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Anaïs Berthier

12th December 2019


Access to justice references in the Green New Deal

On 11th December, the European Commission adopted a communication which sets out the new European Green Deal Mrs Von Der Leyen had promised.

The communication explains that the Green Deal is a response to the climate change and environment-related challenges that we are facing and presents a series of policies and measures across the board, including on climate, biodiversity and the circular economy.

This article does not analyse the whole deal; ClientEarth will publish a position paper at the beginning of next year. It only flags that the last commitment of the Commission mentioned in the communication relates to access to justice and is phrased as follows: “The Commission will consider revising the Aarhus Regulation to improve access to administrative and judicial review at EU level for citizens and NGOs who have concerns about the legality of decisions with effects on the environment. The Commission will also take action to improve their access to justice before national courts in all Member States. The Commission will also promote action by the EU, its Member States and the international community to step up efforts against environmental crime.”

We welcome the acknowledgment by the Commission of the need to ensure better access to justice for citizens and NGOs. Indeed, better enforcement of existing environmental legislation is part of the solution to the challenges the Green Deal attempts to respond to.

The revision of the Aarhus Regulation is clearly necessary to bring the EU into compliance with the Aarhus Convention. We therefore welcome the reference to this action. The words “will consider” are however concerning. It seems that the Commission still doubts the necessity to adopt a legislative proposal to revise the Aarhus Regulation despite the study carried out at the request of the Council. Indeed, this study clearly concludes that this would be the best option to ensure compliance with the international commitments of the EU and to ensure the required access to courts at EU level. The Council is to adopt its position next year and will need to continue putting pressure on the Commission to ensure concrete measures are taken.

It is not clear either what “action” the Commission envisages to take to improve access to justice before national courts and whether we can hope for a directive proposal, infringement proceedings or mere non-legal measures.

It is quite telling that no concreate decisions to implement these commitments are mentioned in the Annex to the communication which is a roadmap on key actions. Some more convincing will need to be done next year to ensure the Commission puts its money where its mouth is.

The project

Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.