The EU in breach of Aarhus Convention...so what?

By mjvw
on 02.04.2017 Sun 02 April 2017

A Short History of Nearly Everything

The Aarhus Convention is an international agreement, signed in 1998 in the Danish city which lends it its name, that aims to establish thresholds for the procedural rights that facilitate the defence of the environment by those who it affects, or by public interest organisations. This means that the Convention aims to achieve easier access to information, participation and justice when it comes to the decisions that governments take on all issues dealing with the environment. A lot has been written about this interesting piece of legislation,1 as the Convention acknowledges the fact that one of the great problems regarding the effectuation of substantive environmental rights, has been the system of procedural rules that each government can create to hinder the process. The Compliance Committee (ACCC) is the non-judicial body of the Convention which aims to help signatory states to reach compliance. Although the Committee is non-judicial in nature and as such does not produce judgments, but rather opinions and advice which can be adopted by the Meeting of Parties, its placement within the system gives it a court-like quality. It is therefore not surprising that a number of Environmental NGOs cried 'Victory!' when the ACCC recently gave an opinion where it found the EU to be non-compliant with its obligations under the Convention. To the opinion of the ACCC, the EU is in breach of the Convention due to the Court of Justice of the EU's (CJEU) interpretation of the standing criteria under the action for annulment (Article 263 TFEU). This article allows for the judicial review of acts by the EU by the Court. Access to the Court to have an act review is open to Member States and Institutions, no matter the reason or the act in question (these are called 'privileged applicants). Other institutions are allowed to initiate proceedings against acts that affect their privileges under the Treaty (semi-privileged applicants). A logical third category is those natural and/or legal persons that want to have a decision of which they are the addressee reviewed. But it is the fourth category that has been a long standing point of discussion for students of EU law.2 Natural or legal person who are not the addressee of an act, may request that act to be reviewed if the acts is of direct or individual concern to them, or, since the entry into effect of the Lisbon Treaty, when directly concerned by an act of a regulatory nature which is not subject to an implementing measure. The Aarhus Convention requires signatories to implement a system of access to justice that allows wide access for environmental NGOs (and individuals who want to protect against the detriment of their own environment).

The Aarhus Convention Compliance Committee Procedure (2010 - 2017)

Every great war consists of numerous battles that make up the narrative. The procedure before the ACCC, brought by a number of eNGOs can be seen as one long list of skirmishes with an unclear end resolution of the war. In 2010, communicants (as is the wording of the Convention) under leadership of ClientEarth, notified the ACCC of the fact that to their opinion the EU wasn't compliant with its responsibilities under the Convention. According to the communicants, the CJEU's interpretation of Article 230 TEC (now 263 TFEU) was to strict. Due to the (in)famous Plaumann doctrine, it was realistically impossible for public interest organisations to have an act by the Union reviewed by the Court, as by their very nature it would be impossible for them to differentiate themselves as individual concerned. The criteria for being individually concerned were first set out in the Plaumann case, and required applicants that would like to see an act of the Union of which they weren't the addressee reviewed by the Court, to establish that they had certain elements peculiar to them, that created the situation where they were almost as if (for the purposes of brevity in this medium) they were the actual addressee. The act so contested could be anything from a decision addressed to a third party, to a legislative act. The standard is however notoriously difficult to achieve, and for a public interest organisation, which aims to defend rights that concern a large cross section of the populace, differentiating themselves is neigh impossible. The NGO Greenpeace famously tried and failed, where it objected to the subsidizing of a coal fired power plant on the Canary Island, with the Court reasoning that they could not be individually concerned, as everybody on the island was affected in the same manner. ClientEarth asserted that this interpretation was contrary to the Convention's goal of an open access to justice regime. It equally held that the other measures the that EU had adopted in order to comply with the Convention weren't enough to make up for the deficiencies in the overall system.The EU on its part defended itself by stating that the Aarhus Convention made it clear that legislative measures were exempt from the regime, and that most environmental acts by the EU at an EU level were of a legislative nature. The procedure has taken ages, in part due to the fact that the Lisbon Treaty had entered into force just before the start. The EU was of opinion that the addition of the regulatory act would in fact ameliorate many of ClientEarth's complaints. However, to that end, there needed to be cases in which the Court of Justice would have the possibility to give an interpretation on the meaning of the regulatory act. The result is that the protracted war over individual concern had a lengthy détente after an interim opinion by the ACCC in which it expressed the belief that the Court would change its interpretation of the contentious term to comply with the Convention. Although it soon became clear that it would not, it is only now in 2017 that after re-notification by the communicants that the ACCC has given its final opinion on the compliance of the Union with the Aarhus Convention. As was expected, both from the the interim opinion as from the general opinion expressed by academic commentators. And yet, this opinion, or verdict if you will, will change absolutely nothing.

Constitutional Courts and their Limits

The ACCC is clear in its dismissal of the Commission's arguments, that is sees fault in the complete logical house that the Court has built around Article 263(4)TFEU. Both the interpretation of individual concern and the later addition of the regulatory act are too limiting for individuals and public interest organisations especially when they want to have acts reviewed that have an effect on their environment. However, this point has been raised numerous times even before the evolution of the EEC into the more full-fledged constitutional order that it is now. A number of authors have stated that there is an unfair distinction between the categories of applicants, that the strict requirements are merely docket-control, that the dogma goes against the Rule of Law, and yet this has never produced an effect. The Court has always held rather, that there exists in the EU a complete system of legal remedies and that where certain EU acts affect individuals (or organisations), it is for the Member States to facilitate suitable access to the courts. In his famous UPA opinion AG Jacobs already held that this answer is no longer suitable, as the Union has an ever greater direct effect (in the vernacular sense) on the lives of citizens and they should be able to address a suitable forum against such acts. Still the Court has not significantly shifted regarding public interest organisations, even though it has opened the Act for Annulment, such as it is formally known, in other substantial ways, most famously regarding the acts that can be reviewed. So why doesn't the Court just change its interpretation of Plaumann? It is the opinion of this author that the Court does not, because it can not. The Court is bound by the Treaty as a constitutional document and the limits to its powers that lie therein. Even though the Court is the ultimate interpreter of the Treaty, like any other constitutional court, there are limits to this jurisdiction. During the last Intergovernmental Conference (IGC) that drafted the failed attempt for a constitution for Europe, it became clear that the drafters explicitly did not want easier direct involvement of non-privileged applicants through the Act for Annulment. The complex system of acts by the Union was of a more decentralised nature, and should therefore take place on the lower, Member State level. This is one of the reasons why the obligations placed on the Member States to ensure access to justice through their courts has been expanded upon. Not only are the Member States by the general loyalty principle, but the Treaty now also requires that:

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

Even the Charter of Fundamental Rights, which achieved the same status at the Treaties with the entry into force of the Lisbon Treaty, explicitly makes caveats in both the Explanations, the document that gives the authoritative explanation of the articles in the Charter, and the Articles on its applicability that the Charter does not aim to substantively aim to change the system of rights and rights protection in the Treaty. It is (merely) a constitutionalisation of principles and the case-law that has found them. Should the Court therefore adopt a farther reaching interpretation of these standing criteria, it would go against the will of the drafters and the relationship that they have envisioned between the constitutional order, the institutions, the Member States, the citizens and the Court. This is not a Marbury v. Madison situation, where the Court can interpret a vaguely formulated clause on its constitutional stewardship, as it was in the United States.

The Tension between Legal Orders

Advocates for greater judicial review possibilities will at this point now refer to the obligations under international law, incurred by the Union. Yet, this would not be the first time that the Court of Justice shows it's hostility towards intervention by international regimes. In the recent Opinion 2/13 on Accession of the European Union to the ECHR,3 the Court dismissed this possibility on the grounds of the age old arguments of autonomy and supremacy. Unlike the limits to the Court's power to interpret it's standing requirements, this may be a monster of the Court's own creation. At the time of the Van Gend & Loos and Costa/ENEL judgments, the Court needed to undertake steps to give the new born EEC actual life.4 If the ambitious ideas that underpinned the creation of the Communities were to flourish, the Court knew that it could not follow the traditional path of international agreements, such as they had existed until then. We now start every Introductory Course in EU law with these two judgments, and how the the Court 'created' an autonomous legal order that had primacy over the legal orders of the Member States. Without it, Member States would be able to shirk their responsibilities. To this day, much is written about what this means for the EU's constitutional framework, and it goes beyond the nature of this forum to give a complete overview, yet it is important to realise that the CJEU relied on these same concepts when it gave a negative opinion on accession to the ECHR.5 If the Union were to accept such international regimes, it would mean that EU law and (perhaps more importantly) the CJEU would no longer be the ultimate norm. The coherence and the autonomy of the legal order needs to be preserved and this, in the view of the Court, can only be achieved through primacy. This is the reason why it ruled in Foto-Frost against National court's ability to review the legality of acts by the Union. This is equally the reason why there is a permanent Cold Disagreement between the German Constitutional Court and the CJEU on the position of national constitutionally guaranteed rights. And this is equally why the Aarhus Convention or the ACCC will have no effect on Primary Law or its interpretation. International law has a sub-constitutional status under the EU's legal order, were that not the case, than the autonomy of that legal order would be compromised. Finally, it is equally why the (then) EC had added a declaration to its signing of the Convention, in which it made it clear that it considered itself unable to fully implement the obligations under Article 9(3) on Access to Justice, of the Aarhus Convention, due to the nature of Acts undertaken by the Community. It considered it the task of the Member States, through Community law, to fulfil these obligations.

So what?

The seven year period of bickering has now come to an end, and even though the environmentalists have won, when it comes to direct access to the Court, nothing will change. When forming an opinion on this point, one would do well to consider that most of the arguments in favour of opening up the standing requirements to public interest organisations are highly biased and brought forward by advocates for a more activist court, which protects the public interest against perceived injustice. It is a valid opinion to have and argue, yet it cannot be argued against a constitutional system that does not support this view. The Court declared in the appeal of Greenpeace that:

"{It is} admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force."

I will readily declare my green credentials, and I am not opposed to judicial review on principle, yet if we, as citizens and environmentalists, want to make public interest litigation a possibility in the EU, we should stop to complain against the Court relying on vaguely substantiated claims regarding the Rule of Law, or cherry pick which International Agreements we like, and work towards comprehensive Treaty change. Or work with the tools that the Court has given us through interpreting the Aarhus Convention in the legal orders of the Member States, a new blog post that will soon follow.

Footnotes

aarhus convention cjeu standing locus standi system of remedies article 263 tfeu
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