States fail to remedy access to justice failures

Sebastian Bechtel is environmental democracy lawyer at ClientEarth

At the end of February, the Aarhus Convention Compliance Committee published its first set of “Progress Reviews”. These analyse to what extent Parties found to have breached the Convention have remedied those failures. The results are bleak. As regards access to justice issues, the Compliance Committee has found that none of the monitored Parties has remedied the shortcomings since the Aarhus Meeting of the Parties (MOP) in September 2017. Here is what is at stake and what has happened in each of the Parties:

European Union

Based on a ClientEarth communication of 2008, the Committee found in two parts (first in 2011 and then in 2017) that the EU did not provide for adequate possibilities to challenge acts and omissions of its institutions. Direct access to the EU courts is made impossible in public interest cases by the Court of Justice of the European Union’s (CJEU) restrictive interpretation of the standing criteria contained in Article 263 TFEU, i.e. that an applicant must be directly concerned or (in case of legislative acts) directly and individually concerned by the act in question. These requirements have never been met by NGOs or individuals seeking to protect the environment. EU Regulation 1367/2006 provides for an internal review procedure intended to remedy the issue but barely any cases fall within its limited scope. Most recently, the EU Commission has conducted a public consultation, which ought to feed into a study on how the EU can comply with these findings. According to the official timeline, the study should be ready by June and the position of the European Commission communicated to the Council in September this year.

In its Progress Review, the Committee regrets that the EU has provided only very limited information on the steps taken and that it was therefore in no position to assess if any progress had yet been made. The Committee also “expressed its serious concern” that any measure to be put in place would become effective before October 2020, the final deadline to report prior to the next MOP.

United Kingdom

Starting from 2010, there have been a row of Committee findings against the United Kingdom for excessive costs of judicial procedures. By now, there is also a number of CJEU judgements on the topic (see especially Case C-530/11). Over the years, England and Wales, Scotland and Northern Ireland all introduced instruments of cost protection. Essentially, for claims covered by this protection, an applicant can now apply for an order which caps adverse costs at GBP 5000 for individuals or GBP 10000 for NGOs (GBP 5000 for both in Scotland) and a cross-cap for defendant costs of GBP 35000.

However, while progress varies somewhat between the constituent countries, the issue has not been addressed in a satisfactory manner anywhere in the UK. An important outstanding issue is the extent to which all claims are covered by cost protection (in particular, private law claims) and the level of the caps. Moreover, the latest amendments in England/Wales increased legal uncertainty and, in some respects, actually worsened the situation, raising concerns as to the costs applicable to multi-party proceedings and on appeal, the costs of associated satellite litigation and the privacy implications of disclosing funder information.

Despite these concerns, the latest progress report of the United Kingdom consisted to a large extent of copy-pasted information from earlier reports. The Committee accordingly reacted with unusually strong language in its Progress Review expressing its “disappointment” concerning the UK’s reporting.

Armenia

The Committee found in 2013 that Armenia had failed to comply with the Convention because its Court of Cassation denied standing to an NGO to challenge two Environmental Impact Assessment decisions and a license for copper and molybdenum mining. In reaction, Armenia did amend its Administrative Procedure Code and adopted a new Law on NGOs in 2016. However, the Committee found that these new provisions did not comply with the Convention because they required an applicant to have previously participated in the decision-making procedure to obtain standing, i.e. a preclusion rule. The Committee had previously established in its findings on Bulgaria that “preclusion” did not comply with the Convention.

This finding was endorsed by the Meeting of the Parties in 2017. However, in its progress report of October 2018, Armenia only referred to the same legislative changes as before. In its Progress Review, the Committee accordingly “noted with concern” that there was no new information.

Austria

The Committee found that Austria provided insufficient standing to NGOs to challenge acts or omissions contravening national law relating to the environment (article 9(3) of the Convention), first in 2011 and then again in 2013. Essentially, in Austria applicants need to show that their rights have been violated, unless a special rule in a sectoral law gives them standing rights. In 2018, Austria finally adopted some legislative amendments, which have improved standing in the areas of EU waste management, water protection and air pollution laws. However, as recently analysed in this newsletter by Ökobüro, these amendments still fall short of covering all relevant areas of Austrian environmental law.

The Committee accordingly found that providing for access to justice only in the sectoral areas of waste, water and air quality was insufficient to comply with the Convention. It further expressed concern that proposed amendments to the EIA Act imposing membership criteria on NGOs may be a step in the wrong direction and also requested Austria to provide more information on the exclusion of suspensive effect in cases related to water and waste legislation.

Bulgaria

In 2012, the Committee found that Bulgaria failed to comply with the Convention because members of the public, including NGOs, could challenge neither spatial plans nor construction and exploitation permits. Bulgaria has since then maintained that it was not necessary to provide for a possibility to challenge these plans and permits, referring to the fact that members of the public could challenge –Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) decisions. In reaction to this open refusal to comply with the Convention, the Meeting of the Parties issued a caution on Bulgaria in 2017. A caution is the first stage of condemnation available to the Parties of the Convention and can be followed by a suspension of rights and privileges.

The Meeting of the Parties further endorsed findings of the Committee of 2015 that the Bulgarian courts failed to make their own assessment of the risk of environmental damage when deciding on whether a permit could be subject to preliminary enforcement. This means that, when an EIA/SEA decision is under challenge, the Bulgarian courts often enforce the permit on the basis of the challenged EIA/SEA decision’s assertion that there would be no environmental damage. By the time the EIA/SEA is then struck down, the project may already be in operation.

Turning to the Progress Review, the Committee expressed its serious concern that Bulgaria did not even report on how it intends to remedy the failure to challenge spatial plans and exploitation permits. The Committee also found that no clear progress had been made to remedy the preliminary enforcement issue. The caution therefore remains in place. In the meantime, environmental NGO Za Zemiata has filed a new communication listing further access to justice failures in Bulgaria (ACCC/C/2018/161) and ClientEarth has filed last month a complaint to the European Commission for Bulgaria’s failure to give standing to members of the public to challenge air quality plans.

Romania

The Committee found in 2015 that Romania had failed to ensure that review procedures for information requests are timely and provide an effective remedy. The cases considered by the Committee took on average 2 years or longer to resolve. In 2018, Romania sought advice on how to remedy this situation. The Committee referred Romania to a summary prepared in the context of the Convention’s Task Force on Access to Justice, which had found that a number of Parties require that courts deal with information requests in an expedited manner. For instance, Malta requires that a first hearing be held within 6 working days from receipt of the application, while in Portugal a summary procedure applies that allows cases to be dealt with usually within one month.

Romania took note of these examples in its progress report of October but did not refer to any concrete measures besides planned meetings with “public officials from the justice sector”. Accordingly, the Committee‘s Progress Review states that the non-compliance has not yet been remedied.

Spain

The Committee found in 2010 that Spain had failed to comply with the Convention for failing to apply its legal aid system to small NGOs. Since then, progress on this specific aspect has been slow, with the Ministry of the Environment indicating in 2017 that it was struggling to obtain adequate attention to the problem from the Ministry of Justice. In its progress report of October 2018, the Ministry of Environment reports on a meeting held between the two Ministries but on no concrete actions taken. The Committee accordingly shows considerable frustration in its Progress Review, stating that a single meeting between two Ministries is not enough and that Spain should, as a matter of urgency, take measures to remedy the non-compliance.

Surprisingly, during the Committee meeting two weeks ago, Spain then alleged that the issue had already been remedied by way of a Supreme Court decision of January 2018, i.e. preceding its own progress report. The NGOs following the procedure were quick to clarify that such a single decision does not amount to “jurisprudence” in the sense of the Spanish legal system and could therefore not be relied on. It seems therefore unlikely that the Committee will be persuaded by this sudden change of argumentation by the Spanish government.