Aarhus versus Plaumann, an Environmentally Toxic Relatonship
In recent months, the European Union has continued to focus much energy on its long standing dedication to environmental care in a number of ways including the very first EU Water Resilience Forum, the EU Blue Deal which chronologically speaking doesn’t appear to be fully on track as of yet and also via enhancements to its circular economy of plastics and industrial materials. Figureheads such as Commissioner Roswall who, as quoted by Open Access Government, is in charge of “protecting the natural environment and promoting a circular economy” has stated in an EU Commission Press Corner article that;
“Europe’s competitiveness and resilience depend on how efficiently we use our resources. With today’s measures, we are taking concrete steps to help the struggling plastics recycling sector in Europe and towards building a genuine Single Market for circular materials. This is about creating new opportunities for European industry, speeding up the transition to circularity, reducing our dependencies and ensuring our economy is fit for the future.”
Despite the enthusiastic tone in which the above statement was no doubt meant to be conveyed, an objective reader of this might find themselves troubled by the proximate positioning of words such as “competitiveness and resilience” with ideas of efficiency of resources and hints about European Industry becoming increasingly self sufficient, or should one read this instead as “more industrial” rather than “more environmentally beneficial”.
At least by my reasoning, one would presume that the most wholesome path to an environmentally sustainable future involves public participation, involvement with NGOs and a generous measure of social involvement at national and supranational level, in order to lay a concrete foundation upon which industry can evolve and revise its practices in order to better cater to the environment.
It seems as if the paradoxical aura of the Commission’s Directorate-General for Environment isn’t totally novel, either. What is quite possibly one of the foundational pieces of legislation as concerns the environment, namely the Aarhus Convention, surprisingly enough done at Aarhus in Denmark, on 25th June 1998 has had a long-standing thorn mounted in its side. Whilst the draftsmen wanted to open the floor to members of the public to bring decisions by the Commission that violate environmental law in front of the Court of Justice of the European Union (CJEU), it is first required to satisfy the Plaumann Test under Article 263 (4) of the Treaty on the Functioning of the European Union, which establishes when a litigant can legally intervene in an EU act by defining what “individual concern” actually is.
It certainly seems unusual to juxtapose Art. 9(3) of Aarhus which boasts of public participation with a long standing legal doctrine which centres around the need for an affected individual in isolation, when dealing with matters of environmental harm, which one would logically consider to magnify as the number of those affected increases. Dr. Lena Hornkohl, in a 2021 paper, summed this up as a “fallacy- a quite paradoxical outcome”.
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In Carvalho v European Parliament (T-330/18) [2019], a case which centred around ten families from mainland Europe and further afield taking the Commission to court, claiming that because the EU’s 2030 goals were ‘insufficient’ their human rights had been violated as the Commission was failing to avert the dangerous outcomes of climate change, the Plaumann template blocked off the claimants’ attempt at achieving justice simply because more than one individual was personally affected.
This seems absurd at first glance but it begs the question- what would the CJEU have decided had there been only one claimant alone? Would they have said that because the EU hadn’t straightforwardly decided to set more impressive targets when discussing how to tackle an issue that affects significantly more than ten families alone spread throughout umpteen countries around the globe, then these specific plaintiffs who decided to have the gall to speak up, should simply claim the just reward on behalf of all those who are affected by the changing climate?
We will never know the answer to that hypothetical conundrum but Plaumann truly is a double edged sword. There’s doubtless risk that if the legislature abolishes the Plaumann parameters, the right to legal recourse could easily be abused and even more importantly financial compensation could be mis-directed and diluted amongst flocks of claimants who happen to occupy a territory whose atmosphere is suffering. One might refer to this as ‘the floodgate argument’. Isn’t everyones’ air tarnished as it already is? Besides how can one truly decipher who is the ‘most affected’ in a region or within a community?
Could this not all be laid to rest by perhaps doing as Attorney General Jacobs recommended by amending the Plaumann test so that claimants must demonstrate a “substantial adverse affect”. This is a salient question and undoubtedly seems like the most sensible thing to do going forward. My logical mind can’t help but believe that a change of wording which precludes the ‘isolated individual’ requirement would prove too great a step forward for a Commission chasing the dream of a common market. Let us not forget that Roswall’s “genuine single market fit for the future” is key.
Mellifera eV v European Commission (T-12/17) [2018] although slightly in advance of Carvalho, was decided along parallel lines however it’s interesting to note that in this case the claimant was a German NGO. Nonetheless with the General Court having affirmed the previous decision of the CJEU in saying that the implementary regulation concerning the Glyphosphate approval was of general and not individual scope, a seemingly inevitable trade-off was made between the interests of an environmental NGO and the interests of common market actors who require Glyphosphate’s approval on the European Market. In other words, Mellifera weren’t in a vulnerable enough position to be granted legal standing however it does again rather seem as if the court used this narrow legal interpretation of locus standi, to essentially seal shut the door on NGOs going forward.
More pressingly, because the justices ruled that the European Commission’s refusal to oblige Mellifera’s request for an internal policy report regarding Glyphosphate’s legislation was justifiable so to do, this really does stymie the notion of Aarhus standing up for the legal right to access to information on environmental matters which affect society at large. One would perhaps imagine that the court could have given Mellifera a good faith offering on that front, so as to at least pay lip service to the notion of the legal accessibility of access to information by public bodies concerned with climate change.
Again this doesn’t seem to fully align with the values of the Aarhus convention and it’s notable that the judges refused to accept Mellifera’s proposal that the court should align its jurisprudence with the findings of the Aarhus Convention Compliance Committee as the court considered that it’s findings were a “mere project” established after the commencement of Glyphosphate’s implementing regulation.
The reasoning that ‘implementing regulation heals all’ seems to suggest that in the judges’ view, the European Commission is already perfectly capable of taking measures which are in the best interest of the environment without the helping hand of public bodies. It rather seems as if “public participation” stemming from the Convention is decidedly capped at individual participants bringing cases in isolation. This is frankly a long, arduous and not particularly frugal use of the Court’s time.
Whatever the case may be for the CJEU’s narrow interpretation of those who may participate in advocating for the environment, it is plainly noticeable that the Plaumann test is hardly in alignment with the core values of the Aarhus Convention, namely access to information, public participation in decision making and access to justice. One can be understanding about the ‘floodgate argument’ and the need to curtail the degree to which standing can be given to just anybody to bring a case before the Court in the name of public participation in decision making. Despite this, if the European Union wants to uphold the values which the signatories to Aarhus instigated some twenty or more years ago, then the Plaumann test could certainly do with a make-over and a new criterion of significant detriment would go a long way in smartening up the Union’s legal image when it comes to environmental matters in a social sense. Despite this it looks as if the Union has other priorities as of late and they have more to do with water rather than the mechanisms behind controlling what ends up in it. One can’t help but wonder if this could at least partially be in an effort to divert the stage from public participation and towards single-market Union-led limelight.
