Campaigners welcomed the European Commission’s proposed changes to the Aarhus Regulation to make access to justice for NGOs easier but warn that this is just the first step of a much larger process.

Yesterday, after a ten-year long legal battle initiated by the environmental law organisation Climate Earth, the European Commission released a proposal to address the shortcomings of the so-called ‘Aarhus Regulation’.  Note 1.

Campaigners and lawyers hailed the proposal that plans to tackle the biggest obstacle NGOs seeking to challenge EU decisions face, but they reminded that this important first step fails to fully address the democratic deficit.   Note 2.

Individual and general scope 

Under the current Aarhus Regulation, NGOs can only challenge decisions with an individual scope, i.e. decisions that apply to individuals. This restriction is, however, debilitating for environmental NGOs that often need to challenge decisions that have a general application.

This shortcoming is a clear violation of the Aarhus Convention, an international treaty that grants environmental rights to NGOs and citizens, established by the Convention’s Compliance Committee in 2017. The Compliance Committee stated that the EU’s requirement for ‘individual scope’ greatly restricted the opportunity for NGOs and people to challenge environmental decisions in the public interest and limited their access to justice. But whereas NGOs have had limited access to the EU Court, industry players, on the other hand, are able to challenge a wider range of measures and protect their business interests more easily.

Anaïs Berthier, from ClientEarth said: “This is a long overdue proposal, which goes some way towards levelling a playing field which is heavily sloped in favour of industry’s interest – to the detriment of our health and the environment.“

Some industry groups have expressed opposition to amending the Regulation, arguing that the changes create uncertainty and delays. But campaigners from ClientEarth, EEB and Justice&Environment explain that this would simply bring the EU in line with an international convention it signed some 20 years ago, thereby increasing certainty on the application of environmental rights.  Note 3.

Missed opportunity

Despite the good news that this proposal brought, campaigners regretted that all the gaps in the Aarhus Regulation, and that were identified by the international committee, were not addressed.

Under this proposal, NGOs will still face barriers when they will ask for an environmental decision to be reviewed.

Decisions linked to competition and state aids can still not be challenged by environmental groups, a problem because state aids can have a great impact on the environment.  For instance, decisions on fossil fuel subsidies that slow down the energy transition still cannot be challenge by NGOs under this proposal, despite these decisions having a severe environmental and climate effect.

Another unresolved problem in the Commission’s proposal is that decisions requiring another implementing measure, either by the EU or by Member States, cannot be reviewed. In the proposal, the Commission explains that if a Commission decision requires Member States to implement certain measures, then NGOs should challenge the Member State measure, not the Commission decision.   This situation results

in an enormous loss of time and resources for NGOs as they would have to first go through the national courts, delaying proper environmental protection. The proposal does further not allow NGOs to challenge the original Commission decision which can be the root cause of the environmental problem.

The Commission’s proposal will now be debated in the European Parliament and by representatives of the Member States in the Council of the EU.

Note 1. www.clientearth.org

Note 2.  Marie-Amelie Brun, “Commission proposal to strengthen access to justice tackles main obstacle but falls short overall,” META (14 Oct 2020).  bit.ly/3pvgYX8

Note 3. www.justiceandenvironment.org/home/

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The Aarhus convention is an international treaty that grants environmental rights to NGOs and citizens. It covers access to information, public participation and access to justice. All three rights have been under scrutiny at member state level for many years

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Originally published in META from European Environmental Bureau (15 Oct 2020) at bit.ly/3o3bDpF

Marie-Amélie Brun is a contributor to META. She is working as a Communication Officer at the European Environmental Bureau (EEB). She mostly writes on implementation of EU environmental laws. She previously worked at the Irish Environmental Network in Dublin, as a communications intern.

Editor’s Note:  For further developments (17 Dec 2020), see European Council, Council reaches agreement on improving access to justice in environmental matters  at bit.ly/3nbso0V