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Juliette Delarue

7th March 2023

Access to Justice
Environmental justice
Access to Justice for a Greener Europe

The amended EU Aarhus Regulation one year in: new requests in review

On 6 October 2021, Regulation 1367/2006/EU, the so-called Aarhus Regulation, was finally amended. This hard-won victory closed a decade-long battle over the scope of administrative acts contravening environmental law that can be subject to an internal review request under Article 10 of the Aarhus Regulation. It is time to take stock of how this new possibility has been used by NGOs since.

A clear increase in cases covering various subject areas

Since the reform, NGOs filed at least 26 internal review requests of Union acts and omissions, targeting 9 different acts of general scope having legal and external effects. ClientEarth, together with partner NGOs, submitted 6 of them. Some of the Commission’s or Council’s negative decisions – refusing to review the challenged acts – are under appeal before the General Court of the European Union.

These figures show that the new possibility to submit review requests of administrative acts of general scope has quickly been picked up by NGOs and opened concrete opportunities for review of recurrent acts in areas beyond the approval or renewal of substances: energy, fisheries, agriculture. For instance, whereas a review request of the fourth Union list of projects of common interest was previously found inadmissible by the Commission, there is no doubt that new lists, from the fifth published in November 2021, are now reviewable. This confirmation is positive given that the Commission considered that the fourth PCI list was not adopted under ‘environmental law’ as it was not based on Article 192 TFEU (compare the replies to internal review requests 44, 46 and 66 in the Commission’s register); a requirement that has been removed as part of the amendment.

First internal review requests to the Council of the EU

Another example of recurrent Union acts that can now be reviewed directly are yearly Council regulations fixing fishing opportunities (or ‘total allowable catches’) under the Common Fisheries Policy – whereas applicants previously had to use the indirect route of preliminary rulings under Article 267 TFEU to challenge their validity (see pending case C-330/22). These fisheries-related requests triggered the opening of a Council’s register (pursuant to the new Article 11(a)(1) of the Aarhus Regulation). It was also satisfying to see the Council recognising that the Common Fisheries Policy based on Article 42 TFEU, as well as Article 43 TFEU are ‘environmental law’. It would only make sense that the Commission finds the same for the Common Agriculture Policy and its implementing acts adopted on the same Treaty basis (see pending requests 71 and 72).

Admissibility: Legal and external effects – reasonable application

Following the Aarhus Regulation amendment, the requirement remains that an act needs to have ‘legal and external effects’ (Article 2(1)(g)); non-binding acts are not reviewable.  In this respect, the Commission rejected as inadmissible – rightly, in our opinion – request 68 targeting the Commission Recommendation (EU) 2022/822 of 18 May 2022 on speeding up permit-granting procedures for renewable energy projects and facilitating Power Purchase Agreements, and the related Staff working document; those acts clearly do not have legal and external effects. Thus, the Commission appears to strike a reasonable balance in applying this admissibility criteria.

Exception for state aid decisions – ongoing battle

More problematic is the Commission’s blunt statement, in its reply to request 65, that state aid guidelines are outside the scope of review for being adopted on the basis of Article 107 TFEU related to competition. Competition matters continue to be excluded from the scope of the Aarhus Regulation by its Article 2(2)(a). This is despite the findings and recommendations of the Aarhus Convention Compliance Committee Secretariat of March 2021 (ACCC/C/2015/128) relating to state aid decisions and the EU Parliament support of a related amendment. A Commission Communication on how to address these findings and what Union law reform would be necessary or appropriate is awaited in Spring 2023.

Whereas there is a compelling international law requirement to bring EU law in compliance with the Aarhus Convention, one may not ignore that political positions are entrenched, with a significant number of Member States denying the legal issue and refusing to amend State aid rules – said to be internal market, or competition rules only – to the benefit of access to justice.

On the substance: Disputes over the role of science in decision-making

Lastly, and this is probably what makes internal review requests so interesting in substance for the NGOs who bring them (and we hope, for their recipients), a common trait of many of these requests is their reliance on scientific evidence. Because it disregarded relevant scientific evidence, applicants frequently argue, the institution adopted an act breaching provisions of environmental law requiring the act to be adopted based on conclusive (or best available) scientific evidence, the precautionary principle or with regard to the sustainability of plans, projects or resources management.

This was notably the case for the Commission’s classification of energy sourced from forest biomass as ‘sustainable’ under the EU Taxonomy for Sustainable Finance Regulation (EU) 2020/852 (requests 62 and 64). To this end, the Commission relied on the classification of forest biomass as a ‘renewable energy source’ in EU legislation (the Renewable Energy Directive II of 2018) but, according to the applicants, did not take account of more recent evidence showing the high level of greenhouse gas emissions incurred by burning forest biomass.

It is settled case law that the EU institutions have a wide margin of discretion in assessing complex scientific evidence and that judicial review is limited to examining whether the institution manifestly erred in its assessment and exceeded the bounds of its discretion. In its reply to the request, the Commission heavily emphasises its discretion. The Commission thereby refrained from engaging on the core scientific debates (is burning forest biomass actually ‘sustainable’ in light of the most recent and conclusive scientific evidence?) and did not justify their position on the basis of counter-evidence. It remains to be seen how the General Court will assess whether the decisions are vitiated by manifest errors in this respect – that may be the topic for a future newsletter piece.


It is already evident that NGOs seized the legal opportunity of the amendment to the Aarhus Regulation to expand the scope of their interventions to new sectoral areas and types of acts. Nonetheless, the ‘floodgate of cases’ feared by some has not occurred, with only 9 different acts of general scope challenged in a year. Rather, it seems that NGOs have been targeting systemic issues – overfishing through the yearly fisheries regulations, or lack of climate impacts assessment in the list of projects of common interests. They also have been trying to establish an adequate interpretation of new, important legislation such as the EU Taxonomy for Sustainable Regulation through the challenge of its implementing acts. This controlled use of internal review requests, expected to persist due to NGOs’ defined objectives and resources constraints, should be recognised as an additional stone in the construction of a better access to justice regime in the environmental field.