The EU Council was aware that the political agreement reached in December 2020 on amending the EU’s ‘Aarhus’ Regulation (EC No 1367/2006) would likely require adjustments to improve public access to justice in environmental matters and thus bring the Regulation into line with the international Aarhus Convention which it transposes (Case ACCC/C2008/32).
The EU Council’s legal opinion, now available, confirms this in an internal document of 11 May, prepared by the Portuguese Presidency for the Environment Working Group and seen by EUROPE. This document analyses the opinion/advice of the ACCC - the Aarhus Convention Compliance Committee (EUROPE 12698/8) and also responds to concerns expressed by some delegations (see EUROPE 12625/2). It will be taken into account in defining the EU Council’s position for the interinstitutional negotiations as soon as the European Parliament votes in first reading in plenary on Thursday 20 May.
For the record, the text approved by the EU Council considerably broadens the scope for NGOs to appeal against administrative acts of EU institutions and bodies that may harm the environment and extends the time limit for a request for review.
Some delegations had suggested that the proposed extension of the scope of internal review under the Aarhus Regulation beyond acts of individual scope was incompatible with Article 263(4) of the Treaty on the Functioning of the EU (TFEU).
According to the Legal Service: - the definition of ‘administrative acts’ subject to domestic review (in accordance with Article 10 of the Aarhus Regulation) should be clarified in the draft text to make it clearer that this concept covers both acts of individual scope and regulatory acts subject to internal review under Article 263 TFEU; - but the proposed extension of the internal review procedure to non-legislative acts of general application, as presented in the draft text, is compatible with Article 263(4) TFEU.
Some delegations had asked whether EU Council decisions adopted under Article 218 TFEU (in particular concerning the conclusion of international agreements and the signing of such agreements) could be subject to internal review, if the Aarhus Regulation is amended as proposed.
The Legal Service considers that, in the absence of clear case law on the matter, it cannot be excluded that, in certain circumstances, EU Council decisions in which provisional application is provided for (Article 218(5)) as well as decisions under Article 218(6) and Article 218(9) TFEU could be subject to internal review under the Aarhus Regulation, if amended as proposed.
Furthermore, according to the Legal Service, the provisions of the Aarhus Regulation apply to measures adopted under the TFEU or the TEU which concern the field of nuclear energy, but do not apply to measures adopted under the Euratom Treaty. (Original version in French by Aminata Niang)