The question of whether the Aarhus Convention Compliance Committee (ACCC) has teeth can be answered in the positive.
Last April 2017, the ACCC found the EU in violation of the access to justice provisions of the Aarhus Convention for not providing access to the EU courts to members of the public. Following that decision, the Council has decided to take the lead to ensure the EU is brought into compliance with the international treaty. On July 18th, the Council has adopted a decision based on Article 241 TFEU to invite the European Commission to submit a study and « if appropriate » to revise the Regulation 1367/2006 which implements the provisions of the Convention at EU institutional level. This is the first time this procedure is used in environmental matters and it has been used only very rarely in any others.
The Council requests the Commission to submit, by 30 September 2019, a study on the Union’s options for addressing the findings of the Committee “to explore ways and means to comply with the Aarhus Convention in a way that is compatible with the fundamental principles of the Union legal order and with its system of judicial review”. It specifies that “the study shall cover the legal, financial and human resources implications of different options, including amending Regulation (EC) No 1367/2006.”
The study shall be submitted by 30 September 2020, together with, “if appropriate in view of the outcomes of the study, a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1367/2006, or otherwise to inform the Council on other measures required as a follow-up to the study”.
Despite this positive move, five member States, France, Italy, Spain, Luxembourg supported by Latvia, have adopted an official statement to regret the “lack of ambition of the decision”. According to them “the revision of the Aarhus Regulation no longer appears clearly as the objective of the decision but as one possible option among others” and the deadline set for the Commission to submit its revision proposal (September 2020) is too remote given that the next Meeting of the Parties will take place in 2021. We can only support these concerns and share their disappointment.
These Member States make clear and public that the Council’s decision is adopted because of the lack of necessary action taken by the Commission to bring EU law in line with the Convention. The statement states “In absence of concrete steps taken by the Commission to address this issue”, the Presidency tabled a proposal in January this year. Indeed, that proposal was more ambitious, requesting the Commission to submit a legislative proposal amending the Aarhus Regulation in order to bring it in full compliance with Articles 9(3) and (4) of the Aarhus Convention. However, after prolonged discussion, the Presidency decided to table another version which indeed does not guarantee that compliance will be brought about, at least not before the next MOP in 2021.
Notably, the decision refers to the two resolutions adopted by the European Parliament last November. One on an Action Plan for nature, people and the economy, and the other on the EU Environmental Implementation Review (EIR) which both call, inter alia, on the Commission to submit a new legislative proposal reviewing Regulation 1367/2006, in order to take account of the Committee recommendation. It could have also mentioned the report from the Economic and Social Committee, which made the same call, having the effect of further isolating the Commission with regard to its obstinate refusal to ensure that access to justice is provided at EU institutional level.
The entire scope of the revision of the Aarhus Regulation is not suggested by the decision. However, it gives a basis for it in stating that “It appears possible to amend Regulation (EC) No 1367/2006 in such a way that the Union’s system of judicial review would not be altered, in particular by widening the category of Union acts in respect of which internal review could be requested.” The definition of the acts and omissions that can be challenged through the administrative process provided by the Regulation would be the minimum basis for the revision, in particular the “individual scope” criteria applicable to these acts which breaches the Convention.
The ball is in the court of the Commission now. This whole process should be seized as an opportunity to address the concerns of EU citizens about the lack of legitimacy and accountability of EU institutions and to allow them to play their role in enforcing environmental legislation.