30 - The Aarhus Convention and the European…

As you will all know from the huge level of excitement yesterday the judgment of the European Court of Human Rights (“ECtHR”) in Verein Klima Seniorinnen Schweiz v Switzerland (Application no. 53600/20) is finally here: see by way of background Blog 12.

I will leave analysis of much of the substantive law and also Judge Eicke’s powerful partial dissent to others (here). I will be focussing, of course, on the role the Aarhus Convention played in this landmark decision.

The Aarhus Convention is mentioned no less than 51 times in the judgment. A record for a ECtHR decision.

The issue to which the Aarhus Convention went was that of locus standi. The establishing of victim status.

In short, the ECtHR has identified separate criteria for this in climate cases for individuals and for associations.

On the facts all of the individual applicants’ cases were held to be inadmissible on standing grounds, but an association registered under Swiss law, Verein KlimaSeniorinnen Schweiz was held to have standing.

The ECtHR records ([46]) that the applicants in the domestic proceedings before the Swiss federal Supreme Court (“FSC”) had relied on Article 9(3) of the Aarhus Convention as regards their standing. And noted that the FSC had concluded that a procedure or actio popularis is inadmissible in Swiss law, which guarantees the protection of individual rights only - a result that Article 9(3) of the Aarhus Convention could not alter ([59]).

The judgement then turns to the Aarhus Convention in its analysis of relevant international legal materials: see [141] – [143] and see also [165] and [198] also referring to the Convention in the context of other international materials and [212]-[222] in relation to the role of the Convention in EU law.

The judgment then has a fascinating Aarhus Convention focussed comparative law analysis:

“A. Relevant comparative materials concerning the Aarhus Convention

232. Of the forty-six Council of Europe member States only five have not ratified the Aarhus Convention.154 In a great majority of the thirty-eight member States surveyed by the Court155, environmental non-governmental associations are allowed to bring cases in the interests of the protection of the environment and/or in the interests of private individuals who may be affected by specific environmental hazards or industrial projects (in at least thirty-four States).

233. However, the non-governmental association in question has to fulfil certain criteria. In almost all the member States surveyed, the corporate goals of the association have to be linked to the interests it seeks to protect. In eleven member States such associations have to have existed, or to have been actively involved in the protection of the environment, for some time before bringing a case, and in eight member States the association bringing a case has to operate in a particular geographical zone. Some member States provide for additional criteria for recognising the standing of associations, but these are less common: the size of the association; prior participation in the decision-making process; internal organisation; prohibition for the association or its leadership to participate in for-profit activities; and a general requirement of the lawfulness of the activities of the association. Moreover, in some systems the question of the standing of the association may depend on the question of the standing of natural persons who may be directly affected by the environmental hazards. The standing of the association may be established directly by the court or, in six member States, through a mechanism of preliminary accreditation by an administrative authority.

234. As to climate-change cases, in most member States, it appears that while a theoretical possibility of an environmental association bringing a climate-change case may exist, or cannot be ruled out, there is no conclusive case-law on the matter, or no case-law at all. In seven member States such claims by an environmental association would probably not be acceptable in the national legal order, while in five others a possibility for an environmental association to bring legal cases concerning climate change, under certain conditions (linked to the actionability of the claim), has been examined by domestic courts (Belgium, France, Germany, Ireland and the Netherlands).”

The Court then recorded the submissions of the parties on the standing issues which included as regard the Aarhus Convention the following:

(1) The applicants: “the applicant association should be seen as a means enabling the physical persons to bring their complaint before the Court. To preclude the applicant association’s application under Articles 2 and 8 by virtue of the fact that it was a legal person, would be to ignore reality and would be out of line with the principle that the Convention rights should be practical and effective. Moreover, the Court should ensure that its approach to the notion of victim status was in line with the Aarhus Convention which essentially provided for a possibility that associations could substitute individuals in pursuit of environmental actions” [307];

(2)Intervening governments (on matters perhaps going more to the merits than to standing per se):

“362. The legislative and decision-making process concerning the development of measures to reduce Switzerland’s GHG emissions had been characterised by openness and total transparency. There had also been the systematic inclusion of surveys and scientific studies as well as very broad participation of all interested stakeholders. A referendum on the matter had also been organised. The system of direct democracy in Switzerland was not a threat to minorities but rather a means of their integration and protection.

363. The above-noted efforts at the domestic level had been in line with the principles set out in the Aarhus Convention, although it had only later come into force as regards Switzerland (1 June 2014) and did not provide for such details as the necessity to have scientific studies when engaging public participation. Public participation and information had also been ensured by other means, notably through the Consultative Body on Climate Change (Organe consultatif sur le changement climatique) and the National Centre for Climate Services, as well as on the basis of the principle of transparency in the work of the administration.”

(3) The European Network of National Human Rights Institutions ([383]) (re victim status) “the existence of an immediate and direct impact of climate change on individuals and it also showed the existence of a real, rather than hypothetical, risk of future adverse impacts of climate change. Older women were a class of people particularly at risk from climate-attributed heat. In this context, as recognised in the Aarhus Convention, the environmental associations played an essential role. When examining their victim status, it was important to bear in mind that individuals might be prevented from lodging an application with the Court and effective protection of individuals’ long-term interest in living in a safe environment might depend on environmental associations being able to bring complaints to protect against irreversible climate harm while there was still time to prevent it.”

The ECtHR’s assessment of victim status for associations was heavily influenced by the Aarhus Convention, albeit that some limits to this influence were recognised:

“490. These general observations concerning the importance of recourse to collective entities such as associations to defend the rights and interests of affected or concerned individuals, as far as issues of the environment are concerned, are reflected in international instruments such as the Aarhus Convention. That Convention recognises that “every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations” (see paragraph 141 above).

491. The Aarhus Convention also emphasises the importance of the role which non-governmental organisations play in the context of environmental protection. It envisages the need to ensure that non-governmental organisations have wide access to justice in matters concerning environmental protection (see, in particular, the Preamble and Article 9 of the Aarhus Convention). Article 2 § 5 of the Aarhus Convention explicitly incorporates within the category of “the interested public” non-governmental organisations whose statutory goals include the promotion of environmental protection, provided that they also meet “any requirements under national law”. According to the Implementation Guide, whether a nongovernmental organisation promotes environmental protection or not can be ascertained in a variety of ways, such as through its charter, by-laws or activities. In this context, “environmental protection” may concern any purpose consistent with the implied definition of environment found in Article 2 § 3. Moreover, it is specified that the reference to “meeting any requirements under national law” should not be read as leaving absolute discretion to States in defining these requirements, but rather in the context of the important role the Aarhus Convention assigns to non-governmental organisations.

492. The Court further notes that the EU has developed a set of legal instruments concerning the implementation of the Aarhus Convention (see paragraphs 212-214 above). The CJEU has found that Article 9 § 3 of the Aarhus Convention must be read in conjunction with Article 47 of the Charter of Fundamental Rights in ensuring that “a duly constituted environmental organisation operating in accordance with the requirements of national law” is able to contest a measure affecting the environment.

493. In this connection, it should also be noted that a comparative study from 2019 found that broad legal standing was granted by law and in practice in a number of EU member States (thirteen out of twenty-eight at the time). In addition, while access had broadened over the years in some countries, either through jurisprudence (Austria, Belgium) or by law (Greece, Ireland, Slovakia, Slovenia, Sweden), in some others, recent jurisprudence (Slovenia) or legal reforms planned (the United Kingdom) or enacted (the Netherlands) aimed to restrict access to courts. An earlier comparative study from 2013 had found that the EU member States’ legislation required one or more of the following conditions to be met for the legal standing of associations before the courts to be recognised: the condition that the statutes of the organisation should cover environmental protection or whatever was relevant for the challenged decision; a requirement of activity in the area in question; geographical proximity; a certain number of years of registration and activity; a certain number of members; representation of a significant percentage of the population or the existence of support from the public; openness and democratic structure; and non-profit activity.

494. The findings of the above studies were confirmed by a broader comparative survey conducted by the Court for the purposes of the present proceedings (see paragraphs 232-234 above). This survey found that there was a nearly universal ratification of the Aarhus Convention by Council of Europe member States and that associations – meeting certain criteria noted in paragraph 233 above – were generally granted standing to bring court cases in the interests of the protection of the environment and/or in the interests of private individuals who may be affected by specific environmental hazards or industrial projects. While the standing of associations in the context of climate-change litigation – which is not covered by the Aarhus Convention – was still a developing issue, it would appear that in most member States there may at least be a theoretical possibility for environmental associations to bring a climate-change case, and in some States the criteria for such standing have already been established either in domestic legislation or in the domestic courts’ case-law (see paragraph 234 above).”

The ECtHR then set out “some key principles which must guide its decision in that respect” ([495]ff) including at [501]:

“501. In this connection, when devising the test for the standing of associations in climate-change litigation under the Convention, the Court finds it pertinent to have regard to the Aarhus Convention, the importance of which has already been noted in its case-law (see Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox v. France (dec.), no. 75218/01, 28 March 2006). The Court must, however, be mindful of the difference between the basic nature and purpose of the Aarhus Convention, which is designed to enhance public participation in environmental matters, and that of the Convention, which is designed to protect individuals’ human rights. It must also bear in mind the specific features of climate-change litigation (see paragraphs 410-422 above) and the difference between climate change and the more linear and localised (traditional) environmental issues which the Aarhus Convention is designed to address. Moreover, in so far as the Aarhus Convention provides for a very broad standing of associations where the existence of an effect on the “public concerned” is assumed to exist (provided that the association is duly established under domestic law), the Court must be mindful of the fact that its own approach cannot result in an acceptance of actio popularis which, as a matter of principle and established case-law, is not provided for in the Convention system.”

This is an important paragraph in terms of the limits of the influence of the Aarhus Convention on the ECHR.

The Court went on to find that the association thus had standing ([526]).

Some other mentions of the Aarhus Convention in the judgment include the following:

(1) In setting out the relevant principles applicable to environmental case sunder Article 8 of the ECHR ([539]):

“(d) The public must have access to the conclusions of the relevant studies, allowing them to assess the risk to which they are exposed (see Tătar, cited above, § 113, with further references). Moreover, in some instances, relying on the Aarhus Convention, the Court has noted the obligation that in the event of any imminent threat to human health or the environment, whether caused by human activities or owing to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and which is held by a public authority be disseminated immediately and without delay to members of the public who may be affected (see Di Sarno and Others, cited above, § 107).”

(2) On Article 6 of the ECHR:

“581. The applicants also submitted that the domestic courts had applied the standing requirements disproportionately, given their duty to consider the nature of the rights at stake, and the fact that on the basis of their interpretation of the standing requirements, acts and failures by the State in fighting climate change would remain entirely outside the scope of human rights law. This would be an unacceptable consequence in the light of the magnitude of the threat posed by climate change and the practice in comparable environmental-law cases. Moreover, the domestic courts’ arbitrary application of the standing requirements was inconsistent with the respondent State’s commitments under the Aarhus Convention …

602. It is also clear that associations can rely on Article 6 in disputes concerning their own “civil” rights (see Association Burestop 55 and Others, cited above, § 55). In the context of environmental litigation, the Court has remarked that on a strict reading, Article 6 would not be applicable to proceedings aimed at environmental protection as a public-interest value as there would not be a dispute over a civil right which the association itself could claim. However, relying on the case-law in Gorraiz Lizarraga and Others (cited above), the Court considered that such an approach would be at variance with the realities of today’s civil society, where associations play an important role, inter alia by defending specific causes before the domestic authorities or courts, particularly in the environmental-protection sphere (see Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox, cited above). In this connection, the Court has also relied on the principles flowing from the Aarhus Convention (see Association Burestop 55 and Others, cited above, § 54; see also paragraph 491 above).”

Then finally turning to the fascinating separate judgment of Judge Eicke:

“47. There is one further aspect of the issue of “victim” status/standing of associations, alluded to in § 503, which is worth noting. The majority there recognises that there exist in numerous Contracting Parties “existing limitations regarding the standing before the domestic courts of associations”. This, of course, potentially raises difficulties in relation to the requirement (under Article 35 § 1 of the Convention) that “the Court may only deal with the matter after all domestic remedies have been exhausted”, an essential component of the principle of subsidiarity. How is the Court to deal with an application brought before it by an association against a Contracting Party whose domestic procedural law does not provide for standing to be accorded to associations (generally or, at least, outside the very clear and narrow confines of the Aarhus Convention)?

48. The traditional answer would, of course, be that, unless there are domestic remedies which are available in theory and in practice at the relevant time and which the applicant (association) can directly institute themselves, an application can be made directly to the Court which would then, effectively, act as a first instance court. However, the majority seeks to answer this question by stating that “the Court may also, in the interests of the proper administration of justice, take into account whether, and to what extent, its individual members or other affected individuals may have enjoyed access to a court in the same or related domestic proceedings” (§ 503, emphasis added). The weakness of this “may” is clearly demonstrated by the facts of this case. After all, not only is the applicant association granted standing despite the fact that neither it nor its “individual members or other affected individuals” had effective access to court before applying to the Court; in fact, the very absence of access to court for the individual applicants in this case is used as the final justification for granting” it standing “in the interests of the proper administration of justice” (§ 523).

49. Furthermore, even if this criterion were to be taken “into account” in future cases it will remain to be seen whether (and, if so, how) the Court is going to determine whether the exhaustion requirement has been fulfilled by reference to possible domestic litigation brought by “other affected individuals” over which litigation, by definition, the association will not have had any control or influence (for an example of the inverse situation in this context see Kósa v. Hungary (Dec.), no. 53461/15, §§ 59-63, 21 November 2017). After all, the Grand Chamber has only recently had cause to reaffirm that “[i]n order to be able to lodge an application in accordance with Article 34 of the Convention, an individual must be able to show that he or she was directly affected by the measure complained of; this is indispensable for putting the protection mechanism of the Convention into motion (...). Likewise, the Court can base its decision only on the facts complained of (...). Therefore, it is not sufficient that a violation of the Convention is ‘evident’ from the facts of the case or the applicant’s submissions. Rather, the applicant must complain that a certain act or omission entailed a violation of the rights set forth in the Convention or the Protocols thereto (...), in a manner which should not leave the Court to second-guess whether a certain complaint was raised or not (...)” (Grosam v. the Czech Republic [GC], no. 19750/13, § 90, 1 June 2023).

50. As a consequence, it seems to me that a very real question that arises is whether the approach adopted by the majority means that:

(a) Contracting Parties will ultimately feel the need, or even be required, to introduce rules to permit such standing under domestic law, whether as a matter of strict legal obligation (under Articles 2, 8 and/or 13) or “just” in order to ensure that their national courts can consider the Convention complaint before it is brought before and considered by the Court (in application of the principle of subsidiarity); or

(b) where no such standing for an association is provided for in national law, the Court will, in fact, find itself having to consider these applications as a court of first instance and without the benefit of any prior consideration by the national courts. While this is clearly a role which this Court is not designed and is generally ill equipped to fulfil, this would be even more challenging when confronted with the inevitably detailed and complex evidence seeking to establish whether or not the respondent State has “adopted, and effectively applied in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change”, as envisaged by the majority.

51. This dilemma, of course, assumes a yet further relevance – especially in relation to the question of “adoption” of regulations and measures – for those 27 Contracting Parties to the Convention who are also member states of the European Union (“EU”) and, in case of the planned accession by the EU to the Convention, the EU itself. After all,

(a) as the EU Commission stated in their intervention in the case of Duarte Agostinho and Others, “the EU sets Union-wide binding targets for climate and energy that all Member States have to comply with and achieve through national implementation”, under the umbrella of, inter alia, Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action and/or Regulation (EU) 2021/1119 establishing the framework for achieving climate neutrality (“European Climate Law”) as well as a broad range of individual (general and sectoral) legislative acts;14 and

(b) as the judgment records in §§ 215–220, as the law stands it appears that individuals and associations only have very limited standing before the Court of Justice of the European Union (“CJEU”) under Article 263 TFEU.”

No doubt further analysis will follow in future blogs … Also coming soon some other recent(ish) developments on standing and the Aarhus Convention.

This blog post was written by James Maurici KC.

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.