By Laurens Ankersmit and Benedikt Pirker
Challenging EU rules on the basis of EU agreements is very difficult. Challenging EU rules on the basis of the Aarhus Convention is pretty much impossible. In ClientEarth v Commission the Court reasoned once again that the Aarhus Convention could not be relied upon to invalidate EU secondary legislation. In this case, the Court found that ClientEarth could not rely on the Aarhus Convention to challenge the Public Access to Documents Regulation (Regulation 1049/2001) in order to obtain commissioned studies on compliance by Member States with EU environmental law in the context of infringement procedures. One of the arguments put forward by the Court was that the Aarhus Convention could not be relied upon because it ‘was manifestly designed with the national legal orders in mind’. This is an extraordinary statement, since the EU is party to the Convention and thus bound by it. It was no doubt inspired by the concern to protect the infringement procedure contained in article 258 TFEU, raising a number of questions on the relationship between EU primary, secondary and international law. Continue reading
By Benedikt Pirker
Should EU secondary legislation be reviewed against the benchmark of the provisions of an international agreement? In 2012 the General Court answered this question in the affirmative and annulled two decisions of the Commission which were based on a regulation which was deemed incompatible with the Aarhus Convention. However, the EU institutions appealed against those judgments. Consequently, in cases C‑401 to 403/12, Council e.a. v. Vereniging Milieudefensie and C-404 and 405/12, Council v. Stichting Natuur en Milieu e.a., the Grand Chamber of the Court was confronted with the same question. There is already quite some case law on the topic of review of legality within the EU legal order in light of international obligations of the EU, typically with the Court being hesitant to undertake such review. In the cases involving the Vereniging Milieudefensie and the Stichting Natuur en Milieu, the General Court and the Advocate General made, in my view, some valuable suggestions in favour of reviewing EU law against international agreements. Unfortunately, the Court decided to stick to its guns, thus continuing in the line of its own previous jurisprudence, and annulled the General Court’s judgments. The result leaves a somewhat sour taste for those who think that EU institutions and their legal acts should be amenable to judicial review under reasonable conditions. Not only is the very purpose of the EU regulation at issue to implement the obligations arising from the Aarhus Convention, but the Grand Chamber’s view also leads to a lacuna in legal protection in EU law exactly where the central aim of the Aarhus Convention would in theory be to provide individuals with access to justice. Continue reading
Directive 2003/4, which implements the Aarhus Convention, gives citizens and businesses the right to access to environmental information in possession of public authorities without making it necessary for them to state reasons. The definition of public authorities is therefore quite important, as the Directive applies as soon as a body falls under that definition. In case C-204/09 Flachglas Torgau, the undertaking Flachglas Torgau sought information from Federal Ministry for the Environment about the conditions in which the Federal Office for the Environment in Germany had allocated emission allowences between 2005 and 2007. This was refused by the Federal Ministry for the Environment on grounds that it related to the legislative process which had resulted in the adoption of the Zuteilungsgesetz 2007. The Directive allows Member States to exclude bodies or institutions from the definition of public authorities ‘when acting in a judicial or legislative capacity.’ Because the requested information related to documents that were used in the process of adaptation of the Zuteilungsgesetz 2007, the Federal Ministry maintained that that it had acted in a legislative capacity and that therefore the Directive did not apply to it.
The Court agreed. It noted that although the Directive was intended to apply to administrative authorities, the purpose for excluding legislative authorities was ‘to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’. According to the Court, ministries do not fall under the definition of public authority to the extent that they participate in the legislative process.