1. Access to Justice in Environmental Matters
Trier 12 June 2017
Anders Bengtsson

2. legitimate interests are protected and the law is enforced,
Recital 18
Concerned that effective judicial mechanisms should be accessible to the public, including organisations, so that its
legitimate interests are protected and the law is enforced,
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3. Article 9 ACCESS TO JUSTICE
1. Any persons request for information - access to a review procedure before a court of law or another independent and impartial body established by law.
2. Members of the public concerned (sufficient interest /incl. NGOs/ or impairment of a right) review procedure before a court of law and/or another independent and impartial body established by law. Review substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 (public participation)
3. Members of the public access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4. Adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive

4. The Treaties
Article 19 TEU 1.   The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialized courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
Article 191 TFEU
Union policy on the environment shall contribute to pursuit of the following objectives:
preserving, protecting and improving the quality of the environment, protecting human health,
prudent and rational utilisation of natural resources,
promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
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5. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
Article 37 Environmental protection
A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.
Article 47 Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
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6. VÄXJÖ TINGSRÄTT

7. 31 Under EU law, access to justice in environmental matters represents a set of supportive rights which serves two purposes. It enables individuals and their associations to exercise the rights conferred on them by EU law, and it helps ensure that the aims and obligations of EU environmental legislation are attained. 35 The CJEU has recognized that the public interests mentioned above and obligations placed on public authorities give rise to rights for individuals and their associations, which are to be protected by national courts. These rights are both procedural and substantive in nature. Several procedural and substantive rights may simultaneously be engaged, as where a decision, act or omission of a public authority involves issues of participation of the public as well as fulfilment of substantive environmental protection obligations

8. Access to Justice The right to standing Private persons
Environmental NGOs
Scope of Judicial Review
Possible grounds of judicial review
Intensity of scrutiny/standard of review
Effective Remedies - Efficiency of Procedures
Costs
Time Limits, Timeliness

9. C-237/07 Janacek
P. 38 Thus, the Court has held that, whenever the failure to observe the measures required by the directives which relate to air quality and drinking water, and which are designed to protect public health, could endanger human health, the persons concerned must be in a position to rely on the mandatory rules included in those directives.
P. 39 …. the natural or legal persons directly concerned by a risk that the limit values or alert thresholds may be exceeded must be in a position to require the competent authorities to draw up an action plan where such a risk exists, if necessary by bringing an action before the competent courts.
P where there is a risk that the limit values or alert thresholds may be exceeded, persons directly concerned must be in a position to require the competent national authorities to draw up an action plan, even though, under national law, those persons may have other courses of action available to them for requiring those authorities to take measures to combat atmospheric pollution.
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10. Article 11 of the (Aarhus) Regulation (EC) 1367/2006
1. A non-governmental organisation shall be entitled to make a request for internal review in accordance with Article 10, provided that:
(a) it is an independent non-profit-making legal person in accordance with a Member State's national law or practice;
(b) it has the primary stated objective of promoting environmental protection in the context of environmental law;
(c) it has existed for more than two years and is actively pursuing the objective referred to under (b);
(d) the subject matter in respect of which the request for internal review is made is covered by its objective and activities.
2. The Commission shall adopt the provisions which are necessary to ensure transparent and consistent application of the criteria mentioned in paragraph 1.

11. C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening
P. 47 Furthermore, it is conceivable that the condition that an environmental protection association must have a minimum number of members may be relevant in order to ensure that it does in fact exist and that it is active. However, the number of members required cannot be fixed by national law at such a level that it runs counter to the objectives of Directive 85/337 and in particular the objective of facilitating judicial review of projects which fall within its scope.
P. 51 The Swedish Government, which acknowledges that at present only two associations have at least members …., has in fact submitted that local associations could contact one of those two associations and ask them to bring an appeal. However, that possibility in itself is not capable of satisfying the requirements of Directive 85/337 … Finally, such a system would give rise, by its very nature, to a filtering of appeals directly contrary to the spirit of the directive which, as stated in paragraph 33 of this judgment, is intended to implement the Aarhus Convention.
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12. C-115/09 Trianel – and the ”Schutznormtheorie”
P. 48 It follows more generally that the last sentence of the third paragraph of Article 10a of Directive 85/337 must be read as meaning that the ‘rights capable of being impaired’ which the environmental protection organizations are supposed to enjoy must necessarily include the rules of national law implementing EU environment law and the rules of EU environment law having direct effect.
P. 50 Consequently, the answer to Questions 1 and 2, read together, is that Article 10a of Directive 85/337 precludes legislation which does not permit non-governmental organizations promoting environmental protection, as referred to in Article 1(2) of that directive, to rely before the courts, in an action contesting a decision authorizing projects ‘likely to have significant effects on the environment’ for the purposes of Article 1(1) of Directive 85/337, on the infringement of a rule flowing from EU environment law and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals.
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13. Slovac Brown-bear-case C-240/09
P. 45 It must be held that the provisions of Article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure.
P. 46 However, it must be observed that those provisions, although drafted in broad terms, are intended to ensure effective environmental protection.

14. P. 49 Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law. P. 50 It follows that, in so far as concerns a species protected by EU law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.

15. C-427-07 Commission vs. Ireland
P. 55 It follows from an equally consistent line of case-law that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights (see, inter alia, Case C‑197/96 Commission v France [1997] ECR I‑1489, paragraph 15; Case C‑207/96 Commission v Italy [1997] ECR I‑6869, paragraph 26; and Commission v Luxembourg, paragraph 34).
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16. C-260/11 Edwards
P. 33 Moreover, the requirement that the cost should be ‘not prohibitively expensive’ pertains, in environmental matters, to the observance of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, and to the principle of effectiveness, in accordance with which detailed procedural rules governing actions for safeguarding an individual’s rights under European Union law must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law (see, inter alia, Case C‑240/09 Lesoochranárske zoskupenie VLK [2011] ECR I‑1255, paragraph 48).
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17. C-416/10 Krizan
P. 107 Moreover, it is apparent from settled-case law that a national court seised of a dispute governed by European Union law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under European Union...
P. 109 However, exercise of the right to bring an action provided for by Article 15a of Directive 96/61 would not make possible effective prevention of that pollution if it were impossible to prevent an installation which may have benefited from a permit awarded in infringement of that directive from continuing to function pending a definitive decision on the lawfulness of that permit. It follows that the guarantee of effectiveness of the right to bring an action provided for in that Article 15a requires that the members of the public concerned should have the right to ask the court or competent independent and impartial body to order interim measures such as to prevent that pollution, including, where necessary, by the temporary suspension of the disputed permit.

18. C-72/12 Altrip
p. 37 The provisions of national law transposing that provision may not limit their applicability solely to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment has been carried out. Excluding that applicability in cases in which, having been carried out, an environmental impact assessment is found to be vitiated by defects – even serious defects – would render largely nugatory the provisions of Directive 85/337 relating to public participation. Such exclusion would therefore run counter to the objective of ensuring wide access to courts of law as mentioned in Article 10a of that directive.
P. 38 In those circumstances, the answer to Question 2 is that Article 10a of Directive 85/337 must be interpreted as precluding the Member States from limiting the applicability of the provisions transposing that article solely to cases in which the legality of a decision is challenged on the ground that no environmental impact assessment was carried out, while not extending that applicability to cases in which such an assessment was carried out but was irregular.
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19. Some useful links http://www.jandarpo.se/
Regeringens proposition 2016/17:200 Miljöbedömningar – no