EU Commission lays out options for the EU to comply with the Aarhus Convention : light at the end of the tunnel?

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In 2017, the UN Aarhus Convention Compliance Committee found the EU in violation of the Aarhus Convention for not allowing members of the public to challenge decisions of EU institutions before the EU courts.

The EU refused to endorse the findings of the Committee at the Meeting of the Parties (MoP) of the Convention in 2017. This decision led to strong opposition from certain non-EU states, NGOs and other institutional actors wanting to ensure the survival of the Convention, of the Committee and prevent this position from encouraging other parties to challenge decisions of the Committee when found in breach. Back in Brussels, the Council of the EU had a wake-up call about the need to ensure the EU continues to lead on upholding the rule of law and democratic values. It requested the Commission to carry out a study to explore ways to comply with the Convention and the findings of the Committee and, in view of the conclusion of the study, to table a legislative proposal to revise the Aarhus Regulation.

Last October, the Commission submitted its study to the Council, which has been carried out by consultants, as well as a Commission report on the matter.
It should first be noted that this process has been and continues to be too lengthy. It is now 10 years since ClientEarth made the communication to the Aarhus Committee and still no measure has been adopted by EU institutions to remedy the situation to allow NGOs and citizens to have access to the EU courts. Meanwhile the state of the environment keeps on deteriorating.

That being said, we welcome the adoption of both the study and the report. For the first time the European Commission acknowledges and recognises that NGOs face difficulties in having access to the EU courts. It states clearly that NGOs have never been able to fulfil the criteria imposed by Article 263(4) TFEU, as interpreted by the court, to challenge decisions of EU institutions. It acknowledges that there are hurdles to relying on the procedure that allows national courts to put questions to the Court of Justice of the EU on the validity of EU acts; both because of the lack of standing for NGOs and individuals in certain jurisdictions and the refusal by some courts to refer questions to the CJEU.

Finally, the report stresses the existence of significant constraints on the use of the internal review requests addressed to EU institutions under the Aarhus Regulation (Regulation 1367/2006) and acknowledges the existence of certain inconsistencies between the regulation and the Aarhus Convention.

Already that is an achievement in itself. Hopefully, this means that the basis of the discussion with the Commission on how to tackle the situation has evolved. It seems we now agree on the finding that deficiencies in the system need to be addressed.
The study carried out by the consultancy Milieu goes further in confirming the inconsistencies between the Aarhus Regulation and the Aarhus Convention identified in the findings of the Aarhus Committee, in particular that the three existing redress mechanisms that exist at EU level present deficiencies. Concerning the Aarhus Regulation in particular, the study concludes that the definition of the acts that can be challenged (throughout an internal review request and then indirectly before the Court) is too restrictive and has led to the majority of requests being considered as inadmissible by the Commission. The main obstacle being the criterion that the contested act must be of “individual scope”, a criterion that is nowhere to be found in the Convention.

The study proposes five options. The first one, “the option zero”, consists in maintaining the status quo. The second, “option A”, consists in adopting non-legislative measures only i.e. guidance on how to deal with administrative requests addressed by NGOs to EU institutions and on the judicial review of the replies of the institution to the administrative requests. “Option B” proposes to adopt legislative measures only aiming at revising the reference to the “individual scope” and “environmental law” criteria in the definition of acts that can be challenged under the Aarhus Regulation. It also includes the extension of the time limits for NGOs to make the internal review requests and for the EU institution to reply to such requests. Finally, it also proposes to adopt an access to justice directive. The study then proposes combinations of these options. Option AB1 combines the Guidance under Option A with an amendment to the Aarhus Regulation. Option AB2 adds to AB1 a proposal for a new Access to Justice Directive but without the guidance on how to rely on the procedure of the preliminary rulings from national courts.

The study is clear on the fact that the only option that would address the current deficiencies is the legislative one which consists in amending the Aarhus Regulation. That is indeed the only option that would remove the barriers to accessing the Courts in the Aarhus Regulation.

The Council has started to discuss the findings of the study and the way forward, including whether to require the Commission to revise the regulation. We will have to wait for the new Commission to be officially in place to know the option it chooses. Its decision on this file will also reveal the reality of the political willingness of Von Den Leyen’s Commission to make the environment a priority.
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Florian Olivo