E-13/24 Friends of Earth Norway and Young Friends of the Earth Norway
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Deadlines: Motivation ministry: 12 June 2024 Written observations: 24 July 2024
Keywords: overriding public interest; balancing of interests
Subject: - Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community Action in the field of water policy: articles 2, 4, 13 - Decision of the EEA Joint Committee No 125/2007 of 28 September 2007. - Agreement on the European Economic Area: article 129. - Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora: article 6.
Facts of the case: This case concerns the legality of four permits granted by the Norwegian authorities, authorizing a mining company permission to operate a mine and conduct submarine tailings disposal. The submarine tailings disposal will lead to a deterioration of the water status in the surface water contrary to Directive 2000/60/EC. Two Norwegian NGOs took legal action against the Norwegian Government disputing the legality of these permits. The Norwegian government claims that the permits, in addition to economic justifications, can be justified based on employment effects, global supply of rutile and ensuring Norway’s and Europe’s access to critical materials. The request seeks clarification on the interpretation of overriding public reasons under Article 4(7)(c) of Directive 2000/60/EC. The parties disagree about whether “overriding public interest” calls for a balancing of interests between the advantages of a project causing a deterioration in the status of a water body and its negative impact on the water body. Furthermore, the parties disagree as to whether certain justifications that have been invoked may constitute “reasons of overriding public interest” under the Directive.
Request for an advisory opinion: 1. What is the legal test when determining whether there is an "overriding public interest" within the meaning of Article 4(7)(c) of Directive 2000/60/EC? a. Is a qualified preponderance of interest required and/or are only particularly important public interests relevant? b. What will be key factors in the assessment of whether the public interests that justify the measure are "overriding"? 2. Can the following economic considerations constitute an "overriding public interest" under Article 4(7)(c) of Directive 2000/60/EC, and if so, under what conditions? a. Purely economic considerations (i.e. the expected gross income generated by the planned mining operations) b. That a private undertaking will generate income for shareholders c. That a private undertaking will generate tax revenue for the state and municipality d. That a private undertaking will provide wage income for employees 3. Can the following considerations constitute an "overriding public interest" under Article 4(7)(c) of Directive 2000/60/EC, and if so, under what conditions? a. That a private undertaking will generate employment effects (increased local business activity, employment and settlement) b. Global supply of rutile c. Ensuring Norway and Europe access to critical minerals
Cited (recent) case-law: C-32/05, Commission v Luxembourg; C-461/13, Bund für Umwelt und Naturschutz Deutschland; C-346/14, Commission v Austria; C-525/20, Association France Nature Environment; C-535/18, Land Nordrhein-Westfalen; E-1/04, Fokus Bank; C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others; C-404/09, Commission v Spain; C-182/10, Solvay and Others. Policy Area: IenW
