Access to Justice in Environmental Matters in the EU Legal Order: The “Sectoral” Turn in Legislation and Its Pitfalls

Abstract: Access to justice in environmental matters is one of the three pillars of the Aarhus Convention, to which both the EU and its Member States are Parties. In the Convention, access to justice is subdivided into four limbs. Art. 9(3) contains the general obligation of access to review procedures for the public of acts and omissions of private persons and public authorities concerning national law relating to the environment. Art. 9(3) had to be transposed by the Parties to the Convention, taking the discretion left by the vague wording of the provision into account. At the EU level, unlike for art. 9(1) and (2), there is no formal transposition of art. 9(3) in a dedicated Directive, because of Member States’ reluctance. The solution found by the Commission to remedy this lack of EU legislation on the matter was the publication of a soft law instrument in 2017. Since then, we have witnessed a shift in the approach used by the EU legislator, with access to justice provisions being incorporated directly into several pieces of “sectoral” legislation (Regulations and Directives), across various environmental areas. This Insight aims at retracing the history of art. 9(3) of the Aarhus Convention in the EU legal order and at analysing and evaluating the recent tendency of including access to justice rights in sectoral legislation.

Keywords: access to justice – environment – Aarhus Convention – EU law – procedural rights – sectoral approach.

I.   Introduction

In December 2023, the Commission released its yearly report on the application of the Charter of Fundamental Rights and chose to focus on effective legal protection and access to justice, which are safeguarded in art. 47 of the Charter and art. 19 TEU.[1] As the Commission itself states, this choice is grounded on the importance of these rights, which are deemed “vital to ensure the full application of the Charter and of EU laws that promote and protect the rights which the Charter enshrines”.[2]

In environmental matters, access to justice is further safeguarded by art. 9 of the Aarhus Convention, a mixed agreement to which both the EU and the Member States are parties.[3] In turn, the Convention is binding – as a matter of EU law – for both the EU institutions and the Member States.[4] In particular, access to justice in art. 9 is organised on the basis of three pathways, accompanied by an umbrella provision. Art. 9(1) requires access to review procedures relating to information requests submitted under art. 4 of the Convention. Art. 9(2) covers access to review procedures relating to decisions, acts or omissions subject to the public participation requirements foreseen in art. 6 and other relevant provisions of the Convention. Art. 9(3) enshrines a more general obligation of access to review procedures for the public of acts and omissions of private persons and public authorities concerning national law relating to the environment. Finally, the horizontal provision of art. 9(4) sets general minimum standards in terms of timeliness, fairness and effectiveness applying to all review procedures, decisions and remedies under art. 9 itself.

Before the Aarhus Convention entered into force, there was almost no sign of access to justice in EU environmental law.[5] To comply with its obligations under art. 9, the EU therefore had to enact several pieces of legislation.

While, however, arts 9(1) and 9(2) have found legislative transposition and the requirements of art. 9(4) have been (albeit partially) incorporated in those legislative provisions,[6] art. 9(3) has had a much more troubled destiny. The issue of access to justice in environmental matters in general, covered by art. 9(3), is described by Jendrośka as “extremely contentious”.[7] When retracing the genesis of art. 9(3), one can notice that several issues in relation to that provision had to be resolved over many heated debates.[8] Still, a compromise was reached and the provision eventually came to life.[9]

At the EU level, attempting to transpose art. 9(3) did not prove to be any easier.

Despite it being arguably the most important of the three “pathways” contained in art. 9, because of its broad material scope,[10] having been described in the literature as the “enforcement provision” of the Convention,[11] the European Union has not adopted a legislative instrument transposing the requirements of art. 9(3) in as far as the procedural laws of the Member States are concerned.

This legislative vacuum has been filled by the intervention of the CJEU as well as by a soft law measure issued by Commission, the Commission Notice on Access to Justice in Environmental Matters.[12] This state of affairs has changed recently, with the Commission actively pursuing the insertion of access to justice provisions in several legislative proposals, raising a number of questions on the adequacy of this regulatory approach. The aim of this Insight is to discuss this recent development in light of the imperatives of access to justice and effective judicial protection contained in art. 9 of the Aarhus Convention and art. 47 of the Charter of Fundamental Rights. After a brief overview of the requirements of access to justice stemming from art. 9(3), the “transposition history” of this provision in EU law will be recalled. Subsequently, this Insight will move to examining the current – sectoral – approach to transposing the requirements of art. 9(3) and, by examining the current pending proposals as well as legislative acts already adopted containing access to justice provisions, it will consider the regulatory weaknesses of this approach. It will be shown that the insertion and scope of access to justice provisions in these acts seems haphazard and not justified by underlying legal considerations, but rather the product of political compromise. In turn, this fragmented approach cannot be seen as appropriately complying with the requirement of ensuring “wide access to justice” under the Aarhus Convention.

II.  Art. 9(3) of the Aarhus Convention and access to justice

As mentioned in the introduction, art. 9(3) of the Aarhus Convention requires access to review procedures for acts and omissions of private persons and public authorities concerning – in general terms – “national law relating to the environment”.

According to the provision, access to these review procedures should be granted to the “members of public”, defined in art. 2(4) of the Convention as “one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups”.[13] National law is thus called to specify the notion of “members of the public”. However, as noted by the Aarhus Convention Compliance Committee (ACCC), these criteria should not be too strict.[14]

Indeed, the ACCC has clarified that, although Parties are not obliged to establish a system of actio popularis, art. 9(3) may not be used to effectively bar almost all members of the public from challenging acts and omissions.[15] Parties’ discretion in respect to standing should be exercised in light of the Convention’s general objective of ensuring wide access to justice.[16]

The reference to the role of national law has been explained by the fact that the implementation of access to justice provisions is influenced by existing national rules.[17] Still, importantly for the purposes of this Insight, this leeway may lead to a diversity of approaches across legal systems, as well as to a certain unclarity in terms of identification by the Parties of who falls under the category of the “public”.[18]

The review under art. 9(3) may be alternatively performed by a court or an administrative authority.[19]

In terms of what can be reviewed, art. 9 has a broad scope, mentioning “violations of domestic law relating to the environment”. In this context, the ACCC has allowed members of the public to allege a breach of environmental law, without the need for the breach to be established prima facie.[20] Also, the scope of the law relating to the environment as understood under art. 9(3) is not confined to procedural rights and must include both the procedural and substantive legality of a decision.[21]

Finally, it should be noted that art. 9(3) applies to procedures to challenge “acts” by both private persons and public authorities. The question of what falls under the notion of “acts” under art. 9(3) was addressed by the ACCC, for instance, in a case against the European Union, where it was found that State aid decisions qualify as acts as understood by art. 9(3) of the Convention.[22] This decision confirms the broad material scope of art. 9(3).

III. Art. 9(3) and the EU legal system: a story of uneasy bedfellows

When signing the Aarhus Convention, the EU made clear that it was intended “to cover its own institutions alongside national public authorities”, and that Member States would be in charge of ensuring that the obligations arising out of art. 9(3) were performed, unless and until provisions of EU law covering the implementation of those obligations would be adopted.[23]

More than 25 years later, where do we stand? In 2003 already, with the view of transposing the Convention in the EU legal order, the Commission presented a Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters.[24] However, because of Member States’ resistance in the Council, this Directive was never adopted and, in fact, the proposal was eventually withdrawn in May 2014.[25]

There is, therefore, to date, no dedicated legislative instrument transposing art. 9(3) in the same way art. 9(1) and (2) have been transposed with respect to access to justice at domestic level. Still, it must be noted that art. 9(3) may be considered de facto transposed in certain EU law instruments which – by subject-matter – fall within the scope of Art. 9(3) and contain access to justice provisions. For instance, until the “sectoral turn” which we discuss in the section below, this has been the case for the Environmental Liability Directive[26] and the Seveso III Directive.[27]

Following the failure of the Proposal for a Directive on access to justice in environmental matters, and aware of the need to fully and effectively transpose art. 9(3) of the Aarhus Convention in EU law, the European Commission started to undertake some studies on the matter.[28]  At the time, the evidence pointed clearly to the need for a general legislative transposition of art. 9(3), with the Darpö report labelling the national measures falling within the scope of art. 9(3) as “diverging, random and inconsistent”.[29]

Notwithstanding this result, the Commission decided in 2017 to issue a soft law instrument, the Notice on access to justice in environmental matters.[30] This interpretative communication has the aim to systematise the existing body of CJEU’s case law on access to justice and provide concrete guidance to national courts on how to operationalise it.

It is significant, for the purposes of this Insight, that the considerations which led the Commission to abandon the idea of a legislative transposition of art. 9(3) in the form of an Access to Justice Directive seems to have been pre-eminently political. As the Commission itself admits in the Notice, “[A] legislative option in the form of a dedicated access to justice legal instrument was also not further pursued in view of the experience with a Commission proposal of 2003 which remained with the Council for over a decade without any agreement being found or in prospect”.[31]

In the absence of transposition of art. 9(3), the CJEU has, over the course of the years, issued a number of important rulings clarifying the scope of application of this provision. In the LZ I case, the Court concluded that, while art. 9(3) cannot be relied directly by litigants before national courts, there is nevertheless a duty for these courts to interpret procedural rules in accordance with the objectives of art. 9(3).[32] This case was followed by a number of rulings which all declared art. 9(3) as capable of granting standing to NGOs claiming the violation the Water Framework Directive,[33] requiring national authorities to amend action programmes aimed at reducing pollution from nitrates,[34] or challenging an administrative decision granting EC-type approval for vehicles.[35] In this line of case law, the Court has often accompanied art. 9(3) with art. 47 of the Charter on the right to an effective remedy.[36]

This case law has certainly served to compensate the lack of a legislative transposition of art. 9(3). [37] Nevertheless, as has been observed, the Court’s intervention, albeit valuable, “cannot conceal the pressing need for a more comprehensive regime”.[38] The next section will show how the idea of a “comprehensive regime” seems currently to have been abandoned even by the Commission, in favour of a sectoral approach.

IV. The “sectoral” approach and its shortcomings

iv.1.  The genesis of the “sectoral” approach

In the 2017 Notice on Access to Justice, the Commission noted that “a sector-by-sector legislative approach, focusing on adding access-to-justice provisions in areas in which specific challenges have been identified (such as nature, water, waste and air) would not help in the short term”[39], without further motivating this claim. If we fast forward to 2020, a 360-degree turn is noticeable. In its Communication “Improving access to justice in environmental matters in the EU and its Member States”, the Commission considered that, in order to ensure an effective implementation of the EU environmental acquis and in light of the hurdles faced by litigants in national courts, co-legislators should, as a matter of priority, “include provisions on access to justice in EU legislative proposals made by the Commission for new or revised EU law concerning environmental matters”.[40]

Interestingly, this call comes, as the Commission itself highlights both in the Notice and in the Communication, after the Member States did not seem to be so keen on legislating on access to justice in environmental matters either horizontally (as discussed above) or in sectoral legislation. Indeed, in the National Emissions Ceiling Directive, adopted in 2016, access to justice is only mentioned in a recital,[41] and in the Directive on the quality of water intended for human consumption, an access to justice provision was added in the proposal back in 2017,[42] but did not make it in the final text.

What happened between 2017 and 2020 and why did the Commission, initially vocally opposed to legislating on a sector-by-sector basis on access to justice, turned into a staunch supporter of sectoral legislation on this matter?

In December 2019, the European Commission published its Communication on a “European Green Deal”.[43] The aim of this Communication is to step up the EU’s environmental action, so as to meet emissions reduction targets and, ultimately, achieve climate neutrality.

One of the key points underlined by the European Green Deal is how much the involvement and commitment of the public and stakeholders is crucial to achieve the targets it sets. On this basis, the text of the Green Deal mentions that: “[t]he Commission will also take action to improve their access to justice before national courts in all Member States”.[44]

Along the same lines, further developments also called for action in the field of environmental access to justice.

Indeed, in January 2021, the CJEU confirmed, in its decision in the case of Stichting Varkens in Nood, the importance of access to justice in environmental matters.[45] In this case, the CJEU answered preliminary questions regarding the interpretation of art. 9(2) of the Aarhus Convention. The CJEU declared that access to justice of the public concerned must be guaranteed, even without prior involvement in the public participation procedure. Although this decision relates to art. 9(2), it impacts the development of legislative proposals and shows how access to justice in environmental matters is viewed in the EU as a separate, autonomous procedure.

In addition to the lever activated by the Green Deal, the 8^th Environmental Action Programme (EAP), adopted in 2022, highlights the importance of access to justice as one of the enabling conditions to attain the priorities of the EU in terms of protection of the environment.[46]

These developments show an increased importance of legislative action in the field of access to justice. With horizontal legislation adopted in transposition of art. 9(3) being shelved at the political level, it can be speculated that the Commission opted for a more pragmatic approach to both fulfil its commitments and reach feasible political compromise before the co-legislators.

iv.2. Analysis of the sectoral provisions: a patchwork of inconsistent approaches

The new – sectoral – approach of the Commission for access to justice in environmental matters is visible in a number of proposals and already adopted pieces of legislation. In the following paragraphs, we discuss the proposals and pieces of legislation listed in the 2023 Communication report quoted in the Introduction and retrace the drafting history of the access to justice provisions, pinpointing changes of formulations and possible identifiable patterns. The analysis the legislative history of such provisions shows that their insertion in EU secondary law is not always straightforward.

For example, art. 32 of the EU Regulation on Deforestation-free products, which entered into force on 29 June 2023, contains an access to justice provision mirroring the requirements of art. 9(3).[47] However, when looking at the Council’s approach, we notice that the initial access to justice article submitted by the European Commission in its Proposal (art. 30) was, in fact, deleted.[48] This deletion raises questions as to the Council’s willingness to include an access to justice provision in the Regulation. While the Council wanted to scrap the provision altogether, the European Parliament pushed in the opposite direction and proposed the addition of another paragraph to (then) art. 30, mirroring the text of art. 9(4) and (5) of the Aarhus Convention.[49] Ultimately, the provision in its original form found its way back to the adopted text and now enables citizens to have access to procedures to review the legality of actions taken by Member States under the Regulation.

Interestingly, art. 16 of the Proposal for a Regulation on nature restoration[50] contains an access to justice provision incorporating the requirements of not only art. 9(3), but also 9(4) and (5) in respect of the action of public authorities when drafting (or failing to draft) national restoration plans. Mindful of the Stichting Varkens in Nood ruling, the proposal specified that access to justice must be granted “regardless of the role members of the public have played during the process for preparing and establishing the national restoration plan”.[51] As with the Regulation on Deforestation, the Council deleted the provision altogether,[52] and it has not re-appeared in the latest EP position at first reading.[53] Following the exclusion of the proposal’s provision, the Commission annexed a statement on access to justice to the European Parliament’s legislative resolution.[54] This relatively vague statement only provides that Member States “should” ensure access to justice for the members of the public concerned, in accordance with the relevant case law and the Commission Notice on access to justice.[55] The Regulation was eventually adopted on 17 June 2024 by the Council, without any access to justice provision in respect of national restoration plans.[56]

Art. 22 of the proposal for a Directive on Soil Monitoring and Resilience (Soil Monitoring Law) seems to have been following yet another path.[57] It contains an access to justice provision incorporating the requirements of art. 9(3), (4) and (5). The latter was somewhat modified by the Parliament to include requirements of the Stichting Varkens in Nood ruling, which were not present in the Commission’s document.[58] The Council for the moment seem to have agreed with this approach.[59] However, the final text has not been adopted, hence it cannot be predicted with certainty how the final provision will look like, but the erratic approaches of both Commission and European Parliament emerge clearly if one juxtaposes this provision and its development with the two discussed above.

The unpredictability of the developments of access to justice provisions becomes even more visible when examining art. 25 of the proposal for a Directive concerning Urban Wastewater Treatment.[60] Also this provision, like the one in the Soil Monitoring Law, incorporates the requirements of art. 9(3), (4) and (5). However, it is this time the Council which, making a 360 degree turn in comparison to the Deforestation Regulation, not only kept this provision but added the requirements stemming from the Stichting Varkens in Nood ruling.[61] The European Parliament at first reading unsurprisingly agreed with this addition and the fate for this access to justice provision seems to be sealed in favour or a broad formulation.[62]

When revising the Ambient Air Quality Directive in 2022, the European Commission inserted an article on access to justice to challenge air quality plans: art. 27.[63] It is worth noting that the Preamble to the new Directive explicitly refers to the 8^th EAP as guiding the objectives of the Directive, and mentions that better access to justice is one of the tools helping to achieve the objective of a non-toxic environment.[64] This inclusion further reinforces the impact of the 8^th EAP on the recent policy-making. Art. 27(2) now covers the requirements set in art. 9(3), (4) and (5) of the Aarhus Convention, and it also confirms that standing is not conditional on prior public participation in the drawing up phase of the air quality plans, thereby implementing the reasoning of the CJEU in Stichting Varkens in Nood.[65] The introduction of the access to justice provision in the Directive was considered by the European Parliament Rapporteur as one of the positive aspects of the Commission’s proposal.[66] The European Parliament made some changes to the wording of art. 27, and added a sub-section to art. 27(3), to include the following requirement: “Member States shall determine at what stage the decisions, acts or omissions may be challenged, to the extent where the access to a review procedure before a court of law, or another independent and impartial body established by law, is not rendered impossible or excessively difficult”.[67] The notes of the policy debate that took place on 20 June 2023 at the meeting of the Council on environment show that the delegations seemed in favour of the access to justice provision, and were positive about including this aspect to the recast of the Directive.[68]

Finally, art. 16 of the Proposal for a Directive on substantiation and communication of explicit environmental claims (the so-called “Green Claims” Directive) covers access to justice.[69] Accordingly, this article incorporates the requirements laid down in art. 9(3), (4), and (5) of the Convention. The amendments in the text adopted by the European Parliament actually go even further than the Commission’s proposal, as they modify Art. 16 so as to include more precise and detailed rules.[70] It can be argued that the EP’s amendments contribute to greater compliance with the Aarhus Convention, or at least the spirit thereof, which is to ensure that citizens have access to environmental procedural rights, including access to justice. The Council seems to agree with this approach (and limited itself to adding the criterion of “impairment of a right” to obtain standing, which is in line with what is foreseen by the Aarhus Convention).[71] If the text is adopted in the current form, access to justice will be ensured in broad terms for claims under this Directive.

The table below presents the various positions of the institutions in respect of access to justice provisions in the acts discussed above, with the Commission’s proposals sorted in chronological order. As this table shows, there is no logic behind the insertion or deletion of access to justice requirements in legislative proposals. Indeed, the Commission directly included the requirement stemming from the Stichting Varkens in Nood ruling in its proposal for a recast of the Ambient Air Quality Directive in October 2022, but did not do it in the text of its proposal for an Urban Wastewater Treatment Directive released the same day. Similarly, the subsequent proposal for a Directive on Soil Monitoring and Resilience, published in July 2023, did not contain any reference to the Stichting Varkens in Nood requirement. This reference was later added by the European Parliament. It must, however, be noted that the absence of the Stichting Varkens in Nood requirement in the Deforestation Regulation and in the Green Claims Directive makes sense from a substantive point of view: these legislative acts do not contain any decision-making under which a public participation procedure is envisaged.

Finally, there is no chronological explanation to the positions of the Parliament or Council, which sometimes delete the provisional articles on access to justice, and sometimes reinforce them. It therefore seems that the choice of whether and when to include access to justice provisions in sectoral environmental legislation, and of the level of precision of these provisions, is a political one, guided by political negotiations rather than tangible, legal justifications.

                                                                                
Table. Positions of the EU institutions with respect to access to justice provisions in relevant secondary EU legislation

V.  Conclusion

In 2014, writing about the transposition of art. 9(3) in the EU, Hedemann-Robinson spoke about a “fragmented delivery of safeguards and protections”.[72] Ten years later, after a number of political twists and turns, a sectoral approach to the transposition of art. 9(3) seems to be the chosen way forward. While the inclusion of access to justice provisions in sectoral legislation is likely to contribute to ensuring better protection of rights, the question of consistency among the many legislative acts covering the environmental field in the EU arises. First of all, the Regulation and Directives mentioned above only represent a minor part of EU environmental law. Access to justice under art. 9(3) of the Aarhus Convention aims at encompassing all environmental areas. However, the current approach implies that EU citizens and ENGOs will only be able to reply on a mechanism of access to justice foreseen by EU legislation (and thus to be foreseen in national law) in certain areas. Secondly, even within the mechanisms covered by the current – limited – sectoral approach, clear discrepancies in scope emerge, with the ensuing difficulties for Member States to transpose this mosaic of similar – yet not completely overlapping – obligations. All in all, the emerging picture, while a step in the correct direction, cannot be regarded as fulfilling the objective of ensuring the “wide access to justice” promise of the Aarhus Convention.