Access to the courts: an introduction ClientEarth's Strategic Actions 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 three cases have been successful as the committee ruled in our favour and adopted recommendations requiring the EU and the UK to make the relevant changes to provide access to justice in accordance with the Convention. The Committee has not adopted its decision in the case against Germany yet, however, the German Court has already changed its position and granted standing to sue to an NGO following a decision of the Court of Justice of the EU in a referral for a preliminary ruling. 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 case was a success since the Committee considered that the Courts had to change their jurisprudence to allow the public to access to the EU courts otherwise the EU would violate the Convention. Read the decision of the committee The Commission representing the EU in the case rejected the draft findings of the Committee arguing that access to justice was provided in compliance with the Convention and that therefore nothing needed to be altered even though no NGO or individual has ever had standing to sue an institution in an environmental matter. Read the Commission's reply to the draft findings However the Committee did not alter its findings and maintained its recommendations. Read the findings of the committee here The findings of the Committee need to be endorsed by the Meeting of the Parties to the Convention to be officially adopted. The MOP takes place every three years, the next one will take place in 2014. 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. The Committee has not adopted its decision in the case against Germany yet, however, the German Court has already changed its position and granted standing to sue to an NGO following a decision of the Court of Justice of the EU in a referral for a preliminary ruling. The fact that the German court referred for a preliminary ruling to the Court of Justice of the EU also confirmed that German authorities and Courts did not know how to interpret the access to justice provisions of the Convention. The case will be discussed in June 2012 before the Compliance Committee. Read the communication 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 against the EU for not providing access to the courts Information on supporters of the communication Letters and other supporting documents |
