33 – When is a plan not within the scope of…

I mentioned in Blog 32 the Court of Justice of the EU (“the CJEU”) having given judgment in Case C-432/21 Commission v Poland. On standing 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 considers also a substantive issue of Convention law. Indeed it is replete with references to the Convention – 35 in total. The most interesting point being as to when a plan falls not within Article 9(3) of the Convention but rather in 9(2). The CJEU said:

“(b)    The failure to fulfil obligations

165    Under the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of a site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, is to be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

166    Article 6(1)(a) of the Aarhus Convention provides that each party is to apply the provisions of that article with respect to decisions on whether to permit proposed activities listed in Annex I. Under point (b) of that provision, each party is, in accordance with its national law, to apply the provisions of that article to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment, the parties determining to that end whether such a proposed activity is subject to those provisions.

167    Under Article 9(2) of that convention, each party is to ensure, within the framework of its national legislation, that members of the public concerned with a sufficient interest or, alternatively, maintaining impairment of a right, where the administrative procedural law of a party requires that as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 of that convention and, where so provided for under national law and without prejudice to Article 6(3) thereof, of other relevant provisions of that convention.

168    As regards forest management plans, which are the subject of the Commission’s second complaint in the application, it should be recalled that Article 6(1)(6) of the Law on forests defines such a plan as ‘the basic forest management document prepared for a specific site, containing a description and an assessment of the state of the forest and the objectives, tasks and methods of forest management’.

169    Under Article 22(1) of the Law on forests, the Minister for the Environment is to approve a forest management plan for forests owned by the State Treasury and simplified forest management plans for forests forming part of the State Treasury’s Agricultural Property Stock.

170    In that regard, it should be noted at the outset that the Court has already had the opportunity to examine a forest management plan, as provided for by the Polish legislation, in the light of the Habitats Directive and has applied, in that regard, the requirements laid down in Article 6(3) of that directive (see, to that effect, judgment of 17 April 2018, Commission v Poland (Białowieża Forest), C441/17, EU:C:2018:255, paragraphs 106 to 193).

171    Accordingly, that provision, which relates to ‘any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon’, may apply to the forest management plans referred to in Article 22 of the Law on forests.

172    As regards the relationship between, on one hand, Article 6(3) of the Habitats Directive and, on the other hand, Article 9(2) of the Aarhus Convention, the Court has already held that decisions adopted by the competent national authorities within the framework of Article 6(3) of the Habitats Directive, whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision granting authorisation, are decisions which fall within the scope of Article 9(2) of the Aarhus Convention (judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C243/15, EU:C:2016:838, paragraph 56).

173    Decisions adopted by the national authorities which fall within the scope of Article 6(3) of the Habitats Directive and do not relate to an activity listed in Annex I to the Aarhus Convention are envisaged in Article 6(1)(b) of that convention and therefore fall within the scope of Article 9(2) thereof in so far as they involve assessment by the competent authorities, before any authorisation of an activity, as to whether that activity, in the circumstances of the case, is likely to have a significant effect on the environment (judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C243/15, EU:C:2016:838, paragraph 57).

174    As regards Article 9(2) of the Aarhus Convention, that provision limits the discretion available to the Member States when determining the detailed rules for the legal actions which it envisages inasmuch as that provision has the objective of granting ‘wide access to justice’ to the public concerned, which includes environmental organisations meeting the conditions laid down in Article 2(5) of the Convention (judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C243/15, EU:C:2016:838, paragraph 58).

175    In that regard, even though the Aarhus Convention, and in particular Article 6(1)(b) thereof, leaves to the States parties a certain discretion as regards the examination of the significant effects on the environment of an activity in question, the fact remains that, in the light of the case-law referred to in paragraphs 172 and 173 of the present judgment, the Habitats Directive gives concrete expression to the requirements that should be formulated as regards the significance of the effects on the environment in the field of European nature protection. Negative effects on the conservation objectives of European protected areas should in principle be considered significant within the meaning of that provision of the Aarhus Convention, and environmental organisations are therefore entitled to request that the competent authorities verify, on a case-by-case basis, whether the proposed activities are likely to have such a significant effect.

176    In the light of the foregoing considerations, it must be concluded that Article 6(3) of the Habitats Directive, read in conjunction with Article 6(1)(b) and Article 9(2) of the Aarhus Convention, imposes an obligation on the Republic of Poland to ensure that environmental organisations are able to apply to a court for effective review of the substantive and procedural legality of forest management plans, within the meaning of the provisions of the Law on forests, in so far as those plans fall within the scope of Article 6(3) of the Habitats Directive.

177    Furthermore, legislation providing for such access to a court must satisfy the requirements of clarity and precision laid down in the field of environmental law in accordance with the case-law of the Court (see, by analogy, judgment of 15 March 2012, Commission v Poland, C46/11, not published, EU:C:2012:146, paragraph 27 and the case-law cited).

178    In the present case, in the light of the file before the Court, it must be held that the Polish legislation does not satisfy the requirements referred to in paragraphs 176 and 177 of the present judgment.

179    In particular, as regards Article 22(1) of the Law on forests, which provides that a forest management plan is to be approved by the Minister for the Environment, the Commission relied in its application on the case-law of the Naczelny Sąd Administracyjny (Supreme Administrative Court), referred to in paragraphs 116 and 117 of the present judgment, according to which that act of approval does not constitute an administrative decision against which an action may be brought before the courts.

180    In its reply to the Commission’s argument, the Republic of Poland does not dispute the existence of that case-law but merely relies on the decisions of a lower court, namely those of the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw), which argue that it is possible to challenge before the administrative courts the approval, by the Minister for the Environment, of a forest management plan.

181    In that regard, it must be borne in mind that isolated or numerically insignificant judicial decisions in the context of case-law taking a different direction, or still more a construction disowned by the national supreme court, cannot be taken into account (see, by analogy, judgment of 9 December 2003, Commission v Italy, C129/00, EU:C:2003:656, paragraph 32).

182    In any event, where national legislation has been the subject of different relevant judicial constructions, some leading to the application of that legislation in compliance with EU law, others leading to the opposite application, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with EU law (judgment of 9 December 2003, Commission v Italy, C129/00, EU:C:2003:656, paragraph 33).

183    Furthermore, the circumstance, even if proved, that the practice of the national authorities is such as to ensure its implementation in accordance with the provisions of a directive cannot, in itself, achieve the clarity and precision needed to meet the requirements of legal certainty (see, to that effect, judgment of 26 January 2012, Commission v Poland, C192/11, not published, EU:C:2012:44, paragraph 58 and the case-law cited).

184    As regards Article 323 of the Law on protection of the environment, to which the Republic of Poland referred in the defence, under which, according to that Member State, an action may be brought before the ordinary court seeking in essence to challenge operations carried out pursuant to a forest management plan, it should be noted that, first, that provision merely grants the right to bring proceedings before that court to any person directly threatened with harm or who has suffered damage as a result of unlawful interference with the environment.

185    Article 9(2) of the Aarhus Convention, which grants access to justice to members of the public concerned, does not lay down, in that regard, the condition relating to the direct threat of harm or damage as a result of unlawful interference with the environment.

186    Secondly, Article 323 of the Law on protection of the environment does not provide for the possibility of examining the substantive and procedural legality of forest management plans, but allows only an application to be made to restore a lawful state of affairs and to take preventive measures, in particular by putting in place arrangements or installing facilities designed to prevent the threat or occurrence of the harm. Where that is impossible or unreasonably difficult, the cessation of the activity giving rise to the risk may be requested.

187    It follows that the information provided to the Court by the Republic of Poland does not permit the inference that that remedy is capable of ensuring effectively that environmental organisations are able to subject forest management plans covered by Article 6(3) of the Habitats Directive to judicial review of their substance and the procedure for their adoption.

188    In the light of all the foregoing considerations, the second complaint, alleging infringement of Article 6(3) of the Habitats Directive, read in conjunction with Article 6(1)(b) and Article 9(2) of the Aarhus Convention, is well founded.”

See here.

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.