Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?

By ratifying the Aarhus Convention in 2005 the EU committed itself to guaranteeing broad access to justice in environmental matters both at the national and the EU level. Yet, in spite of the clear-cut obligations incumbent upon the EU, EU courts have consistently rebuked pleas for a softening of the standing requirements in the context of direct actions against EU acts that might have an impact on the environment and/or public health. In addition, the internal review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively by the EU institutions that that its added value in the stride toward better access to courts in environmental matters remains ephemeral at best. This led the General Court to finding that the Aarhus Regulation, by excluding general EU acts from the scope of internal review, was in breach of Article 9(3) of the Aarhus Convention. In its recent rulings of 13 January 2015, however, the Court of Justice of the EU (CJEU) overruled the General Court by holding that the Aarhus Regulation could not be reviewed in light of the Aarhus Convention. With its refusal to use Article 9(3) of the Aarhus Convention as a reference criterion for the purpose of reviewing the EU’s compliance with the Aarhus Convention’s obligations, the CJEU avoided tackling the unsatisfactory level of judicial protection in environmental cases at the EU level. This paper argues that the rulings of the CJEU are to be qualified as a significant step backwards for judicial protection in environmental matters at the EU level. It is established that, instead of addressing the current failings of the EU with respect to access to justice in environmental cases, the CJEU’s hands-off approach paves the way for yet another decade of non-compliance by the EU in the realm of access to justice in environmental cases.