University of Amsterdam Amsterdam Law School
MASTER’S THESIS
The Implementation of the third pillar of the Aarhus Convention by the European Union: the Access to Justice
Arthur Rialland
Student Number: 12858099 (arthur.rialland@gmail.com) International and European Law (LL.M.)
Date of Submission: Monday, 8th June 2020 Prof. Mr. Dr. René Lefeber
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Abstract
The Aarhus Convention consists of three pillars aimed at furthering the accountability of and transparency in decision-making for decisions on the environment. Among these, the third pillar on the access to justice in environmental matters remains controversial. Indeed, if it is a means to strengthen the rule of law, it has also been considered as a means to weaken the latter by relativizing the force of decisions of public authorities.
Considering the guarantees given by EU law to ensure effective judicial protection, one might expect that the implementation of the third pillar of the Aarhus Convention should not pose any problems for this organization. Nonetheless, the Aarhus Convention Compliance Committee has found that the EU actually fails to comply with the third pillar. To make sense of such a paradox, we have examined through legal doctrine the way the Union has implemented this part of the Convention and sought to understand the reasons for such a failure as much as its possible solutions. Furthermore, we also tried to define the limits of failings, that is to say, to find possible success in the implementation by the EU of the third pillar of the Aarhus Convention. Finally, the findings of the Aarhus Convention Compliance Committee proved to be true. Indeed, despite changes brought by the Lisbon Treaty, the scope of EU judicial procedures addressed both directly and indirectly to EU Courts has remained too restricted to ensure a proper access to justice with respect to the Convention. Furthermore, this failure has not been balanced by appropriate administrative procedures. Indeed, under the Aarhus Regulation, EU administrative procedures in themselves and in combination with EU judicial procedures are also too restricted in their scope regarding the third pillar of the Aarhus Convention. However, the implementation by the EU of this third pillar has also proven to be more ambivalent than our previous findings might suggest. Indeed, the access to justice in environmental matters – as it is promoted by the EU - changes tremendously depending on whether it deals with an EU or a national organ. Regarding procedures before national organs, the EU has actually ensured a better implementation of the third pillar of the Aarhus Convention through both EU secondary legislation and ECJ case-law. Finally, regarding procedures before EU organs, despite the failings previously mentioned, the EU tends to learn from its mistakes. Thus, facing difficulties to change both the case-law of the ECJ and the provisions of the TFEU, the EU has begun a reform process aimed at amending the Aarhus Regulation to ensure full compliance of EU administrative procedures with the third pillar of the Aarhus Convention.
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Table of contents
INTRODUCTION ... 1
I. THE RESTRICTIVE APPROACH OF THE EU ON THE IMPLEMENTATION OF THE THIRD PILLAR OF THE AARHUS CONVENTION ... 3
A. A RESTRICTIVE APPROACH OF THE ADMISSIBILITY BEFORE EUCOURTS ... 3
1. Restrictions set for cases directly received by EU Courts ... 4
a) Restrictions highlighting the legal orthodoxy ... 4
b) Restrictions continuing after the Lisbon Treaty ... 6
2. Restrictions not offset by cases transferred by EU Courts by national Courts ... 8
B. A RESTRICTED APPROACH OF THE ADMINISTRATIVE REVIEW BEFORE EU ADMINISTRATIONS... 9
1. A restricted approach ratione personae ... 10
2. A restricted approach ratione materiae ... 10
a) An approach restricted to certain administrative acts ... 11
1) An approach restricted to acts with legally binding and external effects ... 12
2) An approach restricted to individual acts... 12
3) An approach restricted to acts adopted under environmental law... 13
b) An approach restricted for the acts of certain EU bodies ... 14
c) An approach restricted to administrative review decisions ... 16
1) An approach following a strict interpretation of the Aarhus Regulation ... 16
2) An approach raising some difficulties with the Aarhus Convention ... 18
II. THE AMBIVALENT APPROACH OF THE EU ON THE IMPLEMENTATION OF THE THIRD PILLAR OF THE AARHUS CONVENTION ... 20
A. AN IMPLEMENTATION OF THE THIRD PILLAR DEMANDING A REFORM OF ACCESS TO JUSTICE AT EU LEVEL 20 1. A reform of the Aarhus Regulation ... 21
a) Development through soft law ... 21
b) Development through case-law ... 22
c) Development through hard law ... 23
2. A reform of the TFEU ... 25
a) A reform through a modification of the TFEU ... 25
b) A reform through a reinterpretation of the TFEU ... 26
B. AN IMPLEMENTATION OF THE THIRD PILLAR PREVENTING A RESTRICTION OF ACCESS TO JUSTICE AT NATIONAL LEVELS ... 28
1. Preventive measures set by the EU legislator for specific EU environmental laws ... 29
2. Preventive measures developed by the EU judiciary for general EU environmental law ... 31
a) Preventive measures developed through the principle of sincere cooperation ... 31
b) Preventive measures developed through the principle of effectiveness ... 32
CONCLUSION... 35
BIBLIOGRAPHY ... 36
TREATIES ... 36
EUROPEAN UNION ACTS OF SECONDARY LEGISLATION ... 36
CASES ... 37
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Introduction
The Convention on access to information, public participation in decision-making and access to justice in environmental matters1 is considered by the former United Nations (UN) Secretary-General Kofi Annan as “the most ambitious venture in the area of environmental democracy”.2
Better known as the Aarhus Convention, it consists of three pillars aimed “to further the accountability of and transparency in decision-making (…) for decisions on the environment”.3 Its first two pillars are the access to environmental information4 and the public participation in environmental procedures5. These aim at “[encouraging] widespread public awareness of, and participation in, decisions affecting the environment and sustainable development”.6 In contrast,
the third and last pillar concerning access to justice in environmental matters is more controversial, since it aims at making effective judicial mechanisms accessible “to the public (…) so that its legitimate interests are protected and the law is enforced”.7 Indeed, although this
last pillar might appear as a means to strengthen the rule of law, it might also weaken the latter by relativizing the force of decisions made by public authorities.8
Nevertheless, this issue does not only constitute a challenge for States, but also for international organizations such as the European Union (EU). Indeed, since the ratification was left open to regional economic integration organizations,9 the EU also became a party to the Aarhus Convention in 2005.10
At first sight, one may argue that the implementation of the Aarhus Convention and its third pillar on the access to justice in environmental matters should not pose a problem to the EU. Indeed, relying on the principle of effective judicial protection,11 EU primary law guarantees
1 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters, UN Treaty Series, vol. 2161 (1998): 447 (Aarhus Convention).
2 UN Economic Commission for Europe, The Aarhus Convention, An Implementation Guide, 2nd Edition (2014):
253.
3 Preamble, Aarhus Convention. 4 Art. 4 et seq., Aarhus Convention. 5 Art. 6 et seq., Aarhus Convention. 6 Preamble, Aarhus Convention. 7 Preamble, Aarhus Convention.
8 T. von Danwitz, “Aarhus-Konvention: Umweltinformation, Öffentlichkeitsbeteiligung, Zugang zu den
Gerichten”, Neue Zeitschrift für Verwaltungsrecht, Heft 3 (2004): 274.
9 Art. 19 (1), Aarhus Convention.
10 Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community,
of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, 2005, OJL 124/1.
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“the right [of everyone] to an effective remedy before a tribunal”.12 Nevertheless, with respect
to this third pillar, the Aarhus Convention Compliance Committee (ACCC) found in 2017 that the EU had failed “to comply with [the Aarhus Convention] with regard to access to justice by members of the public”.13
Then, one might wonder whether the implementation of the third pillar of the Aarhus Convention by the EU is fully incompatible with this Convention and, if so, to what extent. To answer this question, we will see that the incompatibilities raised by the ACCC are primarily due to the restrictive approach the EU has adopted in the implementation of the third pillar of the Aarhus Convention (I). However, this comment will need to be balanced. Indeed, the approach adopted by the EU to implement this part of the Convention remains ambivalent and very mixed (II).
12 Art. 47, Charter of Fundamental Rights of the EU, 2012, OJC 326/391 (Charter of the EU).
13 ACCC, “Findings and Recommendations of the Compliance Committee with regard to Communication
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I. The restrictive approach of the EU on the implementation of the third pillar of the Aarhus Convention
First and foremost, we will see that the incompatibilities raised by the ACCC are due to the restrictive approach the EU has adopted to implement the third pillar of the Aarhus Convention. Theoretically, the third pillar of the Aarhus Convention requires that members of the public can “challenge acts and omissions [of] private persons and public authorities which contravene provisions (…) relating to the environment” through a procedure either administrative or judicial.14 However, the ACCC found the EU in violation of this provision for both its judicial and administrative procedures. On the one hand, regarding judicial procedures, it notes that “there [is] no (…) direction in the jurisprudence of the EU Courts that will ensure compliance with the Convention”.15 Then, on the other hand, regarding administrative procedures, it
observes that this failing of the jurisprudence has neither been corrected nor compensated by EU law,16 especially the Aarhus Regulation17.
Consequently, we shall successively review each of these two incompatibilities. Thus, we will see that, regarding judicial procedures, incompatibilities are mainly due to the restrictive approach EU Courts have adopted regarding admissibility (A). Furthermore, we shall see that, though EU administrative procedures might have compensated the failure of EU judicial procedures, they are also incompatible with the third pillar of the Convention because of the narrowness of the administrative review performed by EU administrations (B).
A. A restrictive approach of the admissibility before EU Courts
Regarding judicial procedures, Ludwig Krämer affirms that “the access to European justice in environmental matters is [in practice] reserved to the European Commission and the Member States”.18
Indeed, the restrictive approach of admissibility by EU Courts might raise incompatibilities between EU judicial procedures and the third pillar of the Aarhus Convention. Although that
14 Art. 9 (3), Aarhus Convention.
15 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 122. 16 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 122.
17 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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, 2006, OJL 264/13 (Aarhus Regulation).
18 L. Krämer, “Environmental Complain in EU Law”, Journal for European Environmental & Planning Law 6,
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concerns cases directly received by EU Courts under Article 263 TFEU19 (1), this issue is not even offset by cases indirectly transferred to EU Courts by national Courts under Article 267 TFEU (2).
1. Restrictions set for cases directly received by EU Courts
Regarding judicial procedures directly addressed to EU Courts, their incompatibilities with the third pillar of the Aarhus Convention are first and foremost representative of a certain legal orthodoxy (a). In addition, despite their reformation by the Lisbon Treaty, these incompatibilities with the Aarhus Convention remain (b).
a) Restrictions highlighting the legal orthodoxy
For a better comprehension of the incompatibilities attached to EU judicial procedures, we need to understand the structure of Article 263 TFEU. Under this provision, only three categories of applicants are admissible in EU judicial proceedings. The first category corresponds to privileged applicants – like the European Parliament and the Council – that do not need to prove any interest.20 Then, the second category consists of the addressees of an act.21 However,
according to the ACCC, the first two categories do not need any consideration, since they patently do not implement the third pillar of the Convention.22
Then, the third and last category allows persons to challenge an act if this latter “is of direct and individual concern” to them, even though these persons are not the addressees of the act.23 Nevertheless, these two criteria have been problematic for the proper implementation of the third pillar of the Aarhus Convention.
Regarding the ‘direct concern’ criterion, the European Court of Justice (ECJ) establishes clear criteria to satisfy this requirement. In that respect, the act in question must, on the one hand, “directly affect the legal situation of the individual” and, on the other hand, “leave no discretion to the addressees (…) who are entrusted with the task of implementing it”.24 Such interpretation
may nevertheless be a problem before EU Courts when challenging European directives on the environment. Indeed, since EU directives are only binding “as to the result to be achieved” and
19 Treaty on the Functioning of the EU, 2012, OJC 326/47 (TFEU). 20 Art. 263 (2) and 263 (3), TFEU.
21 Art. 263 (4), TFEU.
22 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 65. 23 Art. 263 (4), TFEU.
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leave “to the national authorities the choice of form and methods”, 25 only national
implementing acts may be challenged but not the directive itself.26 Furthermore, the ACCC points out that, under such interpretation, an organization promoting environmental protection can never be directly concerned, “unless the measure in question directly [affects] the organization’s [own] legal position”.27 Consequently, one can conclude that “the direct concern
criterion alone prevents [EU judicial procedures] from implementing [the third pillar of the Aarhus Convention]”.28 Nevertheless, the second criterion set for this third category of applicants also leads to difficulties.
Indeed, regarding the ‘individual concern’ criterion, the ECJ has ruled that, to satisfy this requirement, persons need - by reason of certain attributes which are peculiar to them - to be individually distinguished just as in the case of the person addressed.29 However, this so-called
Plaumann doctrine is quite problematic in environmental matters. Indeed, as noted by Advocate
General (AG) Cosmas, the harm to the environment “affects categories of persons in a general, objective and abstract manner”,30 none is subjectively the addressee of such damage. But,
despite these reservations, the General Court considers that the Plaumann doctrine remains applicable “whatever the nature, economic or [environmental], of those of the applicants’ interests which are affected”.31 This ruling has even been confirmed by the Court of Justice that considers such interpretation as “consonant with [its] settled case-law”.32
Thus, with regard to the third pillar of the Aarhus Convention, the ACCC naturally considers that the Plaumann doctrine is “too strict to meet the criteria of the Convention”.33 However, this interpretation is not trivial and does actually rely on the vision supported by the authors of the treaties in 1957, that is to say, a traditional and subjective analysis of admissibility that does not take the originality of environmental issues into account.34
25 Art. 288 (3), TFEU.
26 M. Granger, “Standing for the Judicial Review of Community Acts Potentially Harmful to the Environment:
Some Light at the End of the Tunnel”, Environmental Law Review 5, no. 1 (2003): 50.
27 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 75. 28 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 76.
29 ECJ, Judgement of 15th July 1963, Plaumann, C-25/62, EU:C:1963:17, p. 107.
30 AG Cosmas, Opinion of 23rd September 1997, Greenpeace International, C-321/95 P, EU:C:1997:421, para.
104.
31 ECJ, Judgement of 9th August 1995, Greenpeace International, T-585/93, EU:T:1995:147, para. 50. 32 ECJ, Judgement of 2nd April 1998, Greenpeace International, C-321/95 P, EU:C:1998:153, para. 27.
33 ACCC, “Findings and Recommendations of the Compliance Committee with regard to Communication
ACCC/C/2008/32 (Part I) concerning Compliance by the EU” (2011), para. 87.
34 N. de Sadeleer, C. Poncelet, “Contestation des actes des institutions de l’Union européenne à l’épreuve de la
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b) Restrictions continuing after the Lisbon Treaty
Considering the numerous issues raised by EU judicial procedures, the authors of the Lisbon Treaty35 amended Article 263 TFEU and added a fourth category of applicants to broaden the access to justice. Hence, the TFEU allows anyone to institute proceedings “against a regulatory act which is of direct concern to [him or her] and does not entail implementing measures”.36 However, each of the three criteria poses problems for the implementation of the third pillar of the Aarhus Convention.
First of all, regarding the ‘direct concern’ criterion, the ECJ has interpreted it in the same manner as for the ‘direct concern’ criterion of the old provisions.37 Thus, this first criterion
retains the same flaws and therefore prevents this new category of applicants to properly implement the third pillar of the Aarhus Convention.
Regarding the next criterion, only “regulatory acts” are challengeable. However, the first question raised by this criterion was its definition. Indeed, EU treaties do not define what a regulatory act is. Then, to widen the scope of this new category and thus to facilitate access to justice, some scholars defined these acts - in a very broad manner - as legislative and non-legislative acts of general application and of direct effect.38 Still, as advocated by other scholars,39 the ECJ relied on the definition given by national laws and preferred to define them more narrowly as “all acts of general application apart from legislative acts”.40 Nonetheless,
such interpretation appears as incompatible with the third pillar of the Aarhus Convention. Indeed, for the Convention, the scope of challengeable acts in environmental matters must be much wider and encompass all acts “which contravene provisions (…) relating to the environment”.41 But as reported by the ACCC, in view of this criterion and its interpretation by
the ECJ, “some acts (…) susceptible to judicial review under [the definition of the Convention] will not fall within the category”.42 Then, the scope of this criterion appears to be “too narrow
(…) to bring the [EU] into compliance with” the third pillar of the Aarhus Convention.43
35 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community,
2007, OJC 306/1.
36 Art. 263 (4), TFEU.
37 ECJ, Judgement of 25th October 2011, Microban International, T-262/10, EU:T:2011:623, para. 27. 38 Sadeleer (n 34) 20.
39 A. Turk, Judicial Review in EU Law (Edward Elgar Publishing Ltd 2009): 168. 40 ECJ, Judgement of 6th September 2011, Inuit, T-18/10, EU:T:2011:419, para. 56. 41 Art. 9 (3), Aarhus Convention.
42 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 71. 43 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 71.
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Finally, even if the two first criteria were enough to establish the incompatibility of this new category of applicants with the third pillar of the Aarhus Convention, the third and last criterion also appears problematic. Indeed, to be challenged under this new category, the act must also “not entail implementing measures”. For the ECJ, the act must “directly [affect] the legal situation of a [person] without requiring implementing measures”.44 Nevertheless, “given that
most EU environmental rules require implementing measures”,45 this criterion severely limits the scope and the impact of the reform brought by the Lisbon Treaty, in particular – as observed above - in the case of EU directives. Furthermore, as noted by the ACCC, “there is no basis in the [Aarhus Convention] for excluding (…) acts which include implementing measures”.46 Indeed, although the third pillar of the Convention allows a degree of discretion to provide criteria to access to justice in environmental matters, “it does not allow Parties any discretion as to the acts or omissions that may be excluded”.47
Consequently, the fourth category of applicants brought by the Lisbon Treaty appears as a failed attempt to bring EU judicial procedures into compliance with the third pillar of the Aarhus Convention. Indeed, as noted by the European Commission, this reform has “not triggered major changes [for] environmental NGOs”, since, “in most circumstances, [they] are unlikely to be able to successfully” fulfil all criteria.48
Nevertheless, in spite of the numerous flaws attached to EU judicial procedures with regard to the third pillar of the Aarhus Convention, one has argued that these flaws have actually been offset by another mechanism. Under this argument, what has lacked in judicial procedures directly addressed to EU Courts would have been compensated by judicial procedures indirectly addressed to EU Courts by national Courts under preliminary ruling proceedings.
44 ECJ, Judgement of 19th December 2013, Telefónica, C-274/12 P, EU:C:2013:852, para. 27.
45 C. Poncelet, “Access to Justice in Environmental Matters – Does the European Union Comply with its
Obligations”, Journal of Environmental Law 24, issue 2 (2012): 301.
46 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 79. 47 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 80.
48 European Commission, Report on European Union implementation of the Aarhus Convention in the area of
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2. Restrictions not offset by cases transferred by EU Courts by national Courts
Regarding judicial procedures transferred to EU Courts by national judges, one should keep in mind that national Courts are “to ensure effective legal protection in the fields covered by [EU] law”.49 But, where necessary, a national case may still be transferred to EU Courts, so that these
may interpret or rule on the validity of EU law.50 Thus, thanks to this preliminary ruling mechanism, the ECJ considers that the access to justice in environmental matters is, in accordance with the Aarhus Convention, “fully protected by the national Courts, which may, if need be, refer a question to [EU Courts] for a preliminary ruling”.51
However, the ACCC does not agree with this reasoning and considers that the preliminary ruling procedure is not enough to compensate the failure of EU judicial procedures to implement the third pillar of the Aarhus Convention. Indeed, in 2011 then – a second time - in 2017,52 the Committee found that the preliminary ruling procedure “does neither in itself meet
the requirements of access to justice nor compensate for the strict jurisprudence of the EU Courts”.53
Indeed, from a practical point of view, the argument put forward by the ECJ fails because of the so-called acte clair doctrine. Indeed, particularly if the interpretation of the act concerned is obvious, national Courts may decide not to transfer a preliminary ruling question to the ECJ.54 Thus, by applying this doctrine (sometimes in an abusive manner), national judges could refuse to transfer a case to the ECJ.55 For this reason, the European Commission notes that “validity references represent a small sub-set of cases brought” under the preliminary ruling procedure and that – among these references - those “related to the environment have been very rare”.56 For all these reasons, the ACCC has found that the preliminary ruling procedure “does neither in itself meet the requirements of access to justice [on the basis of the third pillar of the Aarhus Convention] nor compensate for the strict jurisprudence of the EU Courts”.57
49 Art. 19 (1) §2, Treaty on European Union, 2012, OJC 326/13 (TEU). 50 Art. 267, TFEU.
51 ECJ, Greenpeace International (n 32), para. 33. 52 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 59. 53 ACCC, ACCC/C/2008/32 (Part I) (n 33), para. 90.
54 ECJ, Judgement of 6th October 1982, Cilfit, C-283/81, EU:C:1982:335, para. 21.
55 M. Broberg, N. Fenger, “L’application de la doctrine de l’acte clair par les juridictions des États membres”,
Revue trimestrielle de droit européen, no. 4 (2010): 866.
56 European Commission, Report (n 48): 15. 57 ACCC, ACCC/C/2008/32 (Part I) (n 33), para. 90.
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In conclusion, EU judicial procedures do not comply with the third pillar of the Aarhus Convention. And, even though the incompatibilities raised by the ACCC mainly concern the judicial procedures directly addressed to the ECJ, the procedures indirectly addressed to the ECJ - through the preliminary ruling mechanism - cannot compensate these incompatibilities.
B. A restricted approach of the administrative review before EU administrations
As mentioned earlier, under Article 9 (3) Aarhus Convention, the access to justice in environmental matters may not only be judicial but also administrative. Then, if judicial procedures fail to implement the Convention, one might wonder whether it is also true for administrative procedures. Indeed, as mentioned by the ACCC, the incompatibilities of judicial procedures may be “fully compensated for by adequate administrative review procedures”.58
Following this idea, the EU introduced the Aarhus Regulation with the aim to “contribute to the implementation of the obligations arising under the [Aarhus Convention]”59 and thus to
compensate the failures of EU judicial procedures regarding the third pillar of the Convention. However, despite its initial objective, the ACCC has found that the Aarhus Regulation “does not correct or compensate for the failings of the jurisprudence”.60 This is also confirmed by the
European Commission’s observation that, at the administrative review stage, “over two-thirds of [the requests of environmental NGOs] have been treated as inadmissible”.61
This situation can be explained by the restricted scope of the Aarhus Regulation. Indeed, turning first to its scope ratione temporis (by reason of time), it gives only six weeks to the applicant to make a request for internal review.62 Then, EU administrations only have between twelve and eighteen weeks to respond to the claim.63
Nevertheless, the scopes ratione personae - by reason of the person - (1) and ratione materiae – by reason of the matter - (2) of the Aarhus Regulation are also problematic. Indeed, each of them constitutes a barrier to the proper implementation of the third pillar of the Aarhus Convention by EU administrative procedures.
58 ACCC, ACCC/C/2008/32 (Part I) (n 33), para. 88. 59 Art. 1 (1), Aarhus Regulation.
60 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 121. 61 European Commission, Report (n 48): 11.
62 Art. 10 (1), Aarhus Regulation. 63 Art. 10 (2) and (3), Aarhus Regulation.
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1. A restricted approach ratione personae
Regarding the scope ratione personae of the Aarhus Regulation, one might wonder whether it fits the scope required by the third pillar of the Aarhus Convention.
Under the Aarhus Convention, the access to justice in environmental matters must be open for all “members of the public” that “meet the criteria (…) laid down in [the] law”. Furthermore, for the Convention, a member of the public may be “one or more natural persons [but also] associations, organizations, or groups”.64
Taking a much more restricted view, the EU Aarhus Regulation considers that only an NGO may be a member of the public.65 In this way, although individuals constitute the first category given by the Convention, it seems that the Aarhus Regulation has excluded from its scope of application “one of the major classes of the public” and thus “exceeded [the] margin of discretion” allowed by the Convention.66 In that respect, the ACCC has concluded that, “by
barring all members of the public except NGOs (…), the Aarhus Regulation fails to correctly implement [the third pillar of the Aarhus Convention]”.67
Thus, the scope ratione personae of the administrative procedure established by the Aarhus Regulation is incompatible with the Aarhus Convention and especially with its third pillar. However, the scope ratione materiae of the Aarhus Regulation also raises various problems.
2. A restricted approach ratione materiae
Regarding the scope ratione materiae of the Aarhus Regulation, the question is whether the scope of challengeable acts – as it is established by the Regulation – fits the scope of challengeable acts established by the Aarhus Convention.
Under the Convention, are challengeable all “acts and omissions by private persons and public authorities which contravene provisions (…) relating to the environment”.68
Regarding the Aarhus Regulation, it is important to remember that the administrative procedure it establishes comprises two stages. As for the first step, if the NGO fulfils the ratione personae criteria, it may ask the administration concerned to review an act it had previously issued. Then – if necessary - as a second step, the NGO may go before the ECJ and ask it to review the
64 Art. 2 (4), Aarhus Convention.
65 Art. 10 (1) §1 and 11 (1), Aarhus Regulation.
66 V. Wenneras, The Enforcement of EC Environmental Law (Oxford University Press 2007): 228. 67 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 94.
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validity of the first stage, that is to say, to verify the validity of the review made by the administration.
Considering the first administrative stage, under the Aarhus Regulation, all administrative acts adopted by an EU institution are challengeable.69 However, each of these two criteria is problematic with regard to the third pillar of the Aarhus Convention. Indeed, among administrative acts, only some of them are challengeable by NGOs (a). Furthermore, regarding the second criterion, the definition of ‘EU institution’ – as adopted by the Aarhus Regulation – includes in its scope only certain EU institutions (b).
Besides, with respect to the second stage, that is to say, the judicial stage, its scope ratione
materiae is also incompatible with the third pillar of the Aarhus Convention. Indeed, as
interpreted by the ECJ, at this step only the administrative review decision issued by the administration during the first stage is challengeable but not the decision the applicant originally wished to challenge (c).
a) An approach restricted to certain administrative acts
Regarding the first administrative stage established by the Aarhus Regulation, only ‘administrative acts’ may be challenged. However, this requirement is incompatible with the third pillar of the Aarhus Convention for reasons both formal and substantive.
From a purely formal point of view, the appellation of ‘administrative acts’ is problematic irrespective of its content. Indeed, the terminology of Article 9 (3) Aarhus Convention only refers to “acts and omissions” and does not refer to any kind of “administrative” measure, unlike the Aarhus Regulation which exclusively refers to “administrative” act.70
Nevertheless, despite these first formal considerations, the notion of ‘administrative acts’ also needs to be more substantively assessed.
From a more substantive point of view, the administrative procedure established by the Aarhus Regulation bases its definition of administrative acts and – consequently – of their omissions on three criteria. Accordingly, administrative acts correspond to all EU measures of individual scope (2) taken under environmental law (3) with legally binding and external effects (1).71
69 Art. 10 (1) §1, Aarhus Regulation.
70 F. Ekardt, “Verbandsklage vor dem EuGH: Mitgliedstaaten verklagen, EU-Institutionen verschonen?”, Neue
Zeitschrift für Verwaltungsrecht, Heft 12 (2015): 774.
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Nonetheless, as we shall see, each of these criteria is incompatible with the third pillar of Aarhus Convention.
1) An approach restricted to acts with legally binding and external effects
First, the criterion requiring the contested act to have ‘legally binding and external effects’ excludes for example EU Environmental Action Programmes72 and internal preparatory acts73. Furthermore, contrary to the provisions of the Aarhus Regulation, some scholars have pointed out that acts without legally binding and external effects should actually also be challengeable under the Convention.74
In line with this argument, the ACCC has considered that acts “that do not have legally binding or external effect (…) might be covered by [the third pillar of the Aarhus Convention]”.75 As a
consequence, generally excluding all acts that do not have legally binding and external effects - as does the Aarhus Regulation - is incompatible with the Convention.76 Thus, with respect to
the third pillar of the Aarhus Convention, this first requirement of the Aarhus Regulation alone invalidates the scope ratione materiae of EU administrative procedures.
Nevertheless, during the drafting of the Aarhus Regulation, Member States called for two supplementary criteria: an ‘individual scope’ criterion (2) and an ‘adoption under environmental law’ criterion (3).77
2) An approach restricted to individual acts
Under the ‘individual scope’ criterion, only individual measures may be challenged through the administrative procedure of the Aarhus Regulation.
In EU law, individual measures are defined in opposition to generally applicable measures.78 Thus, the broader the notion of generally applicable measure, the narrower the scope of individual measures will be and with it the scope ratione materiae of the Aarhus Regulation.
72 ECJ, Judgement of 12th December 1996, Associazione agricoltori della provincia di Rovigo, C-142/95 P,
EU:C:1996:493, para. 32-34.
73 ECJ, Judgement of 23rd March 1993, Weber v. Parliament, C-314/91, EU:C:1993:109, para. 9. 74 Poncelet (n 45): 305.
75 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 104. 76 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 105.
77 Council of the EU, Proposal for an Aarhus Regulation, doc. 5172/05, 2003/0242(COD) (2005): 5 (10), (11). 78 ECJ, Judgement of 24th October 1989, Commission v. Council, C-16/88, EU:C:1989:397, para. 16.
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Following this idea, certain acts have been considered as generally applicable acts and then excluded from the scope of the Regulation. For example, despite their individual scope, all EU decisions individually addressed to a State are seen as generally applicable measures.79 That is why, to prevent abuses and broaden the scope of the Aarhus Regulation, some scholars have proposed to interpret the notion of ‘generally applicable measure’ in a much more restricted manner. For them, the notion of ‘generally applicable measure’ should only include “true legislative acts, such as basic or framework Regulations and directives”.80
This view is even reinforced by the fact that - contrary to the EU Aarhus Regulation - the scope
ratione materiae, of the Aarhus Convention does not make any reference to such an ‘individual
scope’ criterion.81
Nonetheless, in addition to the two first criteria defining “administrative acts” under the Aarhus Regulation, a third criterion must be discussed. Indeed, to be challenged under the Aarhus Regulation, a measure must also have been adopted under environmental law.
3) An approach restricted to acts adopted under environmental law
To define whether an act fulfils the ‘adoption under environmental law’ criterion, one must examine whether the measure, “irrespective of its legal basis, contributes to the pursuit of the objectives of Community policy on the environment as set out in the [EU treaties]”.82
Nevertheless, although the objectives of EU environmental policy are defined in a very large way, they also omit numerous fields that are still susceptible to affect the environment, such as fisheries, agriculture and the industrial policy.83 Thus, to compensate for this, the ECJ has adopted a broad understanding of the ‘adoption under environmental law’ criterion without limitation “to matters relating to the protection of the natural environment in the strict sense”.84
Despite this broad interpretation of the ECJ, the problem still is that this criterion of the Aarhus Regulation excludes measures that are likely to contribute to the impairment of ecosystems but
79 ECJ, Judgement of 14th June 2012, Vereniging Milieudefensie, T-396/09, EU:T:2012:301, para. 34.
80 G. Harryvan, J. Jans, “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”, Review of European Administrative Law 3, no. 2 (2010): 63.
81 Sadeleer (n 34): 28.
82 Art. 2 (1) (f), Aarhus Regulation.
83 Jans J. H. (2006). “Did Baron von Munchausen ever visit Aarhus?” in R. Macrory (Ed.), Reflections on 30 Years
of EU Environmental Law; A Higher Level of Protection, 7, p. 481.
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whose objectives are not the protection of the environment.85 For that reason, the ACCC has considered that – unless the EU moves from an ‘adoption under environmental law’ test to a ‘contravening to the environment’ test – this last criterion defining “administrative acts” under the Aarhus Regulation is to be considered as incompatible with the third pillar of the Aarhus Convention.86
To conclude, if the fact that only ‘administrative acts’ may be challenged under the Aarhus Regulation is problematic in itself, the three criteria defining this category make that limitation even more problematic and then fully incompatible with the third pillar of the Aarhus Convention.
Nonetheless, the ratione materiae scope of the Aarhus Regulation is also limited by other elements. Particularly, if the measure challenged must be an “administrative act” it also needs to be an act adopted by an EU institution. Yet, the definition of ‘EU institution’ – as established by the Aarhus Regulation – only includes certain EU institutions.
b) An approach restricted for the acts of certain EU bodies
Regarding the first administrative stage established by the Aarhus Regulation, even if the applicant meets the ratione personae criteria and that the act challenged is an administrative act, another criterion still needs to be fulfilled.
Under the Aarhus Regulation, the act challenged must have also been adopted by an EU institution. Here, the notion of “EU institution” is understood broadly as “any public institution, body, office, or agency established by [EU treaties]”.87 Nonetheless, despite its status as EU
institution, an institution might still be excluded from the scope of the Aarhus Regulation in two situations. Indeed, are excluded from the scope of that Regulation, on the one hand, EU institutions “acting in a judicial or legislative capacity”88 and, on the other hand, EU institutions
acting as “administrative review [bodies]”89.
However, the interpretation of those exceptions might further restrict the scope ratione materiae of the Aarhus Regulation.
85 Poncelet (n 45): 306.
86 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 101. 87 Art. 2 (1) (c), Aarhus Regulation.
88 Art. 2 (1) (c), Aarhus Regulation. 89 Art. 2 (2), Aarhus Regulation.
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Thus, regarding the first exception related to EU institutions acting in a judicial or legislative capacity, this is consistent with the third pillar of the Aarhus Convention. Indeed, despite its broad understanding of the notion of ‘public authority’, the Convention explicitly excludes from its scope “institutions acting in a judicial or legislative capacity”.90 Thus, this first exception is
fully consistent with the third pillar of the Aarhus Convention.
However, the Aarhus Regulation also excludes from its scope EU institutions when they act as “administrative review” bodies. To be more precise, the Regulation even enumerates a list of procedures that are to be included within the scope of this exception, “such as” the infringement proceedings and the ombudsman proceedings.91 Nevertheless, this second exception is problematic for two reasons. First of all, the use of the term “such as” before the list of examples indicates that this list is actually non-exhaustive.92 Then, this non-exhaustive character could lead EU administrations and the ECJ to interpret the scope of this exception in quite a broad manner. The scope ratione materiae of the Aarhus Regulation could thus be seriously reduced on the basis of this element. But, in addition to this non-exhaustive character, the content of that second exception is controversial as well.
Among the examples enumerated by the Regulation, we particularly find the infringement procedure. The aim of this procedure is, if a Member State fails to fulfil its obligations under EU law, to allow the Commission to bring the matter before the ECJ.93 Then, one could ask whether, in this procedure, the Commission truly acts in an administrative “review” capacity and does not simply “[exercise] decision-making competences like in any other area where it possesses decision-making authority”.94
Actually, for the ACCC, the main incompatibility of the exception of ‘administrative review bodies’ lies neither in its non-exhaustive character nor in its content. Indeed, although the scope of the Aarhus Convention explicitly excludes public authorities acting in a judicial or legislative capacity, this is not true for public authorities acting as administrative review bodies.95 Thus, it appears that the mere existence of the second exception in the Aarhus Regulation is clearly incompatible with the third pillar of the Aarhus Convention.
90 Art. 2 (2), Aarhus Convention.
91 Art. 2 (2) (b) and (c), Aarhus Regulation. 92 Poncelet (n 45): 304.
93 Art. 258 TFEU. 94 Jans (n 83): 480.
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Among the two exceptions set by the Aarhus Regulation with respect to the definition of EU institutions, even if the first one is fully compatible with the Convention, the second one is thus much more problematic.
Consequently, if a measure is, on the one hand, an administrative act and, on the other hand, an act adopted by an EU institution falling within the scope of the Aarhus Regulation, then such a measure is deemed to meet all the ratione materiae criteria of the Aarhus Regulation. So, it may be challenged before EU administrations. But, if the response of the EU administration does not satisfy the applicant, this latter may still challenge the response before the ECJ. This is the second judicial stage of the Aarhus Regulation.
Nonetheless, during that judicial stage, only the administrative review decision issued by the administration during the first stage may be challenged but not the decision the applicant originally wished to challenge.
c) An approach restricted to administrative review decisions
Regarding the second judicial stage established by the Aarhus Regulation, if an EU administration fails to respond to an internal administrative review claim, then the applicant may institute before the ECJ an ‘action for failure to act’ on the basis of Article 265 TFEU.96
However, if the administration has responded but that response does not satisfy the applicant, then the latter may institute an ‘action for annulment’ against this administrative response under Article 263 TFEU.97
Nonetheless, the content of these two procedures has been interpreted by the ECJ in a very strict manner (1). Yet, such interpretation has raised some difficulties with respect to the third pillar of the Aarhus Convention (2).
1) An approach following a strict interpretation of the Aarhus Regulation
Regarding the ‘action in annulment’, as mentioned in the previous section – the applicant needs to be either a privileged applicant or the addressee of the act. Then, if the applicant falls within neither of these two first categories, it may still challenge acts that are “of direct and individual
96 Art. 12 (2), Aarhus Regulation. 97 Art. 12 (1), Aarhus Regulation.
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concern”. But, as we have seen above, the interpretation made by the ECJ of this last third category is quite strict and actually prevents environmental NGOs from accessing EU justice. Nevertheless, following the first administrative stage of the Aarhus Regulation, an EU administration issues an act responding to the claim of the NGO. This response, in addition to reviewing a litigious act, is in itself a decision addressed to the one that triggered the procedure, that is to say to the NGO. Thus, the NGO is now the addressee of an act, the administrative review decision.
Then, as the addressee of this act, the NGO falls now within the second category of Article 263 TFEU, that of the addressees of the act. Thus, it does not need to meet the “direct and individual concern” criteria attached to non-addressees anymore. For that reason, one might consider that the combination between the administrative and judicial procedures of the Aarhus Regulation might help environmental NGOs to circumvent the strict criteria attached to the third category of Article 263 TFEU, which is the category concerning the non-addressees of an act.
However, although the claiming NGO becomes the addressee of an act, that NGO is only the addressee of the administrative review decision responding to its previous claim. The administrative review procedure has not turned the applicant into the addressee of the original administrative decision.
Under such a strict interpretation, an NGO may easily challenge the administrative review decision since it is the addressee of that act. However, regarding the original act, since the NGO is still not the addressee, it may not challenge it, unless by meeting the strict criteria used for the non-addressees of acts. As we have seen previously, the interpretation the ECJ makes of these criteria is too strict to allow a proper access to justice.
Following this strict line, the General Court has considered that, on the occasion of the second judicial stage of the Aarhus Regulation, an applicant can only challenge the administrative review decision issued during the first internal administrative stage, but not the original decision.98 Even though this view of the General Court is currently appealed before the Court of Justice,99 one might expect the Court of Justice to confirm this analysis. Indeed, in a previous
98 ECJ, Judgement of 4th April 2019, ClientEarth v. Commission, T-108/17, EU:T:2019:215, para. 27-28. 99 ECJ, ClientEarth v. Commission, C-458/19 P.
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case, the Court of Justice already ruled that, under the Aarhus Regulation, an applicant may only institute proceedings “against the decision rejecting the request for internal review”.100
Finally, regarding the second action available under the Aarhus Regulation, that is to say the ‘action for failure to act’ under Article 265 TFEU, the question has not yet been raised before the ECJ. However, following the strict interpretation explained above, one can consider that the same problem might arise. Indeed, the ECJ would probably examine the responsibility of the administration for its failure to act, but not the act originally challenged. The problem would thus be exactly the same as for the action in annulment.
2) An approach raising some difficulties with the Aarhus Convention
With respect to the previous developments, some scholars have considered that the Aarhus Regulation does not help NGOs as regards the proper implementation of the third pillar of the Aarhus Convention. Indeed, this Regulation gives no new opportunity regarding access to justice since the subject-matter of the judicial procedure it establishes can only be the illegality of the administrative response.101
That is why the ACCC has found that, as long as the ECJ interprets the Aarhus Regulation in such a strict manner, the judicial stage of the Aarhus Regulation is to be seen as inconsistent with the requirements of the third pillar of the Aarhus Convention.102 Furthermore, for the Committee, the provisions of the Regulation might allow a much broader interpretation enabling the review of the original act by the ECJ.103
Thus, as explained in previous developments, the scopes ratione personae and ratione materiae of the Aarhus Regulation obviously suffer from many incompatibilities with the third pillar of the Aarhus Convention. That explains why the ACCC has considered that the Aarhus Regulation “does not correct or compensate for the failings of the jurisprudence”.104 Then, the administrative procedure set by this Regulation is unable to compensate for the failure of EU judicial procedures to properly implement the third pillar of the Aarhus Convention.
100 ECJ, Judgement of 12th September 2019, TestBioTech, C-82/17 P, EU:C:2019:719, para. 38.
101 E. Brosset, “Le glyphosate devant la Cour : quels enseignements sur le droit d’accès aux documents et à la
justice dans le domaine de l’environnement”, Revue trimestrielle de droit européen, no. 3 (2019): 646.
102 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 120. 103 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 119. 104 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 121.
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All these reasons lead us to consider that the implementation of the Aarhus Convention by the EU – regarding EU procedures both judicial and administrative - is incompatible with the third pillar of that same Convention.
Nevertheless, to be fair, these incompatibilities need to be nuanced. Indeed, considered in its entirety, the implementation of the third pillar of the Aarhus Convention by the EU is actually much more ambivalent than our previous developments might suggest.
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II. The ambivalent approach of the EU on the implementation of the third pillar of the Aarhus Convention
In view of the many issues raised by the jurisprudence of the ECJ on the implementation of the third pillar of the Aarhus Convention, certain of its decisions can appear surprising. Indeed, the Court has found that “it is for the national Courts (…) to interpret [national laws] in a way which, to the fullest extent possible, is consistent with the objectives [of the third pillar of the Aarhus Convention]”.105 Struck by the gap between the way the ECJ interprets EU law with regard to the Aarhus Convention and what the ECJ expects of national Courts, the ACCC did not hide its surprise. Indeed, it regretted that “despite its findings with respect to the national Courts, the ECJ does not consider itself bound by [such] principle”.106
Alone, this finding summarises quite neatly the ambivalence of the implementation of the third pillar of the Aarhus Convention by the EU. Nonetheless, this finding dated 2017 might be nuanced in itself, since many transformations are now envisioned by the EU regarding the incompatibilities pointed out in the previous part. Thus, to examine the implementation of the third pillar of the Aarhus Convention by the EU in its entirety, one must keep in mind two elements.
Firstly, with respect to access to justice before EU organs, the implementation of the third pillar requires substantial reforms which are being discussed within the EU (A). Secondly, with respect to access to justice before national organs, the implementation of the Aarhus Convention developed by the EU through secondary legislation rather tends to provide a better implementation of the Convention in Member States (B).
A. An implementation of the third pillar demanding a reform of access to justice at EU level
As previously mentioned, at EU level, access to justice is quite restricted regarding procedures both judicial and administrative. Indeed, the strict interpretation of the ECJ with respect to EU judicial procedures as well as the narrow provisions of the Aarhus Regulation regarding EU administrative procedures prevent the proper implementation by the EU of the third pillar of the Aarhus Convention.
105 ECJ, Judgement of 8th March 2011, Slovakian Brown Bear, C-240/09, EU:C:2011:125, para. 50. 106 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 83.
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Confronted by these issues, the EU has discussed a reform of its procedures both administrative and judicial to enable a better implementation of the third pillar of the Aarhus Convention. Such an ambitious reform could be achieved through modifications of both the Aarhus Regulation (A) and the TFEU (B).
1. A reform of the Aarhus Regulation
For the Aarhus Regulation to comply with the provisions of the third pillar of the Aarhus Convention, various kinds of measures have been proposed. Following the findings of the ACCC on this Regulation, the European Parliament called on the European Commission to take these findings into account and “to propose [a] revision of the Aarhus Regulation”.107 In a similar way, the Council required the Commission “to submit (…) a proposal for a [Regulation] amending the [Aarhus Regulation], or otherwise to inform the Council on other measures required”.108
Responding to these requests, the European Commission has found “a number of possible non-legislative and non-legislative measures” to reform the Aarhus Regulation.109 So, the Commission
has been studying possible reforms through soft (a) and hard law (c). Furthermore, even though the independence of the ECJ has prevented the Commission from considering a change in the case-law of EU Courts, we shall also take such a possibility into account (b).
a) Development through soft law
Regarding possible soft law reforms to address difficulties relating to EU administrative procedures, the Commission has proposed two solutions that would take the form of either an administrative review guidance or a judicial review guidance.
With respect to the first solution, issuing an administrative review guidance means drafting a notice on the Aarhus Regulation “aimed at both an internal (….) and an external audience”.110 Such notice would “[clarify] the procedure” and probably result in “a decrease of inadmissible requests, as NGOs would not take the time to submit requests they know in advance would
107 European Parliament Resolution 2017/2705(RSP) of 16 November 2017 on the EU Environmental
Implementation Review (EIR), 2018, OJC 356/84, para. 26.
108 Council Decision 2018/881 of 18 June 2018 requesting the Commission to submit a study on the Union’s
options for addressing the findings of the ACCC in case ACCC/C/2008/32 and, if appropriate in view of the outcomes of the study, a proposal for a Regulation of the European Parliament and of the Council amending THE Aarhus Regulation, 2018, OJL 155/6, Art. 2 (1).
109 European Commission, Report (n 48): 29.
110 Milieu, Study on EU implementation of the Aarhus Convention in the area of access to justice in environmental
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likely be considered inadmissible by the Commission and the ECJ”.111 However, such a
measure would not solve in itself the issue EU law has with respect to the third pillar of the Aarhus Convention. Indeed, the mere fact that these clarifications would lead to a decrease in the number of requests does rather highlight the failure of EU administrative procedures regarding the implementation of the Convention.
The second solution - that is to say issuing a judicial review guidance – follows the same line. This guidance would aim at specifying the role of the preliminary ruling mechanism as a way of challenging EU environmental acts through national Courts.112 Nevertheless, irrespective of potential clarifications, we have seen previously that – for practical reasons – the preliminary ruling mechanism is not a satisfying solution to address the failure of EU judicial procedures to properly implement the third pillar of the Aarhus Convention.
Then, we see that, the drafting of these two communications would not really help the EU to better implement the third pillar of the Aarhus Convention. Thus, although the Commission is preparing to issue a similar communication on access to justice in environmental matters,113 we
need to assess other possibilities. In that way, another solution requesting no legislative modification would be a change in the case-law of the ECJ.
b) Development through case-law
Case-law might also have important consequences on the implementation by the EU of the third pillar of the Aarhus Convention. To take an example, when an act is administratively challenged in environmental matters, the Aarhus Regulation requires numerous criteria to be met. Thus, only EU measures of individual scope taken under environmental law with legally binding and external effects can be challenged.114 Yet, among these three criteria, the first ‘individual scope’ criterion raises many concerns and is considered – as we have seen previously - as incompatible with the Aarhus Convention. Then, one might wonder whether the ECJ could reinterpret the Aarhus Regulation in a way that would remove that criterion.
Actually, the ECJ has already attempted to do so. Indeed, the General Court had considered that limiting the concept of ‘acts’ to ‘measures of individual scope’ is not compatible with” the third
111 Milieu, Study (n 110): 230. 112 Milieu, Study (n 110): 207.
113 European Commission, Roadmap on the access to Justice in environmental matters, Ares (2020)1406501
(2020).
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pillar of the Aarhus Convention.115 Thus, that criterion could no longer be applied and was de
facto removed from the Aarhus Regulation by the General Court.
Nevertheless, this case was appealed before the Court of Justice. Then, the Court of Justice first recalled that, to review an EU legislation like the Aarhus Regulation in light of an international convention like the Aarhus Convention, the international convention concerned needed first and foremost to have provisions with direct effect. Yet, for the Court of Justice, the provisions of the third pillar of the Aarhus Convention do not have direct effect.116 Thus, for the Court of Justice, since the Aarhus Convention does not have direct effect, the General Court was unable to use this Convention to review the content of the Aarhus Regulation and then to withdraw the ‘individual scope’ criterion. That is why the Court of Justice has ruled that the ‘individual scope’ criterion of the Aarhus Regulation actually still needs to be applied.
This ruling of the Court of Justice was - of course - discussed by the ACCC which did not hide its preference for the previous ruling, that of the General Court. In the Committee’s opinion, the Court of Justice should turn to the interpretation made by the General Court and thus remove from the Aarhus Regulation the ‘individual scope’ criterion.117
However, irrespective of its final result, this jurisprudence demonstrates the tremendous and quite positive consequences a reinterpretation of the Aarhus Regulation by the ECJ could have. Then, as we have just seen with the ‘individual scope’ criterion, the ECJ could perfectly – if it wished so – interpret the provisions of the Aarhus Regulation to make the Regulation compatible with the third pillar of the Aarhus Convention. Nonetheless, such an ambition has not yet appeared in the jurisprudence of the ECJ. Thus, as we shall see, the last possible option remains a hard law reform, that is to say – a legislative reform of the Aarhus Regulation.
c) Development through hard law
Reforming the Aarhus Regulation through hard law has recently been brought to the forefront. Pursuant to the European Green Deal, the Commission has considered “revising the Aarhus Regulation to improve access to administrative and judicial review at EU level”.118 Then it
115 ECJ, Vereniging Milieudefensie (n 79), para. 69.
116 ECJ, Judgement of 13th January 2015, Vereniging Milieudefensie, C-401/12 P, EU:C:2015:4, para. 55. 117 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 53.
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published a roadmap giving the very first elements relating to such a revision of the Aarhus Regulation.119
Firstly, the Commission proposed to amend the scope ratione temporis of the Aarhus Regulation. Today, applicants have only six weeks to make their request for internal review, then EU administrations only have between twelve and eighteen weeks to respond to the claim.120 Thus, the Commission wishes to extend the time limits regarding the time frame for both NGOs to make their request and EU institutions to respond to the request. Consequently, if NGOs were in a better position to gather and process the information necessary for their request, EU administrations would also have more time to find the required staff and skills to respond to the request.121 However, although such a reform would “improve the quality of decision-making (…) by allowing more time for procedural steps”, it would not improve the access to justice in itself.122 Thus, even though this change appears interesting, it does not seem to be the change EU law primarily needs to better implement the Aarhus Convention.
Secondly, in its roadmap, the Commission also proposes to remove from the Aarhus Regulation the requirement that, to be challengeable, an act needs to be adopted under environmental law. With this reform, the Aarhus Regulation would now cover all acts “that contravene provisions of environmental law in line with the Aarhus Convention”.123 Such change would be a good thing, since it would make the Aarhus Regulation comply with one of the main findings of the ACCC. Indeed, the Committee recommended to the EU moving from the current ‘adopted under environmental law’ criterion to a ‘contravening to environmental law’ criterion.124
Nonetheless, that proposal is not the only good idea in the roadmap of the Commission. Following the findings that the ‘individual scope’ criterion has been “the main limitation for the admissibility of requests for administrative review submitted by environmental NGOs”,125
the Commission has also decided to propose the removal of that criterion. Indeed, the Commission proposes to “broaden the scope of the review mechanism to include non-legislative regulatory acts”. 126 Contrary to individual acts, regulatory acts are “acts of general
119 European Commission, Roadmap (n 113). 120 Art. 10, Aarhus Regulation.
121 Milieu, Study (n 110): 245.
122 European Commission, Roadmap (n 113): 2-3. 123 European Commission, Roadmap (n 113): 2. 124 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 101. 125 Milieu, Study (n 110): 108.
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application”.127 Consequently, the inclusion of regulatory acts within the Aarhus Regulation
means the end of the ‘individual scope’ criterion. If this modification is likely to increase the number of review requests,128 it is also going to make the Aarhus Regulation far more compatible with the third pillar of the Aarhus Convention. Furthermore, such a reform would bring the Aarhus Regulation in line with the case-law of the General Court as approved by the ACCC,129 in which the General Court had considered that the ‘individual scope’ criterion was incompatible with the third pillar of the Aarhus Convention.130 Thus, this modification would be quite a revolution to bring the Aarhus Regulation more in conformity with the third pillar of the Aarhus Convention.
Nevertheless, as noticed by the Commission, it is quite “unrealistic to expect that access to justice (…) can be governed in its entirety by an act of [EU] secondary legislation that is not circumscribed by and can circumvent the provisions of [the TFEU]”.131 That is why we also
need to assess a reform of the TFEU regarding the compatibility between EU judicial procedures set forth by this latter and the third pillar of the Aarhus Convention.
2. A reform of the TFEU
Such a reform of the TFEU could be achieved by either a modification of the treaty (a) or a reinterpretation of its provisions by the ECJ (b).
a) A reform through a modification of the TFEU
Under Article 263 TFEU, if a person is not the addressee of an act, this act needs to be “of direct and individual concern” to that person if he or she is to challenge it before the ECJ. Among these two criteria, considering the numerous difficulties attached to the ‘individual concern’ criterion, some scholars have simply proposed its removal.132 Such a solution is also the one advocated by the ECJ, that considers that any expansion of the access to justice in environmental matters requires a modification of the TFEU by the Member States.133
127 ECJ, Inuit (n 40), para. 56. 128 Milieu, Study (n 110): 237.
129 ACCC, ACCC/C/2008/32 (Part II) (n 13), para. 53. 130 ECJ, Vereniging Milieudefensie (n 79): 69. 131 European Commission, Report (n 48): 28.
132 Jans, J. H. (2003). EU Environmental Policy and the Civil Society. The European Convention and the Future
of European Environmental Law. Prof. Jan H. Jans (editor), Groningen 2003, p. 65.
