Held, (1) the purpose of article 9(2) of the Aarhus Convention was not to confer a right to bring an action against decisions or acts which fell within the scope of article 6 on the “public” in general, as referred to in article 2(4), but only to members of the “public concerned” who met certain conditions. Further, the provisions on the right to information under article 6 were intended solely to set out the specific conditions of the participation procedure, and not to define the scope of the right of the public to participate. Accordingly, subject to findings of fact to be made by the referring court, a person such as the first applicant, who was not part of the “public concerned” within the meaning of the Convention, could not rely on an infringement of article 9(2) on the ground that she did not have access to justice. However, the access to justice of such a person would be subject to a different regime if a member state’s national law granted the public a more extensive right to participate in the decision-making procedure. In that case, legal actions brought under those measures would fall within the scope of article 9(3) of the Convention. It followed from the review procedures referred to in article 9(3) which could be subject to “criteria”, that member states could establish conditions that had to be satisfied in order to be able to pursue such review procedures. Accordingly, article 9(3) of the Aarhus Convention did not permit parties to the Convention to deny members of the public access to justice for the purposes of relying on more extensive rights to participate in the decision-making procedure which could be conferred on them solely by the national environmental law of a member state (judgment paras 36, 42, 45–49, 51, 52, operative part, para 1).

Members of the “public concerned” within the meaning of the Aarhus Convention had to be able to bring a legal action against the acts referred to in article 9(2), whatever role they might have played in the examination of the application. The parties to the Convention could not, therefore, make such an action inadmissible on the ground that the applicant had participated in the decision-making procedure of the contested decision and was able to put forward his or her point of view on that occasion. Since participation in an environmental decision-making procedure under the conditions laid down in the Convention was separate from the exercise of a legal review and had a different purpose, such participation had no effect on the conditions for access to that review. Further, under article 9(2), non-governmental organisations which satisfied the conditions set out in article 2(5) were to be regarded as having either a sufficient interest or rights capable of being impaired. The objective of ensuring “wide access to justice” provided for by article 9(2) would not be satisfied by legislation which made the admissibility of an action brought by a non-governmental organisation conditional on the role it might or might not have played during the participatory phase of the decision-making procedure, even though that phase did not have the same purpose as the exercise of judicial proceedings. It followed that article 9(2) of the Aarhus Convention precluded the admissibility of the judicial proceedings to which it referred, brought by non-governmental organisations which were part of the “public concerned” referred to in article 2(5), from being made subject to their participation in the decision-making procedure which led to the adoption of the contested decision. The fact that, under the national law in issue, that condition would not apply where those organisations could not reasonably be criticised for not having participated in that procedure, did not justify a different solution. The solution would, however, be different if those proceedings were brought by a member of the “public” on the basis of more extensive rights to participate, conferred solely by the national environmental law of a member state, in which case it would be necessary to apply article 9(3) of the Aarhus Convention, which provided a more flexible framework. Since, according to previous authority of the Court of Justice, article 9(3) did not preclude the admissibility of the actions to which it referred from being made subject to the condition that the applicant had submitted her objections in good time, such a condition could be justified in accordance with article 52(1) of the Charter of Fundamental Rights of the European Union, to the extent that it was provided for by law, respected the essence of that law, was necessary, subject to the principle of proportionality, and it met objectives of the public interest or the need to protect the rights and freedoms of others. It was apparent that those conditions were satisfied in the present case (judgment paras 55–59, 60–65, 69, operative part, para 2).