The European Commission will submit a study and a proposal to reassess individuals’ right to challenge crucial decisions before EU courts.

By Rosa Espín and Leticia Sitges

The Council of the European Union (the EU) has recently issued a formal decision requesting that the European Commission submit a study to identify options for addressing identified non-compliance with the United Nations Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters dated 25 June 1998 (the Aarhus Convention). Additionally, to submit a proposal, if appropriate, to amend the current EU Regulation 1367/2006 (together, the Decision).

What is the Aarhus Convention?

The Aarhus Convention is a multilateral environmental agreement that will guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters. The three pillars of the Aarhus Convention are as follows:

  • Access to environmental information: Any citizen should have the right to get access to a wide range of environmental information easily. Public authorities must provide all the information required, and collect and disseminate this information in a timely and transparent manner. Authorities must justify any refusal of access and give information on access to the review procedure.
  • Public participation in decision-making: The public must be informed of all relevant projects and have the chance to participate during the decision-making and legislative process. Decision-makers can leverage the public’s knowledge and expertise to improve the quality of environmental decisions and outcomes, and to guarantee procedural legitimacy.
  • Access to justice: Any person who considers that his or her request for environmental information has been ignored, wrongfully refused — whether in part or in full — inadequately answered, or otherwise not dealt with in accordance with the provisions of the Aarhus Convention, has access to a review procedure before a court of law or another independent and impartial body established by law.

Access to justice under the Aarhus Convention

The EU and its Members States are fully committed to the Aarhus Convention and will therefore ensure that individuals can challenge their decisions before the EU courts. However, the EU courts have, in this regard, completely blocked access to justice for individuals. Furthermore, the EU Regulation No. 1367/2006 dated 6 September 2006 (the EU Regulation 1367/2006) — approved to implement the third pillar (access to justice) — only applies to institutions and bodies. Consequently, individuals cannot challenge, in any forum, decisions that might have a crucial impact on the environment and on human health. This includes the authorization of pesticides, chemicals, and exemptions granted to Member States to reach certain targets — for example with regard to air quality.

In March 2017, the Convention’s Compliance Committee determined that the EU had breached the Aarhus Convention’s rules by not granting sufficient access to justice for environmental organizations and members of the public. Specifically, the Committee found that neither the EU regulation 1367/2006, nor Court of Justice of the EU case law implements or complies with the obligations established under the Aarhus Convention.

The Decision

Consequently, the EU issued the Decision, according to which the European Commission will:

  • Submit by 30 September 2019 a study on the EU’s options for addressing the Convention Compliance Committee’s findings to explore ways and means to comply with the Aarhus Convention. This compliance should be compatible with the fundamental principles of the EU legal order and with its system of judicial review.
  • Submit by 30 September 2020, if appropriate, a proposal for amending current EU Regulation 1367/2006. Alternatively, to inform the EU on other required measures as a follow-up to the study and to ensure that the proposal is accompanied by an impact assessment.

In conclusion, re-evaluating access to justice under the Aarhus Convention could help individuals challenge environmental decisions, including pesticide approvals and auto emissions regulations.