Biely potok a.s. (BPAS) requested the competent District Authority of Tren?ín to authorise the construction of an enclosure for the purpose of extending an existing deer reserve. The projected extension affected land, owned by the applicant company, in Strážovské vrchy, a protected site forming part of a nature reserve which the Slovak Republic had included in the Natura 2000 network as a special protection area under the Birds Directive (directive 2009/147) and as a site of Community importance within the meaning of the Habitats Directive (directive 92/43).
Article 6(3) of the Habitats Directive, which is applicable also to bird protection areas designated under the Birds Directive (Article 7 Habitats Directive), requires an ex ante assessment of plans or projects likely to have a significant effect on such sites and provides that “the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public”.
Lesoochranárske zoskupenie VLK (LZ), a Slovak public?interest NGO promoting the protection of forests, was informed by the District Authority of Tren?ín of the initiation of the administrative procedure for the granting of the requested authorisation.
After receiving information on the decision?making process, LZ requested to be accorded the status of party to the administrative authorisation procedure and, relying in particular on matters set out in the observations of the Slovak National Nature Conservation Authority, also requested the staying of the administrative procedure, referring to matters which would preclude grant of a permit.
Under Slovak law, recognition as a party to the proceedings is a condition of the right to challenge the decision concluding those proceedings.
The District Authority of Tren?ín denied to LZ the status of party to the proceedings and observed that, as an association with legal personality, it was merely entitled under domestic law to the status of “interested person”.
The administrative appeal against this decision was dismissed on the same ground by the Regional Environment Authority of Tren?ín, whose decision became final on 10 June 2009.
By a decision of the same day, the District Authority of Tren?ín granted the authorisation requested by BPAS.
LZ challenged the denial of the status of party to the proceedings before the Krajský súd v Tren?íne (Tren?ín Regional Court), relying inter alia on Article 9 of the Aarhus Convention.
By a judgment of 23 August 2011, and in the light of the judgment delivered by the CJEU on 8 March 2011 (case C240/09 Lesoochranárske zoskupenie), the impugned decision was annulled.
By a judgment of 26 January 2012, the Najvyšší súd Slovenskej republiky (Supreme Court of Slovakia) set aside the decision of the lower tribunal on the basis that the case had become devoid of purpose following the conclusion of the proceedings to which the status of party was claimed. It also observed that, in such a case, the person concerned must be informed of the possibility of bringing an action as an “omitted party” under a different provision of the Code of civil procedure. Such action, if successful, would allow the applicant to obtain the notification of the administrative decision, the postponement of its execution, and the possibility to challenge its legality before the courts. The case was referred back to the Krajský súd v Tren?íne (Tren?ín Regional Court).
By a second judgment of 12 September 2012, the Krajský súd v Tren?íne (Tren?ín Regional Court) annulled the impugned administrative decisions for a second time. It observed that the decision granting the permit was premature, having been delivered before the conclusion of the legal proceedings relating to the request seeking the status of party to that administrative procedure.
By judgment of 28 February 2013, the Najvyšší súd Slovenskej republiky (Supreme Court of Slovakia) set aside the latter decision, essentially on the same grounds given for its first decision.
By a judgment of 23 November 2013, the Krajský súd v Tren?íne (Tren?ín Regional Court) rejected LZ’s request to be granted the status of party to the procedure and considered that it did not have to inform LZ of the possibility of pursuing this objective as an “omitted party”, since this action had become time?barred in the meanwhile.
LZ appealed to the Najvyšší súd Slovenskej republiky (Supreme Court of Slovakia), which considered that two opposing views could be taken on the issue of whether the proceedings for the authorisation of the requested permit should have been stayed pending the legal proceedings on the determination of the right of LZ to be recognised as a party to those administrative proceedings. On the one hand, it could be considered that – by de facto denying the possibility for arguments in favour of environmental protection to be taken into account ? this situation could be a breach of the principle of adversarial proceedings, could limit the possibility of judicial review at the initiative of the requesting party and, in the end, would impair the pursuance of the objective, which is common to the Habitats Directive and the Aarhus Convention, of ensuring a high level of environmental protection. On the other hand, it observed that staying the adoption of the decision on the authorisation until the final determination of the status of LZ as a party would hinder the expedite conclusion of the proceedings and could result in an unfair treatment of the applicant company.
In those circumstances, the Najvyšší súd Slovenskej republiky (Supreme Court of Slovakia) decided to stay the proceedings and to raise a question for preliminary reference before the CJEU, asking, in essence:
“whether Article 47 of the Charter, read in conjunction with Article 9 of the Aarhus Convention, must be interpreted as precluding, in a situation such as that at issue in the main proceedings, an interpretation of rules of national procedural law to the effect that an action against a decision refusing an environmental organisation the status of party to an administrative procedure for authorisation of a project that is to be carried out on a site protected pursuant to Directive 92/43 does not necessarily have to be examined during the course of that procedure, which may be definitively concluded before a definitive judicial decision on possession of the status of party is adopted, and is automatically dismissed as soon as that project is authorised, thereby requiring that organisation to bring an action of another type in order to obtain that status and to secure judicial review of compliance by the competent national authorities with their obligations stemming from Article 6(3) of that directive
The CJEU observes at the outset that, in the domestic proceedings, LZ claims the status of party to an administrative authorization procedure, as this is necessary under domestic law to have standing to obtain judicial review of the decision relying on rights derived from EU law in the environmental field. Indeed, LZ considers that such authorisation has been granted in violation of the national authorities’ obligations under Article 6(3) of the Habitats Directive.
The Court firstly observes the key role played by the obligation, under Article 6.3 of the Habitats Directive, to assess the implication of plans or projects having a bearing on a protected site in order to fulfil the environmental conservation and protection objectives of the said directive and to authorise such an activity only where no reasonable scientific doubt remains as to the fact that it will not adversely affect the integrity of that site.
Thus, in order to effectively preserve the binding effect of the directive under Article 288 TFEU, “individuals [must] be able to rely on it in legal proceedings, and […] the national courts [must] be able to take that directive into consideration as an element of EU law in order, inter alia, to review whether a national authority which has granted an authorisation relating to a plan or project has complied with its obligations under Article 6(3) of the directive […] and has thus kept within the limits of the discretion granted to the competent national authorities by that provision” (para. 44).
The Court further notes that the said provision stipulates for the prior obtainment of the opinion of the general public by the competent national authorities, if appropriate. That provision must be read in conjunction with Article 6(1)(b) of the Aarhus Convention, which sets out the obligation for Parties to the Convention to assess whether a proposed activity, other than those listed in Annex I of the Convention, may have a significant effect on the environment. A positive outcome of this assessment triggers the applicability of Article 6, thus subjecting the decision?making process to the public participation provisions extensively set forth in Article 6 itself. In particular, Article 6 of the Aarhus Convention confers a right to participate to public interest environmental NGOs, such as LZ, that – in accordance with the definition contained in Article 2(5) of the Aarhus Convention – are always to be considered as “public concerned”.
The initiation by the competent authorities of an authorisation procedure under Article 6(3) of the Habitats directive necessarily implies that they considered necessary to assess the significance of the project’s effect on the environment, within the meaning of Article 6(1)(b) of the Aarhus Convention.
“It follows that an environmental organisation which, like LZ, meets the conditions specified in Article 2(5) of the Aarhus Convention derives from Article 6(3) of Directive 92/43, read in conjunction with Article 6(1)(b) of that convention, a right to participate […] in a procedure for the adoption of a decision relating to an application for authorisation of a plan or project likely to have a significant effect on the environment in so far as, within the framework of that procedure, one of the decisions envisaged in Article 6(3) of the directive is to be adopted” (para. 49).
The Court’s reasoning goes on by recalling that the EU legal system entrusts the courts of the Member States with the responsibility “to ensure judicial protection of a person’s rights under EU law”. That obligation stems not only from the principle of sincere cooperation (Article 4(3) TEU) and the provisions of Article 19(1) TEU, but also from Article 47 CFR.
Indeed, “[w]here a Member State lays down rules of procedural law applicable to actions concerning exercise of the rights which an environmental organisation derives from Article 6(3) of Directive 92/43, read in conjunction with Article 6(1)(b) of the Aarhus Convention, in order for decisions of the competent national authorities to be reviewed in the light of their obligations under those provisions, that Member State is implementing obligations stemming from those provisions and must therefore be regarded as implementing EU law, for the purposes of Article 51(1) of the Charter” (para. 51).
Article 9(2) of the Aarhus Convention grants access to legal proceedings to the members of the public satisfying certain conditions, in order to “challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 [of the Aarhus Convention]”. Article 9(2) of the Arhus Convention limits the discretion available to the Member States in two respects: firstly, standing to sue must always be granted to recognised public?interest environmental NGOs in accordance with Article 2(5); secondly, by promoting “wide access to justice” to the public concerned, it restrains Member States’freedom when determining the detailed rules for the legal actions which it envisages.
As already pointed out, decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 - regardless of their object and irrespective of whether they form part of a single or multiple decision?making procedures – fall within the scope of Article 6 of the Aarhus Convention by virtue of Article 6(1)(b). Therefore, they are also subject to Article 9(2) of the said Convention.
It follows that a public-interest environmental NGO such as LZ “must necessarily be able to rely in legal proceedings on the rules of national law implementing EU environmental law and the rules of EU environmental law having direct effect” and “must be able to challenge, in such an action, not only a decision not to carry out an appropriate assessment of the implications for the site of the plan or project in question but also, as the case may be, the assessment carried out inasmuch as it is alleged to be vitiated by defects” (paras 59-60).
Article 47 CFR, read in conjunction with Article 9(2) and 9(4) of the Aarhus Convention, requires the remedy afforded to be “effective”. Although the respect of this requirement in the light of the procedural sequence of domestic proceedings is a question of fact, in principle reserved to the referring court, the CJEU may nevertheless rule on both the criteria that the referring court may or must apply within the framework of EU law and the application of those provisions in the case in point, provided, however, that the national court carries out the finding and assessment of the facts necessary for that purpose in the light of all the material in the file before it.
In the absence of EU rules governing the matter, the responsibility of laying down detailed procedural rules safeguarding the right to an effective judicial remedy and to a fair hearing enshrined in Article 47 CFR falls with the legal system of each Member State.
Having regard to the stringent standard for the authorisation of plans and projects set out by Article 6(3) of the Habitats Directive in accordance with the precautionary principle – which is designed to prevent specific adverse effects on the integrity of the sites protected – and in the light of the objective of ensuring wide access to justice as regards actions against environmental decisions, the Court observes that the status of “interested party” recognised to LZ is insufficient to enable its full participation to the administrative procedure and to challenge the legality of the ensuing decision. Therefore, if national law is interpreted in a way that allow a challenge to the decision to deny the status of party to a given administrative procedure to become moot because of the prior conclusion of that procedure, the effective judicial protection of the rights which an environmental organisation derives from Article 6(3) of the Habitats Directive, read in conjunction with Article 6(1)(b) of the Aarhus Convention is not secured.
In conclusion: “inasmuch as Article 47 of the Charter, read in conjunction with Article 9(2) and (4) of the Aarhus Convention, enshrines the right to effective judicial protection, inconditions ensuring wide access to justice, of the rights which an environmental organisation meeting the conditions laid down in Article 2(5) of that convention derives from EU law, in this instance from Article 6(3) of Directive 92/43, read in conjunction with Article 6(1)(b) of that convention, it must be interpreted as precluding, in a situation such as that at issue in the main proceedings, an interpretation of rules of national procedural law to the effect that an action against a decision refusing such an organisation the status of party to an administrative procedure for authorisation of a project that is to be carried out on a site protected pursuant to that directive does not necessarily have to be examined during the course of that procedure, which may be definitively concluded before a definitive judicial decision on possession of the status of party is adopted, and is automatically dismissed as soon as that project is authorised, thereby requiring that organisation to bring anaction of another type in order to obtain that status and to secure judicial review of compliance by the competent national authorities with their obligations stemming from Article 6(3) of that directive”.