32 - Some recent developments on Aarhus and standing

This blog reports on some developments on standing issues and the Aarhus Convention from the last year or so.

First, in Blogs 12 and 30 I looked at the European Court of Human Rights (“ECtHR”) dealing with a particular issue that arises in relation to environmental cases as to the “victim” requirement imposed by Article 34 of the European Convention on Human Rights (“ECHR”), and how the Aarhus Convention may in environmental cases affect the sometimes very narrow approach taken by the ECtHR.

The ECtHR handed down judgment in Cangi and Others v. Turkey (application no. 48173/18 on 14 November 2023. It apparently has a referral to the Grand Chamber pending.

The case concerned administrative proceedings in Turkey on an environmental impact assessment decision concerning the extraction of gold using cyanide leaching at a mine. The Court held complaints made under Article 6 admissible only in respect of applicants who lived or owned a property in close proximity to the goldmine as outcome of proceedings directly decisive for their right to live in a healthy environment.

The decision on this and the failure to refer to the Aarhus Convention has been badly received: see here and here.

I should also mention that with all the excitement around the decision of the ECtHR decision in VereinKklimaseniorinnen Schweiz and others v. Switzerland (Application no. 53600/20) (see Blog 30) I did not deal with the two other unsuccessful cases brought before the ECtHR on climate change and which were handed down on the same day namely: Affaire Carême v France (application no 7189/21) and Duarte Agostinho and others v Portugal and 32 others (Application no. 39371/20). The first was brought by a resident and former mayor of Grande-Synthe, a suburb of Dunkirk on the channel coast of France. It was argued that his home and the surrounding areas would be under water by 2040 if France failed to meet its greenhouse gas reduction targets. His claim was declared inadmissible because he had left France and now lives in Brussels. The second was brought by six Portuguese nationals now aged between 14 and 25. They suffer from anxiety; some said their health has been damaged by forest fires that have broken out in Portugal each year since 2017 as a result of climate change. Their claim was brought against Portugal and more than 30 other European states, including the United Kingdom. The ECtHR found their claim inadmissible because they had not previously taken legal action in the national courts. There is little mention of the Aarhus Convention in these judgments. In the Duarte case there are 4 mentions only, most notably:

• At paras. 96 and 97:

“96. The present application required the Court to interpret two international treaties, namely the Paris Agreement and the Aarhus

Convention19, which went beyond the scope of its jurisdiction under

Articles 19 and 32. The Paris Agreement and the international climate-change

framework were not based on the existence of a judicial enforcement

mechanism, which the Court would become by accepting the applicants’ complaint for examination. It would be contrary to the principles of the international rule of law for the Court to extend its jurisdiction beyond its intended scope (that is, protecting individuals from violations of their individual rights) on the sole ground that global issues affected all individuals as members of humanity (affected as a whole). The Court should adopt a strict interpretation of the rules governing its jurisdiction.

97. In sum, in the absence of any provision of international law to the contrary, the Court had no jurisdiction to review the implementation of

undertakings under international treaties other than the Convention. Overstretching the scope of the Court’s jurisdiction for the purposes of making a political statement about the importance of climate-change issues would have serious repercussions on the protection of human rights in terms of both the Court’s workload and its authority. Therefore, the Court should find that the application fell outside its jurisdiction …”

• At paras. 118 – 119 in recording the submissions of Turkey:

“(i) The Government of Türkiye

118. The Government of Türkiye stressed that, in so far as the applicants sought to establish the jurisdiction or responsibility of Türkiye for non-compliance with the 1.5oC limit under the Paris Agreement Türkiye had not been a party to that Agreement either at the time of the 2017 fires in Portugal or at the time when the applicants had lodged their application with the Court. Türkiye could not therefore be held to have had any responsibilities under that Agreement at the material time. Moreover, Türkiye was not a party to the Aarhus Convention, and nor was it bound by any of the instruments of European Union law. Türkiye’s historical contribution to GHG emissions was negligible. It could not be held that Türkiye had material capacity to act in the manner put forward by the applicant’s as regards its possible extraterritorial jurisdiction.

119. In the present case the applicants had referred to the serious consequences and catastrophic harm caused by climate change instead of proving their individual victim status as required by the Court’s case-law. Their complaint was of an actio popularis nature …”

Second, in January 2024 the CJEU (Fourth Chamber) handed down a preliminary ruling in Case C-252/22 Societatea Civlia Profesionala de Avocati AB & CD v Consilul Judetean Suceava & ors. This was a request for a preliminary ruling concerning the interpretation of Articles 2(4) and 9(3) to (5) of the Aarhus Convention, arising in proceedings between a law firm partnership registered under Romanian law (AB & CD) and various public bodies concerning the lawfulness of administrative measures adopted by those bodies for the construction of a landfill site in Romania.

In the domestic proceedings, the defendants had sought to resist the claims on the grounds (inter alia) that (1) AB & CD did not have legal personality and could not be a party to legal proceedings except as regards dispute arising from the exercise of its professional activity; and (2) that as it had no argued that its individual rights or private legitimate interests had been affected, it had failed to establish either its standing to bring proceedings or its interest in bringing proceedings against the measures challenged (a zoning plan and a building permit). 3 questions were referred to the CJEU for a preliminary ruling, 2 of which related to standing (the third, on costs, will be considered in another blog):

(1) Whether the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with the second sub-paragraph of Article 19(1) TEU and Article 2(4) of the Aarhus Convention were to be interpreted as meaning that the concept of “the public” includes a legal entity such as a law firm partnership, which does not rely on the infringement of any right or interest specific to that entity, but rather the infringement of the rights and interests of natural persons – namely the lawyers of which that partnership is comprised – and can such an entity be treated as a group of natural persons acting in association or organisation for the purposes of Article 2(4) of the Aarhus Convention?

(2) If the answer to the first question was yes, having regard both to the objectives of Article 9(3) of the Aarhus Convention and to the objective of effective judicial protection of the rights conferred by EU law, whether Article 9(3) of the Aarhus Convention and the first and second paragraphs of Article 47 of the Charter, read in conjunction with the second subparagraph of Article 19(1) TEU, was to be interpreted as precluding a provision of national law that makes access to justice for such a law firm partnership conditional on proof of an interest of its own or on the fact that, by bringing the action, it seeks to protect a legal situation directly connected with the specific purpose for which that type of organisation (in this case, a law firm partnership) was established?

The CJEU considered the second question first which it characterised as a request for determination as to whether Article 9(3) of the Aarhus Convention must be interpreted as precluding a provision of national law which makes the admissibility of action conditional on the establishment of a legitimate private interest, which would render the law firm’s claim (in the present case) inadmissible under Romanian law.

The CJEU reiterated, firstly, that under Article 9 the review procedures could be made subject to certain ‘criteria’ being met (see the Deutsche Umwelhilfe case discussed in blog post 16 – Standing under Article 9(3): limits on limits?).

Next, it reiterated that according to the words of Article 9(3), Member States could lay down criteria relating to the determination of persons entitled to bring an action. It highlighted that Article 9(3) was broader than Article 9(2) both in scope and in being addressed to members of ‘the public’ in general, but “On the other hand, that provision confers a greater discretion on the Member States when they lay down the criteria for determining, among all members of the public, who actually has the right to bring the action provided for in that provision”. The Court stressed that Article 9(3) would be deprived of all useful effect if, by imposing such criteria, certain categories of ‘members of the public’ were to be denied of any right to bring proceedings. But, if also noted that, as the Advocate General (L. Medina) had highted in her Opinion, it was apparent from the Implementation Guide (discussed, in the domestic context, in blog post 29: SSESNZ v ICO) that “the parties to the convention ‘are not obliged to establish a system of popular action (actio popularis) in their national laws with the effect that anyone can challenge any decision, act or omission relating to the environment’”.

In setting out its conclusions on the first question, the CJEU set out that:

• The condition set out in Romanian law made it possible to determine who had the right to bring an action provided for by Article 9(3), without limiting the subject matter of the action;
• It did not appear that certain ‘categories’ of members of the public were denied the right to bring an action. Rather, “the need to establish a legitimate private interest means only that actions brought by persons who have no specific connection to the administrative measure that they wish to challenge are admissible. Thus, the Romanian legislature avoided giving rise to a popular action, without unduly restricting access to justice”;
• The CJEU had previously held, in the context of Article 11 of the EIA Directive (which implements Article 6(2) of the Aarhus Convention) that it was open to a national legislature to restrict the rights, when not observed, to be relied on by an individual to bring proceedings under that Article to subjective/individual rights (C-535/18 Land Nordrhein-Westfalen).
• “Those considerations apply a fortiori as regards the implementation of Article 9(3) of the Aarhus Convention. As has been pointed out in paragraph 53 of the present judgment, that provision confers greater discretion on the Member States when they lay down the criteria for determining who actually has the right to bring an action as provided for therein than when they implement Article 9(2) of that convention.”
• The condition requiring a legitimate private interest did not apply to environmental protection associations recognised by Romanian law. “They are in a position to defend the public interest without having to demonstrate that they have been individually affected.”

Consequently, the CJEU was satisfied, in principle, that it was acceptable for national law to make the standing of applicants, other than a non-governmental organisation for the protection of the environment, to challenge an administrative measure of which they were not the addressee conditional upon them establishing that they had a legitimate private interest.

In light of its decision on the second question, the CJEU did not consider it necessary to consider the first.

Third, on 2 March 2023 the Court of Justice of the EU (“the CJEU”) gave judgment in Case C-432/21 Commission v Poland. The CJEU held that by excluding the possibility for environmental organisations challenging forest management plans before a court, Poland had failed to fulfil its obligations under Article 6(3) of the Habitats Directive, in conjunction with the second subparagraph of Article 19(1) TEU, Article 216(2) TFEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6(1)(b) and Article 9(2) of the Aarhus Convention’.

The case is replete with references to the Convention – 35 in total. The most interesting points being as to when a plan falls not within Article 9(3) of the Convention but rather in 9(2). That is to be the subject of another blog.

Fourth, ClientEarth back in May 2023 reported “Top German Court relies upon the Aarhus Convention to confer standing to an NGO” here.

The ClientEarth communication states:

“Germany’s top administrative court has decided that legal protection may not be restricted to those plans and programs for which there may be an obligation to carry out a strategic environmental assessment. According to the court, the relevant provision in German law may not be applied because it conflicts with EU environmental law as well as the Aarhus Convention (AC) and the Charter of Fundamental Rights of the European Union (CFR). For decision-making bodies, this means they must take international and EU environmental law into account and disapply national law that prevents legal protection in the case of a potential violation.

…

Section 1 (1) Nr. 4 UmwRG may therefore not be applied because it would otherwise prevent a recognized environmental association from challenging provisions of a landscape protection area ordinance that may violate EU law. The court also stresses that other effective and appropriate legal protection cannot be guaranteed in any other way and the possibility of challenging individual permits issued in accordance with the ordinance in question is not sufficient. The court referred in that regard to the 2017 Aarhus Convention Compliance Committee (ACCC) report to the Meeting of the Parties (para. 39)

…”

Fifth, while the Convention is not name checked I must also refer to the decision of Lieven J. in R. (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 359 (Admin). The challenge was to a report by planning inspectors concluding that a village area action plan was unsound on the basis that it conflicted with the national policy on exceeding the requirements of the Building Regulations in relation to energy performance standards. The standing of the claimant was challenged by the Government – something that was becoming increasingly common – based on n R (Good Law Project) v Runneymede Trust [2022] EWHC 298 (Admin) at [16]-[29] and whether there is a better placed challenger. The Judge said:

“56. [The Interested Party] described this involvement as “belated, fleeting and superficial”. He relied upon a passage in the Good Law Project at [59]:

“In the circumstances of the present case we have reached the conclusion that the obviously better-placed claimant for judicial review for the purposes of the public sector equality duty challenge is the Runnymede Trust, an organisation which exists specifically to promote the cause of racial equality. We consider that the Runnymede Trust has standing to bring the public sector equality duty challenge, but the Good Law Project does not.”

57. Mr Banner submits that there is an obviously better-placed claimant for the judicial review, namely the LPA, at the appropriate time.

58. The test for standing in judicial review is simply whether the claimant has sufficient interest in the matter to which the application relates. In this case, the matter is plainly the Inspectors’ recommendation, which as I have set above, I find to be justiciable. In my view it is not material, or certainly not sufficiently material, that the Claimant may not have been entitled to be a party to the examination. The matter being challenged is the Inspectors’ recommendation, which emerged from the AAP process.

59. The Claimant did engage in the AAP process, albeit only in the latter stages. However, this later engagement is both understandable and justifiable, because until the Inspectors indicated that they were considering recommending against Policy 2, there was no reason for the Claimant to engage. The LPA was pursuing a Plan which entirely accorded with the Claimant’s aims, and there would not have appeared to have been any reason for the Claimant to take active steps. However, once the Inspectors’ issue emerged that position entirely changed.

60. In my view the Claimant cannot properly be described as a busybody. It is an NGO established and operating in precisely the field of this AAP and this challenge, namely the role of LPA development plan making and climate change. That is an issue of enormous public concern, and one where this Claimant has particular knowledge and interest.

61. Further, I do not read the Divisional Court decision in Good Law Project as seeking to create a new test for standing, of whether there is a “better placed claimant”. Such a test would be a radical tightening of the rules in standing, this being a long step from a requirement that a claimant is not a busybody. There may be many judicial reviews where it could be said that someone other than the Claimant was better-placed, in the sense that they were more directly affected by the decision. But there may equally be many reasons why such a person chooses not to bring a challenge.

62. In any event, considering the facts at [59] of Good Law Project, the better placed claimant was an organisation with the specific aim relevant to the case. That test would be met here by the Claimant in any event.

63. Therefore I find that the Claimant has standing to bring this claim.”

This blog post was written by James Maurici KC.

Authors of the Aarhus blogs

– 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 KC 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.