It focuses on raising awareness about the legal possibilities available for citizens and NGOs to help protect the environment through access to justice.
What exactly is access to justice and why is it essential?
What is Access to Justice?
A democratic tool to protect the environment
Access to justice is a democratic tool to help protect the environment and reduce the existing gap between the law and its implementation.
Indeed while the body of EU environmental policy and regulation is one of the most advanced and comprehensive in the world, it is not providing satisfactory results and Europe’s environment is rapidly deteriorating… For example, the EU is set to miss its goal of halting biodiversity loss for 2020 – with 60% of EU protected species and 77% of EU protected habitats being in unfavourable conservation status according to a 2015 EEA report.
Strong legislative and policy frameworks are not providing the results that they should because they are not properly implemented. This is both an environmental and socio-economic problem: a 2011 estimate put the cost of poor implementation of EU environmental law at around Euros 50 billion a year. Not to mention that the lack of implementation also erodes the rule of law and public trust in national authorities and the EU.
To tackle that issue, empowered citizens, acting on their own or via NGOs, are essential to support the actions of authorities. For their action to be truly effective, they need to be able to challenge law breaking in court, via access to justice.
A right acknowledged in a number of legal provisions
The right to have access to justice is acknowledged in a number of legal provisions as well as case law of various judicial and quasi-judicial bodies at international and EU level.
The UNECE Convention on Access to Information, public participation in Decision-making and Access to justice in Environmental matters (Aarhus Convention) requires its parties to provide members of the public with effective access to justice in environmental matters. As of today, all 28 Member States as well as the EU itself are Parties to the Convention.
Moreover, based on this Convention, the EU has adopted a number of legal acts containing rules on access to justice at national level, such as the Environmental Information Directive, Environmental Impact Assessment (EIA) Directive, Industrial Emissions Directive (IED) and the Environmental Liability Directive (ELD).
The EU has not yet issued legislation that would provide a general framework for access to justice to challenge all infringements of environmental laws. However, the Court of Justice of the European Union (CJEU) has ruled that Member States are nonetheless obliged to interpret their existing national laws in line with the requirements of the Convention.
This general legal framework has been further clarified by a strong body of case-law of both the CJEU and the quasi-judicial Aarhus Convention Compliance Committee (ACCC), which has provided important criteria for assessing whether access to justice provided can be considered to be truly effective.
Why improving access to justice?
Lack of awareness about rules on access to justice is an obstacle in practice.
Above-mentioned rules and case law should in theory guarantee that members of the public can participate in the enforcement of EU environmental laws, also using legal means if necessary. In practice, however, this is not always the case. Numerous studies, including the 2012/2013 access to justice studies (the ‘Darpö studies’) carried out on behalf of the Commission demonstrate that there are still significant hurdles to effective access to justice.
The baseline situations in the target countries vary greatly especially in terms of the number of court cases in environmental matters. However, in all the targeted countries these cases mean only a small portion of all judicial (mostly administrative) cases, ranging between less than 1% to 2-3%.
In many cases changes to the application of procedural rules that usually award judges with considerable discretion would be key to providing effective access to justice.
Even though many legal professionals may be aware of the general rules governing access to justice in environmental matters, awareness of the essential case law is considerably lower, especially among public administrations and public interest environmental lawyers.
This low level of awareness is further evidenced by the high number of referrals for preliminary rulings before the CJEU regarding the access to justice provisions of the EIA Directive as well as access to justice issues related to challenging breaches of other EU directives such as the Habitats Directive.
These referrals clearly demonstrate that there are still many questions within the judiciary and other legal professionals in different Member States, to address. There is also little awareness of best practice or of cost-effective solutions in providing effective access to justice in different Member States.