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OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 2 July 2009 (1)

Case C-63/08

Djurgården-Lilla Värtans Miljöskyddsförening

Stockholms kommun genom dess marknämnd

(Reference for a preliminary ruling from the Högsta Domstolen (Sweden))

(Directive 85/337/EEC Environmental impact assessment Aarhus Convention Directive 2003/35/EC Access to justice Whether non-governmental organisations for the protection of the environment have standing to bring proceedings Definition of 'the public concerned' National legislation restricting access to justice to organisations having at least 2 000 members)

In this reference for a preliminary ruling the Swedish Högsta Domstolen (Swedish Supreme Court) asks whether it is permissible under Directive 85/337, (2) as amended in 2003 to bring it into line with the Aarhus Convention, for national legislation to guarantee access to justice only to non-governmental organisations for the protection of the environment having at least 2 000 members.

As a preliminary step, it is also necessary to clarify whether excavations for laying a power cable underground, and the abstraction of groundwater in order to construct the tunnel for the cabling, constitute a 'project' included in the list in Annex II to that directive.

I Legal framework

A The Aarhus Convention

The European Community, the Member States and 19 other States signed the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, better known as the Aarhus Convention, in 1998. The Convention was adopted within the framework of the United Nations Economic Commission for Europe and concluded in the Danish city of Aarhus on 25 June 1998. It entered into force definitively on 30 October 2001.

The 7th, 8th, 13th and 18th recitals in the preamble to the convention set out its objectives:

'Recognising also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,

Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,

...

Recognising further the importance of the respective roles that individual citizens, non-governmental organisations and the private sector can play in environmental protection,

...

Concerned that effective judicial mechanisms should be accessible to the public, including organisations, so that its legitimate interests are protected and the law is enforced'.

Article 2(4) and (5) of the Convention define the concepts of 'the public' and 'the public concerned' as follows:

'For the purposes of this Convention,

...

4. 'The public' means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups;

5. 'The public concerned' means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.'

Article 9(2), (4) and (5) of the Convention contain provisions relating to access to justice for both individuals and non-governmental organisations, as well as rules applying to judicial procedures:

'2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned:

(a) having a sufficient interest or, alternatively,

(b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5) shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

...

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this Article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this Article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.' (3)

B Directive 85/337, as amended by Directive 2003/35

The Aarhus Convention has been given effect in the Community legal order by means of, inter alia, Directive 2003/35. This amends several directives in force, including, most importantly for the purposes of the present case, Directive 85/337.

Recitals 3 and 4 in the preamble to Directive 2003/35 define the objectives of this initiative, making particular reference to the role of non-governmental organisations promoting environmental protection:

'(3) Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.

(4) Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered, including inter alia by promoting environmental education of the public.'

The 2003 reform made changes, inter alia, to Articles 1 and 6 of Directive 85/337 and inserted a new Article 10a. Article 1 introduces definitions of 'the public' and 'the public concerned'. Article 6 outlines the process for participation in, and the provision of information relating to, the assessment procedures. Article 10a provides for the right to access to justice in the context of the Directive.

'Article 1

...

'the public' means: one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;

'the public concerned' means: the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2); for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

...

Article 6

...

2. The public shall be informed, whether by public notices or other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;

(c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) an indication of the availability of the information gathered pursuant to Article 5;

(f) an indication of the times and places where and means by which the relevant information will be made available;

(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.

3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:

(a) any information gathered pursuant to Article 5;

(b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;

(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information, information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.

4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.

5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.

6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article.

...

Article 10a

Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

The Member States shall determine at what stage the decisions, acts or omissions may be challenged.

What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.

The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.'

In order to answer the first question referred for a preliminary ruling (which is, however, not the central issue in the present proceedings) it is also necessary to mention Article 4 of Directive 85/337, together with point 11 of Annex I and point 10(l) of Annex II thereto. Article 4 of the directive imposes an obligation to carry out an environmental impact assessment, giving the Member States varying degrees of discretion. By virtue of Annex I to the directive, projects which must in all cases be made subject to assessment include :

'11. Groundwater abstraction or artificial groundwater recharge schemes where the annual volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic metres.'

Point 10 of Annex II includes, amongst those projects which are to be made subject to assessment in accordance with criteria established by the Member States:

'(l) Groundwater abstraction and artificial groundwater recharge schemes not included in Annex I.'

C National legislation

Paragraphs 2 and 9 of Chapter 11 of the Miljöbalken (Environment Act) provide that groundwater abstraction and artificial groundwater recharge, together with the construction of installations for that purpose, constitute water-related works requiring planning consent.

Chapter 6 of the Miljöbalken contains provisions relating to environmental impact assessment. Paragraph 4 provides that parties intending to carry out works requiring planning consent are to consult the Länsstyrelsen (regional authority), the supervisory body and individuals who are likely to be particularly affected. If, by virtue of provisions implementing Paragraph 4 or of a decision of the Länsstyrelsen, works may have such an impact, other national and municipal authorities, the public and organisations which are likely to be affected must also be consulted.

Paragraphs 12 and 13 of Chapter 16 govern the right to bring an action before the courts against resolutions and decisions applying the Miljöbalken. Paragraph 12 provides for this right, whilst Paragraph 13 introduces a number of restrictions affecting non-profit-making associations whose purpose under their articles of association is the protection of nature and the environment. In particular, under Paragraph 13(2) such bodies are required to have 'carried out their activities in Sweden for at least three years and to have at least 2 000 members'.

II The case in the main proceedings and the questions referred for a preliminary ruling

The Stockholm municipal council awarded a contract for certain high-voltage power lines between the Hjorthagen and Fisksjöäng areas to the north of Djurgården to be laid underground. To carry out the project, the contractor was required to construct a tunnel approximately one kilometre in length. The project required the abstraction of any groundwater that might seep into the power cable tunnel and its access tunnel. It also required the construction and maintenance, in dedicated buildings within the zone, of facilities to abstract water and to recharge water into the soil or rock in order to counteract any reduction in the groundwater table.

According to the order for reference, the Länsstyrelsen i Stockholms län (Stockholm Regional Authority) considered the proposal and on 27 May 2004 found that the proposed works had significant effects on the environment.

On 13 December 2006 the miljödomstolen vid Stockholms tingsrätt (Environmental Chamber of the Court of First Instance, Stockholm: 'the miljödomstolen') granted the Stockholm municipal council planning consent for the works in question. During this procedure, Djurgården-Lilla Värtans Miljöskyddsförening (the Djurgården-Lilla Värtans association for environmental protection; 'DVM') made submissions opposing the application.

DVM challenged the miljödomstolen's decision before the Miljööverdomstolen (Svea hovrätt) (Environmental Appeal Chamber of the Svea Court of Appeal), which held that the appeal was inadmissible because DVM lacked standing to bring proceedings. The court took the view that the appellant failed to meet the requirement, in Paragraph 13 of Chapter 16 of the Miljöbalken, that it should have a minimum of 2 000 members in order to appeal against decisions under that legislation.

DVM appealed against the decision of the Miljööverdomstolen to the Högsta Domstolen (Supreme Court).

In the light of the arguments put forward by the parties, that court decided to refer three questions to the Court for a preliminary ruling:

'(1) Is point 10 of Annex II to Directive 85/337 to be interpreted as meaning that it encompasses water-related works which involve the drawing-off from a tunnel for power cables of groundwater leaking into it and infiltration (supply) of water into the ground or hill to compensate for any reduction in the groundwater, and the construction and maintenance of installations for the drawing-off and infiltration?

(2) If the answer to Question 1 is affirmative: Does the provision in Article 10a of Directive 85/337 that under certain circumstances the public concerned is to have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of a decision imply that there is also a requirement that the public concerned is to be entitled to challenge a decision of a court in planning consent proceedings in a case where the public concerned has had the opportunity of participating in the court's examination of the question of planning consent and of submitting its views to that court?

(3) If the answers to Questions 1 and 2 are affirmative: Are Articles 1(2), 6(4) and 10a of Directive 85/337 to be interpreted as meaning that different national requirements can be laid down with regard to the public concerned referred to in Articles 6(4) and 10a, with the result that small, locally established environmental protection associations have a right to participate in the decision-making procedures referred to in Article 6(4) in respect of projects which may have significant effects on the environment in the area where the association is active but do not have a right of appeal such as is referred to in Article 10a?'

Sweden, DVM and the Commission have submitted written observations. All presented oral submissions at the hearing on 7 May 2009.

III The first question

In its first question, the referring court asks the Court about the ambit of Directive 85/337, as amended. Its query relates to the scope of point 10(l) of Annex II to the directive, which requires an environmental impact assessment ('EIA') to be carried out in accordance with criteria established by the Member States in relation to '[g]roundwater abstraction and artificial groundwater recharge schemes'. In essence, the referring court asks whether 'abstraction' is limited to instances where the water is to be used for some profitable purpose, or whether, on the contrary, it may be undertaken for the sole purpose of removing water in order to maintain a tunnel. The order for reference cites differences in some language versions of point 10(l) as the basis of its uncertainty.

Both Sweden and the Commission take the view that the project in question falls within Annex II. DVM expresses no opinion on this point.

More specifically, the Commission argues that the restrictive interpretation put forward by the referring court is not apparent in any of the language versions of Directive 85/337, as amended. If doubt should arise from any of the translations, the Commission agrees with Sweden that such a discrepancy cannot give rise to a narrow interpretation of the scope of the directive.

I agree with the Commission and Sweden.

The Court has consistently stated that Directive 85/337 'has a wide scope and a broad purpose'. (4) Behind that statement is the justified concern that a restrictive interpretation of Directive 85/337, as amended, would mean that projects which undoubtedly have an environmental impact would not require an EIA. Such a result would be contrary to the very purpose of the directive, which seeks to achieve a high degree of environmental protection on a precautionary basis, on the grounds that 'the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects'. (5)

The different language versions of point 10(l) of Annex II and its counterpart in Annex I do not differ significantly. The Commission is correct that the doubts raised by the referring court cannot stem from the different translations. I have found no linguistic version in which the abstraction of groundwater is limited to a particular purpose, still less to a subsequent profitable purpose. (6)

On the contrary, point 10 of Annex II, which relates to 'infrastructure projects', covers 13 types of project, of which only three are limited to the fulfilment of a specified purpose. Thus, paragraph (g) refers to 'dams and other installations designed to hold water or store it on a long-term basis'. (7) Paragraph (k) refers to 'coastal work to combat erosion and maritime works capable of altering the coast'. (8) Finally, paragraph (h) mentions 'tramways, elevated and underground railways, suspended lines or similar lines of a particular type used exclusively or mainly for passenger transport'. (9) Such statements are in stark contrast to subparagraph (1), here at issue, whose drafting makes no reference to the consequences and purpose of the water abstraction and recharging schemes.

Moreover, as the Commission correctly pointed out at the hearing, the purpose of a project is unconnected to its possible environmental impact. Whilst the purpose indicates the objective sought, that may be totally unrelated to the project's potential effect on the natural environment. Thus, I do not think that a project's purpose should affect the interpretation of the annexes to the directive.

On the basis of the Court's case-law and reading Annex II as a whole, it is clear that a project for 'groundwater abstraction and artificial groundwater recharge' does not need to have, as its sole and exclusive objective, the use of the water resources for a profitable purpose. Otherwise, point 10(l) of Annex II would apply only to a limited number of projects. That would run counter to the 'wide' scope which the Court's case-law attributes to Directive 85/337, as amended.

I therefore conclude, in answer to the first question, that point 10 of Annex II to Directive 85/337, as amended, should be interpreted as including abstracting water from a tunnel for power cables and artificially recharging water into the ground to compensate for any reduction in the groundwater table, together with the construction and maintenance of the installations necessary for those operations. It is not necessary that the water so abstracted should be put to any particular use or serve any particular purpose.

IV The second question

The Högsta Domstolen next asks whether Article 10a of Directive 85/337, as amended, allows 'the public concerned' unrestricted access to the courts when that public has participated in the procedure for planning consent.

More specifically and this is the central question raised by the referring court this requires me to examine whether Article 6 of Directive 85/337, as amended, applied in conjunction with Article 1(2), which makes provision for environmental organisations to participate as 'the public concerned' in the procedures for administrative planning consent, operates as a master key that automatically unlocks the doors to the judicial review provided for in Article 10a.

However, I must first deal with a preliminary issue, namely the judicial or administrative nature of the miljödomstolen. That organ forms part of the administration of justice. However, in the present case, it gave planning consent for the underground cabling and groundwater abstraction project. It is necessary to clarify this point, for if the miljödomstolen acted as a judicial body, then Article 10a of Directive 85/337, as amended, would apply instead of Article 6. Consequently, the second question referred for a preliminary ruling would be meaningless.

A Whether the miljödomstolen is administrative or judicial in nature

Article 6 of Directive 85/337, as amended, concerns an administrative procedure which brings together the views of all interested parties in order to take an environmental policy decision. Given the administrative authorities' wide discretion when conducting an environmental assessment leading to a planning decision, the legislation promotes maximum participation so as to ensure that the measure adopted will be lawful, but also correct from technological, social, economic and other perspectives. Judicial proceedings, in contrast, involve a dispute between parties focusing principally on questions of law and their subsequent application to particular facts.

In the present case, everything indicates that the miljödomstolen was performing administrative functions within the context of the procedure for planning consent.

The Miljöbalken allocates certain management and supervisory functions to judicial bodies specialising in environmental matters. In the present case, the miljödomstolen, notwithstanding that it is part of the Swedish judicial system, discharged administrative functions which culminate in the grant, or the rejection, of planning consent for a project, depending on its environmental impact. As the Commission pointed out in its written observations and Sweden explained at the hearing, the fact that the miljödomstolen is a judicial body does not prevent it from acting as an administrative body under the provisions of the Miljöbalken. (10)

In the present case, it is clear that the miljödomstolen performed non-judicial functions. Consequently, the decision it took in the course of the planning procedure, with which the present case is concerned, forms part of 'the environmental decision-making procedures' referred to in Article 6 of Directive 85/337, as amended.

B Article 6 of Directive 85/337, as amended, as a necessary step towards access to justice

In answering the second question, I shall focus on the wording of the 2003 amendments to Directive 85/337 and on the objectives which they sought to achieve.

Using the same definitions as the Aarhus Convention, Article 1(2) of Directive 85/337, as amended, draws a distinction between 'the public concerned' and 'the public' in order to differentiate between those who have a direct interest in whether or not an environmental project goes ahead and those who are not thus affected by the project. In order to emphasise the importance of environmental associations, Article 1(2) specifies that 'non-governmental organisations promoting environmental protection and meeting any requirements under national law' are 'the public concerned'.

The practical implications of coming within the definition of 'the public concerned' are to be found in Articles 6 and 10a of Directive 85/337, as amended. Article 6 gives 'the public concerned' the right to access environmental information (11) and to participate actively in the administrative procedure evaluating the project. (12) Article 10a takes this idea a step further and guarantees such persons access to the courts, or equivalent bodies, to challenge the legality of decisions under Directive 85/337, as amended, provided that they have suffered 'the impairment of a right' (13) or have 'a sufficient interest'. (14)

Unlike natural or legal persons, non-governmental organisations promoting environmental protection always have the status of 'the public concerned' provided that, in accordance with Article 1(2), they comply with 'any requirements under national law'. Article 10a expressly states that any environmental organisation which fulfils that definition will be deemed to have 'rights capable of being impaired' or an 'interest' that is deemed 'sufficient'.

Such organisations therefore have an automatic right of access to justice. (15) The presumption in favour of environmental organisations introduced by Article 1(2), when applied in conjunction with Article 10a, means that they benefit from a more advantageous regime than natural or legal persons who are not committed to promoting environmental protection.

In short, a non-governmental organisation which participates in the administrative environmental assessment procedure by virtue of its status as 'the public concerned' also has no problem with demonstrating adequate standing if it decides to challenge the administrative authorities' decision before the courts. However, access to the courts does not derive from its earlier participation in the administrative stage. Rather, the wording of Article 10a indicates that an environmental protection organisation passes through the 'gateway' to the courts if it meets the requirements of Article 1(2) and acquires the status of 'the public concerned'.

Furthermore, I do not think that the fact that the initial words of Article 10a confer a right of access to justice 'in accordance with the ... national legal system' means that Member States enjoy additional scope for manoeuvre when transposing that provision. In my view, that phrase serves to emphasise that the provisions on access to justice apply within the procedural framework of each Member State. That means that natural and legal persons and environmental organisations all remain subject to the rules on the jurisdiction of national courts, time-limits, legal capacity and so forth which are part of domestic procedural law.

On that basis, Sweden's arguments can be disposed of without undue difficulty.

Sweden relies on the different objectives pursued by Articles 6 and 10a and their equivalents in the Aarhus Convention. It also claims that its national legislation gives virtually unlimited access to 'the public' during the administrative stage of the environmental assessment procedure. Sweden argues that the fact that its legislation gives greater protection than the Convention and the Directive in this respect allows it to apply Article 10a more restrictively.

I disagree.

Sweden's approach ignores one inescapable fact: the applicant in these proceedings is a non-governmental organisation promoting environmental protection, not a natural or legal person. Once they satisfy the requirements of Article 1(2), such organisations have the status of 'the public concerned'. (16) As such, they have both the right to be informed and to participate in the administrative stage and the right of access to the courts to challenge the decisions of the administrative authorities.

Using a single definition of 'the public concerned' throughout Directive 85/337 helps to safeguard its objectives. Moreover, the fact that environmental organisations must satisfy a separate definition, which differs from that applicable to legal and natural persons, in order to qualify as 'the public concerned' confirms that the legislation gives such organisations a special supervisory role. It would run counter to that philosophy if that status, once conferred, were subsequently fragmented, allowing each Member State to interpret the definition as it wished in relation to each of the Directive's separate provisions.

I therefore conclude that 'the public concerned' as applied to non-governmental organisations promoting environmental protection should be interpreted uniformly throughout Directive 85/337, as amended. (17) If the definition were intended to be treated differently in Article 6 and Article 10a, the text would have said so expressly.

To summarise: in general terms, earlier participation under Article 6 of Directive 85/337, as amended, does not of itself guarantee unrestricted access to justice by 'the public concerned' under Article 10a. However, a non-governmental organisation promoting environmental protection which meets the definition of 'the public concerned' in Article 1(2) of Directive 85/337, as amended, does have an automatic right of access to justice under Article 10a. (18)

V The third question

By its third question, the Högsta Domstolen seeks to ascertain whether Article 10a of Directive 85/337, as amended, permits Member States to introduce restrictions on access to justice for environmental organisations once they have participated in the planning consent procedure.

The Commission and Sweden have submitted observations espousing opposing positions.

In the Commission's view, Article 10a grants environmental organisations wider access to the courts than individuals. It thereby imposes further limitations on Member States' discretion and prevents them from adopting restrictions which undermine the Directive's objectives. The Commission therefore considers that, by restricting access to justice to those environmental organisations which have a minimum of 2 000 members, the Swedish legislature is in breach of Community law.

Sweden stresses the relationship between Article 6 and Article 10a of Directive 85/337, as amended, and maintains that its more protective regime in relation to participation in the administrative procedure does not necessarily mean that access to justice should be viewed in the same terms. Thus, Sweden argues that Member States may adopt stricter conditions for locus standi before judicial bodies than before administrative bodies. That approach, which is identical to Sweden's approach to the second question, leads Sweden to maintain that the national legislation in question is compatible with Directive 85/337, as amended.

Article 6 of Directive 85/337 does not of itself operate as a master key guaranteeing access to justice for everyone who comes within the definition of 'the public concerned'. (19) However, Article 10a does provide for a system of direct and unrestricted access to justice for those non-governmental organisations which have the status of 'the public concerned' as defined in Article 1(2). (20) Consequently, if the Directive authorises Member States to restrict the capacity of environmental organisations to bring proceedings, such authorisation is not to be found in Article 10a but in the actual definition of 'the public concerned' as applied to such bodies and set out in Article 1(2).

I shall examine the margin of discretion Member States enjoy when transposing that definition into their domestic legal orders later in this Opinion. (21) However, I shall first supplement the literal reading of the text by examining the objectives pursued by the Aarhus Convention and the Directive in relation to environmental organisations.

A The role of non-governmental organisations promoting environmental protection and judicial review in environmental matters

The provisions on access to justice in environmental matters here at issue start from the premise that the natural environment belongs to us all. Preventing environmental damage is society's responsibility, not just the responsibility of individuals or isolated interests. Viewed in that light, the provisions of the Aarhus Convention and Directive 85/337, as amended, give legal form to the logic of collective action. (22) The individual is protected by acting in a group and the group is collectively strengthened by its individual members. Both the individual and the general interest are thus better protected; and the benefits for all concerned outweigh the disadvantages. This is why both measures accord an important role to non-governmental organisations promoting environmental protection.

This approach has other implications which are worth noting.

First, non-governmental organisations promoting environmental protection give expression to the collective interest. Because they represent a number of different parties and interests, they protect general objectives. This gives them the requisite 'collective dimension'. (23) They also contribute specialised knowledge which helps to distinguish important cases from cases of lesser significance. They speak with one voice on behalf of many, with a level of technical specialisation which is often not available to the individual. By so doing, they can rationalise the way in which the various conflicting interests are voiced and placed before the authorities.

Second, this approach to environmental policy is also intended to strengthen the functioning of the courts. By encouraging people to channel environmental disputes through non-governmental organisations promoting environmental protection, the Aarhus Convention and Directive 85/337, as amended, recognise that these organisations do not overload or paralyse the courts. Rather, they bring together the claims of many individuals in a single action. Although it is true that nothing prevents members of a non-governmental organisation also taking part in proceedings on an individual basis, the overall result of this policy is to create a filter which, in the long run, assists the work of the courts. (24) In addition, as I have just indicated, these associations often have technical knowledge that individuals generally lack. Bringing this technical information into the process is advantageous, because it puts the court in a better position to decide the case.

Thirdly, it is important to emphasise that the Aarhus Convention and Directive 85/337, as amended, rejected introducing an actio popularis for environmental matters. Although Member States can opt to make such a procedure available in their domestic legal orders, neither international nor Community law has chosen in this instance to do so. (25) However, it seems to me that, precisely because that course was rejected, the authors of the Aarhus Convention decided to strengthen the role of non-governmental organisations promoting environmental protection. That formula was adopted in an attempt to steer a middle course between the maximalist approach of the actio popularis and the minimalist idea of a right of individual action available only to parties having a direct interest at stake. Giving special standing to non-governmental organisations reconciles these two positions. (26) It seems to me to be a very sensible compromise.

For these reasons I take the view that the Aarhus Convention and Directive 85/337, as amended by Directive 2003/35, have deliberately chosen to reinforce the role of non-governmental organisations promoting environmental protection. They have done so in the belief that such organisations' involvement in both the administrative and the judicial stages not only strengthens the decisions taken by the authorities but also makes procedures designed to prevent environmental damage work better.

Against that background, I turn to examine whether and to what extent the participation of such bodies is made subject to conditions.

B The definition of 'the public concerned' in Article 1(2) of Directive 85/337, as amended, and the 'requirements under national law' applicable to non-governmental organisations promoting environmental protection

As already stated, Article 1(2) of Directive 85/337, as amended, defines 'the public' and 'the public concerned'. The latter definition goes on to state that, in addition to natural or legal persons who are or who are likely to be affected or who can demonstrate an interest, 'non-governmental organisations ... meeting any requirements under national law' are 'deemed to have an interest'. The Directive therefore introduces a presumption in favour of such organisations by exempting them from having to show that they are affected in any way by the environmental decision being taken.

However, the definition adds an important qualification: that the environmental organisation must meet any requirements under national law. Sweden maintains that that part of Article 1(2) of Directive 85/337, as amended, permits the restriction here at issue, limiting access to justice by non-governmental organisations to those having at least 2 000 members.

I agree with Sweden and the Commission that that clause does give Member States a certain amount of leeway.

I also agree with the Commission that, despite that latitude, Member States must adopt all appropriate measures consistent with the objectives pursued by Directive 85/337, as amended, so as not to deprive the directive of its effectiveness.

Bearing this in mind, and in the light of the considerations mentioned in points 61 to 64 of this Opinion, I think it is necessary to be cautious when defining the limits of the reference to 'any requirements under national law'.

The definition of 'the public concerned' is probably the keystone of the edifice constructed by the Aarhus Convention and Directive 85/337, as amended. As indicated at points 39 to 44 above, once an environmental organisation has that status, it is irrelevant to ponder whether or not participation in the administrative procedure may determine subsequent access to the courts. What is important is that the organisation meets the definition of 'the public concerned', not whether or not it participated in a particular stage in the procedure.

In view of the fundamental importance attaching to that definition, it seems to me clear that the Aarhus Convention and Directive 85/337, as amended whose stated objective is to ensure 'public participation in the taking of [environmental] decisions' and to foster 'in particular [the participation of] non-governmental organisations promoting environmental protection' (27) cannot be interpreted in a way that makes it more difficult for such organisations to have access to administrative and judicial procedures. Indeed, it is precisely because the definition of 'the public concerned', as applied to environmental organisations, opens the door to all the substantive rights contained in the Aarhus Convention and in Directive 85/337, as amended, that we must pay particular attention to the way in which Member States interpret that term. (28)

When Article 1(2) of Directive 85/337, as amended, refers to 'any requirements under national law', it alludes, in my view, to two types of conditions. First, there are conditions relating to national requirements as to the registration, constitution or recognition of associations, the purpose of which is to obtain a legal declaration of the existence of such bodies under national law. Second, there are conditions relating to such organisations' activities and how these are linked to the legitimate protection of environmental interests. Herein lies the crucial element of the definition, for restrictions may be introduced in the context of that link which are in open contradiction with the objectives of Directive 85/337, as amended (which, according to Article 10a, include 'giving the public concerned wide access to justice').

When national law imposes conditions requiring there to be a link between the organisation and an environmental decision, those conditions must be objective, transparent and consistent with the aims of Directive 85/337, as amended. It is not, therefore, appropriate to allow the authorities broad discretion to examine, on a case-by-case basis, whether environmental organisations have legitimate aims or not. Nor are conditions acceptable which are framed in such ambiguous or inadequate terms that they give rise to uncertainty or to discriminatory outcomes. Any restriction whose effect is to hinder rather than to facilitate access to administrative and judicial procedures for environmental organisations must, even more evidently, be rejected.

Paragraph 13 of Chapter 16 of the Miljöbalken establishes three conditions that environmental organisations must meet. One of these has been challenged in the present proceedings, namely the requirement that the organisation must have at least 2 000 members. In the light of my analysis thus far, I think it is clear that this does not withstand scrutiny under Directive 85/337, as amended.

I base that conclusion on the two criteria of transparency and consistency with the aims of Directive 85/337.

Requiring an organisation to have a minimum number of members in order to qualify as 'the public concerned' raises a number of practical problems. First, the Swedish legislation does not appear to define the term 'member' clearly. When questioned on this point at the hearing, counsel for Sweden accepted that the term is ambiguous and that its meaning has not been clarified by the Swedish courts. Second, the numerical requirement applies only to non-profit-making non-governmental organisations. What is the position of environmental protection organisations which are profit-making? Counsel for Sweden, when questioned about this, gave no reply. I therefore conclude that, although the Swedish system may be objective, it lacks transparency and gives rise to uncertainty. The facts speak for themselves as to the drawbacks of the Swedish provision. As counsel for Sweden acknowledged during the hearing, only two environmental organisations presently have access to the Swedish courts under the Miljöbalken. (29)

That provision is even more problematic when viewed in the light of the aims of the Aarhus Convention and Directive 85/337, as amended. Legislation requiring an environmental organisation to have a minimum number of members before it can have access to the courts could close the door to many groups which would have a legitimate interest in access to justice. In the present case, the provision penalises local environmental organisations harshly, denying them access to the courts even when the project under assessment has exclusively local impact. (30) Furthermore, the practical effect of the provision is to eliminate from the judicial landscape not only local environmental organisations but also many others which have a national or, even more tellingly, an international dimension. (31) In short, Paragraph 13 of Chapter 16 of the Miljöbalken achieves the exact opposite of the objectives sought by the Aarhus Convention and Directive 85/337, as amended. (32)

Whether that result was consciously or unconsciously intended by the Swedish legislature, the fact is that Swedish non-governmental organisations promoting environmental protection do not presently have access to justice.

Finally, I add that, in my view, the result would have been the same had there not been a specific provision such as Article 9 of the Aarhus Convention or Article 10a of Directive 85/337, as amended. The case-law of the Court contains numerous statements to the effect that Member States cannot lay down procedural rules which render impossible the exercise of the rights conferred by Community law. (33) Directive 85/337, which introduces a system of environmental assessment and confers rights, would be stripped of its effectiveness if the domestic procedural system failed to ensure access to the courts. The present case is clear proof that, given that access to justice is made impossible for virtually all environmental organisations, such a measure would fall foul of the Community law principle of effectiveness.

Consequently, I am of the view that Article 10a, in conjunction with Article 1(2) of Directive 85/337, as amended by Directive 2003/35, is to be interpreted as precluding a provision such as that contained in Paragraph 13 of Chapter 16 of the Miljöbalken, by virtue of which access to justice is available only to non-governmental organisations promoting environmental protection which have at least 2 000 members.

VI Conclusion

I therefore propose that the Court should answer the questions referred as follows:

(1) Point 10 of Annex II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997 and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, should be interpreted as including abstracting water from a tunnel for power cables and artificially recharging water into the ground to compensate for any reduction in the groundwater table, together with the construction and maintenance of the installations necessary for those operations. It is not necessary that the water so abstracted should be put to any particular use or serve any particular purpose.

(2) In general terms, earlier participation under Article 6 of Directive 85/337, as amended by Directives 97/11 and 2003/35, does not of itself guarantee unrestricted access to justice by 'the public concerned' under Article 10a. However, a non-governmental organisation promoting environmental protection which meets the definition of 'the public concerned' in Article 1(2) of Directive 85/337, as amended by Directive 2003/35, does have an automatic right of access to justice under Article 10a.

(3) Article 10a, in conjunction with Article 1(2) of Directive 85/337, as amended by Directives 97/11 and 2003/35, is to be interpreted as precluding a provision such as that contained in Paragraph 13 of Chapter 16 of the Miljöbalken, by virtue of which access to justice is available only to non-governmental organisations promoting environmental protection which have at least 2 000 members.

1 Original language: English.

2 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) ('Directive 85/337'), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).

3 Sweden lodged a reservation to Article 9(2) of the Aarhus Convention restricting the ability of environmental organisations 'to subject decisions by local administrative authorities to review by a court of law ...' The reservation concludes by stating: 'The Government intends that Sweden will very shortly comply with Article 9(2) in its entirety.'

4 See Case C-2/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 31; Case C-35/97 WWF and Others [1999] ECR I-5613, paragraph 40; Case C-74/99 Commission v Spain [2002] ECR I-5293, paragraph 46; Case C-2/07 Abraham and Others [2008] ECR I-1197, paragraph 32; and Case C-42/07 Ecologistas en Acción-CODA [2008] ECR I-0000, paragraph 28.

5 First recital in the preamble to Directive 85/337.

6 The German, English, Spanish, French, Italian, Dutch, Portuguese, Finnish and Swedish versions do not indicate any specific purpose.

7 Emphasis added.

8 Emphasis added.

9 Emphasis added.

10 It appears from the material available to the Court that the administrative competence of the miljödomstolen is based on the scale of the project in question. The assessment of smaller-scale projects falls within the competence of administrative bodies which are separate from the judiciary.

11 Article 6(3), (5) and (6).

12 Article 6(4), (5) and (6).

13 Article 10a(b).

14 Article 10a(a).

15 Fourth paragraph of Article 10a.

16 See points 40 to 45 above.

17 The Aarhus Convention Implementation Guide, 2000 states (at p. 41): 'once an NGO meets the requirements set, it is a member of the 'public concerned' for all purposes under the Convention' (emphasis added). If the Aarhus Convention has a single definition of 'the public concerned' throughout the entire document, the result should be the same under Directive 85/337, as amended.

18 The position of a natural or legal person or an environmental organisation not covered by the definition of 'the public concerned' is another matter. In that case, the relevant definition in Article 1(2) would be 'the public', as Sweden accepted during the hearing. In such circumstances, a different problem arises, namely whether 'the public' becomes 'the public concerned' by participating in the planning consent procedures under Article 6 of the directive. The Aarhus Convention Implementation Guide, cited above, states with persuasive authority (at p. 129) that 'it is consistent with the objectives of the Convention to hold that a member of the public who actually participates in a hearing under Article 6, paragraph 7 [the equivalent provision to Article 6(4) of Directive 85/337, as amended] would thereby gain the status of a member of the public concerned. This is logically supported by the fact that the full results of public participation must be taken into account by the public authority under Article 6, paragraph 8'. That implies that a State such as Sweden, which has elected to transpose Article 6 of Directive 85/337, as amended, broadly, conferring a high degree of protection, would then be obliged to treat natural and legal persons who had participated in the planning consent procedure by virtue of their status as 'the public' as having become 'the public concerned'. If so, the result would not necessarily (as Sweden claims) be to overload the national courts. With the exception of environmental organisations, persons acquiring the status of 'the public concerned' also need to have suffered the impairment of a right or to have a sufficient interest in order to have access to justice (Article 10a, first paragraph). However, the present dispute concerns the definition of 'the pubic concerned' as applied to an environmental organisation. It is therefore unnecessary to discuss whether, in certain circumstances, the concept of 'the public' might mutate into 'the pubic concerned'.

19 - See points 40 to 45 above.

20 - See point 42 above.

21 See point 61 et seq. of this Opinion.

22 Olson, M., The Logic of Collective Action: Public Goods and the Theory of Groups, Harvard University Press, Cambridge, 1971.

23 See point 61 above and de Sadeleer, N., Roller, G. and Dross, M., Access to Justice in Environmental Matters and the Role of NGOs. Empirical Findings and Legal Appraisal, Europa Law Publishing, Groningen, 2005, p. 177.

24 This is shown by empirical data on the effect of the involvement of environmental organisations on court statistics presented by de Sadeleer, N., Roller, G. and Dross, M., op. cit., pp. 165 to 170.

25 In a 2003 document, the Commission rejected the idea of including an actio popularis in any instrument implementing the Aarhus Convention. In its proposal for a directive on access to justice in environmental matters (COM (2003) 624 final of 24 October 2003), the Commission stated that 'the 'actio popularis' is not explicitly required by the Aarhus Convention and must be therefore left to Member States'. This statement, which post-dates the proposal for a directive which ultimately resulted in Directive 2003/35, seems to me to be pertinent to the present case.

26 Ebbesson, J., Access to Justice in Environmental Matters in the EU, Kluwer Law International, The Hague, 2002, p. 29.

27 Recitals 3 and 4 of Directive 2003/35 (emphasis added).

28 Dette, B., 'The Aarhus Convention and Legislative Initiatives for its Implementation', in Ormond, T., Führ, M. and Barth, R. (eds), Environmental Law and Policy at the Turn of the 21st Century.Liber amicorum Betty Gebers, Lexxion, Berlin, 2006, p. 78.

29 Sweden and the Commission both state that only the Sveriges ornitologiska förening (Swedish ornithological association) and the Naturskyddsföreningen (association for the protection of nature) meet the requirement for 2 000 members. According to Sweden, local organisations which do not meet the requirement can always act through the two organisations which currently do have standing. I regard that approach as wholly inadequate and difficult to reconcile with the philosophy underlying the Aarhus Convention and Directive 85/337, as amended.

30 In the present case DVM is a local organisation seeking to challenge a decision which impinges on municipal area in which it is based.

31 As explained during the hearing, an organisation such as Greenpeace Sweden does not have the required standing to bring a case before the courts under the criteria set out in the Miljöbalken.

32 The Commission correctly points out that the Aarhus Convention Implementation Guide referred to above alludes overtly to Paragraph 13 of Chapter 16 of the Miljöbalken when it states that 'parties may impose requirements based on objective criteria that are not unnecessarily exclusionary. For example, one UNECE country requires environmental NGOs to have been active in that country for three years and to have at least 2 000 members. ... The membership requirement might ... be considered overly strict under the Convention'. During the hearing, counsel for Sweden was not inclined (despite my invitation) to rely on the reservation lodged by Sweden to Article 9(2) of the Aarhus Convention. That suggests to me that Sweden itself may perhaps entertain some doubts as to the lawfulness of this arrangement.

33 Joined Cases C-30/93 and C-31/93 van Schijndel and van Veen [1995] ECR I-4705, paragraph 17; Case C-29/00 Commission v Italy [2003] ECR I-14637, paragraph 25; Case C-32/05 Unibet [2007] ECR I-2271, paragraph 43; and Joined Cases C-22/05 to C-25/05 van der Weerd and Others [2007] ECR I-4233.