Negotiators from the European Parliament and the Council of the European Union reached an interim agreement on the proposal to amend the EU regulation (1367/2006) on public access to justice in environmental matters (the so-called ‘Aarhus regulation’) to bring it fully into line with the international Aarhus Convention, on Monday 12 July, at the end of the third round of interinstitutional negotiations (‘trilogues’).
“I welcome the amendment to the Aarhus Regulation provisionally agreed between the co-legislators. It will strengthen the capacity of European civil society and a wider public to exercise scrutiny over decisions affecting the environment”, said Environment, Oceans and Fisheries Commissioner Virginijus Sinkevičius.
Presented by the European Commission on 14 October 2020, the proposed amendment aims to ensure that the EU fully respects the Aarhus Convention. It was introduced following concerns expressed by the Convention’s Compliance Committee that Regulation 1367/2006 did not comply with certain articles of the Convention by limiting the administrative acts - non-legislative acts adopted by an EU institution or body - that could be challenged by the public (see EUROPE 12581/8).
Scope of application
On Monday, Parliament and the EU Council finally agreed to include in the scope of administrative acts those provisions that require implementing measures at national or Union level.
“As requested by the international monitoring body of the Aarhus Convention, the scope of the Aarhus regulation will be considerably extended, but in a way that ensures compliance with the EU treaties and legal certainty”, said Parliament’s rapporteur on this dossier, Christian Doleschal (EPP, Germany).
In contrast, the co-legislators decided to maintain the exemption for administrative acts concerning State aid. This was a red line for the EU Council (see EUROPE 12758/19).
“State aid is more important than ever for post-pandemic economic recovery and is a good example of why environmental scrutiny must be measured and focused. This is why the regulation itself does not yet provide for the contestability of State aid decisions”, said Mr Doleschal on this topic.
Standing to act
The co-legislators also agreed to extend standing to act beyond NGOs to individuals under certain conditions.
In practice, the latter will be able to request internal reviews of administrative acts in two cases: (1) if they can show that they are directly affected by the alleged infringement of environmental law resulting from the act they are challenging; (2) if they can show that there is a sufficient public interest.
In the latter case, the application must be supported by at least 4,000 members of the public who are resident or established in at least 5 Member States, of whom at least 250 are resident or established in each of these Member States.
In both cases, members of the public would be represented by an NGO or a lawyer.
In addition, the co-legislators agreed to introduce an obligation for EU institutions and bodies to publish requests for review and decisions concerning them.
The interim agreement must now be adopted by the Parliament and the EU Council, separately, before publication in the Official Journal of the EU. (Original version in French by Damien Genicot)