This document summarizes a presentation given on the EU's compliance with the Aarhus Convention. The ACCC found that the EU was in breach of Articles 9(3) and 9(4) of the Convention due to a lack of standing for individuals and NGOs before the CJEU and limitations of the internal review procedure. While some steps have been taken, including a Council decision for further studies, the EU has yet to fully address the ACCC's recommendations to clarify access to justice and judicial review under the Convention.

1. “An update on Communication c-32:
The EU and its own Compliance with
the Aarhus Convention”
Anne Friel, ClientEarth
ELIG Environmental Law Seminar
Dublin
14 July2018

2. Communication C-32: EU in breach of Article
9(3) and (4) Aarhus Convention
• Lack of standing for individuals and NGOs before CJEU to
challenge acts of EU institutions
• Internal Review procedure (Articles 10 – 12 of Regulation
1367/2006):
– Definition of “administrative act”

3. • Article 263(4) TFEU, either:
– Acts addressed to the NGO: direct standing
(access to docs cases)
– Acts not addressed to NGO: need to be
individually and directly concerned
– Regulatory acts which do not entail implementing
measures: need to be directly concerned
Legal standing before EU courts

4. Internal Review
• Regulation 1367/2006: the Aarhus Regulation
• Internal review of “administrative acts”
• Request for review by the same EU institutions that made the decision
(Article 10)
• Applicants: NGOs meeting criteria; no individuals (Article 11)
• Possibility to challenge review decisions before CJEU (Article 12)
• Arbitrary exemptions from the definition of the acts (e.g. State aid
decisions)

5. Internal Review
• Article 2(1)(g) of Reg. 1367/2006:
• “administrative act” means any measure of individual scope under
environmental law, taken by a Community institution or body, and
having legally binding and external effects
• It excludes whole categories of acts from scrutiny
• Only 3 requests for internal review out of 27 made to the Commission
admissible

6. ACCC Findings (part I)
• The system of preliminary ruling neither constitutes access to
justice nor compensates for the strict jurisprudence of the EU
courts on standing
• It is clear that Article 263(4) TFEU could be interpreted so as to
provide standing for qualified individuals and NGOs
• If the jurisprudence of the EU courts continues unless fully
compensated by adequate administrative review procedures,
the EU would fail to comply with Article 9(3) and (4)

7. ACCC Recommendations (part I)
• A new direction of the jurisprudence of the Courts should be
established
• All relevant EU institutions take the steps to overcome the
shortcoming of the jurisprudence of the EU courts in providing
the public concerned with access to justice
• Findings and recommendations on internal review postponed
until CJEU judgment in cases C-401/12 and C-405/12

8. Rulings in cases C-401/12 and C-405/12 of 13
January 2015
• Internal review requests:
• Commission’s decisions to grant an exemption to the Netherlands
under the ambient air quality Directive
• Commission’s decision to set the maximum pesticide residue limit
• Commission rejected requests as decisions were not acts of
individual scope

9. CJEU’s rulings: Article 9(3), a dead letter
• By adopting Reg. 1367/2006 the EU did not intend to
implement obligations that derive from Article 9(3) of the AC
“with respect to national administrative or judicial procedures,
which as EU law now stands, fall primarily within the scope of
member State law” in reference to Case C-240/09
• Article 9(3) could not be relied on in order to assess the
legality of Article 10(1) of Reg. 1367/2006.

10. ACCC findings (part II): standing before CJEU
• ACCC considered case law since adopting findings (part I):
– “Having considered the main jurisprudence of the EU Courts since
Part I, the Committee finds there has been no new direction in the
jurisprudence of the EU Courts that will ensure compliance with the
Convention…”

11. ACCC findings (part II): internal review
• “…the Aarhus Regulation does not correct or compensate for
the failings in jurisprudence.”
– Acts of individual scope
– Acts adopted under environmental law (legislation which contributes
to the pursuit of the objectives of Community policy on the
environment as set out by the treaty)
– Acts having legally binding and external effects

12. ACCC findings (part II): internal review
• Internal review: an adequate and effective remedy?
– Internal review is supplemented by Article 12 AR (institute
proceedings before CJEU)
– “It therefore seems to the Committee that it is possible for the
European Courts to interpret Article 12 in a way that would allow
them both to consider failure to comply with Article 10(2) and (3) as
well as the substance of an act falling within Article 10(1).”
– Case T-177/13 TestBioTech (under appeal C-82/17 P)

13. ACCC Recommendations
• If relying on Aarhus Regulation or other legislation:
– “the Aarhus Regulation is amended in a way, or any new EU
legislation is drafted in way, that would leave it clear to the CJEU that
that legislation is intended to implement article 9, paragraph 3 of the
Convention; and
– New or amended legislation implementing the Aarhus Convention
uses wording that clearly and fully transposes the relevant part of
the Convention; in particular it would be important to correct
failures in implementation that are caused by the use of words or
terms that do not fully correspond to the terms of the Convention.”

14. ACCC Recommendations
• If relying on the jurisprudence of the CJEU, recommends that
the CJEU:
– “assesses the legality of the EU’s implementing measures in the light
of those obligations and acts accordingly; and
– Interprets EU law in a way which, to the fullest extent possible, is
consistent with the objectives of article 9, paragraphs 3 and 4.”

15. Endorsement by the MoP?
• Since it was established in 2002, no state has ever rejected a finding of
the ACCC!
• July 2017: Commission recommends to the Council to reject the ACCC
findings
• July 2017: Council does not follow Commission: adopts decision to
“take note of the findings”.
• MoP September 2017: no decision re C-32 until MoP 2021
• EU “recalled its willingness to continue exploring ways and means to comply with
the Convention in a way that was compatible with the fundamental principles of the
European Union legal order and with its system of judicial review.”

16. European Parliament Resolution
• Resolution 2017/2819 in response to the Commission’s
Communication on an Action Plan for Nature, People and the
Economy
• Paragraph 15: calls on the Commission to come forward with a
“revision of the Aarhus Regulation implementing the
Convention as regards Union action in order to take account of
the recent recommendation from the Aarhus Convention
Compliance Committee”.

17. EESC opinion
• Calls on the EU to engage with civil society to prioritise a broad
and ambitious approach to improving EU implementation of
the Aarhus Convention, as a matter of urgency.
• Does not consider the EU’s declaration when it ratified the
Convention to absolve it of its obligations in respect of access
to justice.
• Refers to the Council decision to “take note” of the findings,
rather than endorsing them, and “highlights a contradiction in
the EU seeking to not endorse the findings of the ACCC while
reiterating support for the Convention.”

18. May 2018: Commission Roadmap
• Commits to an external study of “the different categories of EU
acts of relevance and of the administrative and judicial means
of redress via national courts and via direct application to the
General Court and the categories of natural and legal persons
which have access to them. The study will garner facts and
figures allowing an assessment of the possible shortcomings
and a forecast of the possible options and of the impacts
which can be expected under each of them.”
• Includes assessment of economic, social and environment
impacts as well as the impacts on administrative burden.

19. June 2018: Article 241 TFEU Council Decision
• Council adopts decision on basis of Article 241 TFEU (1st time
in environmental matters), asking the Commission to submit:
– a study on the Union's options for addressing the findings to explore
ways and means to comply with the Aarhus Convention in a way that
is compatible with the fundamental principles of the Union legal
order and with its system of judicial review (by September 2019).
– if appropriate in view of the outcomes of the study, a proposal for a
Regulation amending Regulation (EC) No 1367/2006, or otherwise to
inform the Council on other measures required as a follow-up to the
study (by September 2020).

20. Thank you
Anne Friel
Juriste
ClientEarth
afriel@clientearth.org
t. +32 (0)2 808 0172
www.clientearth.org
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