Access to Justice

It is the ‘public concerned’ that benefits from the public participation provisions of Article 6(2) of the Aarhus Convention and by extension the access to justice provisions of Article 9(2) and the corresponding EU secondary legislation. This is defined as ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making’ . Namely, it refers to both individuals and Environmental NGOs. For individuals, the precondition of needing to show the ‘impairment of a right’ or a sufficient interest in order to obtain legal standing to bring a challenge concerning a specific activity has to be interpreted and applied in the light of the obligation to grant a wide access to justice in environmental matters. Rights which may be impaired include procedural rights of the individual stemming from EU environmental law (e.g. public participation rights) as well as substantive rights conferred on the individual (e.g. protection of human health, property rights).

As regards Environmental NGOs, they enjoy legal standing de lege to challenge decisions, acts or omissions by public authorities on specific activities which are subject to public participation requirements under EU law. This extra guarantee to some environmental associations is justified by the fact that they act in the general interest with the aim of protecting the environment. The Member States have the discretion to impose certain conditions on legal standing of environmental association in order to avoid actio popularis. However, the criteria that environmental NGOs have to fulfil to qualify for legal standing de lege must not be excessively difficult to satisfy and should take into account the interests of small and local NGOs. In addition to this, it must be ensured that the conditions to obtain legal standing de lege shall not be less favourable for foreign NGOs than for domestic ones.

Moreover, in the Djurgarden case the CJEU dealt with the fact that in some countries a lack of participation in the administrative procedure for adopting a decision may be an issue in the admissibility of a later legal challenge to that decision by clarifying that Member States may not restrict legal standing to challenge a decision of a public authority to those members of the public concerned who participated in the preceding administrative procedure to adopt that decision.

Finally, legal standing must be provided to individuals and environmental NGOs to ensure respect for EU environmental procedural provisions, such as those laying down decision-making procedures involving public participation, for example in procedures concerning plans and programmes.