WIREDGOV

A UN Committee on environmental access rights has found that the EU Courts must give citizens, community groups and NGOs the right to challenge the decisions of European institutions, including the European Commission and the European Council, that affect the environment. 

Until now, the EU courts have adopted a strict interpretation of the provisions of the Treaty of the European Community (TEC) concerning access, meaning that no individual or civil society group in the environmental field has been able to challenge the legality of a decision made by one of the institutions unless it was addressed to them personally. This has included decisions made in the form of EC Regulations and Decisions, which can have far-reaching environmental consequences.

Carol Day, solicitor at WWF-UK, said: “Until now, the EU Courts have effectively blocked citizens and environmental organisations from reviewing the decisions of Community institutions. This undermines democracy, accountability and the rule of law; such a persistent denial of environmental justice is unparalleled throughout the European Community.” 

“The draft findings of the Compliance Committee have potentially far-reaching consequences: the EU Courts must give citizens and civil society groups the right to challenge the legality of decisions that have the potential to affect millions of people and the future of our precious natural resources. This would be an enormous step forwards in terms of access to environmental justice” 

In 2007, WWF-UK sought to challenge the legality of the cod quotas set by an EC fisheries Regulation.  Although WWF-UK had been involved in the decision-making process that led to the adoption of the quotas, the EU Courts dismissed WWF-UK’s application on the basis that the organisation could not show that it was sufficiently affected by the decision (2). 

Unfortunately, due to the tight deadline for applying to the European Courts, this case was lodged before a new Regulation applying the provisions of the Aarhus Convention to the EU institutions became legally binding (3). 

Even so, the Aarhus Convention’s Compliance Committee expressed regret that the Courts failed to take account of the fact that even though the Aarhus Regulation was not yet in force, the Convention itself had entered into force when dismissing WWF’s case and held that unless the EU Courts changed their rules on access they would in future fail to comply with the provisions of the Convention.

Contact: 
Benjamin Ward, head of press, WWF-UK – 07837 134 193, 01483 412 378, bward@wwf.org.uk
Carol Day, solicitor, WWF-UK  –07972 159847, 01483 412206, cday@wwf.org.uk

 Editor's notes

 1.       The UN Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was negotiated within the framework of the UNECE and signed by 35 of its member states and by the European Community in June 1998.  It entered into force in October 2001, following ratification by 16 states and currently has 42 contracting parties.  The EC became a contracting party to the Convention in May 2005. 

The Aarhus Convention is a new kind of environmental agreement.  It:

 a.      Links environmental rights and human rights;

 b.      Acknowledges that we owe an obligation to future generations;

 c.       Establishes that sustainable development can be achieved only through the involvement of all stakeholders;

 d.      Links government accountability and environmental protection; and

 e.       Focuses on interactions between the public and public authorities in a democratic context.

The Aarhus Convention Compliance Committee, which comprises 9 experts from across the territory of the UNECE region, examines the compliance of contracting Parties to the Convention on the basis of Communications submitted by other contracting parties and members of the public.  The EU’s compliance with the Convention was raised in a Communication submitted to the Committee in 2008, in which WWF-UK’s case was examined.

 2.      The Aarhus Regulation applies the “three pillars” of the Aarhus Convention - access to information, public participation and access to justice in environmental matters – to the Community institutions.  In respect of access to environmental justice, the Regulation enables environmental NGOs meeting certain criteria to request an internal review under environmental law of acts adopted, or omissions, by Community institutions and bodies as a pre-cursor to a challenge in the EU Courts.

 3.      The European Court of Justice bases its access rules on the TEC and previous jurisprudence of the Court.  Under Article 230 of the TEC (as interpreted by the ECJ in the leading case of Plaumann), applicants must show that they are “directly and individually concerned” by a decision of the EU institution.  Essentially, this requires applicants to show that they are affected by the decision in a way that differentiates them from anyone else.  The draft findings of the Compliance Committee state that the consequences of applying the Plaumann test to environmental and health issues is that in effect no member of the public is ever able to challenge a decision or a regulation as such before the EU Courts.

www.wwf.org.uk