A day after European Commission President Juncker declared the rule of law to be one of three principles that must anchor the European Union in his State of the Union address, the EU has been heavily criticised for its failure to accept an international panel’s ruling that it is not ensuring adequate access to justice for its citizens at EU level.
A broad coalition of European and Central Asian NGOs issued a strongly-worded statement yesterday afternoon at the close of the high-level segment of the Meeting of the Parties to the Aarhus Convention – an international agreement on the rights of the public to information, participation and justice in relation to environmental issues.
The EEB, Europe’s largest network of environmental organisations with 140 members in over 30 countries, was present at the Meeting of the Parties as part of the ‘European ECO Forum’ coalition of NGOs.
EEB Secretary General Jeremy Wates delivered the critical statement to several hundred delegates following an almost decade-long process that resulted earlier this year in the Aarhus Convention’s Compliance Committee, an independent and highly respected compliance review body, finding the EU to be in breach of the requirements of the Convention.
While all previous Compliance Committee findings against other countries have been endorsed by the Convention’s governing body, the Meeting of the Parties, with the full support of the EU, the bloc refused to agree to Meeting endorsing the ruling that it was at fault, proposing instead that the Meeting should only ‘take note’ of the finding – a stance that was described in the NGO statement as palpably hypocritical and as “showing a worrying lack of respect for the rule of law”.
Jeremy Wates, the EEB Secretary General, said:
As European citizens who care deeply about the democratic values of the EU, we can only feel a sense of shame that the EU has gone into an international forum with a position that threatened to undermine democracy and accountability in a range of countries extending throughout the wider Europe and Central Asia. And the primary reason for this is the European Commission’s stubborn resistance to having its decisions on environmental matters challengeable before the EU courts in the way that the decisions of national authorities may be challenged at national level.
It has been a week of humiliation for the EU. Not a single other government or stakeholder supported its position – fortunately. The EU and especially the European Commission should now learn their lesson from this sorry affair and immediately start to work on revising the relevant EU legislation to bring it into line with international law.
As no other Parties supported the EU position, the resulting stand-off led to the matter being postponed to the next session of the Meeting of the Parties in four years’ time. While the EEB regrets this delay and the poor precedent it creates, the adoption of the EU position would have been far worse for the Convention and for democracy.
In March 2017, after extensive and detailed consideration of a communication (complaint) that was submitted in 2008, the Compliance Committee found that the EU was in non-compliance with the Convention due to the very limited possibilities for NGOs and citizens to have access to justice at the EU level (as distinct from the level of the EU Member States) and to bring cases before the Court of Justice of the EU (CJEU). In response to the finding, the Commission, which is clearly keen to minimise the possibilities for NGOs to challenge its decisions before the CJEU, initially proposed that the MoP should reject the finding of non-compliance. It presented a number of arguments which prompted a statement from the Committee clarifying its position. We found the Commission’s argumentation thoroughly unconvincing and provided a number of counter-arguments, summarised in a letter from NGOs to Ministers. Fortunately the idea of rejecting the finding was itself unanimously rejected by the EU Member States. However, the resulting compromise that emerged was nonetheless very problematic.
The following elements in the EU proposal were of particular concern:
First, it proposes to replace ‘Endorses’ with ‘Takes note’ in paragraph 6 of the draft decision prepared by the Bureau of the MoP. While the precise legal impact of this change may be debated, it represents a clear weakening of the text. Ever since the Compliance Committee was established in 2002, its findings of non-compliance have been endorsed by the Meeting of the Parties. There is a good reason for this longstanding practice: the Committee is an independent body, composed of nine individuals who are elected by the MoP itself and who are recognised by the MoP as ‘persons of high moral character and recognized competence in the fields to which the Convention relates’.
Second, the EU proposes to insert ‘to consider’ in the chapeau of the recommendations in paragraph 7 of the draft decision prepared by the Bureau (or equivalent wording – the EU proposal is unclear with respect to the precise wording). If the MoP recommendation is only that the Party should ‘consider’ the various actions, this would again represent a significant weakening of the recommendations and a departure from the normal style of MoP recommendations, setting the bar very low in relation to the Committee’s monitoring of the follow-up by the Party concerned.
A third concern is the EU’s proposed deletion of the reference to the Court of Justice of the European Union (CJEU) and jurisprudence in paragraph 7(b)(i) and (c). While it may be argued that the CJEU is implicitly covered by the reference in paragraph 7(a) to the EU institutions en bloc, we do not accept the notion that MoP findings should not explicitly make recommendations concerning a non-compliant Party’s jurisprudence, if indeed the Party’s jurisprudence is the reason, or part of the reason, for the non-compliance.
For more information:
Anton Lazarus, Communications Officer, European Environmental Bureau (EEB)