Access to Justice in Environmental Matters in the EU Legal Order – Too little too late?


Access to justice in environmental matters at the EU level is significantly restricted. This is partly due to the narrow interpretation of standing requirements by the Court of Justice of the EU (CJEU) in annulment procedures under Article 263(4) TFEU, which has virtually excluded environmental NGOs, and partly due to the narrow scope of the internal administrative review procedure under Regulation (EC) 1367/2006 (the so-called ‘Aarhus Regulation’). This led the Aarhus Convention Compliance Committee (ACCC) to conclude in 2017 that the EU is not in compliance with its obligations on access to justice under Articles 9(3) and 9(4) of the Convention. Since then, the European Commission has taken multiple steps, initially to qualify the findings of the ACCC and subsequently to explore options to improve access to justice in environmental matters in the EU legal order.

This post discusses the European Commission’s most recent attempt to address these issues. Specifically, on 14 October 2020, the European Commission published (a) a proposal to amend the administrative review procedure under Regulation 1367/2006, and (b) a Communication on improving access to justice in environmental matters in the EU and the Member States. The post explains the proposed amendments to the Aarhus Regulation, highlighting which aspects of the ACCC findings it does and which ones it does not address. It also outlines the main priorities in the Commission’s Communication, which place considerable emphasis on access to justice via the national courts.

Background: Initial Reactions to the ACCC findings

The European Commission initially sought to get the ACCC to modify its findings, inviting it to take into account the ‘specific features’ of the EU legal order, including its autonomy. Subsequently, the Council of the EU sought to get the parties to the Convention to only ‘take note’ of the findings rather than endorse them, as is usually the practice. But, some parties to the Convention were opposed to such a move that would undermine the authority of the Meeting of the Parties and of the compliance mechanism. Therefore, the decision was deferred to the next Meeting of the Parties in 2021. In the meantime, the EU has submitted progress reports on the Committee’s findings, including the steps outlined in this post.

In June 2018, following significant political and social pressure, both from within, and from outside the EU, the Council of the EU requested the Commission to submit a study on the EU’s options to comply with the ACCC findings and to explore possible amendments to the Aarhus Regulation. Consequently in October 2019, the Commission published a detailed external study on the current situation on access to justice in environmental matters at the EU level and prepared a report on the current status of the implementation of Aarhus obligations. Both highlighted the complementary nature of the different judicial redress mechanisms in the EU legal order: direct access to the CJEU under Article 263(4) TFEU (which the Commission cannot interfere with), indirect access through national courts and preliminary references on validity under Article 267 TFEU, and the administrative review mechanism under the Aarhus Regulation. According to the Commission, not all three mechanisms need to be available for all different kinds of applicants, but rather effective judicial protection is to be ensured through the whole system of remedies.

On the basis of the 2019 report, the Commission’s most recent steps in October 2020 focus on improving indirect access through national courts and on expanding the scope of the administrative review procedure under the Aarhus Regulation.

Expanding the scope of the Aarhus Regulation (but not too much)

The Aarhus Regulation establishes an administrative mechanism, which enables environmental NGOs to request internal review of a limited set of EU acts. As Bogojević notes, the Regulation is not only restrictive ‘in defining who is entitled to review and what can be reviewed but, the impact of such a review is also narrow in scope.’ The proposed amendments address only the ‘what’, while the ‘who’ and the ‘impact’ remain the same.

What: The scope of administrative acts

The Commission proposes to expand the material scope of the review procedure by amending the definition of ‘administrative acts’ under Article 2(1)(g) of the Regulation in two ways. First, it broadens the scope beyond administrative acts of ‘individual scope’ (ie acts which either directly address a person or where the person affected can be distinguished individually) to administrative acts of ‘general scope’. This is an important and welcome amendment, given that the previous narrow scope was identified as a key obstacle by NGOs, enabling the Commission to reject most requests for internal review. In this respect, the ACCC had highlighted that while Article 9(3) leaves discretion to signatory parties to set conditions for access to justice at the national level, the parties cannot restrict the kinds of acts that may form the subject of review. The proposed amendment is arguably necessary to ensure compliance, given that the narrow definition of ‘administrative acts’ under Article 2(1)(g) of the Aarhus Regulation cannot be broadened through judicial interpretation. Indeed, following the ACCC findings, the General Court in Mellifera clarified that it was not be possible to interpret ‘administrative acts’ in light of the Aarhus Convention so as to  cover acts of a general scope, as this would amount to a contra legem interpretation. A similar approach was recently confirmed by the Court of Justice. The amended definition of ‘administrative acts’ under the Aarhus Regulation proposed by the Commission would cover acts of general scope, such as the implementing regulation approving the active substance glyphosate, which was considered an act of general scope by the CJEU in Mellifera.

Second, in accordance with Article 9(3) of the Convention and the ACCC findings, the Commission has proposed that the administrative review procedure be extended beyond acts adopted ‘under environmental law’, to acts and omissions contravening environmental law, irrespective of the objectives of the specific act. In other words, acts adopted under non-environmental competences and pursuing primarily other objectives, which contravene environmental law (broadly defined) would fall within the scope of the Regulation.

Third, the Commission’s proposal also expands the time limits, set out in Article 10(1) of the Aarhus Regulation, within which the NGOs may initiate the procedure (from six to eight weeks) and the timeframe for the Commission to reply (from twelve to sixteen weeks).

Despite these significant changes, the Commission’s proposal fails to address additional problematic aspects of the Regulation that were highlighted in the ACCC findings. For instance, the Commission’s proposal does not extend the scope of administrative acts to acts with no legally binding or external effects. Its justification for this is not entirely convincing. On the one hand, the Commission highlights that this is consistent with the CJEU’s interpretation of ‘reviewable act’ under Article 263(1) TFEU and given that the internal review procedure under the Aarhus Regulation is supplementary to direct access to the CJEU, such an expansion is unnecessary. On the other hand, it justifies this approach on the basis that only legally binding acts are capable of contravening environmental law. This is, however, contrary to the ACCC findings, which reiterated that just as the parties do not have discretion to limit access to justice under Article 9(3) to acts of individual scope, they do not have discretion to restrict access to justice to acts that do not have legally binding and external effects. Also, non-legally binding EU acts can have significant effects both on the implementation of EU legislation and its interpretation by the CJEU. In that sense for example, post-legislative Commission guidance, on the basis of which the Commission implements secondary legislation, could possibly contravene environmental law, as can guidelines on state aid for environmental protection and energy. Also, acts that the Commission considers to have no external effects, such as the adoption of a list of proposed candidates to the Management Board of the European Chemicals Agency for the position of Executive Director of the Agency, may have an impact on the environment. Such instances were highlighted by ClientEarth, as the communicant to the ACCC complaint against the EU, as examples where the Commission unjustifiably rejected requests for internal review, contrary to the requirements of Article 9(3) of the Convention.

Who: other members of the public

As regards the personal scope of the review procedure, the Commission’s proposal does not extend the administrative review mechanism beyond entitled environmental NGOs, as provided in Article 11 of the Aarhus Regulation, to other members of the public as required by the Convention. This is mainly justified on the basis that while individuals may not have access to this particular administrative procedure, they do have access to other mechanisms of redress in the EU legal order. In situations where EU acts entail implementing measures, they can have access to national courts and ultimately preliminary references may be sent to the CJEU on the validity of EU acts in accordance with Article 267 TFEU. In situations not entailing implementing measures, they can directly access the CJEU under Article 263(4) TFEU. Notably the Commission does not comment either on the restrictive interpretation of standing requirements under Article 263(4) TFEU that effectively excludes many individual applicants in environmental cases or on the shortcomings and rarity of preliminary references on validity.

Impact: subsequent judicial review

Furthermore, without any justification or mention, the Commission’s proposal does not address the scope of judicial review provided in Article 12 of the Aarhus Regulation. Article 12 provides the possibility for NGOs that make requests for internal review under Article 10 of the Aarhus Regulation, to challenge this process before EU courts. The ACCC had clarified that although the scope of this judicial review had not been interpreted by the CJEU at the time, it should extend to the substance of the initial administrative act for which an administrative review procedure had been sought. An interpretation that would limit judicial review to the written reply under the Article 10 procedure would be contrary to the requirements of the Convention. In the meantime, the both the General Court and the Court of Justice in TestBiotech endorsed a restrictive interpretation of Article 12, not extending to a review of the initial act. This effectively means that NGOs wishing to challenge the legality of the initial act can only use the annulment procedure for acts not addressed to them under article 263(4) TFEU, according to which they are unlikely to have standing. The General Court in ClientEarth, and the Commission in its 2019 report, indicated that when reviewing the procedure of the internal administrative review, the substantive reasons for challenging the initial act may be reviewed to the extent that they were relevant for the internal review procedure. However, as the Court of Justice clarified in Testbiotech no new grounds may be raised as to the review of the initial act. This is not sufficient to guarantee wide access to justice to challenge violations of environmental law as required by the Convention and to counteract the very restrictive scope for access to the CJEU by environmental NGOs under Article 263(4) TFEU.

The EU’s special status as a party to the Aarhus Convention: Shifting the burden to the Member States with the Commission watching

Together with its proposal on amending the Aarhus Regulation, on the same day, the Commission published a Communication on ‘Improving access to justice in environmental matters in the EU and its Member States’. This Communication puts the proposal in context, clarifying that the revision of the Aarhus Regulation is done in way that is compatible with the fundamental principles of the EU legal order and its system of judicial review, in accordance with the Budva Declaration. Notably, the Communication draws attention to the special nature of the EU’s membership to the Convention given the characteristic features of the EU and the division of competences between the EU and the member states.[i] It explicitly refers to a controversial passage from the General Court’s reasoning in ClientEarth, endorsed by the Court of Justice on appeal, previously analysed here, by which it confirms that the Aarhus Convention was manifestly designed with national legal orders in mind and not the specific legal features of institutions of a regional economic organisation like the EU. In that sense, the CJEU effectively distinguished the EU as a party to the Aarhus Convention in a way that was not necessarily intended at the international level, raising concerns as to the EU’s true commitment to international law and the rule of law. The insistence of both the CJEU and the Commission on the special nature of the EU which should qualify its obligations under international law is contrasted with their demanding approach as to what is required by the Member States under the Aarhus Convention and its incorporation in the EU legal order.

The Commission’s Communication clearly shifts, as the CJEU has done, the burden to ensure broad access to justice for environmental matters on the Member States and on national courts. It does so by recalling the duty of loyal cooperation under Article 4(3) TEU, the responsibility of Member States to determine national remedies for the application of EU law under Article 19(1), and by highlighting the important role of the right to an effective remedy under Article 47 of the Charter.[ii] The trend of using the principle of effective judicial protection and Article 47 of the Charter to boost the application of the Aarhus Convention in the Member States, established by the CJEU in Slovak Brown Bears and Protect Natur, is thereby confirmed and continued by the Commission. The Communication highlights once again the need to assess the judicial system of the EU as a whole. Beyond the Aarhus Regulation procedure, and direct access to the CJEU under Article 263(4) TFEU, the system of judicial remedies in the EU is complemented through access to national courts. The Commission highlights that access through national courts is essential in completing the full system of remedies in the EU legal order, particularly given that access to national courts can lead to preliminary references on validity of EU acts to the CJEU.[iii] This focus on the preliminary reference procedure fails to acknowledge the inherent limitations of the preliminary reference procedure, which does not grant a right to the applicant to address the CJEU but rather relies on the willingness of the national court to send preliminary questions.

The main focus on the role of national remedies to ensure effective judicial protection in environmental matters in the EU legal order clearly emanates from all four areas of priority action in the Communication.[iv] First, the Commission requires Member States to ensure that they fully and correctly transpose access to justice requirements emanating from EU secondary legislation, such as the EIA Directive, the Directive on Environmental Liability and the Directive on Industrial Emissions.

Second, beyond the situations specifically provided for in EU secondary legislation, such as in the context of habitats and water protection, the Commission calls on Member States to review national provisions that prevent individuals or NGOs from having access to justice in environmental matters. In accordance with the CJEU’s interpretation in Slovak Brown Bears, these ‘general’ requirements for access to justice extend to issues that may not yet form the subject of EU legislation but may fall within EU law, in a field that is largely covered by EU law.

Third, the Commission highlights the key role played by national courts, which have a responsibility to guarantee the right of individuals and NGOs to an effective remedy under EU law, including an obligation to set aside rules that are contrary to EU law, including undue restrictions to standing. For these three priority actions, the Commission clearly warns that it will be ‘watching’ both legislative and judicial action to effectively implement the requirements for wide access to justice in environmental matters in accordance with the Convention, EU secondary legislation, and CJEU case law. This monitoring is to inform the Commission’s role as guardian of the treaties, including the possibility to bring infringement proceedings against Member States that fail to ensure wide access to justice for environmental protection. The extent to which it does will play a significant role in improving access to justice in the EU legal order, even if it is only before national courts.

Fourth, the Commission calls on its co-legislators to agree to include specific access to justice requirements in new or amended EU secondary legislation on environmental matters. While this priority action turns the attention to the EU level, its implementation is again to be ensured at the national level. Access to justice provisions in EU secondary legislation effectively restrict the procedural autonomy of the Member States by requiring them to adjust national rules for access to courts, not only as a result of the CJEU’s case law, but as a result of the transposition of EU secondary legislation.


Overall, despite the qualified expansion of the administrative review procedure under the Aarhus Regulation, the Commission’s emphasis is once again largely placed on improving access to justice through national courts, with the hope that it will eventually improve indirect access to the CJEU to challenge the validity of EU acts. Whether this is sufficient to address the shortcomings identified by the ACCC findings ultimately depends on the steps taken to ensure wide access before national courts and leveraging the preliminary references on validity, which to date have been largely underused. Focusing, yet again, on this redress mechanism as almost a panacea to the EU’s shortcomings in guaranteeing access to justice in environmental matters falls short of what the Aarhus Convention requires and of what EU law requires from its Member States to ensure effective judicial protection.


[i] COM(2020) 643 final, p. 3-4.

[ii] Ibid, p. 5-6.

[iii] Ibid, p. 6.

[iv] Ibid, p. 7-9.