The Aarhus Convention adopted by the United Nations Economic Commission for Europe provides individuals and their organisations with the rights to information, participation in decision-making and access to justice in environmental matters. As party of the Aarhus Convention, the European Community has adopted, on the one hand, legislative acts to implement the requirements of the Convention in Member States (Directive 2003/4, Directive 2003/35), on the other hand, it has taken measures to ensure the application of the Convention by the Community Institutions and Bodies (Regulation 1367/2006).

As far as the implementation of the Aarhus Convention by the EU institutions is concerned, environmental organisations submitted a complaint to the Aarhus Convention’s Compliance Committee denouncing the practice of the European Courts (Court of First Instance and European Court of Justice) to interpret in environmental cases the standing to justice criteria so narrowly, that they practically block all access to justice for individuals and NGO applicants. Specifically, under Article 263 of the Treaty on the Functioning of the European Union (ex article 230 TEC) individuals may bring before the EU Courts an action of annulment against decisions that are addressed to them or against decisions which, although in the form of regulation or decision addressed to another person, is of direct and individual concern to them. According to the jurisprudence of the EU Courts, the ‘individual concern’ criterion is established when the contested act affects the applicant by reason of certain attributes which are peculiar to him or by reason of certain circumstances in which he is differentiated from all other persons and by virtue of these factors distinguishes him individually just as in the case of the person addressed (Plaumann test). Αdopting this strict interpretation of ‘individual concern’ in actions for annulment against decisions which affect the environment, the EU Courts have denied all actions brought to them by individuals or environmental organisations, alleging the applicants’ lack of locus standi. And this is because such acts, are either legislative or administrative measures of general application, or acts which are addressed to Member States, and therefore it is impossible for individuals or environmental organisations to demonstrate that these measures affect them individually, according to the interpretation that the EU Courts give to the ‘individual concern’ criterion (cases: Greenpeace, Jégo-Quéré, EEB, Açores, WWF-UK, Stichting Natuur en Milieu).

The Aarhus Convention’s Compliance Committee ruled, in a recent decision, that if the jurisprudence of the EU Courts, as evidenced by the cases examined, were to continue, the European Union will fail to comply with Article 9 para. 3-4 and the scope of the Aarhus Convention for effective access to justice, and thereupon called the EU Courts to alter their jurisprudence in order to ensure full compliance with the Convention. The argument put forward by the EU, that any change to the provisions of the Treaty shall be made by an amendment, doesn’t seem valid because the standing criteria under Article 263 TFEU don’t prevent individuals and their organisations from accessing the EU Courts, but it is the strict interpretation that the EU Courts apply for the concept of ‘individual concern’ that prohibit them to have access to justice.

Edited by Tina Koutsopoulou

Sources: Communication ACCC/C/2008/32/EC, Findings and Recommendations with regard to communication ACCC/C/2008/32/EC (Part I) concerning compliance by the European Union (14.04.2011)