Members of the European Parliament have reached an informal agreement with member states on amending the Aarhus Regulation. The revision of the Aarhus Regulation aims to ensure that EU administrative acts are in line with green goals.
Groups of individuals consisting of at least 4000 citizens including at least 250 from each of five member states, who have specific concerns about certain administrative acts’ compatibility with environmental law, will now also be able to request a review of administrative decisions for their conformity with environmental law. Until now, this was only possible for recognised NGOs.
Additionally, the costs of the review process should be limited in order to enable NGOs and groups of individuals to benefit from more affordable access to justice. To ensure this, EU institutions will only request reimbursement for reasonable costs in such proceedings. Today, it is only possible to request a review of administrative acts, which specifically contribute to the pursuit of environmental policy objectives. With this deal, any administrative act that contravenes EU environmental law may be subject to review, irrespective of its policy objectives.
As far as state aid is concerned, the Commission will publish an analysis of the implications of the findings of the Aarhus Convention Compliance Committee by the end of 2022 on the need to provide citizens with access to administrative or judicial procedures and if appropriate come forward with measures to address the issues by the end of 2023.
Scope of access to environmental justice widened
Currently, an environmental review of an administrative act can only be requested for acts of ‘individual scope’ (which directly concern a person). In the future, it will be possible to request a review for any non-legislative administrative act of ‘general scope’.
Rapporteur Christian Doleschal (EPP, DE) said: “This deal will ensure the EU’s compliance with its international obligations. Our solutions ensure respect for the EU treaties and provide legal certainty. We clarified that court proceedings should not be prohibitively expensive. We increased transparency. We averted the danger of an “actio popularis” where any citizen can put a stop to major EU projects and decisions via an administrative review that was intended to be a purely supplementary legal remedy. All in all, this was a very positive outcome.”
The agreement still needs to be formally approved by both the Committee on Environment, Public Health and Food Safety as well as plenary and the Council.
Environmental NGOs welcome news
A number of environmental NGOs have welcomed the news, including Client Earth.
ClientEarth environmental democracy lawyer Anne Friel said: “The EU has finally decided to lift the main obstacles preventing people and NGOs from challenging unlawful EU decisions that affect people’s health and the environment. This is crucial to empower people and civil society to enforce environmental laws and ensure EU decisions do not contradict the EU Green Deal.”
The development follows a decade-long legal battle for more access to justice at EU level. In 2008, ClientEarth filed a complaint with the UN against the EU for its failure to comply with the Aarhus Convention, an international environmental treaty that grants access to justice rights to the public. In 2017, the UN body responsible for overseeing compliance with the Convention found the EU to be in breach of its international law obligations.
Friel added: “Respect for international law is the hallmark of a commitment to the rule of law at large and the EU is no exception. We are very pleased that the EU institutions have finally decided to allow the public to access EU courts in line with international law.
“The EU makes big promises on environmental protection and democratic accountability. It must lead by example.”
What is the Aarhus convention?
The United Nations Economic Commission for Europe (UNECE) was adopted on 25 June 1998 in the Danish city of Aarhus (Århus) at the Fourth Ministerial Conference as part of the “Environment for Europe” process. It entered into force on 30 October 2001. The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will contribute to these rights to become effective.
The Convention provides for the right of everyone to receive environmental information that is held by public authorities (“access to environmental information”). This can include information on the state of the environment, but also on policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment. Applicants are entitled to obtain this information within one month of the request and without having to say why they require it.
In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession; the right to participate in environmental decision-making. Arrangements are to be made by public authorities to enable the public affected and environmental non-governmental organisations to comment on, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment, these comments to be taken into due account in decision-making, and information to be provided on the final decisions and the reasons for it.
The EU has been a Party to the Convention since May 2005, whilst Malta ratified the Convention in April 2002. The first pillar of the Aarhus Convention is implemented under EU law by Directive 90/313/EEC, which has been replaced by Directive 2003/4/EC on public access to environmental information. Malta transposed Directive 2003/4/EC granting the public the right of access to environmental information via S.L. 549.39 (Freedom of Access to Information on the Environment Regulations).