EU violating the Aarhus Convention: Public right to access to justice not yet assured

Pacta sunt servanda is a well-known principle for lawyers. It is a basic principle of civil law and it is widely used in international treaty law. But don’t panic, this article is not about legal language: It is all about common sense.

Pacta sunt servanda means that international agreements are binding to the parties and that obligations must be fulfilled accordingly. This is exactly what the EU has failed to do, according to a UN committee – the Aarhus Convention Compliance Committee – which has concluded that the Union fails to comply with its obligations providing access to justice to members of the public because neither the EU legislation nor the jurisprudence of the European Courts implement or comply with the obligations arising under the Aarhus Convention.

The Committee’s conclusion is a major victory for environmental democracy. It is a clear recognition of the shortcomings that have historically undermined EU law on access to justice in environmental matters, and which have been pointed out by academics and NGOs in past years. The draft findings of the Committee should be followed by new steps to ensure citizen’s rights on access to justice in environmental matters at EU level.

The Aarhus Convention: Accountability through the EU courts

The Committee is responsible for examining the observance by signatories of their obligations under the Aarhus Convention, which is one of the most ambitious international agreements in advancing democracy and the protection of the environment. The scope of the Convention is quite broad, providing the public with rights on access to information, participation in decision-making and access to justice. As a signatory of the Convention, the EU is also bound by the access to justice provisions of the Convention and must therefore ensure that the environmental NGOs and individuals may challenge some of their decisions before the EU courts.

However, the jurisprudence of the EU Courts has so far blocked all access to justice for individuals and NGOs in environmental matters.The European courts have interpreted the criteria for access to justice in such a way that it precludes NGOs and individuals from challenging any EU institutions, agencies and bodies’ decisions. The concrete result of this interpretation is that decisions which have a crucial impact on the environment and human health, including the authorisation of pesticides, chemicals, exemptions granted to Member States to reach certain targets including with regard to air quality, cannot be challenged by NGOs and individuals in any forum.

This also creates a real discrepancy between the rights provided to the NGOs and individuals and the industry. The latter having the right to challenge at least some of the decisions that affect their business. In brief, the environment and public health loses at the expense of the economic and financial interests of the industry.

Furthermore, the EU legislation which implements the obligations arising from the Aarhus Convention does not overcome the shortcomings of the jurisprudence.

Given this situation, ClientEarth brought this case before the Committee in 2008, claiming that the jurisprudence of the EU courts as well as the Convention implementing legislation were in breach of the Convention for not providing legal standing to the public before the EU Courts.

A double standard in implementing access to justice rights

In its preliminary findings of 2011, the Committee concluded that if the EU Courts continued interpreting the Treaties as it had, the EU would be in breach of the obligations stemming from the Convention. It also noticed that the EU did not change its interpretation and application of the EU Treaties due to the entry into force of the Aarhus Convention.

Despite the warnings, the EU has not fixed any of these shortcomings.

The Committee has thus concluded that EU Courts’ jurisprudence on access to justice does not ensure compliance with the Convention. Paradoxically, as pointed out by the Committee, the Court has also adopted different standards in the implementation of the Convention, one for Member States’ courts in which access to courts must be granted, and one for itself, barring access to justice.

The Committee has also found that the EU legislation implementing the Convention does not correct the failings of the jurisprudence.

The way forward: Acceptance by the EU to make the required changes

Next step is that the EU, represented by the European Commission, will send its observations to the Committee by October. The Committee’s findings are not legally binding and they need to be endorsed by the Meeting of the Parties (MOP) including the EU itself. As today the findings have always been endorsed.

The EU now has a good opportunity to ensure full compliance with the principles and obligations laid down in the Convention once and for all. Allowing citizens to bring cases to EU Courts would also contribute to enhancing the participation of the public in the context of growing concern in environmental matters. It would constitute a major achievement in a Union which is being contested for its lack of accountability and openness.


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