Proposal to expand access to environmental justice

Proposals for an EU Directive on public access to justice in environmental matters were published by the European Commission at the end of October.1 They would expose acts or omissions by public authorities to legal challenge - and may strengthen the case for a new environmental tribunal in the UK.

The draft Directive would complete the legislation which is needed to enable the EU to ratify the 1998 pan-European Aarhus Convention (ENDS Report 279, pp 43-44 ).

The Convention has three pillars. EU legislation was recently put in place to give effect to two of these - on public access to environmental information, and on public participation in plans and programmes required by several existing environmental Directives (ENDS Report 336, p 52 ).

Neither Directive has yet been implemented in the UK. However, it is the Convention's third pillar, on access to justice, which is posing the biggest challenge for the UK. The Government originally promised that all the legislation necessary to enable it to ratify the treaty would be in place during 2000, but has still not delivered - largely because of difficulties with the third pillar.

The new draft Directive may help the UK along. Its goals are to pave the way for the EU to ratify the Aarhus Convention, but also to remedy well-documented shortcomings in the application of EU environmental laws.

A key issue for the Commission was how far to go beyond the Convention's requirements, which in some key areas were left deliberately fuzzy to accommodate different national legal systems, in order to achieve at least a minimum harmonisation of EU practices. It knew that it would risk complaints that going beyond the Convention would be contrary to the EU's subsidiarity principle.

The Commission tested the water with a discussion paper last year (ENDS Report 328, pp 52-53 ) - and indeed received complaints from some Member States that it was infringing subsidiarity. It has now rowed back from some of those proposals - but will have a battle on its hands after sticking to its guns on others.

The Commission has, however, avoided a conflict with business interests. It has closely followed the Convention's approach in proposing that it should be for Member States to decide the circumstances in which members of the public may challenge acts or omissions by private persons in breach of environmental law. Going further than this, it says by way of explanation, "would impinge upon the very core of Member States' [legal] systems."

The proposal focuses instead on challenges to "administrative acts or omissions" by public authorities in breach of "environmental law". This is defined as EU legislation and national legislation which implements EU laws. Reversing the opt-out approach in its discussion paper, the proposal would also allow Member States to include laws of exclusively national origin in the definition of "environmental law".

"Administrative acts" are defined as measures which have a legally binding external effect, while an "administrative omission" is a failure by an authority to act where it is legally obliged to do so. However, acts or omissions relating to criminal matters would not be open to challenge.

The Directive would entitle members of the public or "qualified entities" to challenge the procedural and substantive legality of acts and omissions before a court or independent body established by law.

In order to have standing in such cases, members of the public would have to demonstrate either a "sufficient interest" or, if national law requires this, impairment of a right. However, qualified entities would not be subject to these conditions.

"Qualified entities" are organisations which have environmental protection as their objective.

They would also have to be independent and non-profit-making; have an organisational structure enabling them to "ensure the adequate pursuit of" their objective; have worked "actively" on environmental protection for a minimum period of up to three years; and have their annual accounts certified for a minimum period to be fixed by Member States. The Directive would require Member States to have a procedure for recognising qualified entities.

The concept of qualified entities, which does not appear in the Aarhus Convention, attracted strong objections from the European Environmental Bureau, which fears that it could be used as a barrier to access to justice.

The EEB pointed out that the proposed criteria "could work to exclude new groups or ad hoc coalitions which form to respond to a particular problem, or groups with a non-environmental purpose such as neighbourhood organisations." These might still be able to mount legal challenges as members of the public - but only if they met the legal standing tests.

Proceedings under the Directive would have to be in two stages except where interim relief was being sought, when the first stage would be dispensed with.

The first stage would be a request to the authority concerned to carry out an internal review. The authority would normally have to respond with a reasoned decision within 12 weeks, or 18 weeks at the outside.

If these deadlines were not adhered to, or the complainant was dissatisfied with the decision, the case could then be taken to a court or other appointed body. In line with the Convention, the draft Directive provides that these proceedings should be "objective, equitable, expeditious and not prohibitively expensive."

The proposal would have a number of significant implications in the UK, though some merely reflect the Convention's provisions. In particular, the requirements for review of the substantive legality of authorities' acts or omissions, and for equitable and not prohibitively expensive legal proceedings, are felt by many not to be met by the UK's judicial review procedures.

The Directive may therefore give additional impetus to recent proposals for an environmental tribunal (ENDS Report 341, pp 3-4 ).

The Directive may also make it easier to bring challenges alleging that particular acts or omissions are in breach of EU environmental law - making it potentially a very powerful instrument.

The Commission wants the Directive to enter into force in January 2005. It has put forward two accompanying proposals - a draft Regulation which would apply the three pillars of the Aarhus Convention to EU institutions, and a draft Decision ratifying the Convention on behalf of the EU.

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