In two judgments issued on 14 June 2012, the General Court of the European Court of Justice (the Court) held that elements of the EU Regulation implementing the Aarhus Convention with respect to EU institutions are incompatible with the Convention obligations and that those obligations prevail over the Regulation.
Following these judgments, the right of NGOs to seek review of environmental acts or omissions by EU institutions applies not only to a limited range of administrative acts of "individual scope", as stated by the relevant EU Regulation, but also, and much more widely, to administrative acts of "general application".
Although the Aarhus Convention excludes legislative and judicial acts from being subject to review, the approach of the Court indicates that it will construe legislative acts narrowly. This further widens the range of acts which might be challenged by NGOs.
The Aarhus Convention (the Convention), signed in 1998, is an international agreement that aims to protect the environment by promoting governmental accountability through a focus on the interactions between the public and public authorities. In particular it makes provision for: (i) access to environmental information held by public authorities; (ii) public participation in environmental decision-making; and (iii) rights to review or challenge public decisions with respect to areas (i) and (ii) or environmental law in general. The EU is a signatory to the Convention.
Article 9 of the Convention makes provision with respect to rights of review and challenge, otherwise referred to as "access to justice". Article 9(3) of the Convention obliges signatories to ensure that members of the public have "access to administrative or judicial procedures to challenge acts or omissions by private persons and public authorities which contravene provisions of national law relating to the environment". This provides the broader right to challenge decisions in the area of environmental law, in addition to the specific rights of challenge relating to access to information and public participation in certain decisions, which are provided at Articles 9(1) and 9(2). However, the definition of public authority in the Convention precludes a challenge being made under Article 9(3) to an authority acting in a judicial or legislative capacity. The term "acts" is not defined in the Convention itself.
The Convention as applicable to the EU institutions and bodies was transposed into EU law by Regulation 1367/2006 (the Aarhus Regulation). Article 10(1) of the Aarhus Regulation gives established NGOs the right to "make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act." An "administrative act" is defined as any measure of "individual scope".
Case T‑338/08 Stichting Natuur en Milieu & Pesticide Action Network Europe v European Commission concerned Regulation 149/2008, which set maximum residue levels of pesticides in various products, food and feed (the Implementing Regulation). The Implementing Regulation was adopted through the European Commission (the Commission) exercising its powers under Regulation 396/2005 on the maximum residue levels, which had been adopted under the normal EU process. The "act" that the applicants sought to challenge was the adoption of the Implementing Regulation.
In Case T-396/09 Vereniging Milieudefensie & Stichting Stop Luchtverontreininging Utrecht v European Commission, the applicants sought to challenge the adoption by the Commission of a Decision not to object to an extension of time to the Netherlands for compliance with Directive 2008/50/EC on air quality.
In both cases, the Commission declined to conduct a review of the relevant act on the basis that these were not administrative acts of individual scope, and therefore fell outside of the right to request review provided by Article 10(1) of the Aarhus Regulation. The applicants in each case brought a claim for annulment of the Commission's decision to decline the request for review to the Court on two grounds: (i) that the acts were of individual scope and Article 10(1) therefore applied; or, in the alternative, that the Aarhus Regulation is unlawful in limiting the right provided by Article 10(1) to acts of individual scope, thus excluding a right to review administrative acts of general application that ought to have been provided pursuant to Article 9(3) of the Convention.
The first ground: acts of general application or individual scope
The Court declined to characterise the relevant acts as measures of individual scope or a bundle of individual decisions. It noted that a measure is regarded as being of general application if it "applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract." In neither case could the applicants show that the act concerned a particular situation or specific persons. Both were therefore held to be acts of general application.
The second ground: inconsistency between the Convention and the Aarhus Regulation
However, the Court upheld the second plea in finding that Article 9(3) of the Convention applied to acts of general application and that the Convention should take precedence over the Regulation.
The Court noted that in arguing that the inconsistency must be resolved in favour of the Convention, the applicants were bringing a plea of illegality under Article 241 of the Treaty establishing the European Community in relation to the relevant parts of the Aarhus Regulation. The Court held that since the Aarhus Regulation was intended to implement a particular obligation which had been assumed under the Convention, it was for the Court to review the legality of the measures in light of the terms of the Convention. The Court concluded after an analysis of the recitals that the Convention was intended to have a wide application. Since most environmental acts are of general application, a procedure which covered only measures of individual scope would be necessarily very limited and therefore incompatible with such an objective. The Court also noted that discretion had been given in Article 9(3) as to which parties could rely on the provision, but that no such discretion had been granted as to which acts it applied to. There was therefore no reason to construe the concept of "acts" in Article 9(3) of the Convention as covering only acts of individual scope.
It was noted that the effect of Article 300(7) of the Treaty establishing the European Community, as confirmed by subsequent case law, was that EU institutions were bound by agreements concluded by the EU, which in such instances prevail over secondary Community legislation. Accordingly, the Convention prevailed over the Aarhus Regulation.
Exclusion of decisions made by bodies acting in a judicial or legislative capacity
The Court declined to accept the Commission's argument in Stichting Natuur en Milieu that it had been acting in a legislative capacity in adopting the Implementing Regulation and was therefore outside the scope Article 9(3) of the Convention. In coming to this conclusion, the Court noted that the procedures for adopting the Implementing Regulation had been laid down in the underlying Directive and the Commission was exercising these powers not acting in a legislative capacity itself. The Court also had regard to non-binding guidance to the Convention, which states, and it would appear intended to mean in any circumstance, that the "Commission should not be considered as acting in a legislative capacity within the meaning of the Convention".
The Convention, as transposed into EU and national law, provides the means by which members of the public can seek to challenge environmental decision making. Its impact in domestic law has already been significant. For instance, the concept of environmental information has been interpreted widely in the UK, allowing persons to access a wide range of information held by public authorities, from breaches of planning control to night-flying policies. In requiring that remedies for matters within its scope are not prohibitively expensive, the Convention has also been important in the development of Protective Costs Orders in environmental cases, which protect a claimant from paying some or all of the defendant's costs at the outset of the proceedings.
The judgments in Stichting Natuur en Milieu and Vereniging Milieudefensie demonstrate that the Convention can also be expected to have a broad impact at the EU level. As was noted in both cases, environmental acts that fall to be challenged under Article 9(3) of the Convention are much more likely to be of general application rather than of individual scope. Accordingly, the Court's conclusion that that the limitation of Article 10(1) of the Aarhus Regulation to acts of individual scope is unlawful widens considerably the acts of EU institutions which can be subject to internal review. Moreover, the Court's expansive interpretation of an act of general application to include acts that might be interpreted as legislative further increases the scope of the right to review.
Those operating in sectors where environmental issues are of particular relevance may already be aware of the impact of the Convention in reviewing and challenging environmental decisions. In confirming the breadth of acts by EU institutions that can be subject to requests for review by NGOs, these latest judgments demonstrate the continuing importance of the Convention for those who have an interest in environmental decision making at the EU as well as UK level.