Regulation 2021/1767 amended Regulation 1367/2006 on the application of the provision of the Aarhus Convention to Community institutions and bodies. This amendment was rendered necessary due to an assessment published in 2017 by the Aarhus Convention Compliance Committee, which concluded that EU Law did not fully comply with the AC with regard to access to justice. Given that regulation 2021/1767 has solved two of the shortcomings noted by the Arhus Convention Compliance Committee but fails to ensure that access to justice is provided through fair procedures, some solutions that could be adopted in this regard are briefly outlined here.
1. Regulation 2021/1767 amended Regulation 1367/2006 on the application of the provision of the Aarhus Convention (AC) to Community institutions and bodies. This amendment was rendered necessary since the Aarhus Convention Compliance Committee (ACCC), in its findings and recommendations of 2017, concluded that the EU did not fully comply with the AC with regard to the right of the public to have ‘access to administrative or judicial procedures to challenge acts and omissions by … public authorities which contravene provisions of its national law relating to the environment’ (art. 9(3)).
According to Regulation 1367/2006, any NGO that met the criteria established in the Regulation itself could request for internal review to the Union institution or body that had adopted an administrative act of individual scope under environmental law or, in the case of an alleged administrative omission, should have adopted such an act. The applicant NGO could (and still can) then challenge the decision taken by the institution or body on the request for internal review or its failure to act before the General Court. However, Regulation 1367/2006 did not make any changes to the requirements to access EU Courts. Consequently, NGOs and the other members of the public cannot take legal action in the general interest (for the protection of the environment), but only under the restrictive conditions laid down in Article 263(4) TFEU.
2. In its findings and recommendations of 2017, the ACCC, at the request of ClientEarth with the backing of other NGOs, addressed three problems of compliance of Regulation 1367/2006 with the provisions of the AC.
A) First problem – Entitlement to internal review
First, the ACCC held that Regulation 1367/2006 infringed the Convention because it allowed only a limited number of NGOs to request an internal review of acts issued in alleged violation of environmental law while excluding all other members of the public. Consequently, Regulation 2021/1767 has considerably broadened the range of those entitled to request an internal review: as of 29 April 2023, in addition to the NGOs meeting the criteria set out in Regulation 1367/2006, also members of the public will be entitled to make a request for internal review under two alternative conditions:
a) either they demonstrate an ‘impairment of their rights caused by the alleged contravention of Union environmental law and that they are directly affected by such impairment in comparison with the public at large’; or,
b) they demonstrate ‘a sufficient public interest and that the request is supported by at least 4,000 members of the public residing or established in at least five Member States, with at least 250 members of the public coming from each of those Member States’.
In both cases, the members of the public must be represented by an NGO which meets the criteria set out in the Regulation of 2006 or by a lawyer authorized to practice before a court of a Member State.
In this way, the European legislator solved one of the issues raised by the ACCC.
B) Second problem – Challengeable acts
According to the original version of Regulation 1367/2006, the internal review could only regard acts ‘of individual scope’ with ‘legally binding and external effects’. However, the ACCC considered that this arrangement placed excessive restrictions on the right to access to justice in environmental matters. This was also because Article 263(4) TFEU, as interpreted by the CJEU, does not in fact allow members of the public (including NGOs) to challenge acts of general application issued in alleged breach of environmental law. To address this issue, Regulation 2021/1767 broadened the definition of the types of acts that can be subject to internal review – i.e., ‘any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law’. This definition also comprises non-legislative acts of general scope, including those requiring implementing measures at the national or Union level.
C) Third problem – The impartiality of the internal review
According to Article 9(4) of the AC, access to justice must take place through procedures that are adequate, effective, and fair. In this regard, during the compliance procedure, ClientEarth pointed out that the internal review was not impartial since the complaint has to be decided by the same body that issued the contested act. The ACCC considered that this problem would arise if an internal review were the only available remedy. For the Committee, however, Regulation 1367/2006 can be interpreted as meaning that the NGOs who bring the complaint can act against both the decision on the internal review and the measure taken in violation of environmental law.
In essence, from the standpoint of the ACCC it follows that when an administrative act is issued in alleged violation of environmental law, it must be possible to subject that act to an independent and impartial review: if the administrative review does not meet this requirement, it must subsequently be possible for the contested act to be subjected to the control of a judicial body.
Nonetheless, almost simultaneously with this statement by the ACCC, the General Court ruled that in these cases the judicial review may only concern the legality of the decision rejecting the request for internal review and not the legality of the first decision (T-108/17). This approach has since been confirmed by other judgments of the CJEU (e.g., C-458/19 P). The consequence of this case law is that the only permissible remedy vis-à-vis acts allegedly breaching environmental law is that of the internal review. However, contrary to Article 9(4) of the AC, Regulation 1367/2006 does not ensure that the internal review procedure is fair, i.e., impartial, and free from prejudice.
Given that the EU legislator did not address this issue, the lack of impartiality of the administrative remedy potentially neutralises the important innovations introduced by Regulation 2021/1767.
3. At this point, the question arises as to how the EU legislator could improve the fairness of the internal review. On this point, it is helpful to take a look at current EU legislation and to make a clear distinction between agencies and institutions.
For some decentralised agencies, on the basis of Article 263(5) TFEU, EU law already provides for a system of rights protection entrusted to ‘quasi-judicial’ (i.e., impartial, and independent) bodies (the Boards of Appeal). This involves the administrative review of certain acts of a number of agencies (including the European Chemicals Agency and the European Aviation Safety Agency) which is conducted at the request of the parties concerned. This model could well be extended to acts of agencies issued in alleged violation of environmental law. Moreover, the opportunity for members of the public to use this remedy would alone suffice to fulfil the obligations arising from Article 9(3) and (4) of the AC, making a further stage of proceedings before the General Court unnecessary.
The situation for acts of the Commission (and the other institutions) is more complex. Unlike for agencies, there is no provision in the Treaty allowing for acts issued by the Commission to be subjected to forms of impartial and independent review entrusted to entities other than the CJEU. This is because it would call into question the Commission’s exclusive responsibility for its own decisions, in breach of Article 13(2) of the TEU.
However, this does not exclude the fact that the internal review could be regulated in a manner that is more consistent with the requirements of Articles 9(3) and (4) of the AC. Without prejudicing the competence of the Commission to take the final decision on complaints from members of the public, the review procedure could be complemented by an adjudicative step. For example, an impartial and independent, permanently established body could be entrusted with the task of giving its opinion on the request for review, at the end of an adversarial procedure involving all the parties concerned (including the Commission General Directorate or department which dealt with the challenged decision). When deciding on the request for internal review, the Commission would, in turn, have to take due account of this opinion, although it would not be bound by it. Vis-à-vis the decision of the Commission on the internal review, the complainant NGO could then appeal to the General Court, asking for an assessment of the formal and substantive legality of the review procedure.
It should also be noted that this procedural scheme has already been provided for in EU law within the so-called Single Supervisory Mechanism. As is well known, Regulation 1024/2013 established the Administrative Board of Review (ABoR) within the European Central Bank composed of experts in the fields of banking or other financial services, which has the task of carrying out, at the request of the parties concerned, an administrative review of the decisions adopted by the ECB itself in the field of credit supervision. The ABoR acts impartially and independently, following an adversarial procedure; it cannot issue binding decisions but only opinions to the Supervisory Board on the procedural and substantive compliance of the contested decision with Regulation 1024/2013.
This means that the strengthening of the rights of the interested parties is aimed at conditioning the powers of the final decision-maker while leaving them formally unaltered. This balance also seems to be optimal in order to fully apply Article 9(3) and (4) of the AC to EU institutions.
4. The difficulties encountered by the EU in complying with the AC signal a deep-rooted defensive attitude towards civil society organisations. At this point, if the EU legislator fails to effectively ensure the right of the public to access to justice in environmental matters, the only practicable solution will most likely be a citizens’ initiative based on Article 11(4) TEU.
Posted by Luca De Lucia, Full Professor of Italian and European Administrative Law at the University of Salerno and member of REALaw Editorial Board. For a more elaborate version of this blog post see my recent article in 2022 REALaw issue 2.
Suggested citation: L De Lucia, “Regulation 2021/1767 and the remaining divergences of EU law from the Aarhus Convention”, REALaw.blog available at https://wp.me/pcQ0x2-tU.