A lost opportunity for improving access to justice in environmental matters: the CJEU on the invocability of the Aarhus Convention

 

 

Dr. Apolline J. C. Roger, Senior Teaching Fellow in EU environmental law, University of Edinburgh Law School.

 

The right of access to justice provides environmental NGOs and citizens with a safeguard: the capacity to challenge the final decisions of public authorities when they have an impact on the environment and environmental health. By becoming Party to the Aarhus Convention on access to justice, public participation, and access to information in environmental matters in February 2005, the EU recognised that access to justice is an essential guarantee of good governance and a crucial component of the human right to a healthy environment.

 

However, the EU has always been reluctant when it comes to the direct challenge of its acts by citizens and NGOs. It is therefore not surprising that NGOs tried to challenge the adequacy of the EU’s system of legal remedies in light of the Convention’s provision on access to justice (Article 9(3)). In a judicial saga where the General Court was ultimately overruled, the Court of Justice avoided assessing whether the EU effectively ensures the right of access to justice in environmental matters by refusing to recognise the direct effect of Article 9(3) of the Aarhus Convention.

 

The complexity of the EU’s system of legal remedies: the genesis of the saga

 

The EU’s system of legal remedies gives Environmental NGOs (ENGOs) a specific procedure for reviewing each type of EU act in environmental matters. However, the procedures available are not of equal quality.

 

EU legislative acts and EU administrative acts of general scope which entailimplementing measures can be challenged indirectly. It means that the CJEU can be asked to review their legality, but only by a national court in front of which this question was raised (according to the preliminary ruling procedure, Article 267 TFEU). However, an ENGO intending to use this procedure to challenge an EU act will be facing several obstacles. First, they must wait for a national measure to be taken (which can take a long time). Then, they may only access national courts if national law grants them standing rights (which is not a given). Finally, if these two obstacles are overcome, ENGOs must convince the national courts that a reference to the CJEU is necessary (which is far from automatic). For all of these reasons, the indirect challenge of EU acts does not offer the same certainty and efficiency as a direct judicial or administrative review procedure.

 

EU general administrative acts which do not entail implementing measures can be directly challenged by ENGOs before the CJEU. Finally, the last category of EU acts consists of EU individual administrative acts. They can be directly challenged before the CJEU, but only by their recipient (Article 263 TFEU).

 

Therefore, NGOs’ right of access to justice suffered from two severe limitations. First, they do not have any possibility to directly challenge EU administrative acts which entail implementing measures. Second, they cannot challenge EU individual acts unless they are the recipient of those acts (which is rarely the case). Are these limitations breaching Article 9(3) AC? Under Article 9(3), the Parties to the Aarhus Convention do not necessarily have to provide NGOs with a judicial procedure. However, when it is the case, Parties have to create a procedure of “internal review” (also called “administrative review”).

 

In an effort to implement the Aarhus Convention to the EU’s institutions and bodies, the EU did create an internal review procedure in environmental matters, in Article 10 of Regulation n°1367/2006 "Aarhus Regulation" or "AR". However, Article 2(1)(g) AR severely constrains the internal review procedure scope by defining an “administrative act” as “any measure of individual scope”.

 

In order to compensate for the deficiencies of the preliminary ruling procedure identified above, should the internal review set in Article 10 AR be extended to EU general administrative acts which entail implementing measures? Should Article 10 AR be extended even further to all EU general administrative acts, with or without implementing measures? Unsurprisingly, the European Courts were asked to answer these questions and therefore to evaluate the compliance of the EU’s system of legal remedies with Article 9(3) AC.

 

The General Court in T-396/09 and T-338/08: the EU’s system of legal remedies breaches the Aarhus Convention provision on access to justice

 

ENGOs quickly tried to obtain from the Commission a review of its decisions of general scope under Article 10 AR. The Commission rejected their requests, reminding that the Aarhus Regulation Article 2(1)(g) opens the procedure against individual acts only.  The unsuccessful ENGOs challenged these decisions in T-396/09 and T-338/08, claiming that Article 9(3) of the Aarhus Convention requires an extension of Article 10 AR to all EU administrative acts, including those of general scope. The General Court granted their request.

 

To support its position, the Court reminded that Article 9(3) has to be interpreted in light of the Convention’s objectives. The Convention aims at making access to justice a tool to ensure the quality of environmental decision-making process by empowering NGOs and citizens. It also promotes it as a fundamental pillar of the right to a healthy environment. Broad access to justice should therefore be ensured.

 

However, as the Court observed, most of the EU executive acts in environmental matters have a general scope. As a consequence, an internal review which is limited to individual acts has a minor effect on the improvement of access to justice. Finally, the General Court noted that Article 9(3) of the Convention does not leave the Parties free to choose which acts should be easily challengeable by NGOs and citizens. The only acts not covered by Article 9(3) AC are the acts adopted by institutions acting in a judicial or legislative capacity. The general acts adopted by the Commission within its executive powers are covered by the Convention, and thus should be easily challengeable, meaning that they cannot be excluded from the scope of Article 10 AR.

 

In 2008, the Aarhus Convention Compliance Committee humbly reminded the EU that “the system of preliminary review does not amount to an appellate system with regard to decisions, acts, and omissions by the EU institutions and bodies” and does not “in itself meet the requirements of access to justice in Article 9 of the Convention”. The lack of a direct judicial procedure should be “fully compensated for by adequate administrative review procedures”. The General Court took heed of this reminder by complementing the preliminary ruling with a direct procedure: the internal review. However, by not distinguishing between general administrative acts which entail implementing measures and those that do not, the Court submitted the latter to two direct review procedures – one administrative, one judicial.

 

This indistinct broadening of Article 10 AR has advantages and disadvantages. On the plus side, it might have appeared as more respectful of the CJEU’s unshaken support of the preliminary ruling procedure as a sufficient way to access justice. Indeed, if the General Court had extended Article 10AR’s scope only to the EU administrative acts not directly challengeable, it would have explicitly recognised the shortcomings of the preliminary ruling procedure. On the other hand, the decision to broaden Article 10AR scope to all EU administrative acts created a higher risk to be overruled – a risk which materialised in January 2015.

 

The General Court overruled by the CJEU: a missed opportunity for access to justice at the EU and national levels

 

The CJEU overruled the General Court’s decisions in the joint cases C-404/12 P & C-405/12 P and C-401/12 P to C-403/12 P. The CJEU did not assess the adequacy of the EU system of legal remedies. It simply rejected the invocability of Article 9(3) of the Convention by considering that the conditions under which the indirect and the direct effect of an international provision can be recognised were not met. Therefore, the legality of Regulation 1367/2006 Article 10 could not be reviewed against Article 9(3) AC; the internal review remains available against individual acts only.

 

The joint cases C-404/12 P & C-405/12 P and C-401/12 P to C-403/12 P are, as the Jego-Quéré/UPA saga was (see C-50/00 UPA), a missed opportunity to improve access to justice at EU level. One could answer that courts should not go against the legislative will as expressed by the regulation’s wording – here Article 2(1)(g) AR. However, that would not have been the first time that the Court would have engaged in ambitious judicial interpretation. Furthermore, the legislator also expressed the will to commit to the Aarhus Convention and to guarantee the access to justice as a fundamental pillar of the human right to a healthy environment. The judicial path could have been a smooth way to reconcile the conflicting views carried by the Aarhus Convention and the restrictive scope of Article 10 AR.

 

Furthermore, the impact of this missed opportunity on access to justice goes beyond the EU level. Access to justice in environmental matters is indeed far from being equally and efficiently ensured in all Member States. Accepting to review the Aarhus regulation in light of Article 9(3) AC could have been an incentive for the national courts to review the standing rights granted by national law in light of the Convention.

 

Finally, the Court seems to have developed two different standards for access to justice at the EU and national levels. On one hand, the CJEU strongly pushes the national courts to broaden access to justice, as shown by its decision in Case C-240/09 (the ‘Slovakian bears’ case). On the other hand, the Court does not seem ready to follow the guidance it gave to national courts in C-240/09: “it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law”. The preliminary ruling procedure makes it excessively difficult for ENGOs to exercise their right to access to justice. The internal review procedure offers an adequate alternative, which does not threaten the Courts with an overwhelming wave of cases. Finally, internal review procedures are truly adapted to environmental issues considering their preventive nature.

 

By refusing to broaden the scope of Regulation 1367/2006 Article 10, the CJEU rejected an easy fix for the inadequacy of the EU’s system of legal remedies.

 

Image: www.foe.scotland.org.uk

 

Barnard & Peers: chapter 22

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Is it different this time? The Commission’s 2015 work programme

 

Steve Peers

Today the new European Commission announced its first annual work programme. Quite apart from the usual restructuring and renaming of policies, it promises to take a different approach to prior Commissions. In particular, this Commission apparently plans to propose fewer new EU measures and to withdraw many more pending proposals than usual.

But is the Juncker Commission’s approach actually different from the approach of previous Commissions? The best way to test that is to compare today’s work programme to the first work programme of previous Commissions.

The incoming Barroso Commission of 2005 suggested 32 pages of proposals, with no reference to withdrawal of pending measures. In 2010, the incoming ‘Barroso II’ Commission listed 25 pages of proposals, although only five pages concerned proposals that the Commission was definitely planning to make in 2010. The other 20 pages listed those proposals which were planned for the rest of the five-year mandate, although in the end some of those proposals – like two Directives on labour migration – were tabled in 2010 after all. And the 2010 work programme listed 58 proposed measures which were going to be withdrawn, although in all but one case the withdrawals were due to obsolescence.

How does that compare to the 2015 work programme? First of all, the list of planned proposals is similar to that in 2010: four pages, 23 proposals, compared to five pages and 34 proposals five years ago. Admittedly, the 2010 list comprised only the Commission’s biggest priorities, while the 2015 list is supposedly exhaustive, according to press reports. So is the Commission really planning to propose less than one new measure per Commissioner next year?

Of course not. A close look at the fine print reveals that some of the 23 items on the list will actually comprise more than one proposal. For instance, the review of immigration policy mentions both smuggling of migrants and the ‘Blue Card’ Directive on highly-skilled migrants. It would be technically possible to table one legislative proposal addressing both issues – indeed, that would be unremarkable compared to how immigration legislation is drafted in many countries. However, the EU’s tradition is to propose and adopt different legal acts in such cases. Similarly, the plans concerning labour mobility, the internal market, energy and the digital single market will necessarily entail proposing more than one item of legislation. This is particularly obvious as regards the digital single market, where the work programme refers to a ‘package’ of laws.

Secondly, the list of withdrawn proposals for 2015 – already nicknamed the ‘kill list’ – is somewhat longer, totalling 80 items. Two-thirds of these are obsolete, but around 25 of them are withdrawn for more political reasons: either there is no reasonable prospect of agreement, or the Commission wants to redraft them itself in light of changed priorities.

The first reason for withdrawal is hardly unheard of; in most years, the Commission withdraws a couple of proposals which have met with implacable opposition in the European Parliament or (more often) the Council. The second reason for removal is very rare indeed. The Commission justifies it in light of the principle of ‘discontinuity’ – the practice, quite common (perhaps even ubiquitous) in democratic systems, of retiring all legislative proposals when a new legislature is elected.

To be frank, the Commission has rather botched its application of this principle. It’s usually known simply as the principle of legislativediscontinuity, and entails the automaticwithdrawal of all legislative proposals on the table when a parliamentary chamber is dissolved before an election. The Commission is applying the rule only partially, withdrawing only certain proposals that it disagrees with. In any event, the principle is firmly rooted in the electoral process that leads to a change of (at least some) parliamentarians.

This distinction isn’t simply pedantic, since it goes to the heart of the Commission’s legal and political legitimacy to withdraw these proposals. Legally speaking, the Treaties refer to the Commission’s powers to make and amend proposals, but say nothing about any power to withdraw them. Should that power not rest instead with the EU’s two legislative chambers, which have been respectively directly (the Parliament) and indirectly (the Council) elected? For many years, this has been a theoretical point, since the Commission’s assumption that it has untrammelled powers to withdraw its proposals has gone unchallenged. But this Thursday, a CJEU Advocate-General is due to give his view on whether the Commission indeed has an unlimited power to withdraw its proposals, in a case brought by the Council. (Remember that like any such opinion, it won’t be binding; it will be up to the judges of the CJEU to give a final ruling, sometime next year).

Politically speaking, the Commission could try to claim some legitimacy to withdraw these proposals if they had mentioned during Jean-Claude Juncker’s campaign for the Commission Presidency, either during the European Parliament elections or when he was asking for a majority of the Parliament (and a qualified majority in the European Council) to approve him. Alternatively, these withdrawals might be legitimate if the other Commissioners had stated their intention to withdraw them in their hearings before the European Parliament. But it can hardly be claimed that withdrawal of proposals on waste or air pollution were a central feature of Juncker’s, or the Commission’s, campaign to be appointed.

Some of today’s withdrawals are supposedly not permanent, because the Commission has announced its intention to propose replacement measures next year. But it’s not absolutely certain that the Commission will keep this promise. Others are contingent, because the Commission has given the legislators a deadline to discuss a possible deal, failing which it will withdraw its proposal. It’s an interesting strategy, which will empower the half of the legislature that is reluctant to consider these proposals (usually the Council), at the cost of the other half (usually the European Parliament).

In the case of the maternity leave Directive, it raises the interesting question of how many feminists are also pragmatists. It’s politically impossible to obtain the lengthened maternity leave on full pay that a majority in the European Parliament desire: so should they settle for anything, as long as it’s an improvement on the status quo? Unlike an actual baby (cf the judgment of Solomon), it is possible to obtain only half of one’s legislative objectives – or probably significantly less than that in this case. This particular legislative proposal has been gestating now for six years; it might yet be born next year, but there’ll probably be a lot of shouting first.

 

Barnard & Peers: chapter 3

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ClientEarth: a landmark in the CJEU’s environmental law jurisprudence

 

Anna Dannreuther, Trainee, Research Department of the CJEU

Background

The CJEU gave its judgment yesterday on a preliminary reference from the UK Supreme Court concerning the UK’s failure to apply for an extension of time for compliance with limit values for nitrogen oxide. The case was brought in the UK by ClientEarth, an environmental NGO seeking a declaration to the effect that the UK was in breach of Article 13 of Directive2008/50/EC (the ‘Air Quality Directive’), which laid down a limit of 1 January 2010 for compliance with nitrogen oxide limit values therein.

The UK Supreme Court had little difficulty in finding the UK to be in breach of its nitrogen oxide limit value obligations, the Secretary of State having accepted that the limit values for nitrogen oxide had been exceeded in a number of zones or agglomerations set up for the purposes of the Directive. The breach having been ‘clearly established’, and the Secretary of State’s concession failing to constitute a sufficient reason to decline to grant the declaration, the case was referred to the CJEU for more complex issues of interpretation of Articles 13, 22 and 23 of the Directive.

The UKSC asked the CJEU four questions concerning the obligation on Member States under the Directive to apply for postponement of the limit value deadline, exceptions thereto, whether establishing an air quality plan was sufficient to comply with obligations under the Directive, and the appropriate remedies in the case of breach.

The context of the questions was that in 2011 the Secretary of State had applied to the Commission for an extension of the deadline for compliance in respect of 24 of the 40 zones where nitrogen oxide limits had been exceeded. This was permissible under Article 22 of the Air Quality Directive. In the air quality plans submitted to the Commission, it showed how the limit values would be met by 1 January 2015 at the latest. For the remaining 16 zones, for which the air quality plans projected compliance with the limit values between 2015 and 2025, no request for time extension was made.

The main question for the CJEU then was whether, under Directive 2008/50/CE, the UK was under an obligation to seek postponement of the deadline for compliance with limit values in respect of zones or agglomerations which did not comply with the limit values for nitrogen dioxide by the deadline of January 1 2010. This was unclear from Article 22 of the Directive, which merely stated that Member States ‘may postpone’ the deadline for compliance if compliance cannot be achieved by 1 January 2010. It also sought to know whether compliance with Article 23, by producing air quality plans, was sufficient to comply with Article 13 of the Directive.

Judgment

The ClientEarthjudgment is a landmark, marking a firm line being taken by the Court in terms of breach of air quality obligations. The Court took no prisoners in its judgment, and took every opportunity to reinstate the Member State’s compliance obligations under the Directive.

Describing the general framework of the compliance provisions of the Directive, namely that if Member States are unable to comply with limit values they may apply to postpone the deadline for compliance by a maximum of five years, the CJEU firmly asserted that the obligation to make an application for an extension of time naturally followed from the context of the provision and the aim pursued by the EU legislature, even though the exact wording of the Article did not expressly require an application [para 27]. This is so because such an obligation obliges Member States to anticipate that conformity with the limit values will not be achieved by the deadline specified and to formulate an air quality plan giving details of measures that are capable of remedying the pollution by a later deadline.

The obligation was also to be found in the wording of Article 13 of the Directive, which provides that nitrogen oxide limit values ‘may not be exceeded’ after the specified deadline [para 30]. As a consequence Member States must take all the measures necessary to secure compliance with that requirement, and applying for postponement of the deadline for compliance is one of those measures. As for exceptions to this obligation, the CJEU reminded the UK Supreme Court that Article 22 does not contain any exception to the obligation flowing from Article 22(1) [para 34].

In response to the Supreme Court’s question of whether producing an air quality plan was sufficient for compliance, the CJEU contended that such an interpretation would be liable to impair the effectiveness of Articles 13 and 22 of the Directive, as it would allow a Member State to disregard the deadline imposed by Article 13 under less stringent conditions than those imposed by Article 22 [para 44].

In response to the question on remedies, the CJEU recalled Member States’ general obligations under Article 4 TEU to ensure judicial protection of an individual’s rights under EU law and Article 19(1) TEU to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law [para 52]. It also suggests that the Directive has direct effect [para 54] and that it would be incompatible with the binding nature of Article 288 TFEU to exclude, in principle, the possibility of the obligation imposed by that Directive being relied on by the persons concerned [para 55]. That consideration applies particularly in respect of a Directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (see the prior Janecek judgment, paragraph 37).

Comments

The CJEU pulls out all the stops in this judgment to ensure that the seriousness of the consequences of breach of this Directive is taken into account by Member States. ClientEarth was thrilled with the ruling – its websitecites air pollution as the cause of 29,000 deaths in the UK each year – the biggest health problem after smoking. It should be noted that, not only does the Court fill in the legislature’s gap by purposively reading into the Directive an obligation to apply for a postponement of the compliance deadline, but it also peppers the judgment with assertions of the absolute nature of this obligation. For example in paragraph 30, the Court asserts that, despite the different wording of obligations not to exceed value limits in relation to different chemicals, the wording relating to nitrogen dioxide (‘may not be exceeded’) is just as powerful as that relating to carbon monoxide (Member States are to ‘ensure’ that limit values are not exceeded), and that it too creates an absolute obligation to achieve a certain result.

As there is no express obligation to seek postponement, the UK’s question as to whether the fact that they had produced air quality plans was sufficient to comply with their general obligation under the Directive seems sensible. The Court came down hard on this however, stating that to bypass Article 22, the postponement article, and comply only with Article 23, the air quality plans article, would mean Member States would comply with less stringent conditions than those imposed by both Article 22 and Article 23. Read plainly, this seems to be possible, and the Court seems to be again asserting the implied obligation to apply for postponement in order to avoid the mischief of allowing Member States to bypass the postponement requirements. This is consistent with their previous answer, but the response highlights the Directive’s deficiencies – Article 22 seems to impose a maximum deadline of 5 years for compliance with value limits, whereas Article 23 allows for surpassing this deadline so long as plans setting out appropriate measures keeping the period of exceeding the limits as short as possible are established. It is unclear which time limits Member States must comply with, and it is unclear what the ramifications are for failure to comply.

Whatever the drafting problems with this Directive that gave way to possible wiggle room for the UK government to elude the obvious intention of the legislators may be, the judgment is a fantastic example of the force of purposive interpretation and of using every possible argument to condemn a Member States’ clear breach of laws endangering public health.  

 

Barnard & Peers: chapter 22

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