Volkmar Klohn v An Bord Pleanála.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Bonichot
• ECLI: ECLI:EU:C:2018:833
• Date: 17 October 2018
• Docket Number: C-167/17
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (First Chamber)

17 October 2018 ( *1 )

(Reference for a preliminary ruling — Environment — Assessment of the effects of certain projects on the environment — Right to challenge a development consent decision — Requirement for a procedure which is not prohibitively expensive — Concept — Temporal application — Direct effect — Effect on a national decision on the taxation of costs which has become final)

In Case C‑167/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court (Ireland), made by decision of 23 March 2017, received at the Court on 3 April 2017, in the proceedings

Volkmar Klohn

v

An Bord Pleanála,

interveners:

Sligo County Council,

Maloney and Matthews Animal Collections Ltd,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, Vice-President, acting as President of the First Chamber, J.-C. Bonichot (Rapporteur), A. Arabadjiev, E. Regan and C.G. Fernlund, Judges,

Advocate General: M. Bobek,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 22 February 2018,

after considering the observations submitted on behalf of:

– Mr Klohn, by himself and by B. Ohlig, advocate,

– An Bord Pleanála, by A. Doyle, Solicitor, and by B. Foley, Barrister-at-Law,

– Ireland, by M. Browne, G. Hodge and A. Joyce, acting as Agents, and by M. Gray and H. Godfrey, Barristers-at-Law, and R. Mulcahy, Senior Counsel,

– the European Commission, by C. Zadra, G. Gattinara and J. Tomkin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 June 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the fifth paragraph of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17) (‘Directive 85/337 as amended’).

2 The request has been made in proceedings between Mr Volkmar Klohn and An Bord Pleanála (the Planning Appeals Board, Ireland) (‘the Board’) concerning the burden of the costs of the judicial proceedings brought by Mr Klohn against the planning permission granted by the Board for the construction in Achonry, County Sligo (Ireland) of a fallen animal inspection unit for animals from across Ireland.

Legal context

International law

3 The preamble to the Convention on Access to Information, Public Participation in Decision‐Making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1, ‘the Aarhus Convention’), states: ‘... Recognising also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations, Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights, ... Concerned that effective judicial mechanisms should be accessible to the public, including organisations, so that its legitimate interests are protected and the law is enforced, …’

4 Article 1 of the Aarhus Convention, entitled ‘Objective’, provides: ‘In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.’

5 Article 3 of that convention, entitled ‘General provisions’, states, in paragraph 8: ‘Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalised, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.’

6 Article 9 of the Aarhus Convention, entitled ‘Access to justice’, states: ‘1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under Article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law. … 2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned: (a) having a sufficient interest or, alternatively, (b) maintaining impairment of a right, where the administrative procedural law of a Party requires this 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 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5), shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above. ... 3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this Article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible. 5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’

EU law

7 Directive 85/337 as amended provides that public and private projects likely to have a major effect on the environment are to be subject to an environmental impact assessment. It also lays down obligations on the participation and consultation of the public in the decision-making process regarding the consent for such projects.

8 Following the accession of the European Union to the Aarhus Convention, the EU legislature adopted Directive 2003/35, Article 3(7) of which inserted Article 10a into Directive 85/337, which provides: ‘Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a) having a sufficient interest, or alternatively, (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive. Member States shall determine at what stage the decisions, acts or omissions may be challenged. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article. The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. Any such procedure shall be fair, equitable, timely and not...