Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the seventh session of the Meeting of the Parties to the Aarhus Convention regarding compliance cases ACCC/C/2008/32 and ACCC/C/2015/128
Date: 2021-09-03
Institutions: Directorate-General for Environment, European Commission
Subjects: UN convention, access to information, decision-making, disclosure of information, environmental law, environmental monitoring, environmental protection, international cooperation, right to justice

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   EUROPEAN COMMISSION  Brussels, 3.9.2021  COM(2021) 532 final 2021/0283 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the seventh session of the Meeting of the Parties to the Aarhus Convention regarding compliance cases ACCC/C/2008/32 and ACCC/C/2015/128  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in  the  seventh  Meeting  of  the  Parties  to  the  Aarhus  Convention  in  connection  with  the 
envisaged adoption of Decision VII.8f concerning compliance by the European Union with its 
obligations under the Convention 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

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  concluded  under  the  aegis  of  the  United  Nations  Economic 
Commission for Europe (UNECE).  
The  Aarhus  Convention  was  approved  on  17  February  20052  by  the  European  Community, 
which  also  made  a  Declaration  upon  signature3.  All  Member  States  are  Parties  to  the 
Agreement.  Regulation  (EC)  No  1367/2006  ("the  Aarhus  Regulation")  contributes  to  the 
implementation of the Convention with regard to the EU institutions and bodies4.  

2.2. 

The Aarhus Convention 

The  contracting  Parties  to  the  Aarhus  Convention  meet  every  four  years  and  one  of  the 
standing items on the agenda concerns Parties’ compliance with the Convention. Compliance 
is assessed by the Compliance Committee established under the Convention according to its 
Article 15. The findings of the Compliance Committee are final.  

The Committee's findings are submitted for endorsement to the Meeting of the Parties to the 
Aarhus  Convention  according  to  Rule  37  of  Decision  I/7  on  review  of  compliance5.  If 
endorsed,  they  would  gain  the  status  of  official  interpretation  of  the  Aarhus  Convention, 
therefore binding upon the Contracting Parties and the Convention Bodies. 

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  voting6.  The  EU  has  27  votes  of  the  overall  46  votes  if  all 
Parties are present.  

Prior to the Meeting of the Parties EU positions are established in the Council Working Party 
on International Environmental Issues. 

1 

2 
3 

4 
5 
6 

As published on the UNECE website: 
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. 
Available at g0430994.doc (unece.org)  
Decision 
http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.2.e.pdf 

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

I/1  on  Rules  of  procedure 

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2.3. 

The envisaged act of the Aarhus Convention 

On 18 – 20 October 2021, during its seventh session, the Meeting of the Parties to the Aarhus 
Convention is to adopt Decision VII.8f regarding compliance by the European Union with the 
Convention (‘the envisaged act’). 

The  purpose  of  the  envisaged  act  is  to  determine  whether  the  European  Union  is  in 
compliance regarding notably cases ACCC/C/2008/32 and ACCC/C/2015/128 and set out the 
conditions  necessary  to  ensure  compliance  and  possibly  incur  regular  reporting  obligations 
and a request to the Party concerned to take urgent measures to ensure compliance.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

On 17 March 2017, the Committee issued findings in case ACCC/C/2008/32, brought by the 
non-governmental organisation (NGO) ClientEarth, regarding access to justice at EU level.7 
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. 

In  a  separate  compliance  case,  ACCC/C/2015/128,8  whose  findings  were  delivered  on  17 
March 2021, the Committee found that the EU was in  breach of the Convention because of 
the  failure  to  provide  access  to  administrative  or  judicial  procedures  for  members  of  the 
public to challenge decisions on state aid measures taken by the European Commission.  
On 14 October 2020, the Commission adopted a proposal  to  amend the Aarhus Regulation9 
and a communication on Access to Justice10 in response to the Committee’s findings in case 
ACCC/C/2008/32. This was a response to the call by Council11 on the Commission to table a 
legislative  proposal  and  the  Commission’s  commitments  made  in  the  European  Green  Deal 
Communication. 

As a final result of the legislative process, a political agreement in trilogue was reached on 12 
July  2021 
in  case 
ACCC/C/2008/32. 

the  Compliance  Committee’s  concerns 

that  addressed  all  of 

Case  ACCC/C/2015/128  concerns  state  aid  exceptions  under  the  Aarhus  Regulation,  which 
was not part of the Commission’s legislative proposal recalled above. However, at the trilogue 
of 12 July 2021, the Commission issued a statement as part of the compromise leading to the 
adoption of the revised Aarhus Regulation, in which it committed to assess the findings in this 
case and publish the outcome by the end of 2022. The Commission also stated that by the end 
of 2023, if appropriate, it will come forward with measures to address the issue, in light of the 
obligations  of  the  EU  and  its  Member  States  under  the  Aarhus  Convention  and  taking  into 
account the rules of Union law concerning state aid.  

7 

8 
9 
10 
11 

Findings and advice under ACCC/C/2008/32 available at: 
https://unece.org/env/pp/cc/accc.c.2008.32_european-union and at 
https://unece.org/env/pp/cc/accc.m.2017.3_european-union    
https://unece.org/sites/default/files/2021-03/C128_EU_findings_advance%20unedited.pdf 
COM(2020) 642  
COM(2020) 643 
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. 

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The  present  initiative  concerns  a  draft  Council  Decision  covering  these  two  cases; 
accordingly,  the  EU  can  express  a  united  position  at  the  Meeting  of  the  Parties  on  18  –  20 
October 2021. 

On case ACCC/C/2008/32, the EU expects  that  the Meeting of the Parties will agree that 
the EU’s measures, once they will be adopted and will have entered into force, will ensure 
compliance with the Aarhus Convention. Since the draft MOP Decision has been prepared 
before the legislative procedure on the Aarhus Regulation was formally concluded, it may 
be  necessary  that  the  EU  will  need  to  request  that  the  draft  MOP  Decision  is  updated  to 
fully reflect this very significant development in the EU.  

On the state aid-related case, the EU will accept a decision acknowledging, but not endorsing, 
the findings and will revert to the matter at the next Meeting of the Parties, expected in 2025, 
while reporting to the Convention by the deadlines set forth in the Commission’s Statement.  

In view of the above considerations, at the upcoming seventh session of the Meeting of the 
Parties  the  EU  should  accept  the  findings  in  case  ACCC/C/2008/32,  subject  to  the 
provisions of this draft Council decision. Further, the EU should acknowledge the findings 
in  case  ACCC/C/2015/128  but  request  the  postponement  of  the  endorsement  of  these 
findings to the eight session of the Meeting of the Parties. 

In  addition,  it  is  also  essential  that  the  Convention  acknowledges  the  central  role  of  EU 
national  courts  as  ordinary  courts  of  EU  law,12  and  recognise  the  system  of  preliminary 
rulings  under  Article  267  TFEU  as  a  valid  means  of  access  to  justice  and  redress  in 
environmental  matters.  This  should  be  reflected  in  the  text  of  the  decision  adopted  at  the 
MOP. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’13. 

4.1.2.  Application to the present case 

The  Aarhus  Convention  is  a  body  set  up  by  an  agreement  under  the  auspices  of  the  United 
Nations Economic Commission for Europe. 

The  act  which  the  Meeting  of  the  Parties  is  called  upon  to  adopt  constitutes  an  act  having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  in  accordance  with 

12 
13 

Opinion 1/09, Creation of a Unified Patent Litigation System, EU:C:2011:123, paragraph 80. 
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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Article  15  of  the  Aarhus  Convention  and  the  provisions  of  decision  I/7  on  the  review  of 
compliance, in particular, its Rule 3714.  

In  turn,  the  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf.  

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to environmental policy. 

Therefore, the substantive legal basis of the proposed decision is Article 192(1). 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with 
Article 218(9) TFEU. 

14 

Quoted above. 

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2021/0283 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the seventh session of the 
Meeting of the Parties to the Aarhus Convention regarding compliance cases 
ACCC/C/2008/32 and ACCC/C/2015/128 

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) 

(6) 

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16 

On  17  February  2005,  the  Aarhus  Convention  on  Access  to  Information,  Public 
Participation in Decision-making and Access to Justice in Environmental Matters ("the 
Aarhus  Convention")15  was  approved,  on  behalf  of  the  European  Community, 
by Council Decision 2005/370/EC.16  

Pursuant  to  Article  10(2)  of  the  Aarhus  Convention,  the  Meeting  of  the  contracting 
Parties may adopt decisions concerning compliance with the Convention. 

The  Aarhus  Convention,  during  its  seventh  session  on  18  –  20  October  2021,  is  to 
adopt  Decision  VII.8f  concerning  compliance  by  the  European  Union  with  its 
obligations under the Convention, including the findings in case ACCC/C/2008/32 and 
case ACCC/C/2015/128. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Aarhus Convention, as Decision VII.8f concerning compliance by the European Union 
with its obligations under the Convention will be binding on the Union. 

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").  

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. In turn, under Rule 37 of Decision 
I/7 on the review of compliance, the findings of the Committee have to be endorsed by 
the Meeting of the Parties. 

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). 

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(7) 

(8) 

(9) 

On 17 March 2017, the Union received  findings  in  case ACCC/C/2008/32 regarding 
access  to  justice  at  EU level.17 The Committee held in  paragraph 123 of its findings 
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." 

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

The  administrative  review  procedure  under  the  Aarhus  Regulation  complements  the 
overall  Union  system  of  judicial  review  that  enables  members  of  the  public  to  have 
administrative  acts  reviewed  via  direct  judicial  challenges  at  Union  level,  namely 
under Article 263(4) TFEU, and, in  accordance  with  Article 267 TFEU, via national 
courts, which form an integral part of the Union system under the Treaties. The power 
of national courts to make a request to the Court of Justice of the European Union for 
a  preliminary  ruling  under  Article  267  TFEU  plays  an  essential  role  in  this  system. 
According to Article 267 TFEU, Member States' national courts are part and parcel of 
the system of judicial protection of the EU as ordinary courts of EU law.18 

(10)  Taking 

into  account 

the  concerns  expressed  by 

in  case 
ACCC/C/2008/32,  on  14  October  2020  the  Commission  put  forward  a  legislative 
proposal19  aiming  to  amend the Aarhus Regulation, which was informally  agreed by 
co-legislators in a trilogue on 12 July 2021. The amended Aarhus Regulation ensures 
now  that  Union  law  is  compliant  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  Committee 

(11)  The  Commission  has  informed  the  Compliance  Committee  of  the  details  of  the 
political  agreement  on  16  July  2021,  provided  the  Committee  with  a  consolidated 
version  of  the  text  on  23  July  2021  following  its  endorsement  in  Coreper,  and 
communicated  the  final  outcome  of  the  legislative  procedure  to  the  Compliance 
Committee, including the text published in the Official Journal of the European Union 
on  [xxx  October  2021]. The  Decision  of  the  Meeting  of  the  Parties  should  therefore 
welcome these new measures and note that, once in effect, they respond in full to the 
findings of the Compliance Committee in case ACCC/C/2008/32.  

(12)  The Committee in case ACCC/C/2015/12820, in its findings of 17 March 2021, found 
that the EU was in breach of the Convention because of the failure to provide access to 
administrative or judicial procedures for members of the public to challenge decisions 
on state aid measures taken by the European Commission.  

17 

18 

19 
20 

http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-
32/Findings/C32_EU_Findings_as_adopted_advance_unedited_version.pdf 
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:C2011:123, para 80. 
COM(2020) 642 
https://unece.org/sites/default/files/2021-03/C128_EU_findings_advance%20unedited.pdf 

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(13) 

In  acknowledgement  of  the  concerns  and  the  findings  of  the  Committee  in  case 
ACCC/C/2015/128,  the  Commission  issued  a  statement  as  part  of  the  compromise 
leading to the adoption of the revised Aarhus Regulation committing to ‘analysing the 
implications of the findings and assessing the options available. The Commission will 
complete and publish this assessment by the end of 2022. If appropriate, by the end of 
2023, the Commission will come forward with measures to address the issue, in light 
of the obligations of the EU and its Member States under the Aarhus Convention and 
taking into account the rules of Union law concerning state aid.’  

(14)  The findings in  cases ACCC/C/2008/32 and ACCC/C/2015/128  will be submitted to 
the  seventh  session  of  the  Meeting  of  the  Parties  to  the  Aarhus  Convention  to  take 
place in October 2021 in Geneva, Switzerland, by way of draft Decision VII.8f  21 by 
which they would gain the status of official interpretation of the Aarhus Convention, 
therefore binding upon the Contracting Parties and the Convention Bodies. 

(15)  However,  as  regards  case  ACCC/C/2015/128,  in  accordance  with  the  Statement 
recalled above, the Union should commit to analysing the implications of the findings 
and assessing the options available within the framework and specificities of the EU 
legal  order.  This  should  then  allow  the  Commission  to  complete  and  publish  the 
assessment  indicated  in  the  Statement  and  to  come  forward  with  measures,  if 
appropriate,  to  address  the  issue  raised  by  the  Compliance  Committee,  within  the 
timelines indicated in the Statement and taking into account the specificities of the EU 
legal order on State aid matters. Therefore, the Union should also propose the Meeting 
of the Parties to postpone the endorsement of the findings in case ACCC/C/2015/128 
to the eighth session of the Meeting of the Parties, rather than endorse these findings. 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to  be taken on the Union's behalf in the seventh  session of the Meeting of the 
Parties to the Aarhus Convention with regard to draft Decision VII.8f concerning compliance 
by the Union with its obligations under the Aarhus Convention in case ACCC/C/2008/32 shall 
be  to  accept  the  above-mentioned  draft  Decision  and  endorse  the  findings.  The  Union, 
however, should ensure that the following points are reflected in the decision: 

– 

– 

21 

The  decision  should  welcome  that  the  EU  has  taken  all  necessary  steps  to  ensure 
compliance  with  the  findings  and  to  provide  the  public  concerned  with  access  to 
justice in environmental matters in accordance with Article 9, paragraphs 3 and 4, of 
the  Convention.  The  decision  should  also  clarify  that  once  all  provisions  of  the 
revised  Aarhus  Regulation  will  have  come  into  effect,  the  EU  will  no  longer  be  in 
non-compliance in case ACCC/C/2008/32. 

In case the draft Decision reiterates the dismissal by the Compliance Committee of 
the  preliminary  ruling  procedure,  this  should  be  rejected.  It  is  essential  that  the 
Decision acknowledges the central role of EU national courts as ordinary Courts of 
EU law, and recognise the system of preliminary rulings under Article 267 TFEU as 
a valid means of redress. 

https://unece.org/environment/documents/2021/08/item-7-b-draft-decision-vii8f-concerning-
compliance-european-union.  

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Article 2 

The position to be taken on the Union’s behalf in the seventh session of the Meeting of the 
Parties to the Aarhus Convention with regard to draft Decision VII.8f concerning compliance 
by  the  Union  with  its  obligations  under  the  Aarhus  Convention  in  case  ACCC/C/2015/128 
should  be  to  acknowledge  the  concerns  and  findings  of  the  Compliance  Committee.  The 
Decision should also reiterate the wording of the Commission’s Statement, issued at the last 
trilogue on the revision of the Aarhus Regulation on 12 July 2021. 

According to this Statement: 

“The  Commission  remains  committed  to  ensuring  that  the  EU  respects  its  international 
obligations in matters pertaining to the Aarhus Convention and in that context acknowledges 
the  concerns  expressed  and  findings  adopted  by  the  Aarhus  Convention  Compliance 
Committee in case ACCC/C/2015/12822 as regards state aid on 17 March 2021. The findings 
call on the EU to ‘take the necessary legislative, regulatory and other measures to ensure that 
the Aarhus Regulation is amended, or new European Union legislation is adopted, to clearly 
provide  members  of  the  public  with  access  to  administrative  or  judicial  procedures  to 
challenge decisions on state aid measures taken by the European Commission under article 
108(2)  TFEU  which  contravene  EU  law  relating  to  the  environment,  in  accordance  with 
article 9(3) and (4) of the Convention’.  

The  Commission  is  currently  analysing  the  implications  of  the  findings  and  assessing  the 
options available. The Commission  will  complete and publish this assessment  by the  end of 
2022. If appropriate, by the end of 2023, the Commission will come forward with measures to 
address  the  issue,  in  light  of  the  obligations  of  the  EU  and  its  Member  States  under  the 
Aarhus Convention and taking into account the rules of Union law concerning state aid.” 

Accordingly,  the  Union  should  commit  to  analysing  the  implications  of  the  findings  and 
assessing the options available within the framework and specificities of the EU legal order. It 
should also  commit to  complete and publish  this assessment by the end of 2022. Further, if 
appropriate, by the end of 2023, it should commit to come forward with measures to address 
the  issue,  in  light  of  the  obligations  of  the  EU  and  its  Member  States  under  the  Aarhus 
Convention and taking into account the rules of Union law concerning State aid.  

This should then allow the Commission to complete and publish the assessment indicated in 
the Statement and to come forward, if appropriate, with measures to address the issue raised 
by the Compliance Committee, within the timelines indicated in the Statement. 

Therefore,  the  Union  should  also  propose  the  Meeting  of  the  Parties  to  postpone  the 
endorsement of the findings in case ACCC/C/2015/128 to the eighth session of the Meeting of 
the Parties, rather than endorse these findings. 

Other  minor  amendments  in  line  with  the  approach  of  this  Decision  can  be  agreed  during 
coordination on the spot and in light of possible negotiations on draft Decision VII.8f. 

Article 3 

22 

See https://unece.org/env/pp/cc/accc.c.2015.128_european-union, para 132. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 4 

For the Council 
The President 

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