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
Date: 2020-10-14
Institutions: Directorate-General for Environment, European Commission
Subjects: EU environmental policy, access to information, disclosure of information, environmental law, environmental monitoring, international convention, right to justice, transparency in decision-making

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 14.10.2020  COM(2020) 642 final 2020/0289 (COD)  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  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

A. Reasons for and objectives of the proposal 

• 
The EU institutions need to engage with members of the public if the European Green Deal1 
is to succeed and deliver lasting change. The public is and should remain a driving force of 
the  transition  and  should  have  the  means  to  get  actively  involved  in  developing  and 
implementing new policies. 

Engaging  with  the  public  means  not  only  engaging  with  individuals  but  also  engaging  with 
civil  society.  Across  Europe,  environmental  non-governmental  organisations  (NGOs)  play  a 
crucial  advocacy  role  for  the  environment.  This  implies  that,  under  certain  conditions,  they 
should  have  the  right  to  seek  the  review  of  decisions  taken  by  public  authorities  on  the 
grounds that these contravene environmental laws. 

As  Advocate  General  Sharpston  said,  ‘the  natural  environment  belongs  to  us  all  and  its 
protection  is  our  collective  responsibility.  The  Court  has  recognised  that  the  rules  of  EU 
environmental law, for the most part, address the public interest and not merely the protection 
of  the  interests  of  individuals  as  such.  Neither  water  nor  the  fish  swimming  in  it  can  go  to 
court. Trees likewise have no legal standing’.2 

When carried out by the public administration, the review is called an 'administrative review'. 
When carried out by a court, it is called a 'judicial review'. 

The  objective  of  the  proposal  is  to  revise  the  administrative  review  mechanism  created  in 
2006  for  the  benefit  of  NGOs  with  regard  to  administrative  acts  and  omissions  of  EU 
institutions  and  bodies.  The  mechanism  is  found  in  Regulation  1367/2006,  known  as  the 
Aarhus Regulation (the Regulation)3. 

The proposal  aims to  improve the implementation  of the Aarhus Convention4  following the 
adoption  of  the  Lisbon  Treaty  and  to  address  the  concerns  expressed  by  the  Aarhus 
Convention Compliance Committee (the Committee) regarding the EU’s compliance with its 
international  obligations  under the Convention.  It aims to  do so in  a way  that is  compatible 
with the fundamental principles of the EU legal order and with its system of judicial review. 
The amendment of the Regulation is called for by the European Parliament and the Council 
and was anticipated by the Commission in its Communication on the European Green Deal, as 
detailed in section 1.A.II below. 

The  proposal  broadens  the  possibilities  currently  available  to  NGOs  to  seek  administrative 
review.  Whereas  currently  an  administrative  review  can  only  be  requested  for  acts  of 

1 

2 

3 

4 

Communication from the Commission to the European Parliament, the European Council, the Council, 
the European Economic and Social Committee and the Committee of the Regions, The European Green 
Deal, COM/2019/640 final. 
Opinion  of  Advocate  General  Sharpston,  delivered  on  12  October  2017  in  Case  C‑ 664/15,  Protect 
Natur, ECLI:EU:C:2017:760, para 77. 
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. 13-19. 
United  Nations  Economic  Commission  for  Europe  (UNECE)  Convention  on  access  to  information, 
public participation in decision-making and access to justice in environmental matters. 

EN 

1 

  EN 

                                                 
‘individual scope’ (acts which are directly addressed to a person or where the person affected 
can be distinguished individually), in the future NGOs will also be able to request review of 
administrative acts of ‘general scope’. 

The  proposal  also  aims  to  change  the  references  to  environmental  law:  while  currently  the 
administrative  acts  subject  to  review  needs  to  contribute  to  the  pursuit  of  environmental 
policy objectives, it is proposed that, in the future, any administrative act that contravenes EU 
environmental law may be subject to review, irrespective of its policy objectives. 

Finally, it is proposed to extend the time frames for requests and replies, in order to improve 
the quality of the administrative review process. 

As  the  CJEU  recalled  in  landmark  judgments  concerning  the  relevance  of  the  Aarhus 
Convention in the EU legal order, judicial and administrative procedures concerning access to 
justice  in  environmental  law  currently  fall  ‘primarily’  within  the  scope  of  national  law.5 
Therefore, any improvement in the access to administrative and judicial review at EU level is 
complementary to the proper functioning of access to justice in EU environmental matters in 
the national courts of the Member States. 

In  particular,  national  courts  are  under  an  obligation  to  grant  access  to  justice  in 
environmental  matters  under  Articles  9(2)  and  9(3)  of  the  Convention,  also  when 
implementing EU environmental law. 

Where implementing measures of an administrative act adopted by an EU institution or body 
should  exist  at  national  level,  the  NGOs  concerned  should  first  seek  redress  before  the 
competent national court of the Member State which has adopted the measure. They then have 
subsequent access to the CJEU under the preliminary reference procedure under Article 267 
TFEU. This procedure can also concern the validity of acts of the EU institutions. 

Therefore, the Commission puts forward this legislative proposal as part of a wider effort to 
improve  access  to  justice  in  environmental  matters.  The  role  of  the  Member  States  and 
national courts will be outlined in an accompanying Communication6. 

I. 

The  requirements  of  Article  9(3)  of  the  Convention  and  the  findings  of  the  Aarhus 
Convention Compliance Committee  

The EU adopted the Regulation in order to contribute to the implementation of the obligations 
arising from the Convention. The EU formally became a Party to the Convention in 20057. 

Article  9(3)  of  the  Convention  states  that  each  Party  to  the  Convention  must  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 

5 

6 

7 

Joined  Cases  C-401/12  P  to  C-403/12  P,  Council  and  Commission  v  Vereniging  Milieudefensie, 
EU:C:2015:4, par 60; Joined Cases C-404/12 P and C-405/12 P, Council and Commission v Stichting 
Natuur en Milieu, EU:C:2015:5, para 52. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions on improving access to justice in 
environmental matters in the EU and its Member States. [Add COM ref once available.] 
2005/370/EC:  Council  Decision  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. 1–3. 

EN 

2 

  EN 

                                                 
environment.'  In  the  EU  context,  national  law  means  EU  law  and  members  of  the  public 
include NGOs. 

The  Regulation  made  it  possible  for  NGOs  to  request  EU  institutions  and  bodies  to  review 
certain decisions – acts of individual scope – adopted under environmental law. However, the 
Convention does not distinguish between acts of individual scope and acts of general scope in 
its Article 9(3). 

The Committee, set up to review the Parties' compliance with the Convention, found that the 
EU does not fully comply with its obligations under the Convention's requirements on access 
to justice in environmental matters (case ACCC/C/2008/328). 

More specifically, the Committee considered that: (i) the Regulation should also encompass 
general  acts  and  not  only  acts  of  individual  scope;  (ii)  that  every  administrative  act  that  is 
simply  ‘relating’ to  the  environment  should be challengeable, not  only  acts  that fall  ‘under’ 
environmental  law;  (iii)  that  the  administrative  review  mechanism  should  be  opened  up 
beyond  NGOs  to  other  members  of  the  public;  and  (iv)  that  acts  that  do  not  have  legally 
binding and external effects should also be open to review. 

In  September  2017,  at  the  most  recent  Meeting  of  the  Parties  to  the  Convention,  the  EU 
declared  that  it  will  'continue  to  explore  ways  and  means  to  comply  with  the  Aarhus 
Convention  in  a  way  that  is  compatible  with  the  fundamental  principles  of  the  Union  legal 
order and with its system of judicial review, taking into account concerns expressed within the 
Convention' (the Budva Declaration). 

The  case  will  be  discussed  again  at  the  next  Meeting  of  the  Parties  to  the  Convention  in 
October 2021. 

The inter-institutional response to the Committee's findings  

II. 
In 2018, in its Decision (EU) 2018/8819, the Council requested that the Commission submit 
the following, based on Article 241 of the Treaty on the Functioning of the European Union 
(TFEU): 

 

 

a study on the EU's options for addressing the findings, by 30 September 2019, 

a proposal to amend the Regulation (or to inform the Council of other measures), by 
30 September 2020. 

On 10 October 2019, the Commission published a detailed external study10 on the functioning 
of  access  to  justice  in  environmental  matters  in  relation  to  acts  and  omissions  of  EU 
institutions  and  bodies,  as  well  as  the  options  for  improving  the  current  situation.  This 
included a detailed examination of the administrative reviews carried out by the Commission 
under  the  Regulation.  Based  on  this  study,  the  Commission  services  reported  on  the  EU's 
implementation  of  the  Convention  in  the  area  of  access  to  justice  in  environmental  matters 

8 
9 

10 

See https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html 
Council Decision (EU) 2018/881 of 18 June 2018 requesting the Commission to submit a study on the 
Union's options for addressing the findings of the Aarhus Convention Compliance Committee in case 
ACCC/C/2008/32 and, if appropriate in view of the outcomes of the study, a proposal for a Regulation 
of  the  European  Parliament  and  of  the  Council  amending  Regulation  (EC)  No  1367/2006, 
ST/9422/2018/INIT, OJ L 155, 19.6.2018, p. 6–7. 
Study on EU implementation of the Aarhus Convention in the area of access to justice in environmental 
matters, Final report, September 2019, 07.0203/2018/786407/SER/ENV.E.4. 

EN 

3 

  EN 

                                                 
(the  Report)11.  Both  the  study  and  the  Report  took  account  of  the  Committee's  findings  but 
were  broader  in  scope;  both  addressed  the  findings  in  the  context  of  the  fundamental 
principles  of  the  EU  legal  order  and  its  system  of  judicial  review,  in  line  with  the  Budva 
Declaration, and in the context of the rights enshrined in the Charter of Fundamental Rights of 
the European Union (the Charter). 

In the Communication on the European Green Deal, which followed on 11 December 2019, 
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'. 

The European Parliament, in its resolution of 15 January 2020 on the European Green Deal12, 
reiterated  that  ‘it  is  essential  to  guarantee  EU  citizens  the  genuine  access  to  justice  and 
documents enshrined in the Aarhus Convention’; called on the Commission to ‘ensure that the 
EU  is  complying  with  the  Convention’  and  welcomed  the  Commission’s  consideration  of 
revising the Regulation. 

III. 

Key findings of the Report  

With regard to  the Committee's first  two findings,  based on analytical  work and taking into 
account  the  changes  introduced  by  the  Lisbon  Treaty  in  Article  263  TFEU,  the  Report 
identified two shortcomings in the Regulation that are now proposed to be remedied by way 
of legislative action: 

 

 

The current possibilities for administrative review under the Regulation extend only 
to  administrative acts  of individual scope and do not  include acts  of general  scope. 
This  has  been  identified  as  the  main  limitation  for  NGOs  seeking  to  challenge 
administrative acts at EU level. 

The  current  scope  only  covers  acts  ‘under’  environmental  law.  Article  9(3)  of  the 
Convention uses a different wording, referring to acts ‘which contravene provisions 
of  (…)  law  relating  to  the  environment’.  Although  the  current  wording  in  the 
Regulation, as interpreted by the case law of the Court of Justice  (CJEU), is broad, 
there are doubts as to whether its scope accurately matches that of Article 9(3) of the 
Convention. 

In  addition,  the  Report  found  that  there  was  scope  for  improvements  as  regards  the  time-
frames for administrative review set out in the Regulation.  In particular, it noted that the 12 
weeks available for the EU institutions and bodies to respond to a request for administrative 
review, have proven to be too short and difficult to respect.13 

IV. 

The changes introduced by the legislative proposal  

IV.a. Broadening the review to include acts of general scope  

The  Commission  proposes  to  broaden  the  definition  of  an  ‘administrative  act’  in  order  to 
make  it  possible  for  NGOs  to  request  an  administrative  review  of  any  non-legislative  act 
adopted  by  an  EU  institution  or  body,  which  has  legally  binding  and  external  effects  and 
contains  provisions  that may,  because  of  their  effects,  contravene  environmental  law  within 

11 

12 
13 

Commission  Staff  Working  Document,  Report  on  European  Union  implementation  of  the  Aarhus 
Convention in the area of access to justice in environmental matters, SWD (2019)378 final. 
European Parliament resolution of 15 January 2020 on the European Green Deal (2019/2956(RSP)). 
See, in particular, Study, section 3.2.3.1. 

EN 

4 

  EN 

                                                 
the meaning of point (f) of Article 2(1), excepting those provisions of this act for which EU 
law  explicitly  requires  implementing  measures  at  EU  or  national  level.  This  is  a  significant 
change of scope from the current legal text of the Aarhus Regulation, which refers to ‘acts of 
individual scope’ only.14 

IV.b.  Aligning  the  references  to  environmental  law  with  the  Convention’s 
requirements  

The proposal clarifies that the administrative act must contain provisions which may, because 
of  their  effects,  contravene  environmental  law  within  the  meaning  of  Article  2(1)(f)  of  the 
Regulation. 

The current wording of Article 2(1)(g) of the Regulation allows the review of administrative 
acts ‘under environmental law’. This means that, up until now, when assessing whether an act 
may be subject to a request for internal review, EU institutions and bodies have looked so far 
exclusively  at  whether  the  challenged  administrative  act  was  meant  to  contribute  to 
environmental  policy  objectives,  rather  than  focusing  on  whether  or  not  it  contravenes 
environmental law. 

However, it is necessary to ensure that the internal review is possible for all those acts with 
effects  on  environmental  policy  objectives.  Indeed,  it  is  as  regards  ‘environmental  matters’ 
that access to justice under Article 1 of the Convention has to be ensured,15 and it is ‘in the 
field covered by the Convention’ that the EU committed to applying the ‘relevant rules of EU 
law’ when depositing its instrument of ratification of the Convention.16 

In order to ensure effective access to justice, it is therefore necessary to adapt the definition of 
administrative  acts  to  also  include  acts  that  were  not  adopted  under  environmental  law,  but 
which contain provisions which may, because of their effects, contravene EU environmental 
law as defined in Article 2(1)(f) of the Regulation. 

This corresponds to the current status of integrating environmental considerations into other 
EU  policies,  under  Article  11  of  the  TFEU,  according  to  which  ‘environmental  protection 
requirements must be integrated into the definition and implementation of the Union's policies 
and activities, in particular with a view to promoting sustainable development.’ 

The scope of the internal review mechanism has to be made consistent with Article 9(3) of the 
Convention, which relates to those acts ‘which contravene environmental law’. Therefore, it is 
the identification of a contravention of EU environmental law that is the decisive criterion in 
defining the grounds on the basis of which the internal review can be carried out. 

As  to  the  definition  of  what  is  EU  environmental  law,  Article  2(1)(f)  of  the  existing 
Regulation  gives  environmental 
it  defines 
‘environmental  law’  to  mean  ‘[Union]  legislation  which,  irrespective  of  its  legal  basis, 
contributes to the pursuit of the objectives of [Union] policy on the environment as set out in 

law  a  broad  definition.  Accordingly, 

14 

15 

16 

Article  10  of  the  Regulation  also  allows  challenges  against  omissions.  Recital  11  clarifies  that 
‘omissions should be covered where there is an obligation to adopt an act’. 
‘In order to contribute to the protection of the right of every person of present and future generations to 
live  in  an  environment  adequate  to  his  or  her  health  and  well-being,  each  Party  shall  guarantee  the 
rights  of  access  to  information,  public  participation  in  decision-making,  and  access  to  justice  in 
environmental matters in accordance with the provisions of this Convention.’ (Emphasis added). 
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. 1–3. 

EN 

5 

  EN 

                                                 
the  Treaty:  preserving,  protecting  and  improving  the  quality  of  the  environment,  protecting 
human  health,  the  prudent  and  rational  utilisation  of  natural  resources,  and  promoting 
measures at international level to deal with regional or worldwide environmental problems’.17 

It  is  proposed  that  the  Regulation  specifically  provide  that,  when  stating  the  grounds  of  the 
request for review, the applicant should demonstrate how the administrative act contravenes 
EU environmental law. As required by case law, ‘in order to state in the manner required the 
grounds  for  conducting  the  [internal]  review,  a  party  requesting  the  internal  review  of  an 
administrative  act  under  environmental  law  is  required  to  put  forward  the  facts  or  legal 
arguments of sufficient substance to give rise to serious doubts as to the assessment made in 
that act by the EU institution or body’.18 

IV.c. Extending deadlines for the internal review procedure  

The  proposal  extends  the  deadlines  for  the  internal  review  procedure  to  allow  for  an 
appropriate quality of assessment.  In particular, it includes a two-week extension for NGOs 
and a four-week extension for EU institutions. The additional time available for NGOs should 
enable them to provide the necessary factual and legal arguments when calling into question 
administrative  acts  and  omissions  contravening  EU  environmental  law.  Extending  the  time 
available for EU institutions and bodies to provide a reply should make it possible for them to 
carry  out  more  in-depth  reviews.  The  additional  time  available  should  also  strengthen  the 
right to good administration under Article 41 of the Charter. 

V. 

Who can request an administrative review?  

The  administrative  review  under  the  Regulation  is  only  one  of  the  ways  in  which  the  EU 
fulfils the requirements of Article 9(3) of the Convention. Compliance with Article 9(3) is not 
dependent on the Regulation alone. 

Article  9(3)  of  the  Convention  can  be  implemented  either  through  administrative  review  or 
through  judicial  review  (or  both).  It  is  intended  for  the  benefit  of  ‘members  of  the  public’, 
within the meaning of Article 2(4) of the Aarhus Convention.19 This covers both individuals 
and  NGOs;  precise  entitlements  are  to  be  defined  by  (in  this  context)  EU  law,  pursuant  to 
Article 9(3) of the Convention.20 

First, although individuals cannot request an administrative review under the Regulation, they 
have the possibility to request a judicial review of acts and omissions of EU institutions and 
bodies in cases where the conditions laid down in the TFEU are met, as explained below. The 
Convention requires Parties to make available either the administrative or the judicial review, 
but not necessarily both. 

17 

18 

19 

20 

‘Combating climate change’, mentioned in of Article 191 TFEU, which sets forth the objectives of EU 
policy on the environment, should also be understood to be included in the definition. 
See  judgment  of  the  Court  of  Justice  of  12  September  2019  in  Case  C-82/17  P,  TestBioTech  v 
Commission, ECLI:EU:C:2019:719, at para 69. 
Article 2(4) defines ‘the public’ to mean ‘one or more natural or legal persons, and, in accordance with 
national legislation or practice, their associations, organizations or groups’. 
Article  9(3)  provides  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’ (emphasis added). 

EN 

6 

  EN 

                                                 
Where  national  implementing  measures  exist,  individuals  can  challenge  them  before  a 
national court and request the national court to  make a reference to the CJEU to review the 
validity of the relevant EU act under Article 267 TFEU. 

Furthermore,  under  the  fourth  paragraph  of  Article  263  TFEU,  individuals  can  bring  direct 
challenges  to  the  General  Court  for:  (i)  acts  addressed  to  them;  (ii)  acts  of  direct  and 
individual concern to them; and (iii) regulatory  acts of direct  concern to them which do not 
entail implementing measures. 

Second, the Convention itself recognises that NGOs should enjoy privileged access to justice 
as  compared  to  individuals21.  Limiting  the  use  of  the  administrative  review  mechanism  to 
NGOs  is  consistent  both  with  this  differentiation  and  with  the  need  to  provide  NGOs  with 
direct access to justice at EU level (by a challenge under the fourth paragraph of Article 263 
TFEU  against  the  reply  to  the  request  for  internal  review)  without  having  to  modify  the 
Treaties22. 

Third, many acts adopted by EU institutions and bodies are of general scope. Granting NGOs 
access to the administrative review mechanism is justified by the fact that, as recalled above23, 
NGOs  are  often  best  positioned  to  effectively  represent  public  interest  and  civil  society 
concerns in this area with professional, well-founded and substantiated argumentation. 

Fourth,  opening  up  administrative  review  to  all  individuals  would  amount  to  a  situation 
similar  to  that  described  by  the  Aarhus  Compliance  Committee  as  actio  popularis,  which  is 
not required under the Convention24. 

In  turn,  for  regulatory  acts  which  do  not  entail  implementing  measures,  subject  to  them 
fulfilling  the  conditions  of  standing  under  the  fourth  paragraph  of  Article  263  TFEU,  if  the 
Regulation  were  to  provide  standing  for  individuals,  this  could  mean  giving  individuals  the 
right  to  request  both  administrative  review  and  judicial  review  for  the  same  subject-matter. 
Once  again,  however,  this  is  not  required  by  the  Convention.  Parties  can  provide  for  either 
administrative review or judicial review. 

Fifth,  consistency  with  the  level  of  access  to  justice  provided  at  national  level  under  the 
Convention is also relevant. It would be inconsistent to create a right of review in favour of 
individuals  at  EU  level  without  having  an  equivalent  level  of  access  at  national  level  for 
similar categories of acts and omissions (such as national governmental decrees or other acts 
of general application). 

In  conclusion,  although  the  redress  mechanisms  available  to  NGOs  and  individuals  are 
different,  the  EU  system  grants  each  applicant  access  to  administrative  and/or  judicial 

21 
22 

23 

24 

See in particular Article 9(2) of the Convention. 
Under the fourth paragraph of Article 263 TFEU, NGOs have so far not been able to demonstrate direct 
concern, and therefore, have not been able to institute proceedings against an administrative act directly 
before the CJEU. Therefore, Article 10 of the Regulation provides NGOs with administrative review. In 
turn, under Article 12 of the Regulation, the NGO which made the request for internal review pursuant 
to Article 10 may subsequently institute proceedings before the CJEU. 
See Opinion of Advocate General Sharpston, delivered on 12 October 2017 in Case C‑ 664/15, Protect 
Natur, ECLI:EU:C:2017:760, para 77, quoted on page 1 of this Explanatory Memorandum. 
See findings of the Committee in case ACCC/C/2005/11 (Belgium), as cited on page 191 of the Aarhus 
Convention Implementation Guide. 

EN 

7 

  EN 

                                                 
redress.25  As  explained,  the  revision  of  the  Aarhus  Regulation  is  part  of  a  broader  effort  to 
ensure effective access to justice in environmental matters for all. 

VI. 

The  issue  of  administrative  acts  which  do  not  have  legally  binding  and  external 
effects  

The Report also analysed the issue of excluding from the scope of the internal review those 
acts  which  do  not  have  ‘legally  binding  and  external  effects’.  This  is  currently  the  case 
pursuant to the definition of administrative acts laid down in Article 2(1)(g) of the Regulation. 
This is a point also raised by the Committee in its findings.26 

Although  the  terminology  is  not  identical,  the  scope  of  this  exclusion  in  the  Regulation  is 
consistent with the scope of Article 263(1) TFEU, as interpreted by CJEU case law.27 Article 
263(1) TFEU gives the CJEU jurisdiction to review ‘the legality of legislative acts, of acts of 
the  Council,  of  the  Commission  and  of  the  European  Central  Bank,  other  than 
recommendations and opinions, and of acts of the European Parliament and of the European 
Council intended to  produce legal  effects  vis-à-vis  third parties’.  It  further provides that the 
CJEU  ‘shall  also  review  the  legality  of  acts  of  bodies,  offices  or  agencies  of  the  Union 
intended to produce legal effects vis-à-vis third parties’. 

The wording of both the current Article 2(1)(g) of the Regulation and of Article 263(1) TFEU 
shows  that  acts  that  are  not  intended  to  produce  legal  effects  fall  out  of  the  scope  of, 
respectively, the administrative review under the Regulation and the judicial review under the 
Treaties.  This  is  confirmed  by  the  fact  that  recommendations  and  opinions  (which  are  non-
binding) are excluded from the scope of Article 263(1) TFEU.28 

As regards the requirements of access to justice according to the Aarhus Convention, it should 
be  recalled  that  only  acts  that  are  intended  to  produce  legal  effects  are  capable  of 
‘contravening’ environmental law, as indicated in Article 9(3) of the Convention. Clearly, acts 
that  do  not  produce  legal  effects  cannot  then  be  considered  as  contravening  environmental 
law, within the meaning of Article 9(3) of the Aarhus Convention. 

Based on the foregoing, and as the ACCC in its findings took into account the internal review 
mechanism  provided  for  in  the  Aarhus  Regulation  only  as  a  way  to  ‘compensate’  the 
requirements applicable to access to justice under Article 263 TFEU,29 it is not appropriate to 
allow administrative review of acts that are not intended to produce legal effects. 

At the same time, case law confirms that the name or form of the measure is irrelevant. What 
is crucial is its effects, content and scope.30 Measures with binding legal effects despite their 

25 
26 
27 
28 
29 
30 

See Report, section 4.2. 
See Findings, Part II, quoted above, para. 102 and following. 
Case C-583/11 P, ECLI:EU:C:2013:625, para 56. 
See SWD (2019) 378 final, pages 23-24. 
ACCC findings in case ACCC/2008/32, part II, quoted, at para. 122. 
In  case  22/70  Commission  v  Council  [1971]  ECR  263,  ECLI:EU:C:1971:32,  the  Court  held  that  an 
action for annulment must be available in the case of all measures adopted by the institutions, whatever 
their  nature  or  form,  which  may  have 
legal  effects  (para  42).  See  also  case  C-57/95. 
ECLI:EU:C:1997:164. 

EN 

8 

  EN 

                                                 
label  and  which  may  affect  the  applicant's  interests,  changing  his  legal  position,  may  be 
contested.31 

• 

B. Consistency with existing policy provisions in the policy area 

The proposal is consistent with and complementary to existing provisions in the area of access 
to justice. These include, in particular:  

– 

– 

– 

– 

– 

Article 6(2) of the Access to Environmental Information Directive32; 
Article 13 of the Environmental Liability Directive33; 
Article 25 of the Industrial Emissions Directive34; 
Article 11 of the Environmental Impact Assessment Directive35; and  
Article 23 of the Seveso III Directive36 2012/18/EU37. 

These cover decisions, acts and omissions concerning requests for environmental information, 
those  subject  to  the  public  participation  provisions  of  the  EIA  Directive,  industrial  permits 
and those concerning environmental liability. 

• 

C. Consistency with other Union policies 

The  proposal  contributes  to  strengthening  the  rule  of  law,  in  accordance  with  the  current 
Commission  priorities  on the European  Green Deal  and on protecting our European way of 
life.38 In particular, it contributes to the effectiveness of the EU system of administrative and 
judicial  review  and,  as  a  result,  strengthens  the  application  of  Articles  41  and  47  of  the 
Charter. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

A. Legal basis 

The  legal  basis  for  action  in  this  area  is  Article  192(1)  TFEU.  This  is  consistent  with  the 
original legal basis of the Regulation the proposal aims to amend (Article 175(1) of the Treaty 

31 

32 

33 

34 

35 

36 

37 

38 

See the judgment in Case C-325/91 France v Commission [1993] ECR I-3283; Joined Cases 1/57 and 
14/57  Usines  à  tubes  de  la  Sarre  v  High  Authority  [1957]  ECR  105;  Joined  Cases  316/82  and  40/83 
Kohler v Court of Auditors [1984] ECR 641. 
Directive  2003/4/EC  of  the  European  Parliament  and  of  the  Council  of  28  January  2003  on  public 
access to environmental information and repealing Council Directive 90/313/EEC, OJ L 41, 14.2.2003, 
p. 26–32. 
Directive  2004/35/CE  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  on 
environmental  liability  with  regard  to  the  prevention  and  remedying  of  environmental  damage,  OJ  L 
143, 30.4.2004, p. 56–75. 
Directive  2010/75/EU  of  the  European  Parliament  and  of  the  Council  of  24  November  2010  on 
industrial emissions (integrated pollution prevention and control), OJ L 334, 17.12.2010, p. 17–119. 
Directive  2011/92/EU  of  the  European  Parliament  and  of  the  Council  of  13  December  2011  on  the 
assessment of the effects of certain public and private projects on the environment, OJ L 26, 28.1.2012, 
p. 1–21. 
Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of 
major-accident hazards involving dangerous substances, amending and subsequently repealing Council 
Directive 96/82/EC, OJ L 197, 24.7.2012, p. 1–37. 
See  also  recital  27  of  the  National  Emissions  Ceiling  Directive,  (EU)  2016/2284,  which  makes  a 
specific reference to the case-law of the CJEU on access to justice, under para 28 of Commission Notice 
on access to justice in environmental matters, C/2017/2616 OJ C 275, 18.8.2017, p. 1–39. 
Commission  political  guidelines,  https://ec.europa.eu/commission/sites/beta-political/files/political-
guidelines-next-commission_en.pdf  

EN 

9 

  EN 

                                                 
establishing  the  European  Community),  now  Article  192(1)  TFEU.39  The  proposal  aims  to 
improve the protection of the environment, by improving the administrative review procedure 
available to NGOs as regards administrative acts and omissions of EU institutions and bodies 
where those contravene environmental law. 

• 

B. Subsidiarity (for non-exclusive competence)  

The EU has shared competence with its Member States to regulate on environmental issues. 
This  means  that  it  can  only  legislate  as  far  as  the  Treaties  allow,  and  must  respect  the 
principles of necessity, subsidiarity and proportionality. 

Action at EU level is necessary here because the EU is a Party to the Convention and must 
comply with the obligations under the Convention which is binding on the EU in accordance 
with Article 216 TFEU. The initiative concerns the application of the Convention's provisions 
on  the  administrative  or  judicial  review  of  certain  categories  of  EU  acts.  Therefore,  the 
objectives can only be achieved at EU level and the initiative's EU added value is confirmed. 

At  the  same  time,  it  is  appropriate  to  exclude  from  the  scope  of  the  proposed  amendment 
those  provisions  of  administrative  acts  for  which  EU  law  explicitly  requires  implementing 
measures at national level. 

This  is  because  these  measures  will  be  directly  challengeable  before  national  courts. 
According  to  Article  267  TFEU,  Member  States'  national  courts  are  part  and  parcel  of  the 
system of preliminary references on validity and interpretation as ordinary courts of EU law.40 

• 

C. Proportionality 

The  proposal  does  not  go  beyond  what  is  necessary  to  achieve  compliance  with  the 
Convention's provisions. The policy choices made confirm the proportionality assessment. In 
particular, the proposal: 

 

 

 

 

39 

40 

Broadens the scope of the internal review mechanism to also include non-legislative 
acts of general scope; however, it excludes those provisions of these acts for which 
EU law explicitly requires implementing measures at EU or national level;  

Specifies  that  only  non-legislative  acts  and  omissions  that  may,  because  of  their 
effects,  contravene  environmental  law  are  covered.  This  wording  matches  the 
wording and policy objectives of the Convention, and thereby ensures legal certainty 
and compliance with the Convention;  

Does  not  aim  to  include  acts  not  having  legally  binding  and  external  effects, 
consistently  with  the  nature  of  the  EU  system  of  judicial  review,  reflected,  in 
particular, in Article 263(1) TFEU;  

Brings added value by providing NGOs, as representatives of civil society and public 
interest, additional opportunities to seek review of administrative acts that contravene 
environmental law. For the reasons explained above, however, it does not extend the 
rights granted under the proposed amendment to individuals.  

It is notable that Article 192(1) is not mentioned under Article 106a(1) of the Euratom Treaty, which 
concerns the application of certain provisions of the TEU and the TFEU. See also Judgment of the 
General Court (First Chamber) of 27 February 2018 in cases T-307/16 - CEE ECLI:EU:T:2018:97, para 
49. 
Opinion 1/09 of the Court (Full Court) of 8 March 2011, pursuant to Article 218(11) TFEU, Creation of 
a unified patent litigation system, ECLI:EU:C:2011:123, para 80. 

EN 

10 

  EN 

                                                 
The proposal is based on the findings of the Report and the accompanying study. The policy 
choice was confirmed by a detailed analysis that found that there are no viable options apart 
from the proposed measures. 

• 

D. Choice of the instrument 

The legal  instrument  chosen is  a Regulation,  as  was the legal  instrument that it proposes to 
amend. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

A. Ex-post evaluations/fitness checks of existing legislation 

The  proposal  is  based  on  evidence  gathered  in  the  Report;  further  evidence  and  analysis  is 
available  in  the  published  study.  The  documents  provided  a  comprehensive  ex-post 
assessment of the Regulation's provisions on access to justice in environmental matters at the 
EU level. 

• 

B. Stakeholder consultations 

In line with the Better Regulation Guidelines, a 12-week public consultation was launched on 
20 December 2018 to support the study on EU implementation of the Convention in the area 
of  access  to  justice  in  environmental  matters.  It  remained  open  until  14  March  2019.  The 
consultation  featured  an  online  questionnaire  in  all  EU  languages  disseminated  via  the  EU 
Survey tool. 

The public consultation followed up on the initial roadmap on the topic of EU implementation 
of  the  Convention  in  the  area  of  access  to  justice  in  environmental  matters,  which  was 
published  for  feedback  between  8  May  2018  and  5  June  2018;  the  results  are  available 
online41.  The  process  was  complemented  by  other  targeted  consultations  involving 
stakeholders  from  a  broad  range  of  interest  groups,  including  businesses,  NGOs,  academia, 
Member States, national judiciaries and EU institutions. 

The public consultation42 received 175 replies; the highest percentage came from individuals 
(30%).  It  also  elicited  contributions  from  environmental  organisations,  including  NGOs 
(19.4%)  and  public  authorities  (18.9%).  Businesses  and  business  associations  accounted  for 
17% of total replies received. 

Responses  submitted  by  environmental  organisations,  including  NGOs  and  individuals 
showed a dissatisfaction with existing means of redress against EU acts and called for action. 
On  the  other  hand,  responses  submitted  by  businesses,  business  associations  and  public 
authorities  showed  mainly  a  positive  perception  of  the  current  situation.  The  consultation 
results confirmed the priorities identified by the Commission on issues that raised concerns as 
regards  the  Regulation.  In  particular,  the  issues  that  were  accorded  the  highest  degree  of 
importance by respondents were the fact that the act or omission to be challenged must be of 
individual  scope  and  that  the  Regulation  limits  challenges  to  acts  or  omissions  under 
environmental law. Most businesses and business associations  considered  the importance of 

41 

42 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1743-EU-implementation-of-
the-Aarhus-Convention-in-the-area-of-access-to-justice-in-environmental-matters. 
Results available online at https://ec.europa.eu/environment/aarhus/consultations.htm. 

EN 

11 

  EN 

                                                 
these  and  other  issues  low.  In  contrast,  environmental  organisations  and  NGOs  gave  these 
issues a high degree of importance overall.43 

In addition,  the contractor who carried out  the study organised two stakeholder focus group 
meetings on 22 January 2019, with the participation of industry representatives and NGOs.44 
The results of these meetings confirmed the findings of the public consultation. 

The  Commission  also  held  a  number  of  meetings  with  Member  State  experts,45  to  inform 
them of progress on the study and to exchange views. These meetings confirmed that certain 
Member States have issues concerning the right to challenge national implementing measures. 

Furthermore,  the  Commission  convened  several  meetings  with  other  stakeholders  at  which 
they presented progress on the study and exchanged views: 

 

 

two  stakeholder  meetings  under  the  Environmental  Compliance  and  Governance 
Forum  with  NGOs,  industry  and  Member  States  (30  November  2018  and  29  May 
2019); 

an ad hoc meeting between the Commission and national judges concerning Article 
267  TFEU  in  relation  to  access  to  justice  in  environmental  matters  (29  January 
2019). 

Finally, a roadmap outlining the legislative initiative was published on 6 March 2020 and was 
open for feedback until 3 April46. This elicited a total of 175 replies, approximately two thirds 
from  individuals  and  one  third  from  organisations,  including  business  and  environmental 
associations. The analysis of the replies confirmed that most concerns had already been raised 
during prior stakeholder consultations. As such, they had already been assessed in detail in the 
study and the Report, and were taken into account in the proposal. 

Most individuals raised concerns as regards access to justice at national level. These concerns 
will be addressed by the actions outlined in the Communication accompanying the proposal. 
Some people also asked for the possibility to introduce complaints and petitions directly to the 
EU institutions; such mechanisms are already available.47 

Several  business  associations  also  contributed.  As  before,  they  expressed  concerns  about 
possible additional burden and economic consequences. Based on the extensive assessment of 
the  available  evidence  base,  it  was  concluded  that  the  legislative  changes  proposed  and  the 
actions  under  the  Communication  adopted  would  not  result  in  significant  additional 
administrative burden or legal uncertainty, and would provide a balanced approach. 

Environmental NGOs also reiterated a number of important issues. These were not new and 
were all carefully assessed. However, one merit particular attention.  

It  was  raised  that  the  proposal  should  also  include  EU  acts  entailing  national  implementing 
measures. In this regard, and for the reasons explained in section IVa.3, reliance on national 

43 
44 
45 

46 

47 

Further details of the results of the open public consultation can be found in the study. 
Minutes available under Annex 6 of the study. 
Three meetings with the Commission’s Expert Group on Aarhus implementation (15 October 2018, 11 
March 2019 and 12 April 2019). 
Available  online  at:  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12165-
Access-to-Justice-in-Environmental-matters 
See  in  particular  the  role  of  the  Committee  on  Petitions  of  the  European  Parliament,  the  European 
Ombudsman and the complaint-handling mechanism of the European Commission. 

EN 

12 

  EN 

                                                 
courts is justified: NGOs must indeed have workable possibilities at national level to contest 
national implementing measures and the Commission, as guardian of the Treaties, will work 
together with Member States to help ensure compliance on the ground. In turn, national courts 
must make it possible for NGOs to access the CJEU through the preliminary ruling procedure 
under Article 267 TFEU. 

Based on the results of the public consultation, including feedback on the roadmap, and the 
extensive analysis carried out by the Commission in the Report based on the accompanying 
study, and taking into account the concerns expressed by the Committee48, it was considered 
that there are no other viable options than to remedy the two main identified issues with the 
Regulation  by  way  of  a  legislative  proposal  (see  more  details  in  the  section  on  impact 
assessment). 

The  consultation  activities  covered  all  relevant  issues  so  no  further  public  consultation  was 
necessary on the details of the proposal. 

• 

C. Collection and use of expertise 

The Commission Report on the EU's implementation of the Convention in the area of access 
to  justice  in  environmental  matters  and  the  underlying  study  supported  by  the  extensive 
consultation process are the main sources of expertise and serve as the evidence-base for the 
proposal. 

• 

D. Impact assessment 

The  comprehensive  study  and  the  Commission  Report  analysing  the  functioning  of  the 
provisions  on  access  to  justice  in  environmental  matters  at  the  EU  level  provide  a  strong 
factual evidence-base for the present initiative. 

In  accordance  with  Tool  #9  of  the  Better  Regulation  toolbox  on  ‘When  is  an  impact 
assessment  necessary?’,  an  impact  assessment  was  deemed  unnecessary,  for  the  following 
reasons: 

 

 

 

48 

49 

The study examined all options to remedy the shortcomings identified following an 
assessment of the Committee’s findings in case ACCC/C/2008/3249, measured their 
impact  and  made  clear  that  the  only  option  that  can  effectively  address  the 
shortcomings  identified  in  the  study  is  the  amendment  of  the  Regulation,  i.e. 
legislative action. No action or only non-legislative action are clearly insufficient. It 
is  also  clear  there  is  no  real  alternative  to  amending  the  Regulation  and  no  further 
realistic choice over the policy content of the initiative.  

The study did not find any appreciable social impact (see in particular Chapter 5 on 
assessment of impacts and options) on employment, working conditions and income 
distribution, social protection and inclusion.  

There are also no significant economic impacts expected as a result of the legislative 
initiative, apart from an increase in administrative burden on the EU institutions and 
the CJEU due to expected additional case-load. 

See  draft  findings  of  the  Aarhus  Convention  Compliance  Committee  in  case  ACCC/C/2008/32  at 
https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html;  further  details  in 
section I of the Explanatory Memorandum. 
See https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html 

EN 

13 

  EN 

                                                 
• 

E. Regulatory fitness and simplification 

A  number  of  references  and  terms  in  the  Regulation  pre-date  the  Lisbon  Treaty  and  the 
current  proposal  only  includes  some  partial  updates.  The  Regulation  therefore  requires  a 
codification. However, considering the political priority of enabling a swift amendment of the 
Regulation in light of the EU’s international commitments, the Commission intends to come 
forward  with  a  proposal  for  codification  once  the  current  proposal  has  been  adopted,  in 
conformity with paragraph 46 of the Interinstitutional agreement on better law-making.50 

• 

F. Fundamental rights 

The Report and the study addressed the fundamental rights aspects of the proposed legislative 
measures. It was found that these measures would contribute to improving the effectiveness of 
the EU system of administrative and judicial review, and as a result, would strengthen the rule 
of law and application of Articles 41 and 47 of the Charter (see for example Section 3.4.2 of 
the study). 

In particular, Article 41, the right to good administration, will be strengthened. As a result of a 
broader  and  more  precise  definition  of  the  scope  of  challengeable  administrative  acts  and 
grounds for review, qualified NGOs will have more legal certainty and a more effective way 
to  ask  for  a  review  of  administrative  acts  where  these  contravene  environmental  law. 
Furthermore,  extending the time available  for the public administration to  consider requests 
and provide a reply is expected to result in more in-depth analysis and assessment. Hence, the 
additional  time  available  will  strengthen  the  requirements  of  good  administration  under 
Article 41 of the Charter. 

The  Regulation  will  be  amended  only  in  terms  of  the  conditions  for  administrative  review. 
However,  NGOs  may  seek  a  judicial  review  of  any  reply  provided  by  the  EU  institution  or 
body  before  the  CJEU.  Therefore,  the  amendment  will  also  have  an  indirect  effect  on  the 
possibilities  for  judicial  review,  and  will  strengthen  the  application  of  Article  47  of  the 
Charter. 

4. 

BUDGETARY IMPLICATIONS 

The Report and the accompanying study carefully assessed the impact of the different options 
on  internal  resources  for  EU  institutions,  in  particular,  for  the  Commission  and  the  CJEU. 
They concluded that such impact will be limited if the options introduced by the proposal are 
followed. The extent of the impact on resources is explained by several factors: 

– 

– 

50 

The proposed amendments will modify the existing system of administrative review 
and  not  create  a  new  system.  The  existing  system  already  involves  a  certain 
deployment of resources; this may need to be adjusted in order to adapt to the new 
situation. 

The main proposed amendment will expand the types of acts that can be reviewed to 
also  make  it  possible  for  acts  of  general  scope  to  be  challenged.  As  it  stands,  the 
Commission  can  be  asked  –  and,  in  part  because  of  insufficient  clarity  as  regards 
admissibility criteria, is in fact often asked – to review acts outside the current scope 
of the Regulation. Resources are needed to address such requests and services may 
review  the  merits  of  decisions,  regardless  of  admissibility.  It  is  expected  that 

Interinstitutional agreement between the European Parliament, the Council of the European Union and 
the European Commission on better law-making, OJ L 123, 12.5.2016, p. 1–14. 

EN 

14 

  EN 

                                                 
– 

– 

– 

although  expanding  the  admissibility  conditions  could  create  an  increase  in  the 
current  workload,  this  may  be  partly  compensated  by  clearer  admissibility  criteria, 
which simplify the assessment of admissibility. 

The  proposed  amendments  will  not  increase  the  number  of  potential  applicants  for 
review. As at present, only eligible NGOs will be able to submit requests for internal 
review.  The  Commission  proposal  does  not  envision  a  change  in  the  qualification 
criteria  for  NGOs  nor  to  grant  standing  for  individuals.  Therefore,  broadening  the 
range  of  administrative  acts  will  not  necessarily  be  followed  by  a  commensurate 
increase  in  the  number  of  requests.  Rather,  it  may  improve  NGOs'  ability  to  better 
prioritise the cases in which to submit requests, because the admission criteria will be 
more  clearly  defined  and  there  will  be  more  time  available  to  prepare  well-
substantiated requests. 

The proposal extends the time frames for handling requests for review. This will give 
services more time to process requests. 

Finally, although it is essential that no decisions made by EU institutions and bodies 
are  exempt  from  the  checks  and  balances  provided  in  the  EU legal  order,  case  law 
shows  that  the  CJEU  allows  EU  institutions  and  bodies  a  considerable  margin  of 
discretion with regard to the decision they take during an internal review.51 

Further  guidance on the  internal  review procedure under the Regulation  will be provided to 
case handlers and NGOs. The Commission’s internal working arrangements will also need to 
be  reviewed  in  light  of  the  new  requirements  resulting  from  the  proposed  amendments,  to 
minimise  the  negative  effects  of  the  extra  workload  that  will  highly  likely  flow  from  the 
changes. It will be necessary to further improve the effectiveness and efficiency of the internal 
review procedures, for example, by:  

– 

– 

reviewing whether some procedural adjustments could apply for certain categories of 
cases, based on criteria such as the number of similar cases, novelty, complexity and 
impact; and 

making available collaborative IT workspaces, templates, frequently asked questions 
and other forms of guidance, mentoring case handlers, including sharing best practice 
examples to further facilitate and standardise case handling and output.  

Despite  these  initiatives,  there  will  be  an  extra  administrative  burden  on  the  Commission, 
including  some  of  its  agencies,  but  it  could,  to  a  certain  extent,  be  mitigated,  subject  to 
respecting the above considerations. However, it is also clear that the future impacts are also a 
function of the actual number of cases and their distribution between policy areas. While at 
present it is not possible to quantify these, it is necessary to observe if there is a significant 
overall increase in the workload and how it impacts specific policy areas. It will therefore be 
necessary  to  continuously  monitor  the  developments  in  the  workload  and  its  distribution  to 
allow action to be taken if required. 

51 

See  judgment  of  the  General  Court  of  15  December  2016  in  Case  T-177/13.  ECLI:EU:T:2016:736, 
paras 52-55 (as upheld by judgment of the Court of Justice of 12 September 2019 in Case C-82/17 P, 
TestBioTech v Commission, ECLI:EU:C:2019:719). 

EN 

15 

  EN 

                                                 
5. 

• 

OTHER ELEMENTS 

Implementation  plans  and  monitoring,  evaluation  and  reporting 

A. 
arrangements 

The accompanying Communication outlines further actions to facilitate implementation of the 
Convention in the area of access to justice in environmental matters at national level. Further 
guidance on the internal review procedure under the Regulation will also be provided both for 
the public and for the EU institutions and bodies, to help them adapt to the new requirements. 

• 

B. Explanatory documents (for directives) 

Not applicable. 

• 

C. Detailed explanation of the specific provisions of the proposal 

Article 1(1) 

Article  1(1)  amends  the  definition  of  administrative  acts  under  Article  2(1)(g)  of  the 
Regulation. 

Broadening the review to include acts of general scope 

The  amendment  broadens  the  definition  of  ‘administrative  act’  to  ensure  that  any  non-
legislative  act  adopted  by  an  EU  institution  or  body,  having  legally  binding  and  external 
effects and that may, because of its effects, contravene environmental law within the meaning 
of Article 2(1)(f), may now be subject to internal review. Should however be excluded those 
provisions  for  which  EU  law  explicitly  requires  implementing  measures  at  EU  or  national 
level.  Accordingly,  under  the  new  definition,  a  measure  can  be  the  subject  of  an  internal 
review whether or not it has an individual or general scope. Until now, only acts of individual 
scope were included in the definition. 

Acts entailing implementing measures 

The extension of the definition aims to cover those non-legislative measures that correspond 
to  ‘regulatory  acts’  under  the  fourth  paragraph  of  Article  263  TFEU.  In  doing  so,  the 
amendment uses the elements of established case law52 on the notion of ‘regulatory act’ under 
Article 263 TFEU. 

Under  the  fourth  paragraph  of  Article  263  TFEU,  those  directly  concerned  may  obtain  a 
judicial  review  from  the  CJEU  of  regulatory  acts  that  have  been  adopted  by  the  EU 
institutions and bodies and do not entail implementing measures. CJEU case law has clarified 
that, for the purposes of the fourth paragraph of Article 263 TFEU, it does not matter if the 
implementing  measure  is  to  be  taken  at  EU  or  at  national  level.53  The  Court  has  also 
confirmed  that,  for  the  purposes  of  this  new  possibility  introduced  by  the  Lisbon  Treaty, 
regulatory acts encompass all acts of general application other than legislative acts.54 

Accordingly, under the Proposal, those provisions of an administrative act for which EU law 
explicitly  requires  implementing  measures  at  national  level  would  not  be  subject  to 

52 

53 
54 

See  judgment  in  Joined  Cases  C-622/16P  to  C-624/16P,  Montessori,  ECLI:EU:C:2018:873,  paras  28 
and 29. 
Judgment in Case C-456/13 P,T & L Sugars et Sidul Açúcares v Commission, EU:C:2015:284, para 30. 
Judgment in Joined Cases C-622/16P to C-624/16P, Montessori, ECLI:EU:C:2018:873. 

EN 

16 

  EN 

                                                 
administrative  review.  As  regards  these  provisions,  it  is  possible  to  seek  remedy  before  the 
national jurisdiction, with further access to the CJEU under Article 267 TFEU. 

To  ensure  consistency  with  the  fourth  paragraph  of  Article  263  TFEU,  the  review  of  those 
provisions  of  an  administrative  act  for  which  EU  law  explicitly  requires  implementing 
measures  at  EU  level  may  be  sought  when  the  review  of  the  Union-level  implementing 
measure is requested. 

In  order  to  ensure  legal  certainty,  the  new  definition  clearly  specifies  that  only  those 
provisions of the act  for which EU law explicitly  requires implementing measures at  EU or 
national  level  are  excluded  from  the  scope  of  internal  review.  Ascertaining  whether  this 
requirement exists, one must not look at the administrative act as a whole, but rather whether 
the  contested  provisions  of  the  administrative  act  entail  implementing  measures.  It  is  not 
relevant  whether  or  not  other,  unrelated  provisions  of  the  administrative  act  entail 
implementing measures. There may be situations where some provisions of the administrative 
act subject to administrative review require implementing measures, whereas other provisions 
are  directly  applicable.  For  example,  some  provisions  of  a  Commission  regulation  may  be 
directly  applicable,  while  others  may  require  implementing  measures  at  EU  or  national 
level55. 

In  such  situations,  where  the  national  implementing  measure  concerns  the  contested 
provisions  of  the  administrative  act,  NGOs  may  only  request  review  of  the  implementing 
measure  before  the  national  jurisdictions.  Similarly,  where  the  EU-level  implementing 
measure concerns the contested provisions of the administrative act, NGOs must wait until the 
implementing act  is  adopted, or, in  case of omissions, until  it should  have been  adopted.  In 
contrast,  if  the  implementing  measures  concern  only  unrelated  provisions  of  the  act,  the 
directly applicable provisions of the administrative act can be challenged in the administrative 
review under the Regulation. 

As  a  result,  an  NGO  would  have  different  possibilities  for  implementing  acts  that  entail 
implementing measures at EU level, depending on which provisions they wish to challenge. 

NGOs  would  be  entitled  to  request  an  internal  review  of  those  provisions  of  the  regulatory 
act, which do not entail EU-level implementing measures. 

However, as internal review is provided in order to improve access to justice in environmental 
matters,  whose  system  of  remedies  is  laid  down  in  the  TFEU,  and  in  keeping  with  the 
possibilities  available  under  Article  263  of  the  TFEU,  NGOs  would  not  be  able  to  make  a 
request for internal review directly against the provisions of the regulatory acts entailing EU-
level implementing measures. 

Rather,  much  like  any  other  individual  or  organisation  accessing  justice  under  Article  263 
TFEU, NGOs can only submit a request at a later stage, when the EU-level implementing act 
in question is adopted.56 A request to review those provisions of the non-legislative act which 
entail the implementing measure can also only be made at this time. 

55 

56 

Judgment  of  the  Court  (Grand  Chamber)  of  19  December  2013  in  Case  Telefónica  v  Commission, 
C-274/12 P, EU:C:2013:852. 
This  is  because  those  provisions  of  the  regulatory  acts  that  entail  EU-  level  implementing  measures 
would  not  be  directly  challengeable  before  the  CJEU.  Consequently,  the  NGOs  (much  like  any  other 
individual or organisation) would need to wait for the adoption of the EU-level implementing measure 

EN 

17 

  EN 

                                                 
References to environmental law 

The  amendment  removes  the  phrase  ‘under  environmental  law’  from  the  definition  of 
administrative  act.  Instead,  it  requires  that  the  administrative  act  must  contain  ‘provisions 
which  may,  because  of  their  effects,  contravene  environmental  law  within  the  meaning  of 
Article  2(1)(f)’.  This  amendment  should  be  read  jointly  with  Article  1(2)  below,  which 
specifies  that  only  those  acts  or  omissions  which  contravene  EU  environmental  law  can  be 
subject to review. 

The amendment builds on applicable case law, which has interpreted the current wording of 
the Regulation in light of the Convention's objectives.57 It provides clarity and legal certainty 
on  the  fact  that  any  administrative  act  that  contains  provisions  which  may  contravene  EU 
environmental law may be challenged, irrespective of the act's legal basis or policy objective, 
as it is required under Article 9(3) of the Convention. 

At  the  same  time,  the  definition  preserves  the  link  between  the  administrative  act  whose 
review is  requested and environmental policy objectives. It does so by allowing the internal 
review  of  only  those  acts  which  contain  provisions  which  may,  because  of  their  effects, 
contravene EU environmental law within the meaning of Article 2(1)(f) of the Regulation. 

Article 1(2) 

References to environmental law 

Similarly to Article 1(1), which amends the definition of ‘administrative act’, this amendment 
removes the ‘under  environmental law’  requirement  also  from  the first  paragraph of Article 
10(1) of the Regulation. The new provision also clarifies that only those acts and omissions 
that contravene EU environmental law may be subject to a request for review. Therefore, the 
amendment  ensures  that  the  wording  of  the  Regulation  reflects  the  requirements  of  Article 
9(3) of the Convention. 

Extension of time limits 

Article  1(2)  also  amends  the  second  paragraph  of  Article  10(1)  to  extend  the  time  limit 
available for NGOs to introduce an internal review from the current six to a proposed eight 
weeks. It also amends Article 10(2) to extend the time available to EU institutions and bodies 
to reply to the request for internal review from the current 12 to a proposed 16 weeks. 

As a logical consequence of the above, for cases where an EU institution or body is unable to 
reply within 16 weeks despite exercising due diligence, Article 1(2) also amends the second 
paragraph of Article 10(3) to extend the overall time available to EU institutions and bodies to 
reply to a request for internal review from the current 18 to a proposed 22 weeks. 

The amendments would provide a two-week extension for NGOs and four-week extension for 
EU  institutions  and  bodies.  The  extension  for  NGOs  aims  to  improve  the  quality  of 
submissions, whereas the extension for EU institutions and bodies aims to improve the quality 
and depth of the review. The additional time will allow more in-depth analysis, which should 
result  in  a  more  solid  evidence-base  and  clearer  justifications  provided  in  the  final  internal 

57 

and  challenge  the  implementing  measure  before  the  General  Court,  if  they  succeed  in  demonstrating 
that they have standing. 
Judgment  of  the  General  Court  of  14  March  2018  in  Case  T-33/16,  TestBioTech  v  Commission, 
ECLI:EU:T:2018:135, paras 44 to 46. 

EN 

18 

  EN 

                                                                                                                                                         
review  decision.  Thus,  the  extension  will  also  have  an  impact  on  the  principle  of  good 
administration and will improve public confidence in EU decision-making processes. 

EN 

19 

  EN 

2020/0289 (COD) 

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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1, 
Having regard to the opinion of the Committee of the Regions2, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

1 
2 
3 

4 

The  Union  and  its  Member  States  are  Parties  to  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 (‘the 
Aarhus  Convention’)3,  each  with  its  own  as  well  as  shared  responsibilities  and 
obligations under that Convention. 
Regulation  (EC) No 1367/2006  of the  European  Parliament  and of the Council4 was 
adopted in  order to  contribute to  the implementation  of the obligations  arising under 
the  Aarhus  Convention  by  laying  down  rules  on  its  application  to  Union  institutions 
and bodies. 

In its Communication to the European Parliament, the European Council, the Council, 
the European Economic and Social Committee and the Committee of the Regions of 
11  December  2019,  entitled  ‘The  European  Green  Deal’  the  Commission  committed 
itself  to  consider  revising  Regulation  (EC)  No  1367/2006  to  improve  access  to 
administrative and judicial review at Union level for citizens and environmental non-
governmental  organisations  who  have  concerns  about  the  compatibility  with 
environmental law of decisions with effects on the environment. The Commission also 

OJ C , , p. . 
OJ C , , p. . 
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). 
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). 

EN 

20 

  EN 

                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

committed to take action to improve their access to justice before national courts in all 
Member States; to this end, it issued a Communication on ‘Improving access to justice 
in environmental matters in the EU and its Member States’. 

Taking into account the provisions of Article 9(3) of the Aarhus Convention, as well 
as concerns expressed by the Aarhus Convention Compliance Committee5, Union law 
should be brought  into compliance with  the provisions of the Aarhus Convention on 
access  to  justice  in  environmental  matters  in  a  way  that  is  compatible  with  the 
fundamental principles of Union law and with its system of judicial review. 

The limitation of the internal review provided for in Regulation (EC) No 1367/2006 to 
administrative  acts  of  individual  scope  is  the  main  obstacle  for  environmental  non-
governmental organisations seeking to have recourse to internal review under Article 
10 of that Regulation also as regards administrative acts that have a wider scope. It is 
therefore necessary to broaden the scope of the internal review procedure laid down in 
that Regulation to include non-legislative acts of a general scope. 

The  definition  of  an  administrative  act  for  the  purposes  of  Regulation  (EC)  No 
1367/2006  should  include  non-legislative  acts.  However,  a  non  legislative  act  might 
entail  implementing  measures  at  national  level  against  which  environmental  non-
governmental organisations can obtain judicial protection, including before the Court 
of Justice of the European Union (CJEU) through a procedure for preliminary ruling 
under Article 267 TFEU. Therefore, it is appropriate to exclude from the scope of the 
internal  review  those  provisions  of  such  non-legislative  acts  for  which  Union  law 
requires implementing measures at national level. 

In the interest of legal certainty, in order for any provisions to be excluded from the 
notion  of  administrative  act,  Union  law  must  explicitly  require  the  adoption  of 
implementing acts for those provisions. 

In order to ensure effectiveness, the review of those provisions of an administrative act 
for  which  Union  law  explicitly  requires  implementing  measures  at  Union  level  may 
also be sought when the review of the Union-level implementing measure is requested. 

The scope of Regulation (EC) No 1367/2006 covers acts adopted under environmental 
law. By contrast, Article 9(3) of the Aarhus Convention covers challenges to acts that 
‘contravene’  law  relating  to  the  environment.  Thus,  it  is  necessary  to  clarify  that 
internal review should be carried out in order to verify whether an administrative act 
contravenes environmental law. 

(10)  When assessing whether an administrative act contains provisions which may, because 
of their effects, contravene environmental law, it is necessary to consider whether such 
provisions  may  have  an  adverse  effect  on  the  attainment  of  the  objectives  of  Union 
policy on the environment set out in Article 191 TFEU. As a result, the internal review 
mechanism  should  also  cover  acts  that  have  been  adopted  in  the  implementation  of 
policies other than Union policy on the environment. 

(11) 

In order to allow enough time to carry out a proper review process, it is appropriate to 
extend  time  limits  laid  down  in  Regulation  (EC)  No  1367/2006  for  requesting  an 
administrative  review  and  those  applicable  to  the  Union  institutions  and  bodies  to 
respond to such a request. 

5 

See  findings  of  the  Aarhus  Convention  Compliance  Committee  in  case  ACCC/C/2008/32  at 
https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html. 

EN 

21 

  EN 

                                                 
(12)  According 

to 

the  case 

the  CJEU6,  environmental  non-governmental 
organisations requesting an internal review of an administrative act are required to put 
forward facts or legal arguments of sufficient substance to give rise to serious doubts 
when stating the grounds for their request of review. 

law  of 

(13)  Since the objectives of this Regulation, namely to lay down detailed rules to apply the 
provisions  of  the  Aarhus  Convention  to  Union  institutions  and  bodies,  cannot  be 
achieved  by  the  Member  States,  but  can  only  be  achieved  at  Union  level,  the  Union 
may  adopt  measures,  in  accordance  with  the  principle  of  subsidiarity  as  set  out  in 
Article  5  of  the  Treaty  on  European  Union.  In  accordance  with  the  principle  of 
proportionality as set out in that Article, this Regulation does not  go beyond what is 
necessary in order to achieve those objectives. 

(14)  This Regulation respects the fundamental rights and observes the principles recognised 
by  the  Charter  of  Fundamental  Rights  of  the  European  Union  (the  Charter),  in 
particular  the  right  to  good  administration  (Article  41)  and  the  right  to  an  effective 
remedy and to a fair trial (Article 47). This Regulation contributes to the effectiveness 
of the Union system of administrative and judicial review, and as a result, strengthens 
the application of Articles 41 and 47 of the Charter and thereby contributes to the rule 
of law, enshrined in Article 2 of the Treaty on European Union (TEU). 

(15)  Regulation (EC) No 1367/2006 should therefore be amended accordingly. 

HAVE ADOPTED THIS REGULATION: 

Regulation (EC) No 1367/2006 is amended as follows: 

1. 

Article 2(1)(g) is replaced by the following: 

Article 1 

‘(g) ‘administrative act’ means any non-legislative act adopted by a Union institution 
or body, which has legally binding and external effects and contains provisions 
that  may,  because  of  their  effects,  contravene  environmental  law  within  the 
meaning of point (f) of Article 2(1), excepting those provisions of this act for 
which  Union  law  explicitly  requires  implementing  measures  at  Union  or 
national level;’ 

2. 

(a) 

Article 10 is amended as follows: 

paragraphs 1 and 2 are replaced by the following: 

‘1.  Any non-governmental organisation which meets the criteria set out in Article 
11 is entitled to make a request for internal review to the Union institution or body 
that  has  adopted  an  administrative  act  or,  in  case  of  an  alleged  administrative 
omission,  should  have  adopted  such  an  act,  on  the  grounds  that  such  an  act  or 
omission contravenes environmental law. 

Where an administrative act is an implementing measure at Union level required by 
another non-legislative act, the non-governmental organisation may also request the 
review  of  the  provision  of  the  non-legislative  act  for  which  that  implementing 
measure is required when requesting the review of that implementing measure. 

6 

Judgment of the Court of Justice of 12 September 2019 in Case C-82/17 P, TestBioTech v Commission, 
ECLI:EU:C:2019:719, at para 69. 

EN 

22 

  EN 

                                                 
Such a request must be made in writing and within a time limit not exceeding eight 
weeks  after  the  administrative  act  was  adopted,  notified  or  published,  whichever  is 
the latest, or, in the case of an alleged omission, eight weeks after the date when the 
administrative act was required. The request shall state the grounds for the review. 

The  Union  institution  or  body  referred  to  in  paragraph  1  shall  consider  any 
2. 
such request, unless it is clearly unsubstantiated. The Union institution or body shall 
state  its  reasons  in  a  written  reply  as  soon  as  possible,  but  no  later  than  16  weeks 
after receipt of the request.’ 

(b) 

in paragraph 3, the second subparagraph is replaced by the following: 

‘In any event, the Union institution or body shall act within 22 weeks from receipt of 
the request.’ 

3. 

4. 

Throughout  the  text  of  the  Regulation,  references  to  provisions  of  the  Treaty 
establishing the European Community (EC Treaty) are replaced by references to the 
corresponding  provisions  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU) and any necessary grammatical changes are made. 

Throughout the text of the Regulation, including in the title, the word ‘Community’ 
is replaced by the word ‘Union’ and any necessary grammatical changes are made. 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 2 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

23 

  EN