Brown Bears II: Aarhus and the Charter show their teeth

By Laurens Ankersmit

In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:

  1. The legal effects of the Aarhus Convention in the EU legal order;
  2. The meaning of Article 47 of the Charter of Fundamental Rights (CFR).


The case evolves around an administrative procedure in Trenčín, Slovakia to authorise a project constructing an enclosure that would extend a deer reserve in an area in the Strážov Mountains, designated as a Natura 2000 site under the Habitats Directive. LZ (forest protection association VLK), fearing the negative implications this would have for wild brown bears in the area, objected to the authorisation.

A dazzling number of court cases followed, including a preliminary reference to the ECJ (Brown Bears I). In Brown Bears II, the Supreme Court of Slovakia referred the case once again to the ECJ. In essence, LZ was precluded from participating in the authorisation process because it was not granted the status of ‘party to the proceedings’ (incorrectly, as the litigation in Brown Bears I would later clarify). However, in the meantime the decision to authorise the project had been taken. The question the Supreme Court of Slovakia was faced with was therefore whether EU law precluded Slovak procedural law from allowing such a decision to be taken when proceedings on the exact status of an environmental organisation in the authorisation process were still ongoing. The Supreme Court thus wanted to know from the ECJ whether Article 47 of the CFR in conjunction with the relevant provisions of the Aarhus Convention precluded the application of such rules.

In effect, the ECJ was thus faced with a dilemma between, on the one hand, ensuring a high level of environmental protection and wide access to justice and, on the other, ensuring expediency of decision-making and autonomy of national procedural law. In light of Article 47 of the CFR, the ECJ opted for the former.

The legal effects of the Aarhus Convention

A first preliminary issue the Court had to deal with was whether the CFR was applicable in the first place as it only applies to situations governed by EU law (para 51). Significantly, the ECJ was faced with the compatibility of national procedural law with the CFR, an area of law that traditionally receives great autonomy from EU law in the jurisprudence of the Court. The Court determined that the CFR was nonetheless applicable, by interpreting article 6 (3) of the Habitats Directive in light of Article 6 of the Aarhus Convention. The Court found that when a Member State’s procedural rules apply to actions concerning the exercise of rights which an environmental organisation derives from article 6 (3) of the Habitats Directive; ‘that Member State is implementing obligations stemming from those provisions and must therefore be regarded as implementing EU law’ (para 52).

Such rights existed under article 6 (3) of the Habitats Directive because that provision had to be interpreted in conformity with Article 6 (1) (b) of the Aarhus Convention.  To recall, article 6 (3) of the Directive provides that the competent national authorities, before agreeing to a plan or project as referred to in that provision, must, if appropriate, obtain the opinion of the general public. After noting the binding effect of that provision, the ECJ stated that it ‘must be read in conjunction with Article 6(1)(b) of the Aarhus Convention, an instrument which forms an integral part of the EU legal order.’ (para 45) The ECJ then proceeded with reiterating the right to public participation in environmental matters under Article 6 of the Aarhus Convention, and found that LZ derived a right from Article 6 (3) of the Habitats Directive to participate within the meaning of the Aarhus Convention in a procedure for authorisation of a project likely to have a significant effect on the environment (paras 46-49).

The path chosen by the ECJ is one of moderation, but nonetheless very mindful of the EU’s and its Member States’ obligations under the Aarhus Convention. In contrast to the Advocate General, the Court did not find it necessary to give direct effect to Article 6 of the Aarhus Convention. Such direct effect would have in itself given the applicants rights under EU law. Instead the ECJ opted to interpret existing EU legislation in light of that Convention. The Court thus avoided the question of direct effect, but at the same time was able to give effect to the Aarhus Convention in the EU legal order through conforming interpretation of existing EU law.

Article 47 CFR

The Court then proceeded to investigate whether the CFR precluded the application of the Slovak procedural rules in question. It first set out the meaning of Article 47 of the CFR in light of Article 9 (2) and (4) of the Aarhus Convention. The Court found that because Article 6 (3) of the Habitats Directive gives organisations such as LZ rights on which they must be able to rely before national courts,

such an organisation must be able to challenge, in such an action, not only a decision not to carry out an appropriate assessment of the implications for the site of the plan or project in question but also, as the case may be, the assessment carried out inasmuch as it is alleged to be vitiated by defects’. (para 61)

After noting that in principle Article 47 of the CFR gives individuals the right to challenge the assessment made by authorities on the basis of the Habitats Directive, the Court proceeded by recalling the principle of national procedural autonomy. Not insignificantly, the Court rephrased the more traditional language on the principle of national procedural autonomy by adding that the Member States are responsible for ensuring that EU rights are ‘effectively protected in each case and, in particular, for ensuring compliance with the right to an effective remedy and to a fair hearing enshrined in Article 47 of the Charter’ (para 65). In that context, the Court recalled the circumstances in which LZ had found itself, i.e. that it was not fully able to participate in the decision-making under the Habitats Directive. The Court then found that procedural rules that would allow the continuation of the decision-making process in a situation where LZ was challenging the decision that did not allow it to fully participate in that decision-making process

does not enable an organisation such as LZ to be ensured effective judicial protection of the various specific rights inherent in the right of public participation, within the meaning of Article 6 of the Aarhus Convention’ (para 68).

The Court concluded that as long as there is no definitive decision of a court on the legal status of a party, the authorisation decision cannot be taken. This meant that the procedural determination of who may take part in the decision-making process needs to be made during the procedure and not afterwards.

The Court’s approach differed notably from the more deferential and less constitutional approach of the Advocate General’s approach. In her Opinion, the Advocate General equates the principle of effectiveness with the level of protection given by Article 47 CFR. She states that her analysis is based on the principle of effectiveness ‘in so far as this gives effect to Article 47 of the Charter, and, if appropriate, the specific expression given to the latter by Article 9 (4) of the Aarhus Convention.’ (para 99 of her Opinion) This presumes that Article 47 CFR does not add anything to litigants’ rights to an effective remedy predating the entry into force of the Lisbon Treaty. The Advocate General subsequently proceeded by analysing whether the rules in question make it in practice ‘impossible or excessively difficult to exercise rights conferred by EU law’ (para 98 of her Opinion).  Since the Advocate General found that at the time of the proceedings LZ still had another remedy available, this high threshold was not met.

The Court however applied Article 47 CFR independently to national procedural law where EU rights are at issue. The Court thus effectively establishes an entirely new standard based on Article 47 CFR alone and no longer applies the high threshold set by the principle of effectiveness. The Court’s approach is subsequently based on how the Habitats Directive operates and the extent to which the applicant’s specific rights inherent in the right of public participation under EU law were effectively protected by Slovak procedural law. In that sense, the Court’s approach is grounded in its hallmark effet utile reasoning, by placing emphasis on the need for effectiveness of EU law rather than on deference to national procedural law.

Brown Bears II is likely to become a significant precedent for years to come. It was already extensively quoted in a pending case involving access to justice relating to a water use permit. But the case may have repercussions beyond the field of environmental law, considering the Court’s constitutional approach to individual’s right to an effective remedy in the EU.

One final remark that arises from this case, is that although the Court is willing to use Article 47 CFR to provide greater access to justice before national courts, its approach towards standing in direct actions by individuals on the basis of Article 263 (4) TFEU appears to remain rather conservative, regardless of the inclusion of the Charter since Lisbon. In the Seal products case, the ECJ held that Article 47 CFR ‘is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union’. Recently, the General Court on that basis in Pan Europe denied an environmental NGO standing because it could not be considered directly concerned. Whether the Court will follow the General Court in light of Brown Bears II, however, remains to be seen.

This post is a shorter version of a case note that will appear in the forthcoming issue of the European Journal of Risk Regulation