META’s Q&As series about the Aarhus Convention aims to explain the role of the Convention in strengthening individuals and civil society’s contribution to the green transformation in the EU and beyond.
It is common practice at the Aarhus Meeting of the Parties (MOP) – which takes place every four years – that the findings and recommendations of the Aarhus Convention Compliance Committee are endorsed by all Parties. But what if one of the Parties decides to block the process, undermining its authority? The EU’s non-endorsement of the Compliance Committee’s findings related to Case 32 (C32) at the MOP-6 in Montenegro in 2017, was the very first case of non-endorsement since the establishment of the compliance mechanism in 2002, a decision motivated by the fact that the EU itself was the very subject of those findings. The EU’s move at the time resulted in the postponement of the decision on the findings to October 2021, when the MOP-7 will take place in Geneva, causing considerable damage to the EU’s credibility and reputation as well as to the function of the compliance mechanism under the Aarhus Convention.
The MoP established the Compliance Committee, by consensus, for the express purpose of reviewing compliance by Parties with the obligations under the Convention. In this context the EU’s non-compliance and the blocking of the endorsement marked a new low for the EU.
In this second part of our Aarhus Convention series, we look at the context of the EU’s non-endorsement in 2017, and at the implications of the EU’s readiness to disrespect, once again, international law with its controversial position towards compliance regarding the Case 128 (C128) at next month’s MOP.
What are C32 and C128?
Case 32 (ACCC/C/2008/32) is the number assigned to the complaint the non-governmental organisation Client Earth brought before the Compliance Committee in 2008. It raised concerns about the alignment of EU’s Aarhus Regulation with the Convention, because of the limitation it imposed on NGO’s and public’s access to justice at the EU level.
Case 128 (ACCC/C/2015/128) refers to the Compliance Committee case brought by the NGO Ökobüro, alleging the failure of the European Union to comply with the Convention regarding access to justice linked to state aid decisions, in particular for the approval of state aid for a nuclear power plant project.
In what way did the EU’s rejection of the findings during MOP-6 damage its international credentials?
Firstly, the EU was found in non-compliance with an international agreement it was an important part of. Secondly, the EU placed itself above the rule of law by refusing to endorse the Committee’s findings and recommendations at the MOP-6, hence avoiding accountability for its institutions. Ultimately, not a single Party or stakeholder supported the EU’s aggressive position, who was seen as undermining the tradition of unanimous support of the findings of the Compliance Committee. The latter is made of persons of high moral character and recognised competence in the fields to which the Convention relates, elected by the MOP.
What were the next steps for the EU?
Even though the EU refused to endorse the findings against itself, it managed to save face ahead of the MOP-7 by revising the legislation under the Aarhus Regulation anyway according to the recommendations of the Compliance Committee, making the previously non-compliant EU look compliant at the upcoming MOP. The revision, however, did not address the findings of the Aarhus Convention Compliance Committee in case C-128 regarding access to justice in relation to state-aid decisions taken by the Commission.
What is the EU proposing to do this year at MOP-7?
The European Commission (EC) drafted a proposal, to be voted on by the Council of Ministers, for the EU position at the MOP-7. The EC proposal is to set conditions on the endorsement of case C32, postponed already in 2017 as well as to postpone the decision on the endorsement of the C128 for another four years, until MOP-8. The EC’s motivation for this move is to buy itself time, and prevent a record confirming the status quo – the EU institutions’ violation of international law.
Yes! Any condition the EC proposes to the endorsement of Case C32 is irrelevant and disrespects the success achieved by the EU’s co-legislators through the revision of the Aarhus Regulation, which accurately addressed the findings related to C32.
In what way does the EU endangers its international credentials?
When the EU became a Party to the Aarhus convention in 2005 the implication was that the former ensures the implementation of the Convention in all the EU member states and at the level of the EU institutions respectively. The EU would set a dangerous precedent, if for the second time in a row, it were the only Party to the Convention unwilling to endorse findings against itself. If the EU insists on a postponement, other Parties may be equally inclined to seek to postpone the decision-making on findings about them. This might create an undignified new practice of playing delay tactics and promoting a lack of accountability.
What should the EU do at MOP-7?
As the EEB demanded in a joint letter with partner NGOs, the Council of Ministers of the EU should endorse the C128 findings and reject the Commission’s proposal in its current form, demanding that any conditions attached to the endorsement of C32 are deleted. The EU should set an example and own up to its own mistakes over respect for an international agreement. It should also commit to a real follow-up on C128 because, as a main advocate for democracy, the EU needs to set an example in the wider region and indeed the whole world.
As the EU plays a game of delay tactics and sets the precedent of preventing greater public accountability when it comes to the EU institutions, the nagging overarching question remains.
How could any Party be held accountable for the implementation of the Aarhus Convention when the EU itself avoids accountability?