Case C‑115/09,Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein‑Westfalen

Plea raised against decision which alleged infringement of the rules of national law flowing from Article 6 of Habitats Directive must be capable of being relied on by environmental protection organisation.

This reference for a preliminary ruling had been made in proceedings between the Nordrhein-Westfalen branch of Friends of the Earth, Germany; “Friends of the Earth” and the Bezirksregierung Arnsberg, concerning the authorisation granted by the latter to Trianel Kohlekraftwerk GmbH & Co. KG (‘Trianel’) for the construction and operation of a coal-fired power station in Lünen.

The referring court asked essentially whether Art. 10a of Directive 85/337 precluded legislation which did not permit non-governmental organisations promoting environmental protection, as referred to in Art. 1(2) of the “EIA” (Environmental Impact Assessment) Directive (Directive 85/337), 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 Art. 1(1) of Directive 85/337, on the infringement of a rule which protected only the interests of the general public and not the interests of individuals.
The referring court also asked the Court whether Art. 10a of the EIA Directive precluded such legislation in general or only in so far as it did not permit an organisation of that nature to rely before the courts on particular provisions of environment law, whether of Community or purely national origin.

The Court held that whichever option a Member State chose for the admissibility of an action, environmental protection organisations were entitled, pursuant to Art. 10a of the EIA Directive, to 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 covered by that Article .

The Court furthermore held that where, in the absence of EU rules governing the matter, it was for the legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derived from EU law, those detailed rules must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not made it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness).

Although the national legislature was entitled to confined to individual public-law rights the rights whose infringement might be relied on by an individual in legal proceedings contesting one of the decisions, acts or omissions referred to in Art. 10a of Directive 85/337, such a limitation could not be applied as such to environmental protection organisations without disregarding the objectives of the last sentence of the third paragraph of Art. 10a of Directive 85/337.

The Court held that if, as was clear from that provision, those organisations must be able to rely on the same rights as individuals, it would be contrary to the objective of giving the public concerned wide access to justice and at odds with the principle of effectiveness if such organisations were not also allowed to rely on the impairment of rules of EU environment law solely on the ground that those rules protected the public interest.

It followed first that the concept of “impairment of a right” could not depended on conditions which only other physical or legal persons could fulfil, such as the condition of being a more or less close neighbour of an installation or of suffering in one way or another the effects of the installation’s operation.

It followed more generally that the last sentence of the third paragraph of Art. 10a of Directive 85/337 must be read as meaning that the “rights capable of being impaired” which the environmental protection organisations were 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.

The Court that “in order to give the referring court the most useful answer possible, it should be pointed out that a plea raised against a contested decision which alleged infringement of the rules of national law flowing from Art. 6 of the Habitats Directive must be capable of being relied on by an environmental protection organisation.”

The Court furthermore held that a non-governmental organisation could derive, from the last sentence of the third paragraph of Art. 10a of Directive 85/337, as amended by Directive 2003/35, the right to rely before the courts, in an action contesting a decision authorising projects “likely to have significant effects on the environment” for the purposes of Art. 1(1) of Directive 85/337, even where, on the ground that the rules relied on protected only the interests of the general public and not the interests of individuals, national procedural law did not permit this.