Article 8 Cooperation
In the event of an imminent threat to human health, life or the environment, whether caused by human activities or due to natural causes, Community institutions and bodies shall, upon request of public authorities within the meaning of Directive 2003/4/EC, collaborate with and assist those public authorities in order to enable the latter to disseminate immediately and without delay to the public that might be affected all environmental information which could enable it to take measures to prevent or mitigate harm arising from the threat, to the extent that this information is held by or on behalf of Community institutions and bodies and/or those public authorities. The first subparagraph shall apply without prejudice to any specific obligation laid down by Community legislation, in particular by Decision No 2119/98/EC and by Decision No 1786/2002/EC.
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 8 Cooperation):
In the event of an imminent threat to human health, life or the environment, whether caused by human activities or due to natural causes, Union institutions and bodies shall, upon request of public authorities within the meaning of Directive 2003/4/EC, collaborate with and assist those public authorities in order to enable the latter to disseminate immediately and without delay to the public that might be affected all environmental information which could enable it to take measures to prevent or mitigate harm arising from the threat, to the extent that this information is held by or on behalf of Union institutions and bodies and/or those public authorities. The first subparagraph shall apply without prejudice to any specific obligation laid down by Union legislation, in particular by Decision No 2119/98/EC and by Decision No 1786/2002/EC.
Article 9 
1. Community institutions and bodies shall provide, through appropriate practical and/or other provisions, early and effective opportunities for the public to participate during the preparation, modification or review of plans or programmes relating to the environment when all options are still open. In particular, where the Commission prepares a proposal for such a plan or programme which is submitted to other Community institutions or bodies for decision, it shall provide for public participation at that preparatory stage. 2. Community institutions and bodies shall identify the public affected or likely to be affected by, or having an interest in, a plan or programme of the type referred to in paragraph 1, taking into account the objectives of this Regulation. 3. Community institutions and bodies shall ensure that the public referred to in paragraph 2 is informed, whether by public notices or other appropriate means, such as electronic media where available, of: (a) the draft proposal, where available; (b) the environmental information or assessment relevant to the plan or programme under preparation, where available; and (c) practical arrangements for participation, including: (i) the administrative entity from which the relevant information may be obtained, (ii) the administrative entity to which comments, opinions or questions may be submitted, and (iii) reasonable time-frames allowing sufficient time for the public to be informed and to prepare and participate effectively in the environmental decision-making process. 4. A time limit of at least eight weeks shall be set for receiving comments. Where meetings or hearings are organised, prior notice of at least four weeks shall be given. Time limits may be shortened in urgent cases or where the public has already had the opportunity to comment on the plan or programme in question. 5. In taking a decision on a plan or programme relating to the environment, Community institutions and bodies shall take due account of the outcome of the public participation. Community institutions and bodies shall inform the public of that plan or programme, including its text, and of the reasons and considerations upon which the decision is based, including information on public participation.
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 9 ):
1. Union institutions and bodies shall provide, through appropriate practical and/or other provisions, early and effective opportunities for the public to participate during the preparation, modification or review of plans or programmes relating to the environment when all options are still open. In particular, where the Commission prepares a proposal for such a plan or programme which is submitted to other Union institutions or bodies for decision, it shall provide for public participation at that preparatory stage. 2. Union institutions and bodies shall identify the public affected or likely to be affected by, or having an interest in, a plan or programme of the type referred to in paragraph 1, taking into account the objectives of this Regulation. 3. Union institutions and bodies shall ensure that the public referred to in paragraph 2 is informed, whether by public notices or other appropriate means, such as electronic media where available, of: (a) the draft proposal, where available; (b) the environmental information or assessment relevant to the plan or programme under preparation, where available; and practical arrangements for participation, including: (i) the administrative entity from which the relevant information may be obtained, (ii) the administrative entity to which comments, opinions or questions may be submitted, and (iii) reasonable time-frames allowing sufficient time for the public to be informed and to prepare and participate effectively in the environmental decision-making process. 4. A time limit of at least eight weeks shall be set for receiving comments. Where meetings or hearings are organised, prior notice of at least four weeks shall be given. Time limits may be shortened in urgent cases or where the public has already had the opportunity to comment on the plan or programme in question. 5. In taking a decision on a plan or programme relating to the environment, Union institutions and bodies shall take due account of the outcome of the public participation. Union institutions and bodies shall inform the public of that plan or programme, including its text, and of the reasons and considerations upon which the decision is based, including information on public participation.
Article 10 Request for internal review of administrative acts
1. Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act. Such a request must be made in writing and within a time limit not exceeding six weeks after the administrative act was adopted, notified or published, whichever is the latest, or, in the case of an alleged omission, six weeks after the date when the administrative act was required. The request shall state the grounds for the review. 2. The Community institution or body referred to in paragraph 1 shall consider any such request, unless it is clearly unsubstantiated. The Community institution or body shall state its reasons in a written reply as soon as possible, but no later than 12 weeks after receipt of the request. 3. Where the Community institution or body is unable, despite exercising due diligence, to act in accordance with paragraph 2, it shall inform the non-governmental organisation which made the request as soon as possible and at the latest within the period mentioned in that paragraph, of the reasons for its failure to act and when it intends to do so. In any event, the Community institution or body shall act within 18 weeks from receipt of the request.
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 10 Request for internal review of administrative acts):
1. Any non-governmental organisation or other members of the public that meet the criteria set out in Article 11 shall be entitled to make a request for internal review to the Union institution or body that adopted the administrative act or, in the case of an alleged administrative omission, should have adopted such an act, on the grounds that such an act or omission contravenes environmental law within the meaning of point (f) of Article 2(1). Such requests shall be made in writing and within a time limit not exceeding eight weeks after the administrative act was adopted, notified or published, whichever is the latest, or, in the case of an alleged administrative omission, eight weeks after the date when the administrative act was required. The request shall state the grounds for the review. 2. The Union institution or body referred to in paragraph 1 shall consider any such request, unless it is manifestly unfounded or clearly unsubstantiated. In the event that a Union institution or body receives multiple requests for review of the same administrative act or administrative omission, the institution or body may combine the requests and treat them as one. The Union institution or body shall state its reasons in a written reply as soon as possible, but no later than 16 weeks after the expiry of the eight weeks deadline set forth in the second subparagraph of paragraph 1. 3. Where the Union institution or body is unable, despite exercising due diligence, to act in accordance with paragraph 2, it shall inform the non-governmental organisation which made the request as soon as possible and at the latest within the period mentioned in that paragraph, of the reasons for its failure to act and when it intends to do so. In any event, the Union institution or body shall act within 22 weeks of the expiry of the eight weeks deadline set out in the second subparagraph of paragraph 1. Where the Union institution or body is unable, despite exercising due diligence, to act in accordance with paragraph 2, it shall inform the non-governmental organisation which made the request as soon as possible and at the latest within the period mentioned in that paragraph, of the reasons for its failure to act and when it intends to do so. In any event, the Union institution or body shall act within 22 weeks of the expiry of the eight weeks deadline set out in the second subparagraph of paragraph 1.
Article 11 Criteria for entitlement at Community level
1. A non-governmental organisation shall be entitled to make a request for internal review in accordance with Article 10, provided that: (a) it is an independent non-profit-making legal person in accordance with a Member State's national law or practice; (b) it has the primary stated objective of promoting environmental protection in the context of environmental law; (c) it has existed for more than two years and is actively pursuing the objective referred to under (b); (d) the subject matter in respect of which the request for internal review is made is covered by its objective and activities. 2. The Commission shall adopt the provisions which are necessary to ensure transparent and consistent application of the criteria mentioned in paragraph 1.
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 11 Criteria for entitlement at Union level):
A non-governmental organisation shall be entitled to make a request for internal review in accordance with Article 10, provided that: (a) it is an independent non-profit-making legal person in accordance with a Member State's national law or practice; (b) it has the primary stated objective of promoting environmental protection in the context of environmental law; (c) it has existed for more than two years and is actively pursuing the objective referred to under (b); (d) the subject matter in respect of which the request for internal review is made is covered by its objective and activities. 2. The Commission shall adopt the provisions which are necessary to ensure that the criteria and conditions mentioned in paragraph 1 and the second subparagraph of paragraph 1a are applied in a transparent and consistent manner.
Article 12 Proceedings before the Court of Justice
1. The non-governmental organisation which made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty. 2. Where the Community institution or body fails to act in accordance with Article 10(2) or (3) the non-governmental organisation may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.
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 12 Proceedings before the Court of Justice):
1. The non-governmental organisation which made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of TFEU . 2. Where the Union institution or body fails to act in accordance with Article 10(2) or (3), the non-governmental organisation or other members of the public that made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of TFEU .
Article 13 Application measures
Where necessary, Community institutions and bodies shall adapt their rules of procedure to the provisions of this Regulation. These adaptations shall take effect from 28 June 2007.
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 13 Application measures):
Where necessary, Union institutions and bodies shall adapt their rules of procedure to the provisions of this Regulation. These adaptations shall take effect from 28 June 2007.
Article 14 Entry into force
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union . It shall apply from 28 June 2007.
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 14 Entry into force):
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union . It shall apply from 28 June 2007. This Regulation shall be binding in its entirety and directly applicable in all Member States.