Access to the courts: an introduction ClientEarth's Strategic Actions Complaint against the European Investment Bank’s refusal to engage in public consultation on the review of its transport lending policy The European Investment Bank (EIB) is an EU body and so subject to an obligation under the Aarhus Convention to allow the public to participate in the adoption or review of any of its programs relating to the environment. The Green 10, a group of most important environmental NGOs in Europe, including Bankwatch, requested that the Bank organise a public consultation on the review of its transport lending policy to take into account concerns over climate change. The Bank refused to do so, arguing it did not think it was 'appropriate'. Bankwatch and ClientEarth decided to lodge a complaint against the EIB. Allowing the public to participate and comment on this transport policy is essential since the policy prioritises the modes of transport the Bank will fund in the future. Some of the Bank’s priorities, such as funding more shipping and building new airports, are likely to have negative impacts on climate. Public participation is therefore critical. The complaint has been made within the compliance mechanism of the Bank. As a result, on 21 January the Bank accepted to allow public participation in 2010 when the policy will be reviewed. Environmental NGOs will therefore be able to make comments on the transport policy of the Bank and require the Bank to ensure that the EIB no longer finances projects with high climate impacts. Complaints lodged with the Aarhus Convention Compliance Committee ClientEarth has lodged three complaints, called 'communications', with the Aarhus Convention Compliance Committee. One is against the European Community, one against the UK and another one against Germany. The three complaints allege that members of the public, individuals and NGOs, do not have an efficient access to justice, that is to the courts, to contest decisions taken either by public authorities or by private persons and that have negative impacts on the environment. The states complained of and the EC now have five months to reply to ClientEarth's complaints and to the questions asked by the Committee. Following these replies a public hearing will be held by the Committee in Geneva, allowing us to discuss the points raised in the communications with the representatives of the states concerned and the EC. We expect the Compliance Committee of the Aarhus Convention to make recommendations that request the states complained of and the EC to adopt practical and legislative measures to provide individuals and NGOs access to the courts in environmental matters. Complaint under the Aarhus Convention against the European Community for not providing access to justice to NGOs The Aarhus Convention requires its parties to provide members of the public, and therefore NGOs, access to justice. Yet it is clear that access to European courts is not currently provided to individuals and NGOs. No NGO or individual has been successful in bringing an action before the European Courts to contest a decision of one of the European institutions in an environmental matter. Effective access to justice is needed in order to ensure that members of the public have the right to judicial protection against the potential unlawful actions of the European institutions. Today, the great majority of laws and decisions in environmental matters are adopted by the European institutions, and so there is a correspondingly greater need to be able to bring cases before the European Courts against those decisions when they have a negative impact on the environment. However, neither Greenpeace nor the European Environmental Bureau (EEB), a federation of over 145 environmental citizens’ organisations based in the 27 EU Member States, nor World Wide Fund for Nature WWF-UK have been granted the right to contest decisions taken by the European Commission or the Council and which have devastating effects on the environment. A total denial of justice Greenpeace International together with local associations and residents in Gran Canaria brought an action before the European Court of First Instance on 21 December 1993 to challenge the decision of the European Commission to finance the construction of two power stations in the Canary Islands without first requiring an environmental impact assessment to be carried out. This assessment is required before constructing certain plants and power stations in order to prevent environmental damage and to mitigate the unavoidable negative impacts on the environment that such projects imply. Greenpeace and the other associations’ request was rejected not because of their legal arguments but because the court considered that as NGOs they did not fulfil the conditions to institute proceedings before a court. They were not 'individually concerned' by the decisions and could not therefore challenge them. Greenpeace and the other NGOs appealed the decision on 16 October 1995 and were also denied standing before the European Court of Justice. The EEB brought an action before the same court on 9 June 2004 to contest two decisions of the European Commission which allowed Member States to authorise the use of dangerous plant protection products named atrazine and simazine. The EEB request was also rejected on the ground that as an NGO it could not challenge a decision of the Commission of a general character. WWF-UK brought an action on 19 March 2007 to contest a European Regulation that fixes the fishing opportunities and associated conditions for certain fish stocks applicable in European waters for 2007. This regulation authorises the fishing of cod which according to scientific research is threatened with extinction by overfishing. However, once again, WWF-UK was not considered by the court as 'individually concerned' by the regulation and was therefore refused the right to contest its validity. Individuals are also denied the right to challenge decisions that have a disastrous impact on their everyday life environment. On 2 December 1995, a group of inhabitants of Tahiti went to the European Court to ask the annulment of a decision of the European Commission because this decision did not require the French government to take health and safety measures when the nuclear weapon tests were carried out in the region. The request was rejected by the court for the same reasons than the ones used against NGOs. These decisions of the European Courts result in a real denial of justice which deprives NGOs and individuals of the right to have their say on the way the environment they live in is governed. If inhabitants, citizens and environmental NGOs are not able to contest the legality of decisions in environmental matters, who will? That is why ClientEarth has made a complaint against the European Community to the Compliance Committee of the Aarhus Convention. We had the complaint signed by numerous other NGOs (Greenpeace International, Bankwatch, IFAW, Oceana, Friends of the Irish Environment, France Nature Environnement, SOS Grand Bleu, Ecologistas en Accion, Asociacion para la Justicia Ambiental, Instituto de Derecho y Medio Ambiente, NABU, Bond Beter LeefMilieu, Oekobuero). The complaint was considered as admissible and we are now waiting for the reply of the European Commission, which represents the European Community. Complaint under the Aarhus Convention against Germany In Germany, citizens and NGOs have virtually no access to the courts in relation to environmental matters. Claimants are required to fulfil conditions that are so strict that it is almost impossible for them to be able to challenge a decision before the courts. Claimants are required, among other things, to demonstrate that their own rights have been impaired by a decision before the decision can be challenged which is a very difficult task for an NGO. As a result decisions in environmental matters remain unchallengeable by the public and the authorities taking these decisions immune from judicial review. These restrictions place Germany in violation of the Aarhus Convention. In drafting its case against Germany, ClientEarth solicited the expertise of Ludwig Krämer. Mr. Krämer served as a German judge from 1969 to 2004, and was seconded as the European Commission's Chief Counsel on the environment, working at the Commission for three decades. Mr Krämer prepared the German complaint for ClientEarth, and also added his name in support of the complaint against the EU. Related Links: ClientEarth press release of 15 December 2008: Legal complaints filed against the EU, Germany and UK for breaches of international justice rules on the environment Aarhus Compliance Committee: Our communication challenging 'individual concern' standing criteria Information on supporters of the communication Letters and other supporting documents |
