16 – Standing under Article 9(3) – limits on…

In an earlier post (Blog 7 – What next for Aarhus?), a question was raised as to whether the Government could, as part of its post Brexit review of environmental legislation, seek to legislate so as to more tightly circumscribe “standing” in environmental claims.

Whilst clearly no longer binding on the UK, there was a decision handed down by the CJEU at the end of last year which might provide some food for thought, drawing on an earlier decision (albeit less widely reported) in December 2017: C-664/14 Protect Natur-, Arten- under Landscaftschutz Umweltorganisation.

In C-873/19 Deutsche Umwelthilfe (Réception des Véhicles à Moteur) [2023] Env LR 17, Germany sought a preliminary ruling on the issue of whether an environmental association (Deutsche Umwelthilfe – “DU”)) had to be given standing under Article 9(3) in proceedings in which it sought to challenge a regulator’s decision to authorise the use of software installed in the electronic engine controller for certain Volkswagen cars which, under certain external temperature conditions, reduced the recirculation of exhaust gases resulting in an increase in NOx emissions.

DU brought an action against the regulator before the Schleswig-Holsteinisches Verwaltungsgericht (Administrative Court, Schleswig-Holsteinisches) claiming that the software constituted an unlawful ‘defeat device’ for the purposes of Article 5(2) of Regulation (EC) No 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6).

Both the referring court (the Administrative Court, Schleswig-Holsteinisches) and the Federal Republic of Germany contended that DU did not have standing to bring the complaint.

The general position, under paragraph 42 of the (domestic) Administrative Court Rule (the Verwaltungsgerichtsordnung) (“VwGO”) was that:

“1. An action may seek to have an administrative measure set aside (action for annulment) or to have the adoption of an administrative measure ordered in the event of a refusal or failure to act (action for enjoinder).

2. Except where otherwise provided for by law, such an action is admissible only if the claimant asserts that his or her rights have been impaired by the administrative measures or by the refusal or failure to act.”

Paragraph 1(1) of the Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in Umweltangelegenheiten nach der EG- Richtlinie 2003/35/EG (Umwelt-Rechtsbehalfgesetz) (Law on supplementary provisions governing actions in environmental matters under Directive 2003/35/EC (Law on actions in environmental matters)) (“UmwRG”) provided (so far as material to the case at issue):

“This law shall apply to actions against the following decisions:

…

5. administrative measures or public law contracts authorising projects other than those referred to in points 1 to 2b pursuant to environmental provisions of Federal law, Land law or directly applicable acts of EU law; and

6. administrative measures concerning supervisory or control measures taken in order to implement or enforce the decisions referred to in points 1 to 5, intended to ensure compliance with the environmental provisions of Federal law, Land law or directly applicable acts of EU law.”

This fell to be read with paragraph 2(1) of the UmwRG which provided as follows:

“A domestic or foreign association recognised under Paragraph 3 may bring an action in accordance with the VwGO to challenge a decision within the meaning of the first sentence of Paragraph 1(1) or a failure to adopt such a decision, without being required to maintain an impairment of its own rights, where the association

(1) asserts that a decision referred to in the first sentence of Paragraph 1(1), or the failure to adopt that decision, is contrary to the provisions which may be relevant for the purposes of the decision;

(2) asserts that it is affected by a decision referred to in the first sentence of Paragraph 1(1), or by the failure to adopt that decision, within its statutory field of activity of helping to achieve the objectives of environmental protection; […]”

Paragraph 3 of the UmwRG set out the conditions which an association (national or foreign) would have to satisfy in order to be approved for the purposes of bringing proceedings. Essentially, an association would be approved, on request, provided it (inter alia) promoted mainly environmental protection objectives, had been in existence for at least three years, pursued objectives of general interest, and allowed any person who supported its objectives to become a member.

DU was an approved association.

The referring court argued, however, that DU did not have standing to challenge the regulator’s decision as under paragraph 42(2) of the VwGO, unless otherwise provided for by law, an action was admissible only if the applicant asserted that his or her rights had been impaired by the administrative measure at issue, which was not the case in the present proceedings. Further, that DU could not rely on paragraph 2 read with paragraph 1(1) of the UmwRG to assert that that provided the necessary legal authorisation as only paragraph 1(5) was potentially relevant (“administrative measures or public law contracts authorising projects other than those referred to in points 1 to 2b pursuant to environmental provisions of Federal law, Land law or directly applicable acts of EU law”) and the contested decision did not fall within that paragraph as the consent was granted to a “product” and not a “project”. It also contended that it DU could not derive standing from Article 9(3) of the Aarhus Convention as the CJEU had already made clear in Protect Natur- that it did not have direct effect.

Having noted its jurisdiction to make preliminary rulings on the interpretation of the Aarhus Convention as part of the EU legal order (at [48]), the Court went on to consider whether the contested decision fell within the scope of Article 9(3), stressing the broad meaning to be given to the expression “provisions of national law relating to the environment” (at [49]-[58]). It reiterated that an environmental association authorised to bring legal proceedings fell within the personal scope of Article 9(3) (at [59]) and that parties to the Convention could lay down criteria in their national law which an environmental association would have to meet to enjoy the rights provided for in Article 9(3) (at [60]),1 and went on to state (at [62]):

“It should further be noted that such an association is also part of the “public concerned”, within the meaning of Article 2(5) of the Aarhus Convention, which means the public affected or likely to be affected by, or having an interest in, the environmental decision-making. Thus, in the words of that provision, non-governmental organisations promoting environmental protection and meeting any requirements under national law are deemed to have such an interest”.

The key question which the Court had to consider, however, was whether the concept of ‘criteria laid down in national law’ allowed the parties not only to lay down criteria as to the persons entitled to bring an action, but also as to the subject matter of such action.

The Court gave that argument short shrift.

“[64] .. first, it must be noted that, according to the actual wording of Article 9(3) of the Aarhus Convention, such criteria relate to the determination of those persons entitled to bring an action, not to the determination of the subject matter of the action in so far as the latter concerns infringement of provisions of national environmental law. It follows that Member States may not reduce the material scope of Article 9(3) by excluding from the subject matter of the action certain categories of provisions of national environmental law.

[65] Secondly, where a Member State lays down rules of procedural law applicable to the matters referred to in Article 9(3) of the Aarhus Convention concerning the exercise of the rights that an environmental organisation derives from Article 5(2) of Regulation No 715/2007, in order for decisions of the competent national authorities to be reviewed in the light of their obligations under that article, the Member State is implementing EU law for the purposes of Article 51(1) of the Charter and must, therefore, ensure compliance, inter alia, with the right to an effective remedy, enshrined in Article 47 thereof (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten—und Landschaftsschutz Umweltorganisation (C-664/15) EU:C:2017:987 at paragraphs 44 and 87 and the case-law cited).

[66] Consequently, while it is true that Article 9(3) of the Aarhus Convention does not have direct effect in EU law and cannot, therefore, be relied on, as such, in a dispute falling within the scope of EU law, in order to disapply a provision of national law which is contrary to it, the fact remains that, first, the primacy of international agreements concluded by the European Union requires that national law be interpreted, to the fullest extent possible, in accordance with the requirements of those agreements and, secondly, that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (judgment of 20 December 2017, Protect Natur-, Arten—und Landschaftsschutz Umweltorganisation (C-664/15) EU:C:2017:987 at paragraph 45).

[67] However, the right to bring proceedings provided for in Article 9(3) of the Aarhus Convention, which is intended to ensure effective environmental protection (judgment of 8 March 2011, Lesoochranárske zoskupenie (C-240/09) EU:C:2011:125 at paragraph 46), would be deprived of all useful effect, and even of its very substance, if it had to be conceded that, by imposing criteria laid down by national law, certain categories of ‘members of the public’ – a fortiori ‘the public concerned’, such as environmental associations that satisfy the requirements laid down in Article 2(5) of the Aarhus Convention – were to be denied of any right to bring proceedings against acts and omissions by private persons and public authorities which contravene certain categories of provisions of national law relating to the environment (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten—und Landschaftsschutz Umweltorganisation (C-664/15) EU:C:2017:987 at paragraph 46).

[68] Imposing those criteria must not deprive environmental associations in particular of the possibility of verifying that the rules of EU environmental law are being complied with, given also that such rules are usually in the public interest, rather than simply in the interests of certain individuals, and that the objective of those associations is to defend the public interest (judgment of 20 December 2017, Protect Natur-, Arten—und Landschaftsschutz Umweltorganisation (C-664/15) EU:C:2017:987 at paragraph 47 and the case-law cited).

69 Although they imply that Member States retain discretion as to the implementation of that provision, the words ‘criteria, if any, laid down in its national law’ in Article 9(3) of the Aarhus Convention cannot allow those States to impose criteria so strict that it would be effectively impossible for environmental associations to challenge the acts or omissions that are the subject of that provision (judgment of 20 December 2017, Protect Natur-, Arten—und Landschaftsschutz Umweltorganisation (C-664/15) EU:C:2017:987 at paragraph 48).”

Whilst the judgment is clearly not binding on the UK in and of itself, it seems unlikely that if a complaint were to be made to the Aarhus Compliance Committee challenging similar restrictions on standing the Committee would adopt an approach which allowed for greater, as opposed to lesser, restrictions under Article 9(3). It is therefore something which should, at the very least, give the Government pause for thought if considering tightening the rules on standing to challenge decisions or provisions of national law relating to the environment – particularly any proposals to exclude certain categories or types of decisions from challenge. On the other hand, it may provide some useful guidance as to the sort of criteria which could be adopted if the Government were minded to impose greater controls (or constraints) on the associations which were entitled to bring such claims – i.e. “criteria, if any, laid down in its national law” – although it is not difficult to see how at least some of the criteria laid down in paragraph 3 of the UmwRG could be open to challenge.

In the absence of any current proposals to reform or amend the current position on standing, any consideration of how or in what forum any such changes could be challenge is necessarily hypothetical. However, as it would not be open to a challenger in the domestic courts to rely on Article 47 of the Charter of Fundamental Rights which provided the necessarily juridical basis in Deutsche Umwelthilfe, it would be necessary to find some other way of giving effect to the rights protected by Article 9(3), given it does not itself have direct effect. One avenue might be provided by what is currently article 161 of the Levelling-up and Regeneration Bill which provides, in connection with “EOR regulations” (regulations made by the appropriate authority under Part 6 of the Bill specifying outcomes relating to environmental protection in the UK or a relevant offshore are) (inter alia) as follows:

“161 Safeguards: non-regression, international obligations and public engagement

(1) An appropriate authority may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.

(2) EOR regulations may not contain provision that is inconsistent with the implementation of the international obligations of the United Kingdom relating to the assessment of the environmental impact of relevant plans and relevant consents.

…”

However, given the current issues around that Bill – and the announcements foreshadowed last night about other potential changes to the Government’s green commitments – this is no doubt another case of ‘watch this space’, and a matter to which we will return in future blog posts.

Authors

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.