Judicial Protection against Plans and Programmes Affecting the Environment: A Backdoor Solution to Get an Answer from Luxembourg

Abstract

Despite the importance of access to justice in the context of plans and programmes affecting the environment, no single EU secondary law measure requires Member States to ensure effective judicial protection against such acts, and thus access to the preliminary reference procedure. At national level, this could lead to the absence of procedures to ensure effective judicial protection against plans and programmes. The Netherlands is used in this contribution as an example of the presence of such a lacuna. We argue that the lack of effective judicial protection against plans and programmes affecting the environment is in breach of both the Aarhus Convention and EU law. The duty to reconsider definitive acts, as established under the case law of the Court of Justice of the European Union, can serve as a short-term solution to offer effective judicial protection by the backdoor.