Last Updated on July 2, 2021 by LawEuro
Information Note on the Court’s case-law 253
July 2021
Association Burestop 55 and Others v. France – 56176/18
Judgment 1.7.2021 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Environmental NGO denied locus standi to contest the accuracy of information on the management of radioactive waste communicated by a public agency: violation
Article 10
Article 10-1
Freedom to receive information
Effective review by the courts of the content and quality of information on the management of radioactive waste communicated by a public agency in line with its legal obligation to provide information: Article 10 applicable; no violation
Facts – The applicant associations were six environmental protection associations opposed to a planned industrial geological storage centre (hereafter “the project”) designed to store, in deep geological repositories on a given site, high-level and long-life radioactive waste produced by all the French nuclear installations and by the processing of fuels used in power stations.
In its consolidated report on the geothermal study based on the results of drilling on the site in question, ANDRA, a public agency, pointed out that the geothermal resources present in the transposition zone were low-level and that there was therefore no risk of hazardous drilling after the burial of the radioactive waste there had been forgotten. The applicant associations sent a letter asking ANDRA, in vain, to acknowledge that by providing the aforementioned information it had disseminated erroneous and dishonest scientific and technological information and had therefore committed an offence, in breach of its legal obligation to provide information.
The applicant associations brought proceedings against ANDRA with the Regional Court seeking compensation for the damage caused by its failure to honour its obligation to inform the public. The court declared the application by one of the associations inadmissible for lack of locus standi. The applications submitted by five other applicant associations were examined on the merits and dismissed.
Law – Article 6 § 1:
1. Applicability
The proceedings brought by the applicant associations before the domestic court had been aimed at seeking compensation for the damage resulting from what they saw as wrongful implementation of the public information mission assigned to ANDRA under Article L. 542-12 7o of the Environmental Code. Thus, as in the case of Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox v. France (dec.), their claims had been centred on the issue of the right to information and involvement in the decision-making process in the environmental sphere. It followed that even though their “contestation” indisputably had the aim of protecting the public interest, it also concerned a “right” of a “civil” nature which was recognised under domestic law and to which the applicant associations could lay claim.
Furthermore, even though the applicant associations had acted together before the domestic courts, they had each lodged their own claim for compensation for the non-pecuniary damage which they had sustained from the fact that ANDRA had communicated erroneous information. That confirmed that their intention had been to defend their own right to information.
The seriousness of the “contestation” in the present case can be inferred from the substance of the arguments concerning the breach of that right set forth by the applicant associations in their appeals and from the reasoning of the domestic court in rejecting those pleas. Lastly, the proceedings brought by the applicant associations seeking compensation for the damage they had allegedly sustained on account of the violation of the right to information and involvement in the decision-making process in the environmental sphere had been directly decisive vis-à-vis that right.
Conclusion: Article 6 § 1 applicable.
2. Merits
Where Article 6 § 1 is applicable it constitutes a lex specialis in relation to Article 13.
Again, in cases where Article 6 § 1 applies, the decision to declare the action lodged by the association MIRABEL-LNE with the domestic courts inadmissible for lack of locus standi raised an issue with regard to the right of access to a tribunal as secured under that provision.
In justifying the decision to declare the applicant association’s action inadmissible, the Government referred back to the conditions governing access to the courts by associations seeking to uphold the collective interests which they endeavoured to protect. In that regard, the condition of principle, compliance with which had been scrutinised by the Court of Appeal, concerned a correlation between the applicant association’s statutory aim and the collective interests which it was seeking to defend in court. The Government took the view that such a restriction was geared to preventing excessive workloads in the courts and possible abuse by the associations, such as using the right of access to justice for profit.
The Court did not question the legitimacy of such aims. However, the action which the association MIRABEL‑LNE had sought to lodge with the court had concerned, in particular, the examination of a dispute (“contestation”) on a civil right to which it could lay claim, that is the right to information on and involvement in the environmental sphere. Therefore, that action had also been aimed at protecting MIRABEL-LNE’s own interests. The Government, which had argued exclusively from the viewpoint that associations were responsible for defending collective interests, supplied no information in support of the fact that the refusal to examine a contestation on such a right had, in the circumstances of the case, pursued a legitimate aim and had been proportionate to that aim.
Moreover, the Court of Appeal had, firstly, failed to take account of the fact that the association was officially approved under Article L. 141-1 of the Environmental Code. As the Government acknowledged, such approval had, in principle, conferred locus standi on it, because such associations “[could] exercise the rights granted to parties to civil proceedings as regards facts causing direct or indirect damage to the collective interests which they were endeavouring to defend and amounting to an infringement of legislative provisions on the protection of nature and the environment … or aimed at combating pollution and other deteriorations, or ensuring nuclear safety and radiation protection … as well as the instruments enacted to implement them”. Secondly, the Court of Appeal had concluded that unlike the other applicant associations, its statutory aim had not specifically included combating the environmental and health hazards of the nuclear industry and the related activities and development projects or informing the public about the dangers of burying radioactive waste, but had had a broader wording to the effect that it was aimed at protecting the environment. Nevertheless, that approach was unacceptable. Indeed, on the one hand, it amounted to drawing a distinction between protecting against nuclear risks and protecting the environment, even though it was clear that the former was an integral part of the latter. On the other hand, the chosen interpretation of the applicant association’s statutes had the effect of excessively limiting the scope of its social aim, and in fact at the material time Article 2 of its statutes had covered the prevention of “technological hazards”.
The appellate court’s conclusion as upheld by the Court of Cassation, which had imposed a disproportionate restriction on the right of access to a tribunal, was therefore manifestly unreasonable.
Conclusion: violation in the case of the MIRABEL-LNE association (unanimous).
Article 10:
1. Applicability
Article 10 did provided for no general right of access to information held by the State, but only guaranteed, to some extent and under certain conditions, a right of access to such information and an obligation on the public authorities to communicate it, according to the Magyar Helsinki Bizottság v. Hungary judgment [GC]. The principles set out in that judgment applied whether or not the authorities had rejected a request for information.
Clearly, since the right to receive information did not impose on States any positive obligations regarding the collection and dissemination of information proprio motu, it was mainly in the event that a request for access to information was rejected by the authorities of a given State that an issue was likely to arise under Article 10. A State could, however, undertake to collect and/or communicate information proprio motu.
In the present case, domestic law required ANDRA, a public agency, to provide the public with information on the management of radioactive waste. That obligation included informing the public proprio motu of developments in the project, particularly having regard to the geothermal potential of the site.
That being so, the circumstances of the present case come under the second branch of the alternative set out in the judgment in the case of Magyar Helsinki Bizottság, stating that a right of access to information held by a public authority and an obligation on the State to communicate it could arise under Article 10 where access to the information in question is decisive for the individual’s exercise of his right to freedom of expression, in particular the freedom to receive and impart information, and that refusing such access amounted to an interference with the exercise of the said right.
The question whether and to what extent a refusal to provide access to information constituted an interference with an applicant’s exercise of the right to freedom of expression had to be assessed on a case-by-case basis in the light of the specific circumstances of the case and in accordance with the following criteria: (1) the aim of the request for information; (2) the nature of the information sought; (3) the role played by the applicant; and (4) the current availability of the information.
The same should apply where the alleged interference did not result from a refusal to provide access to information, but, as in the present case, from the alleged dishonesty, inaccuracy or inadequacy of information supplied by a public authority under an obligation to provide information prescribed by domestic law, which was akin to a refusal to provide information.
As regards the first of the four criteria, in line with their social aim the applicant associations were endeavouring to inform the general public about the environmental and health hazards of the project in question. The impugned information, which concerned precisely those risks and hazards, were thus directly related to their freedom to impart information.
As for the second criterion, the impugned information directly concerned the debate on the environmental and health risks posed by the project, which involved delivering, handling and burying in situ large quantities of high-level and long-life radioactive waste, which posed a major risk to public health and the environment. The project was therefore a matter of public interest.
In connection with the third criterion, the applicant associations played the role of “public watchdog”, drawing public attention to subjects of public interest, but also calling on the authorities to promote the provision of public information on such topics. Moreover, under domestic law, the applicant associations had been officially approved for their work in the environmental protection field.
As regards the fourth criterion, the impugned information had been available.
Conclusion: Article 10 applicable
2. Merits
Access to review of the information in question was especially important where it concerned a project that posed a major environmental threat. That applied particularly to nuclear risks, which, if they materialised, could affect several successive generations. There was a direct link between the geothermal potential of the site which had been the subject of the impugned communication from ANDRA and the nuclear risk posed by the project. Indeed, it transpires from the safety guide on the permanent storage of radioactive waste in deep geological depositories written by the nuclear safety authority that sites with geothermal potential were inappropriate for that purpose, because they were liable to attract test drilling for geothermal purposes once the burial of the radioactive waste there had been forgotten.
In the present case the applicant associations had brought civil proceedings against ANDRA seeking compensation for the damage resulting from its failure to honour its obligation to inform the public. While their action had been declared inadmissible at first instance, it had been declared admissible on appeal inasmuch as it had been brought by the five applicant associations.
Following adversarial proceedings in which the five applicant associations had been able fully to plead their case, the Court of Appeal concluded that no negligence had been committed.
The Court of Appeal first of all ruled that ANDRA had rightly argued that the results of its work had been corroborated by all its institutional partners, meaning the opinions of the nuclear safety authority, the Institute for radiation protection and nuclear safety and the national evaluation committee.
The Court of Appeal further considered that the divergence of opinion on the technical aspects discussed had been insufficient in itself to conclude that ANDRA had been incompetent, negligent or biased in the position which it had put forward, and that the fact of issuing, in the wake of in-depth studies, conclusions favourable to the installation of Cigéo could not be wrongful per se.
The applicant associations concerned had been able to lodge an appeal on points of law against the judgment of the Court of Appeal. The Court of Cassation ruled that the Court of Appeal had given proper legal reasons for its decision.
The Court deduced from all the foregoing considerations that five of the six applicant associations had been able to lodge appeals with the domestic courts such that, in the framework of fully adversarial proceedings, they had secured effective review of ANDRA’s compliance with its legal obligation to provide the public with information on the management of radioactive waste and of the content and quality of the information communicated by ANDRA concerning the geothermal potential of the Bure site. The reasoning of the appellate court’s judgment had not in fact been beyond criticism. The Court considered that it would have been better if the appellate judges had more fully substantiated their reply to the applicant associations’ contestation of the reliability of the information set out in ANDRA’s consolidated report of 21 July 2009 concerning the low level of the geothermal resources in the area in question. However, that was insufficient to cast doubt on the finding that the five aforementioned associations had had access to a remedy that met the requirements of Article 10.
Conclusion: no violation in respect of the five associations (unanimous).
As regards the association MIRABEL-LNE, the fact that its action had been declared inadmissible by the Court of Appeal had amounted to a violation of Article 6 § 1. Consequently, it was unnecessary to consider whether that circumstance constituted a breach by that court of the procedural limb of Article 10.
Article 41: EUR 3,000 in respect of non-pecuniary damage for the association MIRABEL-LNE.
(See also Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox Mox v. France (dec.), 75218/01, 28 March 2006 ; Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Legal summary)
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