EN Official Journal of the European Union C 117/55

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters’

(COM(2003) 624 final - 2003/0246 (COD))

(2004/C 117/14)

On 7 November 2003, the Council decided to consult the European Economic and Social Committee, under Article 175(1) of the Treaty establishing the European Community, on the ‘Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters’ (COM(2003) 624 final - 2003/0246 (COD)).

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 4 March 2004. The rapporteur was Mrs Sánchez Miguel.

At its 408th plenary session of 28 and 29 April 2004 (meeting of 29 April 2004) the European Economic and Social Committee adopted the following opinion by 76 votes to five, with eight abstentions.

1. Introduction

1.1 EU environmental policy, as laid down in Article 6 of the EC Treaty, and in particular the Community objective of promoting sustainable development, require European citizens to feel fully informed and involved regarding its implementation. For this reason, DG Environment has – through a series of mechanisms, laws, communications, conferences, etc. – stepped up the information and participation of environmental policy stakeholders.

1.2 Until today, most mechanisms were based on the introduction of provisions on public information and participation and, to a lesser extent, access to justice in respect of environmental matters.

1.3 According to Article 175(1) of the EC Treaty, the Commission is competent to adopt measures to ensure that environmental policy objectives are met. Thus the provisions on public participation should serve to promote and improve environmental protection. It should be pointed out that this information and consultation mechanism is already applied to other Community policies, in particular the CAP and industrial policy. Given the impact these policies have on sustainable development, it is essential that they are implemented in a transparent manner and that information is provided not only for stakeholders, but also for the public as a whole.

1.4 To date, the following legislation has promoted public information and participation regarding environmental matters: — Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1); — Directive 2003/4/EC on public access to environmental information (2); — Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment (3).

1.5 In 1998, the European Community signed the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Århus Convention’). This reaffirmed the objective of stepping up the involvement of European citizens in environmental matters, with a view to encouraging them to participate more fully in conserving and protecting their natural environment and thereby promoting sustainable development in Europe.

1.6 The current legal situation – characterised by the fact that not all the Member States have ratified the Århus Convention (4) - calls for action in two areas. Firstly, a legal instrument (Regulation) is needed to ensure that the requirements of the Convention on access to information, public participation in decision-making and access to justice are fully applied to the Community institutions and bodies. Secondly, the provisions aimed at the Member States must be supplemented with a proposal for a Directive, on access to justice which incorporates the relevant provisions of the Århus Convention.

2. Gist of the proposal for a Directive

2.1 The proposed Directive lays down the minimum requirements for access to judicial and administrative proceedings in environmental matters in order to ensure a better implementation of EU environmental law. These minimum requirements are intended both to promote compliance with the Århus Convention and to harmonise legislation in the EU Member States, with a view to preventing situations of inequality between economic operators and administrative authorities.

2.2 The proposal is based on definitions of stakeholders, procedures and acts or omissions that can give rise to proceedings.

2.3 The most important question is that of legal standing, or the right to institute judicial or administrative proceedings. Here a distinction is made between members of the public and qualified entities, i.e. the former are required to have a sufficient interest and maintain the impairment of a right or of procedures, while the fact that the latter are qualified exempts them from having a sufficient interest.

2.4 Bodies meeting the criteria laid down in Articles 8 and 9 will automatically be recognised as qualified entities and given legal standing, with no further requirements.

2.5 Article 6 allows for a request for internal review to be made if an administrative act or omission is thought to be in breach of environmental law, and aims to harmonise the time limit and form in which such requests are made in the Member States.

3. General comments

3.1 The EESC has repeatedly expressed its view that the EU's most appropriate instrument for ensuring compliance with environmental legislation is public participation in sustainable development policy, and that such participation must be based on transparency and checks to ensure that all parties comply with the relevant legislation. Instruments such as access to information, participation in the preparation of plans relating to the environment and subsequent access to justice will not only help step up compliance with legislation, but will also improve public awareness and education concerning the conservation and use of existing natural resources.

3.2 In this new phase, with ten new countries about to join the EU, these new harmonising measures have to be proposed by the Commission. It is also essential for the Århus Convention to be ratified by all those European countries that signed it. It should also be ratified by the European Community, as this will increase instruments for environmental protection at world level, in particular those laid down in international conventions.

3.3 Although the EESC welcomes the proposed legislation, it wishes to point out and clarify a number of aspects that are essential to fully meeting the stated objective.

3.3.1 The definitions provided in this proposal are based on, though differ slightly from, those found in the Århus Convention. They include, in particular:

3.3.1.1 The concept of qualified entity is defined in both proposals but not found in the Århus Convention, which refers only to ‘the public concerned’ and recognises as such any organisations promoting environmental protection. According to the Convention, it is not necessary for such protection to be their sole objective, only that they meet the relevant legal requirements for associations in each Member State. It would seem obvious that other non-profit organisations, such as trade unions, socio-occupational organisations, social economy organisations, consumer associations, etc., also play an important role in protecting the environment at local, regional, national and European level.

3.3.1.2 The Directive refers to the public authority, i.e. the public administration at the various levels, but excludes institutions acting in a judicial or legislative capacity.

3.3.1.3 It must be pointed out that there are discrepancies in the wording of the list of areas covered by environmental law. The EESC recommends checking a number of key points, e.g. Article 2(1)(g)v). It is essential that, as minimum requirements, all paragraphs relating to the harmonisation of environmental protection are worded in the same way. (N.B. This does not apply to the English version of the document.)

3.3.2 Judicial actions. Criminal proceedings (5) are explicitly excluded from environmental proceedings, which can only take the form of administrative or judicial proceedings within the EU. This situation limits proceedings in the Member States, most of which have their own penal sanctions for environmental crimes. Moreover, Article 9(3) of the Århus Convention, on procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of environmental law, refers only to restrictions laid down in the law which has been contravened (i.e. national environmental law). In this way, the action taken depends on the contravention committed, so that the punishment fits the crime. The EESC believes that, in contrast to national law, the current wording of the proposed Directive could limit environmental proceedings.

3.3.3 Environmental proceedings. The proposals under discussion lay down a general formula according to which the Member States must provide for ‘adequate and effective proceedings that are objective, equitable, expeditious and not prohibitively expensive’. In the EESC's view, although according to the subsidiarity principle judicial procedures should be laid down in national legislation, it would be a good idea to use the formula laid down in Article 9(5) of the Århus Convention, which clearly states that the parties must provide information about access to procedures and establish ‘assistance mechanisms’ to remove or reduce financial and other barriers to access to justice in environmental matters.

4. Specific comments

4.1 This proposal for a Directive completes the process of aligning legislation in the Member States with the Århus Convention. It establishes a common framework of procedural provisions to be applied to all the Member States, while guaranteeing the uniform application of environmental law. It is the cross-border dimension of many of the problems that calls for measures at Community level.

4.2 The content of this proposal is compatible with Community rules on access, as laid down in other Community provisions. Nonetheless, Article 1 should stipulate that these are minimum requirements, in order to prevent Member States with more comprehensive environmental legislation, i.e. that recognises public action and criminal offences, being affected.

4.3 In Article 2 (Definitions), a number of paragraphs should be amended: — c) in order for an entity to be considered a ‘qualified entity’, one of its objectives should be to protect the environment; — f) environmental proceedings should include criminal proceedings; — g) the concepts listed under ‘environmental law’ should be brought into line with those used in the Regulation, e.g. indent v); — 2. this paragraph should stipulate that these are minimum requirements which must, under no circumstances, be lowered when transposed into national legislation.

4.4 There are two key issues in Articles 5 and 6 on the legal standing of qualified entities and their entitlement to request an internal review: (i) the legal standing of qualified entities in judicial proceedings in environmental matters is limited to a specific geographical area and (ii) a request for internal review can be submitted in another Member State providing the conditions of Article 5(1) are met. This is contradictory as, if qualified entities only have legal standing in judicial proceedings in a specific geographical area, this restriction should also apply to internal reviews. In both cases, the EESC believes that it would be fairer, in the light of the Århus Convention, if no restrictions were placed on access to justice in either scenario and national conditions governing legal proceedings in this regard were maintained.

4.4.1 As regards the time limits laid down in Article 6, it would make more sense for them to be calculated from the date on which the administrative act is published as opposed to the date on which it is adopted, as it is impossible to know about the act if it has not been published.

4.5 As regards the criteria for recognition of qualified entities, the EESC reiterates its request for Article 8 to be extended to legal persons of which one of the objectives is to protect the environment.

4.6 Finally, with regard to Article 10 (Requirements for environmental proceedings), the EESC points out that Article 9(4) of the Århus Convention is more complete. The fact that the former does not include a reference to reducing financial and other barriers to access to justice could in fact make it harder for organisations with limited resources to have access to justice.

4.7 Article 8(d) of the Directive specifies that a qualified organisation must have its accounts certified by an auditor. In accordance with the principle of subsidiarity, Member States should be left to check compliance with national accounting requirements applicable to such organisations.

4.8 The EESC thinks that in order to reduce the cost of claims for State legal protection, the costs should be limited in line with the interests at stake and the financial support, as laid down in the Århus Convention.

Brussels, 29 April 2004 The President of the European Economic and Social Committee Roger BRIESCH

(1) OJ L 145 of 31.5.2001, p. 43. The Commission also adopted a Communication on Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for consultation of interested parties by the Commission – COM (2002) 704 final of 11.12.02.

(2) OJ L 41 of 14.2.2003, p. 26.

(3) OJ L 156 of 25.6.2003, p. 17.

(4) It has been ratified by the following countries: Portugal, Belgium, France, Italy and Denmark.

(5) Art. 2(f) of the Proposal for a Directive