Setting up in Brussels
From the beginning, I knew that ClientEarth needed to be in Brussels. The EU countries go to Brussels to make the laws. If you want to influence them, you have to be there.
The first step is to get the text of the law right. Translating policy into law is within the lawyer’s art. This should perhaps be obvious. But lawyers were not helping the NGOs write laws. There was not one practising lawyer in any of the environmental NGOs in Brussels.
One of my early meetings in Brussels was with a Member of the European Parliament who was then Chair of the Environment Committee. When I explained what I wanted to do, he welcomed it. He said that when an environmental bill came up, he was lobbied by industry, who were represented by sophisticated lawyers. They arrived with a package of amendments for the bill and arguments about why they were good for the economy. The environmentalists, he said, do not have this kind of representation, and so the contest is very uneven. ‘And I,’ he added to my surprise, ‘also have no legal help. There are no lawyers on my staff, and I am not a lawyer. We need your help.’
There was clearly a need. How could I fund the office? Kristian Parker of the Oak Foundation played a key role. He was one of the earliest funders of ClientEarth. He saw the need for a Brussels office and would fund one position for two years. This should let us demonstrate our value and secure other funding.
There was a hurdle to get over before I got the funding though. The Oak Foundation put my proposal out to a peer reviewer. The response they got was that they should not consider funding ClientEarth. The reason? I was proposing something unsuitable. Americans are hyper-aggressive and sue everyone. Europeans on the other hand are much more polite. We talk our way through problems, the reasoning went, we don’t need this aggressive newcomer. Everything is fine as it is. Don’t encourage him.
I heard the same argument often in the early years of building ClientEarth.
The Oak Foundation gave me the chance to respond. I spent an intense week writing a 30 page paper arguing that legal expertise including litigation was needed in Europe. Scholars were arguing for it, because there was an enforcement gap, where good laws were passed and then forgotten. Enlightened activists and parliamentarians wanted the help we could provide. Moreover, as I pointed out, it was only civil society that was lulled into not defending their rights. Companies in Europe were just as aggressive about using the law as companies in the USA. Why keep citizens unprotected out of a naive sense of politesse? Ludwig Krämer, the leading expert on EU environmental law, added a supporting statement.
The Oak Foundation accepted my argument. I put out ads looking for a lawyer. I met a young French barrister called Anaïs Berthier. She worked in the Brussels office of the top French corporate environmental specialist firm. She was clearly talented and also dedicated. I was honest with her that I was looking for someone with more experience. ‘That’s all right,’ she said, ‘I am not going away. I will wait until you can hire me.’ This made an impression.
Some months later, Anaïs became my first employee in Brussels. So she wouldn’t be on her own, we rented a desk in the WWF Belgium office. She started in on access to information and access to justice issues.
Transparency and accountability are vital to democracy. If citizens do not have access to information, they cannot participate in decision making. If there is no way to challenge government actors when they violate the law, there is little incentive for them to comply with it.
I am a great fan of the European project, and ClientEarth is fully supportive of it. The standard of environmental laws is much higher across all European countries than it would be without the EU. Environmental protection is one of the best things that the EU does. But unfortunately, the European institutions often do not make themselves easy to love.
When it comes to transparency, the EU institutions like to say they are the most transparent in the world. There is a law requiring the release of documents to citizens upon request, with limited exceptions. When citizens request such documents, however, they are routinely denied. You may appeal the denial in an administrative process. This is difficult for citizens and NGOs to do, and so we often help them. Even when an appeal is made, the EU institutions routinely deny access to the key information that would let the citizen challenge their behaviour.
The one route to the European courts for citizens is to challenge the denial of your request for information. The European courts have granted citizens access to documents, though their recent trend, moving in the wrong direction, is to restrict access. Nevertheless, we are still winning cases, and continue to push the EU institutions to comply with their own law, and to live up to their rhetoric on transparency.1
What about access to justice? How easy is it for EU citizens to challenge the EU institutions when they violate their legal duties? The answer should be that it is easy and even welcome. Unfortunately, it is not the case with the EU. Though the foundational treaties of the EU grant the right of access to justice, the European courts have barred the doors to citizens, denying them standing.
In many legal systems, to have standing to sue, you need to show that you have an interest in the outcome. This is expressed in different ways, such as having an individual interest, or suffering an injury.
The courts of the European Union have worked hard to deny citizens standing. They have dipped into logic that would make sense only to medieval theologians. The test for standing in the treaty is that you must have a direct and individual concern. This should be read broadly so as to allow citizens to test actions of the EU for legality.
The way the EU courts interpret ‘individual concern’ is that it must be a unique concern. Consider what this means. If the EU is violating a law, say authorising more fishing than the law allows, it affects all EU citizens. Fish stocks will suffer. The harm affects more than one citizen. Pesticide laws, air pollution laws, biodiversity laws, these all affect more than one citizen.
No one has a unique interest in protection of the environment. The interest is always shared. So under the courts’ medieval logic, there can never be a citizen who has a right to come to court. No one will ever have a unique interest. The worse and more widespread the harm, the weaker your putative right becomes. It is a perfect way to deny citizens environmental justice.
One of our first actions at ClientEarth was to challenge this restriction on access to justice in the European courts. We raised the issue in the Aarhus Convention Compliance Commitee in 2008 (at the same time that we complained of the cost rules in the UK and standing in Germany).
Anaïs Berthier argued the case before the Committee in Geneva. Our challenge posed a constitutional problem for the EU. They had signed on to the Aarhus Convention, promising access to justice to EU citizens, but were not delivering it. And now they were before a body that had the power to judge the EU itself. This is a unique position for the EU, which is careful to insulate itself from anyone being in a position to correct it. If we won, would the EU allow itself to be corrected by the Committee?
The good news is that, eight years later, we finally got a good decision from the Committee.2 It found that neither EU legislation nor the jurisprudence of the European courts complies with the obligation to give citizens access to justice. The decision should move the EU to increase the accountability of its institutions, thereby empowering civil society and upholding democratic values. The question is whether the EU will follow the decision, or dig in its heels and ignore its obligations. Only time will tell.
Why have the European courts been so afraid of citizens? They let companies bring cases. The number of citizen environmental cases would be a fraction of the cases brought by companies about their economic interests. By denying access to citizens, in violation of the underlying law, the EU courts make it hard to love Europe, and that is a great shame.
So making the EU institutions improve is a key part of our work in Brussels. We intend to hold Europe to its ideals and its laws.
Another Brussels speciality is trade agreements. As I write, the EU and USA are engaged in a multiyear process of entering into a trade treaty. The devil, as always, is in the details. The proposed treaty, the Transatlantic Trade and Investment Partnership, or TTIP, includes a nasty provision that would allow US companies to attack those European environmental laws and decisions which breach special investor rights. This would be accomplished through secret hearings in a new trade tribunal where the ‘judges’ would be corporate lawyers.
Canada is even further ahead. The EU-Canada Comprehensive Economic and Trade Agreement (CETA) is currently awaiting ratification in Ottawa and in the capitals of Europe. This agreement contains a similar provision which would allow not only Canadian investors to sue, but also American companies that have Canadian subsidiaries. There is, in fact, a whole string of similar trade agreements with countries all over the world lined up in Brussels.
Would companies bring cases in the Star Chamber that these treaties create? There is no doubt. For example, a US company could argue that the EU’s toxic chemical regulations are more stringent than their US counterparts, and therefore constitute a ‘barrier to trade’. This kind of attack would reduce protections of health and environment down to the lowest common denominator. The result would be that companies bit by bit destroy the body of European laws to protect the environment and health that have been painstakingly crafted and agreed on for the last 40 years. This behind closed doors destruction of democratically created protections by private power against the public interest is one of the signal evils of globalisation. What can be done?
Here is where it is good to have lawyers on your side. Through the work of ClientEarth lawyer Laurens Ankersmit, we have been able to demonstrate that the EU has no power to enter into a treaty with such a provision, because it fundamentally undercuts the jurisdiction of the EU’s own courts to decide all matters of EU law.3
After we issued our opinion, the German Association of Judges, representing 16,000 judges and public prosecutors in Germany, and the European Association of Judges, composed of 44 national associations of judges, issued an opinion making the same argument. Over 100 law professors have also signed a letter with the same opinion.
The newest turn in the road is a positive one. The offending dispute resolution mechanism in the Canadian treaty is set to be judged by the European Court of Justice, the highest court in Europe. Its journey to the courthouse steps illustrates the power of legal strategy.
The journey starts with the fact that all EU countries must agree to any trade deal. Belgium in turn has six regional and linguistic community parliaments, which must approve any trade deal before Belgium can agree. So the region of Wallonia in Belgium has as much say in any trade treaty as Germany or France. After consulting with ClientEarth lawyers, Wallonia used this power. Its parliament passed a resolution objecting to the Canadian trade treaty, with their number one issue being the illegality of the dispute resolution mechanism.
Wallonia then used its veto power to bargain. It gave up its veto on condition that Belgium ask the European Court of Justice to rule on the legality of the mechanism. Belgium has standing to do so, and agreed. This review by the Court is what ClientEarth has been trying to achieve, and so the result in Wallonia is that the ClientEarth strategy has now reached its goal. ‘What we managed to get here is important not just for Wallonians,’ Wallonia’s Minister-President, Paul Magnette, declared, ‘but for all Europeans.’4 The Court will almost certainly rule the mechanism is illegal, since thousands of judges have already declared it so, and since the mechanism undermines the Court’s own jurisdiction. To preserve their own system and their own authority, the judges on the Court must strike the dispute resolution system down.
The Court’s ruling will also apply to the parallel provision in TTIP, the US trade treaty with the EU, which will follow the Canadian treaty.
Thus a legal strategy deployed by a single lawyer at ClientEarth may stop the destruction of 40 years’ worth of health and environment law built up by the EU.
When something is simply illegal, and is called out as such, it should be possible to beat it. We’ve done it before.
One of the few virtues of Brexit is that the UK has been a leading voice for TTIP and handing control to companies. France and Germany are less enthusiastic about letting globalisation rip away protections for their citizens. With the UK’s voice diminishing in EU decisions, there is a greater chance TTIP, or at least its worst provisions, may be defeated.
Speaking of Brexit, there is no avoiding the fact that voters in the UK have made a decision to leave the EU. While I recognise the faults of the EU, one of which is that it makes itself difficult to love, we work to help move the European institutions in the right direction. We spoke out publicly against Brexit, pointing out the dangers for the UK environment in leaving.
Brexit brings uncertainty, and it will take years of effort to sort it out. The main point for the environment is that, in leaving the EU, we will need to ensure the UK gives its environment the same standard of care it has been obliged to do. Under any leaving scenario, the UK will not be obliged to keep the nature protection laws that now apply across the entire continent. The UK is one relatively small country, and the problem we face is that it will consume more attention to merely ensure the level of protection for nature and human health that were already guaranteed.