Just before the Christmas break, the European Commission launched a public consultation on the EU’s implementation of the Aarhus Convention in the area of access to justice. This is a follow-up of the decision of the Aarhus Convention Compliance Committee finding the EU in violation of Article 9(3) and (4) of the Convention for not providing members of the public access to either administrative or judicial proceedings to challenge EU institutions’ decisions.
The input provided to the consultation will feed into the study that is being carried out for the Commission at the request of the Council to find ways to comply with the findings of the Aarhus Committee.
The process could have been welcome but is, unfortunately, another disappointment in the access to the EU courts saga. A whole part of the consultation seeks to gather the public opinion on whether access to justice in environmental matters is provided in Member States and to assess the degree of the public’s awareness of the existing procedures enabling members of the public to indirectly question decisions of EU institutions. Numerous questions of the consultation bear on the possibility, provided by Article 267TFEU, for national courts to refer questions to the CJEU on the validity and interpretation of EU decisions. This is no real surprise since the European Commission’s main plea before the Aarhus Committee, which was rejected, consisted in arguing that the Convention does not require direct access to courts and that the possibility to make references for preliminary rulings to the CJEU is sufficient.
Despite the fact that these questions are definitely interesting to assess the state of access to justice rights in the EU, they are off topic in this specific context. The questions asked do not clearly and efficiently tackle the deficiencies of the EU legal system of remedies and the lack of access to justice at EU level.
The Aarhus Committee recommended the EU to revise the Aarhus Regulation (which implements the provisions of the Aarhus Convention with regard to EU institutions) to address several breaches including the fact that only environmental NGOs can ask for review of a decision of an EU institution, whereas the Convention speaks of “members of the public”; the too limited the definition of the acts that can be challenged; the limited scope of the actions that can be brought by NGOs before the CJEU following an administrative challenge under the regulation. The Committee also expressed some doubts as to the validity of some exemptions to the access to justice provisions of the regulation with regard to certain categories of acts, such as state aid decisions.
The power of legislative initiative is in the hands of the European Commission, it has, therefore, lots to consider and to work on to assess the best ways to revise the regulation to implement the provisions of the Convention correctly.
Yet, not one word about this revision is mentioned in the public consultation. No questions on the desirable extent of the revision, the best way to address the deficiencies identified by the Committee, the types of acts and omissions that should be subject to review, whether other entities than NGOs should have standing and, if yes, which ones and to challenge what. This public consultation does not seem to aim at “exploring and finding ways to comply with the findings of the Aarhus Committee” as committed to at the Meeting of the Parties of the Aarhus Convention but rather to question them and to reassert the position of the EU. Business as usual seems to be the favoured option of the Commission. This is confirmed by the Terms of Reference of the study which are excessively broad and out of focus as well. The study will first give an overview of how access to justice is provided at national level and rely heavily on the existence of the possibility to make references for preliminary rulings to the CJEU. It seems that the study will not be based on the premise that the Aarhus Regulation should be revised.
This lack of political will of the European Commission to accept the findings of the Aarhus Committee, a UN committee appointed by the State parties to the Convention (composed of 9 lawyers recognised in their country and being either deans of universities, environmental lawyers, former lawyers of the legal service of the European Commission, administrative judges to name a few) raises real concern. The Commission also plays deaf as to the requests of the Council and its 28 Member States, the European Parliament and the European Economic and Social Committee. All these institutions have called on the Commission to adopt the relevant measures to provide access to EU courts. This is exactly the type of positioning that leads EU citizens to turn their backs on the EU institutions and feeds Euroscepticism at a time when civil society demands participatory democracy.
A positive interpretation of the choice of questions by the Commission could on the contrary be that the Commission is trying really hard to demonstrate that despite the fact that the referral for preliminary ruling is a very useful procedure and allows the CJEU to push for increased access to justice at national level, this does not apply at EU level.
In that sense, the consultation would be aimed at providing evidence that the lack of an access to justice directive, the disparities in the way access is provided (or not provided) at national level in several Member States, the hostility of numerous national jurisdictions to refer questions to the CJEU (see the recent ruling from the CJEU condemning France for not referring), all these elements prevent members of the public from relying in a practical and effective way on the referral procedure. This would, in turn, convince those who are key to the necessary change within the Commission that the limited access provided by the Aarhus Regulation needs to be broadened both in terms of scope of review and standing.
The benefit of the doubt must be granted to the Commission until next September when it is required to reply to the Council’s request in either proposing to revise the Aarhus Regulation or in explaining why it thinks it is not the right option and propose another route.
Let’s, therefore, be as many as we can to once again explain to the European Commission that providing members of the public with access to the EU courts will lead to a better implementation of EU environmental legislation which will, in turn, increase the level of environmental protection. That providing legal standing to NGOs will not flood the EU courts (as evidenced by the impact assessment of the Commission itself) especially now that the number of judges of the General Court has doubled. The fact that EU judges are drowning under thousand-page competition files has never worried anyone. That as long as NGOs are not granted legal standing, public interests, the environment and public health, won’t be represented before the Courts, contrary to the economic and financial interests of an industry which do have access to a certain extent. That making institutions accountable increases their legitimacy and credibility.
CliearthEarth’s reply to the consultation will hopefully inspire others to reply and claim for compliance with the rule of law, in this case, international law by our EU institutions.