EUROPEAN COMMISSION Brussels, 14.10.2020 COM(2020) 643 final COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Improving access to justice in environmental matters in the EU and its Member States



COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Improving access to justice in environmental matters in the EU and its Member States I.Call for Joint Action 1The involvement and commitment of the Member States, of the public and of all stakeholders is crucial to the success of the European Green Deal. The Commission committed in the European Green Deal to ‘consider revising the Aarhus Regulation to improve access to administrative and judicial review at EU level for citizens and NGOs who have concerns about the legality of decisions with effects on the environment. The Commission will also take action to improve their access to justice before national courts in all Member States’. 2The EU should engage with citizens and stakeholders if the European Green Deal is to succeed and deliver lasting change. The public is and should remain a driving force of the green transition and should have the means to get more actively involved in developing and implementing new policies. To enhance trust in both national and EU administrations, it is equally important to have the necessary ‘checks and balances’ to ensure that acts and decisions can be checked for compliance with environmental legislation. Access to justice in environmental matters, both via the Court of the Justice of the EU (CJEU) and the national courts as Union courts, is an important support measure to help deliver the European Green Deal transition and a way to strengthen the role which civil society can play as watchdog in the democratic space. 3This Communication accompanies a Commission proposal to amend Regulation (EC) No 1367/2006 (Aarhus Regulation) with the aim of improving the internal review of administrative acts ((COM) 2020 …). The proposal, when adopted by the co-legislators, will improve implementation of the Aarhus Convention (the Convention) ‘in a way that is compatible with the fundamental principles of the Union legal order and with its system of judicial review’. It is proposed that environmental non-governmental organisations (NGOs) have broader possibilities to challenge acts and omissions of EU institutions and bodies in accordance with the Convention. 4The legislative proposal aims to strengthen the EU’s system of access to justice in environmental matters. This system, taken as a whole, grants every applicant access to an effective redress mechanism in line with the requirements of the Convention. 5The aim of this Communication is to highlight the vital role that Member States play within the EU’s overall system. Member States are to provide and facilitate access to justice in environmental matters governed by acts adopted under EU legislation, including national implementing measures related to non-legislative EU acts. Access to justice includes providing legal standing for NGOs and individuals directly affected by a breach of environmental law also in a cross-border context. Unfortunately, there are shortcomings in practice. In 2019, the Commission published the Environmental Implementation Review, which identified a series of systemic shortcomings concerning on-the-ground implementation of access to justice in environmental matters in national legal systems. In particular, it highlighted problems faced by NGOs in obtaining legal standing to bring legal challenges on EU-related environmental issues and procedural hurdles, such as prohibitively high costs. 6To improve the EU’s system of access to justice in environmental matters, in line with the Convention, to which Member States are parties in their own right, the Commission calls on Member States to step up implementation of applicable EU laws. It is equally important that Member States’ rules applicable to the judiciary and judicial practice fully implement CJEU case law on access to justice in environmental matters. Furthermore, national legislations should not create a barrier to this, for example by not providing legal standing to NGOs as required under the Convention. To ensure legal certainty in all Member States, national law must meet the requirements of the Convention, of EU legislation and of CJEU case law. National courts should also apply and enforce the applicable rules in light of the requirements set in their national legal orders stemming from EU law. II.The Importance of Access to Justice in Environmental Matters in the EU 7Access to an effective remedy and a fair trial is a fundamental right of the EU’s legal order. Effective judicial systems play a crucial role in safeguarding the rule of law enshrined in Article 2 of the Treaty on European Union (TEU), and in ensuring effective application of EU law and improving public trust in public administrations. 8This is also reflected by Article 19(1) TEU which requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, and in CJEU case law on access to justice in environmental matters. Access to justice in environmental matters is also relevant in the context of Article 41 and 47 of the Charter of Fundamental Rights of the EU and helps provide legal certainty. 9Individuals and NGOs play a crucial role in identifying potential breaches of EU law by submitting complaints to administrations or taking cases to court. When individuals or NGOs seek justice before a non-judicial, administrative body, the review is called an administrative review; if they seek redress in court, it is called a judicial review. 10The EU’s system of administrative and judicial redress as a whole encompasses not only the internal review mechanism under the Aarhus Regulation and access to the CJEU, but it also relies on national courts. In particular, Article 267 of the Treaty on the Functioning of the European Union (TFEU) allows any natural or legal person who is party to proceedings before national courts to request a preliminary reference to the CJEU regarding the validity of acts adopted by EU institutions. The EU and the national systems of redress taken together are essential to provide effective access to justice in environmental matters in the EU. III.The EU as a Party to the Convention 11The EU formally became a Party to the Convention in 2005. The 27 Member States are also, separately, Parties to the Convention each with their own and with shared competences, responsibilities and obligations to ensure access to justice in ‘environmental matters’ under Article 1 of the Convention. The onus of complying with the Convention, therefore is subject to this characteristic feature of the EU, where competences are exercised by the EU and its Member States. It is important to recall in the following paragraphs, the specific limits and nature of the obligations stemming from the ratification of the Convention. 12Under the terms of the Convention, the EU is an organisation of regional economic integration. Under Article 19(5) of the Convention, the EU was required to declare when notifying its instrument of ratification ‘the extent of their competence with respect to the matters governed by this Convention’.

13In response, the EU declared that ‘the EU institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of EU law in the field covered by the Convention.’ Most crucially it added that ‘the EU is responsible for the performance of those obligations resulting from the Convention, which are covered by EU law in force’ and that ‘the exercise of EU competence is, by its nature, subject to continuous development’. 14As a result, the EU institutions and bodies apply the Convention within the framework of the applicable EU rules. The specific features of the EU’s legal order must be taken into account when implementing the Convention. This was also confirmed by the CJEU, which explained that the Convention was ‘manifestly designed with the national legal orders in mind, and not the specific legal features of institutions of regional economic integration, such as the European Union’. 15The access to administrative and judicial review is a multi-layered system in the EU. As the CJEU also recalled, as EU law now stands, judicial and administrative procedures concerning access to justice in environmental law fall ‘primarily’ within the scope of Member State law. Subject to the conditions defined in their national law, individuals and legal entities can request a national court to refer to the CJEU to review the validity of EU acts under Article 267 TFEU. 16In addition, Article 263 (4) TFEU allows natural or legal persons to institute proceedings directly before the CJEU (the General Court) against (i) an act addressed to them; (ii) an act which is of direct and individual concern to them or (iii) a regulatory act which is of direct concern to them and does not entail implementing measures. 17By adopting the Aarhus Regulation, the EU complemented the existing system of review available at EU level as regards both administrative and judicial review. As a result, NGOs active in environmental protection can obtain an administrative review of non-legislative administrative acts of individual scope adopted by EU institutions and bodies. The Union, however, chose not to exercise its competence as indicated at the time of ratification and did not adopt separate provisions on administrative review for individuals, under the Aarhus Regulation at Union level, applicable to the EU institutions and bodies. 18Following a complaint submitted to the Convention’s Compliance Committee, the Committee concluded that the EU does not currently fully meet its obligations under the Convention’s requirements on access to justice in environmental matters. The legislative proposal, recalled above, aims to remedy this situation by amending the Aarhus Regulation and extending access by NGOs. This Communication complements EU-level action by highlighting the improvements needed at national level. IV.Member States’ Obligations under EU Law 19Where the action of national authorities has been insufficient or incorrect as regards the respect of the substantive rules protecting the environment, individuals and NGOs have to be able to rely upon the procedural rules that are applicable to them. To safeguard the environment and to empower members of the public and NGOs, the EU has adopted a number of sectoral environmental directives, which include provisions on access to justice in national courts. Implementation of these directives enables members of the public including NGOs to exercise their right to go to court in these specific areas. It is well established that the duty to ensure effective judicial protection in environmental matters extends to national courts. This duty concerns rights stemming from EU environmental law and the possibility to cite the obligations defined under EU legislation. 20In order to ensure effective judicial protection of these rights, the obligations of the Member States to secure access to justice in their national courts are not limited to those provided for in the acts of Union secondary law recalled above. 21First, under the principle of loyal cooperation laid down in Article 4(3) TEU, it is for the Member States to take all appropriate actions, including effective judicial protection, to ensure that measures required by EU law are adopted and that individuals’ rights stemming from EU law are sufficiently protected. Furthermore, Article 19(1) TEU requires Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Therefore, access to justice in national courts is indispensable for the proper functioning of the EU’s system of judicial protection. 22In this regard, national redress mechanisms via the national courts of the Member States are an integral part of the EU’s system of judicial redress. National courts are also Union courts, and are linked to the CJEU within the system of preliminary references established under Article 267 TFEU. This cooperation covers the interpretation of EU law and the examination of the validity of acts of EU institutions. Access to courts should be possible for both individuals and NGOs on the basis of national procedural rules. 23Second, the Convention, which is an integral part of the EU’s legal order and binding on the EU institutions and on the Member States under Article 216(2) TFEU, is also applicable to EU law governing environmental protection. In the absence of EU rules governing access to justice in environmental matters, ‘it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, […] since the Member States are responsible for ensuring that those rights are effectively protected in each case’. In particular, Article 9 (3) of the Convention and Article 47 of the Charter of Fundamental Rights of the European Union, read together, impose on ‘Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law’. 24The CJEU has added that ‘in order to ensure effective judicial protection in the fields covered by EU environmental law, it is for the national court to interpret its national law in a way which, to the fullest extent possible, is consistent both with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention and with the objective of effective judicial protection of the rights conferred by EU law’. 25The effectiveness of the preliminary ruling procedure under Article 267 TFEU regarding the validity of EU acts is therefore dependent on the Member States providing sufficient legal standing to NGOs and individuals. It is their duty to ensure that access to justice is granted in their courts in matters of environmental law covered by EU rules. This includes cases where there is ‘a specific issue which has not yet been subject to EU legislation [but which] may fall within the scope of EU law if it relates to a field covered in large measure by it’. 26CJEU case law developed over the years has clarified that the Member States are obliged to ensure access to justice in environmental matters covered by EU rules, including on decisions, acts and omissions in a range of environmental policy areas, such as water, nature and air quality. 27To take stock of the practical implications of CJEU case law and to help Member State authorities and practitioners to understand the importance of these implications in the fields regulated by EU environmental law, in 2017 the Commission issued a Notice on access to justice in environmental matters (‘the Notice’). The Notice outlined the standards governing access to justice in environmental matters in terms of procedural guarantees and legal standing for NGOs and individuals. It also clarified the requirement to avoid expensive or lengthy procedures and that Member States must make all information related to access to justice publicly accessible, as required by CJEU case law. Member States should follow the developments of CJEU case law, as summarised in the Notice, and take the necessary measures to implement them. V.The Way Forward: Priority areas for Action 28The European Green Deal Communication announced that ‘the Commission and the Member States must also ensure that policies and legislation are enforced and delivered effectively’. The Commission is fully committed to working with the Member States to improve access to justice in environmental matters at national level. 29Effective implementation of the adopted EU rules on the ground by the Member States is indispensable in order to draw the full benefits for the protection of the environment. It is also important to ensure that access to the CJEU for members of the public and for NGOs under Article 267 TFEU is not unduly restricted. Removing obstacles to access to justice would yield further benefits by increasing legal certainty, improving administration of justice and reducing administrative burdens.