The EEB welcomes the Aarhus Compliance Committee’s conclusion that the European Union is in breach of its legal obligations under the Aarhus Convention due to the lack of effective access to justice at EU level. [1]

At present, while businesses have relatively easy access to the Court of Justice of the European Union to defend their commercial interests, environmental NGOs have virtually no access to the Court to defend the environment other than in access to documents cases. This is because the EU legislation implementing the Convention limits the type of acts of bodies like the Commission which may be challenged before the Courts to measures of ‘individual scope’, whereas most of the decisions that NGOs seek to challenge are of general scope. The Aarhus Compliance Committee found this to be incompatible with the requirements of the Convention. [2]

EEB Secretary General Jeremy Wates [3] reacted to the Committee’s conclusion:

“This crucial finding of a respected international body vindicates the longstanding concerns of environmental NGOs about the lack of effective access for non-governmental organizations and the public to the EU courts. It also points the way forward to making the EU more accountable to its citizens at a time when this is more needed than ever.”

“The EU must now act swiftly to embrace the Committee’s findings and implement its recommendations. The European courts must be more open to NGOs and the public should they wish to challenge the decisions of bodies such as the European Commission.”

The Committee’s findings will now be submitted for formal endorsement by the Meeting of the Parties in September 2017. [4]

Notes to editors:

[1] The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted in 1998 in the Danish city of Aarhus under the auspices of the United Nations Economic Commission for Europe (UNECE). The Aarhus Convention entered into force in 2001 and now has 47 Parties, including the EU and all of its Member States. The EU became a Party in 2005, meaning that since then the provisions of the Convention have applied to the EU institutions themselves.

In 2002, a compliance review mechanism was set up under the Convention, with at its heart a Compliance Committee made up of independent experts to review compliance by Parties. A more or less unique feature of the mechanism is that it provides that any member of the public may trigger a review by the Committee of any Party’s compliance. So far more than one hundred cases have been brought to the Committee since its inception.

On Friday 17 March 2017, the Committee issued its findings in relation to a ‘communication’ submitted to it in 2008 by the NGO ClientEarth (case no. ACCC/C/2008/32). Its findings in this and other cases will be submitted to the Convention’s governing body, the Meeting of the Parties (MoP), for endorsement at its sixth session which will take place in Montenegro in September 2017.

[2] The Committee found among other things that a provision in the EU legislation applying the Aarhus Convention to the EU institutions (the so-called Aarhus Regulation) that limits the type of administrative acts of bodies like the European Commission which may be challenged to ‘measure[s] of individual scope’ is not consistent with the Convention. This has effectively prevented environmental NGOs from challenging any decisions taken by the Commission before the Court, because most of those decisions are of general scope.

[3] Prior to joining the EEB, Jeremy Wates served for more than a decade as Secretary to the Aarhus Convention with the Geneva-based United Nations Economic Commission for Europe.

[4] At each session of the MoP since the compliance mechanism was established (2005, 2008, 2011, 2014), the MoP has endorsed all of the Committee’s findings of non-compliance, with the full support of the EU. The EU should therefore start to prepare the changes needed to restore full compliance without awaiting formal endorsement of the findings by the MoP, so that it is already able to report to the MoP on the progress made.