Justice denied

Published 19/12/2014

The Treaty on the Functioning of the European Union (TFEU) places a number of important obligations on the Union in regard to environmental protection, sustainable development, public health, consumer protection and animal welfare.

This is all very well, but as things stand it is impossible for civil society organisations – otherwise known as non-governmental organisations (NGOs) – to bring a legal action against EU institutions if they fail to meet these obligations.

In a number of Member States NGOs can bring ‘judicial review’ proceedings in which a court reviews the lawfulness of a decision or action made by a public body.

But at the EU level the European Court of Justice (ECJ) has for many years ruled that NGOs are not allowed to institute proceedings at the ECJ to challenge the legality of the Commission’s and other institutions’ actions or inactions.

We think this is wrong, so we, together with ClientEarth, an environmental NGO, recently held a conference at the European Parliament in Brussels to discuss the problem. The event was hosted by MEP Kostas Chrysogonos (GEU/NGL), who is a constitutional lawyer himself.

The “Access to Justice” conference identified the extent of the problem and examined ways in which the Commission and the other EU institutions can be pressed to act in accordance with their Treaty obligations.

It also considered whether the Aarhus Convention, a UN agreement on public participation in decision-making and access to justice that the EU signed in 1998, has in practice improved access to justice in environmental matters.

Participants also focused on building pressure for the next round of Treaty changes to give NGOs a standing to challenge the legality of the actions of EU institutions at the ECJ.

Who said what?

Peter Stevenson, our Chief Policy Advisor spoke about how the absence of access to justice allows the European Commission to ignore the animal welfare article (13) in the TFEU*.

Anais Berthier, a senior environmental lawyer in ClientEarth’s Brussels office, said the EU is in breach of the Aarhus Convention and that there is no need for a change in the Treaty, only a change in the interpretation of the Court.

Marlene Wartenberg, Director of the European Policy Office at Vier Pfoten, presented the history of the Treaty of Lisbon and how it provides animal welfare a constitutional element.

Martin Dermine, a veterinarian from the Pesticide Action Network (PAN Europe), said a recent PAN legal case used the Aarhus Convention, which has increased the release of direct information but has not been understood or applied correctly by the Commission.

Christoph Sobotta, a référendaire in the Chambers of Advocate Juliane Kokott at the ECJ, discussed the Court’s work and the EU system of legal protection.

Amaryllis Muller, an associate at the Brussels office of Freshfields Bruckhaus Deringer LLP, argued how access to EU justice might be more favourable for companies than NGOs and examined possible solutions.

We will continue to lobby for access to justice and to be able to hold European institutions to account when it comes to animal welfare, environmental and social justice issues.

*In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.