New initiatives on access to justice from Brussels

Two interesting and very welcomed initiatives pushing for more access to justice in environmental matters have been initiated by Brussels.

One initiative by the European Commission is adding a new access to justice provision in the drinking water directive proposal. The directive is being reviewed and complements the water framework directive about which the CJEU has recently ruled in the Protect case that environmental NGOs should have legal standing in water law proceedings. The new provision is described by the European Commission as being in line with Article 47 of the Charter of Fundamental Rights and to implement the Aarhus Convention. It would allow citizens and NGOs to access judicial review of the decisions taken by Member States under the directive.

This is a new attempt from the Commission to ensure access to justice is provided at national and sectoral level. A similar provision had been included in the National Emission Ceiling directive proposal when it was being reviewed in 2016 and had eventually been rejected by the Council.

The provision in the drinking water directive proposal still needs to pass the test in the European Parliament and the Council to remain in the final directive.

We hope that the recent Protect ruling from the CJEU will incentivise MEPs and Member States to support the provision proposed by the Commission. That would be a significant step towards addressing the lack of access to justice for members of the public in certain Member States resulting from the absence of a directive on the matter.

Another discussion is taking place within the Council on how to ensure the EU, as a party in its own right, complies with the access to justice provisions of the Aarhus Convention. This year the EU was found in violation of these for not providing access to the CJEU to members of the public. The Council is considering ways to address the situation, including by relying on the Article 241 TFEU procedure to request that the Commission propose an amendment to the Aarhus Regulation, which applies the Convention to EU institutions. An unprecedented move in environmental matters.

Two EU institutions asking one another to comply with the Aarhus Convention at two different levels, one at national, the other at EU level. Let’s hope they will react in a positive way to their respective requests. And let’s enjoy the moment while it lasts!