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Dr. Apolline J. C. Roger, Senior Teaching Fellow in EU environmental law, University of Edinburgh Law School.

The right to access justice is a crucial safeguard for environmental NGOs and citizens, allowing them to contest public authorities’ decisions that impact the environment and public health. By joining the Aarhus Convention in 2005, the EU acknowledged this right as a pillar of good governance and a key element of the human right to a healthy environment.

However, the EU has consistently hesitated to allow citizens and NGOs to directly challenge its actions. Consequently, NGOs have questioned the EU’s legal remedies system’s compatibility with the Aarhus Convention’s access to justice provisions. The Court of Justice ultimately sidestepped this issue, declining to affirm the direct effect of the relevant Aarhus provision and refraining from evaluating whether the EU effectively guarantees access to justice in environmental matters.

The EU’s legal remedies system: A complex web leading to challenges

The EU’s legal remedies system offers ENGOs distinct procedures to contest different types of EU environmental acts. However, these procedures are not created equal in terms of effectiveness.

Challenges against EU legislative acts and broad EU administrative acts requiring further implementation must be made indirectly. This means the Court of Justice can only review their legality if a national court presents the question (known as the preliminary ruling procedure). ENGOs face significant hurdles with this process. They must first await national action, which can be time-consuming. Next, access to national courts depends on national law granting them standing, which isn’t guaranteed. Finally, ENGOs must persuade the national court that referring the matter to the Court of Justice is necessary, which is far from automatic. Therefore, this indirect route lacks the certainty and effectiveness of a direct legal challenge.

EU general administrative acts not requiring further implementation can be directly contested by ENGOs before the Court of Justice. Lastly, EU individual administrative acts can only be directly challenged before the Court of Justice by the act’s recipient, which rarely includes NGOs.

Thus, NGOs face two major limitations in accessing justice. First, they cannot directly contest broad EU administrative acts requiring further implementation. Second, they cannot challenge individual EU acts unless they are the direct recipient, which is uncommon. These limitations raise the question of whether they violate the Aarhus Convention. While the Convention doesn’t mandate a judicial procedure, if one exists, it must include an “internal review” or “administrative review” process.

The EU established an internal review process for environmental matters through Article 10 of Regulation 1367/2006 (“Aarhus Regulation”). However, this regulation limits the process’s scope by defining “administrative act” as any measure of “individual scope.”

Given the limitations of the preliminary ruling procedure, should the internal review under Article 10 of the Aarhus Regulation encompass broader EU administrative acts requiring further implementation? Should it extend even further to all EU general administrative acts, regardless of further implementation needs? These crucial questions, seeking to assess the EU legal system’s compliance with the Aarhus Convention, were ultimately put before the European Courts.

The General Court’s stance: Finding the EU’s system lacking

ENGOs swiftly attempted to utilize Article 10 of the Aarhus Regulation to request the Commission to review its decisions of general scope. The Commission denied these requests, emphasizing that the regulation restricts the procedure to individual acts. The ENGOs contested these rejections before the General Court, arguing that the Aarhus Convention mandates extending Article 10 to cover all EU administrative acts, including those with broad scope. The General Court agreed.

The Court highlighted that the Aarhus Convention’s objectives must guide the interpretation of its provisions. The Convention aims to ensure high-quality environmental decision-making by empowering NGOs and citizens through access to justice, a cornerstone of the right to a healthy environment. Therefore, broad access to justice is paramount.

The Court noted that since most EU executive acts concerning the environment have a broad scope, limiting internal review to individual acts minimally improves access to justice. Additionally, the Court pointed out that the Aarhus Convention does not allow parties to pick and choose which acts are easily challengeable. The only exceptions are those adopted by institutions acting in a judicial or legislative capacity. Consequently, general acts adopted by the Commission, falling under its executive powers, should be easily contestable and included within Article 10 of the Aarhus Regulation.

The Aarhus Convention Compliance Committee in 2008 emphasized to the EU that its preliminary review system does not constitute an appeal system for EU institutions’ and bodies’ decisions, acts, and omissions, nor does it fulfill the Convention’s access to justice requirements. The lack of a direct judicial procedure, the Committee stated, should be “fully compensated for by adequate administrative review procedures.” The General Court, acknowledging this, aimed to supplement the preliminary ruling procedure with a direct process: the internal review. However, by not differentiating between broad administrative acts requiring further implementation and those that don’t, the Court subjected the latter to two direct review procedures—one administrative, one judicial.

This broad interpretation of Article 10, while potentially viewed as respecting the Court of Justice’s steadfast support for the preliminary ruling as a sufficient means of access to justice, carried the risk of being overturned, which ultimately occurred in January 2015.

A missed opportunity: The CJEU overrules the General Court

The Court of Justice overturned the General Court’s decisions. However, it did not assess the adequacy of the EU’s legal remedies system. Instead, it determined that the conditions for recognizing the indirect and direct effect of the relevant Aarhus Convention provision were not met, thus dismissing its applicability. Consequently, the legality of Article 10 could not be reviewed against the Aarhus Convention, and the internal review process remains limited to individual acts.

This represents a missed opportunity to enhance access to justice at the EU level. While some might argue that courts should not contradict the legislative intent expressed in the regulation’s text, this would not have been unprecedented. Additionally, the legislature had expressed its commitment to the Aarhus Convention and guaranteeing access to justice as a fundamental element of the right to a healthy environment. Judicial interpretation could have bridged the gap between the Aarhus Convention and the narrow scope of Article 10.

Furthermore, this missed opportunity extends beyond the EU level. Access to justice in environmental matters varies significantly across Member States. Allowing the review of the Aarhus Regulation could have encouraged national courts to reassess the standing rights granted under national law in light of the Convention.

Finally, the Court seems to have created a double standard for access to justice at the EU and national levels. While urging national courts to broaden access, it seems unwilling to follow its own guidance. The preliminary ruling procedure presents excessive difficulties for ENGOs seeking to exercise their right to access to justice. The internal review offers a fitting alternative without overburdening the courts. Ultimately, internal review procedures, with their preventive nature, are well-suited to environmental issues.

By refusing to broaden the scope of Article 10, the Court of Justice rejected a straightforward solution to address the inadequacy of the EU’s legal remedies system.

Image: www.foe.scotland.org.uk

Barnard & Peers: chapter 22