Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, at the sixth session of the Meeting of the Parties to the Aarhus Convention regarding compliance case ACCC/C/2008/32
Date: 2017-06-29
Institutions: Directorate-General for Environment, European Commission
Subjects: EU law, UN convention, access to information, access to the courts, environmental law, environmental protection, judicial review, right to justice, transparency in decision-making

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   EUROPEAN COMMISSION  Brussels, 29.6.2017  COM(2017) 366 final 2017/0151 (NLE)   Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, at the sixth session of the Meeting of the Parties to the Aarhus Convention regarding compliance case ACCC/C/2008/32  
 
EXPLANATORY MEMORANDUM 

1. 

(1) 

CONTEXT OF THE PROPOSAL 

Introduction 

In 1998, the European Union (EU) signed the Aarhus Convention. It was back then and still is 
of  considerable  importance  for  the  EU  and  its  Member  States  as  well  as  for  countries  in 
Eastern Europe and for post-Soviet States which are parties to the Convention. The main aim 
of the Convention is to allow the public to become more involved in environmental matters 
and to actively contribute to improved preservation and protection of the environment.  

The Aarhus Convention is the direct reason for the adoption of the Aarhus Regulation whilst 
previous  EU  rules  on  access  to  documents  helped  shape  the  Convention.  The  Aarhus 
Convention and the EU have therefore mutually reinforced and developed each other over the 
years. 

The findings of the Compliance Committee case (ACCC/C/2008/32) are problematic for the 
EU because the findings do not recognise the EU's special legal order.  

The EU continues to support the important objectives of the Aarhus Convention. 

(2) 

The Aarhus Convention 

The  Convention  on  Access  to  Information,  Public  Participation  in  Decision-making  and 
Access  to  Justice  in  Environmental  Matters  ("the  Aarhus  Convention")1  is  a  multilateral 
environmental  agreement  under  the  aegis  of  the  United  Nations  Economic  Commission  for 
Europe (UNECE).  

It  guarantees  the  public  rights  on  access  to  information,  public  participation  in  decision-
making  and  access  to  justice  in  environmental  matters.  These  are  essential  tools  which 
contribute to strengthen effective environmental protection policies. 

The Aarhus Convention entered into force in 2001 and has currently 47 Parties, including the 
EU and its Member States. The European Community approved it on 17 February 2005.2 

The  EU  made  a  Declaration  upon  signature  and  upon  approval  of  the  Aarhus  Convention 
("the  EU  Declaration")  in  which  it  notified  the  Aarhus  bodies  about  the  "institutional  and 
legal  context  of  the  Community"  and  the  repartition  of  tasks  with  its  Member  States  in  the 
areas covered by the Convention.3 

The obligations of the Convention have been implemented, with regard to the EU institutions 
and bodies, notably by 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 ("the Aarhus Regulation").4 

(3) 

Background of the case 

1 

2 
3 

4 

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on 

published 

As 
http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf 
Council Decision 2005/370/EC, OJ L 124 of 17.5.2005, p. 1. 
The EU Declaration is published on the UNECE website under the heading "Declarations and Reservations", see 
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-13&chapter=27&clang=_en 
OJ L 264 of 25.9.2006, p. 13. 

UNECE 

website, 

the 

see 

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The  Aarhus  Convention  Compliance  Committee  ("the  Committee")  reviews  the  Parties' 
compliance  under  the  Convention.  On  17  March  2017,  it  issued  findings  in  the  case 
ACCC/C/2008/32,  brought  by  the  non-governmental  organisation  (NGO)  ClientEarth, 
regarding access to justice at EU level.5 The Committee held that the Treaty rules on access to 
justice  before  the  EU  Courts,  as  interpreted  by  them,  and  the  criteria  for  access  to 
administrative review under the Aarhus Regulation are in breach of the Convention.  

(4) 

Legal context 

The Committee found a breach of Article 9(3) and (4) of the Aarhus Convention. Paragraph 
3 foresees that "each Party shall ensure that, where they meet the criteria, if any, laid down 
in  its  national  law,  members  of  the  public  have  access  to  administrative  or  judicial 
procedures to challenge acts and omissions by private persons and public authorities which 
contravene provisions of its national law relating to the environment". Paragraph 4 requires 
those  procedures  to  be  "adequate  and  effective  […]  fair,  equitable,  timely  and  not 
prohibitively expensive". 

2. 

(1) 

THE PROBLEM AT STAKE 

The findings of the Committee 

According to the Committee, neither the case-law of the Court of Justice of the European 
Union (CJEU) which interprets the terms of the Treaty for access of private persons to the 
EU  Courts  within  the  meaning  of  Article  263(4)  of  the  Treaty  on  the  Functioning  of  the 
European  Union  (TFEU),  nor  the  Aarhus  Regulation  which  provides  for  administrative 
review  of  environmental  acts  by  the  Commission  give  NGOs  and  members  of  the  public 
sufficient access to review procedures. 

The Committee  considered  that Article  263(4)  TFEU on actions for annulment by  private 
persons, as interpreted by the CJEU, is too narrow insofar as it is limited to regulatory acts 
of direct concern to the person that do not entail implementing measures.6 

The  Committee  added  that  the  Aarhus  Regulation  cannot  compensate  for  these 
shortcomings as it equally breaches the Convention on the following points: 

– 

– 

– 

– 

the Aarhus review mechanism should be opened up beyond NGOs to members of the 
public; 

review should encompass general acts and not only acts of individual scope; 

every  administrative  act  that  is  simply  "relating"  to  the  environment  should  be 
challengeable, not only acts "under" environmental law; 

acts  that  do  not  have  legally  binding  and  external  effects  should  also  be  open  to 
review.7 

The Committee also considered that there has been no new direction in the jurisprudence of 
the EU Courts that will ensure compliance with the Convention.8 

5 

6 
7 
8 

http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-
32/Findings/C32_EU_Findings_as_adopted_advance_unedited_version.pdf 
See paragraphs 60-84 of the findings. 
See paragraphs 85-121 of the findings. 
See paragraphs 122-123 and 81-83 of the findings. 

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Finally,  the Committee recommended  that the jurisprudence  of  the  CJEU  should  take  full 
account  of  the  Convention  or,  in  the  alternative,  that  the  EU  should  amend  the  Aarhus 
Regulation or adopt new legislation.9 

(2) 

The Commission's position on the findings 

As  recalled  above,  the  Aarhus  Convention  bodies  have  been  made  aware  in  the  EU 
Declaration of the peculiarities of the legal order of the Union.  

However, the EU Declaration was not at all taken into account in the findings.  

The  specific  nature  of  the  system  of  judicial  review  is  indeed  carefully  drafted  in  the  EU 
Treaties, so that every Union citizen has access to justice. Access to judicial review of EU 
measures is not limited to direct actions to be lodged before the EU Courts but can occur 
also before a national court, which can – and in some circumstances must - raise a question 
of legality before the CJEU, which can declare the EU act or measure invalid. 

In  particular,  with  respect  to  actions  brought  before  the  EU  Courts  by  natural  or  legal 
persons  against  EU  measures  adopted  under  environmental  law,  Article  263(4)  TFEU 
provides that they may "[…] institute proceedings against an act addressed to that person 
or which is of direct and individual concern to them and against a regulatory act which is 
of direct concern to them and does not entail implementing measures." 

The conditions laid down in this provision and its predecessors have been interpreted by the 
CJEU  in  its  jurisprudence,  the  landmark  case  concerning  the  interpretation  of  the 
"individually  concerned"  test  being  Plaumann10,  in  which  the  CJEU  ruled  that  "persons 
other  than  those  to  whom  a  decision  is  addressed  may  only  claim  to  be  individually 
concerned if that decision affects them by reason of certain attributes which are peculiar to 
them or by reason of circumstances in which they are differentiated from all other persons, 
and  by  virtue  of  these  factors  distinguishes  them  individually  just  as  in  the  case  of  the 
person addressed". The CJEU developed its Plaumann case-law over the years and applied 
and adapted it to particular legal or factual circumstances, irrespective also of the nature of 
the applicant.11 

The  Treaty  of  Lisbon  widened  the  rules  on  standing  in  actions  for  annulment  brought  by 
private parties, by adding in paragraph 4 the final limb ("[…] and against a regulatory act 
which  is  of  direct  concern  to  them  and  does  not  entail  implementing  measures").Where 
these  conditions  apply,  there  is  no  need  for  the  applicant  to  show  that  he  or  she  is 
individually concerned by the contested act. 

The  Union  secondary  legislator  may  not  amend  the  rules  provided  for  in  Article  263(4) 
TFEU and has to respect the case-law developed by the Union judicature which determines 
the  correct  interpretation  of  the  Treaty.  Neither  can  the  Aarhus  Convention  allow  for  any 
derogation from Article 263(4) TFEU.12 

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10 
11 

12 

See paragraphs 124-126 of the findings. 
Case 25/62, Plaumann v Commission, ECLI:EU:C:1963:17. 
See,  for  instance,  Case  C-456/13  P,  T  &  L  Sugars  Ltd  and  Sidul  Acúcares  v  Commission, 
ECLI:EU:C:2015:284, paragraph 63; Case C-583/11 P, Inuit Tapiriit Kanatami a.o. v Parliament and 
Council,  ECLI:EU:C:2013:625,  paragraph  72;  and  C-274/12  P,  Telefónica  v  Commission, 
ECLI:EU:C:2013:852, paragraph 46. 
See e.g. Case T-600/15, PAN Europe aos v European Commission, where the General Court held that 
"the international agreements concluded by the European Union, including the Aarhus Convention, do 
not have primacy over EU primary law, with the result that derogation from the fourth paragraph of 
Article  263  TFEU  cannot  be  accepted  on  the  basis  of  that  agreement."  (paragraph  56  of  the  Order; 
ECLI:EU:T:2016:601). 

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Besides widening the direct access to EU Courts under Article 263(4) TFEU, the Treaty of 
Lisbon  gave  particular  relevance  to  the  role  of  national  courts  in  Article  19(1)  TFEU, 
second  sentence,  according  to  which  "Member  States  shall  provide  remedies  sufficient  to 
ensure  effective  legal  protection  in  the  fields  covered  by  Union  law".  In  this  vein,  the 
system  of  preliminary  rulings  by  the  CJEU  is  the  keystone  of  the  EU  legal  order,  as 
indicated by the CJEU in its Opinion 2/13 on the Accession of the European Union to the 
European Convention for Human Rights.13 

This is particularly relevant in EU environmental law, in which, as pointed out by the CJEU 
in 2015 in two judgments in Grand Chamber on the relevance of the Aarhus Convention in 
the  EU  legal  order,  as  EU  law  now  stands,  judicial  and  administrative  procedures 
concerning environmental law fall “primarily” within the scope of Member States law.14 

In the Commission's view, the Committee findings neither acknowledge the central role of 
national  courts  as  ordinary  Courts  of  EU  law,15  nor  recognise  the  system  of  preliminary 
rulings under Article 267 TFEU as a valid means of redress. 

Contrary to what the Committee held in the findings, the EU legal order offers a complete 
system of means of redress.16 Indeed, individuals who do not fulfil the admissibility criteria 
of  Article  263(4)  TFEU,  even  in  the  broader  form  of  the  Treaty  of  Lisbon,  still  have 
effective access to justice and judicial protection of their rights against measures of EU law. 
They are able, depending on the case, to either address the national courts by asking them to 
make  a  reference  to  the  CJEU  for  a  preliminary  ruling  on  validity,  as  stipulated  in 
Article 267 TFEU, or to indirectly plead the invalidity of acts of general application before 
the EU courts under Article 277 TFEU. 

Concerning administrative review, first, the Committee asked the EU to grant review of acts 
of general scope in environmental matters. Still, there is no requirement under the Aarhus 
Convention that these acts have to undergo an administrative review, nor it is clear to which 
extent such a review can meaningfully take place for this particular category of acts. 

Second,  Article  9(3)  of  the  Aarhus  Convention  cannot  be  construed  to  request 
administrative  review  of  non-binding  acts  without  external  effects.  Measures  which  have 
only internal legal effects within the administration and give no rights or obligations to third 
parties do not constitute decisions adversely affecting any person.  

In this regard, it also worth recalling that the Grand Chamber of the Court in 2015 took the 
view that the Aarhus Regulation, which concerns only EU institutions and only one of the 
remedies available to individuals for ensuring compliance with EU environmental law, was 
not  intended  to  implement  the  obligations  which  derive  from  Article  9(3)  of  the  Aarhus 
Convention with respect to national administrative or judicial procedures, which, as EU law 
now  stands,  fall  primarily  within  the  scope  of  Member  State  law.  Given  that  the  Aarhus 
Regulation  was,  as  a  matter  of  EU  law,  not  intended  to  implement  Article  9(3)  of  the 
Aarhus  Convention,  compliance  with  that  provision  can  be  ensured,  within  the  EU  legal 
order, through other means than by amending the Aarhus Regulation, as however advocated 
by the Committee in its recommendations. 

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14 

15 
16 

See notably paragraph 198 of Opinion 2/13. 
Joined  Cases  C-401/12  P  to  C-403/12  P,  Council  and  Commission  v  Vereniging  Milieudefensie  aos, 
EU:C:2015:4,  paragraph  60;  Joined  Cases  C-404/12  P  and  C-405/12  P,  Council  and  Commission  v 
Stichting Natuur en Milieu aos, EU:C:2015:5, paragraph 52. 
Opinion 1/09, Creation of a Unified Patent Litigation System, EU:C:2011:123, paragraph 80. 
See  e.g.  Case  C-50/00  P,  Unión  de  Pequenos  Agricultores  v  Council,  ECLI:EU:C:2002:462, 
paragraph 40; or Joined Cases T-236/04 and T-241/04, EEB aos v Commission, ECLI:EU:T:2005:426, 
paragraph 66. 

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(3) 

Implications of the findings 

The  Committee  recommended  that  the  Meeting  of  the  Parties  adopts  directions  that  the 
CJEU should follow when interpreting the Aarhus Convention. 

However,  according  to  the  principle  of  separation  of  powers  and  to  the  principle  of 
institutional balance, it is not possible to implement the Committee's findings via the CJEU 
case-law, as the Courts are independent in their judicial function. 

As to the Aarhus Regulation, the Committee considered that the criteria on who can ask for 
review  and  what  can  be  reviewed  (scope  ratione  personae  and  ratione  materiae)  are  too 
narrow.  To  extend  the  scope  as  requested  by  the  Committee  would  mean  to  open  the 
judicial review mechanism  – and ultimately access to the CJEU  - to an enormous pool of 
potential litigants, to acts that do not have any legal effects and to areas going beyond the 
scope of environment.  

Indeed,  if  the  Aarhus  Regulation  were  modified  to  widen  the  scope  of  administrative 
review, this solution would significantly enlarge access to the EU courts, as defined in the 
TFEU  and  consolidated  in  case-law.  Measures  that  are  not  challengeable  under  Article 
263(4), like for instance decisions addressed to Member States granting them an option for 
transitional free allocation of greenhouse emissions, would become the subject-matter of an 
administrative  review  procedure.  In  turn,  the  decision  taken  in  reply  to  a  request  for 
administrative review would be challenged by an action for annulment according to Article 
263(4) TFEU, in which an applicant could also raise issues of legality concerning the EU 
measure contested by a request for administrative review, as the General Court has already 
held.17 

Similarly,  the  notion  of  administrative  act  having  an  "individual  scope"  (which  is  the 
condition  to  trigger  the  administrative  review  under  Article  10  of  the  Aarhus  Regulation) 
has been interpreted by the General Court so far as being a notion not substantially different 
from that of a challengeable act under Article 263(4) TFEU.18 It follows that widening the 
category  of  acts  amenable  to  an  administrative  review  would  then  make  them  indirectly 
challengeable under Article 263(4) TFEU. 

In  substance,  through  amendments  to  secondary  legislation,  the  EU  Courts  would  be 
granted  jurisdiction  in  a  whole  new  category  of  cases  in  which  the  underlying  acts  made 
subject  to  administrative  review  would  not  be  challengeable  under  Article  263(4)  TFEU. 
Such  amendments  would  risk  creating  a  significant  imbalance  in  the  system  of  judicial 
protection as envisaged by the Treaties. 

3. 

FURTHER STEPS IN THE AARHUS PROCEDURE 

The  Committee's  findings  will  be  submitted  for  endorsement  to  the  sixth  session  of  the 
Meeting of the Parties to the Aarhus Convention, which will take place 11 to 14 September 
in Budva, Montenegro, whereby they would gain the status of official interpretation of the 
Aarhus  Convention,  therefore  binding  upon  the  Contracting  Parties  and  the  Convention 
Bodies. 

17 
18 

Case T-177/13, Test BioTech eV aos v Commission, EU:T:2016:736, paragraph 56, second sentence. 
See e. g. Cases T-19/13, Frank Bold Society v Commission, EU:T:2015:520, paragraphs 38 and 44-45; 
and T-565/14, European Environmental Bureau v Commission, EU:T:2015:559, paragraphs 40-49. 

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The Meeting of the Parties generally decides by consensus. If all efforts to reach consensus 
have been exhausted, decisions on substantive matters are taken by a three-fourth majority 
vote of the Parties present and voting.19 

4. 

CONCLUSIONS 

The  Committee  findings  challenge  constitutional  principles  of  EU  law  that  are  so 
fundamental that it is legally impossible for the EU to follow and comply with the findings.  

In the course of the compliance procedure, the EU has asked the Committee for a second 
hearing  to  further  explain  the  Union's  institutional  framework.  However,  the  Committee 
denied this request. There is no means for appeal against the Committee's findings. The sole 
way open for the EU to fully safeguard its institutional specificities and the autonomy of the 
EU legal order, it has no option except that of casting a negative vote on the endorsement of 
these findings in the Meeting of the Parties. 

In view of these considerations, the EU should reject the findings in case ACCC/C/2008/32 
at the upcoming Meeting of the Parties. 

The  EU  position  on  this  matter  does  not  diminish  the  EU's  commitment  to  the  principles 
and objectives of the Aarhus Convention.   

Contrary to earlier compliance findings, this specific case requires a decision by the Council 
within the meaning of Article 218(9) TFEU. 

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Decision 
http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.2.e.pdf 

I/1  on  Rules  of  procedure 

(cf.  notably  Rule  35  on  decision-making),  see 

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2017/0151 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted, on behalf of the European Union, at the sixth session of 
the Meeting of the Parties to the Aarhus Convention regarding compliance case 
ACCC/C/2008/32 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

20 
21 

22 
23 

On  17  February  2005,  the  Aarhus  Convention  on  Access  to  Information,  Public 
Participation  in  Decision-making  and  Access  to  Justice  in  Environamental  Matters 
("the  Aarhus  Convention")20  was  approved,  on  behalf  of  the  European  Community, 
by Council Decision 2005/370/EC.21 

The  Union  implemented  the  obligations  of  the  Convention  with  regard  to  its 
institutions  and  bodies  notably  by  way  of  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 ("the Aarhus Regulation").22 

Pursuant to Article 15 of the Aarhus Convention, the Aarhus Convention Compliance 
Committee ("the Committee") was established and is competent to review the Parties' 
compliance with the provisions of the Convention.  

On 17 March 2017, the Union received findings in  case ACCC/C/2008/32 regarding 
access to justice at EU level.23 The Committee held that "the Party concerned fails to 
comply with Article 9, paragraphs 3 and 4, of the Convention with regard to access to 
justice  by  members  of  the  public  because  neither  the  Aarhus  Regulation,  nor  the 
jurisprudence of the CJEU implements or complies with the obligations arising under 
those paragraphs." (paragraph 123 of the Committee's Findings). 

The Aarhus Convention bodies have been made aware by the Declaration that the EU 
made upon signature and reiterated upon approval of the Convention that "[w]ithin the 
institutional and legal context of the Community […] the Community institutions will 
apply the Convention within the framework of their existing and future rules on access 

http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf 
Council  Decision  2005/370/EC  of  17  February  2005  on  the  conclusion,  on  behalf  of  the  European 
Community,  of  the  Convention on  access  to  information,  public participation  in decision-making  and 
access to justice in environmental matters (OJ L 124, 17.5.2005, p. 1). 
OJ L 264 of 25.9.2006, p. 13. 
http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-
32/Findings/C32_EU_Findings_as_adopted_advance_unedited_version.pdf 

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(6) 

(7) 

(8) 

(9) 

to  documents  and  other  relevant  rules  of  Community law  in  the  field  covered  by the 
Convention." 

The findings neither acknowledge the central role of national courts for implementing 
Article  9(3)  of  the  Aarhus  Convention  nor  do  they  recognise  the  EU  system  of 
preliminary rulings to the Court of Justice of the European Union as a valid means of 
redress.24 

The findings recommend the Meeting of the Parties to take a course of action which is 
in  clear  conflict  with  the  fundamental  principles  of  the  EU  legal  order  and  of  its 
system of judicial review. The findings do not recognize the EU's special legal order. 

The EU continues to fully support the important objectives of the Aarhus Convention. 

The findings will be submitted to the sixth session of the Meeting of the Parties to the 
Aarhus Convention to take place in September 2017 in Budva, Montenegro, by which 
they  would  gain  the  status  of  official  interpretation  of  the  Aarhus  Convention, 
therefore binding upon the Contracting Parties and the Convention Bodies.  

HAS ADOPTED THIS DECISION:  

Article 1 

The position to be taken by the Union at the sixth session of the Meeting of the Parties to the 
Aarhus Convention regarding compliance case ACCC/C/2008/32 is as follows: 

– 

negative vote on the endorsement of the findings. 

This Decision shall enter into force on the day of its adoption. 

Done at Brussels, 

Article 2 

For the Council 
The President 

24 

See notably paragraph 58 of the findings: "While the system of judicial review in the national courts of 
the EU member States, including the possibility to request a preliminary ruling, is a significant element 
for  ensuring  consistent  application  and  proper  implementation  of  EU  law  in  its  member  States,  it 
cannot  be  a basis for  generally denying members of  the public access  to  the  EU  Courts  to  challenge 
decisions, acts and omissions by EU institutions and bodies". 

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