Watering down the Aarhus Regulation -time to deliver an ‘adequate and effective remedy’

By Tiina Paloniitty  Postdoctoral Researcher, & Päivi Leino-Sandberg, Professor, at the Faculty of Law at the university of Helsinki,
This blog was originally published by European Law Blog. You can find the original post here.


In October last year the Commission presented a proposal to revise the Aarhus Regulation implementing the Aarhus Convention in the EU. Earlier blog posts have discussed the frailties of the Commission’s current plans and argued that the EU reaction is ‘too little, too late’ to counter the Aarhus Convention Compliance Committee (ACCC) finding that the EU is not in compliance with its obligations on access to justice under Articles 9(3) and 9(4) of the Convention.

We agree and believe that the problems are broader than what has been so far been discussed. We reflect on the proposal against some more recent developments and emphasizing the importance of certain aspects that, in our understanding, are yet underrecognized and that may, if passed in the proposed form, result in watering down the otherwise positive development the proposal entails.

The Commission’s proposal has dual goals. First, it aims to advance the delivery of the EU Green Deal and second, to secure the EU’s compliance with the Aarhus Convention.

We discuss the Commission proposal from three angles: the suggested exclusion of provisions that require national implementing measures, the question of prohibitive costs in preventing access to justice in the EU and the possible positive developments in light of the EU’s reluctance in embracing the Convention in full.

An ‘adequate and effective remedy’?

Under Article 9(3) of the Aarhus Regulation, ‘each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’.

The EU has established an internal review mechanism as the prime tool for the ‘adequate and effective remedy’ required by the Aarhus Convention. This mechanism allows for NGOs to ask for the EU institutions to review their decisions, following which they can take the matter to the CJEU ‘in accordance with the relevant provisions of the Treaty’. Under the current Aarhus Regulation, it only applies to “administrative decisions”, a term defined very restrictively in Article 2(1)(g) of the Aarhus Regulation as “any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects.” This definition clearly excludes acts adopted by the EU institutions in their legislative capacity, which is consistent with the Aarhus Convention. But the requirement that acts be of “individual scope” excludes the vast majority of EU administrative decisions that should be open to internal review.

This definition is the main reason why the internal review has been criticized as having too narrow a scope. Responses submitted by environmental organisations, including NGOs and individuals, to the public consultation preceding the adoption of the Commission’s proposal demonstrated how ‘the issues that were accorded the highest degree of importance by respondents were the fact that the act or omission to be challenged must be of individual scope and that the Regulation limits challenges to acts or omissions under environmental law’.

In practice, the only requests for internal review that have been found to be admissible by the institution concerned have involved decisions authorizing the use by specific companies of substances of very high concern under REACH (See case T-108/17 ClientEarth v Commission)), marketing authorisations in respect of GMOs (see case C-82/17 P Testbiotech v Commission) and one decision under the Timber Regulation (See reply of the Commission of 12 October 2015 to the request for internal review from Greenpeace, Ref Ares (2015)4274787) .

While the suggested proposal to amend the Aarhus Regulation removes the “individual scope” criterion, it does not resolve the question of EU compliance with the Aarhus Convention, on the contrary: it suggests new hurdles for securing access to justice in the EU.

The Commission proposal introduces a completely new exception clause to the Aarhus Regulation. According to it, internal review could not be requested for provisions ”for which Union law explicitly requires implementing measures at Union or national level”. Whether the suggested exclusion clause could eventually cover most of EU administrative acts relevant to the environment should now be at the heart of the debate.

It is evident that the exclusion clause covers those provisions for which EU law explicitly requires implementing measures. However, it does not appear to be limited to provisions for which the decision under review explicitly requires implementing measures. This difference is significant and could have far-reaching consequences.

In its submission to the ACCC, environmental NGO ClientEarth identified several pertinent examples of provisions that could potentially be excluded if the provision is not amended. For example, the Pesticides Regulation makes it clear that EU authorisations of active substances in pesticides only take effect once a Member State takes the decision to allow a product containing that substance to be placed on the market. Would such EU authorisations be excluded from internal review on the grounds that the Pesticides Regulation “explicitly” requires implementing measures? If the wording of the Commission proposal is adopted by the co-legislators, the answer to this question will ultimately fall to be answered by the Court of Justice of the EU.

Looking at the CJEU case law on the concept of “implementing measures” in the context of Article 263 (4) TFEU, we believe that there is a substantial risk that the exclusion clause would eventually be interpreted broadly.

Article 263(4) TFEU sets out the standing criteria that must be met by natural or legal persons to challenge “a regulatory act which is of direct concern to them and does not entail implementing measures” directly before the General Court. According to settled case-law of the Court, the expression ‘does not entail implementing measures’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU must be interpreted in the light of the objective of that provision, which, as is apparent from its drafting history, is to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a legal remedy before the EU judicature for the purpose of challenging the lawfulness of the regulatory act. In the absence of implementing measures, a natural or legal person, although directly concerned by the act in question, would be able to obtain judicial review of the act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national court’. (para 58)

In case T-9/19 ClientEarth v EIB, the General Court held that it is in the interests of general consistency to interpret the legal concepts in the Aarhus Regulation in accordance with the requirements of Article 263 TFEU. On the other hand, the wording of Article 263 TFEU and the exclusion clause are not identical. Notably, the word “explicit” does not appear in Article 263 TFEU.

The big open question is whether this would make a difference to the interpretation of this concept in practice, particularly considering that it is not the act under review that must be explicit about the need for implementing measures, but EU law generally. Taking all of this into account, there is certainly a risk that the exclusion clause would in practice encompass all provisions for which EU law explicitly requires implementation at MS level to have effect.

Such an interpretation would mean that large amount of substantive EU administrative acts relevant for the environment would become excluded from the Aarhus Regulation’s range, since most EU acts in this field require implementation at the Member State level at some stage. It would certainly be in the interests of legal certainty for this question to be clarified by the co-legislators before the amendment enters into force, especially keeping in mind that it is a matter that directly affects the rights of individuals under the Regulation.

Ultimately though, whether or not the exclusion clause has a narrow or broad scope, it is based on the flawed logic that environmental NGOs must challenge EU acts through national courts, using the preliminary reference procedure. Though the Member States are Parties of the Aarhus Convention also in their own right, the possibility to review administrative acts approved by the EU institutions indirectly via the preliminary rulings procedure is hardly an ‘adequate and effective remedy‘ that the Convention requires. Such a process would require an interested party to first challenge an individual decision before a national court, which may or may not seek preliminary ruling from the CJEU, turning this route not only lengthy but also highly uncertain. During this time period the EU act would have been implemented in other Member States, resulting in significant delays in securing effective environmental protection. ACCC has already found the preliminary reference procedure insufficient to ensure access to justice in environmental matters. Therefore, it is already clear that this route is not enough to secure an ‘adequate and effective remedy’ as required by the Aarhus Convention.

Prohibitive costs

The Commission proposal also misses an opportunity to address the costs involved with litigation linked to internal review. A recent development of great concern in EU public interest litigation generally is the question of prohibitive costs. Under Article 9(4) of the Convention, ‘the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible’.

This seems difficult to reconcile with the realities of EU litigation. It is expensive, which further limits access to justice.

In its new jurisprudence (Case T 545/11 RENV), the CJEU has significantly increased the financial risk involved in environmental litigation for NGOs and other stakeholders. In another pending case, Frontex is seeking 24 000 € in litigation costs from two transparency activists.

If the new line adopted in the CJEU case law continues, no NGO or environmental activist would be able take the risk of excessive costs. As a result, environmental litigation at the EU level risks coming to a standstill, undermining the aims strived for in the internal review and the subsequent court processes.

The varying approaches adopted in different EU institutions as to the use of external legal services further underscores this impact. For example, the European Chemicals Agency, the European Food Safety Authority and the European Investment Bank have been known to outsource legal advice to private attorneys. With the usual cost of such services, the costs can quickly rise to the level of being prohibitive. Simultaneously, the matters these institutions deal with are among those encompassed in the internal review process (decisions relating to chemicals, pesticides, GMOs, or financing to energy infrastructure projects) the outcome is rather bleak, if access to justice is effectively prevented through prohibitive litigation costs.

Positive developments?

The Commission proposal is not all bad. Considering also acts of general scope as pertinent ‘administrative acts’ is a long-waited amendment that would resolve the weakness in the current Regulation, encompassing only acts of individual scope. Also, removing the current formulation in which the administrative act must be ‘under environmental law’ to be eligible for internal review, is a warmly welcomed revision. However, the exclusion provision described above could water down also these otherwise positive developments.

The Commission proposal reflects the also explicitly declared understanding that any access to justice on environmental matters at the EU level is only complementary to the prime fora fullfilling the access rights: the Member States. This understanding is not only mistaken in itself but it also contradicts with the role of proponent of the rule of law that the EU has otherwise pursued. While we acknowledge that the EU co-legislators cannot alter the CJEU’s interpretation of the standing criteria in Article 263 TFEU, the Treaties do not prevent them from setting up an administrative review mechanism in the form of internal review that is fit for purpose. This would also not call into question the division of powers between EU courts on the one hand and national courts on the other under the preliminary reference mechanism.

The Council’s public register of documents currently includes no reference to an opinion of its Legal Service on the matter, but one should be forthcoming, and likely to be decisive for the Council’s position. Providing direct public access to this document under Article 12(2) of Regulation 1049/2001 is of utmost importance, especially since the Legal Service with its strong institutional bias is likely to be less responsive to civil society concerns.

The EU’s feet dragging in fulfilling its obligations under the Aarhus Convention is painful to follow. There are no legitimate grounds for the EU to be considered as an exemption to the rules that bind the other Aarhus Convention Parties. The effects of such action could be detrimental also to the authority of the Convention more broadly, beyond the EU and its Member States. It is difficult to earnestly strive to set the global benchmark and simultaneously consider oneself as an exemption from the international law obligations.



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