Administrative Dispute against Decisions on Activities Affecting the Environment

The article presents reflections on the changes in the judicial review of environ- mental decisions needed to ensure the compliance of judicial protection with the requirements of the Aarhus Convention. The Committee and the CJEU practice show the need for a further transformation of the understanding of the legal interests of individuals and non-governmental organisations. When arranging judicial protection against the EIA consent and other decisions fall- ing under Article 6 of the Convention, plaintiff shall not be the only one who bears the burden of proof that the violation of procedural provisions has af- fected the decision. In these proceedings, as far as this is not already the case, a requirement of prior cooperation and a limitation to statements and evidence already submitted during the administrative procedure should be waived at least for non-governmental organisations. However, as abandoning the pre- clusion upsets the established balance of the various procedural instruments, some suggestions for possible changes that would again tip the scales towards greater efficiency, are made. The author emphasises that persons belonging to the public concerned (under any of the sectoral rules) should have access to ju- dicial protection against all decisions that constitute an EIA decision on activi- ties affecting the environment and determines some inconsistencies regarding access to justice against preliminary ruling decisions. It concludes with a rec- ommendation for enaction of an exceptionally ex-post environmental impact assessment to establish a possibility to remedy the breach of EU law.

Key words: Aarhus Convention, access to justice, administrative decision on activities affecting the environment, preclusion, public concerned, environmental decision-making.