EU pulls down barriers for public to challenge environmental wrongdoing in court

The EU institutions have agreed to open the way for the public to challenge environmental wrongdoings in EU courts. The deal, struck between the Parliament and the Council on Monday night, is the latest development of a decade-long legal battle by ClientEarth for access to justice for the public.

Under the new deal, set to amend EU access to justice law the Aarhus Regulation, many more EU decisions that break environmental law could now be subject to challenge by NGOs and members of the public. Until now, only NGOs could use the Aarhus Regulation to challenge EU decisions – and even then, only those concerning individual companies.

Negotiators have agreed to remove these restrictions, allowing individuals, as well as NGOs, to challenge a wide range of EU decisions, including those that require national implementing measures, like authorisations for harmful pesticides.

ClientEarth environmental democracy lawyer Anne Friel said:

“The EU has finally decided to lift the main obstacles preventing people and NGOs from challenging unlawful EU decisions that affect people’s health and the environment. This is crucial to empower people and civil society to enforce environmental laws and ensure EU decisions do not contradict the EU Green Deal.”

The development follows a decade-long legal battle for more access to justice at EU level.  In 2008, we filed a complaint with the UN against the EU for its failure to comply with the Aarhus Convention, an international environmental treaty that grants access to justice rights to the public. In 2017, the UN body responsible for overseeing compliance with the Convention found the EU to be in breach of its international law obligations.

This reform addresses the main findings of non-compliance of the Aarhus Convention Compliance Committee in that case and will hopefully bring this legal battle to its conclusion. This will be decided by the Parties to the Aarhus Convention when they gather at the upcoming Meeting of the Parties in October 2021.

Anne added:

“Respect for international law is the hallmark of a commitment to the rule of law at large and the EU is no exception. We are very pleased that the EU institutions have finally decided to allow the public to access EU courts in line with international law. The EU makes big promises on environmental protection and democratic accountability. It must lead by example.”

Lawyers regret however that the EU did not seize this opportunity to ensure that EU State aid decisions can be challenged under the Aarhus Regulation, in line with more recent findings of the Aarhus Compliance Committee.

Anne added:

“The EU must stop subsidizing the economic activities that contribute most to the climate and biodiversity crises we are facing. Allowing the public to challenge State aid authorisations that break environmental law is vital to this fight”.

The Commission has committed to study the implications of those findings and to bring forward the measures necessary to address them by the end of 2023, if appropriate.

Read about the EU’s pathway to access to justice

Read ClientEarth’s commentary on the EU’s reform of the Aarhus Regulation