Advocate Basic opinion suggests limiting Member State discretion to set standing standards for people

Advocate Basic Hogan: Case C-535/18 IL and others v Land Nordrhein-Westfalen ECLI:EU:C:2019:957

This opinion from Advocate Basic Hogan considers vital questions referring to entry to justice below each the Environmental Affect Evaluation (EIA) Directive and the Water Framework Directive (WFD). The AG supplies his opinion on Member States’ discretion to set standing necessities that prohibit people’ rights to problem selections that breach EIA and water high quality necessities. He additionally affords his view on the methods wherein the general public participation and necessities within the EIA Directive work together with the water high quality obligations contained in Article four of the WFD.


Various people in Germany sought to problem a call to authorise the development of a brand new motorway. The choice allowed the developer to discharge rainwater from the street’s floor into three our bodies of floor water or into the groundwater and contained a lot of provisions to make sure the standard of the water our bodies involved. Nevertheless, the authorisation was granted within the absence of a documented evaluation to make sure that the water safety necessities in Article four of the WFD have been met. Such an evaluation was solely supplied through the judicial proceedings that adopted, and even then it didn’t assess the standing of the groundwater physique involved. Moreover, the general public participation process that preceded the allow did not reference any paperwork associated to the water drainage facets. Consequently, a gaggle of people who had taken half within the public participation procedures, together with house owners of personal wells who have been involved that their water provide can be contaminated, tried to problem the allow earlier than the Federal Administrative Court docket. The German court docket referred a number of inquiries to the CJEU concerning the people’ rights to problem the authorisation below the EIA Directive and the Water Framework Directive, in addition to the substantive rights flowing from the Water Framework Directive.

Entry to justice for people below Article 11 of the EIA Directive

Below the relevant German legislation, people can solely problem an authorisation based mostly on a procedural defect if they will present that they’ve been disadvantaged of their proper to take part within the decision-making process as a complete. Because the people involved had participated within the decision-making process, albeit with out the required documentation, they did not fulfill this situation. The German Court docket requested if this was appropriate with Article 11(1) of the EIA Directive.
The Advocate Basic first famous that Article 11 was launched to align the EU with the necessities of the Aarhus Conference, which kinds an integral a part of the EU authorized order. As well as, he recalled that the provisions of Article 9(2) of the Aarhus Conference should be learn together with Article 47 of the EU Constitution of Elementary Rights to make sure efficient judicial safety of the rights conferred by EU legislation, specifically the provisions of environmental legislation. Due to this fact, whereas Member States get pleasure from discretion to find out what constitutes “impairment of a proper”, the entry to justice rights in Article 11 can’t be interpreted restrictively or in a fashion which negates the substance of the precise to efficient judicial safety.
This led the Advocate Basic to conclude that the German legislation is incompatible with Article 11 of the EIA Directive. The procedural ensures supplied for within the EIA Directive, significantly the general public participation provisions in Article 6, should be thought-about as substantive particular person rights. Due to this fact, whereas Article 11 wouldn’t preclude a nationwide legislation that requires people to display that they’ve been disadvantaged of considered one of these procedural rights, for instance entry to related paperwork, it does preclude a provision that requires people to display that they’ve been disadvantaged of the precise to take part in all the decision-making course of. He additionally discovered the availability to be a disproportionate and extreme limitation on the precise to an efficient treatment below Article 47 CFR, and thus opposite to Article 52(1) CFR, which units the necessities that should be met when limiting elementary rights.

Interplay with the Water Framework Directive

With the second and third questions, the nationwide court docket requested whether or not an evaluation of a undertaking’s impression on the standing of the water our bodies involved should happen previous to authorisation and, if that’s the case, whether or not public participation below Article 6 of the EIA Directive ought to take account of such evaluation.
The AG famous that Article 6(3) the Habitats Directive explicitly requires that an acceptable evaluation of the implications of a plan or undertaking for the location involved be carried out earlier than approval is granted. Whereas the Water Framework Directive doesn’t comprise the identical provision, he concluded that it should be interpreted as requiring an evaluation to happen previous to authorisation on the premise of the precautionary precept. This conclusion can be mirrored within the CJEU’s judgment in case C-529/15 Folks, which clarified {that a} nationwide court docket might discover an authorisation to be illegal the place the competent nationwide authority issued it with out an examination of whether or not the situations for a derogation from the Water Framework Directive’s necessities have been met.

The AG additionally discovered that public participation in accordance with Article 6 of the EIA Directive should relate to the evaluation of the standing of the water our bodies affected by the undertaking.
Entry to justice to implement Article four of the WFD
The fourth query associated as to if the people have been entitled to problem the authorisation on the grounds that it breaches the ban on the deterioration of water high quality -and the requirement for the development in water high quality in Article four of the WFD.

The AG referred to case C-664/15 Defend, wherein the Court docket held that the effectiveness of the WFD and its purpose of environmental safety requires people to have the ability to depend on its provisions in authorized proceedings (though in that case the applicant was an environmental safety organisation). He careworn that this is applicable significantly in respect of directives which can be meant to guard public well being, such because the WFD, since good water high quality is significant for most people water provide.
As to which people ought to have the ability to depend on Article four of the WFD in authorized proceedings, the AG didn’t straight reply the query of the referring Court docket, which had requested if this proper must be accessible to all members of the “public involved” by the undertaking which may present an impairment of a proper. Moderately, the AG referred to the current case C-197/18 Wasserleitungsverband Nördliches Burgenland and Others (analysed right here), concerning the precise of people to problem nitrate programmes. In that case, the CJEU held that the pure or authorized individuals straight involved by an infringement of provisions of a directive should be able to implement them. The AG opined that the time period “straight involved” must be interpreted restrictively, because it constitutes a restriction to entry to justice. The AG due to this fact concluded that these people who’ve home wells for his or her personal water provide in proximity to the street are straight involved, in addition to shoppers of the general public water provide if the undertaking is prone to have an effect on it. On this regard, he famous that the Court docket has not made a selected irrefutable threat to well being a situation for brining proceedings.


The AG’s opinion comprises a lot of helpful clarifications. With regard to entry to justice for people below Article 11 EIA Directive, the CJEU had beforehand held that Germany has vital discretion to limit standing and the scope of assessment with regards to the impairment of people’ rights (e.g. C-72/12 Altrip, C-137/14 Fee v Germany). The German rule at stake on this case was adopted to implement these judgments: It reserves the precise to problem a allow based mostly on the dearth of documentation through the public participation section to NGOs, whereas people solely have that proper if the dearth of documentation prevented them from taking part within the decision-making process as a complete. The AG’s opinion is due to this fact vital in that it will additional restrict Germany’s discretion to limit people’ standing by recognising that the general public participation procedures within the EIA Directive bestow substantive rights on sure people. As said by the AG himself, this method suits properly throughout the logic of studying Article 9(2) of the Aarhus Conference and Article 47 CFR collectively, thereby guaranteeing an efficient treatment when Aarhus procedural rights are violated.

Second, the interplay between the general public participation obligations within the EIA Directive and the substantive necessities within the WFD (and different environmental directives) is essential to bettering the standard of environmental decision-making. Due to this fact, the AG’s clarification that the evaluation of the standing of water our bodies affected by a undertaking should happen previous to authorisation and must be included within the public participation section of the EIA is critical.
The AG additionally took an expansive method to the query of which people are “straight affected” by an EU measure (on this case Article four WFD), and thus in a position to implement it earlier than nationwide courts. With out saying so explicitly, he adopted the logic of the CJEU’s method in case C-197/18 which accords standing to those who “legitimately use” the protected component and takes it to its logical conclusion, even when this goes so far as to afford standing to all shoppers of a public water provide that can doubtless be contaminated by a undertaking.

However, the AG’s opinion reveals one false impression price mentioning. He believes that the Aarhus Conference and the EIA Directive “have to a point thus supplied a type of actio popularis within the environmental subject for environmental safety organisations”. Quite the opposite, each the Aarhus Conference and the EIA Directive permit Member States to afford standing to environmental NGOs provided that they fulfil sure standards. Consequently, some Member States set stringent standards requiring, for instance, a minimal variety of members or that an NGO has pursued its environmental goals for a minimal size of time. In apply, the accumulative impact of such standards blocks NGOs from accessing nationwide courts in a lot of Member States.

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