Can the Austrian branch of the World Wildlife Fund invoke the Aarhus Convention and the EU’s water framework Directive to make legal objections to a local authority which is deciding whether to grant a water licence to a company wanting to build a hydroelectric power station? And what is to be done where the WWF has failed under Austria’s laws of civil procedure to make its objections in time? Should those Austrian rules be interpreted in light of the aim of the ‘access to environmental justice’ provision that is enshrined in the Aarhus Convention?
An Austrian company is seeking to build a hydroelectric power station and to that end needs a ‘water’ licence from the local authority. The company has asked for one from the Austrian local authority but its request has met with opposition from the Austrian branch of the World Wildlife Fund (WWF). The WWF claims that the scheme will lead to a deterioration in the ecology and chemistry of the water in the locality of where the hydroelectric station is to be built.
The Austrian company has raised a procedural law argument to prevent the WWF from making that argument. The company points out that the WWF has no right under Austrian or EU law to make objections to the local authority. To start with, this is not a project for which an environmental impact assessment is required. Moreover, this is but an application to the local authority for a water licence, and Austrian law governs that procedure. Under Austrian law, applications for water licences are not open to third parties to make representations to the local authority unless those third parties have legal rights at stake in the procedure. According to the company, the WWF has no subjective legal rights at stake. Consequently, the WWF has no legal standing to make objections to the licence application.
In essence, the response of the WWF is to base its right to make objections to the local authority on the Aarhus Convention, and the EU’s ‘water framework’ Directive 2000/60/EC establishing a framework for Community action in the field of water policy (OJ  L137/1).
The case has already been litigated up to the Austrian Verwaltungsgerichtshof.
At the Austrian Verwaltungsgerichtshof
The key piece of the legislation relied on by the WWF is the ‘Aarhus Convention’; that is to say, the Convention on access to information, public participation in decision‐making and access to justice in environmental matters (OJ  L124/4).
Article 9 of the Convention deals with ‘Access to justice’, and provides:
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.
It is also settled case law from the CJEU that international conventions form an integral part of the EU’s legal order. The authority on this point is Case C-344/04, IATA und ELFAA, ECLI:EU:C:2006:10 in which the CJEU explained:
36. The Montreal Convention, signed by the Community on 9 December 1999 on the basis of Article 300(2) EC, was approved by Council decision of 5 April 2001 and entered into force, so far as concerns the Community, on 28 June 2004. Therefore from that last date the provisions of that Convention have, in accordance with settled case-law, been an integral part of the Community legal order (Case 181/73 Haegeman  ECR 449, paragraph 5, and Case 12/86 Demirel  ECR 3719, paragraph 7). It was after that date that, by decision of 14 July 2004, the High Court of Justice made the present order for reference in the judicial review proceedings before it.
In light of this, Austria’s highest court for administrative law concluded that the CJEU has competence to interpret the Aarhus Convention. It backed up this interpretation of EU law by referring to Case C-240/09 Lesoochranárske zoskupenie VLK, which was a case about public participation in the decision-making process access to justice in environmental matters, and the potential direct effect of the Aarhus Convention. The CJEU had reasoned:
30. The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370. Therefore, according to settled case-law, the provisions of that convention now form an integral part of the legal order of the European Union (see, by analogy, Case C‑344/04 IATA and ELFAA  ECR I‑403, paragraph 36, and Case C‑459/03 Commission v Ireland  ECR I‑4635, paragraph 82). Within the framework of that legal order the Court therefore has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (see, inter alia, Case 181/73 Haegeman  ECR 449, paragraphs 4 to 6, and Case 12/86 Demirel  ECR 3719, paragraph 7).
Against that backdrop, the Austrian court observed that the WWF was an environmental association, and one which was recognised in Austrian law. Consequently, for the purposes of Article 9(3) of the Aarhus Convention the organisation enjoyed the status of being a ‘concerned public’, and thus qualified as ‘members of the public’ under the Convention.
On the balance of probability, the Austrian court also recognised that were the hydroelectric station to be built, there would be a deterioration in the environment contrary to the EU’s water framework Directive. As such, the WWF’s argument fell within the scope of, and was subject to, EU law.
The Austrian court recalled the CJEU’s reasoning in Lesoochranárske zoskupenie in which it had said:
37 In the present case, the dispute in the main proceedings concerns whether an environmental protection association may be a ‘party’ to administrative proceedings concerning, in particular, the grant of derogations to the system of protection for species such as the brown bear. That species is mentioned in Annex IV(a) to the Habitats Directive, so that, under Article 12 thereof, it is subject to a system of strict protection from which derogations may be granted only under the conditions laid down in Article 16 of that directive.
38 It follows that the dispute in the main proceedings falls within the scope of EU law.
That said, the Austrian court also realised that the CJEU had decided that Article 9(3) of the Aarhus Convention did not have direct effect. It was a point of law which had been reaffirmed in the subsequent Grand Chamber judgment in C-404/12P Stichting Natuur en Milieu of 13 January 2015:
52 In that regard, it cannot be considered that, by adopting Regulation No 1367/2006, which concerns only EU institutions and moreover concerns only one of the remedies available to individuals for ensuring compliance with EU environmental law, the European Union was intended to implement the obligations, within the meaning of the case-law cited in paragraph 48 of this judgment, which derive from Article 9(3) of the Aarhus Convention with respect to national administrative or judicial procedures, which, as EU law now stands, fall primarily within the scope of Member State law (see, to that effect, judgment in Lesoochranárske zoskupenie, EU:C:2011:125, paragraphs 41 and 47).
53 It follows from all the foregoing that, in holding that Article 9(3) of the Aarhus Convention could be relied on in order to assess the legality of Article 10(1) of Regulation No 1367/2006, the General Court vitiated its judgment by an error of law.
Consequently, the Austrian court was minded to believe that if the WWF relied solely on the Aarhus Convention, then the WWF would not have legal standing to make objections in the context of a water licence application.
However, the CJEU in Lesoochranárske zoskupenie had also indicated that procedures should be interpreted in light of the aims of Article 9(3) of the Aarhus Convention, and so the WWF could argue that it should be allowed to make its objections in an administrative procedure such as the present one, particularly as the WWF had a right to do so under EU law, albeit not in Austrian law.
The Austrian court wondered if the WWF’s right in EU law could flow from the ‘no further degradation’ tenet to Article 4 of the EU’s water framework Directive. Articles 4(5), 4(6) and 4(7) made plain the centrality of this principle. That said, the principle was not absolute one, and there were exceptions to it.
Accordingly, the correct interpretation of Article 4 of the Directive was unclear to the Austrian court, particularly in light of the aim of Article 9(3) of the Aarhus Convention which was to give access to justice in environmental matters. (For reading ease, the lengthy technical provisions in Articles 4(5)-(7) are not reproduced in this post).
That though, was not the end of the matter. If the WWF would be allowed to object to the water licence application, then a further issue arose, namely, the WWF had raised the spectre of the EU’s water Directive being infringed by the company but it had made this objection known for the first time only in the course of the litigation before the court of administrative law, and not, as Austrian law requires, at the outset in the procedure organised under the auspices of the Austrian local authority. Hence the question: would permitting this new argument be appropriate in light of the goal of Article 9(3) of the Aarhus Convention?
Behind this issue was also a further problem that arose from the rules of Austrian Civil Procedure. That is to say, the WWF had failed to submit its objection in time. Consequently, it had lost the right be considered to be ‘a party’ in the litigation. And as it was no longer a party to the litigation, it had also lost any rights of appeal it might have otherwise enjoyed. The issue troubling the Austrian Verwaltungsgerichtshof was whether these planks of Austrian civil procedure and their operation were compatible with the Aarhus Convention too?
In that context, the Austrian court flagged up one of the CJEU’s most recent judgments – the judgment of the Second Chamber in Case C-137/14, European Commission v Federal Republic of Germany. ECLI:EU:C:2015:683. The case concerned industrial emissions (integrated pollution prevention and control), and the principle of access to justice in a situation where national procedural rules did not comply with the obligation laid down in the EU Directives.
In light of the Second Chamber’s judgment, the Austrian court wondered whether that could be the situation with Austrian law too if, owing to the operation of Austrian civil procedure, the WWF lost its rights to object to a measure that, if granted, would most likely have an impact on the environment?
In view of the legal uncertainty surrounding the correct interpretation of EU law, the chairman and president of the Verwaltungsgerichtshof Dr Bumberger decided to make a preliminary reference to the CJEU.
My unofficial translation of the questions asked by the Verwaltungsgerichtshof reads:
1. In an administrative procedure not involving an environmental impact assessment pursuant to Directive 2011/92, does Article 4 of Directive 2000/60 establishing a framework for Community action in the field of water policy, or the water policy framework as such, grant an environmental organisation the right to access administrative and judicial procedures in order to protect the rights which it enjoys by dint of Article 9(3) of the Convention on access to information, public participation in decision‐making and access to justice in environmental matters (the Aarhus Convention), and which the European Community approved by Decision 2005/370/EC?
If the answer to Question 1 is in the affirmative, then
2. Do the provisions of the Aarhus Convention require that these rights be asserted already during the administrative procedure, or will it suffice if there is a possibility [for the organisation] to appeal the decision of the administrative body?
3. Is it permitted for national rules of civil procedure (in this case, section 42 of the AVG), to prevent the environmental organisation – like any other party in an action – from raising its objections for the first time in the context of an appeal being heard by a court of administrative law, where those [national] rules require the organisation to make its objections known timeously and in the course of the preceding administrative procedure, and where a failure to do so results not only in them being deprived of their status as a ‘party’ but also in them losing any further right of appeal to a court of administrative law?
The WWF case raises issues of standing and Austrian law of civil procedure which are also at stake in Case C-664/15, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (the PNALU). That case concerns a water licence in respect of a ski resort that uses machines for making artificial snow, where those machines are supplied with water that comes from a water storage pond. The case involves a different environmental organisation, the PNALU.
These two cases raise issues of legal certainty and effectiveness which are currently at stake in a number of other preliminary references currently pending before the CJEU.
On the topic of legal certainty, see further:
Case C-72/15, Rosneft – challenging the EU’s sectoral sanctions against Russia
Case C-547/14, Philip Morris Brands – the Second Tobacco Products Directive is invalid
On the topic of effectiveness, there is the recent ‘Aarhus’ judgment in Case C-71/14, East Sussex County Council – the price of environmental information.
As to pending cases involving effectiveness, see further,
Case C-560/15, Europa Way – denied free access to Italy’s broadcasting frequencies
Case C-610/15, Stichting Brein – seeking website blocks to stop peer to peer technology
Case C-216/15, Betriebsrat der Ruhrlandklinik – stopping the sisters of merciless competition; and
Case C-192/15, Rease – secretly spied on, medical data leaked, and left unprotected by the Dutch regulator.
Update – 21 February 2016
The ability of a national judge to maintain national legislation which is incompatible with EU law is at stake in another environmental law reference; see further, Case C-379/15, Association France Nature Environnement – incompatible national law cannot be temporarily maintained.
Update – 24 August 2016
The potential direct effect of the Aarhus Convention on not just the EU but the Member States and their rules of national civil procedure, is also at issue in a fresh, potentially-expedited preliminary reference, from the High Court in Ireland; see further, Case C-470/16, North East Pylon Pressure Campaign – piling on the environmental information. pressure.
Update – 17 February 2017
The Second Chamber will hear this case on 15 March 2017.