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))
Date: 2004-04-29
Institutions: European Economic and Social Committee
Subjects: access to the courts, environmental protection, right of action

30.4.2004

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

— Directive 2003/4/EC on public access to environmental

information (2);

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 implementa-
tion. 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 intro-
duction of provisions on public information and participation
and, to a lesser extent, access to justice in respect of environ-
mental matters.

the EC Treaty,

According to Article 175(1) of

the
1.3
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.

— 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 Conven-
tion 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 Conven-
tion (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 incorpo-
rates the relevant provisions of the Århus Convention.

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 docu-
ments (1);

2. Gist of the proposal for a Directive

2.1
The proposed Directive lays down the minimum require-
ments for access to judicial and administrative proceedings in
environmental matters in order to ensure a better implementa-
tion 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.

(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.

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The proposal

2.2
is based on definitions of stakeholders,
procedures and acts or omissions that can give rise to proceed-
ings.

The most important question is that of legal standing, or
2.3
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 suffi-
cient 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

The EESC has repeatedly expressed its view that the EU's
3.1
for ensuring compliance with
most appropriate instrument
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 Conven-
tion 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 Conven-
tion. 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 orga-
nisations promoting environmental protection. According to
the Convention, it is not necessary for such protection to be
legal
their sole objective, only that they meet the relevant

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 orga-
nisations, 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 institu-
tions 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.)

Judicial actions. Criminal proceedings (1) are explicitly
3.3.2
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 environ-
mental 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 contraven-
tion committed, so that the punishment fits the crime. The
EESC believes that,
law, the current
wording of the proposed Directive could limit environmental
proceedings.

in contrast to national

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 mechan-
isms’ 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 guar-
anteeing the uniform application of environmental law. It is the
cross-border dimension of many of the problems that calls for
measures at Community level.

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

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4.2
The content of this proposal is compatible with Com-
munity 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
i.e. that
recognises public action and criminal offences, being affected.

legislation,

In Article 2 (Definitions), a number of paragraphs should

4.3
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 judi-
cial 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 condi-
tions of Article 5(1) are met. This is contradictory as, if quali-
fied 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

Brussels, 29 April 2004

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 enti-
ties, 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.

Article 8(d) of the Directive specifies that a qualified
4.7
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.

The President

of the European Economic and Social Committee

Roger BRIESCH