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Access to Justice update from ClientEarth and Justice & Environment – December 2017

Editorial

The year 2017 has drawn to a close and will never come back again. Should we feel happy or sad, looking back to what has happened? Let us reflect on what 2017 will be remembered for by the environmental lawyer community.

First and foremost, this was the year when the 6th Meeting of the Parties to the Aarhus Convention was held in Budva, Montenegro. Many developments and happenings related to this event. The European Union published its draft report on the implementation of the Aarhus Convention by EU institutions and submitted it to public comment. However, the Commission could not really cope with what followed later. It could not accept that the Compliance Committee found the EU non-compliant with the Convention for not granting access to NGOs to the European Courts. This left its mark on the MOP6 and left a bitter taste in our mouths, seeing the EC trying to weaken the compliance mechanism and seeing the Member States of the EU standing up against such efforts. The ACCC had other progressive findings as well, although it did not find the EU in non-compliance for not legislating on access to justice pursuant to Art. 9.3 of the Convention.

But to be fair, we also have to mention that the Commission’s long efforts to have a directive on access to justice failed due to resistance by the Member States. In an effort to remedy this, the EC published its Communication on Access to Justice that is a guidance document and most probably the best that could be achieved in the given circumstances.

Taking cases to the court seemed a good move in 2017, e.g. as the landmark win demonstrated where the Austrian Federal Administrative Court denied a third landing strip of Vienna airport due to climate change concerns. However, this judgment was reversed by the appellate court so all in all, the balance is not clearly positive.

Nevertheless, the last days of 2017 brought a big breakthrough though: the Court of Justice of the EU made a decision in case No. C-664/15, stating that NGOs must have legal standing in water permitting procedures, including the right to bring challenges to court.

Csaba Kiss, Director at EMLA Assocation, Coordinator at Justice and Environment.

 

Our Analysis

Breakthrough in Access to Justice: the Court of Justice of the EU rules that NGOs must have legal standing in water permitting procedures.

In a preliminary ruling procedure stemming from a case in Austria, the CJEU ruled that Article 9, paragraph 3 of the Aarhus Convention in conjunction with Article 47 of the Charter of Fundamental Rights requires that recognized NGOs must be able to legally challenge decisions which might violate Article 4 of the Water Framework Directive. Read the article by OEKOBUERO Justice and Environment Austria here. And this decision could affect other Member states, like Poland. Read more about it here.

 

European Economic and Social Committee calls for full implementation of access to justice obligations by Member States and the EU

The European Economic and Social Committee has issued an opinion on the Commission’s Communication on Access to Justice in Environmental Matters which makes a number of strong recommendations to the EU institutions and the Member States regarding the implementation of the access to justice pillar of the Aarhus Convention. Read the full analysis by Anne Friel.

 

Brussels air pollution case: NGOs and citizens are granted standing by Court
In its interim judgement of 15 December 2017, the Brussels court of first instance granted standing to both ClientEarth and five individuals to challenge the Brussels regional government’s compliance with Directive 2008/50 (“the Air Quality Directive”). Read our press release.

 

Developments on access to justice in 2017: focus on Austria, Germany, Estonia, Hungary, Slovakia and Spain

As 2018 has just begun let’s step back a little and see how the situation on access to justice in environmental matters developed last year, focussing on six (out of eight) European member states involved in the “Access to Justice for a greener Europe” project : Austria, Germany, Estonia, Hungary, Slovakia and Spain. Read the analysis by Summer Kern, Karl Stracke, Kaidi-Kaisa Kaljuveer, Csaba Kiss, Ivana Figuli and Alba Iranzo.

 

The Project

Access to justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment.

This project aims at enhancing access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states.

ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.

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Yannis Papanastasopoulos