General Principles
Direct effect
As regards participation in decision-making, the CJEU confirmed direct effect of the EU directives implementing the second pillar of the Aarhus Convention: Art. 11 of the EIA Directive (Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen) and Art. 6(3) of the Habitats Directive (Case C-243/15 Lesoochranárske zoskupenie VLK). There is no case-law as regards direct effect of the Industrial Emissions Directive, but its provisions concerning public participation at decision-making are even more comprehensive and detailed than those of the EIA Directive (Art. 23-24).
As regards access to justice, the CJEU confirmed direct effect of numerous EU directives in line with Art. 9(3) of the Aarhus Convention which requires that "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." As a consequence, both individuals and environmental NGOs should be able to challenge administrative acts based on EU environmental law before the national courts. Moreover, the legal form of these acts cannot, in principle, prevent the individuals from access to justice (Case C-237/07 Janecek).
In Case C-404/13 ClientEarth, the CJEU held that EU law (Art. 23 of Directive 2008/50) imposes a clear obligation to establish an air quality plan that complies with certain requirements; an obligation capable of being relied on by individuals as against public authorities. In Case C-529/15 Folk, the CJEU concluded that persons with fishing rights must have the power to initiate a review procedure in relation to environmental damage. In C-197/18 Wasserleitungsverband Nördliches Burgenland and Others, the CJEU held the individuals concerned including municipalities must be able to requests to have the Nitrate Action Programme Regulation amended. In Case C-664/15 Protect Natur-, Arten- und Landschaftschutz Umweltorganisation, the CJEU held that the environmental NGOs must be able to access the court to challenge a decision approving a project which may be in breach of an obligation laid down in the Water Framework Directive.
In particular, the last abovementioned judgment provides simple permission: If the matter is governed by EU environmental law, the Member States cannot, in principle, prevent the individuals concerned from access to the court, even if, for example, these individuals are excluded from participation in the authorisation procedures. And if such participation is a precondition for access to justice, these individuals must be allowed to participate already at the stage of administrative proceedings.