Information to the public, public participation and access to justice

With a view to ensuring the effective participation of the public concerned in the decision-making procedures, the Directive contains, in Article 6, rather detailed requirements on making information publicly available. For the purpose of the Directive, the ‘public concerned’ is the public affected or likely to be affected by, or having an interest in, the procedures for development consent or other procedures into which the EIA has been integrated. Non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

Early in relevant decision-making procedures for development consent, the public must be informed electronically and by other appropriate means of several listed matters. Among these are the request for development consent; the fact that the project is subject to an EIA procedure; details of the competent authorities responsible for taking the decision; and details of the time schedule for transmitting comments or questions.

Within reasonable time frames, any information gathered from the developer as part of the EIA procedure must be made available to the public concerned. The public concerned is furthermore to be given early and effective opportunities to participate in the environmental decision-making procedures into which EIA has been integrated and shall be entitled to express comments and opinions when all options are open to the competent authority before the decision on development consent is taken.

When a decision to grant or refuse development consent has been taken, the competent authority must promptly inform the public thereof, and shall ensure that the content of the decision and any conditions attached thereto, as well as the main reasons and considerations on which the decision is based, are available to the public and to the authorities concerned. (Arts 6 and 9.)

Member States must ensure that, in accordance with the relevant national legal system, members of the public concerned who have a sufficient interest have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts, or omissions subject to the public participation provisions of the Directive. Any such procedure shall be fair, equitable, timely, and not prohibitively expensive.22 (Art 11.)

The right to challenge the legality of a decision may not be limited to cases when that is done on the ground that no EIA was carried out but must also allow for ^[1]

challenges based on irregularities in the EIA procedure.2³ As a matter of principle, the public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by the Directive.2⁴

What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient. (Art 11.)

Although the rights whose infringement may be relied on by an individual in legal proceedings may be confined to individual public law rights, such a limitation cannot be applied as such to environmental protection organisations. Those organisations must be able to rely on the rules of national law implementing EU environment law and the rules of EU environment law having direct effect.25 Any conditions imposed under national law for non-governmental organisations promoting environmental protection to have a right of appeal must ensure wide access to justice and render effective the Directive’s provisions on judicial remedies.2⁶

Where the administrative procedural law of a Member State requires this as a precondition, the right to access to a review procedure may instead accrue to the public concerned who maintain the impairment of a right. The determination of what constitutes impairment of a right must be consistent with the objective of giving the public concerned wide access to justice. Non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have rights capable of being impaired. (Art 11.)

The Court of Justice has made clear that the impairment of a right cannot be excluded unless the court of law or other relevant body is in a position to take the view, without in any way making the burden of proof of causality fall on the applicant, that the contested decision would not have been different without the procedural defect invoked by that applicant.2⁷

The provisions on access to justice must be interpreted in the light of, and having regard to, the objectives of the Aarhus Convention.2⁸ They cannot be interpreted restrictively.2⁹

• [1] On the notion of ‘prohibitively expensive’ see Case C-260/11 Edwards and PallikaropoulosECLI:EU:C:2013:221 and Case C-530/11 Commission v United Kingdom ECLI:EU:C:2014:67.