Greening Luxembourg? Environmental rights after the 2021 amendments of EU Aarhus Regulation

Environmental rights are mainly of procedural nature. Demanding a “clean” or “healthy” environment is an attractive but rather vague legal norm, while providing for the formal means to NGOs or individuals to promote such a demand proves to be a more precise and effective way for saving the planet. The most notorious text recording and harmonizing such rights at an international level is the 1998 Aarhus Convention, to which both the EU and its members participate as contracting parties. As its title indicates, the fundamental request for environmental protection consists of three pillars: access to environmental information held by public authorities, right to participate in the making of decisions that may affect the environment (mainly through public consultations) and access to justice either for enforcing the rights for information and participation or to challenge  the environmental legality of public decisions.

EU law has long and sufficiently established the first two pillars, even before the 1998 Convention. It faces many more difficulties regarding the third pillar; and not without reason. On the one hand, the discrepancies and reactions at national level -justice is a sensitive matter, closely related to the identity and the autonomy of the internal legal order- made impossible to harmonize environmental litigation before the domestic courts, up to now at least. On the other hand, granting access to “non-privileged” parties for challenging the decisions made by EU institutions before the EU Courts in Luxembourg, even in the name of the environment, generates a serious bottleneck problem; a fistful of judges cannot handle a potential avalanche of recourses. Already in 1998, the CJEU, in its C-321/95P, Greenpeace judgment, had decided not to follow the opinion of its Advocate General Kosmas to abandon, especially in environmental disputes, the draconian admissibility criteria set in the 25/62, Plaumann case for allowing legal standing to private parties when attacking EU acts [1]. The burden of an enhanced environmental litigation seemed too high to bear.

This is the reason why the EU Aarhus Regulation No 1367/2006, introducing the framework for implementing the 1998 Convention at EU level opted for a rather restrictive mechanism regarding access to justice. It allowed NGOs only to request a non-judicial (“internal”) review against administrative acts or omissions made by EU institutions in the field of environmental law. The decision taken on that request may be challenged before the EU Courts with a limited scope of judicial review. The latter does not directly cover the substantive grounds put forward by the initial request for internal review nor can lead to assessing the legality of the underlying administrative act or omission. In 2017, the Aarhus Convention Compliance Committee stated (correctly) that neither the 2006 Regulation nor the relevant case law of the CJEU comply with the access to justice requirements of the Convention and especially with its article 9 [2].    

The very recent Regulation (EU)2021/1767 of October 6th, 2021, attempts to address those weaknesses. It is not an easy task, at least when it comes to the judicial part of the process. Wisely, the EU legislator focused on the improvements that could be made regarding the scope and the characteristics of the internal review. Enhancing the ambit and the protective effects of the administrative phase, produces additional “positive externalities” at the judicial phase as well; it increases the potential volume of cases that may be brought before the EU General Court. The major amendments are the following:

- The scope of the internal review is enlarged ratione materiae. Art. 2 of the new Regulation gives a broader definition of the “administrative acts” to be contested. It includes, not only those with an individual nature, but any “non-legislative” act adopted by a Union institution or body. Moreover, it no longer contains an exception for acts that require additional implementing measures at EU or national level. Such exception, initially proposed by the Commission, was rejected by the European Parliament. The only condition remaining, in accordance with CJEU case-law, is that those acts shall not be internal or non-final but produce “legal and external” effects. Furthermore, another ground for criticism is removed. Internal review does not only cover acts “adopted under environmental law”, as required by the 2006 Regulation, but all decisions containing “provisions that may contravene environmental law”. This amendment is important; it constitutes the proper (and self-evident) application of the environmental integration principle as recognized in art 11TFEU. It opens the room to challenge a vast variety of EU acts, irrespective of their policy objectives (for example, those financing public infrastructures).

- From now on, locus standi to initiate the internal review is granted to individuals and not only to NGOs.  The request for review can be made by any person which demonstrates an “impairment” of his/her rights caused by a violation of environmental law, provided that such person is “directly affected by such impairment in comparison with the public at large”. By using those terms, the EU legislator, without establishing an actio popularis, bypasses the (in)admissibility criterion of the Plaumann jurisprudence. The new Regulation adopts a formula similar to the one initially proposed by the Advocate General in the C-321/95P Greenpeace case [3] and already followed in specific environmental cases (C-197/18, Wasserleitungsverband Nördliches Burgenland, C-237/07, Janecek). A request may also be submitted by a minimum number (4000) of persons residing or established in at least five member states, demonstrating “sufficient public interest”. All the above persons, acting individually or collectively in their capacity as “members of the public” that made the request for internal review, are henceforth entitled to initiate proceedings before the EU General Court against the decision taken upon their request (new art. 12.2 of the Aarhus Regulation). It is worth mentioning that these major improvements enhancing access to justice were not included in the EU Commission’s proposal for Regulation; they were added by the European Parliament during the legislative process.

- There are additional amendments with potentially positive outcome. The extension of the time-limits for submitting the request from 6 to 8 weeks and for replying to it from 12 to 16 weeks makes the whole-time frame more realistic. The same applies for the provision that allows EU authorities to combine the examination of multiple requests against the same act and to treat them as one. A new art. 11a is introduced in the Aarhus Regulation, enhancing the transparency of the process and the use of digital technology: all requests for administrative review as well as all decisions upon them shall be published; an online system may be established  for the treatment of the requests.

All the above steps seem to be on the right track. We should wait and see what their beneficial results would be but also their implications in practice, having in mind that, with the existing edifice of EU judicial institutions, there is no room for more aggressive solutions. Anyway, these new tools are expected to multiply the volume of environmental litigation brought in Luxembourg and -why not (?)- to push the General Court to establish a specialized chamber for them, at least informally. This is how things may move on and lead to the creation of a “green court within the EU Court” that will produce a more activist case-law in environmental matters.

Last but not least, one should have in mind that opening the door for a broader access to EU justice in Luxembourg is not enough. What is also needed is a common set of rules for safeguarding and improving the procedural aspects of environmental litigation before the domestic courts . The environmental legislation in Europe is to a large extent (more than 50%) of EU origin and its application in the field a matter to be brought before the national judge. Harmonizing domestic access to justice would also aid at a more systematic judicial review of EU decisions, through preliminary rulings and judicial dialogue. It would be important for symbolic reasons as well. The EU has reduced judicial and procedural autonomy of the internal legal orders in the field of public procurement. It made several states to revisit their judicial system or even to shape new procedural instruments for granting effective protection to holders of rights arising from the public procurement Directives. Isn’t the environment far more important for promoting judicial harmonization and efficiency?

[1] In the Plaumann case, the Court ruled that the right of natural or legal persons to institute proceedings before the CJEU according to art. 263.4 TFEU, against an act that concerns them “individually” is granted only if “that decision affects them … by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes theme individually just as in the case of the person addressed”.

[2] Art. 9.3: ”each Party shall ensure that… members of the public have access to administrative or judicial procedures to challenge acts and omissions … which contravene provisions … relating to the environment”. Art 9.4: “… the procedures shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”.

[3] Particularly, points 116 and 117: “A decision which has an impact on the environment does indeed affect, or may affect, large categories of citizens in a general and abstract manner. None the less, it is not impossible for one or more of the persons affected, who constitute a `closed class', to be particularly affected, and thus to be distinguished from any other person, that is to say to be differentiated for the purposes of the fourth paragraph of Article 173 of the Treaty…  By way of logical extension, it may be argued that persons near the epicentre comprise a particularly closed and defined `class', who find themselves in a situation which differentiates them from any other person. It is then the task of the courts to determine, on the basis of the appropriate criteria, the breadth of that closed class, the width of its radius. By logical extension, persons within that class should be regarded as having locus standi to bring an action against the decision occasioning consequences for the environment.”