IN A NUTSHELL: J&E comments on the Commission's Communication on Access to Justice
Justice and Environment (J&E) welcomes that the Commission has taken an initiative aimed at improving access to justice in environmental matters within the Member States. J&E also finds this initiative is quite comprehensive, touching upon most aspects of access to justice.
J&E nonetheless regrets the form chosen for this initiative, namely a Communication, which is not binding, rather than a directive, which would be.
GAPS AND UNCLARITY in terms of content
Also J&E has identified a number of gaps and points of unclarity in the Communication, many of which could have been – and could still be – addressed by:
ü including findings of the Aarhus Convention Compliance Committee, going beyond a mere reliance on the case-law of the CJEU and drawing careful inferences therefrom, and the inclusion of best practices and other concrete examples.
ü clearer acknowledgement of the very serious problems in this area. In this respect, J&E would point to the Commission’s own recently released Impact Assessment on a Commission Initiative on Access to Justice in Environmental Matters, which observes there are hurdles preventing access in all member states, and that this is not a mere matter of policy, but indeed a legal problem.
ü in light of current trends in the EU and beyond, any Commission initiative directly stating that derogations from existing rights are not permissible, and that environmental defenders should be protected.
J&E COMMENTS paragraph by paragraph
In its comments J&E analyzes the Commission’s Communication paragraph by paragraph, taking care to give credit where due, yet also pointing out significant drawbacks. In terms of content, these drawbacks are most pronounced in the sections devoted to standing in cases not subject to public participation requirements and to costs, as these are two areas for which CJEU case-law is scarce. J&E further notes that there is no section at all devoted to the need for “fair” and “equitable” procedures, which are to be derived not only from provisions of EU law, but also article 9, paragraph 4 of the Aarhus Convention.
J&E’s comprehensive comments are intended to help the Commission recognize and address the drawbacks identified, and to help Member States, stakeholders, and the public at large ensure that access to justice in environmental matters is finally achieved within the Member States.
Because access to justice in environmental matters is necessary to not only implement EU and international law (the latter derived from the Aarhus Convention) in some abstract sense. Access to justice is needed:
ü to ensure that civil society has a voice in environmentally-related decision-making that affects people’s lives.
ü to be able to have access to information about the kinds of pollutants an industrial facility has on site, for example.
ü to be able to participate in and have our concerns heard about decisions to allow certain activities that could affect not only human health, but the health of the environment.
ü to be able to bring other types of challenges against acts and omissions where the environment could be affected.
JUSTICE & ENVIRONMENT AND ACCESS TO INFORMATION, PARTICIPATION AND JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION)
Justice and Environment consists of 13 member associations, almost all of which are established in EU Member States. Both as individual organizations, and as a network, we have made achieving access to justice in environmental matters one of our top priorities for more than a decade.
ü We have first-hand experience in this regard.
ü Our member organizations have fought to get access to information, whether it be about the culling of certain species, or about nuclear installations.
ü We have fought to achieve meaningful participation in EIA and construction procedures.
ü We have fought to be able to challenge nuisances or industrial accidents.
We will continue to bring such challenges. We will do so both using the newly issued Communication to support our arguments, while at the same time recognizing the limits this chosen initiative has.
J&E aims to assist and finally achieve access to justice in environmental matters in the Member States.
For further information, please contact:
Summer Kern, Aarhus Topic Leader for Access to Justice, J&E, summer.kern(at)oekobuero.at, phone + 43 664 7327 7556