Negotiations between the European Parliament and the Council of the EU, assisted by the European Commission, are due to start on Friday 4 June on the Commission’s proposed amendment to the Aarhus Regulation (1367/2006) to improve public access to justice in environmental matters.
The EU27 ambassadors to the EU will have to agree beforehand on the EU Council’s negotiating position on the basis of a summary document prepared by the Portuguese Presidency on Wednesday 2 June.
The aim of the proposal on the table is to bring the EU regulation into line with the international Aarhus Convention which it transposes (case ACCC/C2008/32) while respecting the fundamental principles of the EU legal order and its system of judicial review.
The European Parliament adopted its position on 20 May (see EUROPE 12723/20).
In its preparatory document dated 28 May and seen by EUROPE, the Portuguese Presidency summarises the work that has since taken place in the EU Council’s Environment Working Group, which has taken into account Parliament’s amendments, but also the opinion of the Convention’s Compliance Committee (ACCC) on the proposed amendment to the European regulation and the legal opinion of the Council of the EU (see EUROPE 12720/6).
The Portuguese Presidency notes that many delegations stressed the need for the EU to comply with the Aarhus Convention taking into account the opinion of the ACCC, which was not available when the EU Council reached a political agreement in December 2020 which, inter alia, extended the right of recourse only to NGOs against administrative acts of EU institutions and bodies that may affect the environment (see EUROPE 12625/2).
Overall, the Portuguese Presidency suggests focusing on the amendments that relate to the ACCC’s conclusions in case C2008/32. It also suggests showing openness to amendments that concern another compliance case, currently underway, where the ACCC’s findings will not be made until the October meeting of the parties to the Aarhus Convention. Amendments that go beyond the ACCC’s demands are expected to be rejected.
Thus, the following issues could be negotiated:
– the definition of ‘administrative acts’ that may be subject to administrative review (Amendment 23). Parliament’s amendments aim to further broaden the scope of administrative acts that may be subject to administrative review, in particular by including provisions of non-legislative acts adopted by an EU institution or body requiring implementing acts at EU or national level;
– the extension of standing (amendments 26, 27, 29, and 30). The Parliament wants to extend the possibility of requesting an administrative review to members of the public, beyond NGOs, according to criteria to be defined by the European Commission in a delegated act.
An open position would be possible (ACCC case C-128, pending) for the extension of the administrative review to measures or omissions concerning State aid (Articles 106 and 107 of the TFEU concerning competition rules).
A rejection would be opposed to the amendments concerning: – the costs of administrative and judicial review procedures; – the appeal to the Court of Justice of the EU; – the extent of information to be shared with the public, including the disclosure of Member States’ positions expressed in the decision-making procedures, which a number of delegations oppose. (Original version in French by Aminata Niang)