Aarhus Regulation Research Articles

Revisiting the standing debate before the EFTA Court through the lens of post-Lisbon EU devlopments regarding locus standi

The Lisbon Treaty broadened and relaxed the standing requirements before the EU Court of Justice by adding a third class of acts amenable to judicial review. In the meantime, the EU has moreover been found in breach of the Aarhus Convention twice for shortcomings in access to justice for environmental organisations. Hence, the Aarhus Regulation, which implements the Aarhus Convention at Union level, was revised in 2021, and possible further amendments with regard to state aid decisions are being examined at the moment. The current standing requirements before the EFTA Court by contrast still reflect the situation prevailing in the European Union before those EU pillar evolutions. This article revisits four judgments of the EFTA Court in light of these developments and analyses how the EFTA Court has dealt with the existing discrepancies before, and might or might not be able to deal with them in the future.

Requests for internal review and the revised Aarhus Regulation

This article examines the development of EU law in the context of access to justice guaranteed under the Aarhus Convention. It considers how the Court of Justice of the European Union and the Compliance Committee of the Convention (ACCC) interpret obligations arising under Article 9(3) of the Convention. When the EU ratified the Convention in 2005 it committed to guaranteeing broad access to justice in environmental matters at both national and Union levels. Until now, the 2006 Aarhus Regulation is the sole piece of EU legislation outside the provisions of the Treaties that was adopted for the purpose of providing the basis for access to justice in environmental matters at Union level. Unfortunately, the internal review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively by the Court of Justice of the EU that its added value in striving for better access to courts remained ephemeral. The article discusses the findings of the ACCC on the EU’s non-compliance with Article 9(3) of the Convention, and highlights the recent legislative activities at EU level relating to access to justice in environmental matters. The application of the revised Aarhus Regulation will demonstrate whether the European Union has duly implemented its international obligations regarding access to justice in environmental matters.

The New Aarhus Regulation and the Defensive Behaviour of the European Legislator

The European Union implemented the Aarhus Convention for European institutions and bodies by means of Regulation 1367/2006. This Regulation, however, did not ensure the full compliance of European law with the Convention provisions regarding access to justice, since it was very restrictive as to who was granted the right to request the review of acts allegedly infringing environmental law, the acts for which such review could be requested, and access to justice was ensured through an administrative procedure that did not comply with the principle of fairness. Due to these shortcomings, Regulation 2021/1767 amended Regulation 1367/2006, successfully addressing the first two compliance issues, but leaving the question of the fairness of the review mechanism unresolved. This article has two aims: first, to illustrate the main changes made by Regulation 2021/1767, and second, to show that the European legislator could provide for access to justice in environmental matters through review mechanisms that are fully in line with the standards required by the Aarhus Convention. This would be possible given that the provisions of the Treaty on administrative remedies are fairly flexible.

Access to Environmental Justice and European Union Institutional Compliance With the Aarhus Convention: A Rather Longer and More Winding Road than Anticipated

The aim of this article is to track through and offer some reflections on the efforts by the European Union (EU) to ensure that EU law adequately implements the access to environmental justice obligations set down in the 1998 Aarhus Convention (AC) with respect to activities carried out by its supranational institutions and other Union bodies. For a number of years the EU has struggled to ensure its legal framework is in conformity with the Convention’s requirements concerning access to justice, not least in the wake of adverse findings expressed by the Convention’s Compliance Committee responding to complaints from members of the public. However, matters appear to have improved significantly in October 2021 with the adoption of EU Regulation 2021/1767 amending the Union’s legislative rules on an internal review mechanism of EU administrative acts or omissions alleged by members of the public to contravene EU environmental law (namely the ‘Aarhus Regulation’ 1367/2006). Whilst this article considers that most of the key issues relating to noncompliance have now been addressed satisfactorily, much of the credit for this ultimately lies with the European Parliament and Council of the EU as primary co-legislators rather than other key Union institutional actors such as the European Commission or the Court of Justice of the EU (CJEU). At the same time, this recent legislative innovation has not enabled the EU to reach its destination of achieving full compliance with the Convention over access to environmental justice, with some important administrative activities affecting the environment still remaining exempt from the Union’s internal review system such as EU decisions on state aid.

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 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.

Watering down the Aarhus Regulation – time to deliver an adequate and effective remedy

Watering down the Aarhus Regulation – time to deliver an adequate and effective remedy

GMO authorisations and the Aarhus Regulation: Paving the way for precautionary GMO governance?

This article endeavours to assess whether existing case law under the Aarhus Regulation has opened up any opportunities for civil society to challenge the decision that, in the face of scientific uncertainty, genetically modified organism risks meet the intended European Union levels of health and environmental protection. Against this backdrop, it seeks to establish whether the actions of non-governmental organizations under the Aarhus Regulation have resulted in any meaningful review of the Commission’s exercise of its discretion, in accordance with the overarching tenets of the precautionary principle and the aim of a high level of health and environmental protection. Upon an in-depth analysis of the recent TestBioTech cases, the article puts forward an argument for different evidentiary rules and a different standard of review in Aarhus Regulation case law, advocating a clearer distinction between ‘standard’ action for annulment and annulment of a decision to reject a request for internal review. This is argued to be the only way forward to breathe some life into the Aarhus Regulation’s provisions, ensuring some scrutiny of the level of protection achieved and nudging the Commission to take the precautionary principle seriously in the genetically modified organism field.

Access to Justice: Environmental Non-Governmental Organisations According to the Aarhus Regulation

Article 10 of the Aarhus Regulation provides an opportunity for environmental non-governmental organisations (hereafter ENGOs) to request an internal review to an EU institution or body that has adopted an administrative act under environmental law, or should have done so in the case of an alleged administrative omission. The criteria that have to be met for an ENGO to be entitled to make this request are defined in Article 11 of the Regulation. Together, these criteria can be regarded as the criteria which define an ENGO at the European Union level. The aim of this article is to investigate whether these criteria are sufficiently clear and whether they contribute to the objective of providing wide access for ENGOs to the internal review procedure. In order to understand the aim the EU institutions had in mind when they decided on the standing criteria, this article examines how these criteria were selected by analysing the legislative documents that resulted in the adoption of the Aarhus Regulation. It helps to identify whether the Commission is currently interpreting these criteria in line with the spirit with which they have been defined. Furthermore, internal review requests which provide insights into the scope of the Article 11 criteria have been selected in order to understand how the European Commission currently interprets the standing criteria. Finally, a conclusion is provided on the questions raised, together with recommendations for improvement and further research.

Access to Justice in Environmental Matters and the Aarhus Convention's Effects in the EU Legal Order: No Room for Nuanced Self‐executing Effect?

This article examines two recent decisions by the Court of Justice of the European Union on the effect of the Aarhus Convention in the European Union) legal order. Compared to earlier case law, the Court missed an opportunity to nuance its approach towards the self‐executing character of the Convention's provisions. As a consequence of the Court's overly rigid jurisprudence, a provision of the Convention cannot serve as a benchmark to review the very same Convention's implementing measure at the EU level, the Aarhus Regulation. Sceptical of this outcome, the article suggests a more nuanced approach and provides arguments in support of this approach.

Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?

By ratifying the Aarhus Convention in 2005 the EU committed itself to guaranteeing broad access to justice in environmental matters both at the national and the EU level. Yet, in spite of the clear-cut obligations incumbent upon the EU, EU courts have consistently rebuked pleas for a softening of the standing requirements in the context of direct actions against EU acts that might have an impact on the environment and/or public health. In addition, the internal review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively by the EU institutions that that its added value in the stride toward better access to courts in environmental matters remains ephemeral at best. This led the General Court to finding that the Aarhus Regulation, by excluding general EU acts from the scope of internal review, was in breach of Article 9(3) of the Aarhus Convention. In its recent rulings of 13 January 2015, however, the Court of Justice of the EU (CJEU) overruled the General Court by holding that the Aarhus Regulation could not be reviewed in light of the Aarhus Convention. With its refusal to use Article 9(3) of the Aarhus Convention as a reference criterion for the purpose of reviewing the EU’s compliance with the Aarhus Convention’s obligations, the CJEU avoided tackling the unsatisfactory level of judicial protection in environmental cases at the EU level. This paper argues that the rulings of the CJEU are to be qualified as a significant step backwards for judicial protection in environmental matters at the EU level. It is established that, instead of addressing the current failings of the EU with respect to access to justice in environmental cases, the CJEU’s hands-off approach paves the way for yet another decade of non-compliance by the EU in the realm of access to justice in environmental cases.

Significant EU Environmental Cases: 2014

In Cases T-338/08 Stichting Natuur en Milieu & Pesticide Action Network Europe v Commission,1 and T-396/09 Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission,2 the General Court held that Article 10(1) of the Aarhus Regulation3 was unlawful because it limited the concept of ‘acts’ in Article 9(3) of the Aarhus Convention4 to ‘administrative acts’ defined in Article 2(1)(g) of the Aarhus Regulation as ‘measures of individual scope’. The General Court held that the EU was bound by the Aarhus Convention and that secondary Community legislation that was incompatible with the Aarhus Convention would be declared invalid. The Commission’s decision to refuse the non-governmental organisations’ (NGOs’) request for internal review of the Commission’s decisions on the ground that the acts were not of ‘individual scope’ was therefore unlawful. Regrettably, that decision has now been reversed on appeal by the CJEU.5

Judgment of the General Court of the EU on Access to Information under Substance Law

On 08 October 2013, the General Court of the European Union (hereinafter General Court) delivered a judgment based on the Aarhus Regulation 1367/2006 on the access to information on substances under plant protection law, which attracted considerable attention among experts with conflicting response from environmental associations and industry. The judgment – still appealable at the time this article was written – would in case of becoming unappealable result in extensive limitations to the protection of commercial and industrial secrets under plant protection law, but additionally also generally under substance law. The following article analyses the content of the decision.

Access to EU environmental information: EU compliance with Aarhus Convention

This article examines the relationship between the EU Access to Document Regulation (1049/2001/EC), the Aarhus Regulation (1367/2006/EC) and the provisions of the UNECE Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. It considers the extent to which the combined provisions of the EU regulations succeed in aligning EU law with the access to environmental information provisions of the Convention. The focus of the examination is on the exceptions to disclosure and the differences between the Convention and the EU legislation will be analysed. It will be argued that not only does the EU legislation lack coherence and clarity but also that the combined provisions breach the Convention in a number of key respects.

Access to Justice at EU Level in Environmental Law

Article 263(4) TFEU and the Aarhus Regulation continue to be interpreted in such a way as to restrict access to justice for environmental interest groups. Since litigation has the potential to contribute to the development of EU environmental law, who chooses what is subject to judicial scrutiny and under what circumstances, matters. Limited access to justice raises concerns about accountability and effective judicial protection; access for corporate or economic interests, without balancing access for collective environmental interests, is potentially of broader concern in respect of the development of environmental norms.

A first success in the long run for better access to justice in the EU: The scope of the administrative review procedure provided under Regulation 1367/2006 invalidated by the General Court

The EU General Court adopted two long awaited decisions on 14 June 2012 in cases T-338/08 and T-396/09 in which it interprets for the first time Regulation 1367/2006 (the Aarhus Regulation) that applies the Aarhus Convention to EU institutions and bodies. The General Court also departs from the caselaw of the Court on the possibility for the Courts to examine the validity of an act of European Union law in the light of an international treaty. The author of this article supports this ruling and provides arguments that advocate a broadening of the control of legality of EU law. In both decisions, the General Court held that the regulation was not compatible with the Convention with regard to the types of acts that could be challenged through the administrative procedure provided by the Aarhus Regulation. Art. 10 of Regulation 1367/2006 allows NGOs to challenge decisions of EU institutions which constitute 'administrative acts'. In case T-338/08, the Non-Governmental Organisation (NGO) applicants made a request to the Commission to review Regulation 149/2008 setting maximum residue level for certain products. In case T-396/09, NGOs asked the Commission to review the decision granting the Kingdom of the Netherlands a temporary exemption from the obligations laid down by Directive 2008/50/EC on ambient air quality and cleaner air for Europe. In both cases, the Commission considered the requests inadmissible claiming that the concerned acts were not 'administrative acts' as defined in Art. 2(1)(g) of Regulation 1367/2006 because they were not of 'individual scope'. The Court annulled both decisions. It therefore broadened the interpretation of the right access to justice for NGOs in environmental matters. A great move forward one might hope, but the Commission has appealed against both judgments. In this article, it is examined what real added value these decisions have with regards to access to justice. The author demonstrates that even though these decisions allow a broader category of acts, including those adopted through comitology, to be challenged under the administrative review procedure provided by the Aarhus Regulation, the decisions still do not ensure compliance of EU law with the Aarhus Convention. In this regard, the author sees that the appeal of the Commission focuses on the relationship between international law and EU law and the role of the latter as a 'benchmark' and legal basis to invalidate acts of secondary law.

Access to documents: Interaction and gaps in the REACH and Aarhus Convention systems

Regulation (EC) 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) was published in the Official Journal on 30 December 2006 and came into force on 1 June 2007. Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies entered into force on 28 September 2006 and became applicable on 28 June 2007. This article discusses the gaps in REACH in relation to the Aarhus Regulation, and the obligations for ECHA that derive from the application of REACH and from the fact that the EU is a party to the Aarhus Convention. The article also carries out a partial assessment of the work conducted by ECHA on access to and dissemination of environmental information.

Internal Review of EU Environmental Measures. It’s True: Baron Van Munchausen Doesn’t Exist! Some Remarks on the Application of the So-Called Aarhus Regulation

This contribution discusses, critically, the application of the so called Aarhus Regulation. This regulation enables environmental NGOs to request an internal review under environmental law of acts adopted, or omissions, by EU institutions and bodies. It emerges that this internal review procedure does not function adequately at all. It can be concluded from the small number of requests that have been lodged since the entry into force of the regulation, that the procedure is not very popular. It appears that in the few cases in which a request for internal review has been lodged, this, leaving aside one single case, did not lead to a substantive assessment of the request. The vast majority of the requests were declared inadmissible. The authors propose that the conditions in the Regulation for admissibility should be interpreted and applied more in conformity with the Aarhus Convention. And that only ‘legislative acts’ within the meaning of Articles 289-292 TFEU should be excluded from the internal review procedure of the Regulation.

Internal Review of EU Environmental Measures It's True: Baron van Munchausen Doesn't Exist! Some Remarks on the Application of the So-Called Aarhus Regulation

This contribution discusses, critically, the application of the so called Aarhus Regulation. This regulation enables environmental NGOs to request an internal review under environmental law of acts adopted, or omissions, by EU institutions and bodies. It emerges that this internal review procedure does not function adequately at all. It can be concluded from the small number of requests that have been lodged since the entry into force of the regulation, that the procedure is not very popular. It appears that in the few cases in which a request for internal review has been lodged, this, leaving aside one single case, did not lead to a substantive assessment of the request. The vast majority of the requests were declared inadmissible. The authors propose that the conditions in the Regulation for admissibility should be interpreted and applied more in conformity with the Aarhus Convention. And that only ‘legislative acts’ within the meaning of Articles 289-292 TFEU should be excluded from the internal review procedure of the Regulation.

NGO Standing in the European Court of Justice – Does the Aarhus Regulation Open the Door?

This article assesses whether the new European Community (EC) Regulation applying the provisions of the Aarhus Convention to EC institutions and bodies provides non‐governmental organizations (NGOs) with access to justice in compliance with the EC's obligations under the Aarhus Convention. We conclude that, notwithstanding the uncertainty over the wording finally adopted in the Aarhus Regulation, the procedural rights granted to NGOs in the Regulation brings NGOs within the standing requirements of the EC Treaty, such that they can seek justice in the European courts. This is a significant development in the field of environmental democracy and procedural rights to the environment – including the ability to seek enforcement of the right to a healthy environment.