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4th Dec 2021

EU environmental policy could face NGO lawsuits

The European Union has been told to ensure that NGOs can challenge its environmental policy in court, something EU institutions have so far failed to do.

It is unclear if the EU executive will follow up on the recommendation, however.

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  • EU court in Luxembourg should hear NGO suits, the UN-linked panel said (Photo: katarina_dzurekova)

Last Friday (17 March), the Aarhus Compliance Committee said the EU was not living up to its obligation to allow the public effective access to justice in environmental matters.

The Aarhus convention is a UN text that sets out principles for the rule of law in environmental legislation. The EU ratified it in 2005.

"This means the EU promised to provide information about environmental decisions, and allow citizens and green groups to participate in such decision-making,” Jonas Ebbesson, a professor of law at Stockholm University who chairs the Aarhus committee, said.

“The EU has also obliged itself to provide the possibility for the public to complain before court about EU decisions, or the failure to act on environmental matters," he added.

The Aarhus compliance committee is an independent body of legal experts who investigate complains from individuals in signatory states.

EU legislation implementing the convention limits the type of acts which may be challenged before the courts to measures of “individual scope”, whereas most of the decisions that NGOs seek to challenge are of “general scope”.

"We investigated and found the EU doesn't compensate for the lack of legal standing before the court with alternative mechanisms," the Swedish professor told this website. "This limits the rights of EU citizens."

Friday's recommendations were a response to a complaint filed by ClientEarth, a green pressure group, in 2008.

The NGO said in a written statement that barring it from court was "stark proof of the EU’s persistent democratic deficit".

ClientEarth's Robyn Meadwell told this website his organisation would, for instance, like to challenge last week's decision by the European Chemical Agency not to classify glyphosate as being carcinogenic.

He said it would also like to challenge EU fisheries quotas.

These are set by ministers behind closed doors in the EU Council.

NGOs have claimed for years that they exceed scientifically advised levels.

ClientEarth would also like to test in court commission decisions that allowed EU countries to exceed air pollution limits, kill protected species of animals, and give state aid for nuclear or coal plants.

It remains unsure what the commission will do in reaction to the committee's recommendations.

A spokesman on Monday said that the institution had yet to assess the recommendations.

"But we are sure we have been acting on sound legal basis," the spokesman, Enrico Brivio, said.

The Aarhus committee’s Ebbesson said he would be in Brussels on Wednesday to explain the recommendation to member state representatives in the Council.

In September, countries that have signed up to the Aarhus Convention - including the EU - will meet and discuss the findings of the committee.

"If the EU was to disagree here, not only would it be the first time this has ever happened, but it would send a dangerous signal to its citizens, to the member states and to the rest of the world that the EU has a highly selective approach when it comes to the rule of law," ClientEarth said.

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