Writer: Nicola Sharman (published 23.6.2021)
When the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters entered into force in 2001, it was hailed as ‘the most ambitious venture in environmental democracy’. Two decades later, the EU is facing major criticism for violating the Convention’s access to justice provisions. Despite findings by the Aarhus Convention Compliance Committee (ACCC) of such violations, the EU’s response is so far underwhelming.
At a recent webinar hosted as part of the 2035Legitimacy project, organised by the Erik Castrén Institute at the University of Helsinki and the Centre for Climate Change, Energy and Environmental Law at the University of Eastern Finland, legal experts discussed the ongoing access to justice concerns within the EU and their implications for climate action in particular. As well as the need to push for legislative solutions, a key theme emerging from the webinar is the need to consider some of the underlying reasons for the EU’s lagging implementation.
Narrow Scope for Internal Review of EU Decisions
The first key element of the ACCC’s findings concerned the EU’s Aarhus Regulation, under which an internal review mechanism is designated as the main avenue by which civil society organisations can challenge decisions of EU institutions relating to the environment. The ACCC found that, because the Regulation restricts such reviews to ‘administrative decisions’, defined as measures of ‘individual scope’ which are of ‘legally binding and external effect’, there are in practice only extremely narrow circumstances in which a decision will be open to the review procedure.
In response, in October 2020 the European Commission published legislative proposals to broaden the definition of ‘administrative acts’ to those of ‘general scope’. While this is a positive development, the proposals have still fallen far short of expectations in several ways as highlighted by the ACCC. Acts with no legally binding or external effect remain excluded, despite their often significant impact. Moreover, the procedure remains open only to NGOs and not individuals. Finally, a new exclusion was introduced for administrative acts which foresee national implementing measures, which arguably could exclude most substantive EU decisions.
High Hurdles to Establish Standing at the Court of Justice
Another element of the ACCC’s findings was the overly restrictive interpretation adopted by the Court of Justice of the EU (CJEU) of standing requirements for Annulment Proceedings under Article 263(4) of the Treaty of the Functioning of the EU (TFEU). For a claim to be considered by the Court, the applicant must show ‘individual concern’ which, by virtue of its Plaumann decision, the CJEU interprets as setting a very high admissibility bar.
In spite of the ACCC’s findings, the CJEU has not deviated from its approach. For climate action in particular, due to the very nature of climate change’s widespread and intergenerational effects, we are consistently seeing examples of this approach impeding access to justice. One of the most significant is the recent ruling by the CJEU in the People’s Climate Case, in which individuals and NGOs challenged the ambition of the EU’s commitment to reduce its greenhouse gas emissions. The CJEU deemed the claim inadmissible due to lack of individual concern shown by the applicants. Despite various strategies being employed asking the CJEU to take a flexible approach, the Court insists on the basis of separation of powers that they are constrained by the rules laid out in the TFEU.
More Than just a Legal Problem?
These two ongoing access to justice issues – the internal review procedure under the Aarhus Regulation and standing requirements under the TFEU – are based on legislative hurdles. Securing legislative changes therefore forms a key part of the solution. But legislation is only part of the broader picture. To better understand the reasons behind the EU’s weak and lagging response to the findings of its Aarhus Convention violations, some of the broader issues at play should be considered and addressed.
The Aarhus Convention is primarily about guaranteeing individuals’ procedural rights in environmental matters. However, at its heart the Convention is motivated and driven by its more fundamental goal of the fulfilment of substantive environmental rights. This is alluded to in the Convention’s objective ‘to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’. Moreover, the Convention is underpinned by additional themes of environmental democracy and environmental stewardship, each with their own broader meanings and implications.
These core purposes are what give the Convention meaning, but this can easily be forgotten and become disconnected from its operative provisions on procedure. In its implementation of the Convention, the EU must recognise this vital context and the Convention’s ultimate objective, which could hold the key to unlocking more interpretative possibilities in the legislation.
Institutional Burden Shifting
Analysis of the responses and reasoning of both the Commission and the CJEU reveals a pattern of burden shifting. In respect of the Commission’s proposed amendment to the Aarhus Regulation, the new exclusion of acts which require ‘national implementing measures’ in effect means that most acts will first have to be challenged in domestic courts through preliminary reference procedures. In its Communication accompanying the proposal, the Commission explained and reinforced this approach by strongly stressing the role of national courts in the EU legal order. In doing so, the Commission shifts responsibility for implementing the Aarhus Convention onto member states and dilutes its own role. Meanwhile, in respect of the CJEU’s inflexibility towards its own interpretation of the TFEU’s standing requirements, the Court is in effect saying that it has no power or responsibility to address the issue of standing, thereby shifting the burden to tackle the issue back to the Commission.
This repeated ball-tossing amongst the EU institutions and member states perhaps points to more deep-rooted institutional issues and entrenched politics concerning their respective roles within the EU legal order. When it comes to implementation of the Aarhus Convention, this is raising serious questions about the EU’s commitment to its international obligations.
The Road Ahead
At a time when many are questioning the legitimacy of the EU and civil society is increasingly using climate litigation as a tool to hold governments to account for their climate commitments, access to justice is more critical than ever. The Aarhus Convention has a vital role to play.
In implementing the commitments it made 20 years ago and addressing its access to justice violations highlighted by the ACCC, it is essential that the EU takes into consideration the fundamental goal of the Convention to contribute to the fulfilment of substantive environmental rights and takes its international role to do so seriously.
This blog post was inspired by the presentations and discussions that took place during the webinar hosted by the 2035Legitimacy project on 8 June 2021 titled ‘Revising the Aarhus Regulation: Securing Adequate Legal Protection for Climate Action?’. Speaking at the event were Dr Emily Barritt of King’s College London, Prof. Mariolina Eliantonio of Maastricht University, Dr Ioanna Hadjiyianni of the University of Cyprus and Sebastién Duyck of the Center for International Environmental Law. Also contributing to the discussions were Prof. Päivi Leino-Sandberg of the University of Helsinki, Anne Friel of ClientEarth, Sirpa Pietikäinen, Member of the European Parliament and Prof. Harro van Asselt of the University of Eastern Finland. You can watch a recording of the webinar.
Writer Nicola Sharman is a PhD Researcher at the University of Eastern Finland. Her work forms part of the 2035Legitimacy project and will explore the legitimacy dimensions of international climate decision-making processes.
Photo by Marcin Jozwiak on Unsplash.