Despite being a party to the Aarhus Convention since 2005, the European Union is still not fully complying with its "access to justice" provisions. In its opinion adopted on 27 January, the European Economic and Social Committee (EESC) welcomes the Commission's proposal to revise the EU Aarhus Regulation as a step forward in improving access to administrative and judicial review procedures in environmental matters for citizens and NGOs. However, the Commission does not go far enough. Civil society organisations are asking the EU for stronger enforcement mechanisms to deliver effectively on the Aarhus Convention and on the European Green Deal.
The Aarhus Convention – a key tool for environmental democracy
The EESC has highlighted the importance of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters on several occasions. The Convention is the only international legally binding instrument giving the public (individuals and their associations) broad and specific rights with regard to environment matters. It is therefore a key instrument for environmental democracy.
In particular, the Convention consists of three pillars:
- The right to know, i.e. to receive environmental information held by public authorities ("access to information");
- The right to participate in decisions relating to the environment ("public participation in decision-making"); and
- The right of recourse to a court of law: to enforce rights to information and participation, or to challenge public decisions that contravene environmental law ("access to justice").
The Convention's focus on protecting both environmental and human rights, and on involving the public, provides a powerful mechanism for holding governments to account in their efforts to address the multi-dimensional challenges facing our world today, including climate change, biodiversity loss, and air and water pollution.
The Commission's proposal to improve access to justice does not go far enough
The EU is a party to the Aarhus Convention, and the Aarhus Regulation adopted in 2006 contributes to the implementation of the obligations set out in the Convention for EU institutions and bodies.
The Commission's proposal to strengthen the internal review mechanism contained in the EU Aarhus Regulation is therefore an important step forward in improving access to justice in environmental matters, which is essential for achieving the objectives of the Aarhus Convention and the European Green Deal.
The EESC generally welcomes the amendments proposed by the Commission. The aim is to improve the possibilities for environmental NGOs to request the EU institutions to review acts where the NGOs consider that they may contravene EU environmental law.
However, the EESC has identified loopholes in the proposal that may be used by institutions to avoid being held accountable.
The Commission's proposal is an important step towards improving access to justice in environmental matters. But it is not enough, said Arnaud Schwartz, EESC rapporteur.
Civil society organisations are asking the EU for strong enforcement mechanisms. Citizens and NGOs should be able to hold EU institutions and Member States accountable if and when they fail to deliver on environment and health protection.
As an example, the EESC does not endorse the Commission's proposal to exclude EU acts entailing "national implementing measures", because there is a real possibility that this exclusion could nullify or devalue the Commission proposal. The EESC is also concerned that allowing civil society organisations (CSOs) to conduct a review only when the implementing measures have been adopted would prevent many, if not most, EU acts and omissions from being subject to internal review.
If the proposal is not improved, many decisions will remain unchallengeable, even if they clearly violate environmental law, Mr Schwartz added.
The EESC also calls on the Commission to facilitate access to justice for all civil society organisations. In particular, Isabel Caño Aguilar, EESC co-rapporteur, stressed that
the social partners are key players in environmental issues, and they should be explicitly recognised as regards access to justice.
To make judicial review accessible in practice, civil society organisations should not face extra burdens, such as additional costs and bureaucratic measures, concluded Ms Caño.
According to the Aarhus Convention Compliance Committee (ACCC), the EU is still not fully complying with its "access to justice" provisions. Why?
According to the ACCC, the Aarhus Regulation does not adequately implement Article 9(3) and (4) of the Aarhus Convention.
It is clear from the wording of Article 9(3) of the Convention that its scope is "acts and omissions" without restrictions, except for decisions adopted within the legislative and judicial capacity of public authorities. This means that, every time the institution acts in their administrative capacity, the decision should be subject to scrutiny.
Nevertheless, according to the interpretation of the Court of Justice of the European Union (CJEU), Article 10 of the Regulation only gives the possibility to resort to the internal review procedure for acts with an individual scope. Having in mind that acts adopted in the field of the environment are mostly acts of general application, this interpretation excessively narrows the scope of the Convention.
According to this direct and individual concern criterion, the only persons who can challenge the decision are those to whom the decision is addressed:
“Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed".
Key messages from related EESC opinions
For the Communication to have real effect, it needs to be complemented by training and education at Member State level across the intended audiences, and in particular for the judiciary, administrative review bodies, and citizens.
An independent, objective, comprehensive and up-to-date baseline needs to be developed and maintained. It should reflect the positive developments and issues with access to justice at Member State level, and all elements of Article 9 of the Aarhus Convention.
The EESC also joins the Commission in stressing that current shortcomings are undermining people's trust in the effectiveness of EU legislation, and calls on the Member States and the Commission to mobilise substantial funding for the recruitment of additional staff, in order to monitor the implementation of environmental governance and legislation.
The EESC also asks the Commission to address the issue of the cost of access to justice for civil society.
Once again, referring to a previous opinion, the EESC calls for the European Commission to work on improving access to justice for civil society (e.g. with the right for CSOs to stand before the European Court of Justice and specialised judges and prosecutors at EU, national and local level).
To improve access to justice, the EESC also thinks that individuals should be able to approach the European Court of Justice directly, as is the case with the European Court of Human Rights (ECHR), when the transposition of EU law into national law is at stake and domestic remedies have been exhausted.
Given the often excessive judicial delays, the EESC calls on the Commission to consider establishing an environmental injunction for issues other than emergencies. Member States would be required to comply with this injunction, and it would mean that work is suspended pending a decision by the Court of First Instance in the event of there being any immediate harm to the environment.
The EESC also asks the Commission to create an appropriate mechanism to ensure that fines paid for causing environmental damage are invested in actions aimed at supporting environmental protection.