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ClientEarth Communications

22nd May 2017

Rule of law
Access to Justice for a Greener Europe
EU

Commission publishes guidance on access to justice for member states

The European Commission has published its long-awaited ‘Communication on Access to Justice in Environmental Matters'. It is intended to give guidance to national administrations and judiciaries on their obligations under EU law, to allow individuals and NGOs to bring environmental cases at national level.

The guidance gives a clear and comprehensive overview of the EU courts’ case law on the matter. But it is not legally binding and falls short of the legislative proposal the Commission withdrew in 2014. It also shines a light on the EU’s double standards when it comes to enforcing access to national courts, on the one hand, and access to its own courts in Luxembourg, on the other.

The guidance follows the UN Aarhus Committee’s findings that the EU is in breach of Articles 9(3) and (4) of the Convention, after we brought a case against them.

While the EU courts rightly demand that individuals and NGOs can access national courts; it continues to block access to the EU courts in environmental matters.

And nothing puts this double standard into focus more than the Commission’s guidance. According to paragraph 4, the Aarhus Convention “establishes that, in certain cases, natural and legal persons (such as non-governmental organizations, ‘NGOs’) can bring a case to a court or to other impartial bodies in order to allow for the review of acts or omissions of public or private bodies. This has been ratified by all member States and the EU.”

If this is the case, why are NGOs and individuals consistently refused access to the EU courts to challenge decisions of EU institutions on the environment?

The Aarhus Convention on access to information, public participation and access to justice in environmental matters was signed by the EU in 1998 and ratified in 2005. The first two pillars of the Convention (access to environmental information and public participation) have been implemented at national level through legally binding directives.

However, despite a wealth of EU case law on the matter, the Commission’s proposal for a directive on access to justice was stalled for 11 years before being withdrawn in 2014. ClientEarth’s own experience of litigating in several EU countries shows that many barriers continue to exist.

The guidance tries to fill this gap by essentially summarising the EU courts’ case law on the Aarhus Convention, as it applies to the Member States. It deals with access to environmental information, specific activities that are subject to public participation and “other subject-matter” not covered by the first two headings, which is organised into four sections:

  1. Legal standing of individuals and NGOs to protect both procedural and substantive rights;
  2. Scope of judicial review, including the possible grounds for review and the intensity of the scrutiny;
  3. Effective remedies, including suspension, revocation or annulment of unlawful decisions or acts, possible compensation and interim measures, among others;
  4. The duty to ensure that the costs of judicial review procedures are not prohibitively expensive and the criteria for this assessment.

ClientEarth is disappointed by the lack of a legally binding way to ensure uniform implementation of the access to justice pillar of the Aarhus Convention across the EU.

Since the guidance does nothing more than summarise the status quo, its likely impact is questionable. We hope that it will be followed up by effective monitoring and outreach by the Commission to ensure that it is used  by all stakeholders, particularly national judges.

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