Access to Justice

The scope of judicial review is a key element of an effective system of judicial review as it determines how national judges will assess the legality of contested decisions, acts and omissions. It has two main aspects. The first relates to the areas of law and the legal arguments which can be raised in a legal challenge, in particular as regards whether a claimant is entitled to invoke all relevant provisions of EU environmental law in order to build a case or not. The second aspect relates to the intensity of scrutiny to be exercised by judges when assessing legality.

As regards the possible grounds of judicial review, this is particularly relevant in those jurisdictions which grant legal standing only on the basis that the rights of the claimant have been impaired. In these, the possible grounds of judicial review are often traditionally restricted to those legal provisions which confer the individual rights that provide the basis for the legal standing invoked. This aspect is also relevant to restrictions aimed at limiting claimants to arguments they have raised in prior administrative proceedings (preclusion) or at preventing claimants from abusing judicial processes by making irrelevant legal submissions. Namely, in Commission v Germany the CJEU ruled that it is not possible to restrict the ‘scope of the review by the courts to the objections which have already been raised within the time-limit set during the administrative procedure which led to the adoption of the decision’. The CJEU justified its position by pointing to the obligation to ensure a review of both the substantive and procedural legality of the contested decision in its entirety.

As regards the intensity of scrutiny/standard of review, under Article 9(2) and Article 9(3) of the Aarhus Convention, Member States are to ensure an effective judicial review of the substantive and procedural legality of decisions, acts and omissions falling within the scope of these provisions, even if EU secondary legislation does not make any explicit reference to a standard of review that covers both of these aspects of legality. In particular, procedural legality relates to:

1. whether the public authority concerned had the legal power to make the decision, act or omission being contested;
2. whether the public authority fully and correctly followed a procedure laid down for adopting the contested decision, or act, for example a procedure requiring consultation of the public;
3. whether the decision, or act can be found in the correct form.

With regard to substantive legality, this involves the examination into whether the substance of the law has been violated. Namely, it covers the judge’s examination of the assessment of the merits of a decision, act or omission, such as in the case C-71/14 East Sussex, C-75/08 Mellor and C-570/13 Gruber, as well the scrutiny of national legislation and regulatory acts. In Inter-Environnement Wallonie, the CJEU stressed the importance of national courts scrutinising legislative acts in order to ensure fulfilment of EU environmental law requirements concerning plans and programmes.