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Quo Vadis Public Participation? or the resurrection of preclusion

02/02/2021

Author

Josef Peer

Attorney at Law

Bernhard Scherzer

Associate

In the Austrian regime of approval procedures, the principle applies that parties must actively participate in the proceedings or lose their party status - and thus, among other things, the right to appeal against an approval - through so-called preclusion. Preclusion is therefore one of the cornerstones for ensuring that proceedings do not get out of hand and approval procedures are brought to a conclusion.

Judgement of the Court of Justice of the European Union

This principle has been challenged several times by the Court of Justice of the European Union (ECJ), not only in Austria but also, in particular, in Germany (ECJ 15 October 2015, C-137/14 Commission v. Germany) and softened in the light of the Aarhus Convention as well as the principle of participation of the public affected in the procedure.

Now, in its Stichting judgement (ECJ 14 January 2021, C-826/18), the ECJ has at least partially resurrected the preclusion and at the same time provided for new tasks for the Aus-trian legislator:

Specifically, the ECJ had to assess in the context of the approval of the expansion and conversion of a plant in the Netherlands, 

  • whether the public within the meaning of Article 2 No 4 of the Aarhus Convention may be precluded from having access as such to justice,
  •  whether the admissibility of judicial remedy for NGOs as part of the public concerned within the meaning of Article 2 No 5 of the Aarhus Convention may be made subject to prior participation in the proceedings, and
  • whether the admissibilty of judicial remedy for the public may be made subject to prior participation in the proceedings.

Unsurprisingly, and in line with previous case law, the ECJ has stated that NGOs are part of the public concerned and that only persons affected by the impact of a project have a right of appeal.

Surprisingly, however, the ECJ clarified that the Aarhus Convention provides for a right of appeal for NGOs as the public concerned irrespective of prior participation in the procedure. For the mere public, however, the Aarhus Convention does not provide for an unrestricted right of appeal and does not preclude the admissibility of a right of appeal from being made subject to the participation in the procedure. 

In this context, the ECJ states that this constitutes a restriction of the right to an effective remedy before a court within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union („Charter“). However, such restrictions may be justified under Article 52 (1) of the Charter if they are provided for by law, respect the essence of that law, are necessary, subject to the principle of proportionality and genuinly meet objec-tives of the public interest recognised by the European Union or the need to protect the rights and freedoms of others. 

In summary, the ECJ ruled: 

  • With regard to individuals, it is necessary to consider whether they are (personally) affected by the effects of a project and cannot reasonably be critised for not having participated in the procedure.
  • By law, NGOs are always considered to be affected by the effects of a project, which is why they have a right of appeal in any case, regardless of their participation in the procedure. 

Effects on procedural practice 

For procedural practice, the ECJ's ruling means that the statutory order of preclusion is permissible in principle and that a swan song to preclusion was premature. However, the ECJ's ruling also raises new problems for practice:

First of all, the legislator will have to take action and revise provisions with regard to environmental organizations, such as § 40 (1) of the Environmental Impact Assessment Act, which link the right to appeal or the scope of appeal to participation in the procedure. More important for practice, however, the lack of participation of environmental organizations in the first instance procedure does not preclude them from initiating appeal proceedings, which increases the risk of procedural delays.

In this context, the possibility of excluding suspensive effect of appeals will gain particular importance in the light of procedural acceleration, especially for large infrastructure projects in the public interest (such as in particular the expansion of rail infrastructure or renewable energies).
 

Author

Josef Peer

Attorney at Law

Bernhard Scherzer

Associate