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A first success in the long run for better access to justice in the EU: The scope of the administrative review procedure provided under Regulation 1367/2006 invalidated by the General Court

Anaïs Berthier

elni Review 2012, Issue 2,  pp. 92-96.

The EU General Court adopted two long awaited decisions on 14 June 2012 in cases T-338/08 and T-396/09 in which it interprets for the first time Regulation 1367/2006 (the Aarhus Regulation) that applies the Aarhus Convention to EU institutions and bodies. The General Court also departs from the caselaw of the Court on the possibility for the Courts to examine the validity of an act of European Union law in the light of an international treaty. The author of this article supports this ruling and provides arguments that advocate a broadening of the control of legality of EU law. 
In both decisions, the General Court held that the regulation was not compatible with the Convention with regard to the types of acts that could be challenged through the administrative procedure provided by the Aarhus Regulation. 
Art. 10 of Regulation 1367/2006 allows NGOs to challenge decisions of EU institutions which constitute 'administrative acts'. In case T-338/08, the Non-Governmental Organisation (NGO) applicants made a request to the Commission to review Regulation 149/2008 setting maximum residue level for certain products. In case T-396/09, NGOs asked the Commission to review the decision granting the Kingdom of the Netherlands a temporary exemption from the obligations laid down by Directive 2008/50/EC on ambient air quality and cleaner air for Europe. In both cases, the Commission considered the requests inadmissible claiming that the concerned acts were not 'administrative acts' as defined in Art. 2(1)(g) of Regulation 1367/2006 because they were not of 'individual scope'.
The Court annulled both decisions. It therefore broadened the interpretation of the right access to justice for NGOs in environmental matters. A great move forward one might hope, but the Commission has appealed against both judgments. 
In this article, it is examined what real added value these decisions have with regards to access to justice. The author demonstrates that even though these decisions allow a broader category of acts, including those adopted through comitology, to be challenged under the administrative review procedure provided by the Aarhus Regulation, the decisions still do not ensure compliance of EU law with the Aarhus Convention. In this regard, the author sees that the appeal of the Commission focuses on the relationship between international law and EU law and the role of the latter as a 'benchmark' and legal basis to invalidate acts of secondary law.

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