An environmental rights group has filed three separate legal complaints with a U.N. committee in Geneva accusing the EU, Germany and UK of failing to comply with the requirements of the U.N.’s Aarhus Convention. Under the Convention, of which the EU, Germany and UK are signatories, individuals and non-governmental organisations (NGOs) are guaranteed access to courts in environmental matters.

Access to Justice Restricted in the EU

Citing Article 9 of the Aarhus Convention, ClientEarth, the non-profit environmental legal organisation who prepared the complaints, argues the rights of standing of individuals and NGOs in EU courts in environmental cases are overly restricted. EU law, the complaint says, is interpreted by the European Courts so that in practice NGOs and individuals are almost never granted standing in environmental cases. Ratification of the Aarhus Convention means this approach is no longer justified.

“The Aarhus Convention gives the public and organisations standing in court, as well as wide-ranging rights for them to participate in public decisions on the environment,” said James Thornton, chief executive of ClientEarth. “Unfortunately, the EU has interpreted the Convention in a way that strips concerned citizens and organisations of the very rights the Convention is meant to protect.

ClientEarth submitted its legal complaints in the form of formal communications to the Aarhus Convention Compliance Committee which will consider them for the first time at its next meeting in Geneva on 17-19 December 2008.The Aarhus Convention was adopted in 1998 in a move to promote government accountability, transparency and responsiveness by encouraging public participation in environmental matters through a rights-based framework. It grants certain procedural rights such as the ability of citizens and NGOs to ask public authorities for information in relation to environmental matters and to participate in the decision-making process regarding environmental rules. It also gives citizens and NGOs the right to go to court to challenge decisions on environmental matters.

“The EU’s Court of First Instance and European Court of Justice have closed their doors to citizens and NGOs,” said Anais Berthier, the staff lawyer in ClientEarth’s Brussels office who drafted the EU complaint. “We want to make sure that the new regulation applying the convention in the EU is interpreted by the European courts in a way that complies with the Aarhus convention.”

Their complaint has the support of 11 other NGOs who signed their names to the formal communication to the Aarhus Committee on the EU’s non-compliance on these issues, including Bankwatch CEE, IFAW, Oceana, Ecologistas en Accion (the Spanish federation of environmental NGOs), France Nature Environnement (the French federation of environmental NGOs), Friends of the Irish Environment, Bond Beterleef milieu (The Belgium Federation of NGOs), NABU (Germany) and others. [Note to Editors: List of NGO signatories to the EU complaint at end.]

Major Legal Barriers to Justice in Germany

Like the EU, Germany has restrictive rules on standing which make it virtually impossible for citizens and NGOs to access the courts in relation to environmental matters. Claimants are required to demonstrate that their own rights have been impaired by a decision before the decision can be challenged. For NGOs this includes meeting the often impossible test that their statutory objectives are affected in the specific case before they can take court action. ClientEarth says that these restrictions place Germany in violation of the Aarhus Convention.

In drafting its case against Germany, ClientEarth solicited the expertise of Ludwig Krämer. Mr. Krämer served as a German judge from 1969 to 2004, and was seconded as the European Commission’s Chief Counsel on the environment, working at the Commission for three decades. Mr Krämer prepared the German complaint for ClientEarth, and also added his name in support of the EU complaint.

“It is of crucial importance that NGOs know they have the right to access national and European courts to contest the decisions of member-state and EU institutions when they infringe environmental law and that these rights are used in appropriate cases. The exercise of the right to access to justice strengthens decision making and transparency in the environmental arena,” said Mr. Thornton.

High Costs and Risks Are Roadblocks in England and Wales

In its case against the UK, ClientEarth cited four areas in which government is failing under the Aarhus Convention. Of these, ClientEarth said that the biggest hurdle is one of cost.

“Not only is it prohibitively expensive to bring cases in the UK,” Mr. Thornton said, “the financial risk of losing a court challenge and having to pay the opposition’s legal expenses can amount to £100,000s. Until the UK makes the legal system accessible and fair from a financial perspective, citizens and many organizations are in effect denied their right to raise legitimate environmental concerns in court – which is the very opposite intent of the Aarhus Convention.”

ClientEarth also named failures such as the absence of substantive review in the UK, which deals with challenging decisions and actions based on their merits as opposed to procedural issues; ambiguous rules about timing which Courts use to deny cases; and the inability to take action against individuals who breach environmental laws. All of these, said ClientEarth, put the UK in violation of the Convention.

In its complaint, ClientEarth pointed to a current case off the coast near the Port of Tyne in northern England where several breaches of the Aarhus Convention are alleged. The Marine Conservation Society (MCS) and a private citizen, co-complainants in the case against the UK, have been unable to legally challenge the reasons why a trial project to dispose of dredging waste contaminated with toxics went ahead, or the manner in which the contaminated sludge was disposed.

“No full environmental impact assessment (EIA) was ever carried out,” said Thomas Bell, a coastal pollution officer with the MCS. “Since there is a danger that toxic substances could be set free into the surrounding sea and poison the marine environment, I don’t think it’s unreasonable to request a full EIA. However, the English legal system has not allowed us to bring a legal challenge.”

ClientEarth said that it hopes the Aarhus Compliance Committee will make recommendations asking the EU, Germany and UK to change their laws and their jurisprudence.

“The Aarhus Convention is the people’s law on the environment,” said Mr. Thornton. “We are asking the Aarhus Compliance Committee to make recommendations for the EU, Germany and the UK to come into compliance so that the public and advocacy organizations can exercise the right to participate in the legal protection of the environment.”