“The fish cannot go to Court” – the environment is a public good that must be supported by a public voice

Janez Potočnik — European Commissioner for Environment

Seminar on Access to Justice and Organisation of Jurisdictions in Environment Litigation by the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACA-Europe)

Brussels, 27-11-2012 — /europawire.eu/ — Ladies and Gentlemen, distinguished guests,

It is shocking to see that there are still some 50 billion EUR of benefits that we miss out on simply because we don’t actually fully implement existing legislation. Let’s not even go into the potential costs of the gap between the targets we have agreed for the future and the current trend in implementation. This high cost of inaction will not be sustainable in the long-term. It is a kind of ecological and health debt; as if we didn’t have enough with our financial and fiscal debts! And whilst we focus on fixing the economy, the ecological and health debt will not just disappear.

This is why, when I took up my portfolio in 2010, I defined implementation of EU environment law as one of my three priorities. And over the last three years it has been confirmed that this was the right choice. Every day when talking to businesses, Member States or citizens, I am realising more acutely that better implementation is indispensable for reaping the benefits environmental legislation is offering for improving human health or environment.

That’s why I set out my ideas in the Communication “Improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness” published in March of this year.

This Communication embodies my ideas of being strictly helpful and helpfully strict to Member States.

There are two main red threads in the narrative of the Communication, namely knowledge base and responsiveness.

In my previous role as Commissioner for Research, my currency was knowledge, and in my current job it is no different. I am often struck by the extent environment legislation depends on sound knowledge and indisputable evidence, be it the quality of a management plan of large carnivores in Sweden or sound air quality plan in London.

And we clearly sense that the Court of Justice becomes also increasingly sensitive to the quality of evidence. Some even attribute the drastic drop of referrals to that science-based tendency of the Court. And they may have a point!

So, as a starting point, any effort to be systematic in relation to implementation must be based on a good knowledge base. We must make environmental knowledge as reliable and accessible as possible to make wise and appropriate decisions.

In the field of the environment, the Aarhus Convention and instruments such as the Access to Information Directive¹ give an impetus for giving more access. Our March Communication seeks to build on what has already been achieved by widening the extent to which information is made available to citizens online. An important recent undertaking is the eJustice portal². This is a Commission initiative aimed at giving citizens information about national rules on access to national courts. If an EU citizen goes to another EU country he has the right to request competent national authorities to disclose environmental information on the state of air pollution for instance.

Supposing that this request is rejected without any justification, the citizen may want to introduce an appeal against this decision. The eJustice portal is the site to go in such a case.

But when we know where and what the problem is, we also need to improve the ways we react. That is why the Communication relates to all the key ways in which Member States respond to problems of non-compliance or issues of compliance that arise at national level. It proposes that:

1. We should seek to strengthen inspections and surveillance capacity at national level and to explore possibilities for EU involvement;
2. We should explore an initiative on complaint-handling and mediation at national level;
3. We should explore how greater certainty could be provided to national courts in relation to access to justice, including through guidance and new legislation;
4. We should continue active co-operation with networks of professionals, including ACA.

These initiatives are not a random collection or an impressionistic picture but are intended to be complementary. The aim is to enhance the overall reliability and resilience of national checks and balances.

Moving forward with initiatives mentioned in the communication takes time… But there are some developments, specifically as regards the theme of today’s conference: environmental access to justice.

Since 2008, in the field of environmental access to justice alone, we have already had 6 rulings³ and we expect more in the very near future. Despite these important developments, complainants still argue that, in some Member States, standing rules are too restrictive or that litigation is too costly and inefficient.

There are several on-going Commission infringement proceedings on national access provisions and these are likely to lead to further case-law.

We could mention the most obvious: standing requirements for environmental NGOs seem to be too restrictive in some Member States. For example an NGO must have existed for at least 5 years in some Member States, like my home country or Cyprus, in order for it to be able to challenge administrative decisions. It is difficult to justify on what basis such conditions are set, especially in view of the objective of granting broad access rights to citizens and their associations. Nevertheless, while these proceedings may eventually bring about changes in the conditions of access, I consider it important also to try to improve access through agreed legislative change.

New studies have been undertaken on access to justice, complaint-handling and mediation in a selection of Member States. The access to justice studies explore the extent to which Member State rules on access are aligned with recent important case-law of the Court of Justice, including theSlovak Bears ruling ⁴. The high quality report prepared by ACA on access to justice in environmental matters is providing very important information by drawing up the general situation of access to justice in Member States systems.

It shows different approaches between the Member States on implementing access to justice. The report also highlights existing differences in standing for citizens and NGOs. Though some challenges are to be handled partially by the EU institutions, there is substantial responsibility for national magistrates as well.

Faster and more effective procedures can help to reduce the costs of litigation for Member States and all stakeholders, including business. Giving broader access to courts would not necessarily mean flooding of national courts with appeals introduced by citizens. Our studies suggest that for example broad access to justice in Latvia did not result in growing number of cases. We also don’t want to secure pollution havens within Member States. This would mean that if a Member State has more lenient rules complying with EU law, this may persuade some business interests to start more industrial activities in this area.

In my view this is the core of the problem, we need to ensure that the systems are effective in accordance with requirements of EU law. Studies carried out on the implementation of access to justice in Member States also point to some shortcomings such as:

1. Lack of possibilities to the wider public, in particular environmental NGOs, to challenge hunting decisions for instance in Sweden. This has a direct impact on nature protection under EU law.
2. Prohibitive costs of environmental proceedings in the UK or Ireland. Recently a High Court judge said, to the effect that the cost of litigation in Ireland is “a deterrent to any but the rich, the courageous and the foolhardy” (quote).

In my view; we cannot afford situations, where environmental litigants exercising their rights are exposed to hundreds of thousands of Euros or where they have to wait almost a decade to have a decision. The procedures are already anyway ill-suited and long to address the immediate and irreparable harm that can affect environment.

What are the next steps?

Some of the key ideas in the Communication, such as strengthening access to justice and upgrading the framework on environmental inspections, have been incorporated into a draft Commission proposal to be adopted in the coming days for a 7th Environmental Action Programme which aims to shape EU environment policy to the end of the decade. They will constitute the sea on which the Action Plan will navigate. I borrow this comparison from Mario Monti not because I lack comparisons but because if the implementation suffers and no remedies are available – the single market and level playing suffer too.

From a political perspective, we can see that within the EU Institutions, there is a clear interest in improved access to justice at national level. In the Environment Council in June 2012⁵, ministers confirmed their support for “improving access to justice in line with the Aarhus Convention”.

A Resolution of the European Parliament on the 7th EAP⁶ has also called for the adoption of a directive on environmental access to justice. Environmental NGOs, since 2003, have been constantly calling for a directive. Recently even business has sent a positive signal.

The Court of Justice has signalled its expectation that national courts will find the means to hear serious environment cases. I am aware that the Commission’s 2003 proposal on access to justice has stalled, but I believe that now is the time to reconsider how to assist national courts in meeting this expectation. Whether through revival of the 2003 proposal or a new proposal, my view is that a directive on access to justice in environmental matters is indispensable. Whatever the fate of the proposal and here I count on the support and cooperation with the Irish Presidency, it will be necessary to take into consideration the recent Court of Justice case-law, changes in the Treaty and the interests of both environmental NGOs and of business.

Events such as this one can play an important role in defining what could be addressed better at EU level and I take this opportunity to thank the Association of the Councils of State and Supreme Administrative Jurisdictions for organising this conference. At the same time, they can help us take into account the workload of national courts and the avoidance of litigation that is frivolous, and an abuse of rights.

In view of our international obligations and the well-established principle of effectiveness of EU law, we must strive to achieve our common goal of bringing about a Europe that is closer to its citizens. In 2013, the European Year of Citizens, it is a very appropriate time to focus on a directive on access to justice, an instrument which would allow citizens to better protect their environment.

Ladies and Gentlemen,

I am pleased that we can already draw on several years of cooperation between the Commission and Member State judges and I encourage this to continue. Dialogue and engagement with national judges coming from the apex of their respective national legal orders is crucial in helping the Commission to fulfil its role of Guardian of Treaties and develop future policy.

Since its launch in Paris in 2008, the Cooperation with Judges Programme has proved successful and I am happy to see that an increasing number of judges join your ranks and participate in various EU environmental law seminars.

I am keen to make progress on improving access to justice during my mandate. I see it as an enabling instrument to reduce the implementation gap. We are made aware on the daily basis of number of cases of deficient environmental impact assessment where review mechanisms such as access to justice can help to reverse the damage and be heard.

It is the basic foundation of functioning democratic societies.

It is also an instrument that increases responsibility of communities for the environment they are living in.

As Advocate General Sharpston put it in the Trianel-case⁷, “The fish cannot go to Court.” In other words, the environment cannot protect itself if it is threatened or harmed. It is a public good and should be supported by public voice. Action needs to come from stakeholders representing the public interest. These include Member States environmental enforcement bodies, such as environmental ombudsmen, inspectors, prosecutors, and also non-governmental organisations active in the field of environmental protection.

I hope that my intervention gives you some sense of what we have been doing and what we plan to do in relation to environmental access to justice in the coming period. I also underline, by my presence here today, the Commission’s commitment to continued positive engagement with the Association and I look forward to a productive conference.

Thank you for your attention.