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  • Public law
  • 15-01-2021

Yesterday, the European Court of Justice ruled on the question whether - in short - article 6:13 of the General Administrative Law Act (Algemene wet bestuursrecht, "Awb") is in conflict with the Aarhus Convention. 

This question came before the European Court of Justice via a preliminary question from the administrative judge of the district court of Limburg, following appeal proceedings concerning the granting of a permit for a new pig shed with room for more than 750 sows.

What did the Court of Limburg ask the European Court of Justice?
In essence, the referring court requested, on the basis of six questions, whether: 

  1. the restriction of access to the courts to only 'interested parties' within the meaning of Article 1:2 of the Awb is compatible with the Aarhus Convention; and 
  2. whether the Aarhus Convention precludes making the admissibility of actions before the courts brought by an interested party subject to the participation of the appellant in the preparatory procedure for the contested decision. 

What is the relevant legal framework?
The Aarhus Convention regulates the protection of the rights of persons to access to information, public participation in decision-making and access to court in environmental matters. The second and third paragraphs of Article 9 of the Aarhus Convention are specifically relevant to this judgment. These paragraphs specify how the EU Member States must ensure that the public (concerned) has access to justice. In the second paragraph, the Aarhus Convention mentions the 'public concerned' and in the third paragraph, the Aarhus Convention mentions the 'public'. This ruling makes clear that this distinction is relevant, both for the application of Article 9(2) and (3) and for the consequences thereof. 

Please note that the Aarhus Convention only relates to environmental matters. 

Conclusion A-G Bobek
Last summer the conclusion of A-G Bobek on the limitation of the access to court based on article 6:13 Awb was published. From this conclusion (which can be seen as a weighty advice to the European Court of Justice) follows - in short - that article 6:13 Awb is not in line with the Aarhus Convention. 

How does the European Court of Justice answer the first question?
This judgment confirms that Article 9(2) of the Aarhus Convention is not intended to confer a right of appeal to the public in general, against decisions or acts (falling within the scope of that Convention) relating to projects in which the public has a say in the decision-making process, but only to the 'public concerned' (more or less: interested parties). With regard to an appellant who is not considered an interested party under national law, the European court ruled that this appellant was not part of the 'public concerned' either. It cannot be derived from this that the concept of 'interested party' in article 1:2 Awb fully corresponds with the concept of 'public concerned' in the Aarhus Convention. 

On the other hand, Article 9(3) of the Århus Convention intends that if the national environmental law of a Member State grants wider rights to participate in the decision-making process, those persons who do not belong to the 'public concerned' but to the public in general must have access to justice in order to be able to invoke these wider rights. 

And what does the European Court of Justice think of the second question?
The European Court of Justice holds that the Aarhus Convention indeed precludes making the admissibility of an appeal, as referred to in Article 9(2) of the Aarhus Convention, brought by non-governmental organisations that are part of the 'public concerned', dependent on the participation of the appellant concerned in the decision-making process that led to the adoption of the decision in question. Under Dutch law, there is an important exception to the rule that appellants who have not lodged an objection or submitted a view can still appeal to the administrative courts, if they cannot be blamed for not having lodged an objection or a view. This exception (relaxation, as it were) does not change the mind of the European Court of Justice either. 

Again, the answer to question 2 is different for the 'public' in general than for the 'public concerned'. The European Court of Justice makes it clear that Article 9(3) of the Aarhus Convention does not preclude the admissibility of the appeal referred to therein being legally dependent on the participation of the appellant in the preparatory procedure. In other words: appellants who do not qualify as the 'public concerned' can be required to have participated in the preparatory procedure. 

What does this mean in practice?
Practice will show how the Dutch judge interprets this ruling of the European Court of Justice. In any case, we have noted two rather far-reaching consequences: 

  • The appeal on environmental matters lodged by the 'public concerned' (more or less: interested parties), including non-governmental organisations that are part thereof, may not be made dependent on going through the administrative preliminary procedure. This means that the 'public concerned' (including interested parties) who have not submitted a view on a draft decision on an environmental matter would previously have been declared inadmissible in their appeal to the administrative court, but must now be declared admissable. For them, access to justice is broadened by this ruling. Therefore, in our view, article 6:13 of the Awb cannot be held against them. 

    This may also have major consequences for (the use of) the administrative preliminary procedure by interested parties.
  • On the basis of this judgment, it will – in our view – no longer be possible to determine that the appellants who do not belong to the 'public concerned', but who have submitted a view (and were given the opportunity to do so by law) on environmental matters, can be denied any possibility of appeal to the court. This therefore has consequences for non-interested parties who, for example, have submitted a view pursuant to Article 3.12 of the Environmental Permitting (General Provisions) Act (Wet algemene bepalingen omgevingsrecht). They may therefore not be denied access to the courts just like that. The appeal lodged by them may, however, in principle be made dependent on going through the administrative preliminary procedure (and as a result of this, they may or may not be declared admissible). 

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