9 March 2023
Over the last 2 years, the European Green Deal has brought about a veritable overhaul of many EU environmental laws. Sustainability has made the top of the agenda and this is in itself a revolution. However, beneath those broad political lines lies a serious risk that the Green Deal will result in many new commitments, objectives and targets that will remain unenforced and unenforceable.
One tool to facilitate implementation of the Green Deal on the ground is to ensure access to justice for the public and their organizations. On paper, the Commission has committed itself in October 2020 to improve access to justice (see our comment here) and has made some first proposals. Late 2022 has also seen the first political agreement on an access to justice clause (in the context of the new EU Deforestation Regulation). But there is still a long way to go to consistently ensure access to justice to give the public the tools to enforce the European Green Deal on the ground.
As avid readers of our newsletter will be aware, in 2003 the European Commission proposed a set of legislative proposals to implement the Aarhus Convention: a Regulation to implement the Convention vis-à-vis the EU institution and three Directives, one for each pillar of the Convention: Access to Information, Public Participation and Access to Justice. All but the last one were adopted by the Council and European Parliament and became law. Given that the Member States could not agree, the Access to Justice Directive was eventually withdrawn (in 2014).
Since then, a number of studies have testified to the ongoing barriers to access to justice in environmental matters on Member State level (e.g. the 2019 IEEP & Milieu Studies; see also the 2021 e-justice fiches). The main barriers relate to legal standing of environmental NGOs and individuals, so the right to go to court (mostly in Central and Eastern Europe). However, there are also issues with prohibitive costs and an insufficient scope and standard of review appled by the judges, which stand in the way of obtaining an effective remedy. Accordingly, the 2022 Environmental Implementation Review recommends to 21 out of 27 Member States to improve access to justice by the public concerned (see here, p. 5).
The Commission’s regulatory response
In response to these ongoing issues, the Commission moved to a sectoral approach, meaning that it started to propose access to justice provisions in the proposals for new or the amendment of existing pieces of EU environmental law. In 2017, the Commission proposed access to justice provisions in three legislative proposals: the Single Use Plastics Directive, Drinking Water Directive and Water Reuse Regulation. In all three files, the Council insisted on deleting the provision and to only introduce a recital (see recitals 29, 47 and 39, respectively).
In response to this experience, the Commission doubled down and explicitly formulated its commitment to propose these provisions in its 2020 Communication on access to justice in environmental matters. It also called on the European Parliament and the Council to adopt these provisions. Since then, the Commission has proposed access to justice provisions in its proposals for the Deforestation Regulation, the Corporate Sustainable Due Diligence Directive, the Nature Restoration Law, the recast of the Air Quality Directive and the amendment of the Urban Waste Water Treatment Directive.
And on 6 December 2022, the European Parliament and Council for the first time reached political agreement on including such a provision in the main text of a Regulation, in the trilogue agreement on the Deforestation Regulation.
This agreement on the Deforestation Regulation is a great step towards access to justice in environmental matters. The barriers to access to justice mentioned above (lack of standing, prohibitive costs, insufficient standard of review etc.) usually follow from binding national procedural rules. To overcome these barriers requires binding provisions of EU law; recitals will usually not be sufficient. In the case of the Deforestation Regulation, this should facilitate better monitoring of illegal timber harvesting and trade, as well as the enforcement of related rules.
However, a matter of concern is the agreed wording (see Art. 30 here, preliminary version still to be checked by the Legal Service). The provision includes three references to national law, clearly reflecting the Council’s panic when confronted with accountability but not doing much for legal certainty. The wording of the original Commission proposal was undoubtedly clearer than the outcome of the negotiations. Having said that, the Commission has also not been consistent in the provisions that it has proposed.
In conclusion, the Commission’s sectorial approach has the advantage of introducing access to justice provisions that are specific and fit for purpose. However, this approach also requires a unified approach by the EU legislative institutions. In the absence thereof, we risk inconsistencies and confusion to the detriment of claimants, judges, public authorities and industry.