You’ve probably heard of Article 50 but have you heard of Article 241?

If not, you might be forgiven as Article 241 (of the Treaty of the Functioning of the European Union – Ed.) is a rarely-used clause in EU law which allows EU countries to demand that the Commission comes up with new draft laws on a given topic. And that is exactly what happened on Monday.

EU governments called on the EU executive to addresses UN findings from last year which show the EU is in breach of the Aarhus Convention, an international convention on environmental rights.

All EU countries and the EU itself are party to the Aarhus Convention which was adopted in 1998 under the auspices of the United Nations Economic Commission for Europe.

Its aim is to guarantee the public and NGOs the right to information, participation and justice on environmental issues. Among other things, it should enable the public to have better access to European courts to challenge decisions that impact the environment.

But the European Commission initially sought to reject this finding of non-compliance before belatedly putting in place a lengthy process to explore options for resolving the problem.

Secretary General of the European Environmental Bureau, Jeremy Wates, said:

The fact that EU governments felt that they had no other option but to take the almost unprecedented step of invoking Article 241 of the Treaty shows the extent to which the Commission has gone out of its way to resist public accountability before the courts.

However, despite using the rarely-used clause, EU governments did not emphasise the urgency. Today’s Decision only gives a deadline of September 2020 to put forward new draft laws, meaning that the task will effectively carry over to the next Commission which will take office in 2019. The Decision also states that the Commission should only put forward new draft laws if deemed ‘appropriate’ following a study.

Jeremy Wates added:

It is widely recognised that the only effective way to resolve the problem is by amending the Aarhus Regulation. The Council Decision should have been clearer in insisting on that. Furthermore, the long-drawn out timeline proposed means that the EU is still likely to not be in compliance when the Convention’s governing body, the Meeting of the Parties, convenes in 2021.

This is clearly a lowest-common-denominator decision where some Member States have been influenced by the Commission’s foot-dragging approach. Nonetheless, the Decision is a significant step in the right direction and reflects the recognition that the EU’s credibility as a defender of the rule of law on the international stage has been severely damaged by its reluctance to address the access to justice deficit in the EU’s highest courts.