Environmental NGOs to be allowed access to courts

This case concerns a permit for the construction and operation of a coal-fired power station in Lünen, Germany, eight kilometres away from several protected Habitats areas. A preliminary decision (stating that there were no legal objections to the project) and a partial permit were granted by the German local authorities. These measures were challenged by the Nordrhein-Westfalen branch of Friends of the Earth (FoE), an environmental NGO recognized under German national law. FoE claimed that the measures violated Article 6(3) Habitats Directive because the environmental impact assessment of the project at issue did not show that it was unlikely that the power station would have a significant effect on the protected nature areas.

The NGO did not have legal standing at the German administrative court on the basis of domestic law. German law allows only for a right of action if the administrative measure affects the claimant´s rights, that is to say his individual public law rights. The German norms that FoE relies upon do not confer such rights on individuals. The German court decided to ask for a preliminary ruling by the European Court of Justice (ECJ) on the matter.

The ECJ explained that, even where domestic law prohibits this, such an NGO must nevertheless be able to challenge projects likely to have a significant effect on the environment. The German procedural laws run counter to the objective of ‘wide access to justice’ as laid down in the 1998 Aarhus Convention, and the Environmental Impact Assessment (EIA) Directive (85/337/EEC) as amended in 2003 to implement the Aarhus Convention. Special rights are afforded in the EIA Directive to NGOs promoting environmental protection. They are deemed to automatically have sufficient interest and rights capable of being impaired (Art. 10a). The relevant rights that they are deemed to have must necessarily include EU environmental law incorporated into national legislation as well as EU environmental law having direct effect. In this case the Habitats Directive and national laws implementing it were alleged to have been infringed which should provide sufficient grounds for standing before national courts.

The ECJ ruling means a major step forward for environmental NGOs where the ´access to justice´ pillar of the Aarhus Convention is concerned. Member States cannot deprive such organizations of the opportunity of playing the role granted to them in the EIA Directive 85/337 and by the Aarhus Convention.

* Case C-115/09 Trianel Kohlekraftwerk Lünen 12/05/2011