A broad access
The access to justice as provided for by the Aarhus Convention aims firstly at making legal action possible in case of failings regarding access to environmental information (1st pillar of the Convention) or participation in the decision making process (2nd pillar of the Convention).
So, access to environmental information is guaranteed, among others, by the provision that if individuals, associations or companies consider that a request they made for information on environmental issues from an administrative body has been ignored, wrongly rejected or dealt with insufficiently or has not been treated correctly, they must be granted access to an appeal procedure.
In the same way, participation in environmental decisions is guaranteed by the fact that if individuals, associations or companies think their right to participate in environmental decisions has been ignored, they must be able to make an appeal. In this case, however, that party must prove it has sufficient interest to justify action or assert an impairment of a right, two concepts that may be implemented in different ways in national law.
Further on, the Convention provides for a broad access to justice in all cases of violation of environmental law. If individuals or associations think that a legal provision regarding environment has been violated by public authorities or private persons, they equally have the right to take the matter to court. However, here too that party must prove it has sufficient interest to justify action.
A special status for associations for the protection of the environment
Associations for the protection of the environment enjoy a special status regarding their ability to take legal action in case of violations of environmental law. This specific status has been confirmed for the first time by the Belgian Supreme Court in its arrest of 11 June 2013. In this arrest, the Court stated that when legal action is taken by a legal entity which, according to its statutory provisions, aims at protecting the environment and at denouncing the actions or the negligence of private persons or public bodies that can be considered as in violation of international environmental law provisions, the admissibility condition regarding the interest to justify legal action is fulfilled by that legal entity.
This arrest gives immediate effect to article 9.3. of the Aarhus Convention and explicitly allows associations for the protection of the environment to take actions of collective interest. This right for associations to take actions of collective interest has been codified by the federal parliament through the Law of 21 December 2018. It has modified the legal procedure law by setting out the conditions under which an action of collective interest can be taken:
- 1° the social aim of the legal entity is specific, and different from the pursuit of general interest;
- 2° the legal entity has been pursuing this social aim continuously and effectively;
- 3° the legal entity takes legal action under this social aim, to defend an interest in relation with this social aim;
- 4° the legal entity only serves a collective interest through this action.
The Convention wished to confirm the important part played by associations for the protection of the environment by granting them a special status. Countries have been asked to ensure they receive adequate support and recognition. In particular, these associations should be able to take legal action without impediment in order to denounce irregularities or offences in environmental matters.
However, the Convention allows countries to define criteria for the admissibility of cases brought to justice by the associations. So, Belgium requires that associations continuously and effectively pursue a social aim. This social aim must be more specific than 'the general interest' and the case brought to court must be in relation with this social aim.
Satisfactory, swift and financially accessible appeals
The general public should be aware of the various ways of making an appeal, whether to an administrative body (Council of State) or to a judicial authority (courts). The appeals should also be effective, swift, equitable and, finally, free or inexpensive. Still, the party that takes legal action must prove it has a 'sufficient interest to justify action'. See “Ways of making appeals”
Regarding this last aspect, the Convention requires countries to set up mechanisms for legal aid to remove barriers of any kind, especially financial, to access to justice. See “Legal aid”