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The Aarhus Regulation Amendment: Cause for cautious celebration

On 14 October the European Commission published its long-awaited proposal to amend Regulation 1367/2006/EU, the so-called Aarhus Regulation. The stated intention of the proposal is to “improve the implementation of the Aarhus Convention” by revising the internal review mechanism “for the benefit of NGOs with regard to administrative acts and omissions of EU institutions and bodies”.

The good news is that the proposal undoubtedly removes the most prominent barrier that NGOs face in accessing the internal review mechanism: the criterion that only administrative acts of “individual scope” are reviewable. But this restriction has been replaced with a new one that threatens to be just as restrictive: a criterion that only acts that do not explicitly entail implementing measures can be challenged. Fortunately, it is within the powers of the European Parliament and the Council of the EU to address these deficiencies to ensure that the amendment indeed improves EU implementation of the Aarhus Convention, not only for the benefit of NGOs but for the good of the environment and public health!


Article 9(3) of the Aarhus Convention guarantees the right of environmental NGOs to challenge EU non-legislative measures that breach EU environmental law. This right is vital to ensuring that EU institutions implement and respect environmental laws and can be held accountable when they fail to do so. As the proposal itself points out, this is key to implementing the EU Green Deal and addressing the climate and biodiversity crises.

In 2006 the EU adopted the Aarhus Regulation to implement Article 9(3) AC. Since individuals and NGOs do not have direct access to the CJEU under Article 263 TFEU, the Aarhus Regulation created an “internal review” mechanism, allowing certain environmental NGOs to ask EU institutions to review their own decisions, with a right of appeal to the EU courts. The current internal review mechanism does not work because it is available for a very limited number of EU acts only (so far, certain chemicals and GMO decisions). In 2008 ClientEarth brought the matter before the Aarhus Convention Compliance Committee (ACCC), which, in 2017, found the EU to be in violation of the access to justice provisions in the Convention.

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. Back in Brussels, the Council of the EU requested the Commission to carry out a study to explore ways to comply with the Convention and the findings of the ACCC and, in view of the conclusion of the study, to table a legislative proposal to revise the Aarhus Regulation.

Last October the Commission published the study (carried out by consultants) and a report, concluding that the only option was to amend the Aarhus Regulation (see our analysis here).

The proposal

The proposal attempts to address the ACCC’s findings by providing a new definition of the EU acts that are subject to review:

‘administrative act’ means any non-legislative act adopted by a Union institution or body, which has legally binding and external effects and contains provisions that may, because of their effects, contravene environmental law within the meaning of point (f) of Article 2(1), excepting those provisions of this act for which Union law explicitly requires implementing measures at Union or national level;”

The removal of the criteria relating to “individual scope” and “under environmental law” is a significant improvement, as the vast majority to requests for internal review have in the past been rejected on these grounds.

Unfortunately, the proposal retains the other barriers identified by the ACCC and even adds new ones. The criterion relating to “legally binding and external effects” has been retained, as has the exclusion of State aid decisions, which is the subject of another communication currently before the ACCC. The proposal also excludes measures that explicitly require national implementing measures. This is a new barrier to internal review that threatens the effet utile of the amendment as a whole (more on that below).

Finally, on a positive note, the proposal increases the timeframe for NGOs to request internal review from 6 weeks following adoption of the EU act in question to 8 weeks. There is a corresponding increase in the timeframe for the institution to respond from 12 weeks to 16 weeks.


The definition of reviewable acts

In theory, the removal of the “individual scope” criterion should ensure that the internal review mechanism is available for most non-legislative acts of general scope that breach EU environmental law. But there is a real possibility that the exclusion of acts that explicitly require national implementing measures could undo this progress.

In essence, it means that many EU acts will continue to be challengeable only in national courts, which are then supposed to send a preliminary reference to the Court of Justice of the EU to rule on the validity of the EU acts in question. However, the Commission’s own Report acknowledges that NGOs cannot always access national courts to challenge such implementing measures and, even if they do, it is often impossible to secure the necessary preliminary reference. This judgment from the Irish High Court provides a very concrete example of how difficult it is to convince national courts to make preliminary references concerning the validity of EU acts, and the procedural hurdles that stand in NGOs’ way. In any case, even when an NGO is successful in using this route, it takes a matter of years, by which time the environmental damage has already occurred in most cases. It also means continuous uncertainty for businesses relying on the legality of EU measures.

This is precisely why the ACCC has already found that the preliminary reference procedure does not provide a suitable alternative to NGOs having direct access to an administrative of judicial review mechanism (see findings here). This will not be altered by the Communication that the Commission published together with the proposal (see our analysis here).

This exclusion also introduces legal uncertainty as to the question of which EU acts require implementing measures at national level. The use of the word “explicitly” does not remedy this problem. For instance, will it be possible to ask for review of a decision to authorise a herbicide, such as glyphosate, or would the NGO be expected to challenge national approvals of plant protection products, which are explicitly provided for in the EU Pesticides Regulation, in a national court? Questions like this are likely to be the subject of litigation for several years to come. This lack of legal certaintly is also evident in the study prepared by Milieu Law and Policy Consulting for the Commission. Milieu consulted the relevant Commission DGs as to whether the EU acts adopted on 481 legal bases would result in implementing measures. The Commission services provided a response for only 107 of the legal bases, i.e. less than 22%. For the remaining 78%, the Commission services left the question unanswered or replied with “don’t know” (see page 120).

The fact that the proposal still requires reviewable acts to have “external effects” is also problematic. In the past it has allowed the EU to escape scrutiny of decisions, even if they are capable of having an adverse effect on the environment, for example the Commission decision to approve the Czech Republic’s Operational Programme Transport 2007 – 2013. The easy solution would be to remove the reference to external effects and align the language to the CJEU jurisprudence on reviewable acts.

Finally, maintaining the exclusion of State aid decisions is inconsistent with the recognition in page 5 of the proposal that internal review should be available for all acts that affect environmental policy objectives and that this corresponds with Article 11 TFEU (which requires environmental protection requirements to be integrated into the definition and implementation of all the Union’s policies and activities). State aid decisions undoubtedly affect environmental policy objectives. For instance, they play a significant role in shaping the EU’s energy market. Furthermore, the CJEU has explicitly confirmed that Article 11 TFEU requires the Commission to ensure that its decisions only authorise state aid for projects that comply with EU environmental law. It is only logical then that such decisions should be reviewable at the request of NGOs on environmental grounds. It would be unfortunate if the EU did not take this opportunity to ensure that the internal review mechanism fully complies with Article 9(3) AC, to avoid having to undergo a further revision in the future.

Procedures that are not prohibitively expensive

The ACCC has not adopted a finding regarding the costs involved in initiating environmental litigation before the CJEU. Nevertheless, it is disappointing that the Commission did not take this opportunity to ensure, as far as possible, that the internal review procedure is not prohibitively expensive for NGOs, as required by Article 9(4) of the Aarhus Convention.

The award of costs against an unsuccessful party to litigation before the CJEU is ultimately a matter for that Court. Nevertheless, it is within the power of the co-legislators to ensure that EU institutions do not ask unsuccessful NGO litigants to pay costs that are prohibitively expensive. Admittedly, the Commission may not be sensitive to this question, as it generally does not ask unsuccessful parties to pay for the time spent by its legal agents in defending litigation. Unfortunately, this practice is not employed by all of the EU bodies, resulting in an uneven playing field and unpredictable costs. Some of them, for example Frontex, have been known to retain external legal counsel to defend public interest litigation, asking the Court to order the losing party to pay the fees charged by commercial law firms (in this case around €24.000 for one instance). This is not an isolated example. It would be perfectly feasible for the Aarhus Regulation to ensure greater respect for Article 9(4) of the Aarhus Convention by ensuring that EU bodies and institutions do not ask losing NGO parties to pay costs that are prohibitively expensive.

Effective Remedies

Finally, there are no proposed changes to Article 12 of the Regulation regarding the initiation of court proceedings. The extent to which the internal review procedure provides for adequate and effective remedies in accordance with Article 9(4) of the Aarhus Convention has been debated in a small number of cases before the CJEU in recent years (notable case C-82/17 P Testbio Tech and T-108/17 ClientEarth which is currently under appeal). It is now beyond doubt that the CJEU cannot annul the EU act that was subject to internal review in the context of the Article 12 procedure; it is only possible to secure the annulment of the institution’s review decision. And it is still rather unclear to what extent the CJEU can take into account substantive unlawfulness in doing so. Therefore, we would suggest that Article 12 could be clarified to at least ensure that the CJEU can review both the procedural and substantive lawfulness of the institution’s review decision.

The proposal will now be debated in the European Parliament and the Council of the EU. The onus is now on these institutions to close the loopholes identified above and ensure an internal review mechanism that is finally fit for purpose.

The project

Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.