Article 1 Objective
1. The objective of this Regulation is to contribute to the implementation of the obligations arising under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, hereinafter referred to as ‘the Aarhus Convention’, by laying down rules to apply the provisions of the Convention to Community institutions and bodies, in particular by: (a) guaranteeing the right of public access to environmental information received or produced by Community institutions or bodies and held by them, and by setting out the basic terms and conditions of, and practical arrangements for, the exercise of that right; (b) ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. To that end, the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted; (c) providing for public participation concerning plans and programmes relating to the environment; (d) granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation. 2. In applying the provisions of this Regulation, the Community institutions and bodies shall endeavour to assist and provide guidance to the public with regard to access to information, participation in decision-making and access to justice in environmental matters.
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 1 Objective):
The objective of this Regulation is to contribute to the implementation of the obligations arising under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, hereinafter referred to as ‘the Aarhus Convention’, by laying down rules to apply the provisions of the Convention to Union institutions and bodies, in particular by: (a) guaranteeing the right of public access to environmental information received or produced by Union institutions or bodies and held by them, and by setting out the basic terms and conditions of, and practical arrangements for, the exercise of that right; (b) ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. To that end, the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted; (c) providing for public participation concerning plans and programmes relating to the environment; (d) granting access to justice in environmental matters at Union level under the conditions laid down by this Regulation. 2. In applying the provisions of this Regulation, the Union institutions and bodies shall endeavour to assist and provide guidance to the public with regard to access to information, participation in decision-making and access to justice in environmental matters.
Article 2 Definitions
1. For the purpose of this Regulation: (a) ‘applicant’ means any natural or legal person requesting environmental information; (b) ‘the public’ means one or more natural or legal persons, and associations, organisations or groups of such persons; (c) ‘Community institution or body’ means any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity. However, the provisions under Title II shall apply to Community institutions or bodies acting in a legislative capacity; (d) ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on: (i) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (ii) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i); (iii) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements; (iv) reports on the implementation of environmental legislation; (v) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); (vi) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures in as much as they are or may be affected by the state of the elements of the environment referred to in point (i) or, through those elements, by any of the matters referred to in points (ii) and (iii); (e) ‘plans and programmes relating to the environment’ means plans and programmes, (i) which are subject to preparation and, as appropriate, adoption by a Community institution or body; (ii) which are required under legislative, regulatory or administrative provisions; and (iii) which contribute to, or are likely to have significant effects on, the achievement of the objectives of Community environmental policy, such as laid down in the Sixth Community Environment Action Programme, or in any subsequent general environmental action programme. General environmental action programmes shall also be considered as plans and programmes relating to the environment. This definition shall not include financial or budget plans and programmes, namely those laying down how particular projects or activities should be financed or those related to the proposed annual budgets, internal work programmes of a Community institution or body, or emergency plans and programmes designed for the sole purpose of civil protection; (f) ‘environmental law’ means Community legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of Community policy on the environment as set out in 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; (g) ‘administrative act’ means any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects; (h) ‘administrative omission’ means any failure of a Community institution or body to adopt an administrative act as defined in (g). 2. Administrative acts and administrative omissions shall not include measures taken or omissions by a Community institution or body in its capacity as an administrative review body, such as under: (a) Articles 81, 82, 86 and 87 of the Treaty (competition rules); (b) Articles 226 and 228 of the Treaty (infringement proceedings); (c) Article 195 of the Treaty (Ombudsman proceedings); (d) Article 280 of the Treaty (OLAF proceedings).
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 2 Definitions):
For the purpose of this Regulation: (a) ‘applicant’ means any natural or legal person requesting environmental information; (b) ‘the public’ means one or more natural or legal persons, and associations, organisations or groups of such persons; (c) ‘ Union institution or body’ means any public institution, body, office or agency established by, or on the basis of, TFEU except when acting in a judicial or legislative capacity. However, the provisions under Title II shall apply to Union institutions or bodies acting in a legislative capacity; ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on: (i) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (ii) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i); measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements; (iv) reports on the implementation of environmental legislation; (v) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); ‘plans and programmes relating to the environment’ means plans and programmes, (i) which are subject to preparation and, as appropriate, adoption by a Union institution or body; (ii) which are required under legislative, regulatory or administrative provisions; and (iii) which contribute to, or are likely to have significant effects on, the achievement of the objectives of Union environmental policy, such as laid down in the Sixth Union vironment Action Programme, or in any subsequent general environmental action programme. General environmental action programmes shall also be considered as plans and programmes relating to the environment. This definition shall not include financial or budget plans and programmes, namely those laying down how particular projects or activities should be financed or those related to the proposed annual budgets, internal work programmes of a Union institution or body, or emergency plans and programmes designed for the sole purpose of civil protection; (f) ‘environmental law’ means 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 TFEU : 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; ‘administrative act’ means any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law within the meaning of point (f) of Article 2(1); ‘administrative omission’ means any failure of a Union institution or body to adopt a non-legislative act which has legal and external effects, where such failure may contravene environmental law within the meaning of point (f) of Article 2(1). 2. Administrative acts and administrative omissions shall not include measures taken or omissions by a Union institution or body in its capacity as an administrative review body, such as under: (a) Articles 81, 82, 86 and 87 of TFEU (competition rules); (b) Articles 226 and 228 of TFEU (infringement proceedings); (c) Article 195 of TFEU (Ombudsman proceedings); (d) Article 280 of TFEU (OLAF proceedings).
Article 3 Application of Regulation (EC) No 1049/2001
Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities. For the purposes of this Regulation, the word ‘institution’ in Regulation (EC) No 1049/2001 shall be read as ‘Community institution or body’.
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 3 Application of Regulation (EC) No 1049/2001):
Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Union institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities. For the purposes of this Regulation, the word ‘institution’ in Regulation (EC) No 1049/2001 shall be read as ‘ Union institution or body’.
Article 4 Collection and dissemination of environmental information
1. Community institutions and bodies shall organise the environmental information which is relevant to their functions and which is held by them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology in accordance with Articles 11(1) and (2), and 12 of Regulation (EC) No 1049/2001. They shall make this environmental information progressively available in electronic databases that are easily accessible to the public through public telecommunication networks. To that end, they shall place the environmental information that they hold on databases and equip these with search aids and other forms of software designed to assist the public in locating the information they require. The information made available by means of computer telecommunication and/or electronic technology need not include information collected before the entry into force of this Regulation unless it is already available in electronic form. Community institutions and bodies shall as far as possible indicate where information collected before entry into force of this Regulation which is not available in electronic form is located. Community institutions and bodies shall make all reasonable efforts to maintain environmental information held by them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means. 2. The environmental information to be made available and disseminated shall be updated as appropriate. In addition to the documents listed in Article 12(2) and (3) and in Article 13(1) and (2) of Regulation (EC) No 1049/2001, the databases or registers shall include the following: (a) texts of international treaties, conventions or agreements, and of Community legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment; (b) progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Community institutions or bodies; (c) steps taken in proceedings for infringements of Community law from the stage of the reasoned opinion pursuant to Article 226(1) of the Treaty; (d) reports on the state of the environment as referred to in paragraph 4; (e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment; (f) authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed; (g) environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed. 3. In appropriate cases, Community institutions and bodies may satisfy the requirements of paragraphs 1 and 2 by creating links to Internet sites where the information can be found. 4. The Commission shall ensure that, at regular intervals not exceeding four years, a report on the state of the environment, including information on the quality of, and pressures on, the environment is published and disseminated.
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 4 Collection and dissemination of environmental information):
The information made available by means of computer telecommunication and/or electronic technology need not include information collected before the entry into force of this Regulation unless it is already available in electronic form. Union institutions and bodies shall as far as possible indicate where information collected before entry into force of this Regulation which is not available in electronic form is located. Union institutions and bodies shall make all reasonable efforts to maintain environmental information held by them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means. (a) texts of international treaties, conventions or agreements, and of Union legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment; (b) progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Union institutions or bodies; (c) steps taken in proceedings for infringements of Union law from the stage of the reasoned opinion pursuant to Article 226(1) of TFEU ; (d) reports on the state of the environment as referred to in paragraph 4; (e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment; (f) authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed; (g) environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed. 3. In appropriate cases, Union institutions and bodies may satisfy the requirements of paragraphs 1 and 2 by creating links to Internet sites where the information can be found. 4. The Commission shall ensure that, at regular intervals not exceeding four years, a report on the state of the environment, including information on the quality of, and pressures on, the environment is published and disseminated.
Article 5 Quality of the environmental information
1. Community institutions and bodies shall, insofar as is within their power, ensure that any information that is compiled by them, or on their behalf, is up-to-date, accurate and comparable. 2. Community institutions and bodies shall, upon request, inform the applicant of the place where information on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling the information can be found, if it is available. Alternatively, they may refer them to the standardised procedure that was used.
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 5 Quality of the environmental information):
1. Union institutions and bodies shall, insofar as is within their power, ensure that any information that is compiled by them, or on their behalf, is up-to-date, accurate and comparable. 2. Union institutions and bodies shall, upon request, inform the applicant of the place where information on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling the information can be found, if it is available. Alternatively, they may refer them to the standardised procedure that was used.
Article 6 Application of exceptions concerning requests for access to environmental information
1. As regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation (EC) No 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. 2. In addition to the exceptions set out in Article 4 of Regulation (EC) No 1049/2001, Community institutions and bodies may refuse access to environmental information where disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species.
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 6 Application of exceptions concerning requests for access to environmental information):
1. As regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Union law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation (EC) No 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. 2. In addition to the exceptions set out in Article 4 of Regulation (EC) No 1049/2001, Union institutions and bodies may refuse access to environmental information where disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species.
Article 7 Requests for access to environmental information which is not held by a Community institution or body
Where a Community institution or body receives a request for access to environmental information and where this information is not held by that Community institution or body, it shall, as promptly as possible, but within 15 working days at the latest, inform the applicant of the Community institution or body or the public authority within the meaning of Directive 2003/4/EC to which it believes it is possible to apply for the information requested or transfer the request to the relevant Community institution or body or the public authority and inform the applicant accordingly.
Amendment rationale: 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 Deal 1 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 Convention 4 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 ‘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 Communication 6 . 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 2005 7 . 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 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/2008/32 8 ). 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. II. The inter-institutional response to the Committee's findings In 2018, in its Decision (EU) 2018/881 9 , 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 study 10 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 (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 Deal 12 , 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 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 law a broad definition. Accordingly, 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 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. 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 individuals 21 . 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 Treaties 22 . 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 above 23 , 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 Convention 24 . 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 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 label and which may affect the applicant's interests, changing his legal position, may be contested. 
Revised version (Article 7 Requests for access to environmental information which is not held by a Union institution or body):
Where a Union institution or body receives a request for access to environmental information and where this information is not held by that Union institution or body, it shall, as promptly as possible, but within 15 working days at the latest, inform the applicant of the Union institution or body or the public authority within the meaning of Directive 2003/4/EC to which it believes it is possible to apply for the information requested or transfer the request to the relevant Union institution or body or the public authority and inform the applicant accordingly.