EU moves to expand rights for environmental NGOs to challenge acts on environmental grounds
5 min read
The European Commission has published a proposal to revise the EU's Aarhus Regulation that, if adopted, would expand the possibilities for NGOs to challenge EU administrative acts and omissions on the basis that they contravene environmental law.
The EU Aarhus Regulation1 currently allows environmental non-governmental organisations ("NGOs") to request EU institutions to carry out an "internal review" of their administrative acts or omissions in the field of environmental law. This procedure is one of the ways in which the EU gives effect to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, to which the EU is a party.
The internal review procedure involves the NGO making a request for review to the EU institution that adopted the administrative act, within 6 weeks of its adoption. In case of an alleged omission, the request must be made 6 weeks after the date when the administrative act was required. The request must state the grounds for review, and the EU institution must provide a reasoned reply within 12 weeks (exceptionally 18 weeks). It can declare the request either unfounded or inadmissible, or confirm that the act (or omission) was in breach of EU environment law.2 The NGO can challenge this decision before the EU courts. However, the Court's judicial review relates only to the decision by the EU institution on the review request and not the substantive grounds for the review, and the review cannot result per se in the annulment of the underlying administrative act.3
Currently, the internal review procedure is limited to "administrative acts", defined as "any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects".4 This excludes acts of general application, as the European Court of Justice recently confirmed.5 The main reason for requests being rejected as inadmissible is that the challenged act was not of individual scope.6
The administrative act (or omission) also needs to pertain to "environmental law", although the EU courts have interpreted this concept broadly.7
The EU's current internal review system was recently criticised by the Aarhus Compliance Committee, which found the EU fell short of the "access to justice" provisions of the Aarhus Convention in several respects.8 The Commission's proposal9 responds to those criticisms by proposing the following changes:
- Broadening the definition of reviewable acts to include acts of general scope.
This would represent an important broadening of the scope of the Aarhus Regulation, as many requests for internal review are currently declared inadmissible on the basis that the contested act is not of individual scope. For example, in 2012, the Commission declared a request to review a Commission decision on free allowances under the EU emissions trading system inadmissible because it was not of individual scope.10 It should nonetheless be noted that legislative acts are still not covered; nor are acts taken when the EU institution acts as an administrative review body, such as competition decisions (e.g., relating to the environment), infringement proceedings, or proceedings by the Ombudsman or OLAF.11
- Excluding acts that explicitly require implementing measures at EU or national level.
The proposal would expressly exclude acts that require implementing measures at national or EU level, on the basis that these might themselves be subject to administrative or judicial review.12 For instance, NGOs may be able to challenge national implementing measures before national courts and request the national court to submit a preliminary reference to the ECJ on the validity of the EU act.
- Removing the requirement that the contested act be adopted "under environmental law".
It is proposed to remove the requirement that the contested act be adopted "under environmental law". This further widens the scope of the internal review procedure to any administrative act (or omission), regardless of the policy field or legal basis, that could contravene EU environmental law.
- Extending the time limits for both NGOs and the Commission.
The proposal extends the time limit for NGOs to introduce a request for internal review from six weeks to eight weeks after the act has been adopted. The period available for EU bodies to reply to a request is also extended, from 12 to 16 weeks, and to 22 weeks if the Commission is unable to reply within 16 weeks despite exercising due diligence.
The proposal will follow the ordinary legislative procedure, meaning that it requires the approval of both the European Parliament and the Council before it comes into effect.
1 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (“Aarhus Regulation”) 30.5.2008 L140/22.
2 Articles 4 and 5, Annex to Commission Decision of 30 April 2008 amending its Rules of Procedure as regards detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institution and bodies.
3 T-177/13, TestBioTech eV, ECLI:EU:T:2016:736.
4 Article 2(g) Aarhus Regulation (emphasis added).
5 C-784/18 P, Mellifera eV, ECLI:EU:C:2020:630.
6 According to a 2019 report into the operation of the Aarhus Regulation (SWD(2019) 378 final).
7 T-33/16, TestBioTech, ECLI:EU:T:2018:135.
8 Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32 (part II) concerning compliance by the European Union, Adopted by the Compliance Committee on 17 March 2017.
9 Proposal for a Regulation of the European Parliament and of the Council on amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies COM(2020) 642 final 2020/0289 (COD).
10 Reply of 12 November 2012 to request for internal review of Commission Decision C(2012) 4576 of 6 July 2012 concerning the application pursuant to Article 10c of Directive 2003/87/EC of the European Parliament and of the Council to give transitional free allocation for the modernisation of electricity generation notified by the Czech Republic; Confirmed by the General Court, T 19/13, Frank Bold Society, ECLI:EU:T:2015:520.
11 Article 2(2) Aarhus Regulation.
12 However, the Commission proposes that when the review of the EU level implementing measure is requested, a request to review the provisions of the administrative act which required that implementing measure can also be made at the same time.
White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.
This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
© 2020 White & Case LLP
