The core of Dutch administrative procedural law compromised?

More than two years after the referral judgment of the single-judge chamber of the Limburg District Court, the Court of Justice has answered the preliminary questions posed. In my article ‘Preliminary questions about the core of Dutch administrative procedural law’, JM 2019/4, I discussed the referral judgment. This article can be found here. Essentially, it concerns the sustainability in environmental law procedures of 1) the concept of interested party (Article 1:2 Awb); 2) the submission of a view as a condition for access to the administrative court (Article 6:13 Awb); and 3) the part judge (derived from Article 6:13 Awb).

What was going on?

Both a private individual and an environmental protection organization have appealed against the granting of an environmental permit (building and environmental activities) for the expansion of a pig farm. In doing so, the law requires that the uniform public preparation procedure be applied. In such a procedure, according to the law, everyone has the opportunity to present views against the draft decision. A mer assessment decision also had to be made in this case. After the environmental permit was granted, the individual and the environmental organization filed an appeal against the decision with the Limburg District Court. For both, they did not submit any views as part of the opinion stage.

According to the court, the private individual is inadmissible because he is not an interested party as referred to in Article 8:1 of the Awb. In addition, both the private individual and the environmental organization failed to comply with the requirement laid down in Article 6:13 of the Awb, which states that an opinion should have been submitted in the opinions phase, and that no appeal to the administrative court is open to those who have not submitted an opinion.

What questions were asked?

The questions asked by the Limburg District Court are not simple. The Court summarized and restated the questions. This means that the following questions must be answered:

1. Does EU law, in particular Article 9(2) of the Aarhus Convention, preclude members of the ‘public’, as distinguished from the ‘public concerned’, from not having access to justice when there is a decision on a specific activity (a so-called Article 6 act within the meaning of the Aarhus Convention)?
2. Is it mandatory to participate in a public participation procedure in order to be admissible in court, distinguishing between an environmental organization and a private individual who is not part of the ‘public concerned’?

What are the answers?

In answer to the first question, the Court indicates, first of all, that Article 6 of the Aarhus Convention only requires that access to the public participation procedure be granted to the public concerned. The public concerned must have access to justice in accordance with Article 9(2) of the Aarhus Convention.

However, if anyone is allowed to participate, then national law grants a broader right to public participation. Those who are not members of the public concerned cannot rely on Article 9, second paragraph, of the Aarhus Convention for access to justice, but can rely on Article 9, third paragraph. This means that under national law there must be a possibility of recourse to the courts if the right of public participation has been granted.

On the second question, the Court indicates that members of the public concerned should always have access to justice, regardless of whether they participated in the public participation procedure. The Court then notes that environmental protection organizations are deemed to have a sufficient interest. If there is a broader right to public participation, then a person who is not a member of the public concerned may be objected to for not having participated in the public participation procedure, unless he cannot reasonably be blamed.

What does this mean?

1. In my opinion, the concept of “public concerned” extends beyond the Dutch administrative courts’ interpretation of the interested party concept. The term ‘the public’ must be interpreted without any conditions or restrictions, or in other words: it concerns everyone, regardless of whether there is an ‘impairment’ of rights or being affected in a personal interest (United Nations Economic Commission for Europe (UNECE), The Aarhus Convention: An implementation guide, second edition 2014, p. 55-56). Despite ‘affected public’ being narrower than ‘the public’, it should be construed broadly (UNECE 2014, p. 57). ‘The affected public’ should include any person from ‘the public’ who is affected, or likely to be affected, or interested in environmental decision-making. Experiencing impacts is tied to the nature of the activity decided upon. Regarding being an interested party, it was explicitly noted in the Aarhus Implementation Guide that this goes far beyond the test commonly applied by various Contracting Parties to legal proceedings (UNECE 2014, p. 57). For example, it is indicated that even a possible impairment of socio-economic rights is already sufficient to belong to “the public concerned.
2. It is important to distinguish well between Article 6 acts and Article 7 acts. Article 6 acts include: a) decisions authorizing or not authorizing activities covered by the EIA Directive and the former IPPC Directive, now Industrial Emissions Directive (IED); b) decisions concerning other activities that may have a significant effect on the environment. Plans and programs may also contain such an authorization. If there is an Article 6 act, then Article 9(2) of the Aarhus Convention applies.
3. In environmental law legislation, such as the Wabo, the Water Act, the Wnb and the Wro, anyone is allowed to express an opinion in response to the public inspection of a draft decision. This means that in these cases any person must also be admissible in court. It is not strictly necessary that this must be before the administrative judge. It is also possible that those who do not belong to the public in question must turn to the civil court for this purpose, acting as a residual judge. I would find that undesirable, by the way, because then two different judges, depending on whether someone is an administrative law interested party, may pass substantive judgments on the same decision.
4. Environmental protection organizations would no longer be required to participate in the public participation procedure. This also applies to those who belong to the affected public. Article 6:13 of the Awb can no longer be invoked against them.
5. Finally, the Court notes that it is not necessary in this case to determine whether a land court is in violation of Article 9, paragraphs 2 and 3, of the Aarhus Convention, because this is not an issue in the referral proceedings. However, Advocate General Bobek has already noted in his opinion that such a land court may not be an issue. Since the Court makes it clear in this ruling that mandatory participation in a public participation procedure cannot be required of the public concerned, it seems clear to me that a land court cannot be applied in a procedure involving an Article 6 act.

Expectations

Now that it has been made clear that under Dutch law there is a “national headline” regarding public participation, I expect that the legislature will soon put an end to the so-called actio popularis during the public participation procedure.

In Article 6 actions, the administrative law judge must now use a broader concept of interested parties. In addition, Article 6:13 of the Awb can no longer be invoked against interested parties who have not submitted an opinion in an appeal against an Article 6 act. I therefore expect more rulings in the coming period on whether 1) there is an Article 6 act; 2) a party should still be considered an interested party. It would be wise for the Dutch administrative courts to ask preliminary questions about this as well.

In short, this ruling removes an important barrier to access to justice, at least for proceedings in which an Article 6 act is at issue. Given the increasingly stringent requirements that the Council of State has begun to impose in recent years on parties to be able to participate in proceedings concerning decisions with consequences for the physical living environment, this is a positive development.