It is time for the EU to amend the Aarhus regulation to comply with international law

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This opinion piece was sent to the European Commission as ClientEarth’s answer to the public consultation on how to bring the EU into compliance with the access to justice provisions of the Aarhus Convention.

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Amendment of the Aarhus Regulation is the only means available for the EU legislature to bring the EU into compliance with its international law obligations.

On 17 March 2017, the Aarhus Convention Compliance Committee (ACCC) found the EU to be in violation of the Aarhus Convention for its failure to provide members of the public with access to the EU courts (CJEU). The findings of the ACCC are unequivocal: The EU fails to comply with the Convention and is recommended to amend the Aarhus Regulation (or adopt new legislation) in the absence of a change in jurisprudence of the CJEU.

The lack of agreement on the findings at the last Meeting of the Parties was due to the unprecedented clash provoked by the EU’s attempt to block endorsement of the ACCC’s decision. However, some of the other State parties were strongly opposed to the EU’s arguments. The decision was therefore postponed.

During the meeting, a number of states voiced concern that the EU was seeking to obtain a special status under the Treaty, a status that is justified neither legally nor politically. By now, the EU Member States have also realised the disastrous precedent set and that the EU cannot exempt itself from international law obligations, as demonstrated by the intent of the Council to make an official request based on Article 241 TFEU to the Commission asking them to adopt a legislative proposal. The European Parliament and the European Economic and Social Committee (EESC) have also called upon the Commission to comply with the findings of the ACCC and to revise the Aarhus Regulation. The Commission seems to be the only one hesitating as to the way to bring about compliance.

Rather than being “already complete” as stated in the Roadmap, the EU system of remedies suffers from considerable shortcomings. As recognised already in the first ACCC’s findings in 2011, the preliminary reference system under Article 267 TFEU does not meet the requirements of Article 9(3) of the Convention. Over the last few years, the CJEU has further consolidated its case law in claims brought by NGOs, thereby clarifying that members of the public have no standing under Article 263 TFEU to challenge acts and omissions of EU institutions that are not addressed directly to them. The Aarhus Regulation is the only remaining avenue for the public but it remains unduly restrictive in its current form.

Since the adoption of the Aarhus Regulation in 2006, members of the public have attempted to request the internal review of a range of acts of the EU institutions. However, to this day only 7 out of 35 requests were declared admissible. Almost all of these requests were denied on the basis of the requirement that an ‘administrative act’ must be of “individual scope”, “adopted under environmental law” and “have legally binding and external effects”. The Compliance Committee found that all of these requirements, as well as other aspects of the Regulation, fail to comply with the Convention.

The situation is therefore clear: (1) The EU is a party to the Aarhus Convention in its own right; it therefore constitutes an integral part of the EU legal order. (2) The EU is in non-compliance with the Convention and therefore violates international law and primary EU law. (3) Based on one of the fundamental principles of the international legal order (Article 27 of the Vienna Convention of the Law of Treaties), the EU cannot avoid performing its obligations by invoking its internal law. (4) The only option open to the Commission to remedy this violation of international law is to propose an amendment of the Aarhus Regulation.

There is no need to conduct a further assessment of “how access to justice works”. For over ten years, the Commission has been presented with legal analyses, an abundance of specific case examples and statistics on access to justice. Nonetheless, the Commission has delayed remedying this issue, even contrary to calls by international bodies and its fellow institutions. The time for studies is over – it is time to amend the Regulation.

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