Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?

• Author: Hendrik Schoukens
• Position: PhD Candidate, Department of European, Public and International Law, Ghent University (Belgium)
• Pages: 46-67

Hendrik Schoukens, ‘Access to Justice in Environmental Cases after the Rulings of

the Court of Justice of 13 January 2015:

Kafka

Revisited?’ (2015) 31(81) Utrecht

Journal of International and European Law 46, DOI: http://dx.doi.org/10.5334/ujiel.di

RESEARCH ARTICLE

Access to Justice in Environmental Cases

aftertheRulings of the Court of Justice of

13January 2015:

Kafka

Revisited?

Hendrik Schoukens*

By ratifying the Aarhus Convention in 2005 the EU committed itself to guaranteeing broad

access to justice in environmental matters both at the national and the EU level. Yet, in spite

of the clear-cut obligations incumbent upon the EU, EU courts have consistently rebuked pleas

for a softening of the standing requirements in the context of direct actions against EU acts

that might have an impact on the environment and/or public health. In addition, the internal

review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively

by the EU institutions that that its added value in the stride toward better access to courts in

environmental matters remains ephemeral at best.

This led the General Court to nding that the Aarhus Regulation, by excluding general EU acts

from the scope of internal review, was in breach of Article 9(3) of the Aarhus Convention. In its

recent rulings of 13 January 2015, however, the Court of Justice of the EU (CJEU) overruled

the General Court by holding that the Aarhus Regulation could not be reviewed in light of the

Aarhus Convention. With its refusal to use Article 9(3) of the Aarhus Convention as a reference

criterion for the purpose of reviewing the EU’s compliance with the Aarhus Convention’s obliga-

tions, the CJEU avoided tackling the unsatisfactory level of judicial protection in environmental

cases at the EU level.

This paper argues that the rulings of the CJEU are to be qualied as a signicant step back-

wards for judicial protection in environmental matters at the EU level. It is established that,

instead of addressing the current failings of the EU with respect to access to justice in envi-

ronmental cases, the CJEU’s hands-o approach paves the way for yet another decade of non-

compliance by the EU in the realm of access to justice in environmental cases.

Keywords: Access to justice; Judicial review; EU environmental law

I. Introduction

Franz Kafka is renowned for depicting his characters trapped in a system of rules and laws that they know

very little about. The ambiguous relationship between man and ‘The Law’ is probably best reflected in the

parable Before the Law, which is often viewed as the centrepiece of Kafka’s most famous novel The Trial.1

In this story, Joseph K., Kafka’s recurrent protagonist, tries to gain admission to the mysterious and elusive

Court. One day, K. has to show an important client from Italy around a cathedral. There the priest reveals

himself as a court employee, and he tells K. a story about a ‘man from the country’ who comes to a great door

seeking the Law. Before it stands a doorkeeper who is barring the entrance. He tells the man that he cannot

go through at the present time. At the end of the conversation, as the ‘man from the country’ is dying, he

wonders why, even though everyone seeks the Law, no one else has come in all these years: ‘Everyone strives

to reach the Law so how does it happen that for all these years no one but myself ever begged for admit-

tance?’. The doorkeeper replies that since the man is dying, he is going to close the door.

It is only a small step from K.’s frustration about not getting access to the Law to the futile attempts of

environmental NGOs and other individuals to gain direct access to the EU courts in environmental matters.

* PhD Candidate, Department of European, Public and International Law, Ghent University (Belgium).

1

Franz Kafka, The Trial (first published 1925, Penguin Modern Classics 2009).

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Schoukens 47

Traditionally, such actions are hindered by the prevailing interpretation of the requirement for individual

concern, one of the two conditions that need to be fulfilled pursuant to Article 263(4) of the Treaty on the

Functioning of the European Union (TFEU) for private entities in order to be able to challenge a legislative

or administrative EU act.

Yet the analogy goes further. When questioned by ‘the man from the country’ about the reasons under-

pinning the limited access to the Law, Kafka’s doorkeeper famously replied that, ‘No one else could even be

admitted here, since this gate was only made for you. I am now going to shut it’. In a similar manner, the

admissibility threshold put forward by the Court of Justice of the European Union (CJEU) in its renowned

1963 Plaumann-ruling requires a private party to prove that he or she is in a unique position in relation to

the contested administrative or legislative EU act.2 Not surprisingly, this rigid interpretation, which has been

consolidated by the EU courts ever since, bars public interest organisations, such as environmental NGOs,

from directly challenging EU acts before the EU courts.3 In itself, this would matter little if the possibility

to indirectly challenge EU acts through national proceedings – which are subsequently brought before

CJEU via the preliminary ruling procedure – would effectively counterbalance this lack of direct access to

EU courts in environmental cases. However, even if the EU acts are implemented through national rules,

national environmental proceedings often face important obstacles too, such as limited standing at national

level and reluctance by the national courts to refer the matter to Luxemburg, turning this detour in an inef-

fective alternative to direct access to EU courts.

The dire position of environmental NGOs before the EU courts stands in marked contrast with recent

international developments in the field of environmental justice. By ratifying the 1998 Aarhus Convention4

in 2005,5 the EU committed itself to guaranteeing sufficient access to justice in environmental matters. As

is widely known, the Aarhus Convention calls for the recognition of a number of procedural rights for indi-

viduals and NGOs with regard to the environment.6 In order to ensure compliance with the EU’s obligations

under the Aarhus Convention, the European Parliament and Council passed Regulation (EC) 1367/2006 on

the application of the provisions of the Aarhus Convention to Community institutions and bodies (‘Aarhus

Regulation’).7

Some welcomed the Aarhus Regulation as a significant step forward in the pursuit of better access to

justice at the EU level.8 However, until today, the internal review procedure has not been particularly suc-

cessful in altering the predicament of environmental NGOs to the better. Indeed, a quick glance at the recent

administrative application of the internal review procedure reveals that most requests for internal review

filed by environmental NGOs were rejected by the EU institutions. In most instances, it is upheld that the

contested acts do not constitute measures for which internal review is foreseen.9

When confronted with the first legal challenges targeting the limited scope of the internal review mech-

anism in Stichting Natuur en Milieu10 and Vereniging Milieudefensie,11 the General Court invalidated two

decisions of the European Commission in which a restrictive approach to the Aarhus Regulation had been

applied. It did so by referring to the EU’s obligations under Article 9(3) of the Aarhus Convention. On appeal,

however, the CJEU rejected the Aarhus-based discourse in its decisions of 13 January 2015 and avoided a

2

Case 25/62 Plaumann & Co. v Commission of the European Economic Community [1963] ECR 95.

3

Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v Commission [1995] ECR II-2205; Case C-321/95 P Stichting

Greenpeace Council and Others v Commission [1998] ECR I-1651. See more extensively Nicole Gérard, ‘Access to the European Court

of Justice: A Lost Opportunity’ (1998) 10(2) JEL 331; Diana L Torrens, ‘Locus Standi of Environmental Associations under EC Law –

Greenpeace – A Missed Opportunity for the CJEU’ (1999) 8(3) RECIEL 336. For a more recent critical assessment of this case law,

see Charles Poncelet, ‘Access to Justice in Environmental Matters – Does the European Union Comply with its Obligations?’ (2012)

24(2) JEL 287.

4

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters,

done at Aarhus, Denmark, 25 July 1998 (Aarhus Convention) [1999] 2161 UNTS 447; 38 ILM 517.

5

Council Decision 2005/370/EC of 17 February 2005 on the conclusion on behalf of the European Community, of the Convention

on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1.

6

See Jeremy Wates, ‘The Aarhus Convention: a Driving Force for Environmental Democracy’ (2005) 2(1) JEEPL 3, 4.

7

Council Regulation (EC) No 1367/2006 of 6 September 2006 on the application of the provisions of the Aarhus Convention on

Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community

institutions and bodies [2006] OJ L 264/13 (Aarhus Regulation).

8

Teall Crossen and Veronique Niessen, ‘NGO Standing in the European Court of Justice - Does the Aarhus Regulation Open the

Door?’ (2008) 16(3) RECIEL 332, 333.

9

Jan H Jans and Gertjan Harryvan, ‘Internal Review of EU Environmental Measures. It’s True: Baron Van Munchausen Doesn’t Exist!

Some Remarks on the Application of the So-Called Aarhus Regulation’ (2010) 3(2) Rev Eur & Ad L 53.

10 Case T-396/09 Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission (CFI, 14 June 2012).

11 Case T-338/08 Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission (CFI, 14 June 2012).