Environmental Rights in the EC Legal Order

PAVLOS ELEFTHERIADIS

University of Oxford Faculty of Law Legal Studies Research Paper Series

Working Paper No 24/2007 September 2007

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 Environmental Rights in the EC Legal Order

Pavlos Eleftheriadis∗
________________________________________________________

Environmental duties cannot easily be turned into rights. They are imperfect in
the sense that they are not owed to identifiable individuals. Even when we can
specify in great detail and with great clarity the duties imposed by environmental
standards, we cannot always transform such standards into easily identifiable
rights. Because such standards are meant to protect and entitle either future
generations or the countless fellow human beings who share the world with us,
the presumed beneficiaries or holders of such rights are unable or unlikely to
claim the correlative duties through actions of their own. Given how rights are
related to remedies in modern law, the theoretical difficulty has a procedural
dimension. Neither private remedies nor judicial review are likely to work well in
the enforcement of environmental law, since the beneficiaries are by definition
not present or not sufficiently motivated. The traditional mechanisms of the
private enforcement of the law through civil procedure are thus inadequate.
Environmental standards depend, as a result, to a very great degree on central or
public enforcement. And here lies our greatest problem: governments are often
reluctant or unable to enforce measures that thwart development or antagonise

∗
Fellow in Law, Mansfield College, Oxford. An earlier draft was presented at the Bar European
Group Annual Conference in Slovenia in May 2006. Many thanks to all participants for their
very helpful comments and questions and especially to Advocate General Eleanor Sharpston,
Hugh Mercer, Helen Malcolm QC and Alex Layton QC. A later draft was presented to the
Oxford Environmental Law Discussion Group in January 2007. Many thanks to Liz Fisher and
Cinnamon Carlarne for very helpful comments.
 2

powerful economic and other interests. Environmental enforcement, in many

cases, remains an empty promise.
In response to this problem, European legal orders have treated
environmental standards as a special case. In some jurisdictions environmental
NGOs have been granted special standing to challenge public decisions or other
powers of participation and information.1 Other jurisdictions allow for special
rules on information and participation in administrative decisions. Such ideas
motivate much of modern environmental law. Even though a few years ago
many believed that courts could rely on an independent ‘right to the
environment’, this theoretical project is now largely dormant. Environmental
rights are now mostly seen as procedural rights, rights to participation,
information and, in necessary, access to a court, not rights to any particular
substantive result. The same view is also adopted in European Union law. The
emphasis is largely on the administrative law of good government, not a direct
environmental right on the basis of some substantive criterion.2
It is clear that such administrative and judicial protection of
environmental standards, has a constitutional dimension for the European
Union. Who is competent to make such changes? Is it the Union, or are the
states? Is it possible to argue that in the area of the environment the procedural
autonomy of the Member States should perhaps give way? These are difficult
constitutional questions, that have not met with extensive discussion in

1 For a helpful review see Jonas Ebbeson (ed.), Access to Justice in Enviornmntal Matters in the EU
(The Hague: Kluwer, 2002) and Access to Justice in Environmental Matters
ENV.A3/ETU/2002/0030 Final Report, available at:
http://ec.europa.eu/environment/aarhus/pdf/accesstojustice_final.pdf.
2 See Ida Koppen and Karl Heinz Ladeur, ‘Environmental Rights’ in A. Cassesse, Andrew

Clapham and Joseph Weiler (eds.), Human Rights and the European Community: The Substantive Law
(Baden-Baden: Nomos Verlagsgesellschaft, 1991) 30, Pavlos Eleftheriadis, ‘The Future of
Environmental Rigths in the European Union’ in Philip Alston (ed.), The EU and Human Rights
(Oxford: Oxford University Press, 1999) 529-549, Michiel A. Heldeweg, ‘Towards Good
Environmental Governance in Europe’ (2005) European Environmental Law Review 2-24.
 3

European law, even though some prominent cases have addressed them
(especially as to the precise legal basis and precise involvement of the various
institutions).3 I will attempt here to offer a general framework under which we
may see how environmental rights can be protected in the European Union’s
legal order. I will approach the subject by discussing in some detail the Aarhus
Convention, which summarises the international trend for procedural protection
of environmental rights. I will briefly present and discuss the way in which the
European Commission proposes to give effect to its ‘access to justice’
dimension of the Aarhus Convention. I will identify two rival views about
environmental legal rights in the EC that are pertinent to this issue. The first
view I will call the ‘uniformity’ approach. It is the Commission’s position. The
second view I will call the ‘autonomy’ view, a position, which I find easier to
defend, both as a legislative direction and a legal principle.

THE AARHUS CONVENTION

The Convention on Access to Information, Public Participation in Decision-

Making and Access to Justice in Environmental Matters was adopted on 25 June
1998 in the Danish city of Aarhus under the auspices of the United Nations
Economic Commission for Europe.4 The Convention calls for the recognition

3See for example Case C-176/03 Commission v. Council [2005] ECR I-7879, and Case C-300/89,
Commission v Council [1991] ECR I-02867 (The Titanium Dioxide Directive Case).
4 The Convention was open for signature at Aarhus (Denmark) on 25 June 1998, and thereafter
at United Nations Headquarters in New York until 21 December 1998, by ‘States members of
the Economic Commission for Europe as well as States having consultative status with the
Economic Commission for Europe pursuant to paragraphs 8 and 11 of Economic and Social
resolution 36 (IV) of 28 March 1947, and by regional economic integration organizations
constituted by sovereign States members of the Economic Commission for Europe to which
their member States have transferred competence over matters governed by this Convention,
including the competence to enter into treaties in respect of these matters’. The Convention took
effect on 30 October 2001. The UK ratified it on 23 February 2005 and the EC on 17 February
2005 (Council Decision 2005/370/EC of 17/02/05, OJ L 124/1, 17.05.2005). On the
 4

of a number of rights for individuals and NGOs with regard to the environment.
In broad outline, the parties undertake to recognise three sets of rights: rights to
access to environmental information, to public participation and to access to
justice.
The convention provides:

i the right of everyone to receive environmental information that

is held by public authorities. This can include information on the state of
the environment, but also on policies or measures taken, or on the state
of human health and safety where this can be affected by the
environment. Public authorities are also obliged to actively disseminate
environmental information in their possession (Article 2);

ii. the right to participate in environmental decision-making.

Arrangements are to be made by public authorities to enable the public
affected and environmental non-governmental organisations to
comment on, for example, proposals for projects affecting the
environment, or plans and programmes relating to the environment, at
least ‘to the extent appropriate’ (Articles 3-8).

iii the right to review procedures to challenge public decisions that

have been made without respecting the two aforementioned rights or
environmental law in general (Article 9).

The Convention creates obligations that are framed very broadly. There is plenty
of scope for particular interpretations. For example, the right to access to justice

convention and its general significance for English law see Robert MacKracken and Gregory
 5

is meant to give standing to members of the public without, however,

challenging national procedural law:

Each Party shall, within the framework of its national legislation, ensure
that members of the public concerned (a) having a sufficient interest or,
alternatively, (b) maintaining impairment of a right, where the
administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another
independent and impartial body established by law, to challenge the
substantive and procedural legality of any decision, act or omission
subject to the provisions of article 6 [public participation right] and,
where so provided for under national law … (Article 9 par. 2).

There is no recognition of an ‘actio popularis’ as many environmental

groups demanded. Nevertheless, the Convention establishes the right of NGOs
to have standing, but again with great deference to national law:

What constitutes a sufficient interest and impairment of a right shall be

determined in accordance with the requirements of national law and
consistently with the objective of giving the public concerned wide
access to justice within the scope of this Convention. To this end, the
interest of any non-governmental organization meeting the requirements
referred to in article 2, paragraph 5 [NGOs are part of the ‘public
concerned’ in an environmental decision if they promote environmental
protection and they meet ‘any requirements under national law’] shall be

Jones, ‘The Aarhus Convention’ (2003) JPL 802.

 6

deemed sufficient for the purpose of subparagraph (a) above [having a

sufficient interest] (Article 9, par 2).

What is the effect of this Convention in the Community legal order,

given that the EC is now a party? Given its drafting, the Aarhus Convention, a
mixed agreement, is unlikely to meet the criteria of direct effect laid out for the
ECJ for international treaties concluded by the Community, namely that it meets
the ordinary requirements of direct effect and that this effect is ‘compatible with
‘the spirit, the general scheme and the terms’ of the agreement in question.5
Hence, national courts may not refer to the Aarhus Convention directly, as part
of their EC law obligations. Secondary legislation in the form of Directives or
Regulations will be necessary for this effect.
Nevertheless, the Aarhus Conventions may still be used by the ECJ
directly. First, the Court of Justice may review any EC secondary legislation that
is introduced in compliance with the international obligations incumbent on the
Community as party to the convention.6 Second, the Commission may exercise
its own power to ensure the application of mixed agreements through
enforcement proceedings, wherever these fall within its area of competence. In
the recent ‘Etang de Berre’ case, for example, the ECJ ruled that specific
implementation of an environmental protection convention was unnecessary,
since the mere accession of the Community to this convention created
Community obligations on the states.7

5 See e.g. Joined Cases 21-24/72 International Fruit Company [1972] ECR 1219, par 20 and Case C-
149/96 Portugal v Council [1999] ECR I-8395, par. 47.
6 See Case C-377/98 Netherlands v European Parliament and Council [2001] ECR I-7079, par. 54 and

C-149/96 Portugal v Council, par. 49: ‘It is only where the Community intended to implement a
particular obligation assumed in the context of the WTO, or where the Community measure
refers expressly to the precise provisions of the WTO agreements, that it is for the Court to
review the legality of the Community measure in question in the light of the WTO rules’.
7 Case C-239/03 Commission v. France [2004] ECR I-9325.
 7

If the legal effects of the Aarhus Convention are limited, what are its
political objectives? In a comprehensive study of the Convention the political
scientists Susan Rose-Ackerman and Achim A. Halpaap, have concluded that
the Convention: ‘is a moderate document designed to accomplish marginal
changes’.8 Its provisions, it seems, were largely, unnecessary in the EU which
already, through a number of pre-existing instruments, recognises similar rights
to information, rights to participation and access to justice. The rationale of the
Aarhus Convention is not to improve the protection of these rights within the
EC and its member states, but rather to expand their application to the other
signatories, mostly former Communist states of Central and Eastern Europe and
beyond. Such states do not, by and large, have the administrative structures that
guarantee such rights, and they will therefore benefit greatly from international
pressure and assistance in moving towards this direction.
The Aarhus Convention does not, therefore, enter the controversy of the
availability or not of ‘environmental rights’, or a ‘human right to the
environment’. The starting point for this bold assertion was the Ksentini Report
in 1994, according to which there had been a shift from environmental law to a
human right to a healthy and decent environment.9 The argument was endorsed
in 1997 by a minority of judges at the European Court of Human Rights in
Strasbourg, led by Judge Pettiti, for whom:

8 Susan Rose-Ackerman and Achim A. Halpaap, ‘The Aarhus Convention and the Politics of
Process: The Political Economy of Procedural Environmental Rights’ 20 Research in Law and
Economics (2001) 27-64.
9 See Final Report of the Special Rapporteur, Sub-Commission on Prevention of Discrimination

and Protection of Minorities, UN Commission on Human Rights UN Doc.

E/CN.4/Sub.2/1994/9. For commentary see in particular Dominic McGoldrick, ‘Sustainable
Development and Human Rights: An Integrated Conception’ 45 ICLQ (1996) 796 (arguing
against the idea of a human right to the environment), Alan Boyle, ‘The Role of International
Human Rights Law in the Protection of the Environment’ in A. Boyle and M. Anderson (eds.)
Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996) 43 (arguing
for rights to public participation rather than a direct right to a clean environment), Margaret De
 8

The majority appear to have ignored the whole trend of international

institutions and public international law towards protecting persons and
heritage, as evident in European Union and Council of Europe
instruments on the environment, the Rio agreements, UNESCO
instruments, the development of the precautionary principle and the
principle of conservation of the common heritage... Where the
protection of persons in the context of the environment and installations
posing a threat to human safety is concerned, all States must adhere to
those principles.10

According to this opinion the right to the environment is part of ‘jus cogens’
that is to be protected by the ECHR, even though such a right does not appear
in the text of the Convention.11 This controversial interpretation of international
environmental law was not adopted by the Aarhus Convention, which dealt only
with safeguarding procedural rights. The Convention did not introduce a
substantive right to environmental protection.

IMPLEMENTATION BY THE EC

The Commission set out to implement the Aarhus Convention by means of four
different instruments. Three Directives were to apply the three separate Aarhus
obligations, i.e. access to information, public participation and access to justice,
to the member states. A single Regulation was meant to impose all three sets of
obligations to the Community institutions. Of these instruments the first two

Merieux, ‘Deriving Environmental Rights from the European Convention for the Protection of
Human Rights and Fundamental Freedoms’ 21 Oxford Journal of Legal Studies (2001) 521-561.
10 Balmer Schafroth v. Switzerland (1997) 25 EHRR 598, at 619.
11 See the comments by De Merieux, op. cit. 555.
 9

Directives and the Regulation applying the Convention to the Community

bodies have now been enacted and taken effect. The third Aarhus Directive,
though, on access to justice is currently blocked by the Council. I will return to
this controversial Directive proposal in a moment.
The right to public access to environmental information is now to be
found in Directive 2003/4/EC of the European Parliament and of the Council
of 28 January 2003 on Public Access to Environmental Information. This
Directive repealed Council Directive 90/313/EEC. It was to be implemented by
Member States by 14 February 2005.12
The right to public participation is now recognised by Directive
2003/35/EC of the European Parliament and of the Council of 26 May 2003
providing for Public Participation in respect of the drawing up of certain plans
and programmes relating to the environment and amending with regard to
public participation and access to justice Council Directives 85/337EEC and
96/61/EC. This Directive was to be implemented by 25 June 2005.13 I tis
important to add here that provisions on public participation are also to be
found in Directive 2001/42/EC of 27 June 2001 on the assessment of certain
plans and programmes on the environment and Directive 2000/60/EC
establishing a framework for Community action in water policy.
The third measure passed after Aarhus, was the Regulation implementing
it into the Community’s internal law. Regulation (EC) No 1367/2006 of the
European Parliament and of the Council on the application of the provisions of
the Aarhus Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters to Community
institutions and bodies entered into force on 28 September 2006. The new

12The UK considers that it complies with the Directive since the coming into force of the
Environmental Information Regulations 2004 (SI 2004/3391).
 10

Regulation took into account existing provisions in these matters, namely

Regulation EC/1049/2001 of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents. This ‘Aarhus Regulation’
means that all EC bodies, offices or agencies had to adapt their internal
procedures by 28 June 2007 to the provisions of the Regulation. I will not
comment any further on this Regulation, but it may raise issues of compatibility
with Article 230, to the extent that it appears to be granting NGOs standing
before the ECJ over and above the criteria laid out by Plaumann.14
The one measure that is still outstanding is the Proposal for a Directive
of the European Parliament of Council on Access to Justice in environmental
matters (COM (2003) 624). I will discuss this proposal in the next section. Given
the uncontroversial nature of the first two Directives on access to information
and public participation, I will not say more about them here. They are,
however, bound to raise issues of direct effect, if and when national authorities
fail to release relevant documents or fail to consult or otherwise allow public
participation or, finally, fail to allow for an effective appeal against such
decisions under the access to justice provisions in the above Directives. So these
Directives are certainly not irrelevant to the recognition of environmental rights.
Nevertheless, I will bracket such particular issues and will now focus my
attention only on the more controversial issue of access to justice in
environmental matters under the proposed Directive on Access to Justice. It
raises the serious and more general question of the status of the required
procedural autonomy of the Member States.

THE PROPOSED DIRECTIVE ON ACCESS TO JUSTICE

13 It was –implemented in England by the Town and Country Planning (Environmental Impact
Assessment) (Amendment) Regulations 2006 (SI 2006/3295).
14 Case 25/62 Plaumann v Commission [1963] ECR 95.
 11

The proposed Directive on Access to Justice is pending before the Council. It

has already received a first reading by the Parliament within the framework of a
co-decision procedure. The Parliament’s report, in March 2004, was critical and
required a number of amendments. Since then the process appears to have
stopped.15
The Directive aims to ‘strengthen the enforcement of environmental law’
through the courts in uniform way throughout the European Union.16 The
Commission relies on Article 2 EC, according to which the a Community task is
the promotion of a high level of environmental protection and quality
improvement and on Articles 174 - 175 EC on environmental policies. The
proposed Directive gives effect to the rights created by the Aarhus Convention
by establishing a set of minimum requirements on access to administrative and
judicial procedures in environmental matters. Some of the key measures of the
proposal can be summarised as follows.

1. General Standing. Member States shall ensure that members of

the public have access to administrative or judicial proceedings, including
interim relief, against administrative acts or omissions which infringe
environmental law if they have a sufficient interest or if they show that
their rights have been affected. It us incumbent on Member States to
determine what constitutes a sufficient interest or a relevant impairment
of a right (Article 4).

15Or so suggests the relevant OEIL entry, Ref. COD/2003/0246.

16Proposal for a Directive of the European Parliament and of the Council on access to justice in
environmental matters, COM (2003) 624 final, p. 4.
12

2. ‘Qualifed Entities’. Member States guarantee that qualified

entities (associations, groups or organisations recognised by a Member
State whose objective is protecting the environment) may initiate
administrative or judicial proceedings against violations of environmental
law, without showing a sufficient interest or impairment of a right if the
subject of the procedure is within the scope of their statutory and
geographically relevant activities. In addition qualified entities (a concept
that does not appear in the Aarhus Convention) recognised in a Member
State may have recourse to such proceedings in another Member State
(Article 5).

3. Internal Review. Members of the public and qualified entities

who have access to justice against an act or an omission must be able to
submit a request for internal review. This request is a preliminary
procedure under which the person or entity concerned can contact the
public authority designated by the Member State before initiating legal or
administrative proceedings. If the authority fails to respond to the
request within the period fixed for this purpose or if its decision does
not enable compliance with environmental law, the party submitting the
request may initiate an administrative or judicial procedure (Article 6)

4. Recognition of ‘qualified entities’. The Member States should lay

down a procedure for recognising qualified entities. A qualified entity
must meet certain criteria, including operating on a non-profit basis and
pursuing the objective of protecting the environment, being legally
constituted and having experience in environmental protection and
having its annual accounts certified by a registered auditor (Article 8).
 13

States may choose between a preliminary procedure and a case-by-case

(ad hoc) procedure (Article 9).

5. Substantive standards. The administrative and judicial

procedures provided for in this proposal must be objective, effective,
adequate, equitable, timely and not prohibitively expensive (Article 10).

From the point of view of English law, three issues of controversy have arisen
with regard to these proposal.
The first issue is the level of discretion allowed to the courts. Under
English law, the courts have a large measure of discretion to prevent access to a
court on the basis of the seriousness of the case, the frivolous or vexatious
nature of the action etc.17 The Commission’s draft on standing is markedly
shorter and not as nuanced in its allowance to states as the corresponding Article
9 of the Aarhus Convention. In fact, the House of Commons Select Committee
on European Scrutiny has concluded that the proposal does not give the
required flexibility to the national courts and has accordingly registered its
scepticism and asked the British government to seek appropriate changes.18

17 Under the court’s case management powers given under the Civil Procedure Rules. For
example, under CPR 3.4: ‘The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the
claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to
obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a
rule, practice direction or court order’.
18 House of Commons Select Committee on European Scrutiny, Seventh Report 2004-2005, par.

2.3-2.6. The Government’s position was reported to be as follows: ‘As regards the extent to
which it may fetter the discretionary power of the Courts, the UK believes it is vital that the
Directive should preserve their procedural power to ensure that, even where a party (including a
qualified entity), has legal standing, access to all stages of environmental proceedings would not
be granted automatically. For example, such access would not be appropriate where a case is of a
frivolous or vexatious nature, where there is a lack of an arguable case, or where there has been
non-compliance with other procedural rules. Courts should also be able to look at the
seriousness of the case, and whether another avenue of appeal exists, so as to preserve the
efficiency of the justice system. In view of this, the Minister says that the Government will seek
 14

The second issue is the question of interim relief. The Aarhus

convention requires interim relief ‘as appropriate’ (Article 9, par. 4). The
Commission’s proposal does not reproduce this qualification, stating only that
access to justice ‘include[s] interim relief’ (Article 4, par 1). It is conceivable that
disputes may arise over the interpretation of this clause. The Commission’s draft
avoids the flexibility of the Aarhus Convention provision. One issue that may
arise is the undertaking in damages required before English Courts grant interim
injunctions. Is such a requirement within the letter and the spirit of the proposed
Directive, or should it be given up for environmental actions?
Third, the substantive standards under the proposal included the
criterion that proceedings should not be prohibitively expensive. Important
issues may arise here. It is well documented that the cost of litigation before
English courts is very much higher than that of continental courts, say French or
Italian or German courts.19 Of course, the possibility of protective costs orders
may shield environmental organisations in certain cases of judicial review
proceedings.20 Nevertheless, there is always the possibility that the risk of paying

during any negotiations to ensure that the Directive does not compromise the UK's capacity to
determine such procedural matters, and that it avoids the possibility of unnecessary litigation on
matters outside the scope of the Convention’.
19 For a general comparative discussion see ‘Symposium on Civil Procedure Reform in

Comparative Context in 45 American Journal of Comparative Law (1997) 647-940, particularly the
contributions by Daniel Soulez Lariviere, ‘Overview of the Problems of French Civil Procedure’
(p. 737), Vincenzo Varano, ‘Civil Procedure Reform in Italy’ (p. 657) Lord Harry Woolf, ‘Civil
Justice in the United Kingdom’ (p. 709), Peter Gottwald, ‘Civil Procedure Reform in Germany’
(p. 753), Geoffrey P. Miller, ‘The Legal-Economic Analysis of Comparative Civil Procedure’ (p.
905) and Konstantinos Kerameus, ‘Political Integration and Procedural Convergence in the
European Union’ (p. 919).
20 CPR 44.3(2) lays out that a general rule is that the unsuccessful party will be ordered to pay the

costs of the successful party, but it is within the power of the court to make a different order.
According to CPR 44.3(4) in deciding what order to make about costs, the court must have
regard to all the circumstances while CPR 3.2(m), gives the court power to ‘take any other step
or make any other order for the purpose of managing the case and furthering the overriding
objective.’ See R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ
192 and R (Anderson) v Legal Services Commission [2006] EWHC 617 (Admin) (Goldring J.), King v
Telegraph Group Ltd [2004] EWCA Civ 613, Arkin v Borchard Lines Ltd [2005] EWCA Civ 65.
 15

the other side’s costs will continue to be considered prohibitively high for any
potential claimant.21 This is another area where the ECJ may be called upon to
decide on the adequacy of English civil procedure and funding arrangements.22
It is not obvious that the view would be favourable. Richard Gordon QC has
recently argued that:

There is certainly scope for contending that - whatever the correctness

of protective costs order principles in a purely domestic case such as
Corner House (…) the position should be different in an EC
environmental challenge where the deterrent effect of expensive court
procedures may, in practice, operate adversely to EC environmental law
objectives and may, in any event, be disproportionate.23

Whatever the precise relation of these measures to English law, it is evident that
in all such areas, the Directive seems to cover important aspects of national civil
procedure. Issues that until now seemed well within the ambit of national
procedural autonomy, as long as remedies for breaches of European law were
equivalent and effective to national remedies, are becoming immediate issues of
EC environmental law.

THE COMMISSION’S CASE: EFFECTIVENESS & UNIFORMITY

21 See for example R v. Secretary of State for the Environment ex p RSPB [1997] Env L R 431. See also
other examples in Paul Stookes, A Practical Approach to Environmental Law (Oxford: Oxford
University Press, 2005) 40.
22 It is of course an old issue. See Airey v. Ireland ECHR (1979), Series A No 32, 2 EHRR 305,

para. 24. See Carol Harlow, ‘Access to Justice as a Human Right’ in Alston (ed.), The EU and
Human Rights 187-213.
23 Richard Gordon, ‘Using EC Law in Environmental Judicial Review’ 2007 JPL 826, at 831

(footnote omitted). See also the (obiter) comments of Brooke LJ as to the relevance of the
Aarhus Convention on the funding of environmental litigation before English Courts in R. v.
and London Borough of Hammersmith and Fulham, ex p. Burkett [2004] EWCA (Civ) 1342, pars. 74-80.
 16

I drew attention to three areas where the proposed Directive may raise tensions
between English law and EC law, the flexibility of the criteria of standing, the
issue of interim relief and the issue of prohibitive costs. There may be others,
but I will just discuss these as useful examples of some important constitutional
issues raised by the proposed Directive. It is conceivable that if this Directive of
Access to Justice became law, potential frustrated applicants would raise all such
issues before English courts and seek preliminary references to the ECJ on the
proper interpretation and application of the Directive. If so, the content of
English civil procedure will be tested directly by the ECJ. It is too early, of
course, to predict if and when such cases may arise. Nevertheless, we may raise
here the hypothetical question: how should such potential conflicts be
determined? What are the legal and constitutional principles, if any, that should
govern such questions?
In principle, Member States’ legal systems remain autonomous. National
courts are to implement EU law directly, but they are to do so on their own
terms. They need not change the judicial or other procedural methods with
which they apply the law. Their procedures and remedies remain autonomous.24
There are, however, two conditions for such autonomy. The first is the principle
of equivalence: the procedural rules enforcing Community law must be no less
favourable than those applied in domestic law actions. The second is the
principle of ‘effectiveness’: the application of national procedural rules should
not make the protection of Community rights excessively difficult. The two
conditions were summarised in the Peterbroeck judgment:

24This was first established in Case 33/76, Rewe-Zentralfinanz eG et Rewe-Zentral AG v.

Landwirtschaftskammer für das Saarland [1976] ECR 1989.
 17

[T]he Court has consistently held that, under the principle of

cooperation laid down in Article 5 of the Treaty, it is for the Member
States to ensure the legal protection which individuals derive from the
direct effect of Community law. In the absence of Community rules
governing a matter, it is for the domestic legal system of each Member
State to designate the courts and tribunals having jurisdiction and to lay
down the detailed procedural rules governing actions for safeguarding
rights which individuals derive from the direct effect of Community law.
However, such rules must not be less favourable than those governing
similar domestic actions nor render virtually impossible or excessively
difficult the exercise of rights conferred by Community law …25

The proposed Directive on Access to Justice in environmental matters

seems to be going beyond this general principle. The Commission’s view on
such issues is expressed in the explanatory memorandum accompanying the
proposal. For the Commission the protection of the environment under the
Aarhus Convention constitutes a significantly different area of policy, within
which uniformity is more important than autonomy. The argument is reflected
in the discussion of subsidiarity and proportionality:

The Community will only be able to fulfil [its obligations under the
Aarhus Convention] if its able to ensure that citizens and non-
governmental organisations have the required access to justice as far as
the Community law is concerned. To be able to grant these rights in a

25Case C-312/93, Peterbroeck Van Campenhout SCS & Cie v. Belgian State [1995] ECR I-4599, para.
12; See also Case 45/76, Comet v. Produktschap voor Siergewassen [1976] ECR 2043, para. 12-6; Case
C-96/91, Commission v. Spain [1992] ECR I-3789, para. 12; and Joined Cases C-6/90 and C-9/90,
Andrea Francovich and Danila Bonifaci and others v. Italian Republic [1991] ECR I-5357, para. 43.
 18

uniform way throughout the European Union, the Community has to set
out a common minimum framework that applies to all Member States…
Given that environmental law will have its desired effects only if its
enforcement is guaranteed throughout the whole Union, it is absolutely
crucial to ensure that the observance of environmental law can be
reviewed in court.

The Commission’s argument is, perhaps implicitly, based on a necessary link

between efficiency and uniformity. Environmental protection will be achieved
through effective actions before the courts and such actions will be effective
only if the follow uniform rules. This is the aim and purpose of the proposed
legislation. It coincides with a familiar constitutional principle, familiar from the
case law on direct effect and supremacy. Here, the Commission uses the
argument that effectiveness in results requires uniform procedures and leads to
the idea of a ‘new legal order’ (the reasoning of Van Gend en Loos and Costa).
This explains, I think, the relatively heavy-handed way in which the Commission
seeks to implement the rights to access to justice and the way it papers over the
subtle concessions made to states by the Aarhus Convention itself.
Environmental standards are to be enforced, as it where, from the bottom up,
through the deployment of national courts by individuals and environmental
groups alike (when the latter are properly recognised). Environmental rights are
to be protected through the strengthening of the ‘new legal order’. It is not clear,
nevertheless, why in this (as in other areas that fall under EC competence) there
cannot be effectiveness without uniformity. The separate systems of civil
procedure of the different Member States may achieve the same results through
different means. It is not clear that effectiveness requires a single method.
 19

In fact, the case law of the Court of Justice on effective remedies

provides ample arguments to the contrary. As Takis Tridimas has eloquently
described, it is a general principle of Community law that it is for the domestic
legal system of each Member State to lay down the rules governing actions
intended to protect Community rights, provided that national rules are not less
favourable than those governing domestic rights and provide a minimum of
protection as we saw above in the Peterbroeck judgment.26 In his careful study of
the case law Tridimas identifies, I think, a general tendency to provide only
minimum standards for effective protection, not uniform standards. This is the
prior principle of procedural autonomy. Does the Aarhus Convention change
that principle in favour of uniformity in the environmental sphere? We can
imagine an argument why in the particular area of environmental rights
uniformity might be essential. As we saw above, environmental enforcement
cannot just rely on private litigation. The necessary institutional reforms ought
to be uniform across the Member States of the European Union. But I think this
argument is not persuasive, at least long as we are speaking of procedural rights.
If the Aarhus Convention had created a new substantial human right to a clean
environment (or a set of such rights), perhaps it would have to be given effect in
a uniform way across the Community. The same happens in other areas of
regulatory intervention by EC law. But there is no such substantive right or set
of rights. The Aarhus Convention, as we saw above, remains firmly in the area
of procedure. It only recognises already existing rights to specific administrative
and judicial procedures that are able to respond more effectively to
environmental claims.

26See Case 33/76 Rewe [1976] ECR 1989 par. 5, and Case 45/76 Comet [1976] ECR 2043, par.
12-16. See Takis Tridimas, The General Principles of EC Law, second edition (Oxford: Oxford
University Press, 2006) 276.
 20

The Commission’s proposal is silent on this question. If offers no

argument distinguishing environmental protection form other areas of EC
policy. The Commission’s only argument for uniformity is a single reference to
the problem of cross-border pollution (Proposal, par. 1.1) which presumably
requires uniform action among different jurisdictions. Nevertheless, the
protection of international water-courses, air quality or cross-border emissions
of polluting substances does not need uniformity in civil procedure. It only
needs equivalent and effective procedures recognising all of these environmental
rights to all EC citizens. And this can be achieved without identical rules on
access to courts, participation and information.

PROCEDURAL AUTONOMY AS A CONSTITUTIONAL PRINCIPLE

There is an important constitutional point that ought to be discussed in some

detail. As we have seen environmental standards require special administrative
and judicial rules in order to be effectively enforced. All the member states of
the EC accept this point and have taken independent steps for its
implementation. They have also signed the Aarhus Convention themselves.
Most cases of environmental damage, fortunately, are national or local.
Accordingly the environmental rights established by the Aarhus convention are
meant to operate as national administrative and constitutional constraints. There
is nothing about them that is particularly European, or transnational. They are
not structured in the way as the free movement of goods and services, which are
meant to take effect across two or more jurisdictions of the Member States.
Environmental rights under the Aarhus Convention are elements of public law.
 21

Here we need another of the distinctions made by Tridimas.27 EC law, he

says, can be classified into two general parts. The first part includes principles
that underlie the ‘constitutional structure of the Community and define the
Community legal edifice’. Such principles include all the relationships between
the Member States and the Community, the relations between institutions, the
allocation of competences, the very idea of the direct effect and supremacy of
the Treaty, the principle of non-discrimination and the like. The second part is
that of what Tridimas calls ‘the rule of law’. Here we include the principles that
pertain to the relationship between the individual and the national or
Community authorities (Tridimas’ book deals mainly with such principles).
We may perhaps single out a third part (which Tridimas believes that it
belongs to the first), namely the substantive Community law of the four
freedoms and the other substantive rights of citizenship, non-discrimination
etc.28 Such a potential third part is constitutional, in the sense correctly identified
by Tridimas but because it includes the freedoms that are protected by the
Treaty directly and form part of the raison d’ etre of the Community it could be
dealt with separately. Its unique feature is that it covers relations of states with
(in principle) the citizens of other states. Finally, all other policies and aims of
the Union, whether pursued through Directive and Regulation or soft law,
should be classified as the area of ‘policies’ of EC law. They are to take effect on
the condition that they do not interfere or violate the first three sets of
principles: the fundamental constitutional principles, the rule of law and the
community freedoms.
It will be evident that environmental concerns are certainly one part of
the policies of the Union. But if we may also speak of environmental rights, these

Tridimas, op. cit. p. 4

27

28I develop this point more fully in ‘The Idea of a European Constitution’ 27 Oxford Journal of
Legal Studies (2007) 1.
 22

will belong to the second group of principles, the principles of ‘the rule of law’.
They are neither about constitutional competences nor do they establish
economic freedoms. They just impose constraints on political power, for the
sake of environmental protection. It must also be obvious that only the third
part of Community law, the economic liberties, is open to the Commission’s
argument concerning effectiveness and uniformity. It is in the nature of the four
freedoms that they require immediate and uniform recognition by all host states,
either in cases of goods, or in services or in the case of workers and
establishment. Such freedoms protect the rights of foreigners before the
authorities of the Member States, where they have chosen to do business or to
live. Such foreigners are in need of direct and effective protection by EC law
precisely because they are outsiders to the host state. They are the most likely to
be discriminated against and face unreasonable obstacles. This is, in my view, the
most central part of Community law, i.e. the rights that deserve direct effect and
supremacy because of their nature as rights of outsiders. Such special freedoms
would not survive without direct effect and supremacy.
The first part of Community law, its fundamental organisational
principles, require uniform recognition by all courts, either Community or
national. The issue of competences, for example, must be resolved in a uniform
way by all courts. The effect of Directives must also be uniformly resolved. The
content of the principle of non-discrimination or the self-government (or
subsidiarity) owed to states must also be uniformly settled. Nevertheless, such
constitutional principles do not aim to create individual rights in the same way as
the Community freedoms. The relations covered by the fundamental
constitutional principles of EC law as a union of states are those linking states
with one another, relations of states with the Community and relations among
the various institutions. Such rules do not set out to cover relations between
 23

states and their own citizens – they may do so incidentally. The latter relations
belong to national constitutional and administrative laws. As long as these laws
respect minimum standards (they are democratic, proportionate, respectful of
the rule of law etc.), they do not need to be uniform. Hence, even the Charter of
Fundamental Rights limits its application to areas where EC law applies and
does not cove the internal relations between states and their citizens.29 The
relations between states and their own citizens fall under the scope of
Community law in a different sense from relations between states or relations
between states and the citizens of other states. This is because the Community is
not a state but a union of separate and self-governing states, with separate legal
orders and autonomous political systems.30
Relations between individuals and their own public authorities are
covered by the second part of EC law, what Tridimas calls the ‘rule of law’ of
the EC and which we could simply call the administrative or public law of the
EC.31 This is the most fluid area of EC law. Some such rules require direct
effect and supremacy, for example in the cases of Francovich damages.32 For
others, we have institutional autonomy, for example in access to a court under
the ECJ’s UPA ruling (under which the ECJ allowed national courts to

29 The Charter of Fundamental Rights incorporated to the European Constitution by the

‘European Convention’. limited, for example, the scope of its application as follows: ‘Article II-
51: 1. The provisions of this Charter are addressed to the Institutions, bodies and agencies of the
Union with due regard to the principle of subsidiarity and to the member States only when they
are implementing Union law. They shall therefore respect the rights, observe the principles and
promote the application thereof in accordance with their respective powers and respecting the
limits of the powers of the Union as conferred on it in the other Parts of the Constitution. 2.
This Charter does not extend the field of application of Union law beyond the powers of the
Union or establish any new power or task for the Union, or modify powers and tasks defined in
other Parts of the Constitution’. Even the delegates to that ‘Convention’ were keen to protect
the autonomy of member states in this field.
30 See Pavlos Eleftheriadis, ‘The Standing of States in the EU’ in N. Tsagourias (ed.),

Transnational Constitutionalism: International and European Models (Cambridge: Cambridge University

Press, forthcoming)
31 See for example Paul Craig, EU Administrative Law (Oxford: Oxford University Press, 2006).
32 Case C-6 and 9/90 Francovich and Bonifaci v. Italy [1991] ECR I-5357.
 24

determine their own rules as to access to a court in the protection of

Community rights).33 It is obvious from the first perusal of this subject that the
principles of the rule of law that apply whenever EC law finds expression in
domestic jurisdictions depend on the subject matter and the facts of the case.
We do not yet have clear and determinate rules as to this area of the public law
of the EC. For example, in this area of public law of the EC we find the
proposition that a principle of ‘abuse of rights’ applies uniformly to all EC law
measures, as in the case of Emsland Stärke (a case regarding export refunds):

52. A finding of an abuse requires, first, a combination of objective

circumstances in which, despite formal observance of the conditions laid
down by the Community rules, the purpose of those rules has not been
achieved.

53. It requires, second, a subjective element consisting in the intention to

obtain an advantage from the Community rules by creating artificially the
conditions laid down for obtaining it. The existence of that subjective
element can be established, inter alia, by evidence of collusion between
the Community exporter receiving the refunds and the importer of the
goods in the non-member country.

54. It is for the national court to establish the existence of those two
elements, evidence of which must be adduced in accordance with the
rules of national law, provided that the effectiveness of Community law
is not thereby undermined (…).”34

33 Case C-50/00 P Union de Pequenos Agricultores v. Council [2002] ECR I-6677.

34 Case C-110/00 Emsland-Stärke GmbH and Hauptzollamt Hamburg-Jonas [2000] ECR I-11569. See
also Case C-255/02 Halifax v HMCE, judgment of 21 Feburary 2006.
 25

But in a situation when the ECJ was called upon to assess the validity of a
national measure which had been enacted contrary to EC law the Court did not
draw the conclusion that the national measure was void and therefore non-
existent. It left this for the national court to determine (which was not
surprising), on the basis of national law (which must be):

18 The Commission points out that, in its judgment in … Simmenthal …,

the Court held, inter alia, that the provisions of the Treaty and the
directly applicable measures of the institutions have the effect, in their
relationship with the domestic law of the Member States, not only of
rendering automatically inapplicable any conflicting provision of national
law in force but also of precluding the valid adoption of new national
legislative measures which would be incompatible with Community
provisions. From this, the Commission infers that a Member State has
no power whatever to adopt a fiscal provision that is incompatible with
Community law, with the result that such a provision and the
corresponding fiscal obligation must be treated as non-existent.

19 That interpretation cannot be accepted.

20 In Simmenthal, the issue facing the Court related in particular to the

consequences of the direct applicability of a provision of Community law
where that provision was incompatible with a subsequently adopted
provision of national law. The Court had already stressed, in its previous
decisions (see, in particular, Case 6/64 Costa v ENEL [1964] ECR 585),
 26

that it was impossible for a Member State to accord precedence to a

national rule over a conflicting rule of Community law, but did not draw
any distinction between pre-existing and subsequently adopted national
law. So, in Simmenthal, the Court held that every national court must, in a
case within its jurisdiction, apply Community law in its entirety and
protect rights which the latter confers on individuals, setting aside any
provision of national law which may conflict with it, whether prior or
subsequent to the Community rule (Simmenthal, paragraphs 21 and 24).
That case-law has been reaffirmed on numerous occasions (...).

21 It cannot therefore, contrary to the Commission's contention, be

inferred from the judgment in Simmenthal that the incompatibility with
Community law of a subsequently adopted rule of national law has the
effect of rendering that rule of national law non-existent. Faced with
such a situation, the national court is, however, obliged to disapply that
rule, provided always that this obligation does not restrict the power of
the competent national courts to apply, from among the various
procedures available under national law, those which are appropriate for
protecting the individual rights conferred by Community law (…).35

In other words, in this case the national law (not just the court) is to determine
the precise validity and procedural treatment of the impugned measure. EC law
does not have uniform rules about this. But how can these two results be
reconciled? It is clear that the precise determination of the principles of the rule
of law is not a simple matter of ‘direct effect’ and ‘supremacy’ but depends on a
complex constitutional and legal balancing that follows the facts of each case.

35
Case C-10 – 22/97 Ministero delle Finanze v IN.CO.GE.'90 Srl et. al. [1998] ECR I-6307.
 27

It must be evident that the procedural environmental rights established

by the Aarhus Convention and its implementation in the EC legal order fall
somewhere this very large category of ‘rule of law’ principles. Where do we draw
the line between national autonomy or uniform standard? I submit that
whenever the subject matter does not require it, we must take more seriously the
idea of shared minimum rules. If the subject matter does not require it, the rules
applicable to the public law relationship between Member States and their own
citizens need not be uniform, provided that they meet a certain minimum
standard. We may then say that the members of the EC have undertaken to each
other to be good constitutional republics and for this reason they are to respect
the rule of law sufficiently. They recognise in the ECJ the power to oversee the
fulfilment of this obligation in areas that fall under EC law. But as long as this
requirement is met, the Community institutions need go no further. In the
remaining areas, the principle of national autonomy prevails.
The Commission’s argument behind the proposed Directive on Access
to Justice considers the effectiveness of environmental rights to be the sole
criterion. But, if the argument above is correct, any legislative proposal for
changes to civil procedure must take into account the EC constitutional
principle of procedural autonomy. This principle, which is implicit in the EU
Treaties and the case law of the ECJ over many different areas, suggests a limit
to the reach of Community law over national legal systems. The effectiveness of
environmental rights depends on national implementation of the Aarhus
Convention commitments, according to national laws and procedures. EC law
becomes relevant only if national measures fail to give effect to these
commitments. But this is very far more uniformity. Unless there are strong
reasons to the contrary, EC environmental rights are procedural and they aim
only at minimum standards of good administration.
 28

ENVIRONMENTAL RIGHTS AS MINIMUM STANDARDS

It is interesting to note that this answer is also given by the Aarhus Convention
itself. The Aarhus Convention explicitly recognises the right of its members to
‘maintain or introduce measures providing for broader access to information,
more extensive public participation and wider access to justice than required by
the Convention’ (Article 3, par 5). It only aims to set minimum standards, not
uniform procedures. This should not be surprising. It is the same solution that
we find in the ECHR and in the Charter of Fundamental Rights, i.e. in other
treaties that organise intense and deep international cooperation among states.
The same solution, in my view, should be endorsed by a Directive on Access to
Justice on Environmental matters. The guiding constitutional principle should
be that unless there are strong reasons to the contrary, the law of the EC will
only supplement the public law of the Member States. The argument for
uniformity does not work in all areas of EC law but only where it is needed by
the content of the respective rules, as in the case of the economic liberties
established by the Treaty. We saw above that the reason for the uniformity in
the application of the four freedoms was the special vulnerability of the right-
holders in light of their status as outsiders. In other areas of EC law and policy,
in areas for example affecting the ordinary relations between states and the EC
or states and their own citizens, such conditions are not generally met. This is
the case in civil procedure or in the allocation of jurisdiction between civil and
administrative courts, as we saw above.36 In other areas, such as the abuse of
rights, uniformity in the standard applied is more important – and less intrusive

36 See e.g. IN.CO.GE.

 29

to national law. But we cannot expect that the same treatment will be meted out
to all areas of EC public law.
Interestingly, a rather similar solution is also adopted by the proposed
Directive of the European Parliament and of the Council on the protection of
environment through criminal law.37 The proposed directive establishes only a
minimum set of serious environmental offences that should be considered
criminally punishable throughout the community. The proposal explicitly does
not aim to bring about a uniform standard but a ‘minimum standard at
Community level on constituent elements of serious environmental criminal
offences, a similar scope of liability for legal persons as well as levels of penalties
for particularly serious environmental crimes’.38 The proposal sets only a
‘minimum level of harmonisation’. We see, thus, that even for the Commission,
uniformity is not essential in all areas of environmental policy.
The result is that the protection of environmental rights in the EC
should and will remain complex and fluid even after the introduction of the
existing two ‘Aarhus Directives’ and the possible introduction of a new
Directive on Access to Justice in environmental matters. The implementation of
procedural environmental rights must be an example of how the general
constitutional principles of the European Union have an impact on its policy
and its public law. Even when our policy aims are pursued through the Union, it
is not necessary that as a result we replace national procedures with a single
European one. Even in the area of the environment, where common action is
often urgent and justified, we are to respect the autonomy of national legal
orders and we are to engage in careful balancing as the case allows.

37 9 February 2007, COM (2007) 51 Final. The Directive is the result of the judgment of the ECJ
in Case C-176/03 Commission v. Council, [2005] ECR I-7879.
38 COM (2007) 51 Final, p. 6.
 30

The result is that under the scheme of environmental rights established

by the Aarhus Convention each applicant or environmental activist necessarily
has slightly different environmental rights depending on the country where he or
she starts their actions or launches their campaigns for participation or
information. They all meet a minimum standard, outlined in the relevant
Directives and the Convention itself. But this variety and fluidity is as it should
be. The public law of the EC, of which environmental law is now a major part, is
not a single structure nor is it a simple deduction from the principles of direct
effect and supremacy.