Commission of the European Communities v Ireland.

• Jurisdiction: European Union
• Celex Number: 62007CC0427
• ECLI: ECLI:EU:C:2009:9
• Court: Court of Justice (European Union)
• Date: 15 January 2009
• Procedure Type: Recurso por incumplimiento – fundado
• Docket Number: C-427/07

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 January 2009 ¹(1)

Case C‑427/07

Commission of the European Communities

v

Ireland

(Directive 2003/35/EC – Environmental impact assessment – Access to justice)

I – Introduction

1. The present proceedings are based on two different pre-litigation procedures. First, the Commission complains that Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, (2) as amended by Council Directive 97/11/EC of 3 March 1997 (3) (‘the EIA Directive’), has not been transposed by Ireland in relation to private roads. Second, the Commission alleges that Ireland has not transposed (fully) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 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 (4) and not informed the Commission regarding such transposition.

2. Access to justice under Irish planning law is the focal point of the action. In this context it is necessary in particular to deal with a contradiction in the Commission’s submissions: on the one hand, it insists that it is complaining only about the lack of implementing measures and not about the quality of such measures while, on the other, it discusses assiduously the quality of Irish measures, that is to say whether certain Irish measures satisfy the requirements of Directive 2003/35.

II – Legal context

3. The aim of Directive 2003/35 is to implement certain provisions of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (5) (‘the Aarhus Convention’), which the Community signed on 25 June 1998 in Aarhus (Denmark). (6)

A – The Aarhus Convention

4. Article 2(5) of the Aarhus Convention defines ‘the public concerned’ and, in this connection, the benefiting non-governmental organisations:

‘For the purposes of this Convention,

…

5. “The public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.’

5. Article 3(1) lays down how the parties to the Convention are to implement it:

‘Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.’

6. Article 3(8) is to be noted in so far as it makes reference to costs in judicial proceedings:

‘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.’

7. Article 6 contains provisions regarding public participation in the context of the authorisation of certain projects which are either expressly listed in Annex I to the Convention or may have significant effects on the environment.

8. Article 9(2) governs access to justice in the context of the public participation provided for in the Convention:

‘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.

The provisions of this paragraph 2 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.’

9. Article 9(4) and (5) contain further requirements in respect of judicial procedures:

‘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.’

B – Directive 2003/35

10. Article 3 of Directive 2003/35 contains amendments to the EIA Directive.

11. Article 3(1) defines ‘the public concerned’ as follows:

‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2); for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’.

12. Article 3(7) concerns access to justice:

‘The following Article shall be inserted:

“Article 10a

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 prohibitively expensive.

In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.”’

13. Article 4 of Directive 2003/35 contains amendments to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control. (7) The wording in Article 4(4) is essentially the same as that of the freshly inserted Article 10a of the EIA Directive.

C – Irish law

14. The principal matter of dispute between the parties is the transposition of the abovementioned provisions by the Planning and Development Act 2000 (8) as amended by the Planning and Development (Strategic Infrastructure) Act 2006. (9) Sections 50 and 50A govern the actions which may be brought against certain planning measures.

15. The necessary interest in an action is governed by section 50A(3):

‘(3) The Court shall not grant section 50 leave unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and

(b) (i) the applicant has a substantial interest in the matter which is the subject of the application, or

(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant—

(I) is a body or organisation (other than a State authority, a public authority or...