Environment

Ensuring access to justice

01/09/2012

The extent to which the public can take an environmental issue to court is unclear. The basic right of access to justice is enshrined in the United Nations Aarhus Convention and some specific areas of EU environmental law, but the principle is not always applied in practice. The Commission is seeking to clarify the issue.

Adopted in 1998 and ratified by the EU in 2005, the Aarhus Convention establishes rights for individuals and associations, including the right to receive environmental information held by public authorities and to participate in environmental decision making. If it is felt either of the two conditions, or environmental law in general, has not been respected, a third right allows a public decision to be challenged.

While the sequence leading to the courts under the Convention is generally clear, it is less evident when European environmental legislation contains no specific provision for access to justice.

In 2003, the Commission presented a proposal for a directive to provide access to justice if national authorities were believed not to be respecting environmental rights. This has still not reached the statute book.

Meanwhile, the wider context has changed. In a case involving hunting brown bears in Slovakia, the Court of Justice of the European Union was asked if a NGO could challenge a decision on the basis of the Aarhus Convention.

Meanwhile, the wider context has changed. In a case involving hunting brown bears in Slovakia, the Court of Justice of the European Union was asked if a NGO could challenge a decision on the basis of the Aarhus Convention.

The Court concluded that access to justice should be ensured and national authorities should provide NGOs with as much access as possible. The Lisbon Treaty codifies the principle of effective legal protection and gives a higher legal value to the Charter of Fundamental Rights including its access to justice provisions.

But the situation remains unclear. It is easier for environmental groups to access the courts in some countries than others. This creates uncertainty for national judicial systems, for economic interests and for anyone challenging the environmental impact of decisions by private or public bodies.

Seeking clarity

Possible solutions include minor updates to the proposed directive, soft law guidance on recent jurisprudence, or legal action against Member States considered not to be correctly implementing the Aarhus Convention.

A more realistic approach could be a more in-depth revision of the draft directive to take account of recent jurisprudence and clarify the rights of NGOs and individuals to go to court. This would reflect the need to ensure that legal action would not be too costly or lengthy and allow for interim injunctions. Mediation and conflict-resolution are also being considered.

 

Environmental law