Before the Law At the core of the Austrian case was a water permit to abstract water for making snow for a ski resort. A snow cannon treats a ski slope at Nassfeld, Austria. Photo by Fxp42 under Creative Commons CC-BY-SA-3.0 license.

Before the Law

EU’s supreme court of Justice ruled out Kafkaesque limitations to environmental justice. Europe’s citizens should be able to seek justice against environmental permits, while authorities should apply UN and EU legal rules strictly and not use deadlines and other barriers to prevent citizens access to justice on environmental matters, the Court of Justice of European Union (CJEU) ruled in the last days of 2017. The EU’s Advocate General compared the absurdity of the procedural rules imposed in the case onto an Austrian NGO, to Franz Kafka*’s parable “Before the Law”.

The implications of the judgment should result in greater application of the UNECE’s convention for access to information, public participation and justice over environmental matters, known as the Aarhus Convention, across the EU. Such a positive outcome was hard to foresee when Austrian environmental NGO Protect Natur-, Arten-, und Landschaftsschutz (“Protect”) asked to be accorded status of a party in an administrative procedure for a water permit back on 4 November 2013. The judgment eventually ended up with the CJEU as case C-664/15.

Everything started with an application filed by the company Aichelberglift Karlstein GmbH (“Aichelberglift”) under the Act on Water Rights for the extension of a permit to abstract water from the nearby river Einsiedlbach for making snow for a ski resort. Aichelberglift’s request was initially examined for impacts on Natura 2000 sites under the Habitats Directive. The competent national authority decided that the project had low impact on the environment and there were no reasons to refuse the request. Following the hearing for the permit application on 4 July 2013 the Gmünd district authority granted with a decision of 4 November 2013 the permit to Aichelberglift Karlstein.

At this stage the NGO Protect asked to take part in the administrative proceedings and submitted objections to the granting of that permit on the basis of Aarhus Convention, EU Water Framework Directive and the Habitats Directive. Protect claimed, based also on studies, that the project would have a significant impact on areas protected under Habitats Directive, in particular due to the noise of the snow-production facility. The project would cause considerable harm to species present in those areas, including protected bird species whose habitats were already threatened by the existing facility and which already led to disappearance of several of those species from those areas.

However, the regional authority rejected Protect’s request and objections with the argument that the NGO had no rights protected under the water legislation and, for that reason, it could not claim to be a party in the procedure. Protect challenged that decision unsuccessfully before the Landesverwaltungsgericht Niederösterreich (Lower Austria Regional Administrative Court) which with its judgеment of 30 January 2015 dismissed Protect’s action. The court stated that Protect could not be a party to the administrative proceedings because it had failed to submit its objections to the application in good time. Protect’s status as a party had therefore been lost pursuant to Paragraph 42 of the Administrative Procedure Act.

Window of opportunity

The door of justice was shut because the project for water abstraction did not require an EIA procedure. This is because Austria follows a strict impairment of rights doctrine, and environmental NGOs have a party standing in administrative procedures limited to EIA procedure and selected Industrial Emissions Directive cases, according to Summer Kern, a lawyer at ÖKOBÜRO, Austria.

As a last resort the NGO Protect appealed the regional court decision before the Supreme Administrative court of Austria. Protect argued that pursuant to the Aarhus Convention, it had status as a party to administrative proceedings and that it had a legal interest in ensuring that provisions of EU law relating to the environment were respected. The Supreme Administrative Court decided to referred the case to the Court of Justice of European Union (CJEU) for a preliminary ruling.

Gregor Schamschula, coordinator of the legal team of ÖKOBÜRO, Austria explains that case C-664/15 was on the question whether NGOs have to have access to justice in cases of Art 4.7 of the Water Framework Directive, i.e. in cases where a project is likely to cause a deterioration in water quality. According to Schamschula, the case is also about the influence of the Aarhus Convention within EU law, and it is widely believed to affect all European environmental law.

Defending NGOs right to seek justice: Gregor Schamschula, coordinator of the legal team of ÖKOBÜRO, Austria. Photo: ÖKOBÜRO.

Brown Bears’ Heritage

The contentious question of the standing of environmental organisations in environmental permit procedures has accumulated case-law by the CJEU culminating in Case C- 243/15 (the Slovak Brown Bears case II**). In the current case the CJEU made three points in favour of access to justice and participation rights of environmental NGOs under the Water Framework Directive and in administrative procedures.

The first point is that by denying environmental organisations any right to bring an action against a decision to grant a permit, the Austrian procedural law contradicts the requirements of both Article 9(3) of the Aarhus Convention and Article 47 of the Charter of Fundamental Rights of the EU. The environmental NGOs thus must be able to contest before a court a decision granting a permit for a project may deteriorate the status of bodies of water as set out in Article 4 of Water Framework Directive.

The second one is that the combined relevant provisions of three international pieces of legislation – the Aarhus Convention, the Charter of Fundamental Rights and the EU’s Water Framework Directive – preclude the national procedural rules. These rules have deprived environmental organisations of the right to participate, as a party to the water permit procedure and have limited their right to contest decisions resulting from such procedure.

The third point is that Article 9(3) and (4) of Aarhus Convention and Article 47 of the Charter of Fundamental Rights, preclude a national procedural rule that imposes a time limit on an environmental organisation. According to that rule a person loses the status of party to the procedure and therefore cannot appeal the decision resulting from that procedure if it failed to submit objections in good time.

Natural environment belongs to us all

The Advocate General Sharpson made some very important observations concerning the case which could be both inspiring and informative for the environmental NGO, general public, public authorities and the courts. They go beyond the strict, reserved and legalistic language of the courts in general.

Shaprson first states that the natural environment belongs to us all and its protection is our collective responsibility. According to her the CJEU has recognised that the rules of EU environmental law, for the most part, address the public interest and not merely the protection of the interests of individuals as such. “Neither water nor the fish swimming in it can go to court. Trees likewise have no legal standing.”

Sharpson goes on saying that environmental organisations give expression to the collective and public interest, which no one else would otherwise be able to defend. They are bring together the claims of many individuals in a single action, act as a filter and contribute their specialised knowledge, thereby putting the courts in a better position to decide the case. Thus, in the long run they make environmental procedures work better.

Kafka’s parable

In her creative and unorthodox style the Advocate General, when discussing the absurdity of the procedural rules imposed on the Protect in the case, makes analogy with the situation in the Franz Kafka’s parable “Before the Law”. The main character in the story is seeking the law and wishes to gain entry to the law through an open doorway. However, there is a doorkeeper who keeps telling him that he cannot go through at the moment. The man asks whether he could ever go through, and the doorkeeper answers that it is possible “but not now”. The man waits for years by the door even trying to bribe the doorkeeper with everything he has. The man waits and waits at the door until he is about to die. Right before he dies, he still asks the doorkeeper why even though everyone is supposed to seek the law, no one else has tried to go through in all these years. The doorkeeper answers “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

The morale of the C-664/15 case tells us that the doors of the courts should be widely open to the environmental NGOs and they should take the chance to challenge the administrative decisions whenever they find them incompatible with the provisions of international and EU law as shown in the case.

It remains to be seen what “butterfly effect” this case-law will have on the Austrian and other national courts within the EU. Schamschula explains that “for the EU and other member states, the ruling clarifies the standing of the Aarhus Convention with regards to EU environmental legislation. It is therefore quite important outside of Austria, too and can be used to argue for a very broad access to justice in environmental matters governed by EU legislation.” The court says the Aarhus Convention has to be taken into account when interpreting relevant EU Directives. The ruling is directly applicable in all EU member states, adds Schamschula.

Bulgaria affected

Bulgaria had been part of the Aarhus success story on the road to the final text of the Convention. At the Third Ministerial Environment for Europe Ministerial Conference in Sofia on 25 October 1995 the Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-making (the Sofia Guidelines) were endorsed. They deal with all three pillars of the Aarhus Convention.

However, recently in a case before the Compliance Committee of the Convention (ACCC/C/2011/58) the Committee found that Bulgaria fails to comply with Article 9, paragraph 3 of the Convention by barring all members of the public, including environmental organizations, from access to justice with respect to General Spatial Plans, to Detailed Spatial Plans, and to review procedures to challenge the final decisions permitting activities listed in annex I to the Convention. The decision of the Compliance Committee as well the CJEU case C-644/15 discussed here should be a wake-up call for the Bulgarian administration.

Not least, we should keep in mind that the Austrian case was about a permit to abstract water for producing snow for a ski resort. The decision of the Bulgarian government to amend the management plan of Pirin National Park, expanding its area for development and construction to 48 %, has caused an avalanche of protests. The Minister of Environment and Waters claims that in only projects for water extraction will be allowed in 46 % of the 48 % of the zone. Whatever future holds, on the way of the destruction of the park will stand the recent judgements of the CJEU which call for wide access to justice and public participation in water permits and in administrative procedures dealing with biodiversity protection. Another green light for better days to come is the statement of Sharpson “Environmental organisations play a crucial role in protecting our shared environmental heritage”.

* Franz Kafka was a German-speaking Bohemian Jewish novelist and short story writer, widely regarded as one of the major figures of 20th-century literature. His work blends elements of realism and surrealism and explores the themes of alienation, existential anxiety, guilt, and absurdity.

** The Court held that Article 47 of the CFR, read together with Article 9(2) and (4) of the Aarhus Convention, enshrines the right to effective judicial protection and ensures wide access to justice rights for environmental organisations derived from EU law, in this case from the Habitats Directive.

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