Public consultation open on access to justice at EU institutional level

The European Commission has launched a public consultation on the way to bring the EU into compliance with the access to justice provisions of the Aarhus Convention.

The European Commission has decided to carry out an inception impact assessment to fulfil the commitment it made at the Meeting of the Parties of the Convention (MOP) last September “to explore ways and means to comply with the Aarhus Convention”.

In accordance with the Better Regulation procedure, a consultation is organised to gather the public’s views on the matter. This is the first outcome of the decision of the Aarhus Convention Compliance Committee finding the EU in violation of the Convention for not providing access to members of the public to the Court of Justice of the EU in environmental matters.

We welcome the fact that the Commission finally acts and acknowledges the Committee’s decision. This is indeed already an achievement in itself knowing that the Commission has been so strongly opposed to the finding of the Aarhus Committee and to adopting any measures to implement the necessary changes to ensure members of the public have access to justice at EU institutional level. The Commission did not hesitate to go as far as proposing to reject the finding of the Committee at the last MOP, setting a disastrous precedent.

However, carrying out a study falls short of what is needed to bring about compliance with the Convention. The decision of the Aarhus Committee is very clear: the Aarhus Regulation, which implements the provisions of the Convention at EU institutional level, is not in line with the Convention. The definition of the acts that can be challenged under the Regulation is far too narrow and prevents NGOs and other members of the public from challenging most of the decisions adopted by EU institutions in environmental matters.

While the industry has legal standing to challenge decisions to defend their economic and financial interests, the public interests, environmental protection and public health, are left unrepresented before the EU Courts. The only measure the Commission may adopt to address this lack of compliance is a legislative proposal to amend the Aarhus Regulation. That is also what the Aarhus Committee recommends. Carrying out a study therefore seems to be another trick used by the Commission to delay action and postpone the revision of the regulation.

This stresses the fact that we need more than ever the Council to use Article 241 TFEU and request the Commission to adopt such a legislative proposal. The Council should adopt its decision on the content of the request in the coming week.

This summer will mark the 20th anniversary of the Convention with the EU in breach of its provisions and dragging its feet to come forward with solutions to implement the recommendations of the Aarhus Committee.

Meanwhile we can only encourage the legal and NGO community to participate in the consultation and send their input to the Commission on how to bring about compliance.

The deadline is set for 5 June 2018.