5 September 2018
In a landmark judgment for participatory democracy, Europe’s top court has ruled in favour of ClientEarth lawyers in a long-running case for greater transparency in the European Union. The Grand Chamber of the Court of Justice of the European Union (gathering 15 judges) yesterday ruled that the European Commission must make public important documents used as a basis for its decision-making process.
After a four-year legal battle, yesterday’s decision sets an important legal precedent in confirming that impact assessments – a key part of the Commission’s process for proposing new laws – were to be considered public documents and could not be hidden from public scrutiny.
ClientEarth lawyer Anais Berthier said: “This ruling marks a fantastic victory in our long-running push for greater transparency in EU decision-making. We welcome this judgement, which sets a positive precedent for allowing more political debate regarding the legislative process.
“The Court considers that impact assessments are linked to the EU legislative process and should be publicly available as soon as they are carried out and not only once the Commission tables a legislative proposal. The Court stressed that this forms an integral part of EU citizens’ democratic rights.
“It also insists that to exercise its legislative initiative power independently, the Commission does not need to act behind closed doors. On the contrary, it is transparency that ensures greater legitimacy, credibility and accountability of the EU institutions and its decision-making process.
“The Court rejected the Commission’s argument that disclosing such documents would increase pressure and influence exerted by third parties on its policy choices. It stated that the Commission had not shown that such pressure would impede it to act in a fully independent manner and exclusively in the general interest and insisted that there was no obligation to respond in each case to the remarks it may receive.
“The ruling upholds and stresses the need for participatory democracy. We now call on the European Commission to respect this ruling and ensure that from now on these documents – that are key to the decision-making of the Commission to decide whether to legislate or not – are not hidden from the public and can be scrutinised by citizens and civil society.
In 2003, the EU concluded that legislation was needed for better access to justice in environmental matters. But after resistance from certain member states, there was no clarity or progress for more than a decade. EU legislative action on environmental inspections also stalled.
Wishing to remedy the situation, ClientEarth lawyers in 2014 requested two impact assessments carried out a year before. These documents detail the Commission’s assessment of the economic, social and environmental impacts that would result from adopting directives on access to justice in environmental matters and setting up a legislative framework on environmental inspections.
ClientEarth lawyers argued its request for the two documents was indisputably covered by the Aarhus Convention and Regulation 1367/2006, the Aarhus Regulation. Lawyers also invoked the fact that the public had a right to know the reasons why the EU was failing in its obligation to provide access to justice stemming from international law. Access to the courts is vital to enforce environmental law.
The Commission refused to disclose the documents, arguing they would remain confidential until it had published a legislative proposal. However, the Commission then took no action for three years, with the public left in the dark as to why the Commission had failed to act. This was all the more relevant given the Commission ultimately decided not to adopt legally binding directives, opting for mere guidance documents instead.
Having had access to the impact assessments, ClientEarth lawyers now know that the Commission has not followed its own favoured option that is to adopt a legally binding directive, which questions the value of the whole assessment exercise.
In that time, without access to the impact assessments, civil society were unable to engage in an informed debate as to how the Commission should tackle these issues, or do anything to resolve the institutional stalemate.This appeal revokes a disappointing first judgment from the General Court agreeing with the undemocratic vision of the Commission.