European Commission seeks to block access to justice for EU citizens

The European Commission yesterday took an unprecedented step to attempt to prevent access to environmental justice for its citizens, bluntly rejecting greater public accountability of the EU institutions on environmental questions.

The European Environmental Bureau (EEB) is deeply concerned by this development which it sees as a shameless attempt by the Commission to resist public accountability and put its own interests above those of the public it is supposed to represent.

The EEB is Europe’s largest network of environmental organisations with 141 members in 33 countries.

The EU and its member states are Parties to the international Aarhus Convention, which guarantees the public rights to information, participation and justice on environmental issues.

In March 2017, the Convention’s Compliance Committee found the EU to be failing to comply with the Convention’s requirements due to the very limited possibilities for NGOs and the public to have access to justice at the EU level.

Yesterday, the Commission adopted a formal proposal [1] that the EU should block those findings when they are presented for adoption by the Convention’s governing body, the Meeting of the Parties (MoP), in Montenegro in September.

Responding to today’s proposal, EEB Secretary General Jeremy Wates said:

“This is a deeply disturbing development. Once one strips away the weak and misleading legal argumentation in the Commission proposal, what is at issue here is a shameless attempt by the Commission to resist public accountability. Behind the legal complexities, at essence it is a case of a bureaucratic institution putting its own interests above the interests of the European public it is supposed to represent.”

The EEB is deeply concerned about the potential consequences if the Commission position were to become the EU position, as the EU’s 28 Parties would form a majority within the 46 voting Parties and thus determine the outcome of the MoP. Since the establishment of the Convention’s compliance mechanism in 2002, all of the Compliance Committee’s findings of non-compliance have been adopted by the MoP with the full support of the EU. If on the one occasion that the EU is the subject of a finding of non-compliance, the EU were to reject that finding, this will widely – and rightly – be seen as extraordinary act of hypocrisy from the EU and undermine any claim it may have to stand for democratic accountability and the rule of law. There is also a risk that a rejection of the findings by the EU would embolden other countries with poor human rights records to challenge the findings of the Committee when they are found in non-compliance.

Jeremy Wates said:

“Rejection of the Committee’s findings would have a devastating impact not only upon the Convention’s independent and highly respected compliance mechanism but also on the Convention itself. It would also be very damaging for the EU’s standing and credibility in the wider region. It is therefore essential that EU Member States reject the Commission’s proposal, support endorsement of the Committee’s findings and commit to amending the relevant EU legislation without delay to bring it in line with the Convention.”

The EEB believes that the Member States should have good reason to take the side of citizens against the Commission because of the double standards applied by the EU institutions in this area. Only two months ago, the Commission issued interpretative guidance to the Member States on how to implement the access to justice provisions of the Convention within their own jurisdictions, and the Court of Justice of the EU has similarly in the past few years handed down rulings obliging Member States to provide effective access to justice in their jurisdictions – yet these same institutions have resisted similar levels of access to justice in relation to themselves, to such an extent that the highly respected independent Compliance Committee has found them to be in violation of international law.

The EU was found to be in breach of the Convention because 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. The Compliance Committee found that this situation was incompatible with the requirements of the Convention, a decision which was welcomed by NGOs at the time. [2]

EU Member States will have their first opportunity to discuss the Commission’s proposal at a Council Working Party meeting on Monday 3 July 2017.

Notes to editors:

Prior to joining the EEB in 2011, Jeremy Wates served for more than a decade as Secretary to the Aarhus Convention with the Geneva-based United Nations Economic Commission for Europe.

[1] Council Decision on the position to be adopted, on behalf of the European Union, at the sixth session of the Meeting of the Parties to the Aarhus Convention regarding compliance case, European Commission, 29 June 2017

[2] Aarhus finding paves way to more democratic Europe, EEB Press Release, 20 March 2017

European Commission seeks to block access to justice for EU citizens
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