Case C‑470/16

North East Pylon Pressure Campaign Ltd and Maura Sheehy

v

An Bord Pleanála and Others

(Request for a preliminary ruling from the High Court (Ireland))

(Reference for a preliminary ruling — Assessment of the effects of certain projects on the environment — Directive 2011/92/EU — Right of members of the public concerned to a review procedure — Premature challenge — Concepts of a not prohibitively expensive procedure and of decisions, acts or omissions subject to the public participation provisions of the directive — Applicability of the Aarhus Convention)

Summary — Judgment of the Court (First Chamber), 15 March 2018

1. Environment—Assessment of the effects of certain projects on the environment—Directive 2011/92—Right of members of the public concerned to a review procedure—Requirement of a not prohibitively expensive procedure—Scope—Application for leave to apply for judicial review submitted in the course of a process which may lead to the grant of development consent—Included

   (European Parliament and Council Directive 2011/92, Art. 11(4))

2. Environment—Assessment of the effects of certain projects on the environment—Directive 2011/92—Right of members of the public concerned to a review procedure—Requirement of a not prohibitively expensive procedure—Scope—Requirement applying only to the costs relating to the part of the challenge alleging infringement of the rules on public participation in accordance with that directive—Consequences

   (European Parliament and Council Directive 2011/92, Art. 11(4))

3. Questions referred for a preliminary ruling—Jurisdiction of the Court—Interpretation of an international agreement concluded by the Community and the Member States on the basis of joint competence—Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention)—Included

   (Art. 267 TFEU; Aarhus Convention; Council Decision 2005/370)

4. International agreements—European Union Agreements—Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention)—Provisions of that convention concerning access to justice—Requirement of a not prohibitively expensive procedure—Scope—Application for leave to apply for judicial review submitted in the course of a process which may lead to the grant of development consent—Included

   (Aarhus Convention, Art. 9(3) and (4); Council Decision 2005/370)

5. International agreements—European Union Agreements—Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention)—Provisions of that convention concerning access to justice—Requirement of a not prohibitively expensive procedure—Scope—Costs relating to the part of the challenge based on national environmental law—Included—No direct effect—Obligation to give an interpretation of national procedural law consistent with those provisions

   (Aarhus Convention, Art. 9(3) and (4); Council Decision 2005/370)

6. International agreements—European Union Agreements—Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention)—Provisions of that convention concerning access to justice—Directive 2011/92—Right of members of the public concerned to a review procedure—Requirement of a not prohibitively expensive procedure—Derogation from that requirement where a challenge is deemed frivolous or vexatious, or where there is no link between the alleged breach of national environmental law and damage to the environment—Not permissible

   (Aarhus Convention, Art. 9(4); European Parliament and Council Directive 2011/92, Art. 11(4); Council Decision 2005/370)

1.  Article 11(4) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as meaning that the requirement that certain judicial procedures not be prohibitively expensive applies to a procedure before a court of a Member State, such as that in the main proceedings, in which it is determined whether leave may be granted to bring a challenge in the course of a development consent process, a fortiori where that Member State has not determined at what stage a challenge may be brought.

   (see para. 34, operative part 1)

2.  Where an applicant raises both pleas alleging infringement of the rules on public participation in decision-making in environmental matters and pleas alleging infringement of other rules, the requirement that certain judicial procedures not be prohibitively expensive laid down in Article 11(4) of Directive 2011/92 applies only to the costs relating to the part of the challenge alleging infringement of the rules on public participation.

   Where, as is the case of the leave application which led to the main proceedings concerning the determination of costs, a challenge brought against a process covered by Directive 2011/92 combines legal submissions concerning the rules on public participation with arguments of a different nature, it is for the national court to distinguish — on a fair and equitable basis and in accordance with the applicable national procedural rules — between the costs relating to each of the two types of arguments, so as to ensure that the requirement that costs not be prohibitive is applied to the part of the challenge based on the rules on public participation.

   (see paras 43, 44, operative part 2)

3.  See the text of the decision.

   (see para. 46)

4.  See the text of the decision.

   (see paras 47-51)

5.  Article 9(3) and (4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, must be interpreted as meaning that, in order to ensure effective judicial protection in the fields covered by EU environmental law, the requirement that certain judicial procedures not be prohibitively expensive applies to the part of a challenge that would not be covered by that requirement, as it results, under Directive 2011/92, from the answer given in point 2 of the present operative part, in so far as the applicant seeks, by that challenge, to ensure that national environmental law is complied with. Those provisions do not have direct effect, but it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with them.

   Consequently, where the application of national environmental law — particularly in the implementation of a project of common interest, within the meaning of Regulation No 347/2013 — is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, so that judicial procedures are not prohibitively expensive.

   (see paras 57, 58, operative part 3)

6.  A Member State cannot derogate from the requirement that certain judicial procedures not be prohibitively expensive, laid down by Article 9(4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters and Article 11(4) of Directive 2011/92, where a challenge is deemed frivolous or vexatious, or where there is no link between the alleged breach of national environmental law and damage to the environment.

   It must, in that regard, be recalled that the requirement that certain judicial procedures not be prohibitively expensive laid down in both Article 11(4) of Directive 2011/92 and Article 9(4) of the Aarhus Convention in no way prevents national courts from ordering an applicant to pay costs. It is therefore open to the national court to take account of factors such as, in particular, whether the challenge has a reasonable chance of success, or whether it is frivolous or vexatious, provided that the amount of the costs imposed on the applicant is not unreasonably high.

   (see paras 60, 61, 65, operative part 4)