Access to justice in environmental matters
During the summer, a Commission's Communication on access to justice in environmental matters (2017/C 275/01) was published.
Access to justice in environmental matters means, among other things, that several guarantees provided in environmental legislation, such as public consultation in decision-making, access to information on the state of the environment, checks on air quality, etc., may be reviewed by an independent court.
The effectiveness of actual access to justice in case of default of the government was clearly demonstrated over the past few years. This possibility is, regarding the air quality in Brussels, also very topical. That is why it is important to ensure citizens and non-governmental organisations have access to the courts in the most easily accessible manner.
From the practice at Member States level, it appears that access to the environmental court is applied in a diverse, arbitrary and inconsistent manner. A study by Jan Darpö from 2013 on the implementation of Articles 9.3 and 9.4 of the Aarhus Convention has already demonstrated this.
Faced with this finding, action was required. This resulted in "guidelines" in the above-mentioned Communication, which are meant to facilitate procedures regarding EU environmental legislation before a national court. In addition, the guidelines aim to gather the case-law of the Court of Justice on access to justice in environmental matters and represent it in an understandable manner.
The guidelines are welcomed to keep the attention to the problems alive and to encourage the Member States to step up their efforts. Other than that, they are not very ambitious.
In a world where time is running out for the environment, a strong signal is expected from the Commission.
It is regrettable that the guidelines are not binding. The guidelines do not relate to the judicial review of acts of the EU institutions either. The restrictive approach which the Court of Justice applies when individuals and environmental associations directly appeal to the Court remains in existence (as per its Plaumann case-law). They need to resort to the national court.
In Belgium, the applicability of the VAT regime (21%) to services which lawyers offer has already inevitably led to an additional threshold. The judicial costs were increased over the past few years as well. In Flanders, on top of that, a modification of the decree on spatial planning is imminent, which effectively means that if you do not lodge a motivated objection during the public inquiry, you no longer can appeal to the granted authorisation afterwards.
Who will act on behalf of the articulate citizen and non-governmental organisation?
Source: Commission Notice on access to justice in environmental matters (2017/C 275/01)
Associated areas of specialisation: Environment