19 – The Eco-Advocacy case

Introduction

One of the many alerts I have set up for the “Aarhus Convention” threw up the judgment of the CJEU in Case C 721/21 Eco Advocacy CLG v An Bord Pleanála.

The case involved a preliminary reference from Ireland raising a number of issues under the EIA and Habitats Directives, including:

1. The scope of the obligation to give reasons for screening decisions under Article 4(5) of the EIA Directive
2. How far the decision in Case C 323/17 People Over Wind and Sweetman EU:C:2018:244 Case C 721/21) extends in terms of what many not be considered in terms of mitigation when determining if an appropriate assessment is required.

How is Aarhus relevant?

The Advocate-General’s opinion delivered on 19 January 2023 referred to the Aarhus Convention in a number of regards:

1. At para. 71 A-G Kokott said that “Article 4(5) of the EIA Directive does not, however, require the competent authority to state expressly, discretely and/or specifically in which documents exactly its reasons are set out. Neither is there any indication of such a requirement in connection with Article 6 of the Aarhus Convention, which was transposed by the EIA Directive”. In support of that she cited the findings and recommendations of the Aarhus Convention Compliance Committee (“ACCC”) of 7 March 2009, Association Kazokiskes Community (Lithuania) (ACCC/C/2006/16, ECE/MP.PP/2008/5/Add.6, para. 81). In that case the ACCC said:

“Information about the decision – article 6, paragraph 9

1. 1. 1. With regard to the allegation as to the failure to publicize the final decision (para. 47), the Committee wishes to underline that the Convention does not require the decision itself to be published. It only requires that the public be informed about the decision and has the right to have access to the decision together with the reasons and considerations on which it is based. The public shall be informed “promptly” and “in accordance with the appropriate procedures”. The Convention does not specify here, as opposed to article 6, paragraph 2, any further requirements regarding informing the public about taking the decision thus leaving to the Parties some discretion in designing “the appropriate procedures” in their national legal frameworks. Similarly, the Convention does not set any precise requirements as to documenting “the reasons and considerations on which the decision is based “except for the requirement to provide evidence of taking due account of “the outcome of public participation” as required under article 6, paragraph 8”
2. With regard to the ACCC A-G Kokott also referred to her opinion in Case C-43/21 FCC Česká republika where she said in footnote 16:

“16 ‘The Compliance Committee’; see, in that regard, my Opinion in Edwards and Pallikaropoulos (C‑260/11, EU:C:2012:645, point 8), and the Opinions of Advocate General Cruz Villalón in Gemeinde Altrip and Others (C‑72/12, EU:C:2013:422, point 101); of Advocate General Jääskinen in joined cases Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2014:310, point 114), and in joined cases Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, EU:C:2014:309, point 23); and of Advocate General Bobek in Folk (C‑529/15, EU:C:2017:1, point 86), and in Stichting Varkens in Nood and Others (C‑826/18, EU:C:2020:514, point 77).”

These references are all concerned with the status of ACCC decisions in the Luxembourg courts. Following them through:

1. 1. Edwards: “The Compliance Committee, which is composed of experts, was established by the parties in order to contribute to the review, provided for in Article 15 of the Convention, of compliance with its provisions. It examines primarily complaints by individuals. It concludes its investigations with ‘findings and recommendation”;
   2. Altrip: “The Convention’s Compliance Committee also regards the exclusion of environmental-law claims from actionable claims on the ground that actions relating to the rights of neighbours were restricted to subjective rights and the exclusion of environmental law from actions relating to the rights of neighbours as an infringement of Article 9(2). Even though that finding is not binding on the Court, [referring to See Article 15 of the Aarhus Convention, which provides for the non-confrontational, non-judicial and consultation-based review of compliance with the provisions of the Convention, and Meeting of the Parties, Decision 1/7, Review of Compliance, UN Doc. ECE/MP.PP/2/Add.8 of 2 April 2004] it nevertheless supports my interpretation of the Convention. [referring to “Economic Commission for Europe, Findings and recommendations with regard to communication ACCC/C/2010/48 concerning compliance by Austria. Adopted by the Compliance Committee on 16 December 2011, UN Doc. ECE/MP.PP/C.1/2012/4 of 17 April 2012, p. 14. In the absence of adequate information, the Committee did not find that an infringement had been committed and argued by way of hypothesis”]”
   3. Stichting Stop: “Reference should also be made to the position adopted by the Aarhus Convention Compliance Committee, namely that the contracting parties are unable to introduce or maintain so strict criteria that they effectively bar non-governmental organisations from challenging acts or omissions that contravene national provisions relating to environmental protection. [citing Communication ACCC/C/2005/11 (Belgium)] That position is clearly in line with the position adopted by the Court in its case-law cited above. Furthermore, the committee has expressed doubts as to the European Union’s compliance with the conditions laid down in Article 9(3) of the convention. [citing Communication ACCC/C/2008/32 (EU)]”
   4. Pesticide Action Network: I could not find this report.
   5. Stichting Varkens in Nood: “For the sake of completeness, it does not appear that the reports by the Compliance Committee, invoked by the referring court, suggest a different interpretation. It is true that the committee found that a Party to the Convention had failed to guarantee the full scope of the rights envisaged by Article 6(7) by limiting the right to submit comments to ‘the public concerned’. However, that was also because those comments were required to be ‘motivated proposals’, meaning that they should contain reasoned argumentation, that obligation being perhaps indeed somewhat onerous for the (administrative) public participation procedure. [citing Lithuania ACCC/C/2006/16, paragraph 8] These Equally, Article 6(8) of the Aarhus Convention obliges the public authorities to ‘seriously consider all the comments received’ for the purpose of its decision. [citing Spain (ACCC/C/2008/24, paragraphs 99-100] These findings do not, however, really deal with the scope of Article 6(7) in relation to ‘the public’ and the definition of that public in the overall context of Article 6 of the Aarhus Convention.”

3. At para. 84 A-G Kokott said (emphasis added):

“However, as in the context of the general environmental impact assessment, the effective judicial review of that decision and the right to effective legal protection presuppose that the court to which the matter is referred and those seeking redress will have access to the statement of reasons for the contested decision, either in the decision or on request. Moreover, that obligation to state reasons reflects the right to good administration which the national authorities must observe when implementing EU law, not on the basis of Article 41 of the Charter, but on the basis of a general principle of law. In the case of decisions under environmental law which – like the appropriate assessment under Article 6(3) of the Habitats Directive – require public participation in accordance with Article 6 of the Aarhus Convention, Article 6(9) of that Convention calls in addition for a statement of reasons”

The CJEU gave judgment this June. On Aarhus they said:

“20 In that regard, as the Advocate General observed, in essence, in points 29 and 30 of her Opinion, although EU law requires, pursuant to Article 11 of Directive 2011/92 and Article 9 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1), inter alia that environmental associations be guaranteed access to an effective and fair review procedure, it does not prescribe how and at what point in time the grounds aimed at challenging the lawfulness of relevant decisions, acts or omissions must be raised”

People Over Wind

As some of you will know People Over Wind is one of my two least favourite CJEU cases ever. Don’t ever though get me started on Case C-567/10 Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale [2012] 2 CMLR 909 …

Prior to People Over Wind it very well-established in domestic case-law that in undertaking the trigger or “screening” stage assessment under the Habitats Directive – e.g. deciding if there were likely significant effects (“LSE”) it was legitimate for the decision-maker to take into account “mitigation” which would prevent any LSE arising see: R (Hart DC) v SSCLG [2008] 2 P&CR 16 per Sullivan J. and Smyth v SSCLG [2015] PTSR 1417 per Sales LJ.

In Hart Sullivan J. said, “it would have been “ludicrous” … to disaggregate the different elements of the package and require an appropriate assessment on the basis that the residential component of the package, considered without the SANGS, would be likely, in combination with other residential proposals, to have a significant effect on the SPA, only for her to have to reassemble the package when carrying out the appropriate assessment”. Sullivan J. regarded (rightly) the view he came to in Hart as the “common sense” result. The CJEU in People Over Wind went for the “ludicrous” position rejected by Sullivan J.

In Eco-Advocacy the CJEU said this:

“ 44 By its fourth question, the referring court asks, in essence, whether Article 6(3) of Directive 92/43 must be interpreted as meaning that, in order to determine whether it is necessary to carry out an appropriate assessment of the implications of a plan or project for a site protected under that directive, account may be taken of the features of that plan or project which involve the removal of contaminants and which therefore may have the effect of reducing the harmful effects of the plan or project on that site, where those features have been incorporated into that plan or project as standard features, irrespective of any effect on the site.

45 It is apparent from the request for a preliminary ruling that that court asks that question in particular in the light of the judgment of 12 April 2018, People Over Wind and Sweetman (C 323/17, EU:C:2018:244). Specifically, it is asking whether, in the light of that judgment, An Bord Pleanála was entitled to take account of the measures described in paragraph 9 above for the purposes of its decision not to require an appropriate assessment of the implications of the project at issue in the main proceedings on the areas referred to in paragraph 7 above.

46 In that regard, it should be noted that, in paragraph 40 of the judgment of 12 April 2018, People Over Wind and Sweetman (C 323/17, EU:C:2018:244), the Court held that Article 6(3) of Directive 92/43 must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.

47 The Court inter alia considered, in the same judgment, that the fact that measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out, that conclusion being supported by the fact that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment. Moreover, according to the Court, taking account of such measures at the screening stage would be liable to compromise the practical effect of Directive 92/43 in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive (see, to that effect, judgment of 12 April 2018, People Over Wind and Sweetman, C 323/17, EU:C:2018:244, paragraphs 35 to 37).

48 However, such considerations cannot have the effect of precluding the taking into account, during the screening phase of a project, of all the constituent elements of that project inherent in it which have the effect of reducing the harmful effects of the project on the site concerned.

49 Thus, where such elements are incorporated into the design of a project not with the aim of reducing the negative effects of that project on the site concerned, but as standard features required for all projects of the same type, those elements cannot, inter alia, be regarded as indicative of probable significant harm to that site, contrary to the measures referred to in paragraphs 46 and 47 above.

50 Subject to the verifications which it is for the referring court to carry out, it appears that the incorporation of the measures referred to in paragraph 9 above into the design of projects such as that at issue in the main proceedings is required, generally, by planning acts and that, in the case at hand, it was required by the Meath County Development Plan 2013-2019, which, moreover, has been the subject of an environmental assessment under Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).

51 Article 6(3) of Directive 92/43, interpreted in the light of the precautionary principle, does not therefore preclude the taking into account of such measures during the screening phase of those projects.

52 In the light of the foregoing considerations, the answer to the fourth question is that Article 6(3) of Directive 92/43 must be interpreted as meaning that, in order to determine whether it is necessary to carry out an appropriate assessment of the implications of a plan or project for a site, account may be taken of the features of that plan or project which involve the removal of contaminants and which therefore may have the effect of reducing the harmful effects of the plan or project on that site, where those features have been incorporated into that plan or project as standard features, inherent in such a plan or project, irrespective of any effect on the site.”

This is not in any way a major retreat for People Over Wind. But it is the first crack in the edifice of People Over Wind. An edifice I believe will one day collapse entirely.

The CJEU’s decision in People Over Wind lacks any common sense. It took an approach that Sullivan J. right described as being “ludicrous”. So, this is, to borrow from Churchill, not the end of People Over Wind, it is not even beginning of the end for that case but it is, perhaps, the end of the beginning …

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.