Access to Justice in Environmental Matters in the EU Legal Order: The “Sectoral” Turn in Legislation and Its Pitfalls

Abstract

Access to justice in environmental matters is one of the three pillars of the Aarhus Convention , to which both the EU and its Member States are Parties. In the Convention, access to justice is subdivided into four limbs. Art. 9(3) contains the general obligation of access to review procedures for the public of acts and omissions of private persons and public authorities concerning national law relating to the environment. Art. 9(3) had to be transposed by the Parties to the Convention, taking the discretion left by the vague wording of the provision into account. At the EU level, unlike for art. 9(1) and (2), there is no formal transposition of art. 9(3) in a dedicated Directive, because of Member States' reluctance. The solution found by the Commission to remedy this lack of EU legislation on the matter was the publication of a soft law instrument in 2017. Since then, we have witnessed a shift in the approach used by the EU legislator, with access to justice provisions being incorporated directly into several pieces of "sectoral" legislation (Regulations and Directives), across various environmental areas. This Insight aims at retracing the history of art. 9(3) of the Aarhus Convention in the EU legal order and at analysing and evaluating the recent tendency of including access to justice rights in sectoral legislation.