Compliance promotion, governance and legal issues , Unit A2 – Directorate - General Environment

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

2. 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

3. 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-268/06Impact, C-240/09 etc.)

4. 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.”

5. Aarhus Convention and EU law - the three pillars • The 3 pillars have been implemented by secondary law • Regulation1367/2006 for theInstitutions • 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 accessto information • Directive 2003/35/CE on public participation (EIA and IPPC)

6. 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

7. 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 irreversibledamage • 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”.

8. Stepping stones for reaching injunctive relief in the ECJ (now CJEU) jurisprudence • Effectivejudicialprotection (asalsoreinforcedby TUE 19 and the Charter) • Principleof loyalcooperation – MS dutytoensureeffectiveprotectionof rightsderivedfromEU law • Proceduralautonomy – Msduty (discretion) tosetupeffectiveprotectionmechanisms • 2 principlesto be observedinthenationalcontext of remedies (effectiveness and equivalence) • Whereit is uncertainif an actionundernational law safeguardsrespect of rightsderivedfrom EU law, interim relief shouldbe granted • Linking theAarhusConvention and the jurisprudence of theCJEU approachinvolvingallconsiderations

9. 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 C-432/05, 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

10. 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,

11. Injunctive relief in the jurisprudence of the CJEU (2) • Unibet C-432/05 – fallingintothecategory of theFactortamecase • Preliminaryreferenceon Swedish rulesonLotteries - promotion of gamingactivities • AG Sharpston's Opinion– emphasizingproceduralautonomy – asthecaseconcerneddamages, sheconcludedthattheinterimactiondoesnotcorrespondtotheprincipalaction • 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

12. Temporary measures in the jurisprudence of the CJEU (1) – the environmental aspect • C-41/11 – Inter-Environment Wallonie • Preliminary reference – implementation of the SEA Directive • Main facts of the case: adoption of a government order – infringing one, but respecting the other Directive (Nitrates) • Is it possible to keep in force temporarily a measure, eventhough it is in breach of EU law? • AG Kokott conclusions: • Reference to C-409/06 (Winner Wetten); differences in environmental field, primacy vs environmental protection =effectiveness • Existing measure to remain in force until replacement • (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

13. 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

14. Injunctive relief in the jurisprudence of the CJEU - linking the Aarhus concept of access to justice (1) • On-goingSlovakcase (Krizan) - Case C-416/10 on a Reference for a preliminary ruling from NajvyššísúdSlovenskejrepubliky (NSSR) • Main facts of thecase: wastedisposal site – series of appealsagainstplanningdecisions - involving 3 instances of courts • Issuesaddressed: human rightsvs environmental rights, injunctive relief, scope of Article 9 (4), temporaleffect of authorisations, hierarchyofcourts • AG Kokott deliveredopinionon 19th April 2012 • Case is stillon-going

15. 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 theAarhusconecpt and generalprinciple of effectiveinterimjudicialprotectioninordertoensurefull effectiveness of nationaljudgmentsaimed at protectingrights • Making explicit referencetoArticle 9 (4) of theConvention • The ImpactAssessment and IPPC Directivesrulesonaccesstojusticeincludeimplicilyinjunctive relief, evenwithouthavingtoexplicityrefertoitinthe text of thelegislativeinstruments • Charter of FundamentalRights - Article 47 onaccesstojustice and Art 19 TUE oneffectivelegalremedies is alsoreferredto

16. Access to justice – CJEU jurisprudence - concept of effective judicial protection in the environmental field Developing jurisprudence of the CJEU linking effectivejudicialprotectionin EU law and theAarhusConvention - Latestdevelopmentsinthe CJEU case-law - theIrishcase (C-427/07), Slovakcase (C-240/09), Swedish case (C-268/08), Trianel (German) case (C-115/09), Belgiancase (C-134/09), C-182/10 – 2nd Belgiancase – Solvay, 2 UK casesonprohibitivecostsC-260/11, C-530/11, C-72/11 Germanpreliminaryreference

17. 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

18. Room left for further interpretation • Scope of judicialreview – substantial and procedurallegality. • Standing of foreignNGOs. • Prohibitivecosts– what is prohibitive, difference of notionsfromone MS toanother – standard of living, GDP, personalcapacitytopaythecosts – subjective/objective test • ShouldtheproceduralguaranteesimplementedbyMSstoalllevelsof appeal? • Standing rights– NGOs, whatcan be consideredtoberestrictive standing criteria? • Whatexactlydowemeanbytimely, whataresufficientproceduralguaranteesputinplace? • Injunctive relief - is itinherentintheaccesstojusticesystem (seeFactortame) - seeon-going C-416/10.

19. Conclusions • Underconsumerprotectionalreadyexistingsecondary law - Directive 2009/22/EC on injunctions for the protection of consumer interests • Concept of injunctive relief implicitlypresentinallpieces of legislationthatprovidesrightstothepublic • As jurisprudence developedtheconcept, it is inherentintheprinciple of effectivejudicialprotection – effectiveinterimprotection • Pendingproposalonaccesstojusticein environmental matters – seerecentCommunicationonimplementationCom/2012/095 http://ec.europa.eu/environment/legal/law/com_improving.htm