Neutering the Access to Justice Provisions of the Aarhus Convention: Confirming an International Law Unfriendly Approach in Luxembourg?

Mario Mendez

This paper will critique the EU’s treatment of the access to justice provisions in the Aarhus Convention. The EU was a central player in negotiating this path-breaking Convention at the junction between human rights and environmental law, which now has 47 parties including the EU and all its Member States. However, due to the restrictive standing criteria employed by the ECJ, major question marks have existed as to the capacity of the EU’s legal order to ensure EU level compliance with the Convention’s access to justice provisions. The EU’s attempt to mitigate the tension between its standing rules and the Aarhus Convention access to justice provisions was to pass an EU level implementing measure (the Aarhus Regulation 1367/2006) that in theory gave environmental NGOs an internal review mechanism for administrative acts and omissions by EU institutions and bodies. But, in practice, the Regulation has been interpreted by the EU’s political institutions and the ECJ in a manner that makes compliance with Aarhus Convention obligations doubtful at best. This has most recently been confirmed via a much-anticipated ECJ Grand Chamber ruling in 2015 (C-401/12P to C-403/12P) in which it overturned the international law friendly position adopted by the General Court and rejected a similar stance advanced by its Advocate General. This ruling confirms the collision course, which the EU finds itself in with respect to its Aarhus Convention obligations, given a pending Aarhus Compliance Committee decision on EU compliance with the access to justice provisions. The broader context to this ECJ ruling is an emerging trend, which has seen it, partly at the behest of the EU’s political actors, restrict the effects of international law within the EU legal order. Aside from the famous Kadi cases, other recent examples of this “international law unfriendly” trend include rulings on accession to the ECHR, the enforcement of customary international law, the access to environmental information provisions of the Aarhus Convention, the UN Convention on the Law of the Sea, the UN Disability Convention, and WTO law. Put together, such rulings are of great import, coming as they do from the supreme court of a supranational organisation of 28 Member States and more than 500 million individuals.

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