Les implications de la lecture conjointe de l’article 9, paragraphe 3, de la convention d’Aarhus et de l’article 47 de la Charte sur le droit des associations de protection de l’environnement d’ester en justice devant les juridictions nationales

In November 2016, Deutsche Umwelthilfe, an environmental association which is authorised to bring legal proceedings before national courts in accordance with German law, brought an action before the Schleswig-Holsteinisches Verwaltngsgericht, a German administrative court, seeking annulment of a decision adopted by the German Federal Motor Transport Authority. The latter had found that the software installed in vehicles marketed by Volkswagen to control NOx emissions was lawful. Deutsche Umwelthilfe claimed that that software constituted an unlawful defeat device within the meaning of Article 5(2) of Regulation No 715/2007. The defendant ‒ the Federal Republic of Germany ‒ contended that the action brought by the environmental association was inadmissible because the applicable national legislation did not confer on Deutsche Umwelthilfe standing to bring proceedings against administrative decisions on the matter at issue. Against this background the referring court decided to stay the proceedings and to refer two questions for preliminary ruling to the Court of Justice. This note focuses on the first one, through which the German administrative court asked to clarify whether, in essence, Deutsche Umwelthilfe’s standing to bring proceedings could result from the application of Article 9(3) of the Aarhus Convention, read in conjunction with Article 47(1) of the Charter, enshrining the right to an effective remedy.

In its judgment, the Court of Justice, first, shed light on the scope of application of Article 9(3) of the Aarhus Convention to which the EU is a party and, second, analyzed the impact of the combined reading of that provision and Article 47 of the Charter on the discretion left to the Member States in imposing certain limitations to the standing of environmental associations.

Concerning the scope of application of Article 9(3) of the Aarhus Convention, the Court of Justice clarified that Regulation No 715/2007, despite being based on Article 114 TFEU, pursues the objective of ensuring a high level of environmental protection. More specifically, its Article 5(2) contributes to this objective through the prohibition of the use of defeat devices that may reduce the effectiveness of emission control systems to limit emissions of gaseous pollutants. Thus, Article 5(2) of the Regulation must be included amongst the «provisions of national law relating to the environment» within the meaning of Article 9(3) of the Aarhus Convention. Furthermore, whilst the Member States may establish procedural rules setting out conditions which an environmental association must meet in order to enjoy the rights provided for in Article 9(3) of the Aarhus Convention, «such criteria relate only to the determination of those persons entitled to bring an action, not to the determination of the subject matter of the action in so far as the latter concerns infringement of provisions of national environmental law». Therefore, Member States may not reduce the material scope of Article 9(3) of the Aarhus Convention, «by excluding from the subject matter of the action certain categories of provisions of national environmental law» (para 64).

Where Member States lay down procedural rules applicable to the matters referred to in Article 9(3) of the Aarhus Convention concerning the exercise of the rights that an environmental association derives from Article 5(2) of Regulation No 715/2007, they are implementing EU law for the purposes of Article 51(1) of the Charter and must, therefore, ensure compliance with its provisions, in particular with the right to an effective remedy enshrined in Article 47.

Through the combined reading of the two provisions, the Court of Justice narrowed down the margin of discretion granted to Member States by both the principle of national procedural autonomy and Article 9(3) of the Aarhus Convention. Recalling its previous findings in the Protect Natur case, the Court of Justice held that the right provided for in Article 9(3) of the Aarhus Convention would be deprived of all useful effect, «and even of its very substance» (para 67), if an environmental association that satisfies the requirements laid down in that Convention were to be denied of any right to bring proceedings before national courts, in particular in order to verify compliance with EU environmental law. Although the Member States enjoy discretion in the implementation of Article 9(3) of the Aarhus Convention, they cannot impose procedural rules that would make it effectively impossible for environmental associations to challenge the acts falling within the scope of that Article. The Court of Justice thus found that the German procedural rules were contrary to the combined reading of Article 9(3) of the Aarhus Convention and Article 47 of the Charter and such a limitation of the right to an effective remedy could not be considered justified.

Finally, the Court of Justice analyzed the implications of the combined reading of Article 9(3) of the Aarhus Convention and Article 47 of the Charter. First, it is for domestic courts to interpret national procedural rules relating to the conditions to bring proceedings in a manner consistent with both the objective of Article 9(3) of the Aarhus Convention and Article 47 of the Charter, «in order to enable an environmental association, such as Deutsche Umwelthilfe, to challenge before a court a decision […] which may be contrary to Article 5(2) of Regulation No 751/2007» (para 75). The Court seemingly suggests that there is space for such a consistent interpretation, by recalling that the judgment delivered in Germany following the preliminary reference in the Protect Nature case did not exclude that «such standing could be granted to an environmental association, such as Deutsche Umwelthilfe, on the basis of an interpretation of German law which meets the requirements of Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter» (para 76). Second, while Article 9(3) of the Aarhus Convention does not have direct effect, Article 47 of the Charter «is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such» (para 79). The reference to both provisions allowed the Court of Justice to strengthen the judicial protection of environmental associations, since if such an interpretation is not viable, national courts have the obligation to disapply any provisions of national law «precluding an environmental association from being able to challenge decisions which may be contrary to Article 5(2) of Regulation No 715/2007» (para 80).