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Background: Lack of EU legislation

Notice of the European Commission - Main challenges with regard to access to justice in environmental matters Anaïs Berthier ClientEarth Trier 9 July 2018. Background: Lack of EU legislation.

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Background: Lack of EU legislation

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  1. Notice of the European Commission - Main challenges with regard to access to justice in environmentalmatters Anaïs Berthier ClientEarth Trier 9 July 2018

  2. Background: Lack of EU legislation • The EC adopted a legislativeproposal in 2003 (COM(2003)624) to transpose the thirdpillar of the Aarhus Convention – the twootherpillarstransposed by Directive 2003/4 on access to environmental information and 2003/35 on public participation (into the EIA Directive and IED directive) • The processwasstalled in the Council- Proceduralautonomy • No uniformlegalframework to regulateaccess to justice in environmentalmatters and to harmonise the systemsused by the 28 Member States – lots of disparities and legaluncertainty • Proposalwithdrawn by the EC and replaced by the adoption of a non-legally binding communication

  3. Stillneed for a directive • Impact assessment of the EC on a commission initiative on access to justice in environmentalmatters SWD(2017)255favoured the adoption of a legally binding instrument and states thatprovidingaccess to justice in environmentalmattersdoes not significantlyincrease the number of cases • Resolution of the European Parliament (Action plan for nature, people and the economy) (2017/2819(RSP)) (para. 16) calls the EC to come forwardwith a new legislativeproposal on minimum standards for access to justice review. • Opinion of the EESC on the communication of the EC (C(2017)2616) calls for « an overarching and binding EU legislation » (para. 1.3) • Darpo report (Milieu Study): challenging for practitionersamongthemjudges to onlyrely on the interpretation of the CJEU.

  4. Guidance of the Commission - structure • Public interests. Obligations and rights relevant to the exercise of judicial protection • Legal standing • Scope of judicialreview • Effective remedies • Costs • Time limits, timeliness and the efficiency of procedures

  5. Guidance – General messages • It covers the full extent of access to justice: Beforegoing to court (right to participate in decision-makingprocess, statusprovided to NGOs, delays to go to court), before the court (standing, scope of review)/the orders of the judges (remedies) and costs – Judgesneed to takeintoaccount all these stages. • NGOsplay a fundamentalrole (para. 38) in ensuringenvironmentallegislationisimplemented and enforced. Advocate General Sharpston in Trianel case : « The fishcannot go to court.. ». NGOsgive a voice to the environment and ensurethat public interests are represented (public healththroughenvironmentallaw). Judgesneed to recognise the key roleNGOsplay. V. economicinterests of industry. • Judges must make the most of the case-law of the CJEU as that’s all wegot. Litigationis one of the best legal avenues to influence the decision-makingprocess. • Judges are required to go furtherthan the conforminterpretation – to set aside the national provisions if non compliant.

  6. Guidance of the Commission - Loopholes • Only relies on the case-law of the CJEU – unclear and unambitious on certain points • Lack of reference to the findings of the Aarhus Convention Compliance Committee (a dozen of cases up to MOP of 2014 on article 9(3) of the AC) and to opinions of advocategenerals • Needs to be made alive and updatedwith new case-law – website of DG ENVI • Issues not addressed (access to justice againstprivateparties, environmental defenders, etc.) • There shouldbe a requirementthatthereshouldbe no derogations or back-sliding (para. 1.6 of the EESC opinion) the standards set by the case-law of the CJEU is a minimum standard. Ex: some MS are engaging in back-sliding due to anti-democratic trends, recentlegislative changes lead to stripping NGOs of theirparticipatoryrightsoutside the EIA processes; or getrid of the cassation instance in EIA cases or increase the court fees.

  7. Access to justice “in environmental matters” • Article9(3) ofthe Aarhus Convention: All acts and omissions by private persons and public authorities that may have contravened national law relating to the environment. • ACCC/C/2013/85 and 86: What falls in thescopeofArticle 9(3) is not limited to environmental laws, e.g., lawsthatexplicitelyincludethetermenvironmentor in their title orprovisions (implementingguide). „decisiveissueisiftheprovision in questionsomehowrelatestotheenvironment“. Acts adopted in anybranchesoflaw. The scopeofarticle 9(3) shouldbeinterpreted in light oftheConvention and itspurpose, and in particularArticle 1 aswellasarticle 2(3) whichprovides a definitionof environmental information (T-33/16, TestBiotechcase).

  8. Standing • The guidance drawsyour attention to the CJEU case-law, now the ballis in the court of the judges. • Drawingfrom the SlovakbearI case the notice concludesthat MS are obliged to provide for legal standing to ensureaccess to an effective remedy for the protection of procedural and substantive rightsconferred by EU environmentallaweven if the EU environmentallegislation at stakedoes not containspecific provisions on the matter (para. 95). • Good precedentsmostly in nature cases with the Slovakbearcases 1 and 2; air quality cases (Janecek, ClientEarth cases).

  9. Standing (and scope of review): Good precedents in air quality cases • Air quality cases to enforce Directive 2008/50 on ambient air quality and clearner air for Europe. C- 237/07 Janecek, C- 404/13 ClientEarth cases and series of cases at national level (UK, Belgium, Italy, France, Germany, Czechrepublic). Naturaland legalpersonsdirectlyconcerned by the limit values beingexceeded must be in a position to require the competentauthorities, if necessary by bringing an action before the courts havingjurisdiction, to establish an adequate air quality plan (Janecek para. 39) • And to review the adequacy of the measuresincluded in an existing plan. • National authoritiesand courts must interpret national law, as far as possible, in a waythatis compatible with the purpose of that directive … wheresuch an interpretationis not possible, they must disapply the rules of national lawwhich are incompatible withthe directive concerned. (para. 36)

  10. But stilllack of implementation • But not satisfactory as somejuridsictionsstill do not give standing whenrequired: • Air quality plans are not administrative actsthatcanbechallenged by members of the public. They are internal administrative decisions, directedonly to local authoritiestaskedwiththeirimplementation. They do not createrights and obligations for citizens and NGOs. Concernedpersonslackinterest to seekjudicialreview of the adequacy of the plans. • Harm to the health of the applicantis an impact on hisfactualsitation– no legalinterest to challenge a defective plan • Thesejuridisctionfailed to apply the relevant EU legalrules on access to justice. Dismissed the references to EU law and case-law of the CJEU as irrelevant.

  11. Impairement of a right • The notice acknowledges the issue caused by the impairement of a right requirement (para. 102): environmental protection usually serves the general public interest and does not aim at expresslyconferringrights on the individuals. • « Requiring a « sufficientinterest » raisesfewer challenges ». • « MS mayadoptcriteriathatindividuals and NGOs must fulfil in order to obtainlegal standing, but thesecriteria must not makeit impossible or excessivelydifficult to exerciseproceduralrightsconferred by EU law »

  12. Impairment of a right • Notice: Criteriaestablished by MS in the context of Article 9(2) of the AC willalsobeappropriate in an Article 9(3) context. • BecauseNGOswill not be able to demonstrate an impairement in the sameway as an inividual: considering the role of ENGOs in protectinggeneralenvironmentalinterests … MS whichapply the impairement of rights doctrine need to do so in such a way as to ensurethatenvironmentalNGOs are givenlegal standing to contestdecisions, acts and omissions whichconcernthisrole » (para . 107) • Sincethen: Protect case: « dulyrecognised » NGOs must begiven standing.

  13. ACCC finding: no such distinction under the Convention • Article 9(3) « does not distinguishbetween public or privateinterest or objective or subjective rights, and itis not limited to anysuchcategories ». « a strict interpretation of thisprinciple in matters of access to justice under the Convention wouldimply non-compliance with article 9(3) sincemany contraventions by public authorities and privatepersonswould not bechallengeableunlessitcouldbeproventhat the contravention infringes a subjective right. The requirement of infringement of subjective rightswould in many cases rule out the oportunity for environmentalNGOs to accessreviewprocedures, sincethey engage in public interestlitigation ». C-31 Germany para. 94-95.

  14. Membership organisation v Foundations • Notice refers to Djurgardenthatrecognise the right to impose the membershipcriteria but stresses on the imposed conditions and • Acknowedgesthat all NGOsthatbenefitfrom the de lege standing in MS are not membershipbased and stresses that claims made by suchNGOs have givenrise to important CJEU case-law.

  15. Adoptingdecisionsthroughlegislation • The AC excludeslegislativeactsfromits scope (article 2(2)); Directive 2011/92 excludes « projects the details of which are adopted by a specificact of national legislation ». • But in Boxus(C- 128/09 to C-131/09, C-134/09 and C-135/09) and Solvay: national courts are obliged to reviewwhether the conditions justifying exclusion are fulfilled. • The exception applyonly if certain conditions met and the AC and directive wouldlose all effectiveness if the merefactthat a projectisadopted by a legislativeactwere to makeit immune to anyreviewprocedure for challengingits substantive and procedurallegality (Boxus, para . 53)

  16. Need to refer questions to the CJEU • Most of the case-lawfrom the CJEU on access to justice stems fromreferals for preliminaryrulingsfrom national courts • Yet, still lots of refusalsfrom national courts to refer questions • Article 267 TFEU: An obligation for last resort courts in case of doubts on the interpretation of a provision of EU legislation or validity • The Notice states that « the role of Article 267 maybe put in doubt if access to national courts iseither impossible or renderedexcessivelydifficult » (para. 23).

  17. Updates needed • The Notice shouldbeupdated to reflectthat CJEU has granted Article 9(2) of the AC has direct effect: members of the public concerned must begrantedaccess to justice in accordance withthat provision (Case C-243/15, Slovakbear II; Protect). • Article 9(3) read in conjonction with Article 47 of the Charter of FundamentalRights and directly applicable provisions of EU lawrequirethatNGOsbegivenaccess to justice. « imposes on MS an obligation to ensure effective judicial protection ». (C- 664/15, Protect, para. 45). Courts must disapplyanysuchlawswhere a compliantinterpretationis impossible. This holdstrueevenwhere « anyconflicting provision of national legslationwereadoptedsubsequently, and itis not necessary for the court to request or await the prior setting aside of such provision by legislation or otherconstitutionalmeans » • Judges are required to go furtherthan the conforminterpretation – to set aside the national provisions if non compliant.

  18. Updates needed • Scope of article 9(2) and 9(3) of the AC has becomewayclearersince the adoption of the notice: Brown Bear II ruling has been reaffirmed in a water lawcontext in Protect: « wheresignificanteffects (of a project on the environment) cannotbeexcluded, the decision-making at issue wouldfallunder article 6(1)(b) and therefore article 9(2) of the Aarhus Convention ». • Reaffirmsthatitwouldbe incompatible with the binding effectconferred by Article 288 TFEU on a directive to exclude the possiblity to rely on its obligations before a court of law. • Theseprinciples and interpretationcanbeextended to other areas of law: waste. Judgesneed to beready and open for thiskind of cases and reactaccordingly.

  19. Flash update on access to justice at EU institutionallevel • The Plaumann test: No standing for NGOs and individuals • The EU found in violation of Article 9(3)(4) of the AC: Neither the Aarhus Regulationnor the jurisprudence of the CJEU provideaccess to justice to members of the public. • Recommendations to amend the Aarhus Regulation 1367/2006 and to interpret EU law in conformitywith the Convention: apply the Slovakbear case to itself. • MOP: The EC proposed to oppose the adoption of the findings • The Council opposed: proposed compromise to « take note » of the findings

  20. Access to justice at EU institutionallevel • No MOP decisionwasadoptedbecause of the opposition of NGOs,Switzerland, Norway and the Chair of the MOP. • Commitment of the EU to explore ways and means to bring EU law in line with the AC • Organisation of a public consultation by the EC following adoption of a roadmap • Council decision on basis of Article 241 TFEU – invite the EC to submit a study by Sept. 2019 and revision of the Aarhus regulation « if appropriate ». Unprecented use of thisprocedure in environmentalmatters.

  21. Merci Anaïs Berthier Senior Lawyer –Environmental Democracy Project Leader ClientEarth aberthier@clientearth.org t. +32 (0)2 808 3468 www.clientearth.org @ClientEarth

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