A genuine right to challenge EU decisions in court

Category: Aarhus
The European Union needs to stand up for environmental democracy and provide access to justice – to ensure respect for the rule of law, to maintain its environmental leadership, and to restore its legitimacy, warns Anaïs Berthier.

Lack of access to justice at EU level

Unfortunately, the EU’s commitment to the Convention and participatory democracy, which it promotes, has recently been seriously called into question.

Last year, the independent UN compliance committee of the Aarhus Convention found the EU in breach of the Convention due to insufficient opportunities for the public to have access to justice at the institutional level of the EU.

It followed a complaint lodged by ClientEarth in 2008 contesting the fact that individuals and NGOs were not granted legal standing to challenge decisions adopted by EU institutions before the Court of Justice of the EU.

As yet, no individuals or NGOs have been able to challenge any decisions of EU institutions, except the ones refusing to disclose documents.

What this means is that while industry is allowed to challenge decisions that impact their economic and financial interests, the public’s interest, around environmental protection and public health, are left unrepresented. EU decisions allowing member states to exceed air pollution limits; to authorise pesticides, to kill protected species or allow state subsidies of nuclear or coal power plants, cannot be challenged in front of EU courts, despite those decisions having disastrous impacts for the environment and everyday life of EU citizens.

Disappointingly, the EU’s reaction so far has been to oppose the endorsement of the UN committee’s findings by the Meeting of the Parties (MoP) last September– a first in the history of the convention and a severe undermining of the convention’s compliance mechanisms.

Nevertheless, the EU has committed to explore ways and means to comply with the convention. However, seven months later, we see no sign of the EU taking steps to address the roots of this non-compliance problem.