5 January 2015
Today’s European Court of Justice rulings on a number of cases  related to the EU’s implementation of the Aarhus Convention  are a sorry step backwards for environmental democracy, public accountability and access to justice with respect to the EU institutions at a time when the EU needs to be proving its democratic credentials. For many, it will confirm the existence of a serious democratic deficit in the EU institutions.
In the cases in question, the Commission had denied NGOs the right to make a ‘request for internal review’ of decisions taken by the Commission on the grounds that the challenged acts could not be considered as acts of "individual scope". The NGOs then invoked the Aarhus Convention and the corresponding EU Aarhus Regulation to appeal against the Commission‘s decisions before the European General Court, which found in favour of the NGOs. The Commission, Parliament and Council then appealed the judgements of the General Court before the ECJ, which today upheld the appeals and set aside the judgments of the General Court.
The Aarhus Convention is designed to provide individuals and environmental groups with wide access to justice on environmental matters.
The EU, which is party to the Aarhus Convention, attempted to apply the provisions of the Aarhus Convention to EU institutions by adopting the so-called Aarhus Regulation in 2006 . However, the Regulation offers a very limited scope to those wishing to take advantage of the provisions in the Convention, namely by limiting the access to an internal review procedure only where the acts being challenged were “measures of individual scope”. As a result, the Aarhus Regulation is currently only applicable to a very few decisions adopted in environmental matters.
Jeremy Wates, Secretary General of the European Environmental Bureau, expressed his regret at the ECJ-judgements. “Today´s ECJ judgements raise serious questions about what it means for the EU to be a party to an international treaty. We remain of the view that the relevant provision of the Aarhus Convention is sufficiently precise to rule out any limitation of acts that may be challenged to ’measures of individual scope‘, and that the EU’s Aarhus Regulation is not in compliance with the Aarhus Convention and intend to see that this is pursued through the Aarhus Convention Compliance Committee and Meeting of the Parties.“
Anais Berthier of ClientEarth EU Aarhus Centre added: “These judgments simply avoid the legal issue that was at stake, that is the non-compatibility of the Aarhus Regulation with the Aarhus Convention with regard to access to justice rights. The Court missed the opportunity to bring about compliance of EU law with the Aarhus Convention, to ensure access to justice to NGOs and thus increase environmental protection. As long as citizens and NGOs will not be able to challenge decisions of EU institutions before the EU courts, the EU will not be fully democratic.“
The fact that the EU institutions have used public money to resist greater public accountability can only play into the hands of Eurosceptics, who already regard the EU as a fortress of arrogant and unaccountable bureaucrats.
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 Cases C-404/12 P and C-405/12 P were appeals before the Court of Justice of the EU from Stichting Natuur en Milieu (Dutch NGO) and Pesticide Action Network Europe against a General Court's ruling which annulled two Commission decisions rejecting as inadmissible the applications lodged by the NGOs seeking to have the Commission review its Regulation No 149/2008 setting maximum permitted pesticide residues; Case C-401/12 P to C-403/12 P were appeals before the Court of Justice of the EU from two Dutch NGOs, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht against a General Court's ruling which annulled aCommission decision rejecting as inadmissible the NGOs' request for review of its decision to grant the Netherlands a temporary exemption from the obligations laid down in Directive 2008/50/EC on ambient air quality and cleaner air for Europe, to comply with the annual limit value for the air pollutant nitrogen dioxide.
 Regulation No 149/2008
The European Environmental Bureau (EEB) is Europe’s largest federation of environmental citizens’ organisations. It is the environmental voice of European citizens, standing for environmental justice, sustainable development and participatory democracy. Our aim is to ensure the EU secures a healthy environment and rich biodiversity for all.
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