The scope and interpretation of the Aarhus rules in EU environmental law and procedure remains a controversial topic. In recent judgments, the European Court of Justice (ECJ) ruled that the Aarhus Convention does not provide an independent legal basis for challenging the actions of the European Commission. Rather, such challenges must be brought on the basis of the EU’s Aarhus Regulation, which implements the Aarhus Convention into the EU legal system.
The ECJ overturned decisions of the lower General Court in two joined cases (Joined Cases C 404/12 P and C 405/12 P, Stichting Natuur en Milieu and Joined Cases C-401/12 P to C-403/12 P Vereniging Milieudefensie et Stichting Stop Luchtverontreiniging Utrecht). In its ruling, the ECJ called the General Court’s finding that non-governmental organizations (NGOs) could rely directly on Article 9(3) of the Aarhus Convention “an error of law.”
The ECJ’s ruling gives much needed clarification on the scope of internal reviews of decisions by the European Commission. The ECJ explained that such review can only be provided in accordance with the Aarhus Regulation, which allows NGOs to ask for an internal review only if the act concerned is individual in scope. By doing so, the ECJ has set the limits within which NGOs can challenge the environmental administrative actions of EU institutions and has prevented challenges to environmental acts of general application.
1. Procedural background
In the cases in question, the European Commission had denied environmental NGOs the right to make a “request for internal review” of decisions taken by the Commission on the grounds that the challenged acts could not be considered as administrative acts of “individual scope.” The environmental NGOs invoked the Aarhus Convention and the corresponding Aarhus Regulation to appeal the Commission’s decisions before the General Court which found in favor of the NGOs. The Commission, Parliament and Council then appealed the judgments of the General Court before the ECJ, which upheld the appeals and set aside the judgments of the General Court.
2. Legal provisions
The Aarhus Convention is designed to provide individuals and environmental groups with wide access to justice on environmental matters. Article 9(3) of the Aarhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment.
The EU, which is party to the Aarhus Convention, applied the provisions of the Aarhus Convention to EU institutions by adopting the so-called Aarhus Regulation in 2006. The Aarhus Regulation further defines NGO access to internal review procedures. Article 10 of the Aarhus Regulation provides that: “Any non-governmental organization which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative actunder environmental law or, in case of an alleged administrative omission, should have adopted such an act.” [emphasis added]
Article 2(1)(g) of the Aarhus Regulation defines “administrative act” as “any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects.” [emphasis added]
3. Arguments raised by environmental NGOs
The environmental NGOs contested Article 10 of the Aarhus Regulation limiting their access to an internal review procedure only where the acts being challenged are “measures of individual scope.” The NGOs argued that Article 10 is not compatible with the Aarhus Convention, which was designed to ensure broad access to justice in environmental matters. The NGOs also argued that they were entitled to challenge environmental law acts of EU institutions solely on the basis of Article 9(3) of the Aarhus Convention.
4. Court rulings
The General Court sided with the environmental NGOs. It held that because Article 10(1) of Aarhus Regulation limits the concept of “acts” that can be challenged by NGOs to “administrative acts” defined in Article 2(1)(g) of the Regulation as “measures of individual scope,” the Aarhus Regulation is not compatible with Article 9(3) of the Aarhus Convention. The General Court therefore granted the organizations a right to demand an internal review of decision directly on the basis of the Aarhus Convention itself.
However, the ECJ came to the opposite conclusion, finding that the Aarhus Convention lacks the clarity and precision needed for direct application. Article 9(3), the ECJ held, does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions. Direct application requires a regulation applying the Aarhus Convention at national (including EU) level: since only members of the public who “meet the criteria, if any, laid down in … national law” are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure at the national (including the EU) level. The Aarhus Contracting Parties (including the EU) enjoy a broad margin of discretion when defining the rules for the implementation of the “administrative or judicial procedures.”