1. Trends and developments at EU level on access to justice from the perspective of granting interim relief by national judges in the environmental field Compliance promotion, governance and legal issues, Unit A2 – Directorate-General Environment

2. Access to justice in the EU - an overview  General concept of access to justice - Treaty, Charter, Aarhus Convention, secondary law  Implementation of the Aarhus Convention (Convention) into EU law  CJEU jurisprudence on access to justice and injunctive relief

3. Access to justice – and the Treaties  Recent changes in the Treaties regarding access to justice:  Article 6 (ex-article 6 TUE) Lisbon Treaty  the Charter of Fundamental Rights of the European Union has the same legal value as the Treaties.  Charter of Fundamental Rights Art 37 and Art 47.  high level of environmental protection  effective judicial protection  legal aid  Article 19 TUE  (…)Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.  This is based on a well-established case-law of the CJEU (Case 33/76 Rewe, Case C ‑ 312/93 Peterbroeck, Case C-268/06 Impact, C-240/09 etc.)

4. EU and the Aarhus Convention – A special approach to environmental matters  Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters  3 pillars concept  The Convention is part of EU law (decision 370/2005/EC)  It is necessary to protect the nature that cannot protect itself...  As AG Sharpston put it in Trianel (C-115/09): „The fish cannot go to Court.”

5. Aarhus Convention and EU law - the three pillars  The 3 pillars have been implemented by secondary law  Regulation 1367/2006 for the Institutions  a Proposal for a Directive on access to justice in environmental matters of the European Parliament and of the Council [24 October 2003 COM(2003) 624COM(2003) 624  Directive 2003/4/CE on access to information  Directive 2003/35/CE on public participation (EIA and IPPC)

6. EU and the Aarhus Convention – access to justice in secondary law  The „guarantee” pillar implementing Art. 9 (2), (4) access to justice as regards public participation of the Aarhus Convention reference made to injunctive relief  Standing for individuals whose rights are impaired or have a sufficient interest  Special status for NGOs promoting environmental objectives (See AG Sharpston opinion in C-115/09)  Scope of review by the judge: not only procedural but in a substantial sense as well  Aim to provide wide access to justice  Procedures should be fair, timely, not prohibitively expensive

7. Injunctive relief in the context of the Aarhus Convention - the definition Art 9(4): "(…)provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive." What is injunctive relief? As the Aarhus Implementation Guide indicates, main elements of the definition to avoid/mitigate irreversible damage authorities' power to order to stop or to undertake certain action order called an “injunction” and the remedy achieved by it is called “injunctive relief”.

8. Stepping stones for reaching injunctive relief in the ECJ (now CJEU) jurisprudence Effective judicial protection (as also reinforced by TUE 19 and the Charter) – Principle of loyal cooperation – MS duty to ensure effective protection of rights derived from EU law Procedural autonomy – Ms duty (discretion) to set up effective protection mechanisms » 2 principles to be observed in the national context of remedies (effectiveness and equivalence) » Where it is uncertain if an action under national law safeguards respect of rights derived from EU law, interim relief should be granted Linking the Aarhus Convention and the jurisprudence of the CJEU approach involving all considerations

9. Principles of access to justice and effective judicial protection in the EU legal order  Effective judicial protection is strongly linked to the effectiveness and equivalence principles of EU law (C-222/84, Johnston (para 18, 19); C ‑ 268/06 Impact, C-431/93 van Schijndel, Unibet C- 432/05, Case C ‑ 268/06 Impact etc.)  2 main conditions for judicial protection  Rights guaranteed by EU law need to be protected the same way as the rights derived from the national rules (principle of equivalence)  Principle of effectiveness (practice of rights not excessively difficult or impossible)  Natural procedural autonomy applies (see Safalero C-13/01, para 49), detailed arrangements are to be determined by the domestic legal order to safeguard rights

10. Injunctive relief in the jurisprudence of the CJEU (1)  Factortame C-213/89 - para 21  Nature of the dispute: compatibility of national rules with Community rules  "(…) the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.„  Other case: Zuckerfabrik joined cases C-143/88 and C-92/89,

11. Injunctive relief in the jurisprudence of the CJEU (2)  Unibet C-432/05 – falling into the category of the Factortame case  Preliminary reference on Swedish rules on Lotteries - promotion of gaming activities  AG Sharpston's Opinion – emphasizing procedural autonomy – as the case concerned damages, she concluded that the interim action does not correspond to the principal action  Ruling: Effective interim judicial protection of rights, subcategory of effective judicial protection – 2 main conditions - effectiveness and equivalence (Rewe C-33/76. para 5, Peterbroeck C-312/93, para 12),  Interim relief (if necessary) should be possible, until judgment is delivered on compatibility of national rules with EU rules, to ensure full effectiveness of EU law  National criteria to be applied in granting interim relief

12. Temporary measures in the jurisprudence of the CJEU (1) – the environmental aspect o C-41/11 – Inter-Environment Wallonie o Preliminary reference – implementation of the SEA Directive o Main facts of the case: adoption of a government order – infringing one, but respecting the other Directive (Nitrates) o Is it possible to keep in force temporarily a measure, eventhough it is in breach of EU law? o AG Kokott conclusions: o Reference to C-409/06 (Winner Wetten); differences in environmental field, primacy vs environmental protection =effectiveness o Existing measure to remain in force until replacement o (p. 34) Assessment of effectiveness: procedure as a whole, effect on EU law, before various national bodies, conduct of the procedure, special features, objective of the instrument

13. Temporary measures in the jurisprudence of the CJEU (2) – the environmental aspect Ruling delivered in April 2012 Certain measures (all general and practical) may be maintained (by national judges!) if: -the national measure correctly tranposes the other Directive -future measure would not avoid the damage caused to the env by eventual annulment - result of lower level of protection, counter to objectives of the Directive -Strictly temporary measure until the situation is adequately remedied

14. Injunctive relief in the jurisprudence of the CJEU - linking the Aarhus concept of access to justice (1) On-going Slovak case (Krizan) - Case C-416/10 on a Reference for a preliminary ruling from Najvyšší súd Slovenskej republiky (NSSR) Main facts of the case: waste disposal site – series of appeals against planning decisions - involving 3 instances of courts Issues addressed: human rights vs environmental rights, injunctive relief, scope of Article 9 (4), temporal effect of authorisations, hierarchy of courts AG Kokott delivered opinion on 19th April 2012 Case is still on-going

15. Injunctive relief in the jurisprudence of the CJEU - linking the Aarhus concept of access to justice (2) C-416/10 AG Kokott main conclusions Linking the Aarhus conecpt and general principle of effective interim judicial protection in order to ensure full effectiveness of national judgments aimed at protecting rights Making explicit reference to Article 9 (4) of the Convention The Impact Assessment and IPPC Directives rules on access to justice include implicily injunctive relief, even without having to explicity refer to it in the text of the legislative instruments Charter of Fundamental Rights - Article 47 on access to justice and Art 19 TUE on effective legal remedies is also referred to

16. Access to justice – CJEU jurisprudence - concept of effective judicial protection in the environmental field Developing jurisprudence of the CJEU linking effective judicial protection in EU law and the Aarhus Convention - Latest developments in the CJEU case-law - the Irish case (C- 427/07), Slovak case (C-240/09), Swedish case (C-268/08), Trianel (German) case (C- 115/09), Belgian case (C-134/09), C-182/10 – 2nd Belgian case – Solvay, 2 UK cases on prohibitive costs C-260/11, C-530/11, C-72/11 German preliminary reference

17. Trends in the jurisprudence – Increasing role of national judges Recent case-law (Boxus, C-240/09), stronger control by national judges Taking forward the Kraaijeveld line of rulings, courts are to set aside non-compliant national rules Two main elements, effective judicial protection and ensuring that the CJEU exercises its role based on the preliminary references Role in contributing to the development of jurisprudence

18. Room left for further interpretation Scope of judicial review – substantial and procedural legality. Standing of foreign NGOs. Prohibitive costs – what is prohibitive, difference of notions from one MS to another – standard of living, GDP, personal capacity to pay the costs – subjective/objective test Should the procedural guarantees implemented by MSs to all levels of appeal? Standing rights – NGOs, what can be considered to be restrictive standing criteria? What exactly do we mean by timely, what are sufficient procedural guarantees put in place? Injunctive relief - is it inherent in the access to justice system (see Factortame) - see on-going C-416/10.

19. Conclusions Under consumer protection already existing secondary law - Directive 2009/22/EC on injunctions for the protection of consumer interests Concept of injunctive relief implicitly present in all pieces of legislation that provides rights to the public As jurisprudence developed the concept, it is inherent in the principle of effective judicial protection – effective interim protection Pending proposal on access to justice in environmental matters – see recent Communication on implementation Com/2012/095 http://ec.europa.eu/environment/legal/law/com_impro ving.htm