Article 47 of the Charter precludes national procedural rules that allow decisions to be taken in environmental matters pending litigation on participation in that decision-making

Case C-243/15 Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín (Brown Bears II) EU:C:2016:838

Article 47 Charter, read in conjunction with Article 9(2) and (4) of the Aarhus Convention, precludes rules that allow an administrative authorisation procedure for a project likely to have a significant effect on the environment to be concluded if an environmental organisation’s request to participate in the proceedings is still pending.

I Facts

Access to justice in environmental matters is an area of law in Europe that has not always fully lived up to the aspirations of civil society and environmental organisations. Even though the EU and the Member States are party to the Aarhus Convention, access to justice in environmental matters remains a contentious area of law, not least because of the lack of a Directive in this area and the tight standing requirements in direct actions before the EU courts.

The groundbreaking judgment of the Grand Chamber in C-243/15, LZ (Brown Bears II) is, however, a significant positive step for fulfilling the EU’s commitments to access to justice in environmental matters. ¹ In this preliminary ruling, the European Court of Justice found that Article 47 of the Charter (right to an effective remedy and to a fair trial), in conjunction with Article 9(2) and (4) of the Aarhus Convention, precludes procedural rules that allow authorities from taking a final decision on a project under the Habitats Directive before proceedings on the status of an environmental organisation in the decision-making process have been concluded. The case not only ensures that environmental organisations are aided in avoiding a fait accompli in litigating decisions with an environmental impact, but also demonstrates the legal force of the Charter of Fundamental Rights in this area. What is more, the ECJ significantly strengthened the legal force of the Aarhus Convention by interpreting the Habitats Directive in light of it.

The procedural aspects of this case are complex, even though the factual circumstances are relatively straightforward. In 2008 the district authority of Trenčín in Slovakia initiated an administrative procedure for authorisation of a project relating to the construction of 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. ² LZ...