The biter bit – EU does NOT like being criticised by Aarhus body

23 September 2017 by David Hart KC

ACCC Findings in ACCC/C/2008/32

Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention. 

Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.

The relevant rule in Aarhus Art.9(3) is reasonably straightforward. Members of the public must be able to challenge acts or omissions by public authorities which contravene provisions of its national law relating to the environment.

The EU  (as well as all EU states and others) is a party to Aarhus, and it has plenty of provisions relating to the environment (which count as “national” law when one is talking about the EU as a party). So if an individual or NGO wants to say that the EU is in breach of its own laws in relation to the environment, then, for the EU to be Aarhus-compliant, the EU must enable that challenge to proceed – it must not be ruled out simply because of the EU’s special rules on standing.

The ACCC’s job is to police the application of the Convention to all of its subscribing parties – see the map in my pic, with its remit going well beyond the EU.

EU rules on standing

The problem is that since early day the EU has had very narrow rules on standing in its own courts. Before touching on the opaque reasons for this, let us see their effect in two cases

• In 2013, Inuit seal traders who wished to challenge an EU Regulation were refused standing to go to the CJEU. This regulation prohibited the placing of seal products on the EU market unless they were traditionally hunted or occasional or on a non-profit basis. But could the traders go to Luxembourg to say it was unlawful and should be annulled? Short answer – no because of restrictive rules of standing – for the detail, see my posts on the CJEU decision here and the rather more cerebral views of A-G Kokott in the same case here.
• in a case about challenges by pesticide NGOs to maximum pesticides concentrations stipulated in a EU Regulation, no standing for the NGOs – see the judgment of the CJEU here disagreeing with initial more liberal view of EU General Court (my post on the latter here).

Further back in time, but no less relevant, a challenge was brought by a company which converted catering waste for pig feed. They sought an annulment of the ban on kitchen waste for farm animal food under the Animal By-Products Regulation. Again, the applicants were prevented from arguing their case for lack of standing. See the CJEU decision here and Rosalind English’s post here.

For a bit more burrowing down into the detail of recent cases outside the environmental field, and the intricacies of the EU Treaties, see the excellent post by Michael Rhimes on our blog here.

The CJEU says that the answer is to be found in the Treaties and the EU’s legal order. The Treaties have changed a bit over the years, but to no overriding effect. The critical question is how the ECJ/CJEU has conceived of standing ever since the key decision of Plaumann in the 1960s – answer, restrictively.

• “individual” concern means that the person is affected “by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision.”

Any clearer? Shorn of the verbiage, this makes it almost impossible for an NGO to complain that an environmental measure is unlawful.

ACCC findings: March 2017

So where does the ACCC come in?

In 2008, ClientEarth and others complained to the ACCC about these standing rules, given as we have seen they particularly affect the ability of environmental NGOs to go to court in Europe. A company who loses out in a competition fight who wants to challenge some EU decision does not seem to face the same hurdles, as the NGOs were not slow to point out. One rule for business, another for the environment.

The ACCC initial findings in 2011 (here) were critical of the EU, but at that stage the NGO pesticide case was rumbling through, so the ACCC decided to stay its hand until that had been decided, in case the CJEU decided to modify its previous hard line on standing.

The CJEU’s answer in the pesticide case was peculiarly short and unconvincing (despite the fact that it was disagreeing with the General Court).

So the matter went back to the ACCC who adopted the critical findings which head this post – here. This is a masterly hatchet job on the CJEU’s inadequacies of reasoning, and is a must-read for anyone tangling with the EU rules of standing.

The bottom line is that, put it how you will, the standing rules do not accord with the requirement in Art. 9(3) that members of the public may challenge acts or omissions by EU institutions – not just in the way that EU rules allow, but generally. The same applies for the internal rules of standing applicable under Art.10 of the EU’s own Aarhus Regulations: Regs here.

The most withering passage comes at paras.82-83 of the findings: the ACCC cited a bit of the CJEU’s own words in the Slovak Bears case, addressed at a member state’s compliance with Aarhus:

49      Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law

50      It follows that…. it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.

The ACCC then added

The Committee regrets that despite its finding with respect of the national courts, the CJEU does not consider itself bound by this principle.

the principle that it must not be practically impossible or excessively difficult for an NGO to bring a challenge.

Game, set and match, you might have thought.

These findings were then listed for ratification at the next Aarhus Meeting of the Parties scheduled for September 2017.

EU not happy

EU dovecotes were mightily rattled by this, and enter the Commission publicly on a very high horse indeed.

In June 2017 it wrote a proposal here  to the EU Council, inviting the Council to say NON to these findings at the next Aarhus meeting of the parties. The proposal is a marvellously patronising piece of work. ACCC has been made aware of the “peculiarities of the legal order of the Union” which offers a” complete system of means of redress.” It was not possible due to the separation of powers for the EU to adopt findings; it was legally impossible to follow and comply. The ACCC findings do not recognise the EU’s “special legal order”.

In short, and stripped of the rhetoric, that is not how we do things in the EU institutions, and we have no intention of changing the way we do it just because someone tells us we are in breach of our own treaty obligations.

But just because it may well be “a special legal order” it does not make it adequate when judged against Art.9(3).

This refusal to accept the recommendations of an international body drew forth a swift letter from ClientEarth, the EEB and others to all EU environment ministers – 4^th July 2017 here – as they put it, behind the argumentation and spin here is a bureaucratic institution putting its own interest above the Europe public.

Happily, the Council did not follow the Commission’s lead and came up with a very anodyne decision on 17 July accepting the ACCC decision with some minor edits.

Hence, the draft recommendations which were put before the Aarhus Meeting of the Parties in Montenegro said – could do better. Lets have your proposals for remedying these problems. In particular, in carefully chosen words

7(a) All relevant European Union institutions within their competences take the steps necessary to provide the public concerned with access to justice in environmental matters in accordance with article 9, paragraphs 3 and 4, of the Convention;

This skewers the point that a party to a treaty can’t just blame another domestic institution for a breach of the treaty – all pretty trite stuff, and which the EU Commission use every day of the week when they bring  infraction proceedings against member states.

The Montenegro MoP happened this month, by the sea in Budvar. The Parties seem to have decided that EU things should be put on hold – here

In the spirit of reaching the consensus, considering exceptional circumstances, the Meeting of the Parties decided by consensus to postpone the decision-making on draft decision VI/8f concerning the European Union to the next ordinary session of the Meeting of the Parties to be held in 2021. The European Union recalled its willingness to continue exploring ways and means to comply with the Convention in a way that is compatible with the fundamental principles of the Union legal order and with its system of judicial review.

So the ACCC findings remain, albeit not formally adopted by the MoP, and it remains for the EU to come up with some amendment to its own legal order to put it into compliance. Pity about the long grass, though.

Conclusion

Do not misunderstand this post as the blast of a cross Brexiteer. I am far from that, not least because of the powerful and broadly beneficent contributions of EU law to our domestic environmental law over the last 40 years. And I have also been going on about the disjunction between the way in which the EU applies Aarhus to its member states versus itself for many a year.

But the rather dispiriting thing about this episode is the apparent lack of self-awareness by the Commission as to how it comes across to the outside world when others ask difficult questions. Perhaps the more emollient view of the Council, and the agreement to think things over, might point towards a Commission engagement with the real issues.

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