15 June 2018
The welcome push for the European Commission to obey a vital international environmental treaty could be unacceptably delayed due to the unambitious deadline set by the Council.
The EU is currently violating the Aarhus Convention, the UN’s flagship treaty on environmental democracy, by not allowing members of the public to challenge EU decisions in the European Court of Justice.
Such decisions have disastrous impacts on the environment and human health – including authorising harmful pesticides or insufficiently regulating vehicle emissions, which led to the dieselgate scandal.
After a decade of ClientEarth campaigning on the issue, the European Council has adopted its request for the Commission to produce a study and a revision “if appropriate” of the Aarhus regulation, which sets out how the UN treaty is implemented in EU law.
The Council's request was adopted by the EU ambassadors on Wednesday and will be rubberstamped by EU member state ministers next week.
This was the first time the procedure – foreseen in Article 241 of the Treaty on the Functioning of the EU, allowing the Council to address such a request - had been used in environmental matters. But ClientEarth thinks the long deadline for action and wriggle-room in the wording could allow the Commission to delay action, despite countries such as France, Spain Italy and Luxembourg supporting a more ambitious request.
ClientEarth lawyer Anais Berthier said: “We welcome this request which sends a strong signal for upholding access to justice rights, but we would have liked it to be more ambitious since its wording leaves way too much room for the Commission to delay the adoption of the required measures. There is only one ‘appropriate’ means for the Commission to ensure EU compliance with its obligations to international law, and that’s by amending the Aarhus regulation as soon as possible to give members of the public access to the European Court of Justice.
"Setting a deadline of September next year for the Commission to produce a study is a clear delay to the process leading to compliance. Requiring an impact assessment in addition to this study clearly shows a lack of willingness from the institutions to act swiftly to ensure members of the public benefit from access to justice rights.”
Last year, following a ClientEarth complaint lodged in 2008, the Aarhus Convention Compliance Committee found the European Union to be breaching the Aarhus Convention due to the very limited possibilities for public access to justice at EU institutional level. Subsequent Committee recommendations included provisions for the Aarhus regulation to be amended.
However, the EU represented by the Council, refused to endorse these findings at the Aarhus Convention ‘meeting of the parties’ last September, severely damaging its credibility and undermining the democratic rights and values enshrined in the Convention.
Berthier added: “Twenty years after the signature of the Aarhus Convention, the Council is finally moving in the right direction, towards more accountability of EU institutions and basic rights for members of the public to protect the environment.
“It’s now up to the Commission to act. An Aarhus regulation amendment would not only help uphold environmental democracy and ensure better enforcement of EU environmental law, but also put an end to an unfair double standard in which member states have to comply with the Aarhus Convention while EU institutions exempt themselves."
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.