Case C-263/08. Which role for NGO’s?

On 15 October 2009 the Court of Justice of the European Union (CJEU) has handed down its awaited preliminary ruling in the Djurgården-Lilla Värtan case (C-263/08). The ruling not only sheds light on the scope of the Directive 85/2003/EC (Environmental Impact Assessment – EIA), but also, and more importantly, on the possibilities of Member States (MSs) to impose restrictions on an NGO’s right to access to justice. While regrettably the Court did not go so far as to rule expressly that MSs should never specify a minimum level of membership, the general thrust of the judgment, very welcome in an area where the EU law needs more than ever certainty, is that the discretion to impose such a condition is very narrow. The procedural background, due to the absence of precedent administrable guidelines or rulings to assess this practice, isn’t the clearest, except for the fact that the rules in the Directive are the result of the implementation of UN/ECE3 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, commonly referred to as the Aarhus Convention. A key part of the Convention is to strengthen the role of environmental NGOs, giving them a right to information, participation and the right to access to justice within the environmental field. The case at issue concerned the question whether the Swedish implementation of Directive 85/337, giving NGOs standing, and consequently, access to justice, with regards to matters covered by the Directive, was correct or not. The CJEU found that Sweden was not in compliance with the Directive given that under Swedish legislation only organisations that had as their objective the protection of nature and the environment and had more than 2.000 members, could enjoy this right of standing.

The Land Council (marknämnd) Stockholm municipality had arranged a contract with a private electricity company for the construction of a tunnel through the hills in order to house electric cables in the northern part of Djurgården in Stockholm. The Stockholm Regional Authority (Lansstyrelsen) considered that this project was likely to have significant effects on the environment particularly with respect to groundwater, whereby the matter was referred to the Environmental Chamber (Miljödomstolen) at the Stockholm District Court, for an extended administrative procedure, including an environmental impact assessment, that authorised the Municipality to carry out the works. The Djurgården-Lilla Värtans Miljöskyddsförening (DLV), a small local association for environmental protection, appealed against this decision. The Court of Appeal found the appeal to be inadmissible on the ground that the DLV had not meet the condition laid down in the Swedish Environmental Code (miljöbalk) that it must have at least 2.000 members. The Miljöskyddsförening brought an appeal against that decision of inadmissibility. The Swedish court (Hogsta domstolen) decided to refer three questions to the Court of Justice:

• The first, a rather technical question, concerned the scope of Annex II paragraph 10(1) of the EIA Directive concerning “[g]roundwater abstraction and artificial groundwater recharge schemes not included in Annex I”;

• The second queried if an NGO must have access to a review procedure, even if it had the opportunity to participate in the proceedings before that body;

• The last one asked if was permissible for MSs to permit to small, locally established NGOs to participate in the decision-making procedure, but without having a right to access to a review procedure.

The court ruled that: the scope of the EIA Directive it is “wide” and then the project at issue did indeed fall within its scope. On the second question the CJEU stated that, since art. 10a, read in conjunction with art 1(2), provides that an NGO that promotes environmental protection and meets any conditions set under national law is qualified to invoke the review procedure, the fact that the development consent in this case was granted by a court exercising administrative powers does not prevent a qualified NGO from exercising its right of access to a review procedure to challenge that decision, because under art 10a this right does not depend on whether the decision-making authority is or not an administrative body or court. Furthermore, the right of participation and the right to a review procedure are two separate rights, with different purposes. Consequently, participating in the procedure has no impact on the right of access to a review. This is strictly related to the answer to the third question, that stated that although art. 10a permits national legislatures to determine the conditions under which environmental NGOs have access to judicial review, this discretion is not unlimited. Actually, every national rules must still ensure “wide access to justice” and support the effectiveness of the provisions of the EIA Directive governing judicial remedies, with the Court words:

[T]hose national rules must not be liable to nullify Community provisions which provide that parties who have a sufficient interest to challenge a project and those whose rights it impairs, which include environmental protection associations, are to be entitled to bring actions before the competent courts.

This ruling of the CJEU increases the role of small, locally based NGOs as enforcers of EU environmental law. It confirms that, even though, both the Aarhus Convention and Directive 85/337 states that the right to information, participation and access to justice is granted only to NGOs meeting any requirements under national law, still this discretion is not unfettered. Indeed, art 10a demands that the standing test implemented by MSs must provide “wide access to justice” and should not undermine the objectives of the EIA Directive, that otherwise would be “stripped of its effectiveness”. Hence, the key point in the Court’s ruling is that any restrictive condition falls to be judged by reference to its practical impact – in other words, the extent to which it excludes NGOs from access to judicial review. This case will be a guide to other similar cases, but yet the Swedish law hides other problems, for instance the fact that the right to invoke the review procedure is limited to non-profit associations that had operated in Sweden for at least three years. Whether such a condition meets the test set by the Court in DLV is not entirely clear, and unfortunately it was not at issue in the reference. A minimum period of activity is one mechanism by which a Member State may verify that an NGO is active. Three years is a considerable period of timek, particularly when one considers that new, issue-specific and usually locally based NGOs may emerge promptly in response to a controversial development proposal.