Compliance Committee of the Aarhus Convention rules EU in breach of Access to Justice

The Compliance Committee has confirmed that the EU is breaching the access to justice provisions of the Aarhus Convention by preventing individuals and NGOs bringing cases in EU courts. The Committee also found that the EU’s internal review procedure does not compensate for the lack of court access.

Findings and recommendations of the Aarhus Convention Compliance Committee concerning compliance by the European Union with the Aarhus Convention (ACCC/C/2008/32(EU)) – 17 March 2017

The Aarhus Convention Compliance Committee (ACCC) has upheld ClientEarth’s Communication, submitted in 2008, that the EU is in breach of Article 9(3) and 9(4) of the Aarhus Convention. The decision of the Committee represents a major victory for environmental democracy. It constitutes a clear recognition of the shortcomings that have historically impaired the EU legal framework on access to justice in environmental matters. It is an opportunity for the EU to address some of the democratic deficit there is at EU level. At a time when alarming numbers of Europeans are questioning the value and legitimacy of the EU itself, never has it been so essential for EU leaders to demonstrate their commitment to the democratic values written into the EU Treaties. And citizens having access to justice to directly challenge decisions of the EU institutions is a prerequisite to democratic accountability.

In Part I of the findings, which were adopted in 2011, the Committee recommended that the EU take the necessary steps to overcome the shortcomings of the EU Courts’ jurisprudence on access to the EU courts in environmental matters, but refrained from examining whether the administrative review procedure in Regulation 1367/2006 (the Aarhus Regulation) met the requirements on access to justice in the Convention until after the outcome of the Stichting Milieu case, which was pending before the ECJ at that time.

With regard to access to EU courts, the Committee examined the case law on legal standing since its findings in 2011, particularly the Microban and Inuit cases, to see if it had overcome the shortcomings identified in Part I of its findings. It concluded that the Courts’ interpretation of the individual and direct concern criteria in Article 263 TFEU continues to block access for individuals and NGOs.

With regard to the internal review procedure provided in the Aarhus Regulation, the Committee noted that the Stichting Milieu judgment had not brought the EU into compliance with the Convention, and expressed surprise by the ECJ’s reasoning.

It then examined the specific arguments put forward by ClientEarth in the Communication, and concluded that:

• Article 10(1) of the Aarhus Regulation should not limit the acts that can be challenged in the review procedure to “measure[s] of individual scope”.
• The Convention provides access to justice to “members of the public”. Therefore, by limiting the right to request administrative review to NGOs only, Article 10(1) of the Regulation effectively excludes most members of the public and fails to implement the Convention correctly.
• The combined effect of Article 2(1) (g) and Article 2(1) (f) of the Aarhus Regulation, which limits the review to “acts adopted under environmental law”, is too narrow to correctly implement the Convention, which applies to any act that contravenes a law relating to the environment.
• Article 10(1) of the Aarhus Regulation only covers acts that have legally binding and external effects. While the Committee noted the lack of explanation for the use of this criterion, it held some EU acts that do not have legally binding or external effects should be challengeable in accordance with Article 9(3) of the Convention.

The Committee also considered the exemptions to internal review, provided in Article 2(2) of the Aarhus Regulation, including all administrative review decisions in the field of competition law, infringement proceedings, Ombudsman proceedings and OLAF proceedings. The Committee emphasised that the Convention excludes only judicial acts from the scope of its access to justice provisions, not administrative review procedures. Therefore, while the Committee was not convinced that all of these procedures should be excluded from the internal review procedure, it lacked the concrete examples of breaches to go so far as to find non-compliance in this respect.

With regard to ClientEarth’s argument that the internal review procedure is neither adequate nor effective or fair, the Committee referred to the fact that Article 12 of the Regulation allows for judicial review of the internal review decision, and said that the EU Courts could still interpret Article 12 of the Regulation so as to allow the EU courts to review the substance of the original act. On that basis, the Committee refused to conclude that Article 12 of the Regulation is inconsistent with the Convention. This is disappointing, given that the General Court recently confirmed that Article 12 does not allow the substance of the original act to be reviewed in case T-177/13, TestBioTech eV v Commission (unfortunately the decision came too late to be taken into by the Committee in its findings).

The Compliance Committee called for the Aarhus Regulation to be amended in a way that makes it clear to the ECJ that it is intended to implement Article 9(3) of the Convention. The ACCC further recommended that the ECJ interprets EU law in a way which is consistent with the objective of providing adequate and effective judicial remedies for members of the public to challenge acts which contravene national law relating to the environment.

As part of a UN non-confrontational process, the ACCC’s findings are not legally binding and they need to be endorsed by the Meeting of the Parties (MOP), including the EU itself, in September 2017. The EU should endorse the finding of the Committee and seize this opportunity to increase the legitimacy of the EU institutions by closing the gap between decision-makers and citizens; to protect the public interest by allowing individuals and civil society to better hold EU institutions to account for the legality of their decisions; and to show the international community that the EU does not ignore its international obligations and restrict individual rights.