Case C-115/09

Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV

v

Bezirksregierung Arnsberg

(Reference for a preliminary ruling from the

l’Oberverwaltungsgericht für das Land Nordrhein-Westfalen)

(Directive 85/337/EEC – Environmental impact assessment – Aarhus Convention – Directive 2003/35/EC – Access to justice – Non-governmental organisations for the protection of the environment)

Summary of the Judgment

1.        Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Right of action for environmental protection non-governmental organisations – Scope

(Council Directive 85/337, as amended by Directive 2003/35, Arts 1(1) and (2), and 10a)

2.        Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Right of action for environmental protection non-governmental organisations – Direct effect of the provisions of that directive providing for that right

(Council Directives 85/337, as amended by Directive 2003/35, Arts 1(1) and (2), and 10a, and Directive 92/43, as amended by Directive 2006/105, Art. 6)

1.        Article 10a of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, precludes legislation which does not permit non-governmental organisations promoting environmental protection, as referred to in Article 1(2) of that directive, 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 Article 1(1) of that same directive, on the infringement of a rule flowing from the environment law of the Union and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals.

Although the national legislature may confine to individual public-law rights those rights whose infringement may be relied on by an individual in legal proceedings brought against a decision, act or omission referred to in that Article 10a, such a limitation cannot be applied as it stands to environmental protection organisations without disregarding the objectives of the last sentence of the third paragraph of that Article 10a. If, as is 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 protect the public interest. That would very largely deprive those organisations of the opportunity to verify compliance with the rules of that branch of law, which, for the most part, address the public interest and not merely the protection of the interests of individuals as such.

(see paras 45-46, 50, operative part 1)

2.        A non-governmental organisation, which promotes environmental protection, referred to in Article 1(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35, can derive, from the last sentence of the third paragraph of Article 10a of that directive, 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 Article 1(1) of that directive, on infringement of the rules of national law flowing from Article 6 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2006/105, when, on the ground that the rules relied on protect only the interests of the general public and not the interests of individuals, national procedural law does not permit this.

By providing, on the one hand, that the interest of any non‑governmental organisation meeting the requirements referred to in Article 1(2) of Directive 85/337 is to be deemed sufficient and on the other that such organisations are also to be deemed to have rights capable of being impaired, the last two sentences of the third paragraph of hat Article 10a lay down rules which are precise and not subject to other conditions. These rights must necessarily include the rules of national law which give effect to the environmental legislation of the Union and the rules of Union environmental law having direct effect.

(see paras 48, 56-57, 59, operative part 2)