EU consultation on access to justice: another step to facilitate national legal actions against hunting?
The European Commission has launched a public consultation entitled “Access to justice in environmental matters – options for improving access to justice at Member State level”.
FACE is worried about this initiative as we believe that the rules on access to justice in this domain should primarily be left to the national legislator and not be regulated at EU level.
The impetus for this public consultation is alleged shortcomings in the application and enforcement of environmental law throughout the Union, including considerable differences between the Member States in how they ensure effective application of environmental law.
As early as 2003 the Commission proposed a Directive on Access to Justice in Environmental Matters, arguing that EU intervention in this area was necessary in order to complete the implementation of the Aarhus Convention (on access to information, public participation and access to justice in environmental matters), concluded by the Community and all the Member States on the basis of joint competence. The Commission’s proposal sought in particular to ensure better access to justice in environmental matters for representative groups advocating environmental protection, including for interim relief, without having to prove a sufficient interest or maintaining the impairment of a right. The definition of environmental law subject to the proposal was broad and included for example the EU Birds and Habitats Directives.
The European Parliament approved the Commission proposal, but there was such strong opposition in the Council of Ministers that negotiations on the Directive have been postponed by each Presidency since Luxembourg in 2005. Member States‘ main concerns made reference to the subsidiarity principle, and some of them felt that different issues of the proposal on access to justice directly affected their capacities and should be left to their own legislation.
Whilst hunters may benefit from and are in favour of effective and efficient access to justice in environmental matters, it is regrettably the case that extreme protectionist groups too often tend to overuse or even abuse legal systems in their efforts to obstruct and prevent perfectly legitimate sustainable use.
Notwithstanding this, FACE is sympathetic to the principle expressed by many Member States that the rules on access to justice in environmental matters and the implementation of the Aarhus Convention in its relevant parts should be left to the national legislator. This is not a matter to be regulated at EU level.
A ruling by the European Court of Justice indicates that this task can indeed be performed by the Member States. In a case involving hunting brown bears in Slovakia, the Court was asked if a NGO could challenge a deci¬sion on the basis of the Aarhus Convention. The Court concluded that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. The Court moreover held that, insofar as a species is protected by EU law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in the Aarhus Convention. (See in particular paragraphs 47 and 51 of Case C-240/09, Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky.)
By means of this public consultation, the Commission probably seeks to obtain legitimacy from the public opinion to have EU-wide standards on access to justice at national level and ultimately get its stalled legislative proposal adopted in the Council.
In the light of the aforementioned, FACE encourages its Members to respond to the Commission Public Consultation on “Access to justice in environmental matters – options for improving access to justice at Member State level”, in a way which clearly conveys the message that the rules on access to justice in environmental matters, and the implementation of the Aarhus Convention in this regard, should be left to the national legislator and not be regulated at EU level. In order to do this it will be particularly important to focus on the following:
- sub-questions 12b and 12c: indicate lower level priority for EU action to achieve a level playing field across the EU by ticking number “3”
- questions 13 to 14, 16 to 20 and 22 to 23: playing down the importance of intervention by the EU institutions by ticking the box “Not important”;
- question 15 (a and b): expressing concern over the disadvantages of EU intervention by ticking the box “Very concerned”;
- question 21: ticking the box “Awareness-raising and exchange of best practices” as the most effective means.
The Consultation is available in all EU official languages via the following link: http://ec.europa.eu/environment/consultations/access_justice_en.htm
The deadline for responding is 23 September 2013.
If you have questions, get in touch with Johan.