It is time to unlock EU courts so we can better protect the environment

Public authorities, even with the best intentions, are not infallible. They can take decisions that harm the environment and damage our health. That means that people and non-governmental organisations must be vigilant – and it’s why it is a fundamental right to legally challenge any of these decisions that breach environmental laws.

Take EU decisions to approve toxic pesticides, for example, or subsidies to new fossil fuel infrastructures like coal or gas plants – people need to be able to hold EU decision-makers to account when they get it wrong.

Access to justice, this ability to go to court, is therefore crucial to fulfilling the mission of securing a healthy planet, and it is something we are entitled to. But this essential democratic right is often overlooked, including at the very heart of the European Union. In fact, the EU is currently breaking international law by failing to provide access to its courts.

As the EU is currently revising its main access to justice law, known as the Aarhus Regulation, we must seize this opportunity to get rid of the obstacles preventing people and NGOs from going to EU courts to protect the environment.

This is not only crucial to reaching the EU’s environmental objectives, including being carbon neutral by 2050 – the EU has to do this to align the bloc with international law.

The EU has an access to justice problem

The European institutions have the power to take many decisions, and inevitably, some of these have a huge impact on the environment.

For instance, glyphosate, the controversial pesticide labelled as ‘probably carcinogenic’, was authorised by the European Commission. The EU also recently allowed car manufacturers to exceed legal limits for the emissions of pollutants and agreed to set unsustainable fishing limits, in breach of EU laws.
These are just three examples in a long list of decisions the EU regularly takes that can potentially break environmental law.

Unfortunately, we cannot challenge these acts in the EU courts as access is currently restricted.

Here are some of the reasons why:

• Not personally affected? People and NGOs can only go directly to the EU courts to challenge decisions that affect their own legal situation. This clearly does not work for individuals and NGOs who seek to protect the public interest because the decisions they want to challenge have a negative impact on the environment, not on their legal situation. But in contrast, businesses can go to court to challenge decisions that affect their economic and financial interests.
• Named companies only. The Aarhus Regulation only allows environmental NGOs to challenge decisions addressed to specific companies. This excludes the vast majority of EU decisions that could potentially be breaking environmental laws.
• A very long road. NGOs and individuals are expected to first go through national courts and ask them to send questions to the EU court about the lawfulness of EU decisions. But this route is fraught with barriers that, at best, take several years to overcome- and often costs a lot of money.

As a result of these rules, EU decision-makers cannot be held accountable – even when they go against the EU rules designed to protect nature and public health, including the EU Green Deal’s overarching objective of reaching carbon neutrality by 2050. To genuinely change the status quo, we need to reform the Aarhus Regulation.

According to Anne Friel, ClientEarth’s lead environmental democracy lawyer:

At the moment, the EU courts are almost entirely closed to people and NGOs seeking to protect the environment – but very open for industry. This is unfair and particularly worrying as more than ever we need to empower people to enforce our laws and protect our planet. Access to justice is not an option – it is an international obligation.

The EU is breaching international law

Not only is this lack of access to justice at EU level unfair, it is also illegal. In 2017, the EU was found in breach of international law for not respecting the access to justice provisions of the Aarhus Convention, an international treaty on environmental democracy signed by the EU (and 50 other parties) more than 20 years ago. This condemnation followed a ClientEarth complaint lodged in 2008 before the Aarhus Convention Compliance Committee (ACCC).

At the last “Meetings of the Parties” to this Convention, the EU refused to acknowledge its mistakes and endorse the findings of the ACCC. This caused an international outcry: it was the first time in the history of the Convention that it happened. Until then, all of the ACCC’s findings had been endorsed by consensus without exception. This badly damaged the EU’s reputation as promoter of the rule of law, as well as the credibility of the Aarhus Convention.

But four years later, things could change for the better: the EU is finally revising the laws that put the Aarhus Convention to work in the Union.

Light at the end of the tunnel?

After a 13-year battle, it is now crunch time. The European Commission released its draft reform of the Aarhus Regulation on access to justice in October, kick-starting the legislative process.

The Commission’s draft reform is a step in the right direction, addressing some of the problems blocking people and NGOs from accessing EU courts. But it also has considerable shortcomings which need to be tackled – and without which, will leave the EU in breach of international law.

With the current proposal, NGOs and members of the public would still be barred from reviewing many potentially harmful decisions for the environment, like approving multibillion Euro subsidies for fossil fuel companies or allowing companies to dodge clean air laws.

To make sure the EU finally complies with international rule of law, the Aarhus Convention Compliance Committee (ACCC) has recommended specific amendments to the proposal:

• Make sure all administrative decisions taken by the EU institutions can be reviewed if they break environmental laws – including decisions that need Member States to take action to implement them. As this is the case for most EU decisions.If this doesn’t change, the reform is an almost pointless exercise;
• Make State aid decisions that break EU environmental law subject to review; and
• Allow individuals, as well as NGOs, to challenge unlawful EU decisions.

It is now up to the European Parliament and the Council to amend the proposal drafted by the Commission to include these important amendments.
Anne added:

We call on the European Parliament and the Council of the EU to follow the advice of the Aarhus Convention Compliance Committee and finally comply with international law to make sure people and NGOs have access to EU courts.
This is crucial for the EU to recover its credibility on the international scene and tackle the ‘democratic deficit’ that is pushing people away from decision-makers. It is essential the EU empowers people and their organisations to enforce environmental laws. The environment cannot defend itself – protecting it is our mission and we must be allowed to do it.

Read our position paper on amending the Aarhus regulation