Implementation of the Aarhus Convention by the EU – An Inconvenient Truth from the Compliance Committee

By Benedikt Pirker

Introduction

Arguably one of the most important international environmental agreements of our days, the Aarhus Convention (AC), obliges its contracting parties to provide access to information, public participation and access to justice in environmental matters. Based on a communication by the NGO ClientEarth, the Compliance Committee – the compliance mechanism put in place under the AC – handed down an important decision (called ‘findings and recommendations’ in the Aarhus terminology) with regard to the European Union on 17 March 2017. The present post aims to highlight the most important findings of the Committee, which – in no uncertain terms – criticized a number of features of current EU law as a failure to implement the AC.

For the purpose of readability, matters will be kept short and the focus will be on the core issues. At some points, it may thus be necessary to refer readers not familiar with certain details to earlier posts on this blog.

Findings of the Compliance Committee

Based partly on the findings from the first part of the communication handed down in 2011, the Committee’s findings and recommendations mainly focus on two concerns with regard to EU law and the implementation of Articles 9 (3) and (4) AC on access to justice in environmental matters. First, it is debated whether members of the public have adequate standing before the EU Courts under Article 263 (4) TFEU for an annulment action, as the AC would require for environmental matters. Second, the Committee examined whether the EU’s internal administrative review procedure set out in Regulation 1367/2006 intended to implement the Aarhus Convention’s obligations (so-called Aarhus Regulation) complies with the AC’s requirements on access to justice.

Standing under Article 263 (4) TFEU

The standing requirements under Article 263 (4) TFEU and the provision’s earlier version are a well-known topic in EU law. The Committee examined whether in the years since the Lisbon Treaty’s redrafting of Article 263 (4) TFEU the jurisprudence of the EU Courts has alleviated the standing requirements. Put simply, Article 9 (3) AC requires that members of the public have access to remedies against acts or omissions by private persons and public authorities which contravene laws relating to the environment. This includes some sort of access to justice for environmental organisations as members of the public.

In its present form, Article 263 (4) TFEU contains three limbs that the Committee addressed one by one. It quickly found, as it did in 2011, that the CJEU’s interpretation of the first two limbs does not comply with Article 9(3), because that interpretation could not be read as envisaging and encompassing the case of environmental organisations as members of the public (paras 65-66; for a concise explanation, see para 77 of the 2011 Communication). As a reminder, in the Court’s reading, the first limb only deals with the possibility for persons to institute proceedings when addressed personally by an act; the second limb opens this possibility for persons when an act is of ‘direct and individual concern to them’, an interpretation considered by the Committee as ‘too severe’ to comply with the Convention (para 66).

The third limb creates the possibility for persons to institute proceedings against a regulatory act which is of direct concern to them and does not entail implementing measures. The Committee examined the interpretation given to this limb by the CJEU in the Inuit case and by the General Court in the Microban case. It found three problems. First, ‘regulatory acts’ as interpreted by the CJEU in Inuit encompass ‘acts of general application other than legislative acts’. This category, however, is considerably narrower than the ‘acts and omissions by private persons and public authorities’ mentioned in Article 9 (3) AC. Consequently, some acts and failures will not fall under the CJEU’s definition (para 71). Second, the criterion of ‘direct concern’ has been interpreted by the General Court in Microban as requiring that an individual’s legal situation must be directly affected. The Committee criticized that, again, this would mean non-compliance with Article 9 (3) AC, as most environmental NGOs would not fulfil this criterion when acting against a particular contested measure. Even if Article 9 (3) AC provides parties with a margin of discretion to establish criteria in national law, this discretion could not be used to exclude all NGOs acting solely for the purpose of promoting environmental protection (para 75). Third, the criterion of an act not entailing implementing measures was read by the General Court in Microban as meaning that such an act must leave no discretion to its addressees. Again, the Committee held that at least some of the acts that should be subject to review under Article 9 (3) AC would not fulfil this criterion (para 78).

The Committee thus concluded that there may have been notable efforts in the EU Courts’ jurisprudence to ensure the compliance of domestic courts of the Member States with the Convention (see for the overview paras 58-59). Nonetheless, the EU Courts themselves had not seen themselves bound in the same way, and thus found the EU to be in non-compliance with Article 9 (3) AC (para 83).

The Aarhus Regulation

The Aarhus Regulation (AR) creates a procedure for internal review of administrative acts, mainly in its Article 10 (1). The provision states that any non-governmental organisation meeting certain criteria can make a request for internal review to an EU institution or body that has adopted an administrative act under environmental law or has unduly omitted to adopt such an act. For the Committee, a number of problems emerge from this article and the provisions of the AR related to it.

First, the definition of administrative acts in the AR is limited to measures of individual scope. This is very narrow in comparison to Article 9 (3) AC which covers acts in the field of the environment, which will often be of general application. The General Court had already set out the concerns over this implementation of Article 9 (3) AC by means of the AR in the Stichting Milieu case (see here, paras 72 ff. of that judgment): Article 9 (3) AC may offer some discretion for its implementation, as contracting parties of the AC can lay down criteria in national law as to which members of the public should enjoy access to justice. However, this discretion does not extend to the scope of the notion of an ‘act’ under Article 9 (3) AC. Moreover, it is true that the AC excludes institutions acting in a ‘judicial or legislative capacity’ from its notion of public authorities. As a consequence, ‘acts’ under Article 9 (3) AC do not include judicial or legislative acts. However, that does not mean that ‘acts’ can be limited to measures of individual scope, as there will be measures of a general scope that are not taken by a public authority in a judicial or legislative capacity. These measures will nonetheless not be encompassed under Article 10 (1) AR (para 51 of the findings and recommendations). The Committee emphatically agreed with the General Court’s reasoning and concluded that the AR failed to implement the AC correctly in this regard (paras 52-53). It subsequently ‘acknowledged’ the CJEU’s later opposing judgment, but noted with surprise that the CJEU had set aside the General Court’s judgment based to a considerable extent on the argument that – mirabile dictu – the EU had not intended to implement the Aarhus Convention by means of the Aarhus Regulation (para 56).

Second, Article 11 AR excludes all entities other than NGOs from making a request for an internal review. The Committee held that this was unduly narrow in light of Article 9 (3) AC which speaks of ‘members of the public’ (para 94). Third, only acts adopted under environmental law can be addressed in administrative review under the AR. As the Committee pointed out, this is too narrow compared to Article 9 (3) AC. The latter requires that any act or omission implementing any policy can be challenged if it contravenes law relating to the environment (para 100). This may also cover acts not adopted under environmental law. Fourth, the AR only allows challenges to acts that have legally binding and external effects. However, the Committee argued that based on the broad wording of Article 9 (3) AC, some acts that do not have such effects must also be open to challenge (para 104).

Lastly, the Committee addressed two points without finding a failure to implement the AC correctly. The AR contains a number of exemptions from administrative review for measures taken by administrative review bodies. These are based on the AC which excludes in its Article 2 (2) bodies acting in a judicial capacity from the concept of a public authority. The Committee, however, rejected this argument, since in its view the wording of the AC led to the opposite conclusion. The AC may expressly exclude bodies acting in a judicial and legislative capacity, but thereby includes public authorities acting by way of administrative review (paras 110-111). Consequently, it found that some acts of administrative review bodies should in all likelihood be subject to administrative review under the AC. In the absence of concrete examples, however, it decided not to find non-compliance (para 112). Similarly, the communicant had argued that the administrative review procedure of the AR was not an adequate, effective and fair remedy as required by Articles 9 (3) and (4) AC. Article 12 of the AR on its face provides for access to the EU Courts based not so much on a challenge of the initial act of an institution, but of the written reply of the institution at issue in the administrative review under Article 10 AR. Based on the recitals of the AR, however, the Committee decided that in the absence of case law on Article 12 AR from the EU Courts, it would at least be possible to interpret Article 12 broadly and allow access to justice also to challenge an initial act (paras 119-120; see, however, the rather narrow reading of Article 12 AR in a recent ruling by the General Court, in particular para 56 of that ruling). Consequently, the Committee did not find non-compliance in this instance.

As a last step, the Committee recommended to the EU to amend the AR according to its findings or draft new legislation to replace it; a wording that more clearly and fully transposed the AC ought to be used for this purpose. Moreover, to the extent that the EU wants to rely on the EU Courts’ jurisprudence to comply with its obligations under the AC, the Committee recommended that the EU Courts assess the legality of the EU’s implementing measures in light of the AC’s obligations and interprets EU law as much as possible in consistency with Articles 9 (3) and (4) of the AC.

Comment

The discussed findings and recommendations of the Compliance Committee are arguably among the most important ones handed down by this body in its several years of practice and constitute a welcome contribution to international as well as European environmental law. In no uncertain terms and based on largely convincing arguments, the Committee dissects various problems facing the EU’s current legal landscape with regard to the implementation of the Aarhus Convention. Of course, it should be noted – as the Committee did – that in several instances, the EU Courts have also given teeth to the Convention, in particular with regard to national courts of the Member States (see e.g. recently here). Nonetheless, considerable shortcomings remain with regard to the EU Courts themselves and the Aarhus Regulation, as the Committee has correctly highlighted.

Beyond the mentioned issues of substance, the findings are a reminder of the importance of external review. The CJEU had not been willing or able to address certain concerns (see e.g. here), even when given the opportunity. Think only of the Stichting Milieu case: both the General Court and the Advocate General had offered the Court of Justice alternatives to the latter’s approach. The CJEU, however, seems to exempt EU institutions from review against the benchmark of the Aarhus Convention (see in more detail here). It thus fell to an ‘outsider’ to the EU legal system to highlight that the issue of insufficient administrative review is still unresolved. This is all the more remarkable against the backdrop of the CJEU’s palpable reluctance to accept such external review if even the slightest impact upon EU law’s autonomy may be at stake.

There is, of course, a reason why the Aarhus Convention’s Compliance Committee has not faced the same concerns identified by the CJEU in its Opinion 2/13. As often in environmental law, in the framework of the Aarhus Convention preference has been given to a non-binding compliance mechanism over a judicial or arbitral system of dispute settlement. There is thus no real danger that the Compliance Committee would e.g. pronounce itself unduly and in a binding manner on matters of interpretation of EU law or on the distribution of competences between the EU and its Member States. Nonetheless, throughout the last years the Committee has developed a remarkable ‘acquis’ of interpretations on the provisions of the Aarhus Convention in its findings and recommendations. To treat its ‘case law’ as irrelevant would disregard a considerable and growing body of non-binding, but solid legal reasoning on access to information, public participation and access to justice in environmental matters. It can thus only be hoped that the EU institutions take the present findings and recommendations seriously. A formalistic retreat based on the findings being not legally binding in the strict sense would certainly be disappointing. For the moment, one can only wait for the endorsement of the Compliance Committee’s findings at the next meeting of the parties in September of this year.

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