Altrip C-72/12 – CJEU Upholding Discretion in…

In Altrip C-72/12, 7 November 2013 (unreported), the CJEU considered a reference by Germany referring to rules of standing in EIA cases. Essentially, there was a rule of standing in German law which related to whether the breach of EIA would have made any difference to the substantive development application. The question referred was:

“whether the case-law consistently applied by the national courts is compatible with that right, given that it holds that the rights of a person concerned by a project subject to the carrying out of an environmental assessment may be impaired only if there is a causal link between the procedural irregularity and the final result of the planning approval decision that adversely affects him.”

The CJEU unsurprisingly found that a claim had to be available in EIA not only where there had been no EIA carried about, but where it was defective. However, on the question of whether a claim could be brought where there was a defective EIA where it would make no difference to the result, the CJEU referred to the principles of effectiveness and equivalence [45].

The CJEU found [47] “it was not the intention of the legislature to make the possibility of invoking a procedural defect conditional upon that defect's having an effect on the purport of the contested final decision.” Furthermore, the CJEU stated [48] that the “public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive.”

It was not necessary that all defects in EIA could give rise to a challenge [49]:

Nevertheless, it is unarguable that not every procedural defect will necessarily have consequences that can possibly affect the purport of such a decision and it cannot, therefore, be considered to impair the rights of the party pleading it. In that case, it does not appear that the objective of Directive 85/337 of giving the public concerned wide access to justice would be compromised if, under the law of a Member State, an applicant relying on a defect of that kind had to be regarded as not having had his rights impaired and, consequently, as not having standing to challenge that decision.

However, the burden of proof in showing that the result could have been different were it not for the error cannot be placed upon the applicant, as this may make the exercise of rights conferred excessively difficult. [52]

Altrip was about a rule of standing, rather than remedial discretion. Nevertheless, it appears that it is consistent with the reasoning of Lord Carnwath in Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, to the effect that courts can withhold a remedy in situations where “the applicant has been able in practice to enjoy the rights conferred by the European legislation”. It will however be necessary for courts to ensure that the burden of proof is not falling on challengers in such situations, but rather upon the Defendant or Interested Party who is arguing that the court should exercise its discretion not to quash.