The European Union has shown a complete disregard for democracy and the rule of law by consistently failing to respect the right of people to bring its institutions’ decisions to court, write Anaïs Berthier.
Anaïs Berthier is a lawyer for ClientEarth, an organisation of activist environmental lawyers.
Democracy is built on accountability and the rule of law. To uphold these principles, people must be able to challenge the decisions of European institutions in court. The EU’s treaties enshrine our right to bring these cases, but the EU has consistently failed to respect this right. In doing so, it disregards its own founding principles and the UN Aarhus Convention on access to justice, which the EU signed almost 20 years ago.
Going to court lets two parties debate the meaning of the laws governing our lives, with a judge having the final word. But it’s much more than that. It gives people a say in the decision-making process. Since the EU was created, these debates have only happened between EU institutions, national governments and industry. Individuals and civil society have been excluded, and there has been no way for people to challenge the decisions of EU institutions in court. Yet these decisions impact the life of every single person in the EU. They govern the quality of the water we drink, the air we breathe, the chemicals in our household products and children’s toys. This means the EU is not truly democratic.
That’s why ClientEarth brought the EU before the UN committee charged with upholding the Aarhus Convention. In the hearing on 1 July 2015, the Commission represented the EU, and its arguments showed a complete disregard for democracy and the rule of law.
This is what we learned:
1. EU institutions cannot be challenged in the EU courts
The Commission claims EU citizens have access to justice, despite the fact that no NGO or member of the public has ever been given the right to challenge any decision of an EU institution before the EU courts. It argues that people can question the validity of EU law through their national courts, which can pass the questions on to the EU Court. However, some member states don’t give NGOs and individuals access to the courts, so citizens can’t rely on this route to challenge EU law. Why is that? Because…
2. The EU is not providing access to justice in national courts
The EU refuses to ensure access to justice in environmental matters at national level. The Commission adopted a directive proposal to guarantee this access in 2003, but the process stalled in the Council. Lack of political will at the Commission and pressure from national governments meant the proposal was withdrawn last year. Since then, the public have been kept in the dark as to what the Commission will do to remedy this failing. The EU is therefore preventing access to justice at both national and European level.
3. The Commission’s arguments have already been dismissed by the UN Aarhus Committee
The Commission’s argument – that the right of people to question the EU court via their national courts constitutes access to justice – was thrown out by the UN Aarhus Committee in 2011. In offering an irrelevant argument, the Commission ignored the decision of the committee with which they are supposed to comply. This shows a troubling lack of regard for the democratic and legal principals underpinning the European Union.
4. One rule for the EU court, another for national courts
The EU Court of Justice has different rules on environmental justice for national courts – where it says access must be granted – and for itself, where it bars access to justice. This double standard is inexcusable, as the EU has signed the Aarhus Convention, which binds EU institutions in exactly the same way as it binds national authorities. Ignoring this, the EU pressures national governments to provide access to justice, while dodging its own obligations.
5. The EU is breaking international law
In 2011, the Aarhus Committee said that if the EU courts did not allow individuals and NGOs to bring environmental cases, the EU would be breaking the Aarhus Convention. The courts have not changed their decisions, clinging to their narrow definition of who should be able to bring a case. They argue that the only way a person or NGO can challenge a decision is if they are the sole party affected. The absurdity of this reasoning is clear to see. Environmental issues never affect just one person. Think of pollution, the health impacts of hazardous chemicals, or the opening of a coal power station. According to the EU’s thinking, the more people who are affected by a decision, the less likely it is that they will be able to challenge it.
The committee must now decide whether the EU is breaking international law on access to justice. We do not expect the EU to welcome a decision which puts them in the wrong. Ironically, accepting such a decision would prove we truly live in a democracy.