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Council of the
European Union
Brussels, 25 April 2017
(OR. en)
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OPINION OF THE LEGAL SERVICE1
From:
Legal Service
To:
Working Party on International Environment Issues
Subject:
Aarhus Convention - findings of the Compliance Committee: preparation
for the MoP and next steps
DOCUMENT PARTIALLY ACCESSIBLE TO THE PUBLIC (19.04.2021)
INTRODUCTION
1. At its meeting on 22 March 2017, the Working Party on International Environment Issues
took note of a preliminary presentation by the Commission of the findings
2 of the Aarhus
Convention Compliance Committee ("ACCC") in Case ACCC/C/2008/32 ("Case C-32").
Those findings were to the effect that the Union is not fully in compliance with its obligations
under the Aarhus Convention, and in particular Article 9 thereof.
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1
This document contains legal advice protected under Article 4(2) of Regulation (EC) No 1049/2001
of the European Parliament and of the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents, and not released by the Council of the European
Union to the public. The Council reserves all its rights in law as regards any unauthorised
publication.
2
Adopted by the ACCC on 17.3.2017.
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2. For the purposes of the present opinion it is assumed that, since the findings are final subject
only to editorial revisions
3, no useful purpose would be served in disputing particular
conclusions, passages or expressions used by the ACCC. The (unverified) hypothesis is made
that they are factually correct.
DETERMINING THE UNION'S RESPONSE TO THE FINDINGS IN VIEW OF THE MoP
The status of the Aarhus Convention in the Union legal order
3. The Aarhus Convention on access to information, public participation in decision-making and
access to justice in environmental matters ("the Convention") was signed on behalf of the
Community in 1998
4. On that occasion, a declaration was made which, in so far as material
for present purposes, reads:
“[…] Fully supporting the objectives pursued by the Convention and considering that
the European Community itself is being actively involved in the protection of the
environment through a comprehensive and evolving set of legislation, it was felt
important not only to sign up to the Convention at Community level but also to cover
its own institutions, alongside national public authorities.
3
See footnote 2 of the findings:
"This text will be produced as an official United Nations document in
due course. Meanwhile editorial or minor substantive changes (that is changes that have no impact
on the findings and conclusions) may take place."
4
Although the Convention includes significant provisions relating to access to information and
participation in decision-making in the environmental field, those provisions are not relevant here.
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Within the institutional and legal context of the Community and given also the
provisions of the Treaty of Amsterdam with respect to future legislation on
transparency, the Community also declares that the Community institutions will apply
the Convention within the framework of their existing and future rules on access to
documents and other relevant rules of Community law in the field covered by the
Convention.
The Community will consider whether any further declarations will be necessary
when ratifying the Convention for the purpose of its application to Community
institutions.” (Emphasis added).
4. The Convention was approved on behalf of the Union by the Council in 2005
5. On that
occasion, a further declaration was made, in order to comply with the obligation under Article
19 of the Convention concerning the extent of Community as opposed to Member State
competence. For the purposes of the present opinion, it is worth recalling the following
extract from that declaration:
“[…] In particular, the European Community also declares that the legal
instruments in force do not cover fully the implementation of the obligations
resulting from Article 9 (3) of the Convention as they relate to administrative
and judicial procedures to challenge acts and omissions by private persons and
public authorities other than the institutions of the European Community as
covered by Article 2 (2)(d) of the Convention, and that, consequently, its Member
States are responsible for the performance of these obligations at the time of
approval of the Convention by the European Community and will remain so
unless and until the Community, in the exercise of its powers under the EC Treaty,
adopts provisions of Community law covering the implementation of those
obligations. […]”
5
See Decision 2005/370 (OJ L124/1 of 17.5.2005).
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5. Article 2(2)(d) of the Convention defines “public authority” as:
“[…]The institutions of any regional economic integration organization referred to in
article 17 which is a Party to this Convention.
This definition does not include bodies or institutions acting in a judicial or legislative
capacity;”
6. Article 9(3) and (4) of the Convention reads as follows:
"3. In addition and without prejudice to the review procedures referred to in
paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria,
if any, laid down in its national law, members of the public have access to
administrative or judicial procedures to challenge acts and omissions by private
persons and public authorities which contravene provisions of its national law
relating to the environment.
4. In addition and without prejudice to paragraph 1 above, the procedures referred to
in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies,
including injunctive relief as appropriate, and be fair, equitable, timely and not
prohibitively expensive. Decisions under this article shall be given or recorded in
writing. Decisions of courts, and whenever possible of other bodies, shall be publicly
accessible."
7. Although the Commission proposed
6 that Member States be bound by legislation adopted at
Union level to implement measures concerning access to justice, that proposal was eventually
withdrawn
7 in view of the fact that it did not find support within the Council
8. Conversely, as
regards the Union’s own institutions, the Parliament and Council adopted Regulation
1367/2006
9. That Regulation has been the subject of litigation before the Court of Justice and
was also at the heart of the substance of the ACCC’s findings. Its material provisions
therefore need to be recalled.
6
See COM(2003) 624 final, COD 2003/246.
7
The proposal was withdrawn in 2014. See OJ C153/3 of 21.5.2014.
8
See doc. 9967/05, “State of play.”
9
OJ L264/13 of 25.9.2006.
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8. Article 1 of Regulation 1367/2006, which is entitled
“Objective”, provides:
“1. The objective of this Regulation is to contribute to the implementation of the
obligations arising under the UNECE Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters,
hereinafter referred to as ‘the Aarhus Convention’, by laying down rules to apply the
provisions of the Convention to Community institutions and bodies, in particular by:
[…]
(d) granting access to justice in environmental matters at Community level under the
conditions laid down by this Regulation.”
Article 2(1)(g) provides;
“ ‘administrative act’ means any measure of individual scope under environmental
law, taken by a Community institution or body, and having legally binding and
external effects;” (Emphasis added).
9. Title IV of Regulation 1367/2006, encompassing Articles 10 to 12, is entitled
“Internal
review and access to justice”. Article 10(1) provides:
“Any non-governmental organisation
which meets the criteria set out in Article 11 is entitled to make a request for internal review
to the Community institution or body that has adopted an administrative act under
environmental law or, in case of an alleged administrative omission, should have adopted
such an act.”
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10. In its judgment in Joined Cases C-401/12P- C-403/12P
Council of the European Union
and others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht10,
the Court of Justice held that the Aarhus Convention is
not an instrument in the light of which
the legality of acts of the Union may be reviewed. This was because the obligations contained
in Article 9(3) and (4) of the Convention are not sufficiently precise and unconditional to be
of direct effect in the Union’s legal order
11 and, moreover, Regulation 1367/2006 cannot be
regarded as having been intended to implement a “particular” obligation under the
Convention within the meaning of the Court’s judgments in the
Fediol and
Nakajima cases
12.
11. On that basis, the Court of Justice upheld the appeals and set aside the judgment of the
General Court, which had held not only that the Aarhus Convention could be used to assess
the validity of Union legislation, but also that Articles 2(1)(g) and 10(1) of Regulation
1367/2006 were invalid in the light of the Convention.
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10
ECLI:EU:C:2015:4. These cases were appeals from the judgments of the General Court in Cases T-
338/08, ECLI:EU:T:2012:300, and T-396/09, ECLI:EU:T:2012:301. As explained by the note of the
Council Legal Service to Coreper (I), doc. 12664/12, the reason for bringing the appeals was not so
much to do with the Aarhus Convention in particular, but rather the
“broad questions of principle
concerning the extent to which the legality of the Union's acts may be reviewed in the light of
international conventions to which the Union is a party.”
11
See paragraph 55 of the judgment.
12
See paragraphs 56 to 61 of the judgment. The
Fediol and
Nakajima cases are further explained at
paragraphs 33-35, below, and in the aforementioned note from the Legal Service, doc. 12664/12.
The case references are, respectively, 70/87, ECLI:EU:C:1989:254, and C-69/89
ECLI:EU:C:1991:186.
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12. As regards Member States’ rules on access to justice in the field covered by the Convention,
the Court has held that, although the Convention does not have direct effect, national courts
must
“[…] interpret, to the fullest extent possible, the procedural rules relating to the
conditions to be met in order to bring administrative or judicial proceedings in accordance
with the objectives of Article 9(3) of that convention and the objective of effective judicial
protection of the rights conferred by European Union law, in order to enable an
environmental protection organisation, […] to challenge before a court a decision taken
following administrative proceedings liable to be contrary to European Union environmental
law.”13
13.
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The legal status of the MoP and the ACCC
14. Article 15 of the Convention, entitled “Review of compliance”, provides:
“The Meeting of the Parties shall establish, on a consensus basis, optional
arrangements of a non-confrontational, non-judicial and consultative nature for
reviewing compliance with the provisions of this Convention. These arrangements
shall allow for appropriate public involvement and may include the option of
considering communications from members of the public on matters related to this
Convention.”
13
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15. The ACCC was duly established by Decision I/7 adopted by the first MoP, in 2004. The
preamble to that decision begins
“[the meeting], determined to promote and improve
compliance with the convention on access to information, public participation in decision-
making and access to justice in environmental matters and recalling its article 15,” before
stating that the ACCC is established
“for the review of compliance by the Parties with their
obligations under the Convention.”
16. Section III of Decision I/7 is entitled
“Functions of the Committee”. In accordance with
paragraphs 13 and 14, which are contained in that section:
“13. The Committee shall:
(a) Consider any submission, referral or communication made in accordance with
paragraphs 15 to 24 below;
(b) Prepare, at the request of the Meeting of the Parties, a report on compliance with
or implementation of the provisions of the Convention; and
(c) Monitor, assess and facilitate the implementation of and compliance with the
reporting requirements under article 10, paragraph 2, of the Convention;
and act pursuant to paragraphs 36 and 37.
14. The Committee may examine compliance issues and make recommendations if and
as appropriate.”
17. Paragraph 37, in section XII entitled
“Consideration by the Meeting of the Parties”, provides:
“37. The Meeting of the Parties may, upon consideration of a report and any
recommendations of the Committee, decide upon appropriate measures to bring about
full compliance with the Convention. The Meeting of the Parties may, depending on
the particular question before it and taking into account the cause, degree and
frequency of the non-compliance, decide upon one or more of the following measures:
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(a) Provide advice and facilitate assistance to individual Parties regarding the
implementation of the Convention;
(b) Make recommendations to the Party concerned;
(c) Request the Party concerned to submit a strategy, including a time schedule, to the
Compliance Committee regarding the achievement of compliance with the Convention
and to report on the implementation of this strategy;
(d) In cases of communications from the public, make recommendations to the Party
concerned on specific measures to address the matter raised by the member of the
public;
(e) Issue declarations of non-compliance;
(f) Issue cautions;
(g) Suspend, in accordance with the applicable rules of international law
concerning the suspension of the operation of a treaty, the special rights and
privileges accorded to the Party concerned under the Convention;
(h) Take such other non-confrontational, non-judicial and consultative measures as
may be appropriate.” (Emphasis added).
18. In accordance with Article 11 of the Convention, each party has one vote. However, the
Union has a number of votes equal to the number of its members which are also parties to the
Convention
14. There are currently
47 parties to the Convention (including the Union).
Decision I/1, establishing the rules of procedure for the MoP, provides, in Rule 35:
“1. The Meeting of the Parties shall make every effort to reach its decisions by
consensus.
14
All Member States are parties to the Convention.
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2. If all efforts to reach consensus have been exhausted and no agreement reached,
decisions on substantive matters shall, as a last resort, be taken by a three- fourths
majority vote of the Parties present and voting, except where the Convention or rule
47 provides otherwise.
[…]
5. For the purposes of these rules, "Parties present and voting" means Parties present
and casting an affirmative or negative vote. Parties abstaining from voting shall be
considered as not voting.”
19.
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20.
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Article 218(9)TFEU
21. Article 218(9) TFEU provides:
“The Council, on a proposal from the Commission [...], shall
adopt a decision [...] establishing the positions to be adopted on the Union’s behalf in a body
set up by an agreement, when that body is called upon to adopt acts having legal effects, with
the exception of acts supplementing or amending the institutional framework of the
agreement.”
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Document Outline