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Access to Justice: Environmental Non-Governmental Organisations According to the Aarhus Regulation

Thirza Moolenaar and Sandra Nóbrega

elni Review 2016, Issue 2, pp. 76-84. https://doi.org/10.46850/elni.2016.011

Article 10 of the Aarhus Regulation provides an opportunity for environmental non-governmental organisations (hereafter ENGOs) to request an internal review to an EU institution or body that has adopted an administrative act under environmental law, or should have done so in the case of an alleged administrative omission. The criteria that have to be met for an ENGO to be entitled to make this request are defined in Article 11 of the Regulation. Together, these criteria can be regarded as the criteria which define an ENGO at the European Union level. The aim of this article is to investigate whether these criteria are sufficiently clear and whether they contribute to the objective of providing wide access for ENGOs to the internal review procedure.
In order to understand the aim the EU institutions had in mind when they decided on the standing criteria, this article examines how these criteria were selected by analysing the legislative documents that resulted in the adoption of the Aarhus Regulation. It helps to identify whether the Commission is currently interpreting these criteria in line with the spirit with which they have been defined. Furthermore, internal review requests which provide insights into the scope of the Article 11 criteria have been selected in order to understand how the European Commission currently interprets the standing criteria. Finally, a conclusion is provided on the questions raised, together with recommendations for improvement and further research.

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References

  1. Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters to Community Institutions and Bodies, OJ 2006 L264/13.
  2. M. Pallemaerts, ‘Environmental human rights: Is the EU a Leader, a Follow- er, or a Laggard?’, 15 Oregon Review of International Law 1, 2013, pp. 7-41.
  3. G. J. Harryvan and J. H. Jans, 'Internal Review of EU Environmental Measures. It's True: Baron van Munchausen Doesn't Exist! Some Remarks on the Application of the So-Called Aarhus Regulation', 3 Review of European Administrative Law 2, 2010, pp. 53-65.
  4. Jans, J. H., & Vedder, H. H. B. (2012), European Environmental Law. Groningen: Europa Law Publishing, pp. 560, 246-247
  5. Kiss & Černý, ‚The Aarhus Regulation and the future of standing of NGOs/public concerned before the ECJ in environmental cases’, 2008
  6. M. Schaap, ‘Access to Environmental Justice for NGOs: Reviewing the EU Legal Standing Criteria in Light of the Aarhus Convention’, News- letter Nr. 8/13 AJV, pp. 1-8.
  7. ACCC, Findings and Recommendations of the Compliance Committee with regard to Communication ACCC/C/2008/32 (part I) concerning compliance by the European Union, ECE/MP.PP/C.1/2011/4/add.1 (24 August 2011).
  8. A.M. Keessen, European Administrative Decisions; How the EU Regulates Products on the Internal Market, European Administrative Law Series (2), Groningen 2009, pp.151-153.
  9. S. Marsden, ‘Direct Public Access to EU Courts: Upholding Public International Law via the Aarhus Convention Compliance Committee’, 81 Nordic Journal of international Law 2, 2012, pp. 175-204. DOI: https://doi.org/10.1163/157181012X638070.
  10. T. Crossen, V. Niessen, ‘NGO Standing in the European Court of Justice- Does the Aarhus Regulation open the door?’, 16 Review of European, Comparative & International Environmental Law 3, 2007, pp. 332- 340. DOI: https://doi.org/10.1111/j.1467-9388.2007.00569.x.
  11. J. Darpö, ‘Article 9.2 of the Aarhus Convention and EU Law’, 11 Journal for European Environmental & Planning Law 4, 2014, pp. 367-391. DOI: https://doi.org/10.1163/18760104-01104004.
  12. Commission of the European Communities, 2003, Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters, COM(2003) 624 final. The European Commission has withdrawn this proposal in 2014. Withdrawal of obsolete commission proposals (2014/C 153/03), OJ 2014 C 153/3.
  13. European Commission, 2013, Proposal for a Council Decision on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision making and access to justice regarding environmental matters, COM(2003) 625 final.
  14. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998; in force 30 October 2001) (‘Aarhus Convention’).
  15. Court of Justice of the European Union, 2011, Judgment of the Court (Grand Chamber) of 8 March 2011.Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky. Reference for a preliminary ruling: Najvyšší súd Slovenskej republiky - Slovakia. Environment - Aarhus Convention - Public participation in the decision-making process and access to justice in environmental matters - Direct effect (Case C-240/09).
  16. Berthier, A. Rulings in Joined Cases C-401/12P to C-403/12P and Joined Cases C-404/12P and C-405/12P: The Lack of Proper Implementation of Article 9(3) of the Aarhus Convention, Journal of European Environmental Law & Planning Law 12 (2015), pp. 207-213. DOI: https://doi.org/10.1163/18760104-01202008.
  17. Commission of the European Communities, 2003, Proposal for a Regulation of the European Parliament and of the Council on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies, COM (2003) 622 final.
  18. Jans, J. H., & Vedder, H. H. B. (2012), European Environmental Law. Groningen: Europa Law Publishing, pp. 560, 250.
  19. Backes, C. & Eliantonio, M. (2013), ‘Access to Courts for Environmental NGOs at European and National Level: What Improvements and What Room for Improvement since Maastricht?’, in: Visser, M. de, Mei, A.P. van der and Visser, M. (eds.), Twenty Years Treaty on European Union 1993- 2013: Reflections from Maastricht. Cambridge, Antwerp, Portland: Intersentia, 2013, pp. 557-580.
  20. Opinion of the European Economic and Social Committee [EESC] on the Proposal for a Regulation, CESE/2004/666.
  21. Agreement of the Council common position on the adoption of a Regulation of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, CS/2005/5172.
  22. Adoption of common position by the Council on 18 July 2005 with a view to the adoption of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environ- mental Matters to Community institutions and bodies, 6273/2/05, REV 2 ADD 1, note 3.2.2.
  23. The adoption by the Commission of declaration on the common position, COM (2005) 410 Final.
  24. Recommendation for Second Reading on the Council common position for adopting a regulation (Presented by the Committee on the Environment, Public Health and Food Safety), A6-0381/2005.
  25. Position of the European Parliament adopted at second reading on 18 January 2006 with a view to the adoption of a Regulation, P6_TC2- COD(2003)0242.
  26. Adoption by the Commission of the Opinion on EP amendments on second reading, COM (2006) 81 final.
  27. Report on the joint text approved by the Conciliation Committee for a Regulation (presented by the European Parliament delegation to the Conciliation Committee), A6-0230/2006.
  28. Commission Decision 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the Aarhus Convention as regards requests for the internal review of administrative acts, OJ 2008 L13/24.
  29. Request from the European Platform Against Windfarms (EPAW) and other NGOs, 8 July 2012.
  30. European Commission, 2012, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Renewable Energe: a majow player in the European energy market, COM(2012) 271 final.
  31. Reply letter from the Commission to EPAW, 21 January 2013.
  32. Court of Justice of the European Union, 2014, Order of the General Court (Second Chamber), 21 January 2014. European Platform Against Windfarms (EPAW) v European Commission. Action for annulment — Legal person governed by private law — No proof of existence in law — Article 44(5)(a) of the Rules of Procedure of the General Court — Manifest inadmissibility (Case T‑168/13).
  33. Communication ACCC/C/2013/96; “a cost ruling, the order of magnitude of which was unde- fined”; and the unpredictability of an effective remedy. Personal communication with EPAW, 8 January 2016.
  34. Reply letter from the Commission to EPAW, 7 February 2014.
  35. The Aarhus Convention: An Implementation Guide, United Nations Economic Commission for Europe, Second edition, 2014.
  36. Court of Justice of the European Union, 2013, Order of the General Court (Seventh Chamber) of 12 March 2014. Pesticide Action Network Europe (PAN Europe) v European Commission. Action for annulment — Environment — Implementing Regulation (EU) No 1143/2011 approving the active substance prochloraz — Request for internal review — Refusal — Conditions to be satisfied by an organisation in order to be entitled to make a request for internal review — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law (Case T‑192/12)
  37. Reply letter of the Commission to Greenpeace and Pan Europe, 9 March 2012.
  38. Request for an internal review (13 August 2012) of Commission Implementing Regulation (EU) No 582/2012 of 2 July 2012.
  39. The Aarhus Convention: An Implementation Guide, United Nations Economic Commission for Europe, Second edition, 2014.
  40. Court of Justice of the European Union, 2012, Judgment of the Court (Grand Chamber), 14 February 2012. Flachglas Torgau GmbH v Bundesrepublik Deutschland. Reference for a preliminary ruling from the Bundesverwaltungsgericht. Reference for a preliminary ruling — Aarhus Convention — Directive 2003/4/EC — Access to environmental information — Bodies or institutions acting in a legislative capacity — Confidentiality of the proceedings of public authorities — Condition that the confidentiality must be provided for by law (Case C‑204/09).
  41. Banner, C. (2015). The Aarhus Convention: A Guide for UK Lawyers, Bloomsbury Publishing.
  42. Court of Justice of the European Union, 2012, udgment of the Court (Fourth Chamber), 16 February 2012. Marie-Noëlle Solvay and Others v Région wallonne. Reference for a preliminary ruling from the Cour constitutionnelle (Belgium). Assessment of the effects of projects on the environment — Concept of legislative act — Force and effect of the guidance in the Aarhus Convention Implementation Guide — Consent for a project given without an appropriate assessment of its effects on the environment — Access to justice in environmental matters — Extent of the right to a review procedure — Habitats Directive — Plan or project affecting the integrity of the site — Imperative reason of overriding public interest (Case C‑182/10).
  43. European Commission, 2015, Subject: Your request of 10 December 2014 for Internal Review of Commission Decision 2014/746/EU of 27 October 2014 determining, pursuant to Directive 2003/87/EC of the European Parliament and of the Council, a list of sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage, for the period 2015 to 2019, C (2015) 1539 final.
  44. Regulation (EC) no 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ 2006 L264/13.