Which court for NGOs in environmental matters:
the national court of the EU Member States and/or
the CJEU?
An assessment of the access to courts of NGOs in environmental matters in the EU
Name: Ella Marte Boulan E-mail: ellaboulan@hotmail.com Student number: 10975896
Mastertrack: International and European Law (European Union Law) Supervisor: Dhr. mr. dr. R.H. (Ronald)
van Ooik Submitted on: 8 January 2021
Abstract
In this thesis, attention will be paid to the right to an effective remedy, as laid down in Article 47 CFREU, of ENGOs who want to challenge an EU environmental measure. It will be argued that the strict application of the admissibility criteria for actions for annulment by the CJEU practically bars ENGOs from access to the CJEU on the basis of Article 263(4) TFEU. Further, it will be argued that access to national courts in combination with the preliminary reference procedure, laid down in Article 267 TFEU, cannot sufficiently justify this lack of direct access to the CJEU, in the light of Article 47 CFREU. Therefore, the CJEU should revise its long-standing case law on the interpretation of the admissibility criteria of non-privileged applicants in actions for annulment in the context of the environment. In contrast to what has been stated by the CJEU, it is argued that the CJEU can change the interpretation without overstepping its judicial boundaries since the CJEU has already done so in other situations in the past and since the protection of Article 47 CFREU contributes to the democratic legitimacy of EU environmental law. At the end, the article will suggest an alternative interpretation of the requirement of ‘individual concern’, as laid down in Article 263(4) TFEU, for cases brought by ENGOs.
Index
Introduction ... 5
I. Access to the CJEU for NGOs ... 7
I.1 Introduction ... 7
I.2 Direct access to the CJEU ... 7
I.2.1 Actions for annulment ... 7
I.2.2 ‘Acts’ and ‘regulatory acts’... 8
I.2.3 A personal interest in bringing proceedings ... 9
I.2.4 Direct concern ... 9
I.2.5 Individual concern... 10
I.3 Indirect access to the CJEU ... 10
I.3.1 Indirect review as a justification for no direct access ... 10
I.3.2 The preliminary reference procedure ... 11
I.4 Conclusion ... 12
II. Direct access to the CJEU for NGOs in environmental matters ... 12
II.1 Introduction... 12
II.2 Applying the admissibility criteria to (E)NGOs ... 13
II.3 The Aarhus Convention ... 13
II.4 The case law of the CJEU on direct access of ENGOs ... 15
II.5 Conclusion ... 18
III. Environmental matters before the Member States’ courts ... 18
III.1 Introduction ... 18
III.2 General principles... 19
III.2.1 Procedural autonomy ... 19
III.2.3 The principles of effectiveness and equivalence ... 20
III.3 The Aarhus Convention... 20
III.4 Case law of the CJEU on indirect access of ENGOs ... 21
III.5 Conclusion ... 23
IV. Indirect access as a justification for no direct access to the CJEU ... 23
IV.1 Introduction ... 23
IV.2 Article 47 CFREU; not sufficiently guaranteed by Article 267 TFEU ... 24
IV.2.1 Literature ... 24
IV.2.2 The opinion of the ACCC ... 26
IV.2.3 The UPA and Jégo-Quéré case ... 27
IV.3 Article 47 CFREU; sufficiently guaranteed by Article 267 TFEU ... 28
IV.4 Conclusion... 29
V. (Not) overstepping the judicial boundaries ... 29
V.1 Introduction ... 29
V.2 The ECJ’s revisions of the admissibility requirements ... 30
V.2.1 Article 263 TFEU and the European Parliament ... 30
V.2.2 Economic interests... 31
V.3 The Plaumann formula; endangering the democratic system... 32
V.4 A new interpretation of individual concern ... 33
V.5 Conclusion ... 34
Conclusion ... 34
Tables and lists of abbreviations ... 36
List of abbreviations ... 36
Table of cases by the General Court ... 37
Table of cases by the ECJ... 38
Table of cases by the Compliance Committee of the Aarhus Convention ... 41
Table of legislation ... 42 Table of documents by the European Commission ... 42
Introduction
Climate change holds the (judicial) world in its grip. The past years, climate change litigation
has been booming at both national and EU level.1 For example, last year, the General Court of
the European Union (GC) was confronted with the Carvalho case.2 The applicants, in this case,
argued that the legislative package3 adopted by the EU to implement its obligations following
from the Paris Agreements on the reduction of greenhouse gas emissions within the EU was insufficient to meet the set reduction-thresholds.4 However, whereas environmental cases
before national courts seem to become a more successful tool in the fight against climate change, the Court of Justice of the European Union (CJEU) seems to keep its door shut.5 In the
Carvalho case, for example, the GC concluded that the action for annulment was inadmissible because the applicants were not the addressee of the legislative package, nor were the applicants ‘individually concerned’.6 Thus, the applicants had no standing before the European court.
The CJEU seems unwilling to open its doors for environmental cases brought by (individuals or) environmental non-governmental organisations (ENGOs). It has consistently denied access to ENGOs in cases concerning the environment, by requiring that ENGOs seeking access to the CJEU meet the rigorous criteria of direct and individual concern, as developed in the case law of the CJEU. Especially the interpretation of individual concern as developed by the European Court of Justice (ECJ) in 1963 imposes a massive hurdle for ENGOs on access to justice in environmental matters. Until today, not a single environmental case brought by an ENGO has been declared admissible by the CJEU.
According to the CJEU, the lack of access to the CJEU in environmental matters is justified by the possibility for ENGOs to bring the case before a national court and request the national judge to refer the matter to the CJEU for a preliminary ruling.7 However, scholars
claim that the interpretation of the requirement of individual concern is problematic and does
1Laura Burgers ‘Should Judges Make Climate Change Law’ (2020) 9(1) TEL 55, 56.
2Case T-330/18 Armando Carvalho and Others v European Parliament and Council of the European Commission [2019]
ECLI:EU:T:2019:324.
3 The legislative package consisted of the following acts: European Parliament and Council Directive 2018/410 of 14 March
2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 [2018] OJ L76/3; European Parliament and Council Regulation 2018/841 of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/3013 and Decision No 529/2013/EU [2018] OJ L156/1; European Parliament and Council Regulation of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 [2018] OJ L156/26.
4 Carvalho (n 2), paras 4-6, 18.
5 For an example of a successful case before the Dutch national court, see HR 20 December 2019, ECLI:NL:HR:2019:2006
(Urgenda).
6 Carvalho (n 2), paras 35, 54.
not sufficiently guarantee the right to an effective remedy. Criticism has also been shown by the Compliance Committee of the (international) Aarhus Convention, by the Advocate General
in the UPA case, and by the GC.8 This criticism is, however, mainly centred around the Aarhus
Convention and often outdated, especially regarding the proposed alternatives. Further, not much attention has been paid to the instrument through which the suggested solutions should be brought into force, e.g., can the CJEU change its interpretation or is legislation required to improve the admissibility requirements of ENGOs?
Therefore, in this thesis, the following research question will be answered: Does the current approach of the CJEU to access to justice at EU level of ENGOs in environmental matters sufficiently guarantee the right to an effective remedy as laid down in Article 47 CFREU, or is a more open approach to such access to justice for ENGOs in environmental issues necessary to guarantee the right to an effective remedy? And as a follow up (sub)question: If a more open approach is necessary, can the CJEU provide for such an approach, or is a Treaty amendment required? In answering this question, I will conduct classical legal research. Most of my research, I will be using an internal perspective, with some descriptive and some normative elements, and (hopefully) coming to a prescriptive conclusion. In chapter 1, the general system of access to the CJEU for NGOs will be explained. Chapter 2 will focus on the specific situation of access to the CJEU for ENGOs in environmental matters. Chapter 3 regards access to the national courts for ENGOs in environmental matters. In chapter 4 attention will be devoted to the criticism on the current system and on the question whether the current system complies with Article 47 CFREU. Finally, chapter 5 will focus on the question of whether, if necessary, the CJEU can change the interpretation of the admissibility requirements without overstepping its judicial boundaries and if so, what should be changed.
8 Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR I-6677, Opinion of AG
Jacobs; Case T-177/01 Jégo-Quéré & Cie SA v Commission of the European Communities [2002] ECR II-2365; ACCC, Findings and Recommendations on Communication ACCC/2008/32 (part I) concerning compliance by the European Union adopted on 14 April 2011; ACCC, Findings and Recommendations on Communication ACCC/2008/32 (part II) concerning compliance by the European Union adopted on 17 March 2017.
I. Access to the CJEU for NGOs
I.1 Introduction
This chapter will provide an overview of the general system of access to the CJEU for NGOs, which also applies to environmental matters.9 The first part focuses on the matter of ‘direct
access’ to the CJEU, the second part on the system of ‘indirect access’ to the CJEU.
I.2 Direct access to the CJEU
The principle of conferral prescribes that EU institutions can only act when the Treaties provide them with the competence to do so.10 The Treaties have not conferred general jurisdiction upon
the CJEU. Thus, the CJEU will only have jurisdiction in the specific situations provided for by the Treaties.11 If the CJEU is not competent, the Member States’ courts have jurisdiction.12
The Treaty confers jurisdiction to the CJEU to rule in four different direct procedures, namely in infringement proceedings based on Articles 258 and 259 TFEU; actions for annulment based on Article 263 TFEU; actions for failure to act based on Article 265 TFEU; and actions for damages based on Articles 340 jo 268 TFEU. This chapter will be limited to the action for annulment, which is the most common possible action for ENGOs that want to challenge EU environmental measures.
I.2.1 Actions for annulment
The action for annulment is laid down in Article 263 TFEU, which provides that the CJEU has jurisdiction to review acts adopted by the Council, the Commission and the European Central Bank, ‘other than recommendations and opinions’, and acts adopted by the European Parliament, the European Council and EU bodies, offices or agencies ‘intended to produce legal effects vis-á-vis third parties’.13
Actions for annulment can be brought by three different types of applicants, namely Member States and EU institutions (i.e. privileged applicants); the Court of Auditors, the European Central Bank and the Committee of the Regions (i.e. semi-privileged applicants); and natural or legal persons (i.e. non-privileged applicants).14 Whereas the right of privileged
9 Ludwig Krämer, ‘Access to Environmental Justice: the Double Standards of the ECJ’ (2017) 14 JEEPL 159, 161. 10 Article 5(2) TFEU.
11 Article 19 TEU.
12 René Barents, Remedies and Procedures before the EU Courts (Helen Breese (ed), European Monographs Series vol 97,
Wolters Kluwer 2016) 62.
13 Article 263(1) TFEU.
applicants to bring an action for annulment is general and unconditional, semi-privileged applicants can only bring an action for annulment ‘for the purpose of protecting their
prerogatives’15, and non-privileged applicants are faced with several admissibility
requirements.16
Article 263(4) TFEU prescribes that non-privileged applicants can bring an action for annulment in three situations:
(i) if the EU act is addressed to the applicant;
(ii) if the EU act, which is not addressed to the applicant, directly and individually concerns the applicant; or
(iii) if the EU act is ‘a regulatory act which is of direct concern to [the applicant] and
does not entail implementing measures’.17
Since environmental measures are hardly ever addressed to the applicant, this thesis will mainly focus on the requirements of direct and individual concern.
I.2.2 ‘Acts’ and ‘regulatory acts’
As seen above, Article 263(4) TFEU distinguishes between ‘acts’ and ‘regulatory acts’. According to the CJEU, the term ‘act’, as laid down in Article 263(4) TFEU, refers to that article's first paragraph.18 Thus, an ‘act’ includes all the acts mentioned above in subsection
I.2.1. Therefore, an action for annulment can be brought against acts of general application, which can be either legislative or non-legislative, as long as the criteria of direct and individual concern are met, which includes general regulations, directives and decisions, and against individual acts.19
The term ‘regulatory act’ was introduced in Article 263(4) TFEU by the Lisbon Treaty and was meant to broaden the standing rules for non-privileged applicants.20 However,
according to the CJEU, the term refers only to non-legislative acts of general application.21
Thus, regarding legislative acts, the criterion of individual concern must still be applied.22 The
15 Article 263(3) TFEU. 16 Article 263(4) TFEU. 17 Ibid, emphasis added.
18 Case T-18/10 Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union [2011] ECR
II-5599, para 56; Case C-583/11 P Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union [2013] ECLI:EU:C:2013:625, para 56.
19 ECJ Inuit (n 19), para 56; Krämer (2017) (n 9), 162.
20 Sanja Bogojević, ‘Judicial Protection of Individual Applicants Revisited: Access to Justice through the Prism of Judicial
Subsidiarity’ (2015) 34 YEL 5, 11.
21 GC Inuit (n 18), para 56; ECJ Inuit (n 19), para 60. 22 GC Inuit (n 18), para 56; ECJ Inuit (n 19), paras 59, 70.
consequence of this interpretation of the term ‘regulatory act’ is that the introduction of this term to Article 263(4) TFEU has not led to a (significant) increase of the admissibility of non-privileged applicants as regards actions for annulment.23
I.2.3 A personal interest in bringing proceedings
Non-privileged applicants can thus bring an action for annulment against acts and regulatory acts. However, to be granted standing before the CJEU, they must fulfil several requirements. Although not explicitly mentioned in Article 263(4) TFEU, the CJEU has made clear that non-privileged applicants can only bring an action for annulment if they have a personal interest in
bringing proceedings.24 That means that, if the measure is annulled, this annulment must have
at least some sort of legal consequences for the applicant.25
I.2.4 Direct concern
Moreover, the applicant must be the addressee of the act or be directly concerned.26 An act is
of direct concern to the private applicant if it constitutes ‘a complete set of rules which are
sufficient in themselves and which require no implementing provisions’.27 This means that the
measure must directly affect the position of the applicant, and the act itself must produce the legal effects. Thus, the legal effect on the applicant should not be produced by the subsequent adoption of another, substantial, act by either the EU or the Member States.28 I.e., the act cannot
leave any discretion of actual significance on the authority applying the act.29
The criterion of direct concern can form a hurdle for ENGOs. For example, in the Greenpeace case the ECJ stated that the applicants were not directly concerned by the Commission’s decision to grant financial assistance to Spain for the building of two power stations. It was not
23 Bogojević (n 20),14.
24 See, e.g., Case 141/03 Sniace SA v Commission of the European Communities [2005] ECR II-1197, para 22; Case
T-471/11 Editions Odile Jacob Sas v European Commission [2014] ECLI:EU:T:2014:739, para 38.
25 Barents (n 12) 216. 26 Article 263(4) TFEU. 27 Les Verts (n 7), para 31.
28 GC Inuit (n 18), para 71. Case T-262/10 Microban International Ltd and Microban (Europe) Ltd v European Commission
[2011] ECR II-7697, para 27.
29 Charlotte Herman, ‘Lisbon and Access to Justice for Environmental NGOs: A Watershed? A Case Study Using the Setting
of the Total Allowable Catches under the Common Fisheries Policy’ (2010) 7.4 JEEPL 391, 392 – 393; Barents (n 12) 266-268. See also Case C-386/96 P Société Louis Dreyfus v Commission of the European Communities [1998] ECR I-2309, paras 44, 53-55.
the Commission decision to grant financial assistance but Spain’s decision to build the power stations, that was liable to affect the environmental rights that the applicants sought to invoke.30
Nevertheless, in most environmental cases, ENGOs’ main issue before the CJEU seems to be the CJEU’s interpretation of the requirement of individual concern. It must be noted, however, that, the criteria of direct and individual concern are cumulative. The CJEU often starts with the assessment of the criterion of individual concern, which until now has never been satisfied in environmental cases. Therefore, the CJEU often concludes that the case is inadmissible after the assessment of individual concern and does not assess the criterion of direct concern.
I.2.5 Individual concern
Furthermore, as regards ‘acts’, the applicant must also be individually concerned. The ECJ has developed the interpretation of the term ‘individual concern’ in the Plaumann case, which reads as follows:
Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.31
I.3 Indirect access to the CJEU
I.3.1 Indirect review as a justification for no direct access
Based on Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) ‘everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy’.32 However, as seen above, the standing rules for non-privileged
applicants who want to bring an action for annulment, and especially the Plaumann formula, are strict. In light of the right to an effective judicial remedy, the CJEU has always justified the strict application of the admissibility requirements, by paying attention to two alternatives for non-privileged applicants who cannot bring an action for annulment. According to the ECJ, by
30 Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and Others v Commission of the European
Communities [1998] ECR-I 1651, paras 30-31.
31 Case 25/62 Plaumann & Co v Commission of the European Economic Community [1963] ECR 95, 107. 32 Article 47 CFREU jo Article 51 CFREU.
providing for Article 263 and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, ‘the Treaty provides for a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions’.33
Firstly, if the (general) EU measure is implemented at the EU level, the non-privileged applicant can challenge the implementation measure before the CJEU and can plea the illegality of the underlying general measure on the basis of Article 277 TFEU. Article 277 TFEU can only be raised as an incidental plea in an action for annulment.34 Thus, the non-privileged
applicant must (still) be able to ‘bring a direct action before the CJEU against implementing
measures which are addressed to them or which are of direct and individual concern to them’.35
Consequently, for ENGOs trying to challenge environmental measures, the plea of illegality will (often) not be available.
Secondly, if the (general) EU measure is implemented at the national level, the non-privileged applicant has the possibility of bringing a case before a national court and ask the national court to refer preliminary questions on the validity of the EU measure to the CJEU for a preliminary ruling based on Article 267 TFEU.36 This possibility is also referred to as the
indirect route to the CJEU.
I.3.2 The preliminary reference procedure
The preliminary reference procedure enables national courts that are dealing with a case concerning EU law, to ask the CJEU certain preliminary. The procedure is laid down in Article 267 TFEU, which provides that the CJEU has jurisdiction to give preliminary rulings on ‘the interpretation of the Treaties’, and ‘the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’.37
In principle, it is for the national court or tribunal dealing with the case to decide whether a preliminary ruling is necessary for it to give judgment.38 However, Article 267 TFEU provides
for an obligation to refer the question to the CJEU if there is no national judicial remedy available under national law against the decision of the national court or tribunal. The ECJ has limited this obligation in the CILFIT case39, where the ECJ stated that the national court does
not need to refer the question if:
33 Les Verts (n 7), para 23. Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR
I-6677, para 40.
34 Article 277 TFEU; Barents (n 12) 295; Schütze (n 14) 363. 35 Les Verts (n 7), para 23.
36 See e.g. Les Verts (n 7), para 23; UPA (n 33), para 40. 37 Article 267 TFEU.
38 Ibid.
(i) the answer to the question will be irrelevant to the outcome of the case;40 or
(ii) the provision of EU law has already been interpreted by the CJEU (‘Acte Éclairé’);41
or
(iii) the correct application of the provision of EU law is ‘so obvious as to leave no scope for reasonable doubt’ (‘Acte Clair’).42
The ECJ has also introduced an extra obligation for national courts to refer a preliminary question to the CJEU. In the Foto-Frost case, the ECJ made clear that even though national courts are allowed to declare acts of EU law valid, they cannot declare such acts invalid.43 It is
the logical consequence of this judgment that a national court, also if a judicial remedy is available against its decision, must refer a question on the validity of an EU act to the CJEU if it believes that the act can possibly be invalid.44
I.4 Conclusion
There are two different routes for non-privileged applicants to bring a case on the lawfulness of secondary EU law before the CJEU. The first (direct) route is the action for annulment as laid down in Article 263(4) TFEU. However, the (strict) admissibility requirements are difficult to meet for non-privileged applicants that are not the addressee of the act they want to challenge. The other (indirect) route is to bring the case before the national court and ask the judge(s) to use the preliminary reference procedure as laid down in Article 267 TFEU.
II. Direct access to the CJEU for NGOs in environmental matters
II.1 Introduction
This chapter focuses on the position of ENGOs regarding Article 263(4) TFEU. Since ENGOs are legal persons, they can, in principle, bring actions for annulment under Article 263(4) TFEU as long as they satisfy the admissibility requirements.45 First, the chapter will explain under
which circumstances (E)NGOs can meet the Plaumann formula. Next, it will devote attention the Aarhus Convention which lays down specific rules regarding access to justice for ENGOs.
40 Ibid, para 10 41 Ibid, paras 13-15.
42 Ibid, para 16. This exception is subject to strict conditions. For further explanation see e.g. Schütze (n 14) 385-388. 43 Case C-314/85 Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199, paras 14-15
44 Case C-344/04 The Queen on the application of International Air Transport Association and European Low Fares Airline
Association v Department for Transport [2006] ECR I-403, para 30.
The chapter will end with an evaluation of the case law of the CJEU on direct access to the CJEU for ENGOs.
II.2 Applying the admissibility criteria to (E)NGOs
(E)NGOs can meet the admissibility criteria of Article 263(4) TFEU in two situations. Firstly, if (some of) its members are individually concerned, the NGO can substitute itself for those members that could have brought an action for annulment before the CJEU.46 Secondly, an
NGO can be directly and individually concerned based on a specific interest of that NGO, which is different from the interest of its members.47 This can be the case, for example, if EU law
confers certain procedural guarantees upon the NGO.48
The ENGOs’ problems of getting direct access to the CJEU, are caused by the fact that ENGOs often strive for environmental protection in general.49 Their public interest-nature
characterizes ENGOs, and they often strive to preserve common goods.50 Therefore, ENGOs
often have a general interest and lack an individual interest, which makes it almost impossible to prove that they are affected by a decision differently than all other persons and thus meet the
Plaumann criterion.51 However, as we will see in paragraph II.4, the CJEU continues to apply
the Plaumann formula in environmental matters.
II.3 The Aarhus Convention
In 2005 the EU became a party to the UNECE’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus
Convention or AC).52 The Aarhus Convention is an international convention that lays down
rules on, amongst other things, access to judicial and administrative proceedings in environmental matters.53
Article 9 AC contains rules on access to justice. By including Article 9 in the Aarhus Convention, the Convention aimed to improve individuals' possibilities to invoke the rights
46 Ibid, 271-272. See also Stichting Greenpeace (n 30), para 29. 47 Ibid, 273-274.
48 See e.g. Joined cases T-236/04 and T-241/04 European Environmental Bureau (EBB) and Stichting Natuur en Milieu v
Commission of the European Communities [2005] ECR II-4945, para 58; Case C-355/08 P WWF-UK Ltd v Council of the European Union and Commission of the European Communities [2009] ECR I-0073, paras 42-43.
49 Stichting Greenpeace (n 30), para 18; Herman (n 29) 393.
50 Charles Poncelet, ‘Access to Justice in Environmental Matters – Does the European Union Comply with its Obligations?’
(2012) 24(2) JEL 287, 297.
51 Herman (n 29) 393.
52Council Decision 2005/370/EC 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 L 124/1.
53 Decision 2005/370/EC (n 56); Jan Darpö, ‘On the Bright Side (of the EU’s Janus Face) The EU Commission’s Notice on
flowing from the Convention.54 The third paragraph of Article 9 provides an obligation to
ensure access to judicial or administrative procedures55 for ‘acts and omissions by private
persons and public authorities which contravene provisions of its national law [i.e., EU law as concerns the EU’s membership to the Aarhus Convention] relating to the environment’.56
Article 9(3) AC does also confer a right to access to judicial and administrative procedures upon NGOs.57
The Aarhus Convention is a mixed agreement.58 Neither the EU nor the Member States are
exclusively competent to conclude international agreements concerning environmental policy.59 Therefore, a declaration made by the EU, concerning the division of competences, was
added to the EU’s approval of the Aarhus Convention. It follows from this declaration that the Member States remain ‘responsible for the performance of [the obligations arising from the
Aarhus Convention]’ until the EU has adopted provisions to implement those obligations.60
To implement the Aarhus Convention’s obligations, the EU has adopted Council Regulation 1367/2006 (the Aarhus Regulation or AR).61 This regulation mainly focuses on
access to administrative procedures by allowing certain ENGOs to request an internal review to the EU institution that has, or should have, adopted an ‘administrative act under
environmental law’.62 The Aarhus Regulation provides for a right for ENGOs who have made
a request for internal review, to institute proceedings before the CJEU, in accordance with the relevant provisions of the Treaty.63 Since the Commission’s (failure to) reply to the request for
an internal review will be an individual decision, an ENGO will be able to bring an action for annulment against such a (failure to) reply.64 However, as regards the underlying administrative
act, the admissibility requirements must still be met. Thus, it seems that the CJEU will only
54 Stephan Stec and Susan Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide (for the Regional
Environmental Center for Central and Eastern Europe, United Nations Publication 2000) 123.
55 In light of the EU obligation to provide for an effective judicial remedy, it is important to note that Article 9(3) AC refers to
administrative or judicial procedures. Article 47 CFREU, however, focuses on judicial procedures. This means that under the Aarhus Convention, a lack of access to judicial procedures can be compensated by access to administrative procedures. However, as regards Article 47 CFREU, this is not the case.
56 Article 9(3) AC, emphasis added.
57 Jan Jans, ‘Judicial Dialogue, Judicial Competition and Global Environmental Law. A Case Study on The UNECE Convention
on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’ in Jan Jans, Richard Macrory and Angel-Manuel Moreno Molina (eds), National Courts and EU Environmental Law (The Avosetta Series (10), Europa Law Publishing 2013), 148.
58 Ibid, 146.
59 Article 4 TFEU jo Article 191(4) TFEU. 60 Council Decision 2005/370/EC (n 56).
61 European Parliament and Council Regulation 1367/2006 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).
62 Ibid, Articles 10 and 11. 63 Ibid, Article 12 64 Barents (n 12) 273.
review the internal review and not the underlying act, meaning that the Aarhus Regulation does not actually extend the possibilities for ENGOs to bring a case before the CJEU.65
II.4 The case law of the CJEU on direct access of ENGOs
The judgments of the CJEU on the admissibility of actions for annulment brought by ENGOs show that it is (almost) impossible for ENGOs to meet the Plaumann formula. This paragraph will highlight the most important case law of the CJEU on this subject.
The first case in which the ECJ applied the Plaumann formula to environmental matters was Greenpeace v Commission.66 In this case, Spain wanted to build two power stations on
Gran Canaria and Tenerife. The Commission had adopted a decision to grant financial assistance to Spain for this plan. However, the company that was building the power stations had not undertaken an environmental impact assessment study, which was required by the Environmental Impact Assessment Directive (85/337/EEC). Greenpeace brought an action for annulment before the CJEU.67 According to Greenpeace, its action was admissible because
some of its members met the admissibility criteria.
The ECJ, however, disagreed with Greenpeace. It stated that the individual applicants were not individually concerned, because their specific situations were ‘not taken into consideration in the adoption of the act, which concerns [them] in a general and abstract fashion and, in fact, like any other person in the same situation’.68 Since the individual applicants were
not individually concerned, Greenpeace could not claim to be individually concerned.69
In the Danielsson case70, the CFI (now: GC) clarified that even if the measures harmed the
applicants, this was not enough to be deemed individually concerned. The French authorities allowed for the carrying out of nuclear tests on two islands in French Polynesia close to where the applicants lived.71 The applicants claimed that the carrying out of those nuclear tests
exposed them to both short- and long-term risks72
65 Poncelet (n 50) 303.
66 Case C-321/95 P Stichting Greenpeace Council (Greenpeace International) and Others v Commission of the European
Communities [1998] ECR-I 1651.
67 Ibid, para 2.
68 Ibid, para 28, emphasis added. 69 Ibid, para 29.
70 Case T-219/95 R Marie-Thérèse Danielsson and Others v Commission of the European Communities [1995] ECR II-3051. 71 Ibid, para 2.
The CFI applied the Plaumann formula and stated that the fact that the applicants are (allegedly) harmed by the measure is not, on its own, sufficient to establish that the applicants are individually concerned. It concluded that the applicants, in this case, had not shown that they were affected by the measure in a way that differentiated them from any other person residing in the specific area.73
The judgment in the EBB case74 was rendered after the EU became a party to the Aarhus
Convention.75 The EBB was an ENGO that participated in several consultative bodies of the
Commission regarding the environment.76 Together with Stichting Natuur en Milieu, the EBB
brought an action for annulment against two decisions by the Commission, which allowed the Member States to authorize the use of atrazine and simazine.77
The Court, once again, concluded that the applicants were not individually concerned. According to the Court, the applicants were only affected by the Commission decisions in their objective capacity as ENGOs trying to protect the environment. However, that capacity in itself is not sufficient to meet the criterion of individual concern.78 The Court also paid attention to
the consultative role of EBB. It stated that the fact that an applicant participates in the process that leads to the adoption of EU measures is insufficient to meet the criterion of individual concern. This is different if EU legislation has laid down specific procedural guarantees for that applicant.79
The ECJ confirmed the EBB judgment in the WWF-UK case80, which was rendered after the
Aarhus Regulation was adopted.81 WWF-UK was a member of the North Sea RAC, which was
a regional advisory council established by Council Regulation 2371/2002 that advised the Commission on certain fishery matters.82 The Council had adopted a regulation relating to
fishery matters, against which WWF-UK brought an action for annulment.83 According to the
relevant EU legislation, the Council can adopt such a regulation based on a Commission
73 Ibid, paras 71-72.
74 Joined cases T-236/04 and T-241/04 European Environmental Bureau (EBB) and Stichting Natuur en Milieu v Commission
of the European Communities [2005] ECR II-4945.
75 Submitted before the EU was a party to the Aarhus Convention. 76 EBB (n 74), para 13.
77 Ibid, paras 32-33. 78 Ibid, para 56. 79 Ibid, para 58.
80 Case C-355/08 P WWF-UK Ltd v Council of the European Union and Commission of the European Communities [2009]
ECR I-0073.
81 However, the case was submitted to the ECJ before the Aarhus Regulation was adopted. 82 WWF-UK (n 80), para 15.
proposal. Before the Commission adopts its proposal, the North Sea RAC has a right to be heard
by the Commission and receive a reply to its recommendations.84
The ECJ stated that the action for annulment by WWF-UK was inadmissible because WWF-UK was not individually concerned. Even though WWF-UK did play a role in the decision-making process, EU law did not confer procedural rights upon WWF-UK, but upon the RAC. Thus, only the RAC could potentially be individually concerned in this case.85
However, even if EU law does confer a procedural guarantee upon an applicant, this does not necessarily mean the applicant is individually concerned. This will only be the case if the action for annulment is aimed at protecting the procedural rights that are afforded to the applicant.86
According to the ECJ, ‘the mere fact of relying on the existence of a procedural guarantee before the [EU] judicature does not mean that an action will be admissible where it is based on pleas alleging the infringement of substantive rules of law’.87 An action based on pleas alleging
the infringement of substantive rules of law will only be admissible if the applicant is afforded a ‘right to challenge the validity of the contested regulation in terms of its substantive content’.88
In the Carvalho case89, the applicants (several individuals and an ENGO) brought an action for
annulment against a ‘package’ of legislation adopted by the EU to reduce greenhouse gas
emissions.90 The applicants principally claimed that they were individually concerned because
the measures infringed their fundamental rights, and the infringement of those rights is ‘unique to and different for each individual’.91 They argued that climate change affects individuals
differently, depending on their personal situation.92 The applicants alternatively claimed that
the CJEU should set aside the current interpretation of ‘individual concern’ as developed in the Plaumann case because it is outdated and leads to paradoxical outcomes, i.e. ‘[t]he more widespread the harmful effects of an act, the more restricted the access to the courts’.93
The GC disagreed with the applicants and stated that the applicants had not established that their fundamental rights were infringed, nor that they were distinguished from everyone else.94 The fact that the effects of climate change might be different for different individuals is
84 Ibid, para 45. 85 Ibid, para 42-43. 86 Ibid, para 44.
87 Ibid, para 47, emphasis added. 88 Ibid, para 46.
89 Case T-330/18 Armando Carvalho and Others v European Parliament and Council of the European Commission [2019]
ECLI:EU:T:2019:324. 90 Ibid, paras 1, 18. 91 Ibid, paras 30-31. 92 Ibid, para 31. 93 Ibid, para 32. 94 Ibid, para 49.
not sufficient to conclude that those individuals are individually concerned. According to the
GC, stating otherwise would render the requirements of Article 263(4) TFEU meaningless.95
The GC also disagreed with the applicants’ statement that the interpretation of ‘individual concern’ should be set aside and reconfirmed the justification that the EU Treaties provide for a complete system of legal remedies.96 At the time of writing, this case is still pending before
the ECJ.97
II.5 Conclusion
The CJEU has stuck to the application of the Plaumann formula in environmental cases, even though the Plaumann formula was created in an economic context. This raises issues for the standing of ENGOs because environmental cases often concern general interests. The case law shows that, even if the applicant has suffered harm, or has participated in the process leading to the adoption of the measure, it will be almost impossible to meet the individual concern criterion. Even after the EU became a party to the Aarhus Convention, the CJEU has continued to apply its strict interpretation of (direct and) individual concern.
III. Environmental matters before the Member States’ courts
III.1 Introduction
This chapter concerns the rules at the EU level regarding access to the EU Member States’ courts. Since the CJEU relies on Article 267 TFEU to ensure compliance with Article 47 CFREU, it is necessary to understand when ENGOs have access to the Member States’ courts. First, attention will be paid to EU law's general principles regarding access to the Member States' courts. Next, the chapter will focus on environmental matters specifically, and especially on the Aarhus Convention's effect on access to the national courts. Finally, the case law of the CJEU on access to justice for ENGOs on the Member State level will be explored.
95 Ibid, para 50. 96 Ibid, paras 52-53.
97 Case C-565/19 P Appeal brought on 23 July 2019 by Armando Carvalho and Others against the Order of the General Court
III.2 General principles
III.2.1 Procedural autonomy
In principle, the Member States enjoy procedural autonomy, which means that in:
the absence of [EU] rules on [a] subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of [EU] law.98
The Treaties do not prescribe remedies that have to be (made) available in the national courts and thus leave it to the Member States’ national authorities to decide how to apply EU law within their legal orders. However, the Member States’ procedural autonomy is partially limited by the Treaties, secondary EU law adopted to implement the Aarhus Convention and the case law of the CJEU on access of ENGOs to the Member States’ courts.
III.2.2 The right to an effective remedy
Based on the principle of sincere cooperation, the Member States’ courts must ensure judicial protection of individuals’ rights under EU law.99 Further, the Treaty of Lisbon introduced two
provisions that are particularly relevant in the context of the right to an effective remedy. Firstly, Article 47(1) CFREU provides a right to an effective remedy and a fair trial, which must be
guaranteed by the Member States if they are implementing EU law.100 Secondly, Article 19(1)
TEU requires the Member States to provide sufficient remedies to ensure 'effective legal protection' in areas covered by EU law. Thus, the Member States are responsible for ensuring
a system of legal remedies that ensures compliance with Article 47 CFREU.101
Since the introduction of those articles by the Treaty of Lisbon, the case law of the CJEU has shown a tendency of imposing positive obligations on the competent domestic authorities regarding rules governing the jurisdiction of the national courts and procedural conditions. For example, the ECJ has stated in the Unibet case that national legislation requiring an applicant to breach provisions of law before he/she can challenge the compatibility of those provisions
98 Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989,
para 5. Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043, para 13, emphasis added.
99 Article 4(3) TEU.
100 Article 47 CFREU jo Article 51 CFREU.
101 UPA (n 33), para 41; Case C-619/18 European Commission v Republic of Poland [2019] ECLI:EU:C:2019:531, paras 48,
with EU law, is incompatible with the right to an effective remedy.102 This is relevant in regard
to EU measures that do not entail implementing measures. Before the Unibet case, those measures could generally not be challenged before the Member States’ courts without having to breach the law, because there would be no national measure to challenge before the national
court.103 Further, Member States must ensure that their courts and tribunals are independent,
which means that they must exercise their functions wholly autonomously and impartially.104
III.2.3 The principles of effectiveness and equivalence
The Member States’ procedural autonomy is also limited by the principles of effectiveness and equivalence. The Court interpreted the principle of equivalence as the requirement that the national procedural rules that apply to cases concerning EU law cannot be less favourable than those that apply to similar situations governed by domestic law.105 Thus, the principle of
equivalence entails the requirement that remedies for EU law breaches, and national law breaches are treated similarly.106 The CJEU interpreted the principle of effectiveness as
excluding national procedural rules that make it impossible or very hard to exercise the rights that the national courts must protect.107 Thus national courts must ensure ‘full and effective
protection of rights derived from EU law by granting appropriate remedies’.108
III.3 The Aarhus Convention
As an expression of the subsidiarity principle, the principle of procedural autonomy inevitably leads to a certain degree of variation as regards how substantive EU law is applied across the
Member States.109 The Treaties do not provide the EU legislator with general competence to
harmonise the Member States’ procedural rules. However, the EU legislator can take legislative and harmonising action in specific areas where the differences between the legal procedures of
the Member States have become too great.110 As regards environmental matters, this has been
the case, to a certain extent, in relation to the Aarhus Convention.
In paragraph II.3 we have seen that the Member States are responsible for ensuring compliance with Article 9(3) AC until the EU adopts provisions to cover the implementation
102 C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271, para 64. 103 UPA Opinion AG (n 8), para 43.
104 EC v Poland (C-619/18) (n 101), paras 55-58, 71-83; EC v Poland (C-192/18) (n 101), paras 103-106, 108-110. 105 Rewe (n 98), para 5; Comet (n 98), para 13.
106 Richard Gordon and Rowena Moffatt, EU Law in judicial review (2nd edn, Oxford University Press 2014) 148. 107 Rewe (n 98), para 5. Comet (n 98), para 16.
108 Gordon and Moffatt (n 112) 149.
109 Jans (n 57) 145. This happened for example in the area of public procurement law. 110 Ibid, 146.
of that article at the EU level.111 Since the EU has not yet done so, the Member States are still
responsible for ensuring that the right of access to justice, as laid down in the Aarhus Convention, is guaranteed in the EU.
However, the EU has taken measures to cover the implementation of Article 9 AC at the Member State level. Several directives have been adopted that contain provisions providing
for certain judicial remedies before the Member States’ courts in specific cases.112 However,
those provisions are not intended to implement Article 9(3) AC.113
III.4 Case law of the CJEU on indirect access of ENGOs
As seen above, the EU legislator has provided for measures requiring the Member States to provide for legal remedies for ENGOs in some situations. However, the Member States’ procedural autonomy in environmental matters is limited (even) further by the CJEU, as will be shown below.
Both the Djugården case114 and the Trianel case115 concerned access to justice based on the
Environmental Impact Assessment Directive (2003/4/EC). In the Djugården case, the ECJ stated that whether or not an ENGO has participated in the decision-making procedure, cannot have a (negative) ‘effect on the conditions for access to the review procedure’.116 It further
stated that national authorities can impose admissibility requirements such as a minimum number of members for ENGOs. However, those requirements must ensure wide access to justice and cannot nullify the EU provisions on access to justice.117
In the Trianel case, the ECJ added that an ENGO could not be denied access to the national court simply because the contested provisions protect the public interest. Acces must be granted even if national law does not provide for the possibility to grant access where a provision is challenged that protects the public interest only.118
111 Council Decision 2005/370/EC (n 56).
112 European Parliament and Council Directive 2003/4/EC on public access to environmental information and repealing Council
Directive 90/313/EEC [2003] OJ L 41/26; European Parliament and Council Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156/17 (Environmental Impact Assessment Directive); European Parliament and Council Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L 143/56.
113 They implement Articles 9(2) and 9(4) of the Aarhus Convention.
114 C-263/08 Djugården-Lilla Värtans Miljöskyddförening v Stockholms kommun genom dess marknämnd [2009] ECR
I-9967.
115 Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v
Bezirksregierung Arnsberg [2011] ECR-3673
116 Djugården (n 114) paras 35, 38. 117 Ibid, paras 45, 47.
The Slovak bears119 case concerned the (lack of) direct effect of Article 9(3) AC. According to
the Court the provisions of Article 9(3) AC are not directly effective, since they do ‘not contain any clear and precise obligations capable of directly regulating the legal position of individuals’.120 Instead, Article 9(3) AC requires the adoption of national/EU measures before
it has effects.121
However, the ECJ continued that Article 9(3) AC was ‘intended to ensure effective environmental protection’.122 Because of the lack of EU rules on this matter, the Member States
are responsible for ensuring compliance with those provisions.123 This means that:
it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) AC and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation […] to challenge before a court a decision taken
following administrative proceedings liable to be contrary to EU environmental law.124
In the Protect Natur case125, the ECJ confirmed the Slovak brown bear judgment. It explained
that, even though Article 9(3) AC does not have direct effect, the combination of Article 9(3) and Article 47 CFREU requires the Member States to ensure effective judicial protection.126 In
principle, national law can impose a time limit for submitting objections in the administrative
procedure.127 However, the requirement must be proportional and cannot ‘excessively restrict
the right to bring judicial proceedings’ as guaranteed by Article 9(3) AC together with Article 47 CFREU.128
119 Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo zivotného prostredia Slovenskej republiky [2011] ECR
I-1255. 120 Ibid, para 45. 121 Ibid, para 45. 122 Ibid, para 46. 123 Ibid, para 47. 124 Ibid, para 51.
125 Case C-664/15 Protect Natur-, Arten und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd
[2017] ECLI:EU:C:2017:987,
126 Ibid,, paras 44-45. 127 Ibid, para 88-90. 128 Ibid, para 91-92.
III.5 Conclusion
In principle, the national authorities have procedural autonomy. However, this autonomy is limited:
i. by the right to an effective remedy and the principles of effectiveness and equivalence;
ii. by the secondary legislation adopted by the EU legislator to implement the provisions
of the Aarhus Convention at the Member States level; and
iii. by the case law of the CJEU on access to justice in the Member States in environmental
matters. So far, the CJEU has (further) limited the Member States’ procedural autonomy based on the Environmental Impact Assessment Directive and the Aarhus Convention. It is striking that based on the Treaty provisions and the case law of the CJEU, Member States are bound by much stricter obligations regarding granting access to judicial and administrative procedures for ENGOs, than the EU itself.
IV. Indirect access as a justification for no direct access to the CJEU
IV.1 Introduction
Now it has been established that ENGOs will often have access to the Member States’ courts, attention must be paid to whether the preliminary reference procedure (on its own) can sufficiently guarantee the right to an effective judicial remedy laid down in Article 47 CFREU. This chapter will explore different views adopted in the literature and case law. First, attention will be paid to the opinions of those who believe that Article 267 TFEU cannot sufficiently guarantee the right to an effective judicial remedy.129 Next, attention will be paid to the opinions
of those who believe that Article 267 TFEU can guarantee the right to an effective judicial remedy. 130
129 See e.g. UPA Opinion AG (n 8); ACCC/2008/32 (part I) (n 8); ACCC/2008/32 (part II) (n 8); Poncelet (n 50); Ludwig
Krämer ‘Climate Change, Human Rights and Access to Justice’ (2019) 16 JEEPL 21; 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) UJIEL 31(81) 46. See also Roberto Mastroianni and Andrea Pezza, ‘Striking the Right Balance: Limits on the Right to Bring an Action under Article 263(4) of the Treaty on the Functioning of the European Union’ (2015) 30 AUILR 743.
130 See e.g. Bogojević (n 20); Michael Faure and Niels Philipsen (eds), Access to justice in environmental matters (Eleven
International Publishing 2014); Jan Darpö, ‘Effective Justice? Synthesis Report of the Study on the Implementation of Articles 9(3) and 9(4) of the Aarhus Convention in Seventeen of the Member States of the European Union’ in Jan Jans, Richard Macrory and Angel-Manuel Moreno Molina (eds), National Courts and EU Environmental Law (The Avosetta Series (10), Europa Law Publishing 2013); Marek Safjan and Dominik Düsterhaus, ‘A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU’ (2014) 33 YEL 3.
IV.2 Article 47 CFREU; not sufficiently guaranteed by Article 267 TFEU
Much criticism has been shown towards the Court’s argument that the lack of direct access to the CJEU does not infringe the right to an effective judicial remedy, because of the possibility of Article 267 TFEU. For clarity, this paragraph distinguishes between the opinions found in literature, the opinion of the ACCC, and diverging opinions in the case law of the CJEUs.
IV.2.1 Literature
Several authors argue that the current system does not sufficiently guarantee the right to an effective judicial remedy.131 On the one hand, the rules regarding (direct) access to the CJEU
for ENGOs are stringent and do not provide ENGOs with an effective judicial remedy.132 On
the other hand, relying on the national Member States’ courts is problematic for many reasons.133 Due to this thesis's limited scope, it is impossible to pay attention to all problematic
aspects of the preliminary reference procedure as the only way to access the CJEU.134
Therefore, the attention will be limited to the most commonly made arguments against the CJEU’s Article 267 TFEU justification.
Firstly, relying on the preliminary reference procedure means relying on the standing rights before the national courts of the 27 different Member States which leads to great variation regarding the standing rights for ENGOs depending on where they try to bring a case before the national court.135
Secondly, the preliminary reference procedure is not a judicial remedy that is available for individuals, but rather a way of cooperation between national courts and the CJEU.136
Although ENGOs can ask the national court to refer a question on the validity of an EU measure to the CJEU, and can suggest specific questions, they cannot derive a ‘right’ from Article 267 TFEU to have a particular preliminary question referred to the CJEU. 137 It is the national court
who decides whether - and if so, which - questions shall be referred.138
Thirdly, measures adopted based on Article 192 TFEU aiming, amongst other things, to preserve, protect, or improve the quality of the environment, cannot be challenged by ENGOs by bringing a case before the national court and asking that court to refer a preliminary question
131 Poncelet (n 50); Schoukens (n 129); Krämer (2019) (n 129).
132 Poncelet (n 50), 308-309; Schoukens (n 129), 63-64; Krämer (2019) (n 129), 63. 133 See e.g. Schoukens (n 129), 64.
134 For a more extensive overview, see e.g. Mastroianni and Pezza (n 129). 135 Poncelet (n 50), 295; Schoukens (n 129), 63.
136 Mastroianni and Pezza (n 129) 772. 137 See e.g., CILFIT (n 39), para 9.
138 Case C-136/12 Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato [2013]
on the validity of the EU measure to the CJEU.139 Regarding those measures, Member States
are allowed to adopt ‘more stringent protective measures’.140 Therefore, potential cases will not
concern the validity of the EU act but rather the possibility for the national authorities to adopt more stringent measures. Thus, a question on the validity of the EU measure will not be necessary for the national court to give judgement.141 This situation occurs, for example, in the
Carvalho case.142 Consequently, the applicants must bring the case before all the national courts
of the EU Member States to challenge the reduction of greenhouse gas emissions in the EU as a whole, which is an 'unbearable burden in terms of the guarantee of legal protection'.143
Finally, there is only a limited role for interim measures in environmental cases brought before national courts. This is problematic, since the preliminary reference proceeding is a lengthy proceeding. In contrast, climate cases require a quick response since the consequences often cannot be reversed or restored.144 Therefore, interim measures are often necessary to
suspend the application of the national measure implementing the EU measure. However, the conditions developed by the ECJ in the Zuckerfabrik Süderdithmarschen and Soest case, that must be met before a national court is allowed to adopt interim measures in cases relating to EU law, are (very) strict.145 Moreover, the effect of interim measures adopted by a national
court is limited to the Member State’s territory, while environmental damage is not. Therefore,
ENGOs will often have to start procedures in several Member States.146
Therefore, I, and many other authors, believe it is necessary to broaden ENGOs' rights to standing before the CJEU by revising the interpretation of the criterion of individual concern.147
Nevertheless, not many authors have paid attention to what would be an acceptable solution. Krämer, however, has suggested using the requirements laid down in Article 11 of the
Aarhus Regulation to decide whether an ENGO can be considered individually concerned.148
An ENGO, that exists for more than two years and is established under national law of one of the Member States, should be declared admissible in an action brought against a matter that is
139 Article 192 jo 191 TFEU. 140 Article 193 TFEU.
141 CILFIT (n 39), para 10; Gerd Winter, ‘Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris
Agreement for Better Climate Protection Legislation’ (2020) 9(1) TEL 137, 159. For a (Dutch) example see: Concl. A-G F.F. Langemeijer and M.H. Wissink, ECLI:NL:PHR:2019:887, to HR 20 December 2019, ECLI:NL:HR:2019:2006 (Urgenda), paras 4.114-4.116.
142 Carvalho (n 2). 143 Winter (n 141), 159. 144 Schoukens (n 129), 63.
145 Joined cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG and Zuckerfabrik Soest GmbH v Hauptzollamt
Itzehoe and Hauptzollamt Paderborn [1991] ECR I-415.
146 Schoukens (n 129), 63.
147 See e.g. Krämer (2019) (n 129), 63; Winter (n 141), 159. See also Poncelet (n 50); Schoukens (n 129). 148 Krämer (2017) (n 9), 184.
covered by the objectives and activities of that ENGO, as long as the ENGO has as its main objective ‘promoting environmental protection in the context of environmental law’.149
Krämer also argues that in environmental cases, someone who argues that his fundamental rights (e.g. right to health and right to life) have been violated, should be deemed ‘individually concerned’, since fundamental rights are in their very core individual rights. Therefore, an ENGO which substitutes itself for its members who can make such a claim – should be considered individually concerned, also if others' fundamental rights are also violated.150
IV.2.2 The opinion of the ACCC
The ACCC has also been very critical towards the approach adopted by the CJEU. In 2011, the ACCC stated that the application of the admissibility criteria therefore virtually bars (almost)
all members of the public from challenging an act or omission related to the environment.151
Consequently, the CJEU does not comply with Article 9(3) AC unless it is shown that the lack of access to judicial procedures is compensated by access to administrative procedures.152
However, in the second part of its findings and recommendations adopted in 2017, the ACCC concluded that this was not the case.
The possibility of Article 267 TFEU, which requires that the ENGO has standing before the national court and that the national court decides to refer the preliminary question to the
CJEU, cannot justify the lack of (direct) access to the CJEU.153 The ACCC argued that:
While the system of judicial review in the national courts of the EU Member States, including the possibility to request a preliminary ruling, is a significant element for ensuring consistent application and proper implementation of EU law in its Member States, it cannot be a basis for generally denying members of the public access to the EU Courts to challenge decisions, acts and omissions by EU institutions and bodies; nor does the system of preliminary review amount to an appellate system with regard to decisions, acts and omissions of EU institutions and bodies.154
149 Article 11 Aarhus Convention; Krämer (2017) (n 9), 184. 150 Krämer (2019) (n 129), 33-34.
151 ACCC/2008/32 (part I) (n 8), paras 83, 86. 152 ACCC/2008/32 (part I) (n 8), para 88-90.
153 ACCC/2008/32 (part I) (n 8), para 89; ACCC/2008/32 (part II) (n 8), para 120. 154 ACCC/2008/32 (part I) (n 8), para 90.
Thus, the ACCC concluded that the possibility of Article 267 TFEU could not compensate for the lack of access to justice for ENGOs before the CJEU with regard to EU decisions, acts and omissions. As the CJEU has not changed its interpretation of individual concern since 2011,
the ACCC drew the same conclusions in 2017. 155
IV.2.3 The UPA and Jégo-Quéré case
Finally, the Advocate General (Jacobs) in the UPA case156 argued that the application of the
Plaumann formula by the ECJ does not comply with Article 47 CFREU.157 The right to an
effective remedy cannot be guaranteed by the Member States’ courts, because they cannot provide for legal remedies in all situations, as it follows from the Foto-Frost case that national
courts cannot grant remedies if they deem the EU measure inadmissible.158
Secondly, Jacobs argues that in light of the principle of legal certainty, it would be more suited for the ECJ to handle cases regarding the validity of EU measures.159 This is important
since if the validity of an EU act is questionable, this act must be brought before the CJEU as soon as possible after it is adopted, to sufficiently guarantee the principle of legal certainty.160
Furthermore, it is more appropriate, because the institution that has adopted the contested act will be a party to the (entire) proceedings.161
Jacobs suggests that an applicant should be regarded individually concerned by an EU measure if ‘by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests’.162 The General Court suggested a similar approach
in the case Jégo-Quére, namely that an applicant should be deemed individually concerned if:
the measure in question affects his legal position in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him. The number and position of the other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard.163
155 ACCC/2008/32 (part II) (n 8), paras 79, 121-122.
156 Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR I-6677.
157 Most of the arguments raised by Jacobs, are already discussed in subsection IV.2.1, and will not be further discussed here
in ligth of the limited scope of this thesis. See UPA Opinion AG (n 8), para 42-44.
158 UPA Opinion AG (n 8), paras 41- 42. 159 Ibid paras 37, 45.
160 Ibid, para 48. 161 Ibid, para 46-47. 162 Ibid, para 60.
