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ClientEarth Communications

6th November 2020

EU

The European Commission’s communication on improving access to justice: Roadmap for action or cover for non-action?

On 14 October, the European Commission adopted a legislative proposal to amend Regulation (EC) No 1367/2006 (the Aarhus Regulation) – see our analysis here. On the same day, the Commission also published an accompanying communication on improving access to justice in environmental matters in the EU and its member states. The documents are supposed to cover deficiencies in access to justice in environmental matters at the EU level identified by the Aarhus Convention Compliance Committee (ACCC) in its findings in 2017. This post gives a brief introduction to the Commission’s Communication.

Shifting the burden to the Member States

The first three sections focus on the crucial role of citizens and stakeholders in delivering lasting change regarding combating climate change. They also stress the vital role of Member States, which have the responsibility to provide legal standing for NGOs and individuals directly affected by a breach of environmental law and ensure effective administrative and judicial review.

According to the document, shifting the burden of ensuring effective remedies on Member States and their national courts stems from Member States’ obligations under EU law, namely the principle of loyal cooperation laid down in Article 4(3) TEU and the Article 19(1) TEU and Article 47 Charter requiring Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by the Union law. According to the Communication, this position is confirmed by the case law of the CJEU, which upholds the rights of the public to obtain access to national courts.

The Commission also reiterates its belief that access to national courts is essential in completing the system of remedies in the EU legal order, as such access is a prerequisite to securing the necessary preliminary references to the CJEU.

4 priority areas for action

In the last section of the Communication, the Commission identifies four main areas for action to ensure effective judicial protection in environmental matters in the EU legal order.

  1. The Commission recalls the Member States’ obligation to ensure that they fully and correctly transpose access to justice requirements stemming from EU secondary law, such as the EIA Directive, the Directive on Industrial Emissions or the Directive on Environmental Liability.

  1. The Commissions calls on the co-legislators to include provisions on access to justice in new or revised EU legislation concerning environmental matters. This requires active support by the European Parliament and the Council when the Commission includes such provisions in its legislative proposals. The Commission notes that in recent years, the Council has been reluctant to adopt such provisions.

  1. The Commission urges Member States to review their own national legislative and regulatory provisions other than those that transpose the directives. This applies particularly to national provisions that prevent NGOs active in environmental protection or individuals directly affected by a breach of EU environmental law resulting from the actions or omissions of public authorities.

  1. The Commission calls on national courts to guarantee the right of individuals and NGOs to an effective remedy under EU law. The role of national courts as Union courts is one of the cornerstones of the proper functioning of the EU’s system of effective judicial protection. Where necessary, national courts must set aside any provisions that are contrary to EU law, even if these are of legislative or regulatory nature. This should include undue restrictions on legal standing to ensure that EU rules have full force and effect.

Comment

The first four sections of the Commission’s Communication mostly repeat the previous Commission‘s mantra that access to justice in environmental matters is mainly to be dealt with by national courts. While this is true for breaches by national authorities and private bodies, shifting the burden as regards unlawful EU acts and omissions is not justified. For a start, this position fails to acknowledge the inherent limitations of the preliminary reference procedure – access to the CJEU depends on the willingness of the national court to send preliminary questions. It also disregards existing pressures on national courts, especially in countries with rule of law deficiencies. In Poland, the national courts are for instance under increasing pressure to merely maintain the rule of law, having to exercise "diffused constitutional control" in the absence of an independent Constitutional Court.

As regards the identified priority areas, a true commitment by the Commission to do all in its power to achieve them could have a major impact. This would entail, firstly, bringing more infringement proceedings to ensure full implementation of EU environmental law and access to justice rights (first and fourth priority). In the absence of sanctions, Member states will not be willing to adopt the necessary measures. There has been a recent uptake in numbers of infringement cases and the Commission needs to further leverage this tool to achieve real change.

Secondly, a serious impediment is the lack of binding access to justice provisions in EU environmental legislation. It is no coincidence that the second priority area identified by the Commission is discussed extensively in the Communication. While the Aarhus Convention and impressive body of CJEU case law have secured some improvement in access to justice at national level, it is insufficient  . To be truly enforced by national courts, the obligations flowing from Art. 9(3) and (4) Aarhus Convention need to be integrated more precisely at the EU level. While a horizontal directive would clearly be the preferred option, the introduction of access to justice provisions in sectoral legislation could have a transformative impact to ensure access to justice. It is true that the European Parliament and, especially, the Council, have not always taken up such proposals from the Commission, and this needs to change. However, in the context of the EU Climate Law, such a provision was now introduced in Article 10 of the Parliament position, and it will be on the Commission and the Council to support it.

If the Commission instead only counts on Member State action to achieve the priorities, the Communication will have done nothing more than outline issues that have been well-known for many years.

The project

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.

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