European Economic and Social Committee call for full implementation of access to justice obligations by Member States and the EU

The European Economic and Social Committee (EESC) has issued an opinion on the Commission’s Communication on Access to Justice in Environmental Matters. The Opinion makes a number of strong recommendations to the EU institutions and the Member States regarding the implementation of the access to justice pillar of the Aarhus Convention.

Of note, the EESC pledges its commitment to the Aarhus Convention, and recognises that there are a number of problems connected to its implementation by the EU and its Member States.

Recommendations on the Commission's Communication on Access to Justice

With regard to the Member States, while the EESC welcomes the Commission’s Communication published in April 2017, it maintains that EU legislation is necessary to achieve consistency across the EU. It lands the blame squarely at the feet of the Member States for frustrating the Commission’s past efforts to propose a directive on access to justice, and calls on them to remove obstacles in the future. However, in the absence of such legislation, the EESC puts forward the following recommendations regarding the Communication.

• First, sufficient resources and planning must be dedicated to training and education programmes for national judges and administrative review bodies.
• Second, the Communication should be updated in a timely manner and future editions should make it clear that it sets minimum requirements for access to justice, and that backsliding on existing rights will not be tolerated. Future editions should also reference relevant findings of the Aarhus Convention Compliance Committee, and not only the case law of the Courts of the European Union.
• Third, the EU should undertake a public consultation in order to establish and maintain a baseline reflecting the state of play in every Member State.
• Fourth, the Commission must explore and report on the use by Member State courts of the preliminary reference procedure, given its importance in ensuring enforcement of access to justice obligations, and pursue all barriers to its use.
• Finally, the Commission must make use of infringement procedures to ensure compliance with the legal obligations in the field of access to justice.

Recommendations on endorsement and implementation of the Aarhus Convention Compliance Committee's findings

The EESC also uses this opportunity to make recommendations regarding the endorsement and implementation of the Aarhus Convention Compliance Committee’s findings that the EU is in breach of Articles 9(3) and (4) of the Aarhus Convention, owing the lack of effective administrative and/or judicial review mechanisms at EU level. In this respect, the EESC calls for the EU to engage in a constructive manner with environmental NGOs and civil society more broadly in order to prioritise a broad and ambitious approach to improving EU implementation of the Aarhus Convention, as a matter of urgency. Significantly, the opinion recognises the application of the Aarhus Convention to all EU institutions, and does not consider the EU’s declaration when it ratified the Convention to absolve it of its obligations in respect of access to justice. The EESC also refers to the Council decision to “take note” of the findings, rather than endorsing them, at the 6th Meeting of the Parties in September 2017, and “highlights a contradiction in the EU seeking to not endorse the findings of the ACCC while reiterating support for the Convention.”

The EESC is an advisory body made up of organisations representing three pillars of EU society, employers, workers and civil society organisations. The opinions, which are not legally binding, must be agreed by all three categories of representatives. Therefore, the fact that the opinion contains such strong recommendations on access to justice, both at national and EU levels, is a significant achievement and shows broad support for the Aarhus Convention. The EESC must now use this opinion to hold the EU institutions to account.