Press release: 19 January 2021
UN committee urges EU to comply with international law on access to justice
The European Union has come under pressure from a United Nations body to increase access to the EU courts in environmental matters, in line with international treaty the Aarhus Convention.
The Aarhus Convention Compliance Committee (ACCC), the UN body responsible for safeguarding access to justice, says in new advice that the EU must increase possibilities for NGOs to legally challenge environmental wrongdoings, in order to comply with the treaty.
The EU has been breaching the Aarhus Convention for over a decade, and ClientEarth fought for a decade to secure a reform of the Aarhus Regulation to bring it into compliance.
However, the current reform proposed by the Commission is still not in line with international law. The ACCC confirmed this, calling for significant amendments.
ClientEarth lawyers have urged decision-makers to follow the UN draft advice, and restore the EU’s leadership in environmental protection and respect for the rule of law.
ClientEarth Environmental democracy lawyer Anne Friel said: “The ACCC’s draft advice is clear: the Commission’s current proposal to revise the Aarhus Regulation is a step in the right direction but does not align with its international obligations.
“The EU prides itself on being a leader in environmental protection and the rule of law but continues to breach international law – this undermines its leadership. Reforming the Aarhus Regulation is essential to restore the EU’s legitimacy across the globe and deliver the objectives of the European Green Deal.”
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 certain instances of State aid to the fossil fuel industry or authorisations of harmful pesticides like glyphosate.
The ACCC advised that the following amendments are needed to remedy these shortcomings:
- Make sure all administrative decisions taken by the EU institutions and that have legal effects are subject to review, including those that require “implementing measures” at national level;
- Make State aid decisions that break EU environmental law subject to review;
- Allow individuals, as well as NGOs, to challenge unlawful EU decisions.
Friel added: “It is now up to the European Parliament to correct the shot and introduce the necessary amendments. The Council, meanwhile, should revise the position it adopted in December.”
The European Parliament has 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 and NGOs do not have direct access to the Court of Justice of the EU to protect the environment, 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) and asks the ACCC to issue advice on whether it would bring the EU into compliance with the Convention
- November 2020: The ACCC holds a hearing with the European Commission and the communicant (ClientEarth) in preparation of an advice to the EU as to whether the legislative proposal is adequate to bring the EU into compliance with the Convention
- December 2020: Rather than awaiting the ACCC advice, the Council adopts a common position on the legislative proposal (see our press release here)
- Today: The ACCC adopted its draft advice stating that the legislative proposal, in its current form, is insufficient to ensure the EU’s compliance with the Convention. In parallel, it publishes its draft findings on communication ACCC/C/2015/128 (European Union) finding that the EU needs to ensure access to justice for the EU Commission’s state aid decisions. Both the draft advice and the draft findings will now still be subject to comment from both the Party concerned (the Commission representing the EU), the communicant and any interested observer. However, no substantive changes are expected.
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.