Transcript Slide 1

Trends and developments at EU level on access
to justice from the perspective of granting
interim relief by national judges in the
environmental field
Compliance promotion, governance and legal issues,
Unit A2 – Directorate-General Environment
Access to justice in the EU - an
overview
 General concept of access to justice -
Treaty, Charter, Aarhus Convention,
secondary law
 Implementation of the Aarhus Convention
(Convention) into EU law
 CJEU jurisprudence on access to justice
and injunctive relief
Access to justice – and the Treaties

Recent changes in the Treaties regarding access to justice:

Article 6 (ex-article 6 TUE) Lisbon Treaty
 the Charter of Fundamental Rights of the European Union has the same
legal value as the Treaties.

Charter of Fundamental Rights Art 37 and Art 47.
 high level of environmental protection
 effective judicial protection
 legal aid

Article 19 TUE
 (…)Member States shall provide remedies sufficient to ensure effective legal
protection in the fields covered by Union law.
 This is based on a well-established case-law of the CJEU (Case 33/76 Rewe,
Case C-312/93 Peterbroeck, Case C-268/06 Impact, C-240/09 etc.)
EU and the Aarhus Convention – A special
approach to environmental matters
 Convention on Access to Information,
Public Participation in Decision-making and
Access to Justice in Environmental Matters
 3 pillars concept
 The Convention is part of EU law (decision
370/2005/EC)
 It is necessary to protect the nature that cannot
protect itself ...
 As AG Sharpston put it in Trianel (C-115/09):
„The fish cannot go to Court.”
Aarhus Convention and EU law - the three
pillars
 The
3 pillars have been implemented by secondary
law
 Regulation 1367/2006 for the Institutions
 a Proposal for a Directive on access to justice in
environmental matters of the European Parliament
and of the Council [24 October 2003 COM(2003)
624
 Directive 2003/4/CE on access to information
 Directive 2003/35/CE on public participation (EIA
and IPPC)
EU and the Aarhus Convention –
access to justice in secondary law
The „guarantee” pillar implementing Art. 9 (2), (4) access to
justice as regards public participation of the Aarhus
Convention reference made to injunctive relief
 Standing for individuals whose rights are impaired or have a
sufficient interest
 Special status for NGOs promoting environmental objectives
(See AG Sharpston opinion in C-115/09)
 Scope of review by the judge: not only procedural but in a
substantial sense as well
 Aim to provide wide access to justice
 Procedures should be fair, timely, not prohibitively expensive

Injunctive relief in the context of the Aarhus
Convention - the definition
• Art 9(4): "(…)provide adequate and effective remedies, including
injunctive relief as appropriate, and be fair, equitable, timely and
not prohibitively expensive."
• What is injunctive relief?
• As the Aarhus Implementation Guide indicates, main elements of
the definition
• to avoid/mitigate irreversible damage
• authorities' power to order to stop or to undertake certain action
• order called an “injunction”
• and the remedy achieved by it is called “injunctive relief”.
Stepping stones for reaching injunctive relief
in the ECJ (now CJEU) jurisprudence
• Effective judicial protection (as also reinforced by TUE 19 and
the Charter)
– Principle of loyal cooperation – MS duty to ensure effective
protection of rights derived from EU law
• Procedural autonomy – Ms duty (discretion) to set up
effective protection mechanisms
» 2 principles to be observed in the national context
of remedies (effectiveness and equivalence)
» Where it is uncertain if an action under national
law safeguards respect of rights derived from EU
law, interim relief should be granted
• Linking the Aarhus Convention and the jurisprudence of the
CJEU approach involving all considerations
Principles of access to justice and effective
judicial protection in the EU legal order
 Effective judicial protection is strongly linked to the effectiveness
and equivalence principles of EU law (C-222/84, Johnston (para
18, 19); C-268/06 Impact, C-431/93 van Schijndel, Unibet C432/05, Case C-268/06 Impact etc.)
 2 main conditions for judicial protection
 Rights guaranteed by EU law need to be protected the same
way as the rights derived from the national rules (principle of
equivalence)
 Principle of effectiveness (practice of rights not excessively
difficult or impossible)
 Natural procedural autonomy applies (see Safalero C-13/01,
para 49), detailed arrangements are to be determined by the
domestic legal order to safeguard rights
Injunctive relief in the jurisprudence of the
CJEU (1)
 Factortame C-213/89 - para 21
 Nature of the dispute: compatibility of national rules with
Community rules
 "(…) the full effectiveness of Community law would be just as
much impaired if a rule of national law could prevent a court
seized of a dispute governed by Community law from granting
interim relief in order to ensure the full effectiveness of the
judgment to be given on the existence of the rights claimed
under Community law. It follows that a court which in those
circumstances would grant interim relief, if it were not for a rule
of national law, is obliged to set aside that rule.„
 Other case: Zuckerfabrik joined cases C-143/88 and C-92/89,
Injunctive relief in the jurisprudence of the
CJEU (2)
 Unibet C-432/05 – falling into the category of the Factortame
case
 Preliminary reference on Swedish rules on Lotteries - promotion
of gaming activities
 AG Sharpston's Opinion – emphasizing procedural autonomy –
as the case concerned damages, she concluded that the interim
action does not correspond to the principal action
 Ruling: Effective interim judicial protection of rights, subcategory
of effective judicial protection – 2 main conditions - effectiveness
and equivalence (Rewe C-33/76. para 5, Peterbroeck C-312/93,
para 12),
 Interim relief (if necessary) should be possible, until judgment is
delivered on compatibility of national rules with EU rules, to
ensure full effectiveness of EU law
 National criteria to be applied in granting interim relief
Temporary measures in the jurisprudence of
the CJEU (1) – the environmental aspect
o C-41/11 – Inter-Environment Wallonie
o Preliminary reference – implementation of the SEA Directive
o Main facts of the case: adoption of a government order –
infringing one, but respecting the other Directive (Nitrates)
o Is it possible to keep in force temporarily a measure, eventhough
it is in breach of EU law?
o AG Kokott conclusions:
o Reference to C-409/06 (Winner Wetten); differences in
environmental field, primacy vs environmental protection
=effectiveness
o Existing measure to remain in force until replacement
o (p. 34) Assessment of effectiveness: procedure as a whole,
effect on EU law, before various national bodies, conduct of the
procedure, special features, objective of the instrument
Temporary measures in the jurisprudence of
the CJEU (2) – the environmental aspect
• Ruling delivered in April 2012
• Certain measures (all general and practical) may be
maintained (by national judges!) if:
- the national measure correctly tranposes the other
Directive
- future measure would not avoid the damage caused to the
env by eventual annulment
-
result of lower level of protection, counter to objectives of
the Directive
- Strictly temporary measure until the situation is adequately
remedied
Injunctive relief in the jurisprudence of the
CJEU - linking the Aarhus concept of access to
justice (1)
• On-going Slovak case (Krizan) - Case C-416/10
on a Reference for a preliminary ruling from Najvyšší
súd Slovenskej republiky (NSSR)
• Main facts of the case: waste disposal site – series of
appeals against planning decisions - involving 3
instances of courts
• Issues addressed: human rights vs environmental
rights, injunctive relief, scope of Article 9 (4),
temporal effect of authorisations, hierarchy of courts
• AG Kokott delivered opinion on 19th April 2012
• Case is still on-going
Injunctive relief in the jurisprudence of the
CJEU - linking the Aarhus concept of access to
justice (2)
• C-416/10 AG Kokott main conclusions
• Linking the Aarhus conecpt and general principle of effective
interim judicial protection in order to ensure full effectiveness of
national judgments aimed at protecting rights
• Making explicit reference to Article 9 (4) of the Convention
• The Impact Assessment and IPPC Directives rules on access to
justice include implicily injunctive relief, even without having to
explicity refer to it in the text of the legislative instruments
• Charter of Fundamental Rights - Article 47 on access to justice
and Art 19 TUE on effective legal remedies is also referred to
Access to justice – CJEU jurisprudence concept of effective judicial protection in the
environmental field
Developing jurisprudence of the CJEU linking
effective judicial protection in EU law and
the Aarhus Convention - Latest developments
in the CJEU case-law - the Irish case (C427/07), Slovak case (C-240/09), Swedish
case (C-268/08), Trianel (German) case (C115/09), Belgian case (C-134/09), C-182/10 –
2nd Belgian case – Solvay, 2 UK cases on
prohibitive costs C-260/11, C-530/11, C-72/11
German preliminary reference
Trends in the jurisprudence –
Increasing role of national judges
• Recent case-law (Boxus, C-240/09), stronger control
by national judges
• Taking forward the Kraaijeveld line of rulings, courts
are to set aside non-compliant national rules
• Two main elements, effective judicial protection and
ensuring that the CJEU exercises its role based on
the preliminary references
• Role in contributing to the development of
jurisprudence
Room left for further interpretation
•
Scope of judicial review – substantial and procedural legality.
•
Standing of foreign NGOs.
•
Prohibitive costs – what is prohibitive, difference of notions from one
MS to another – standard of living, GDP, personal capacity to pay the
costs – subjective/objective test
•
Should the procedural guarantees implemented by MSs to all levels of
appeal?
•
Standing rights – NGOs, what can be considered to be restrictive
standing criteria?
•
What exactly do we mean by timely, what are sufficient procedural
guarantees put in place?
•
Injunctive relief - is it inherent in the access to justice system (see
Factortame) - see on-going C-416/10.
Conclusions
• Under consumer protection already existing
secondary law - Directive 2009/22/EC on injunctions
for the protection of consumer interests
• Concept of injunctive relief implicitly present in all
pieces of legislation that provides rights to the public
• As jurisprudence developed the concept, it is inherent
in the principle of effective judicial protection –
effective interim protection
• Pending proposal on access to justice in
environmental matters – see recent Communication
on implementation Com/2012/095
http://ec.europa.eu/environment/legal/law/com_impro
ving.htm