Access to Justice
Access to Justice at Member State Level
In order to implement access to justice on the Member State level, a Directive has been proposed by the Commission, containing the general requirements on access to justice, as well as the specific rules on access to justice resulting from the public participation in the EIA and IPPC Directives, and the specific rules on access to environmental information.
The provision on access to justice in the EIA and IPPC Directive are identical. They require the Member States to grant access to justice for the public concerned as long as they have sufficient interest or maintain the impairment of a right. “The public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or of permit conditions” is the definition of the public concerned. The directives state that non-governmental organisations promoting environmental protection and meeting any requirements under national law are considered to be public concerned. NB: national requirements still ultimately determine whether or not an non-governmental organization (NGO) qualifies as public concerned.
The Member States determine what constitutes a sufficient interest or impairment of a right. However, they must act consistently with the objective of giving the public concerned wide access to justice. As far as the actual procedures are concerned, the Directive doesn’t exclude the possibility of a preliminary review procedure, but rather confining itself to stating that the procedure must be fair, equitable, timely and not too expensive.
The proposal for the Directive is currently still undergoing the first reading and a lot is still uncertain. Article 4 of the Commission proposal requires the Member States to grant access to justice to all natural and legal persons that have a sufficient interest or maintain the impairment of a right. ‘Qualified entities’ have a right to judicial review even if they cannot show a sufficient interest of the impairment of a right (Article 5 of the Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters). This is subject to the requirement that the qualified entity is acting within its statutory and geographic area of activities. Article 8 of the Commission proposal contains the requirements for recognition as a qualified entity and Article 9 of the Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters lays down the procedure for this.
Access to justice is only available if the natural or legal person or the qualified entity has first submitted a request for an internal review (Article 6 of the Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters). The right to start ‘environmental proceedings’ is only given when the request for internal review is not taken within 12 to 18 weeks, or when the decision is insufficient to ensure compliance with environmental law. This is defined as the administrative or judicial review proceedings in environmental matters, other than proceedings in criminal matters, before a court or other independent body established by law, which is concluded by a binding decision (Article 2(1)(f) of the Commission proposal).
The European Parliament has approved the proposal, albeit with some rather far-going modifications – i.e. it considers that criminal procedures should not be excluded from the scope of the concept of environmental proceedings. Furthermore, the qualified entity is controversial as it is considered to go beyond what is required by the Aarhus Convention and may open up environmental procedures to a very great extent. The proposal has not yet undergone the first reading in the Council, and thus its future is uncertain.