Access to Justice

Rules on access to justice are laid down in Aarhus Regulation 1367/2006, as well as in the Treaty provisions themselves. In order to implement access to justice on the Member State level, a Directive was proposed by the Commission in 2003, containing the general requirements on access to justice. However, notwithstanding Parliament’s first reading, the proposal seems to have been stuck.

In primary law, rules on access to justice for EU institutions are currently included in Article 263(2-5) TFEU.

On 28 April 2017, the European Commission adopted a Notice on access to justice in environmental matters analysing the substantial existing CJEU case-law relating to access to justice in order to draw careful conclusions for:

1. national administrations who are responsible for ensuring the correct application of EU environmental law;
2. national courts, which guarantee respect for EU law and are competent to refer questions on the validity and interpretation of EU law to the CJEU;
3. the public, notably individuals and environmental NGOs, who exercise a public-interest advocacy role; and
4. economic operators, who share an interest in the predictable application of the law.

The Notice is based on provisions of EU law including the Charter of Fundamental rights, and the case-law of the CJEU. It focuses on access to justice in relation to decisions, acts and omissions by public authorities of the Member States. Neither environmental litigation between private parties nor the judicial review of acts of the EU institutions via the General Court fall within the scope of the Notice.

In addition to this, the Environment Directorate-General of the European Commission prepared the Citizen’s Guide, which constitutes a simplified and shorter version of the relevant Commission Notice.

Briefly, access to justice in environmental matters serves the purposes of enabling individuals and their associations to exercise rights conferred on them under EU environmental law. It also helps to ensure that the aims and obligations of EU environmental legislation are attained. In this framework, EU environmental law confers procedural and substantive rights on individuals and their associations relating to particular obligations placed on public authorities. These rights need to be protected by national courts. Procedural rights usually have to do with public participation aspects and serve the purpose of ensuring the effective implementation of the EU Environmental Law. As regards substantive rights - despite the fact that EU environmental law does not establish a general right to a healthy and intact environment for every individual - there are various provisions in different pieces of EU environmental secondary legislation conferring substantive rights on individuals and their associations.