Documents considered by the Committee on 22 November 2017 Contents

13Access to environmental justice at Member State level

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; draw to the attention of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee

Document details

Commission Notice on Access to Justice in Environmental Matters

Legal base

Department

Environment, Food and Rural Affairs

Document Number

(38700), 8752/17, COM (2017) 2616

Summary and Committee’s conclusions

13.1The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters is a multilateral environmental agreement under the auspices of the UN’s Economic Commission for Europe (UNECE). It aims to allow the public to become actively involved in the protection and preservation of the environment. The EU and the UK both ratified the Aarhus Convention in 2005. The obligations of the Convention have been implemented, with regard to EU institutions, by Regulation No 1367/200666 (the Aarhus Regulation). EU compliance with the Convention is the subject of another chapter in this week’s Report.67

13.2This guidance document (Notice) concerns the third pillar of the Convention and in particular Member States’ obligations under EU law to provide access to environmental justice as interpreted by the CJEU. In producing it, the Commission is aiming to help EU citizens gain better and more effective access to their national courts on environmental issues.

13.3In its Press Release accompanying the Notice,68 the Commission highlights the importance of access to environmental justice.

“Access to justice guarantees that individuals and environmental associations, under certain conditions, can have an independent national court examine whether a public authority acted lawfully in making a decision, act or omission affecting their rights. The principal guarantees consist of the right to be heard, a sufficient scrutiny by the national judge, measures to put matters right and measures to avoid prohibitive costs”.

13.4The Commission considers that outside the scope of harmonised EU secondary legislation, the current legislative provisions in Member States on access to justice in environmental matters differ considerably. The Commission has identified a number of problems. Having considered several options, it decided that an Interpretative Communication on access to justice in environmental matters would be the most appropriate and effective means to address the problems.

13.5The Notice is based on provisions of EU law, including the Charter of Fundamental Rights, and the case-law of the CJEU,69 but the Commission makes clear that nothing in the guidance undermines the role of the CJEU as the authoritative body in interpreting EU law. The scope of the Notice is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. It does not address environmental litigation between private parties. Nor does it concern the judicial review of acts of the EU institutions via the General Court, which is addressed by the Aarhus Regulation.70

13.6The guidance is intended to provide clarity for:

13.7The UK has had some difficulties in managing compliance with the Aarhus Convention and a summary of some relevant legal challenges is provided at paragraph 13.12. The UK has had to make legislative changes in 2013 to satisfy the requirement to provide access to environmental justice which is not “prohibitively expensive”. A description of how the UK has implemented Article 9 requirements in UK law, including the 2013 legislative changes, is set out in the Government’s Explanatory Memorandum (paragraph 13.13 below).

13.8We thank the Minister (Dr Thérèse Coffey) for her Explanatory Memorandum which narrowly limits itself to technical comments about how the UK complies with its obligations under the Convention.

13.9In the absence of fuller comment, particularly on how Brexit might affect the issue of access to environmental justice in the UK, we would be grateful if the Minister could outline whether after Brexit:

a)the UK will have to take any additional steps to ensure that it continues to complies with the Aarhus Convention as a Contracting Party in its own right and as a matter of international law, in the absence of the supervision of the Commission and the oversight of the Court of Justice;

b)the Government may have to make changes (using the delegated legislation powers provided by the European Union (Withdrawal) Bill) to any “retained” EU law which implements Aarhus Convention obligations for both the EU and Member States; and

c)more generally, the UK is planning any discrete mechanisms for enforcement of EU-derived environmental law and standards.

13.10Pending the Minister’s response, we retain the document under scrutiny. We draw the document and the chapter to the attention of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee.

Full details of the documents

Commission Notice on Access to Justice in Environmental Matters: (38700), 8752/17, C (2017) 2616.

Background

13.11The Press Release produced by the Commission explains more fully the background to this document:

“Today the Commission adopted a guidance document on access to justice in environmental matters which clarifies how individuals and associations can challenge decisions, acts and omissions by public authorities related to EU environmental law before national courts.

“The Juncker Commission has taken a step forward with the publication of these guidelines, providing the necessary guidance to citizens for better access to national justice systems. The guidance is intended to help individuals and non-governmental organisations to decide whether to bring a case before national courts. National courts can use it to help identify all the EU Court of Justice cases that they should take into account when they are faced with questions related to access to justice in environmental cases. With this guidance, national administrations are made aware of possible shortcomings in their justice systems and businesses are provided with greater clarity on what EU rights and obligations are at stake in the decisions, acts and omissions that concern them.

“The EU Court of Justice has issued a number of rulings clarifying EU requirements on access to justice in environmental matters. Examples include:

UK compliance issues

13.12The UK’s difficulties with compliance with the “access to justice” requirements the Convention are illustrated by the following legal rulings or findings:

The Government’s view

13.13In her Explanatory Memorandum of 29 June, the Parliamentary Under Secretary of State for the Environment and Rural Life Opportunities (Dr Thérèse Coffey) makes the usual statement on the UK’s approach to negotiating and complying with EU legislation before UK exit from the EU. She then says on policy implications:

“The Aarhus Convention requires that relevant challenges under the Convention should not be ‘prohibitively expensive’.

“This obligation is secured in England and Wales by the environmental costs protection regime (ECPR) established under the Civil Procedure Rules (CPR). The ECPR was amended in February 2017 to take account of developments in UK and EU law. The CPR apply to civil litigation in England and Wales, and Gibraltar. There are separate, similar rules in relation to proceedings before the UK Supreme Court.

“In Scotland the obligation is secured by Court Rules that provide for applications for Protective Expenses Orders (PEO) in relevant cases. The Scottish Civil Justice Council are currently consulting on strengthening the PEO procedure
http://www.scottishciviljusticecouncil.gov.uk/consultations/scjc-consultations/consultation-on-draft-court-rules-in-relation-to-protective-expenses-orders.

“In Northern Ireland, this obligation is implemented by the Costs Protection (Aarhus Convention) Regulations (Northern Ireland) 2013 (as amended by the Cost Protection (Aarhus Convention) (Amendment) Regulations (Northern Ireland) 2017)).

13.14Finally, the Minister notes that the Charter is engaged:

“The EU Charter of fundamental rights (Article 47) is engaged. This is because the notice concerns the interpretation of Access to Justice provisions within the Aarhus Convention. In particular, it concerns the right to an effective remedy, access to the national courts and the right to a fair trial. The Commission also considers that environmental matters have a significant impact on health. It therefore takes the view that Article 35 of the Charter is relevant, meaning that this Article is also potentially engaged.”

Previous Committee Reports

None.


67 (38876), 10791/17: Proposed Council Decision on the position to be adopted, on behalf of the European Union, at the sixth session of the meeting of the Parties to the Aarhus Convention regarding compliance case ACCC/C/2008/32.

68 Commission Press Release 28 April 2017.

69 While focused on the environment, the Commission consider this Notice fits with broader Commission work on access to justice, notably the EU Justice Scoreboard, and on the application of the Charter of Fundamental Rights, and the EU Framework to strengthen the rule of law.

70 See footnote 1.

72 [2013] UKSC 78.




28 November 2017