1. ACCESS TO JUSTICE IN THE EUROPEAN UNION presentation JOHN HONTELEZ, SECRETARY GENERAL EUROPEAN ENVIRONMENTAL BUREAU Seminar Dublin 26 February 2010

2. Why necessary? - Environment cannot defend itself. - Public authorities and other actors do not automatically do the right thing. - A clean environment is a right for people. - People should have the right to insist on public authorities and others to serve and abide the law - Access to Justice rights have prevention impact: if citizens can go to court, and show they do, authorities and economic actors may be more motivated to prevent environmental damage and respect the laws. - Court cases can also help clarify otherwise ambivalent legal obligations

3. National Practices Some countries have national access to justice (limited or “actio popularis”) in environmental matters for decades. Examples: Netherlands, Sweden, Denmark, France Others have been strictly preventing this: Germany. Practice is positive: many cases won, environmental damage prevented or restored, more respect for the law.

4. EU Legislation -Access to justice in the original Directive on Access to Information (1990) and the new one (2003), when right to information is not or insufficiently respected. -Access to justice for interested parties if public participation rights regarding Environmental Impact Assessments and permits for Industrial Installations (IPPC) are not or insufficiently respected (Public Participation Directive 2003). -At EU level: Access to Documents Regulation grants access to courts if information from EU Institutions is denied. - “Aarhus” Regulation however fails to allow environmental organisations to go to the European Court in case of failure of EU Institutions and Bodies to respect environmental law.

5. Access to Justice Directive As consequence of EU being party to Aarhus Convention – aiming to implement the 3 rd Pillar (article 9.3.); Proposed in 2003 by Commission; European Parliament agreed, and proposed improvements (April 2004); Council of Ministers never started negotiate (Irish Presidency 2004 had to kick off): resistance from number of Countries (including Ireland!): subsidiarity reasons.

6. Main Features Commission Draft -Sets minimum standards for access to justice in environmental matters throughout the EU (not explicit). -Includes broad definition of environmental law. - Includes right to start court-cases also directly against private entities violating environmental law, but leaves much space to national authorities to define criteria for such cases. -But: too many restrictions for natural and legal persons that can use the right to access to justice. European Parliament addressed many of our concerns, on improving details, but not the last one.

7. Is this Directive necessary? EEB survey in 2007 in 20 MS concluded: « Access to Justice Directive is necessary in most EU Memberstates, but draft should not be diluted » - Necessary for Austria, Belgium, Cyprus, the Czech Republic, Germany, Hungary, Ireland, Italy, Romania and Slovenia. - Can improve situation also in France, UK, Sweden and Poland. - But badly designed it can be abused for reducing existing rights in Estonia, Hungary, Poland, Spain, Sweden and the Netherlands.

8. Other research confirmed: A STUDY DONE BY “MILIEU Ltd” FOR THE EUROPEAN COMMISSION “inventory of EU Member States’ measures on access to justice in environmental matters” With 25 specific studies. http://ec.europa.eu/environment/aarhus/study_access. htm SUMMARY:

9. NON SATISFACTORY having a non effective system Austria Germany Hungary Malta United Kingdom [3 strong cases now at Aarhus Compliance Cie].

10. NECESSITY TO IMPROVE limited access to justice, limited to specific issues, or to a limited group of “interested persons” or difficulties for interim relief, or high costs without assistance provisions where needed BelgiumCyprus Czech RepublicFinland IrelandLatvia The NetherlandsPoland Spain [confirmed now by Aarhus Compliance Cie] Sweden

11. SATISFACTORY access for NGOs, depending on certain criteria, and members of the public with a certain interest (interpreted in a non restrictive way), interim relief possible and low costs or assistance in costs possible. Estonia France GreeceItaly LithuaniaLuxembourg PortugalSlovakia Slovenia[Lithuania, Slovakia doubtful]

12. GOOD the system includes a wide standing right; interim relief is simple and costs are low or non-existence or assistance if effective and on basis of transparent system Denmark

13. Current Situation -Commission keeps draft Directive on agenda -Mentions its need in its Communication on Enforcement of Environmental Law, as a tool to improve such enforcement by citizen action -Several Presidencies organised events to keep it on agenda, but in soft way: bringing judges together: conclusion always: we need Directive -Belgian Presidency: wait for case for EU Court of Justice in relation to Slovakia: whether Aarhus Convention 3 rd pillar is directly applicable or only via a national law.