ÖKOBÜRO - Allianz der Umweltbewegung
ÖKOBÜRO
ÖKOBÜRO kämpft als von Staat, Parteien und Unternehmen unabhängige Allianz für die Rechte der Umweltbewegung.
ID: 750667832077-61
Lobbying Activity
Response to Access to Justice in Environmental matters
3 Apr 2020
ÖKOBÜRO–Alliance of the Austrian Environmental Movement welcome the initiative to amend the Aarhus Regulation (EC) 1367/2006 to fully implement the Aarhus Convention, particularly its Article 9(3) and to tackled the findings of the Aarhus Convention Compliance Committee (ACCC) in case ACCC/C/2008/32. We consider the following points to be of particular importance:
1.) Broaden scope of applicability to all administrative acts relating to the environment
Article 2(1)(g) of the Regulation defines administrative acts as “measures of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects”. Cases, including the one mentioned in the discussed roadmap (ACCC/C/20008/32) show that not only decisions taken “under environmental law” may in fact relate to the environment. The Regulation should have a broader approach, following the wording of Article 9(3) Aarhus Convention.
The ACCC has noted that it is not sufficient to grant access to justice only against measures of individual scope, since acts adopted in the field of the environment are mostly acts of general application. In this regard, we would like to note that implementing measures addressed to Member States or decisions relating to the use of certain substances must also be subject to requests for internal revision under the Regulation. The Regulation should thus also be applicable to all acts of general application other than legislative acts.
Further, according to the ACCC, acts that do not have “legally binding and external effects” should also be open to review. For example, Article 9(3) Aarhus Convention may also be applicable to guidelines, Commission’s proposals and internal decisions with possible external effects. Therefore, the wording of the Regulation must be adapted accordingly.
2.) Limit exceptions from scope of applicability of the Regulation
Article 2 (2) of the Regulation excludes measures taken or omissions by an “institution or body in its capacity as an administrative review body” and lists certain acts and administrative decisions to be exempted from the right to review procedures. This, inter alia, includes “competition rules”, e.g. decisions on state aid. As demonstrated in case ACCC/C/20008/32 or ACCC/C/2015/128 such decisions, may well implement or analyse environmental law. Moreover, permitting state aid can have profound environmental effects and set a precedent for a general regime in the EU on certain issues such as climate protection or nuclear energy. The EU should thus not exclude the application of the Regulation in decisions on state aid law. Nor should it exclude decisions taken in an institution’s capacity as an administrative review body from the application.
3.) Open review mechanism to all members of the public
According to the Aarhus Convention’s definition of “members of the public”, the Aarhus Regulation should include other members of the public apart from NGOs meeting the relevant criteria, especially individuals. In this regard, we would again like to refer to the ACCC’s findings in case ACCC/C/20008/32 (especially para 80 thereof): Although the Convention does not prevent parties from applying general criteria of a legal interest or of demonstrating a “direct or individual concern”, the application of these criteria “does not lead to effectively barring all or almost all members of the public from challenging acts and omissions”. Thus it is not acceptable that, to be individually concerned, the legal situation of the person must be affected because of a factual situation that differentiates him or her from all other persons. Individuals can well be individually concerned if a decision affects them due to an objective legal or factual situation.
ÖKOBÜRO would highly be in favour of public consultation on the Commission’s proposed text for an amendment to the Regulation and the outcome, the outcome to which should also be presented to the Council and the EP.
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