Introduction
The concept of access to justice obliges states to guarantee the right to turn to a court or, in certain circumstances, to an alternative dispute resolution body to obtain a remedy when it is determined that the individual’s rights have been violated. Thus, it is also a right that helps individuals enforce other rights.
The general concept of access to justice encompasses several human rights, such as the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) and Article 47 of the EU Charter of Fundamental Rights (EU Charter), and the right to an effective remedy under Article 13 of the ECHR and Article 47 of the EU Charter. Access to justice is both a process and a goal, and of critical importance to individuals seeking to benefit from other procedural and substantive rights they have, both at a national and international level.
As for the access to justice in the area of environmental law, it has some particular aspects that distinguish it from other areas of EU law. Most notably, it is established with more detail at both international and EU level, aiming for effective environmental protection. Moreover, it bridges the protection of (private) rights and public interests. As Advocate General Sharpston put it in the Trianel-case (C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen), “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.
The role of the national courts is vital to the enforcement of access to justice at the national level as it has not been without flaws: In 2019, the Commission published the Environmental Implementation Review, which identified a series of systemic shortcomings concerning on-the-ground implementation of access to justice in environmental matters in national legal systems. In particular, it highlighted problems faced by NGOs in obtaining legal standing to bring legal challenges on EU-related environmental issues and procedural hurdles, such as prohibitively high costs. The Seventh Environmental Action Programme evaluation concludes that “significant barriers still exist in several Member States”, and “the emerging evidence base indicates that more needs to be done at Member State level”.
In October 2019, the European Council called upon the Commission to present, at the latest in early 2020, an ambitious and focused proposal for the Eighth Action Programme for 2021-2030. It underlined that the new programme must address environmental governance, such as public participation and access to justice. In the European Green Deal, the Commission committed itself to, among other things, take action to improve the access of citizens and NGOs to justice before national courts in all Member States and confirmed its position in the 2020 communication to the Parliament and the Council. The Eighth Action Programme, however, only lists “effectively applying high standards of transparency, public participation and access to justice in accordance with the Aarhus Convention both at Union and Member State level” among the enabling conditions to attain the priority objectives without any details.
Despite the lack of activity at EU level, there are several reasons to further strengthen and clarify the access to justice guarantees, the foremost being that access to justice is believed to be crucial for environmental protection. The Commission has opined that the main reason the EU environmental legislation is less enforced, compared to laws concerning the internal market, is the lack of financial motivation in environmental protection cases. It seems evident that adopting a new directive defining the conditions for effective access to national courts with respect to all areas of EU environmental law would contribute to facilitating access to justice at national level and stimulating cooperation and dialogue between national authorities and courts.