On 4 March 2010, the European Commission authorised the placing on the market of a genetically modified potato called Amflora.

This potato contains modified starch which – according to the consent holder BASF – can be better processed into products like paper and adhesives. The authorisation was issued for cultivation and for use as feed and as food not exceeding the threshold of 0,9 %. Amflora is a very controversial potato product as it contains the Antibiotic Resistance Marker Gene nptII which creates resistance to important antibiotics like kanamycin, neomycin or geneticin thus posing risks for medical and veterinary treatment.

Directive 2001/18/EC on the deliberate release of GMOs stipulated the phasing out of the use of such Antibiotic Resistance Markers within a transition period starting from 2001 and ending at the latest by 31 December 2004. Despite this obligation, the European Commission authorized a GMO product which has been prohibited now for more than 5 years. In doing this the Commission relied on a scientific opinion of the European Food Safety Authority (EFSA), however, this latter opinion contradicts to EFSA’s earlier opinion, ignores the views of competent bodies like the WHO and the European Medicines Agency and shows many inconsistencies like incomplete consideration of evidence.

Justice and Environment – European Network of Environmental Law Organizations – in cooperation with Greenpeace CEE and FoE Austria/GLOBAL 2000 – decided to take the case and request an internal review of the decision at the European Commission, based on Regulation (EC) No. 1367/2006 (the so-called “Aarhus Regulation”). The response of the Commission can be expected in the coming six weeks.

You can read the request here.

A new Report on Access to Justice in Environmental Matters is based on experiences with practical application of Article 9 of the Aarhus Convention in ten European countries (nine of them being the EU Members). The Report discuses several specific topics from this field, which can be considered as crucial in relation to the practice of legal protection of the environment, namely

-  terms for access to justice by individual members of public (“standing conditions”),

-  scope of the court review of acts and omissions, related to the environment

-  effectiveness of a court review, particularly its timeliness.

In relation to this, several more general subjects are discussed, e.g. the matter of direct application of the Convention by courts and the implementation of the Convention on the EU level and by the EU bodies.  The most important overall aspect, which this study reflects on, is the disunity of the application of access to justice provisions of the Convention requirements by its individual Parties (mostly the EU Member States).

Access To Justice Report

This Position Paper summarizes the results of the Report on Access to Justice and other J&E’s  recent analyses related to the Aarhus Convention (“Price of Justice” and analyses of the  Request for Internal Review procedure according to the EU-Aarhus Regulation). Subsequently, it proposes a  number of recommendations for the EU institutions, including

- re-starting the discussions about the Commission’s proposal of the Directive on Access to Justice in Environmental Matters, specifying minimum common rules on that field

- initiate conformity – checking procedure concerning implementation of Art. 9(3) and Art. 9(4) of the Aarhus Convention by the Member States..

- review the application of the request for internal review procedure, namely the criteria applied for the admissibility of the requests

ATJ under Aarhus Convention – position paper

Short studies (“toolkits”) presented in this material are summarizing the most important experience of the J&E members and their national partners concerning promotion of the access to justice rights in their respective countries. They aim to provide an instrument to the users of access to justice rights in brief and (hopefully) easy-to understand form the relevant lessons learned by trying to protect the environment at national courts.

Aarhus Toolkit

The European Commmission aims to review the Seveso II directive 96/82 EC on industrial accidents. For that purpose the Commission started preparations for a review process starting with an assessment of the directive’s impact, strengths and weaknesses and prelimanary discussions with stakeholders. We expect the official consultation procedure to start in the next months.

Justice and Environment made a first check of the directive with regard the direcive’s compliance with the Aarhus Convention. Our findings are pretty clear: the SEVESO II directive is in stark contradiction to the Aarhus Convention. This means both the European Union and its member states are in legal non compliance with the Convention. The review process must thus strive to overcome these shortcomings and make the directive compatible with the Convention by providing rights on public participation, information and justice.

J&E’s position paper:  Aarhus and SEVESO J&E 2010-02-16

“Legislators have realized that the existing political measures are insufficient to combat climate change.” – concludes the Development of Climate Legislation 2009 report of the Justice and Environment network.

The binding provisions with a direct reference to climate change are primarily based on direct obligations under international and EU legal acts at the present time. Presumably the situation will change in the first half of 2010:  some  legislative measures have been introduced, others are underway. J&E’s new publication: Development of Climate Legislation – Key Findings 2009 is out now.

Over 80 million Europeans are exposed to harmful noise levels. The EU acquis, Environmental Action Programmes and finally the 2002/49/EC3 Environmental Noise Directive (END) described and targeted noise as one of the basic environmental problems. In year 2009, following upon a 2006 needs assessment, the legal experts of the Justice & Environment (J&E) Network compiled the comprehensive “Make Some Noise” shadow report about the – in our assessment, rather low level – implementation of the Directive. Among the findings and recommendations the development of Noise Maps and Noise Action Plans, delays and quality problems, low level of public involvement and non-cohesion with other regulations and plans are listed. The international comparative report and the National reports are presented and available on the J&E homepage.

Download

• Make some Noise! (2009) -International shadow report on the Implementation of the Environmental Noise Directive
• Make some Noise! (2009) – Austria
• Make some Noise! (2009) – Czech Republic
• Make some Noise! (2009) – Estonia
• Make some Noise! (2009) – Hungary
• Make some Noise! (2009) – Slovakia
• Make some Noise! (2009) – Slovenia
• Air and Noise Needs Analysis (2006)

Justice for All, or those who can afford?!

National researchers of the J&E network examined the costs of legal remedies both in administrative and judicial proceedings. The “Loser Pays Principle” sounds like a disincentive for public interest litigation but is that really such big a hurdle for achieving environmental justice at the government or before the court. Findings based on a research done by experienced environmental lawyers, using open sources as legal databases, case law and numerical data, combined with justified opinions are to be found in another fresh study of J&E called PRICE OF JUSTICE - International Comparative Analysis on Costs of Administrative and Judicial Remedies.

• PRICE OF JUSTICE  – INTERNATIONAL COMPARATIVE ANALYSIS
• Price of Justice in Austria
• Price of Justice in Czech Republic
• Price of Justice in Croatia
• Price of Justice in Estonia
• Price of Justice in Hungary
• Price of Justice in Romania
• Price of Justice in Slovakia
• Price of Justice in Slovenia
• Price of Justice in Spain

Request for internal review (RIR) – preach or practice ?!

In the realm of environmental law, controversial decisions both on the national and supra-national levels spur the public to seek for legal remedies. Such remedies are available on the said levels; however, their applicability – let alone their effectiveness – are widely questioned by the public.  To what extent this skepticism is true was in the focus of research of Justice and Environment, European Network of Environmental Law Organizations in 2009. One of the areas assessed by J&E lawyers was to what extent the Aarhus Regulation adopted by the EU in 2006 is a real opportunity to challenge environmental decisions made by European Community institutions.  The statistics derived by desk research from data available on the Commission’s dedicated website so far seem quite discouraging: only one out of eight such requests was considered procedurally eligible. Whether it is due to the wrong interpretation of this legal instrument or to a restrictive policy of the Commission, can be found out in the recent study of J&E called: RIR IN PRACTICE, The Functioning of the Legal Instrument of Request for Internal Review under the Aarhus Regulation.

A new  J&E Access To Justice Collection is available on the Justice and Environment Website. The collection is based on practrical experiences and court cases of J&E member organisations in seven countries. The national studies discuss the definition of terms for access to justice by individual members of public (standing conditions); the scope of the court review of act and omissions; the effectiveness of a court review, particularly the requirement of its timeliness; the position of the Convention in legal system of its parties and the (non)unity of application of the Convention in individual states (parties) and the consequences therein. The collection of legal studies has been sponsored by International Visegrad Fund and Ministry for Housing, Spatial Planning and Environment of the Netherlands (VROM)