Press release: 17 December 2020
EU ministers rush access to justice position at expense of legal compliance
EU environment ministers today agreed a position on access to justice that could jeopardise Europe’s efforts to lead by the rule of law and deliver the European Green Deal, say ClientEarth lawyers.
The EU is currently revising its access to justice law to increase the possibilities to challenge environmental wrongdoings in EU courts. This follows a decade-long battle led by ClientEarth to bring the EU into compliance with the Aarhus Convention – an international treaty on environmental democracy the EU has been breaching for over a decade.
ClientEarth welcomes the move to amend the Aarhus Regulation. But the reform proposed by the Commission contains significant loopholes and falls short of meeting the international standards laid out in the Aarhus Convention. The EU’s position, agreed today with minimum discussion by ministers in the Environment Council, missed the opportunity to remedy these shortcomings.
The draft law in its current state could still prevent people and NGOs from requesting review of numerous EU decisions that violate environmental law, like State aid to the fossil fuel industry or authorisations of controversial pesticides like glyphosate.
Lawyers at ClientEarth have criticised the ‘rushed’ decision, which fails to take into account the forthcoming advice from the UN body responsible for compliance with the Aarhus Convention.
ClientEarth Environmental democracy lawyer Anne Friel said: “The Council has rushed to adopt its position without introducing the amendments that could have greatly improved access to justice at EU level and finally brought the EU into compliance with international law.
“This is all the more disappointing as the Council itself made a very exceptional move in pushing the Commission to bring forward this legislative proposal with the stated objective of complying with the Aarhus Convention. The UN Aarhus Committee will issue advice imminently on whether the proposal would bring the EU into compliance with international law but the Council has appeared to decide it does not need this input.
“Access to justice is crucial to holding institutions accountable and making sure environmental law is not violated. This is an essential condition for the delivery of the EU Green Deal.
“It is now up to the European Parliament to correct the shot and introduce the necessary amendments. The Council, meanwhile, must be ready to revise its position when the Aarhus committee issue their guidance, as expressed by several member states during the meeting today.”
The European Parliament has now named a rapporteur for this file, which will be debated in the Environment committee in April before a vote in plenary session in May.
Notes to editors:
A 20-year journey towards access to justice - timeline:
- 1998: The EU and more than 40 other parties sign the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention.
- 2005: The Convention is ratified by the EU.
- 2006: The EU adopts the Aarhus regulation to implement the access to justice dispositions of the Aarhus Convention (article 9(3)) into EU law. Since individuals do not have direct access to the Court of Justice of the EU, the Aarhus regulation creates an ‘internal review’ mechanism allowing certain environmental NGOs to ask EU institutions to review their own decisions, with a right of appeal to the EU courts. The current internal review mechanism does not work because it is available for a very limited number of EU acts only (so far, certain chemicals and GMO decisions).
- 2008: ClientEarth brings this matter before the Aarhus Convention Compliance Committee (ACCC)
- 2017: the ACCC finds the EU to be in violation of the access to justice provisions of the Convention. The EU refuses to endorse the findings of the Committee, leading to strong opposition from certain member states, NGOs and other institutional actors.
- 2018: The Council of the EU requests the Commission to carry out a study to explore ways to comply with the Convention and the findings of the ACCC and, in view of the conclusion of the study, to table a legislative proposal to revise the Aarhus Regulation.
- October 2019: the Commission published the study (carried out by consultants) and a report, concluding that the only option was to amend the Aarhus Regulation (see our analysis here).
- October 2020: the Commission releases a legislative proposal to amend the Aarhus regulation (see our analysis here)
ClientEarth is a charity that uses the power of the law to protect people and the planet. We are international lawyers finding practical solutions for the world’s biggest environmental challenges. We are fighting climate change, protecting oceans and wildlife, making forest governance stronger, greening energy, making business more responsible and pushing for government transparency. We believe the law is a tool for positive change. From our offices in London, Brussels, Warsaw, Berlin and Beijing, we work on laws throughout their lifetime, from the earliest stages to implementation. And when those laws are broken, we go to court to enforce them.