The long battle of environmental lawyers for better public scrutiny of EU acts: where do we stand?

green forest near mountain range under clear sky

On 12 July 2021, the European Parliament (the “EP“) and the Council reached an informal agreement on the revision of the Aarhus Regulation to ensure that EU administrative acts are in line with EU green goals. It expands the list of subjects who can challenge EU acts to include members of the public and broadens the scope of the review of EU decisions to include also administrative acts requiring implementing measures at the national level.

The informal agreement is the latest step in a long process to ensure that the EU’s rules on legal standing do not infringe its obligations under the 1998 Aarhus Convention (the “Convention”). The Parties (to the Convention) will, in October 2021, decide about the compliance of the EU’s approach with the Convention.

The Aarhus Regulation and the criticism about legal standing at EU level

The Aarhus Regulation requires the European institutions to implement the obligations contained in the Convention, to which the EU as well as its 27 Member States are Parties. It addresses the “three pillars” of the Convention: (i) access to environmental information, (ii) public participation and (iii) access to justice in environmental matters.

In March 2017, the UNECE Aarhus Convention Compliance Committee (the “ACCC”), due to a compliant by the NGO ClientEarth, published a report finding that, both in its Aarhus Regulation and in the CJEU’s case law, the EU failed to secure access to justice in environmental matters as provided for by the Convention (under Article 9(3) and (4)). The ACCC’s report considered that: (i) the Aarhus Regulation should also encompass general acts and not only acts of individual scope (which was identified as the main limitation for NGOs seeking to challenge administrative acts at EU level); (ii) every administrative act that is simply “relating to the environment“ should be challengeable, not only acts that fall “under environmental law“; (iii) the administrative review mechanism should be opened up beyond NGOs to other members of the public; and (iv) acts that do not have legally binding and external effects should also be open to review.

In addition, the report found that there was scope for improvements as regards the timeframes for administrative review set out in the Aarhus Regulation.

Moreover, with regard to members of the public’s access to court, the ACCC highlighted the CJEU’s very strict approach to their legal standing. In particular, the report criticised the Court’s approach regarding Article 263(4) TFEU, second and third limbs, introduced with the Lisbon Treaty, providing for the possibility of natural or legal persons (i.e. the so-called “non-privileged applicants”) to challenge an act “which is of direct and individual concern to them” or “a regulatory act which is of direct concern to them and does not entail implementing measures”.

The restrictive interpretation of direct and individual concern by the CJEU’s jurisprudence based on the so-called “Plaumann doctrine” (Case 25/62) is indeed quite severe to comply with Article 9(3) of the Convention and effectively prevents individuals and NGOs from accessing the Court and challenging acts of EU institutions that violate environmental law. Similarly, the third limb of Article 263(4) TFEU contravenes Article 9(3) of the Convention because: (i) the interpretation of “regulatory acts” given by the CJEU in the Inuit case (as act “of general application other than legislative acts”) is quite narrow in scope, (ii) pursuant to the CJEU’s Microban judgment (Case T-262/10), a NGO promoting environmental protection would not be directly concerned with a contested measure unless the measure in question directly affected the organisation’s legal position, and (iii) the requirement, under Microban, that an act within the scope of the third limb of Article 236(4) TFEU must leave no discretion to its addressee, excludes from the CJEU’s review certain acts that would otherwise be susceptible of administrative or judicial review under Article 9(3) of the Convention.

The review of the Aarhus Regulation and the Commission’s proposal

In order to improve access to justice in environmental matters, on 14 October 2020, the European Commission has adopted a legislative proposal amending the Aarhus Regulation. The proposed changes aim to ensure that a formal examination of the Aarhus Regulation by the Meeting of the Parties (the Convention’s governing body) in October 2021 will not hold the EU in violation of its obligations under international law.

The Commission’s proposal, which addressed only some of the criticisms of the ACCC (thus not following some of the recommendations contained in the ACCC’s report), is now with EP and Council. For its part, the Council has made few changes to the proposal, notably introducing a recital clarifying the notion of “legally binding act” and clarifying that provisions of an administrative act for which EU law explicitly requires implementing measures at Union or national level cannot be object of a request for internal review. On this proposal, the ACCC issued an advice communicated on 12 February 2021, still highlighting some concerns that have not been addressed and, thus, recommending to:

  • ensure access to review procedures not only to NGOs, but also to other members of the public, even if subject to certain criteria in accordance with the Convention;
  • amend the proposed exception from the scope of review of provisions of an act for which EU law explicitly requires implementing measures at national level so that such provisions are immediately open to review at EU level;
  • modify the requirement that reviewable acts should have ”legally binding effects“. The ACCC considered that there is no legal basis in the Convention to limit the scope to acts with “binding“ legal effects and, thus, recommended to remove the word “binding” from the definition of an administrative act. The wording would then state “has legal and external effects“ only.

The first of those recommendations has been included in the legislative proposal by the Parliament in May. Subsequently, inter-institutional negotiations between Commission, EP and Council led, on 12 July 2021, to an informal agreement.

The proposed changes

The said informal agreement, which still needs to be formally approved by both EP and Council, provides for: (i) an easier access to review, (ii) more administrative acts being subject to review, and (iii) a widened scope of access to environmental justice.

1. Easier access to review

Beyond what the Commission’s proposal provided initially, groups of individuals consisting of at least 4000 citizens including at least 250 from each of five Member States, who have specific concerns about certain administrative acts’ compatibility with environmental law, will now also be able to request a review of administrative decisions for their conformity with environmental law.

In addition, to limit the cost of the review process so that NGOs and groups of individuals can benefit from more affordable access to justice, EU institutions will only request reimbursement for reasonable costs in such proceedings.

2. More administrative acts being subject to review

The possibility to request a review will not anymore be limited to administrative acts which specifically pursue environmental policy objectives, but will cover any act that contravenes EU environmental law irrespective of its policy objectives.

That said, State aid will remain outside the scope of the Aarhus Regulation. Nevertheless, the informal agreement foresees that the Commission will, by the end of 2022, publish an analysis of the implications of the ACCC’s findings on the need to provide citizens with access to administrative or judicial procedures and, if appropriate, come forward with measures to address the issues by the end of 2023.

The exclusion of State aid from the Aarhus Regulation does not seem to take into account the ACCC’s recommendation, on 17 May 2021, that the EU ensure that State aid decisions that may breach EU environmental law are subject to internal or judicial review. Such a recommendation was the consequence of a communication filed in 2015 by two Austrian NGOs, Global 2000 and Ökobüro, in reaction to the impossibility for NGOs to meet the CJEU’s admissibility standard to challenge the Commission’s decision authorising aid measures for the construction of the Hinkley Point C nuclear power plant.

3. A widened scope of access to environmental justice

The environmental review of administrative acts cannot anymore only be requested for acts of “individual scope”, but also for any non-legislative acts of “general scope”.

Some concerns survive

Following to the announcement of the informal agreement reached on the review of the Aarhus Regulation, some NGOs are still concerned that the EU may not yet be fully compliant with the Convention.

In particular, CAN Europe criticised the new review mechanism for individuals for being subject to a long list of criteria that members of the public other than NGOs will have to meet to demonstrate sufficient interest or impairment of a right. It also criticised the exemption of State aid from the scope of the Aarhus Regulation.

As pointed out by ClientEarth, the ACCC’s recommendation of 17 March 2021 requests the EU to align the Aarhus Regulation with the Convention by removing the exclusion of State aid decisions from Art. 2(2)(a) of such regulation. This would result in “the added recognition of the obligation on the Commission to verify, and state reasons for its assessment, compliance of activities with environmental law prior to authorising an aid measure. There is certainly room for the Commission to improve and systematise this assessment. If adequately performed, this assessment has the potential to bring a great benefit for the health of Europeans and the environment they live in.

%d bloggers like this: