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Aarhus Convention Meeting of Parties refuses to adopt EU position and defers decision to 2021

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Decision 2017/1346 on the position to be adopted on behalf of the EU, at the sixth session of the Meeting of the Parties to the Aarhus Convention as regards compliance case ACCC/C/2008/32. OJ 2017, L 186 p.15

Following the Aarhus Convention Compliance Committee’s findings that the EU is in breach of the access to justice provisions of the Aarhus Convention, the EU Council adopted a decision to merely “take note” of the findings, rather than endorse them, at the Meeting of the Parties in September 2017. At the MoP, the non-EU signatories did not support the EU position, and the decision on endorsement was deferred until the next MoP meeting in 2021.

Following ClientEarth’s communication, which argued that the EU did not comply with the requirements on access to justice of the Aarhus Convention, the Aarhus Convention Compliance Committee concluded in March 2017 that “the Party concerned [i.e. the EU] fails to comply with Article 9 paragraphs 3 and 4, of the Convention with regard to access to justice by members of the public, because neither the Aarhus Regulation [i.e. EU Regulation 1367/2006] nor the jurisprudence of the CJEU implement or comply with the obligations existing under those paragraphs”. This text was inserted in a draft decision (no.VI/8f) , which the sixth session of the Meeting of the Parties to the Aarhus Convention was to adopt in September 2017.

The European Commission submitted to the Council the proposal for a decision which rejected draft decision VI/8f altogether (COM(2017) 366). However, in its Decision 2017/1346, which was adopted unanimously by the Council (all 28 EU Member States), the Council stated: “In view of the separation of powers in the Union, the Council cannot give instructions or make recommendations to the Court of Justice of the EU (the ‘Court of Justice’) concerning its judicial activities. Therefore, the recommendation in draft Decision VI/8f related to the Court of Justice and its jurisprudence cannot be accepted”.

The Council suggested a number of amendments to draft Decision VI/8f which aimed at deleting all references to the Court of Justice, and made clear that it would vote against Decision VI/8f, should these amendments not be accepted.

This was the first time that a Party to the Aarhus Convention proposed to reject a draft Decision which is based on the findings of the Convention’s Compliance Committee. The wording suggested by the Council “takes note of” (the findings of the Compliances Committee), instead of “endorses” (such findings), which shows the Council’s intention to take no further action on the findings and leave them without legal or political consequences. This would have some considerable impact on other future or past findings of the Compliance Committee: any other Party may be able to claim in future that it only needs to take note of findings of the Compliance Committee, but is not committed to give any follow-up to such findings.

At the MoP in September, the non-EU signatories to the Convention refused to adopt the EU’s position. In the absence of consensus, the decision was postponed until the next meeting of the parties in 2021. We hope that by that time, the EU will have taken steps to come into compliance with the access to justice provisions of the Aarhus Convention.

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Jens Lelie