Opinion of the European Economic and Social Committee on ‘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))

(2021/C 123/10)

Rapporteur: Arnaud SCHWARTZ Co-rapporteur: Isabel CAÑO AGUILAR

Referrals European Parliament, 19.10.2020 Council, 20.10.2020 Legal basis Articles 192(1) and 304 of the Treaty on the Functioning of the European Union Bureau decision 28.10.2020 Section responsible Agriculture, Rural Development and the Environment Adopted in section 11.1.2021 Adopted at plenary 27.1.2021 Plenary session No 557 Outcome of vote for/against/abstentions) 254/2/7

1. Conclusions and recommendations

1.1 The EESC welcomes the Commission’s proposal ( 1 ) to strengthen the internal review mechanism contained in the Aarhus Regulation ( 2 ) and appreciates its potential.

1.2 The EESC supports the four priority actions identified in the Commission’s Communication, namely the Member States’ obligation to fully and correctly transpose access to justice requirements stemming from EU secondary law, the need for co-legislators to include provisions on access to justice in new and revised EU legislation concerning environmental matters, the review by Member States of their own national legislative and regulatory provisions that prevent or undermine access to justice, and the obligation of national courts to guarantee the right of individuals and NGOs to an effective remedy under EU law.

1.3 Nevertheless, the EESC points out to the Commission that its proposal contains loopholes which may be used by institutions to avoid being held accountable.

1.4 Thus for example the EESC does not endorse the Commission’s proposal to exclude EU acts entailing ‘national implementing measures’, because there is a real possibility that this exclusion could nullify or devalue the Commission proposal.

1.5 The EESC is also concerned that allowing civil society organisations (CSOs) to conduct a review only when the implementing measures have been adopted would insulate many, if not most, EU acts and omissions from internal review.

1.6 Despite the arguments set out by the Commission, the EESC notes that non-legally binding EU acts can have significant effects both on the implementation of EU legislation and on its interpretation by the Court of Justice of the European Union (CJEU).

1.7 The social partners are key players in environmental issues, and the EESC therefore urges that they be explicitly recognised as regards access to justice.

1.8 The EESC stresses that the new Regulation should permit internal review of Commission state aid decisions.

1.9 The EESC considers that protection of CSOs from extra burdens (like additional costs and bureaucratic measures) at both national and EU levels must be properly ensured in order to make judicial review accessible in practice.

2. Background

2.1 Introduction to the Aarhus Convention and the Commission’s legislative proposal

2.1.1 The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) was adopted on 25 June 1998 ( 3 ) . The Convention establishes a number of rights for the public (individuals and their associations) with regard to the environment. It consists of three pillars: — 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 and environmental non-governmental organisations to comment on, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment, to take these comments into due account in decision-making, and provide information on the final decisions and the reasons for it (‘public participation in environmental decision-making’). — The right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general (‘access to justice’).

2.1.2 The EU is a party to the Aarhus Convention. The Aarhus Regulation adopted in 2006 ( 4 ) contributes to the implementation of the obligations arising under the Convention for EU institutions and bodies.

2.1.3 In the European Green Deal Communication ( 5 ) , the Commission committed to ‘consider revising the Aarhus Regulation to improve access to administrative and judicial review at EU level for citizens and NGOs who have concerns about the legality of decisions with effects on the environment’ and to ‘take action to improve their access to justice before national courts in all Member States’.

2.1.4 On 14 October 2020, the European Commission adopted a legislative proposal amending the Aarhus Regulation ( 6 ) with the stated objective to ‘improve the implementation of the Aarhus Convention’ by revising the internal review mechanism ‘for the benefit of NGOs with regard to administrative acts and omissions of EU institutions and bodies’.

2.1.5 The European Commission emphasised in its proposal, based on the CJEU judgments on the relevance of the Aarhus Convention in the EU legal order, that judicial and administrative procedures relating to access to justice in the field of environmental law are ‘in principle’ covered by the law of the Member States. Therefore, any improvement in access to administrative and judicial review at EU level is complementary to access to justice in EU environmental matters at the level of national courts in the Member States.

2.1.6 National courts are under an obligation to grant access to justice in environmental matters pursuant to Article 9(2) and 9(3) of the Convention, also when implementing EU environmental law. However, if at national level the NGOs concerned discover shortcomings in the adopted administrative procedures, they should first seek redress from the competent national court in the Member State. NGOs subsequently obtain access to the CJEU under the preliminary reference procedure provided for in Article 267 TFEU. This procedure can also concern the validity of acts of the EU institutions.

2.2 Gist of the European Commission document

2.2.1 The proposed amendments by the Commission are in particular intended to improve the possibilities for environmental NGOs to request the EU institutions to review acts where the NGOs consider that they may contravene EU law related to the environment.

2.2.2 This should foster openness and accountability when it comes to environmental protection, contribute to greater transparency and more effective pursuit of the EU environmental objectives and, thus, help achieve the systemic societal changes required by the European Green Deal.

2.2.3 The proposal amends Regulation (EC) No 1367/2006 which was adopted by the European Parliament and the Council in 2006, following the EU’s ratification of the Aarhus Convention in 2005.

2.2.4 In 2017, the Compliance Committee under the Convention found that the EU had failed to meet its obligations concerning access to justice in environmental matters. The Commission legislative proposal is intended to address these findings.

2.2.5 The legislative proposal is accompanied by a Commission Communication ( 7 ) aiming to facilitate access to justice in environmental matters for individuals and NGOs in EU Member States.

2.2.6 National and local authorities take many important decisions when applying EU environmental laws, for example when granting permits to infrastructure projects or industrial installations that may pollute nature and soil, air or water.

2.2.7 It is important to improve public scrutiny of these decisions as well. The Commission will take measures to help Member States improve their systems such as training, information sharing and capacity building, but is also prepared to take legal action in case of breaches of EU law.

2.3 Next steps

2.3.1 The Commission’s proposal is now to be negotiated and adopted by the European Parliament and the Council. The Commission will engage constructively with both institutions to facilitate adoption of the revised Aarhus Regulation before the Meeting of the Parties to the Aarhus Convention in October 2021.

3. General comments

3.1 Access to justice at national level related to measures implementing EU environmental law ( 8 ): The EESC recalls the conclusions from its previous opinion on

3.1.1 recognising that consistency in Access to Justice across the EU is an essential factor underpinning the single market and the consistent implementation of EU law rights in the Union, and provides necessary clarity and certainty for markets and investors;

3.1.2 supporting the Aarhus Convention and its full implementation by and within the EU . It remains therefore essential that the findings on compliance of the Aarhus Convention Compliance Committee (ACCC), appointed by the Parties, are fully endorsed by the Parties;

3.1.3 in a global context of harassment and persecution of environmental defenders, asking the EU to take the lead in facilitating Access to Justice;

3.1.4 prioritising with environmental NGOs and civil society, a broad and ambitious approach to the ways and areas in which the EU can improve the implementation of the Convention and Access to Justice within and by the EU Institutions. A parallel and complementary approach to Access to Justice within and by the EU institutions, associated guidance and rollout activities should also be addressed.

3.2 Actions to improve environmental compliance and governance current shortcomings are undermining people’s trust in the effectiveness of EU legislation , and calls on the Member States and the EC to mobilise substantial funding for the recruitment of additional staff, in order to monitor the implementation of environmental governance and legislation. The EESC also recalls its position in the opinion on ( 9 ) that, and calls on the Member States and the EC to mobilise substantial funding for the recruitment of additional staff, in order to monitor the implementation of environmental governance and legislation.

3.3 A more constructive role for civil society in implementing environmental law The EESC, referring to its opinion on ( 10 ) calls again on the Commission:

3.3.1 to work on improving access to justice for civil society e.g. with the right for CSOs to stand before the European Court of Justice and having specialised judges and prosecutors at EU, national and local level;

3.3.2 to enable individuals to approach the European Court of Justice directly, as in the case of the European Court of Human Rights (ECHR), when the transposition of EU law into national law is at stake and domestic remedies have been exhausted;

3.3.3 to consider establishing an environmental injunction for issues other than emergencies, with which Member States must comply, whereby work is suspended pending a decision by the Court of First Instance in the event of there being any immediate harm to the environment;

3.3.4 to create an appropriate mechanism in order that fines paid for causing environmental damage are invested in actions aimed at supporting environmental protection.

4. Specific comments

4.1 The EESC welcomes the Commission’s proposal to strengthen the internal review mechanism contained in the Aarhus Regulation and appreciates its potential.

4.2 The EESC supports the four priority actions identified in the Commission’s Communication , namely the Member State’s obligation to fully and correctly transpose access to justice requirements stemming from EU secondary law, the need for co-legislators to include provisions on access to justice in new and revised EU legislation concerning environmental matters, the review by Member states of their own national legislative and regulatory provisions that prevent or undermine access to justice, and the obligation of national courts to guarantee the right of individuals and NGOs to an effective remedy under EU law.

4.3 The EESC emphasises, however, that these actions do not replace adequate access to the CJEU by way of the internal review request, or the need for a horizontal directive regulating access to justice at Member State level.

4.4 The EESC agrees with the Commission about the need to strengthen the implementation and enforcement of EU environmental law by Member States and EU institutions given the need for the European Green Deal to deliver on its targets and promises.

4.5 The EESC warns therefore the Commission of the fact that this proposal contains problematic loopholes which may be used by institutions to avoid being held accountable.

4.6 The EESC reminds the Commission that civil society organisations (CSOs), including all the social partners, are asking the EU for strong enforcement mechanisms allowing them to hold EU institutions to account if and when they fail to deliver on goals relating to the environment and human health.

4.7 The EESC considers that, without appropriate changes, this proposal will neither make the EU institutions accountable, nor ensure compliance with the EU’s international law commitments.

4.8 The EESC does not endorse the Commission’s proposal to exclude EU acts entailing ‘national implementing measures’. There is a real possibility that this exclusion could nullify or devalue the Commission proposal.

4.9 Since it is often unclear which EU acts will entail implementing measures, the EESC believes that delay and legal uncertainty could be avoided, if the proposal not only allowed CSOs to ask for the review of such acts once the implementing measures have been adopted. The EESC is concerned that its wording would insulate many, if not most, EU acts and omissions from internal review. The EESC emphasises in that regard that access to the national courts with the potential of a preliminary reference is no replacement for access to the internal review mechanism.

4.10 The EESC considers that the definition of administrative acts should be aligned with the long-established case law of the Court of Justice of the European Union (CJEU), so that all ‘legally binding’ acts are covered by the internal review mechanism, including the preparatory acts that are the basis of the regulations, thus complying with the precautionary principle that is fundamental for environmental litigation.

4.11 The EESC also considers that the definition of administrative acts subject to administrative and judicial control is not exhaustive, requiring express clarification in the sense that all administrative acts relating to the environment may be examined.

4.12 The EESC also considers that non-legally binding EU acts can have significant effects both on the implementation of EU legislation and its interpretation by the CJEU. These kind of acts should therefore also be covered by the internal review mechanism.

4.13 The EESC also emphasises that the proposal should permit internal review of Commission state aid decisions. As confirmed by the CJEU ( 11 ) , the EC must comply with EU environmental law when adopting state aid decisions and it is therefore crucial that these decisions can be challenged by CSOs where they consider that the Commission has failed to meet this requirement.

4.14 The EESC considers that protection of CSOs from extra burdens (like additional costs and bureaucratic measures), at both national and EU levels, must be properly ensured in order to make judicial review accessible in practice.

4.15 The Aarhus Regulation should specify that the CJEU’s judicial review of an internal review decision must cover the substantive and procedural legality of the decision.

4.16 The EESC underlines the need for coherent regulation, in the sense that any procedural deadlines for administrative and/or judicial control apply only once the content is known of the contested administrative act relating to the major public interest protected by environmental law and irreversibility of ecological damage. This is necessary in order to avoid practices that could violate Article 9 of the Aarhus Convention and the case law of the CJEU (see Case C-261/18, Commission v. Ireland ( 12 ) ), giving rise to arbitrariness.

4.17 Last but not least, the social partners are key players in environmental issues, and the EESC therefore calls for them to be explicitly recognised as regards access to justice. The EESC considers that Article 11 of the Aarhus Regulation is currently incompatible with Article 2(5) of the Aarhus Convention and that it should be amended so as to not restrict the access of CSOs to justice, providing that it be enough for a non-governmental organisation to have, among other things, the objective of environmental protection.

Brussels, 27 January 2021. The President of the European Economic and Social Committee Christa SCHWENG

(1) https://ec.europa.eu/environment/aarhus/pdf/legislative_proposal_amending_aarhus_regulation.pdf

(2) 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 (OJ L 264, 25.9.2006, p. 13).

(3) Text of the Aarhus Convention: https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

(4) Regulation (EC) No 1367/2006.

(5) Communication from the Commission The European Green Deal — COM(2019) 640 final.

(6) COM(2020) 642 final — https://ec.europa.eu/environment/aarhus/pdf/legislative_proposal_amending_aarhus_regulation.pdf

(7) COM(2020) 643 final — https://ec.europa.eu/environment/aarhus/pdf/communication_improving_access_to_justice_environmental_matters.pdf

(8) EESC Opinion on the Access to justice at national level related to measures implementing EU environmental law (Communication) (OJ C 129, 11.4.2018, p. 65).

(9) EESC Opinion on the Actions to improve environmental compliance and governance (OJ C 283, 10.8.2018, p. 83).

(10) EESC Opinion on A more constructive role for civil society in implementing environmental law (OJ C 47, 11.2.2020, p. 50).

(11) Case C-594/18 P, Austria v Commission, ECLI:EU:C:2020:742, paras 42-46.

(12) Case C- C-261/18 — Commission v Ireland (Derrybrien Wind Farm), ECLI:EU:C:2019:955, paras 80 and 95.