UN Legal Tribunal issues sharp rebuke to EU for its repeated failure to comply with its treaty obligations concerning environmental democracy – illegalities with respect to the implementation of the EU renewable programme and inadequate access to justice.
The growing chorus about the EU’s democratic deficit is being fuelled by the manner in which its renewable programme is being implemented. Diktat from above based solely on politically agreed targets with no supporting analysis, while those who justifiably question the validity of these projects, given their huge costs and environmental impact, are just swept aside. This certainly isn’t how a modern democracy should behave. However, few realise the degree of fundamental illegality which is occurring, as the EU is consistently acting not only outside its own legal structures, but also its obligations in International Law.
The UN has five regional commissions, the Economic Commission for Europe (UNECE) being based in Geneva and including 56 countries in North America, Europa and Central Asia. Forty six countries and the EU have ratified its Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The Convention is an integral part of the EU’s legal framework, as the EU itself has confirmed to UNECE referencing the applicable case law of the Court of Justice of the European Union (CJEU):
- “Such agreements take precedence over legal acts adopted under the EC Treaty (secondary Community law). So if there was a conflict between a Directive and a Convention, such as the Aarhus Convention, all Community or Member State administrative or judicial bodies would have to apply the provision of the Convention and derogate from the secondary law provision”.[1]
The Convention has a compliance mechanism, which will review cases brought forward by the public. The Compliance Committee[2] is composed of internationally renowned environmental lawyers, who if their investigations demonstrate that a Party to the Convention has failed to comply with its obligations, will present their findings and recommendations to the subsequent Meeting of the Parties. This is the treaty convention held every three and a half years. Issues of compliance are reviewed and up until the last meeting in 2017, the findings of the Compliance Committee were adopted by consensus. These then become Decisions of Non-compliance in International Law, which in the case of the EU is automatically a breach of its legal framework.
In 2010 a compliance case was initiated against the EU with respect to the manner in which the 20% renewable energy by 2020 Directive was being implemented in Ireland. In July 2014 at the subsequent Meeting of the Parties the findings of the Compliance Committee were subsequently endorsed and became Decision V/9g of Non-compliance by EU. In essence the Directive was legally flawed in that at Member State level, the National Renewable Energy Action Plans (NREAPs) had been rushed through in 2010 bypassing the legal requirements for public participation. Effectively all Member States and not just Ireland, had failed to provide the public with the necessary information and an opportunity to participate in the decision-making when all options were open, including the zero option.
In International Law enforcement is by applying diplomatic pressure, which the Compliance Committee continued to do in the period between the 2014 Meeting of the Parties and the subsequent meeting in September 2017. However, the EU Commission refused to make any progress in relation to these compliance proceedings, for example steadfastly refusing to reply to UNECE’s request as to what enforcement proceedings it was going to take against Member States, which did not adopt their NREAPs in a legally compliant manner.
One might well ask as to why a member of the public did not take legal action against the Commission? However despite a number of attempts by NGOs to bring the EU to account in environmental cases at the CJEU, the judges there have ruled that citizens have no access to the Court, the cases being rejected even before their substance was heard. This led in early 2017 to findings by the Compliance Committee in that the EU was failing to provide its citizens with access to justice in environmental matters, which was ‘fair, equitable, timely and not prohibitively expensive’.
What happened next was unprecedented, in that the EU Commission, which is the sole representative of the EU Member States in International affairs, adopted a draft EU Council Decision to entirely reject the endorsement of these findings at the subsequent UNECE Meeting of the Parties. Note: Such draft Council Decisions can only be altered by unanimous voting of all Member States. To the anger of the other Parties, particularly Norway and Switzerland, the EU then used its 28 votes at the September 2017 Meeting of the Parties to prevent the findings against it in relation to access to justice being endorsed. As a result this decision had to be postponed to the next Meeting of the Parties in 2021.
However, the Compliance Committee continues with the UNECE proceedings against the EU and on the 26th February 2019 published its progress review, which is available on the UNECE website.[3] This was not only highly critical of the EU’s lack of anything resembling meaningful progress in relation to access to justice and the 2020 renewable energy Directive, but also found the EU’s new Regulation on the Governance of the Energy Union and Climate Action[4] to be legally flawed. This legislation for renewable energy post 2020 was like the previous 2020 Directive legally non-compliant, as it failed to provide for public participation in decision-making, as neither the necessary information had been provided to the public nor an opportunity to participate when all options are open.
John Adams a US founding father and second president was renowned for stating that the “state is based on the rule of law and not the rule of man”. In the EU officials at the highest level, supported by its Member States, pursue their own objectives outside of the legal framework, continuing to obfuscate and obstruct compliance proceedings in International Law against them, while steadfastly refusing to provide citizens with provisions for access to justice to challenge these acts and omissions in the CJEU.
Currently
eight Member States and the Netherlands in particular, have fallen well behind
their trajectories to meet their 2020 renewable targets. Threats of fines
initiated by the EU Commission are just that. Why should citizens be forced to
pay for a dysfunctional programme, when their rights to participate in its
decision making were so ruthlessly abused? Why should they stand by, when even
more State Aid and soft loans from the European Investment Bank, the Commission’s
bank, are arbitrarily dispensed to EU officials’ favourites in the renewable
sector? The only certainty is that these UNECE proceedings will eventually lead
to litigation against the Commission, as increasing dissatisfaction with this
renewable programme and awareness of its illegalities grows.
[1] See information submitted on 21-11-2007:
https://www.unece.org/env/pp/compliance/Compliancecommittee/17TableEC.html
[2] https://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/aarhuscc-members.html
[3] https://www.unece.org/fileadmin/DAM/env/pp/compliance/Requests_from_the_MOP/ACCC-M-2017-3_European_Union/Correspondence_with_the_Party_concerned/First_progress_review_on_M3_EU_adopted_22.02.2019.pdf
[4] https://ec.europa.eu/energy/en/topics/energy-strategy-and-energy-union/governance-energy-union