A genuine right to challenge EU decisions in court

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After being a major force behind the ratification of the Aarhus Convention, the EU should also lead by example in implementing it, says Anaïs Berthier. [UNECE / Flickr]

The European Union needs to stand up for environmental democracy and provide access to justice – to ensure respect for the rule of law, to maintain its environmental leadership, and to restore its legitimacy, warns Anaïs Berthier.

Anaïs Berthier leads the Environmental democracy project at ClientEarth, a group of activist lawyers committed to secure a healthy planet.

This summer marks the 20th anniversary of the signing of the Aarhus Convention, the UN’s flagship treaty on environmental democracy.

Under this convention, citizens and NGOs were finally granted procedural rights to have their say in ensuring our environment is protected. Namely the convention ensures rights to access information, participation in decision-making processes, and access to justice – the right to challenge the decisions of public authorities in court.

The philosophy underpinning the convention is based on the – still very modern – idea that we cannot rely on governments and experts alone to address environmental damage resulting from violations of the law. From climate change to biodiversity loss to pervasive pollutants, environmental challenges are multidimensional and civil society has to the able to have its say in tackling these issues.

After being a major force behind the convention’s ratification, the EU should lead by example and be a champion of the convention and the rights and values enshrined within. This should occur not just across the EU but in state parties from Central Europe and Asia to support the march towards democratisation sparked and afforded by the convention.

Lack of access to justice at EU level

Unfortunately, the EU’s commitment to the Convention and participatory democracy, which it promotes, has recently been seriously called into question.

Last year, the independent UN compliance committee of the Aarhus Convention found the EU in breach of the Convention due to insufficient opportunities for the public to have access to justice at the institutional level of the EU.

It followed a complaint lodged by ClientEarth in 2008 contesting the fact that individuals and NGOs were not granted legal standing to challenge decisions adopted by EU institutions before the Court of Justice of the EU.

As yet, no individuals or NGOs have been able to challenge any decisions of EU institutions, except the ones refusing to disclose documents.

What this means is that while industry is allowed to challenge decisions that impact their economic and financial interests, the public’s interest, around environmental protection and public health, are left unrepresented. EU decisions allowing member states to exceed air pollution limits; to authorise pesticides, to kill protected species or allow state subsidies of nuclear or coal power plants, cannot be challenged in front of EU courts, despite those decisions having disastrous impacts for the environment and everyday life of EU citizens.

Disappointingly, the EU’s reaction so far has been to oppose the endorsement of the UN committee’s findings by the Meeting of the Parties (MoP) last September– a first in the history of the convention and a severe undermining of the convention’s compliance mechanisms.

Nevertheless, the EU has committed to explore ways and means to comply with the convention. However, seven months later, we see no sign of the EU taking steps to address the roots of this non-compliance problem.

EU slapped for breaching Aarhus Convention on access to environmental justice

The European Union has accepted a UN ruling that found the bloc in breach of international laws requiring the general public to have access to justice on environmental matters, a decision applauded by green activists.

A crossroad moment for EU democracy

Where do we go from here? Currently at the crossroads, the EU should see this decision as an opportunity and not as a threat. Opportunity not only to comply with international law but also taking steps to restore its legitimacy at a time European citizens have never felt so remote from their Union’s institutions and Euroscepticism running high.

Yet there has been an apparent unwillingness for the commission to properly address the issue. After the compliance committee clearly recommended an amendment to the Aarhus Regulation, the commission has fallen short with a proposal to just carry out a study to assess the situation. It’s now up to member states to step up and make their EU institutions truly accountable on environmental matters.

The Council of the EU is considering making the unprecedented move in environmental matters of using a provision of the Treaty on the Functioning of the EU (Article 241), which will allow it to request the Commission come forward with a legislative proposal for revising the so-called Aarhus Regulation.

If made, this request will mark a real shift in the use of EU institutional powers, which have until now consisted of the Commission acting as the “Guardian of the Treaty” and of EU law in general – with the Aarhus Convention being an integral part of EU law.

It seems this is a case of the Commission having a ‘do as I say, not as I do’ attitude, as it demands member states comply with international law while exempting itself. The resulting backlash from member states will hopefully lead to the Council using Article 241 of the Treaty, and remind the Commission that, along with member states, it is also subject to the law.

Revising the Aarhus Regulation is the only measure the Commission and the Council may adopt to bring the EU back into compliance with the Convention. This will provide members of the public with their right to access to justice, and to enforce EU’s environmental laws and better ensure environmental protections.

It would also restore some credibility for the EU and its institutions. A proper commitment to the rule of law will demonstrate concrete progress in time for the 20th anniversary of the Aarhus Convention and before important European elections.

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