The Members of the European Parliament’s Committee on the Environment, Public Health and Food Safety (ENVI) expressed their differences on Wednesday 24 February regarding the proposed revision of the European Regulation (1367/2006) which transposes the Aarhus Convention on Access to Justice in Environmental Matters into European Union law.
Presented by the European Commission on 14 October 2020 at the request of the Council of the EU, the proposal for revision of the Regulation aims to improve the implementation of the Aarhus Convention, in particular to address the concerns of the ‘Compliance Committee’ (see EUROPE 12581/8).
In an opinion expressed in 2017, this committee had indeed considered that the Regulation (1367/2006) currently in force does not guarantee full EU compliance with all the requirements of the Convention.
In particular, it had advocated that: – the scope of the Regulation be extended to cover not only EU administrative acts of individual scope (i.e., those specifically addressed to an economic operator or an association of operators), but also general acts; – the possibility be guaranteed that administrative acts “relating” to the environment can be challenged, not only those under environmental law; – access to the administrative appeal mechanism to NGOs not be limited, but that it be opened up to other members of the public.
The rapporteur on this dossier, Christian Doleschal (EPP, Germany), considered that the procedure for reviewing acts questioned by the public should focus on those aspects which are intended to have a “direct and substantial” effect on the achievement of the Union’s environmental policy objectives.
According to him, it is “is not necessary” to extend access to the administrative review mechanism to members of the public other than NGOs. Mr Doleschal specifically justifies his position with the fact that individuals already have the capacity to request the review of acts and failures to act by Union institutions and bodies before their national courts under Article 267 of the Treaty on the Functioning of the EU (TFEU), and to bring an action for annulment before the Court of Justice of the EU (CJEU) under Article 263 of the same Treaty.
Nevertheless, according to the Council of European Bars and Law Societies (CCBE), Article 263, as currently read and applied by the CJEU, “does not provide sufficient access to justice to private parties”. This view was echoed by Mick Wallace (GUE/NGL). “Even when NGOs do access national courts, it is extremely difficult to convince national courts to make preliminary references (to the EU Court of Justice) in relation to the validity of EU acts”, he noted. In his view, the Commission and the rapporteur “want to retain significant barriers to access to environmental justice”, in contravention of the recommendations of the Aarhus Convention’s Compliance Committee.
Mr Doleschal’s draft report also calls on Member States to ensure that the costs of the internal review procedures provided for in the Regulation are not prohibitive, so that the right of appeal in environmental matters can be effectively used by applicants such as NGOs.
While Marie Toussaint (Greens/EFA, France) called on the Parliament to “go even further”, Peter Liese (EPP, Germany) considered the draft report to be the “right balance”. In his view, it is important to be cautious to avoid that the revision of the regulation complicate the setting up of “the necessary infrastructure for the [European Green Deal]” by leading to a multiplication of court cases.
MEPs now have until 3 March to table amendments to the draft report. A voting session will be held in the ENVI Committee on 15 April, before a vote in Parliament’s plenary session on 17 May.
The EU Council, for its part, adopted its negotiating position on 17 December last (see EUROPE 12625/2).
See the draft report: https://bit.ly/3kq3WJq (Original version in French by Damien Genicot)