The ECHR ruling of July 01, 2021 in the case "Association BURESTOP 55 and Others v. France" (complaint No. 56176/18 and 5 other complaints).
In 2018, the applicant companies were assisted in the preparation of the complaint. Subsequently, the complaints were combined and communicated to France.
In the case, complaints were successfully considered about the refusal of non-governmental environmental organizations to determine locus standi to appeal the reliability of information on the management of radioactive waste reported by a public agency. There was a violation of article 6, paragraph 1, of the Convention in the case.
CIRCUMSTANCES OF THE CASE
The applicants in the present case are six environmental protection associations opposing the project to build an industrial geological storage center (hereinafter referred to as the project) intended for storing highly toxic and long-term decay radioactive waste produced by all nuclear installations in France, as well as generated as a result of the processing of fuel used at power plants.
In its consolidated report on geothermal research based on the results of drilling in the mentioned territory, the French National Agency for Radioactive Waste Management (hereinafter referred to as the agency) noted that since the geothermal resources on this plot of land were very deep, there was no risk of accidental drilling after the radioactive burial would have been mothballed. The applicant associations sent a letter to the agency, demanding (unsuccessfully) to admit that by providing this information, the agency disseminated incorrect and unreliable scientific and technological information and, consequently, committed a crime in violation of its legal obligation to provide information.
The applicant associations filed a case against the agency in the Tribunal of the Grand Instance of Nanterre (France), demanding compensation for damage caused by the agency's inability to fulfill its duty to inform the public. The Court declared the complaint of one of the associations inadmissible for consideration on the merits due to the absence of locus standi. The complaints of the other five applicant associations were considered on the merits and rejected.
Regarding compliance with paragraph 1 of article 6 of the Convention.
(a) Applicability. The proceedings initiated by the applicant associations in the French District Court were aimed at obtaining compensation for damage caused by the fact that they considered improper fulfillment of the obligation to inform the public assigned to the agency by article 152.12 7o of the Environmental Code. Thus, as indicated in the Decision of the European Court of Justice in the case "National Group of Information and Counteraction to the Melox Plant - Group "No to the Melox Plant and Mixed Oxide Fuel" v. France" (Collectif national d'information et d'opposition l'usine Melox - Collectif Stop Melox and MOX v. France) (See.: The decision of the European Court of Justice in the case "National Group of Information and Counteraction to the Melox plant - Group "No to the Melox plant and mixed oxide Fuel" v. France" (Collectif national d'information et d'opposition l'usine Melox - Collectif Stop Melox and MOX v. France) of March 28, 2006, complaint No. 75218/01), their demands focused on issues related to the right to information and participation in the decision-making process in the field of environmental protection. Consequently, even if their "appeal" was undoubtedly intended to protect the public interest, it also concerned a "right" of a "civil" nature, which was recognized by French law and with which the applicant associations could link their claims.
In addition, despite the fact that the applicant associations acted jointly in the French courts, each of them filed a separate claim for compensation for moral damage caused by the fact that the agency provided incorrect information. This circumstance confirmed that the applicant associations wanted to protect their own right to information.
The seriousness of the "appeal" in the present case follows from the essence of the arguments concerning the violation of this right and stated by the applicant associations in their observations, as well as from the arguments of the French courts cited in the decisions rejecting the said complaints. In conclusion, the proceedings initiated by the applicant associations for compensation for damage allegedly caused to them as a result of violation of the right to information and participation in the decision-making process in the field of environmental protection were directly decisive vis-vis to this right.
The provisions of article 6, paragraph 1, of the Convention are applicable to the present case.
(b) The substance of the complaint. If paragraph 1 of article 6 of the Convention is applicable to the case, it is lex specialis in relation to article 13 of the Convention.
Moreover, if paragraph 1 of article 6 of the Convention is applicable to the case, the decision to declare the MIRABEL-LNE association's claim filed with the French courts inadmissible for consideration on the merits due to the absence of locus standi raised the issue of the right of access to the court guaranteed by this provision of the Convention.
Justifying the decision to declare the applicant association's claim inadmissible for consideration on the merits, the French authorities referred to the conditions of access to the court for associations seeking protection of the collective interests they are called upon to protect. At the same time, the principal condition, compliance with which was checked by the Court of Appeal, concerned the relationship between the statutory purpose of the applicant association and the collective interests that she wanted to protect in court. The French authorities believed that this restriction was intended to prevent the creation of an excessive burden on the courts and possible abuses by associations, such as the use of the right to appeal to the court for profit.
The European Court did not question the legality of these goals. However, the lawsuit that the MIRABEL-LNE association wanted to file with the court concerned, in particular, the consideration of the dispute ("appeal") on the issue of civil law, in respect of which she could make a claim, that is, the right to information and participation in environmental protection activities. Consequently, the lawsuit was also aimed at protecting the MIRABEL-LNE association's own interests. The French authorities, who made extensive arguments that the associations were responsible for the protection of collective interests, did not provide any information to confirm the fact that the refusal to consider a complaint regarding such a right in the circumstances of the case pursued a legitimate purpose and was proportionate to it.
Moreover, the Court of Appeal, firstly, did not take into account the fact that the association was officially approved in accordance with article L.141-1 of the Environmental Code. As recognized by the French authorities, such a statement in principle provided locus standi, since these associations "[could] exercise the rights granted to the parties in civil proceedings in respect of facts causing direct or indirect damage to the collective interests that the associations are designed to protect, and are a violation of the law on the protection of nature and the environment... or on combating environmental pollution and other violations, or on ensuring nuclear safety and radioactive protection... and also constitute a violation of the methods of application of these norms of law." In addition, the Law of June 13, 2006 explicitly extended the interest in the actions of approved environmental protection associations to disputes concerning facts that constitute a violation. Secondly, the Court of Appeal concluded that, unlike other applicant associations, the list of statutory goals of the MIRABEL-LNE association did not include combating threats to the environment and human health in the nuclear industry and related fields of activity, participation in development projects or informing the public about the risks of radioactive burials. These goals were formulated in general terms related to the purpose of environmental protection. However, such an approach is unacceptable. Indeed, on the one hand, he drew a distinction between protection from nuclear risks and environmental protection, while it was obvious that the first mentioned element was part of the latter. On the other hand, the chosen way of interpreting the charter of the applicant association effectively limited the social purpose of the organization, although at the time under review article 2 of the charter of the association extended to the prevention of "technological threats".
Thus, the conclusion of the Court of Appeal, left unchanged by the French Court of Cassation, which disproportionately restricted the right of access to the court, was clearly unfounded.
In the case, there was a violation of paragraph 1 of article 6 of the Convention in respect of the applicant association MIRABEL-LINE (adopted unanimously).
Regarding compliance with article 10 of the Convention.
(a) Applicability. Article 10 of the Convention does not provide for a general right of access to information available to the State, but only guarantees - to some extent and subject to certain conditions - the right of access to such information and the obligation of public authorities to disseminate this information, as stated in the Ruling of the Grand Chamber of the European Court of Justice in the case "Hungarian Association of Internet Providers -content and company Index.hu Zrt against Hungary" (Magyar Tartalomszolg ltat k Egyes lete and Index.hu Zrt v. Hungary) (See: Ruling of the Grand Chamber of the European Court of Justice in the case "Hungarian Association of Internet Content Providers and Company Index.hu Zrt vs Hungary" (Magyar Tartalomszolg ltat k Egyes lete and Index.hu Zrt v. Hungary) of February 2, 2016, complaint No. 22947/13 // Precedents of the European Court of Justice on human rights. 2016. N 6). The principles set out in this case apply regardless of whether the authorities of the respondent State rejected the request for information or not.
Obviously, since the right to receive information does not impose any positive obligation on the States parties to the Convention regarding the collection and dissemination of information proprio motu, it is usually in the case of rejection by the authorities of a particular State of the request for access to information that the question of a violation of article 10 of the Convention arises. At the same time, the State could collect and/or disseminate information proprio motu.
In the present case, French law required the agency, a public body, to provide the public with information on the management of radioactive waste disposal. This commitment included informing the public proprio motu about the progress of the above-mentioned project, especially regarding the geothermal potential of the land plot.
Thus, the circumstances of the present case fall within the scope of the second section of the alternative version of events set out in the above-mentioned Ruling of the Grand Chamber of the European Court of Justice in the case "Hungarian Association of Internet Content Providers and Company Index.hu Zrt vs Hungary" (Magyar Tartalomszolg ltat k Egyes lete and Index.hu Zrt v. Hungary), which states that the right of access to information held by a public authority and the obligation of the State to disseminate this information may arise under article 10 of the Convention if access to this information is crucial for the exercise by individuals of their right to freedom of expression, in particular the freedom to receive and disseminate information, and also that the denial of such access is an interference with the exercise of this right.
The question of whether the refusal to provide access to information interfered with the applicant's exercise of the right to freedom of expression and, if so, to what extent, should be assessed in each case separately in the light of the special circumstances of the case and in accordance with the following criteria: (1) the purpose of the information request; (2) the nature of the information requested; (3) the role of applicants in this process; (4) availability of information at a specific moment.
The same criteria should be applied if the alleged interference follows not from a refusal to provide information, but, as in the present case, from the alleged inaccuracy, inaccuracy or inadequacy of the information provided by a public authority in accordance with the relevant obligation imposed on it by the legislation of the respondent State, which was equivalent to a refusal to provide.
Regarding the first of the four criteria mentioned, the applicant associations, in accordance with their social goals, sought to inform the public about the danger of the project under consideration for the environment and human health. Thus, the contested information about these risks and dangers directly affected the freedom of the applicant associations to disseminate information.
As for the second criterion, the contested information was directly related to disputes about the risks that the project posed to the environment and human health, which included the delivery, unloading and disposal of large volumes of highly toxic and long-term decay of radioactive waste, which posed a serious threat to the environment and human health. Consequently, the project pursued public interest.
With regard to the third criterion, the applicant associations played the role of public "watchdogs", drawing people's attention to issues of public interest, as well as calling on the French authorities to facilitate the provision of information on these issues. Moreover, according to French legislation, the applicant associations had an official permit to operate in the field of environmental protection.
As for the fourth criterion, the information being appealed was available.
The provisions of article 10 of the Convention are applicable to the present case.
(b) The substance of the complaint. Access to the review of the mentioned information is especially important if we are talking about a project that posed a serious danger to the environment. This reasoning is particularly applicable to the risks associated with the nuclear sphere of activity, since if implemented, they can cause damage to several generations of the country's residents. There was a direct link between the geothermal potential of the land plot, which was the subject of the contested information message from the agency, and the nuclear risks of the project. Indeed, from the manual on the safety of permanent disposal of radioactive waste in deep geological repositories, prepared by the Nuclear Safety Service, it followed that sites with geothermal potential were not suitable for this purpose, since they could become a place for trial drilling for geothermal research purposes after the disposal of radioactive waste was forgotten.
In the present case, the applicant associations have initiated civil proceedings against the agency, claiming compensation for damage caused by the agency's failure to fulfill its duty to inform the public. Although in the court of first instance the complaints of the applicant associations were declared inadmissible for consideration on the merits, in the Court of appeal the complaints of five of them were declared admissible for consideration on the merits.
After an adversarial process, during which the five applicant associations had an effective opportunity to defend their complaints, the Court of Appeal concluded that there had been no negligence.
The Court of Appeal first of all pointed out that the agency had correctly reported that the results of its work had been confirmed by all its international partners, including the opinions of the Nuclear Safety Service, the Institute for Radioactive Protection and Nuclear Safety and the national evaluation committee.
The Court of Appeal also found that the differences of opinion on the technical issues discussed were not enough to recognize that the agency had shown incompetence, negligence or bias in relation to the position expressed by it, and the fact that conclusions in favor of creating a deep geological burial center could not be considered wrong in itself before the start of in-depth studies.
The applicant associations had the opportunity to file a complaint on issues of the right to the decision of the Court of Appeal. The French Court of Cassation ruled that the Court of Appeal had duly legally justified its decision.
Based on the above, the European Court concluded that five of the six applicant associations had the opportunity to file complaints with the French courts in such a way that, during a comprehensive adversarial trial, they were provided with an effective consideration of the agency's compliance with the statutory obligation to inform the public about the management of radioactive waste disposal, as well as about the content and quality of information provided by the agency regarding the geothermal potential of the site in the commune of Bure. In fact, the reasoning of the Court of Appeal could deserve criticism. The European Court noted that it would have been better if the judges of the Court of Appeal had justified in more detail their response to the observations of the applicant associations regarding the reliability of the information set out in the agency's consolidated report of July 21, 2009 in part concerning the low geothermal potential at the site in question. However, this was not enough to cast doubt on the conclusion that the five applicant associations mentioned had access to a remedy that met the requirements of article 10 of the Convention.
In the case, there was no violation of article 10 of the Convention in respect of five applicant associations (adopted unanimously).
As for the MIRABEL-LNE association, the fact that its claim was declared inadmissible on the merits by the Court of Appeal was a violation of article 6, paragraph 1, of the Convention. Consequently, there was no need to consider whether the circumstances of the case were also a violation by the Court of Appeal of article 10 of the Convention in its procedural and legal aspect.
In the application of article 41 of the Convention. The European Court awarded the applicant association MIRABEL-LNE 3,000 euros in compensation for moral damage.