2003/4/EC. In this context, any natural or legal person submitting an information request enjoys legal standing to challenge a decision, act or omission of the public authority responsible for dealing with that request. The right to review is due to the fact that EU Environmental Law confers rights on natural and legal persons to request but also to receive environmental information.

Moreover, legal standing to challenge decisions, acts and omissions concerning specific activities that are subject to public participation requirements is based on both express provisions on legal standing found in Article 9(2) of the Aarhus Convention and related EU secondary legislation as well as on case-law of the CJEU. Namely, in the Kraaijeveld case it was held that a decision, act or omission of a public authority impairing participation rights gives rise to an entitlement to seek judicial review. In the wake of this judgement, an express legal standing right based on the right to participate was incorporated into the Aarhus Convention and introduced into different pieces of EU secondary environmental legislation. However, this secondary legislation does not cover all decision-making processes covered by Article 6 – and by extension Article 9(2) - of the Convention. In this framework, in the LZ II case the CJEU clarified that he requirements of Article 9(2) of the Aarhus Convention in conjunction with Article 47 of the Charter of Fundamental Rights might also apply to those areas of environmental law which do not contain specific access to justice requirements.