The European Court of Justice has ruled that environmental NGOs cannot challenge EU institutions’ decisions in court
In a final ruling, the European Court of Justice has decided that environmental NGOs have no right of access to court. Industry, of course, has long enjoyed such access.
This extremely serious development appears to be a political decision to insulate the EU institutions from the public’s demands for environmental information and justice. We hope lawyers and NGOs based in Europe will do all they can to oppose it.
The links to the ruling are here and here.
EXCERPT (item 3): Siim Vahtrus, Chairman of Justice and Environment, commented [on] the judgment: “It struck the whole environmental civil society by surprise that the Court represented a negative view in its latest judgment. The reasoning given by the Court is lengthy and very formal, indicating that the Court wishes to avoid challenges to decisions of EU institutions at all costs. It is a sad precedent for the EU which runs counter to public demand of more transparency and accountability of the EU.”
1. Luxembourg court blocks NGOs’ rights on access to court
2. ECJ rulings a setback for environmental democracy
3. Green law group frustrated by EU Court judgment limiting access to justice
—
1. Luxembourg court blocks NGOs’ rights on access to court
Pesticide Action Network Europe, 13 January 2015
http://www.pan-europe.info/News/PR/150113.html
[links to sources at the link above]
Today Luxembourg court (Grand Chamber) [European Court of Justice] in a final ruling decided that NGOs have no right of access to court and agreed with EU Commission, Council and Czech Republic who started an appeal to a previous decision of the General Court [1]. This is a surprising outcome since the General Court of Luxembourg in 2012 concluded the opposite, Access to court verdict 2012, and granted NGOs access. The reason for this remarkable change of the court's opinion is that they feel that the international Aarhus convention granting the right of access to court is not concrete enough.
NGOs therefore cannot challenge Commission decisions such the decision to massively relax the food standards for pesticide residues as PAN Europe did in 2008, as well as challenge the derogation that Commission granted to the Netherlands for meeting air pollution standards as Friends of the Earth-NL did.
The outcome is the more remarkable since Advocate-General Jaakinen in May 8, 2014 released its advice to court and also upheld the right for access to court for NGOs (see same link to Curia).
PAN Europe feels it is a sad day for democracy in Europe. Industry can go to court already for years and take advantage of this right by doing dozens of cases on pesticides only. Now after EU institutions did, also Luxembourg court fails to put in place the proper balance and grant NGOs the right to also challenge the implementing work of Commission. Knowing that almost every Commission decision on pesticides includes derogations of the rules, NGOs will not be able to pursue their mission in court and protect people and the environment against undermining EU rules, watering down of agreed standards and loopholes and backdoors ignoring democratically agreed Regulations.
Footnotes:
1. Council v Stichting Natuur en Milieu and Pesticide Action Network Europe
—
2. ECJ rulings a setback for environmental democracy
EEB [European Environmental Bureau]
13 January 2015
http://www.eeb.org/EEB/index.cfm/news-events/news/ecj-rulings-a-setback-for-environmental-democracy/
Today’s European Court of Justice rulings [1] on a number of cases [2] related to the EU’s implementation of the Aarhus Convention [3] are a sorry step backwards for environmental democracy, public accountability and access to justice with respect to the EU institutions at a time when the EU needs to be proving its democratic credentials. For many, it will confirm the existence of a serious democratic deficit in the EU institutions.
In the cases in question, the Commission had denied NGOs the right to make a ‘request for internal review’ of decisions taken by the Commission on the grounds that the challenged acts could not be considered as acts of "individual scope". The NGOs then invoked the Aarhus Convention and the corresponding EU Aarhus Regulation to appeal against the Commission‘s decisions before the European General Court, which found in favour of the NGOs. The Commission, Parliament and Council then appealed the judgements of the General Court before the ECJ, which today upheld the appeals and set aside the judgments of the General Court.
The Aarhus Convention is designed to provide individuals and environmental groups with wide access to justice on environmental matters.
The EU, which is party to the Aarhus Convention, attempted to apply the provisions of the Aarhus Convention to EU institutions by adopting the so-called Aarhus Regulation in 2006 [4]. However, the Regulation offers a very limited scope to those wishing to take advantage of the provisions in the Convention, namely by limiting the access to an internal review procedure only where the acts being challenged were “measures of individual scope”. As a result, the Aarhus Regulation is currently only applicable to a very few decisions adopted in environmental matters.
Jeremy Wates, Secretary General of the European Environmental Bureau, expressed his regret at the ECJ judgements. “Today´s ECJ judgements raise serious questions about what it means for the EU to be a party to an international treaty. We remain of the view that the relevant provision of the Aarhus Convention is sufficiently precise to rule out any limitation of acts that may be challenged to ’measures of individual scope‘, and that the EU’s Aarhus Regulation is not in compliance with the Aarhus Convention. We therefore intend to see that this is pursued through the Aarhus Convention Compliance Committee and Meeting of the Parties.“
Anais Berthier of ClientEarth EU Aarhus Centre added: “These judgments simply avoid the legal issue that was at stake, that is the non-compatibility of the Aarhus Regulation with the Aarhus Convention with regard to access to justice rights. The Court missed the opportunity to bring about compliance of EU law with the Aarhus Convention, to ensure access to justice to NGOs and thus increase environmental protection. As long as citizens and NGOs will not be able to challenge decisions of EU institutions before the EU courts, the EU will not be fully democratic.“
The fact that the EU institutions have used public money to resist greater public accountability can only play into the hands of Eurosceptics, who already regard the EU as a fortress of arrogant and unaccountable bureaucrats.
Notes
[1] Link to ruling http://curia.europa.eu/juris/document/document.jsf?text=&docid=161324&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=178340 and http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex=0&part=1&mode=lst&docid=161323&occ=first&dir=&cid=178413
[2] Cases C-404/12 P and C-405/12 P were appeals before the Court of Justice of the EU from Stichting Natuur en Milieu (Dutch NGO) and Pesticide Action Network Europe against a General Court's ruling which annulled two Commission decisions rejecting as inadmissible the applications lodged by the NGOs seeking to have the Commission review its Regulation No 149/2008 setting maximum permitted pesticide residues; Case C-401/12 P to C-403/12 P were appeals before the Court of Justice of the EU from two Dutch NGOs, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht against a General Court's ruling which annulled a Commission decision rejecting as inadmissible the NGOs' request for review of its decision to grant the Netherlands a temporary exemption from the obligations laid down in Directive 2008/50/EC on ambient air quality and cleaner air for Europe, to comply with the annual limit value for the air pollutant nitrogen dioxide.
[3] http://www.unece.org/env/pp/introduction.html
[4] Regulation No 1367/2006
—
3. Green law group frustrated by EU Court judgment limiting access to justice
Justice & Environment
January 15, 2015
http://www.justiceandenvironment.org/_files/file/2015/Press%20Release%201%20of%202015%20CJEU%20Dutch%20judgment_final.pdf
Justice & Environment, the leading green law NGO network in EU, is deeply frustrated by
yesterday’s judgement, in which the EU Court denied environmental organizations’ access to justice.
Two years ago, two Dutch environmental NGOs filed a lawsuit against the European Commission at the General Court of EU. The Court then held that the European Regulation on challenging environmental decisions of EU institutions contradicts the UN Convention on
environmental access rights (the Aarhus Convention).
The General Court therefore granted the organizations a right of appeal directly on the basis of the Convention itself.
Yesterday, the Court of Justice of the EU came to the opposite conclusion, finding that the Aarhus Convention lacks clarity and precision needed for direct application. Siim Vahtrus, Chairman of Justice and Environment, commented [on] the judgment:
“It struck the whole environmental civil society by surprise that the Court represented a negative view in its latest judgment. The reasoning given by the Court is lengthy and very formal, indicating that the Court wishes to avoid challenges to decisions of EU institutions at all costs. It is a sad precedent for the EU which runs counter to public demand of more transparency and accountability of the EU.”
J&E, operating in 12 EU countries, applies the Aarhus Convention in the Member States and in relation to EU institution s on a daily basis.
The new judgment will make law enforcement by the civil society much harder in the future and further reduces the accountability of EU institutions.
“This and the apparent trend of the new European Commission to downgrade environmental protection is an extremely dangerous combination.” – warned the J&E chairman.
Notes to editors:
1. The link to the judgment:
http://curia.europa.eu/juris/document/document.jsf?text=&docid=161324&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=178340
2. The Aarhus Convention is an international convention of the UNECE region on access to information, public participation and access to justice in environmental matters.
More info
Justice and Environment (J&E) is an association of public interest environmental law organizations. The objective of J&E is to contribute to a better status of environment and human health in Europe. J&E drives for this through the use of law (European and national
environmental laws) and the improvement of access to information, public participation and
access to justice in environmental matters by legal means. To learn more visit http://justiceandenvironment.org/