Official Journal of the European Union

C 141/26

(Case C-115/09)

2009/C 141/46

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen e.V.

Defendant: Bezirksregierung Arnsberg

Intervener: Trianel Kohlekraftwerk Lünen GmbH &Co. KG

Questions referred

1.Does Article 10a of Directive 85/337/EEC (1) as amended by Directive 2003/35/EC (2) require that non-governmental organisations seeking access to the courts of a Member State in which administrative procedural law requires an applicant to maintain the impairment of a right may maintain the impairment of all environmental provisions relevant to the approval of a project, that is, also such provisions which are intended to serve the interests of the general public alone and not, at least in addition, to protect the legal interests of individuals?

2.In the case that Question 1 is not answered unreservedly in the affirmative: Does Article 10a of Directive 85/337/EEC as amended by Directive 2003/35/EC require that non-governmental organisations seeking access to the courts of a Member State in which administrative procedural law requires an applicant to maintain the impairment of a right may maintain the impairment of such environmental provisions relevant to the approval of a project which derive directly from Community law or transpose Community environmental legislation into domestic law, that is, also such provisions which are intended to serve the interests of the general public alone and not, at least in addition, to protect the legal interests of individuals?

(a) In the case that Question 2 is answered, in principle, in the affirmative: Must provisions of Community environmental legislation satisfy specific material requirements to be capable of forming the basis for a challenge?

(b) In the case that Question 2(a) is answered in the affirmative: What are the material requirements (for example, direct effect, protective purpose or objective) concerned?

3. In the case that Question 1 or Question 2 is answered in the affirmative: Are non-governmental organisations entitled directly on the basis of the directive to such right of access to the courts which exceeds provision made under national law?

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ L 175, 5.7.1985 pp 40-48).

(2) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC on the assessment of the effects of certain public and private projects on the environment — explanation of the Commission (OJ L156, 25.6.2003 pp 17-25).