On 6 March, the European Commission published a Roadmap proposing an amendment of the Aarhus Regulation. This great step follows a ClientEarth case before the Aarhus Convention Compliance Committee and 11 years of campaigning. If not delayed by the current crisis, the Commission will likely submit its proposal to the Council and Parliament by September. This is a first step to obtain access to justice at EU level and a moment to celebrate, although the devil will be in the details.
The Commission services conducted a 4 weeks consultation on the Roadmap, which concluded on Friday (3 April). The consultation provoked substantial interest, with 175 responses received. This amount of input shows that another public consultation would be fruitful. It should take place once the amendment proposal is published, as is currently being done for the European Climate Law.
While the amendment is still to be prepared by the Commission, the Roadmap already gives some first indications as to the content of the amendment. It makes clear that internal review shall become available for more acts of the institutions. In particular, not only acts of individual scope but, more broadly, non-legislative regulatory acts shall be covered. This would mean in particular delegated and implementing acts of the Commission, whether or not they apply to more than one addressee. Moreover, the amendment is supposed to clarify the meaning of the current requirement that acts be “under environmental law”, which has led to some confusion in the past.
Other crucial aspects for such an amendment are not explicitly mentioned in the Roadmap, such as that state aid decisions should be susceptible to internal review, that costs may not be prohibitive for applicants and that the court must be able to review the full substantive and procedural legality of the decision. There are moreover concerns that the Commission will try to introduce a new restriction, only permitting internal review for those acts that “do not entail implementing measures”. For more details, see ClientEarth’s response to the public consultation.
This proposal can have a transformative impact in the EU by allowing civil society to have a real possibility to participate and monitor the delivery of the Green Deal. Proposals such as the mentioned Climate Law, which gives the Commission substantial powers and responsibility to ensure that the Green Deal delivers, demonstrate the need to make the EU institutions, agencies and bodies accountable for violations of environmental law. We will be watching the next steps towards that goal.