14 October 2020
The EU has taken an important first step to correct a glaring imbalance in access to justice to protect the environment with a proposal from the European Commission today, but failed to fully address the democratic deficit, say lawyers and campaigners.
The Commission has proposed an amendment of the EU’s so called “Aarhus Regulation”, a law intended, among other things, to ensure that environmental NGOs can challenge certain EU decisions that breach environmental laws.
The move follows a successful ten-year legal battle by environmental law organisation ClientEarth to force the EU into line with the Aarhus Convention, an international agreement promoting access to justice in relation to environmental matters which the EU and all its Member States have signed.
The Commission proposal addresses the biggest obstacle facing NGOs seeking to challenge decisions, namely an arbitrary limitation on the type of decisions that may be challenged. These are currently limited to decisions which have ‘individual scope’ when in fact many of the decisions that NGOs seek to challenge are those of general scope.
This limitation has drastically limited access to justice and means the EU has been in violation of international law in the form of the Aarhus Convention.
Other obstacles to access to justice have not been tackled in the Commission proposal, however.
ClientEarth’s Head of EU Affairs, Anaïs Berthier said: “This is a long overdue proposal, which goes some way towards levelling a playing field which is heavily sloped in favour of industry’s interest – to the detriment of our health and the environment.
“However, it is disappointing that the Commission did not make a proposal that fulfils even the minimum requirements of the Aarhus Convention. If the current proposal is not improved by the co-legislators, many decisions will remain unchallengeable, even if they clearly violate environmental law.
“It will now be on the European Parliament and the Council to ensure that the Regulation applies to all decisions capable of breaking environmental law and that adequate remedies are guaranteed.”
Jeremy Wates, Secretary General of environmental group EEB, which has been pushing for robust proposals, said: “For too long, citizens and NGOs have been denied the possibility to challenge violations of environmental law before the EU’s highest courts. Today’s proposal from the Commission is an important step towards improving access to justice and thereby addressing the EU’s longstanding non-compliance with international law. But it is only a step. While NGOs are now no longer restricted to challenging measures of ‘individual scope’, there are other important issues that are not addressed by this proposal. These issues must be addressed in the forthcoming co-decision process.”
Csaba Kiss, Coordinator of Justice and Environment (J&E), the European network of environmental law NGOs, said: “The internal review mechanism has so far failed to ensure fair and effective legal remedies for EU law breaking. This proposal offers much of the same but just opens it up to a larger number of EU acts. It is clear that the Commission has failed to fully live up to the task they set for themselves when they published the European Green Deal, which was supposed to ‘improve access to administrative and judicial review at EU level for citizens and NGOs’.”
Until now, industry has been able to access the courts to challenge decisions on commercial grounds, but NGOs acting in the interests of the environment and public health have been blocked from doing the same.
ClientEarth’s legal battle sought to allow NGOs and members of the public to challenge any decision that breaks environmental laws before the EU courts.
The Commission proposes to reduce the strict criteria contained in the Aarhus Regulation, which currently prevent the mechanism being used to challenge decisions other than those authorising a small number of chemicals or GMOs. But significant restrictions remain.
Some industry groups have expressed opposition to the changes that would bring the EU in line with an international convention it signed some 20 years ago, arguing that the changes create uncertainty and delays.
ClientEarth, EEB and J&E argue it only ensures that the law is respected. If decisions comply with the law, there will be neither delays nor uncertainty.
Berthier added: “EU law requires that NGOs have access to national courts when environmental laws are not respected, while the EU institutions still try to evade accountability. Access to justice is fundamental in a democratic society and crucial to ensure environmental protection.”
The Commission’s proposal will now be debated in the European Parliament and by representatives of the Member States in the Council of the EU.
Notes to editor:
Under today’s proposal, NGOs would still be unable to challenge EU decisions that require implementing measures and State aid decisions. There is no basis in international law for this exclusion. It means that some of the decisions that have the biggest impact on the environment, for example public funding of the carbon economy, cannot be challenged on environmental grounds.
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.
The EEB is the largest network of environmental citizens’ organisations in Europe. It currently consists of over 160 member organisations in more than 35 countries (all EU Member States plus some accession and neighbouring countries), including a growing number of European networks, and representing some 30 million individual members and supporters.
About Justice and Environment (J&E)
Association Justice and Environment (J&E) is a network of NGOs that uses environmental law as a tool to ensure the protection of people and nature in different EU Member States. J&E aims for a better legislation and implementation of environmental law on the national and EU levels to protect the environment, people, and nature. J&E does this by enforcement of EU legislation through the use of European law and exchange of information.