Aarhus Regulation – Council adopts its position at first reading

The Council today adopted its position at first reading on an amendment to the Aarhus Regulation on access to information, public participation in decision-making and access to justice in environmental matters. The Regulation sets out how the EU and its member states implement the international Aarhus Convention. The adoption of the Council’s position follows a provisional agreement reached with the European Parliament in July 2021 and is the final step of the adoption procedure.

The Council today gave the final go ahead to the adoption of an amendment to the Aarhus Regulation. This is a positive step that reinforces the EU’s commitment to fully comply with the Aarhus Convention. The amendment will strengthen the right of members of the public to request the review of administrative acts and thereby improve their access to information, to justice and their participation in decision-making processes.

Andrej Vizjak, Slovenian Minister of the Environment and Spatial Planning

The objective of the amendment is to ensure the EU’s full compliance with the Aarhus Convention concerning the right of members of the public to request the review of non-legislative administrative acts adopted by an EU institution or body, if these acts have legal and external effects and contain provisions that may contravene environmental law.

The Council and the European Parliament agreed to:

• broaden the legal standing beyond NGOs, thus allowing other members of the public to request internal reviews of administrative acts under certain conditions. The members of the public shall either demonstrate an impairment of their rights caused by the alleged contravention of environmental law and that they are directly affected by such impairment in comparison with the public at large; or they shall demonstrate a sufficient public interest and that the request is supported by at least 4000 members of the public residing or established in at least 5 member states, with at least 250 members of the public residing or established in each of those member states. In both cases, the members of the public shall be represented by an NGO or a lawyer;
• include provisions of administrative acts requiring implementing measures at national level or at Union level into the scope of administrative acts;
• not to delete the exemption of administrative acts concerning state aid from the regulation (a compliance issue covered by a more recent case of the Aarhus Convention Compliance Committee);
• make it mandatory for the EU institutions and bodies to publish review requests and decisions thereon.

Background

The EU implements the Aarhus Convention through Regulation (EC) No 1367/2006. This regulation allows individuals and non-governmental organisations (NGOs) to launch proceedings before the European Courts against the decisions of EU institutions and bodies.

In follow-up to a complaint of an NGO in 2008, alleging a failure of the EU to comply with the Aarhus Convention on access to information, public participation in decision-making and access to justice in environment matters, the Aarhus Convention Compliance Committee concluded, in case C-32 of 2017, that the EU was in non-compliance with Article 9, paragraphs 3 and 4 of the Convention concerning access to justice by members of the public.

As a follow-up, the Council adopted in 2018 a decision requesting the Commission to submit a study on the Union’s options for addressing the findings of the Compliance Committee and, if appropriate in view of the outcomes of the study, a proposal to amend the Aarhus Regulation.

On 14 October 2020, the European Commission adopted a legislative proposal amending the Aarhus Regulation No. 1367/2006 to allow for better public scrutiny of EU acts affecting the environment. The proposed amendments aim to make it easier to request that the EU institutions review such acts to ensure better environmental protection.

The Council reached a general approach on the proposal on 17 December 2020, allowing the Council Presidency to start trilogue negotiations with the European Parliament.

On 12 July 2021, the Council reached a provisional agreement with the European Parliament on the proposal. The European Parliament adopted its position at first reading on 5 October.

Next steps

The text will now be published in the Official Journal of the European Union and shall enter into force on the twentieth day after its publication.

• Council position at first reading
• EU ambassadors endorse update to legislation on Aarhus Regulation (press release, 23 July 2021)
• Council general approach on the revision of the Aarhus Regulation (press release, 17 December 2020)
• Regulation (EU) No 1367/2006 “Aarhus regulation”
• Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32
• List of documents available regarding ACCC/C/2008/32 (UNECE)
• Aarhus Convention