C-826/18, Stichting Varkens in Nood and others v College van burgemeester en wethouders van de gemeente Echt-Susteren (Judgment of 14 January 2021) – Case Note

Stichting Varkens in Nood shows that EU law can have farreaching consequences for national administrative procedural law. With this judgment, a new element has been added to the patchwork of access to justice. Most striking, however, is the CJEU’s interpretation of the scope of the participatory rights granted by Article 6(7) of the Aarhus Convention. Stichting Varkens in Nood makes it clear that the Member States may restrict participatory rights to the ‘public concerned’ (which includes NGOs) for decisions covered by Article 6 of the Aarhus Convention. If they do, under Article 9(2) of the Aarhus Convention, they are not allowed to make access of the public concerned to justice dependent on their participation in the decision-making procedure. However, if, in environmental matters, Member State offer participatory rights to others using Article 3(5) of the Aarhus Convention, they will also have to offer them some form of access to justice. The CJEU derives this from Article 9(3) of the Aarhus Convention. The scope of that right is not entirely clear from Stichting Varkens in Nood. It is possible that in legal proceedings such persons may only complain about the violation of their participatory rights. What is clear is that the Member States may make the right of access to justice for such persons dependent on their participation in the decision-making procedure.