Keywords: Aarhus Convention, access to justice, direct effect, administrative proceedings, EU environmental law
Private applicants, such as individuals and non-governmental organisations (NGOs), wishing to bring an action before national courts in order to set aside national legislation or administrative action in breach of European Union (EU) environmental law, may rely on several enforcement mechanisms developed by the Court of Justice of the European Union (hereinafter 'the Court' or 'ECJ') such as the principle of effective judicial protection (referred to as 'the Rewe doctrine'),1 the principle of direct effect,2 and the principle of consistent interpretation.3
In the context of environmental law, the above framework of jurisprudential protection of rights derived from EU law provisions has been reinforced by the adoption of specific measures aimed at facilitating access to justice in environmental matters. In this regard, the Aarhus Convention,4 signed by the European Community on 25 June 1998, sets out, inter alia, certain standards for review procedures concerning acts or omissions in envi¬ronmental matters as well as standing requirements for individuals and environmental NGOs. In particular, Article 9(3) of the Aarhus Convention governs access to justice in domestic disputes in the field of the environment.
The Lesoochrandrske zoskupenie judgment concerns essentially the interpretation of Article 9(3) of the Aarhus Convention and results in a considerable expansion of possi¬bilities for private plaintiffs to enforce rights derived from environmental law. However, it sways far beyond that aspect. It involves the question of jurisdiction to interpret provisions of an agreement concluded under shared competence by the EU and Member States ('mixed agreement') and the application of the principle of effective judicial protection of rights derived from EU environmental law. It also raises a controversial question of procedural autonomy of the Member States. This issue prompted the governments of several Member States, wary of the potential inroads into the subtle concessions made to the Contracting Parties to the Aarhus Convention in Article 9(3), to participate in the proceedings.
On 21 April 2008 the Ministry of the Environment of the Slovak Republic issued a decision granting a hunting associations application for permission to derogate from the protective conditions accorded to the brown bear (a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora6 ('the Habitats Directive')- The derogation concerned such measures as access to protected countryside areas or the use of chemical substances in such areas.
In the course of that and subsequent procedures a Slovak environmental NGO Lesoochrandrske zoskupenie VLK (LZV) notified the Ministry that it wished to participate, seeking recognition of its status as a party to the administrative proceedings concerning the grant of those derogations or authorisations. LZV relied on the Aarhus Convention for that purpose. The Ministry rejected that request and the administrative appeal sub¬sequently brought by LZV against that rejection. The Ministry refused to recognise the admissibility of that appeal on the grounds that LZV did not have the status of a party to the proceedings. Moreover, the Ministry considered that Article 9(2) and (3) of the Aarhus Convention did not contain any unequivocally drafted fundamental right or freedom which would be directly applicable, in the sense of the 'self-executing' theory used in public international law, to public authorities. Subsequently, LZV lodged an action against the contested decision at the Bratislava Regional Court, arguing in particular that Article 9(3) of the Aarhus Convention has direct effect. The court reviewed the contested decision, together with the administrative procedures that had preceded it, and dismissed LZV's application. Finally, LZV appealed to the Supreme Court of the Slovak Republic, which decided to stay the proceedings and refer questions to the Court for a preliminary ruling. The Supreme Court asked essentially whether individuals, and in particular envi¬ronmental NGOs, may derive a right to bring proceedings under EU law relying on direct effect of Article 9(3) of the Aarhus Convention where they wish to challenge a decision to derogate from a system of environmental protection.