Access to the EU Courts in Environmental and Public Health Cases and the Reform of the Aarhus Regulation: Systemic Vision, Pragmatism, and a Happy Ending

Abstract

Abstract After years of debate, the Aarhus Regulation has finally been reformed. This article focuses on the amendments to the scope of application of the Regulation’s internal review and access to justice provisions, and demonstrates that these are the most important changes introduced by the reform. Not only do these amendments mark an important development towards full compliance by the European Union (EU) with its obligations under the Aarhus Convention; they also fill a vacuum, and solve the main problem which lay at the heart of the EU system of access to justice in environmental public interest cases. First, the article explores the obstacles faced by different stakeholders seeking access to the EU Courts by reference to specific categories of EU environmental law and risk regulation acts. This provides a systemic overview of different problematic aspects associated with different scenarios, unpacking all relevant implications. Secondly, it embraces a pragmatic perspective and draws a clear distinction between challenges to legislative and regulatory acts. Against the backdrop of this examination, the article identifies the main problem of the EU system: the application of the ‘complete system of legal remedies’ rationale to the specific case of regulatory acts. Further, it highlights that there is no ‘interpretative’ way out of the TFEU conundrum. Thirdly, the article analyses the Commission’s disappointing proposal for a reform of the Aarhus Regulation and the final text of the 2021 amendments to the Regulation. The story has a (surprisingly) happy ending. The EU institutions have finally acknowledged the main problem in the system of access to the EU Courts in environmental matters, and recognized the need to solve it in the specific context of the Aarhus Regulation.