The Court of Justice of the EU confirms environmental NGOs can challenge forest management plans

Legal analysis by Ewa Dąbrowska, Lawyer, Environmental Democracy

Case C-432/21 European Commission vs. Republic of Poland

In an infringement case against Poland, the CJEU ruled on March 2nd 2023 that environmental NGOs should be able to challenge forests management plans before national courts. The Court’s decision - a welcome confirmation of access to justice rights - also raises some interesting issues in terms of the delimitation between Article 9(2) and 9(3) Aarhus Convention.

Background

The European Commission brought a case against Poland in July 2021 after receiving complaints from several environmental organizations, who emphasized the urgent need for a real change in the management of public forests. The Commission argued that Polish law, specifically the Law on Forests, does not comply with EU biodiversity conservation laws, that is the Habitats and Birds Directives. More importantly for the purposes of this analysis, the Commission also accused Poland of not allowing the public concerned to challenge forest management plans in court.

The inability of environmental NGOs to challenge forest management plans had become apparent following the Polish government’s 2016 decision to increase logging in Białowieża, Europe’s last primaeval forest. The Polish courts held that a forest management plan, and its subsequent approval by the Ministry of Climate and Environment, are “internal administrative acts” and as such could not be challenged in court. The logging was only halted after the CJEU issued an interim order in 2017.

The judgement

The Court recalled that under Polish law, a forest management plan is defined as "the basic forest management document" prepared for a specific site, containing a description and an assessment of the state of the forest and the objectives, tasks and methods of forest management’ (Article 6(1)(6) of the Law on Forests) and is approved by the Minister of Environment (Article 22(1).

Then, the Court assessed the plan in light of the Habitats Directive and came to the conclusion that forest management plans fall within Article 6(3) as ‘any plan or project not directly connected with or necessary to the management of [a Natura 2000 site] but likely to have a significant effect thereon’ (par. 171). Therefore, a forest management plan constitutes “a decision on activities which may have a significant effect on the environment” under Article 6(1)(b) of Aarhus Convention (par. 172) and therefore falls within the scope of Article 9(2) of Aarhus Convention, which provides “members of the public concerned”, including environmental organisations, with wide access to justice (par. 176).

In other words, according to the CJEU, EU law imposes an obligation on Member States to ensure that environmental organisations are able to apply to a court for effective review of forest management plans that cover or significantly impact Natura 2000 sites.

Comment

Article 9(2) & 9(3) Aarhus Convention

Whereas the judgment should be welcomed as finally clarifying the long-awaited issue of lack of access to justice in regard to forest management plans in Poland, its legal grounds raise some interesting issues under the Aarhus Convention, possibly resulting in far reaching consequences.

As the Court observed, forest management plans, even though they are called “plans” which typically fall under the scope of Article 9(3) of Aarhus Convention, in some cases can also fall under Article 9(2) of the Convention. This is especially the case when such a plan has a significant environmental impact, for example on a Natura 2000 site. In such cases, as the Court confirmed, the approval of a forest management plan done by the Minister of the Environment is to be considered as “a decision” under Article 6(1)(b) of Aarhus Convention, which subsequently triggers the right to judicial review under Article 9(2) of the Convention.

The Court reaffirmed therefore that forest management plans cannot be treated as “internal administrative acts”, but quite the opposite – as acts that might significantly impact the wildlife protected under Birds and Habitats Directives and accordingly require public participation and the possibility to be challenged by the members of the public concerned, inter alia, environmental organisations.

However, despite this strong affirmation of access to justice rights by the CJEU, it is worth also keeping in mind that there may be forests management plans, which do not impact Natura 2000 sites and therefore do not fall within the scope of Article 9(2) of Aarhus Convention. These plans were not analysed by the Court in this case but would still have to be considered as challengeable under Article 9(3) of the Conventions, if they contravene other national law related to environment, such as the Polish Law on Forests.

For these reasons, ClientEarth’s 2017 communication to the Aarhus Compliance Committee in relation to Polish forest management plans, alleges the lack of proper implementation of Article 9(3) AC, not Article 9(2). Case ACCC/C/2017/154 was declared admissible and is currently pending before the Committee.

Implementation of the judgement

In Poland, hopes are high after the recent parliamentary elections that took place in autumn 2023. The new government has already taken some visible steps indicating the change of narrative around forests: the new Minister of Climate and Environment visited Białowieża, where she spent hours with nature conservationists exploring the primal forest and announcing afterwards the necessity to adopt “Constitution for the Białowieża forest”. The Minister also temporarily suspended logging of some of the most valuable forest areas in Poland. The new government also made some changes in the management of the State Forest, appointing people experienced in nature protection.

While all these recent developments are promising, the environmental organisations and activists look forward to and await or legal amendments that would properly implement access to justice rights in relation to forest management plans in Poland.