Aarhus Convention—access to justice – practice note

The UK and EU ratified the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) in February 2005, and became parties to it in May 2005. Aarhus comprises three pillars:

References:

Aarhus Convention

• access to environmental information
• participation in the environmental decision-making process, and
• access to justice in environmental matters

The third pillar, access to justice, requires parties to ensure a public right to challenge environmental decisions made in breach of the first two pillars or in breach of other environmental legislation. Aarhus Article 9 requires that judicial procedures to challenge environmental decisions are 'timely and not prohibitively expensive'.

There is substantial case law in this field and the European Commission has published guidelines setting out how the public can challenge decisions, acts or omissions of public authorities before a court of law or similar body, covering legal standing, the intensity of scrutiny and the effective remedies to be provided by the national judge, and several other safeguards. The guidelines bring together all the substantial existing Court of Justice of the European Union (CJEU) case-law, making it easier for the implications to be understood by providing one comprehensive document. For more information, see: Guidelines aim to improve access to justice in EU environmental matters, LNB News 02/05/2017 93 and Q&A: Is there any case law or guidance, other than the cases of Fish v Legal and Attorney-General for the Prince of Wales v the IC, as well as guidance published by the ICO, that provides further guidance as to what constitutes ‘control’ in the definition of public authority in the Environmental Information Regulations 2004, s 2(2)(d)?

References:

Notice on access to justice in environmental matters

In 2007 and 2010, the Commission warned the UK that it is in breach of its obligations under Aarhus due to the costs of bringing proceedings challenging environmental decisions. Those warnings reflect the Commission's view that in the UK:

• legal proceedings can be prohibitively expensive, and
• the potential costs consequences of a failed challenge deters individuals and NGOs from challenging environmental decisions made by public bodies

In its March 2010 letter, the Commission also raised concerns about the requirement in the UK that applicants must give cross-undertakings in damages before interim injunctions are granted by the courts. The Commission viewed this as a serious impediment to the use of interim injunctions, limiting their use for temporarily halting operations that can have a potentially damaging impact on the environment while their legality is being assessed.

The Aarhus compliance committee

The Aarhus Compliance Committee has considered a number of complaints concerning the UK's performance in respect of access to justice.

Client Earth

In response to a communication from Client Earth regarding a licence to dispose of contaminated materials from dredging activities, the Committee found:

References:

Compliance Committee Findings: ACCC/C/2008/33

• the UK failed to ensure that costs in environmental litigation are not prohibitively expensive and neither the UK government nor the UK courts had given 'clear legally binding directions to this effect'
• the UK's litigation system as a whole did not 'remove or reduce financial…barriers to access to justice
• there was no clear minimum time limit for filing applications for judicial review and no clear date from which time starts to run
• the UK had not established a 'clear, transparent and consistent framework' to implement the relevant provisions of Aarhus Convention, Article 9

Hinton Organics

In Hinton, a communication to the compliance committee arose from proceedings in private nuisance in which the claimant sought an injunction to prohibit unpleasant odours from the neighbouring waste composting site.

References:

Morgan v Hinton Organics [2009] EWCA Civ 107

The Court of Appeal concluded that the principles of the Aarhus Convention are (at most) something for domestic judges in private law cases to consider in resolving ambiguities or in exercising their discretion.

The communicants claimed the UK had: 'failed to ensure the availability of fair, equitable, timely and not prohibitively expensive review procedures in…private nuisance proceedings'.

The Compliance Committee found

References:

Compliance Committee Findings: (ACCC/C/2008/23)

• there was no persecution, harassment or penalising in the Environment Agency seeking to recover costs from the communicants, and
• although the interim costs order made against the communicants (about £5,000) was not prohibitively expensive under para 4 of Article 9 of the Aarhus Convention, nonetheless, it was unfair and inequitable under para 4 that the communicants were required to pay all of those costs and the operator was not required to make any contribution

Accordingly, the UK was in breach of para 4 of Article 9. Although it did not form part of its conclusions, the Compliance Committee also questioned whether the UK had met its obligation under para 2 of Article 3 to ensure that officials and the authorities assisted the public in seeking access to justice in environmental matters.

Belfast City Airport

In August 2008, the Cultra Residents' Association (the communicant) submitted a communication to the Compliance Committee, claiming the UK failed to comply with Article 3 of the Aarhus Convention by making the decision to expand Belfast City Airport through a private planning agreement (ACCC/C/2008/27). This agreement was only enforceable between the contracting parties and did not allow the public any right of appeal, other than by judicial review.

The communicant also claimed a breach of its Article 9 rights when it was ordered to pay the full costs of nearly £40,000, after its application for judicial review was dismissed.

The Compliance Committee found:

References:

Compliance Committee Findings (ACCC/C/2008/27)

• It had insufficient evidence to establish a breach of Article 3, but
• the amount of costs awarded against the communicant made the application for judicial review prohibitively expensive and the manner of allocating the costs was unfair

The UK was therefore in breach of Article 9.

Environmental cost rules

On 4 August 2017, the United Nations Aarhus Compliance Committee published a report criticising the UK’s record on court access for those bringing environmental cases against the government. The Committee reprimanded the UK’s slow progress on the subject to date, and said recent law reforms had moved the UK further away from ensuring access to environmental justice as required under the Aarhus Convention.

European Union (Withdrawal) Act 2018

In January 2018, Friends of the Earth made a complaint to the Aarhus Convention Compliance Committee that the European Union (Withdrawal) Bill (as it then was) breaches the Aarhus Convention, which requires consultation on new environmental laws. The Aarhus Convention specifies that information on environment legislation must be relayed to the public ‘in a timely and transparent manner’, that the general public must have a say in the development of new laws at an early stage of their creation, and that the public should have access to justice should a party violate environmental law or convention principles. The two potential breaches identified are:

References:

European Union (Withdrawal) Act 2018

• failing to set out a consistent legal framework to allow public participation in the preparation of new environmental legislation (Article 3)
• not giving the public an opportunity to comment on the Bill before it was presented to parliament to be made into law (Article 8)

The government’s written response to the complaint was due on 5 June 2018 but was submitted late on 28 June 2018.

References:

Government response of 28 June 2018

The Committee will now decide whether the UK government is in breach of its obligations. For more information, see: LNB News 09/01/2018 107.

UK response

The UK Government does not accept that it is in breach of its obligations under Aarhus Convention, Article 9. Nonetheless, reporting on its implementation of Aarhus obligations Defra has highlighted:

• protective costs orders (PCOs)—the Ministry of Justice (MOJ) is seeking to codify the case law on PCOs into court rules. PCOs were considered by the Supreme Court in Edwards, which has sought a preliminary ruling from the European Court of Justice on the correct test to apply when determining whether costs are prohibitive

References:

Edwards v Environment Agency [2010] UKSC 57

• Jackson LJ's review of civil litigation costs—MOJ published a consultation on the key findings in November 2010. One important recommendation in Jackson LJ's review was for qualified one-way costs shifting for judicial review. This is where a losing defendant would be required to pay the claimant's costs, but if the claimant were to lose, each side would have to bear its own costs. It is 'qualified' because only some categories of claimants merit protection against liability for adverse costs
• cross-undertakings—MOJ proposes to consult on whether it would be helpful to set out in rules or guidance, the factors that the court should consider in deciding whether a cross-undertaking is necessary
• time limits—MOJ is considering the issue of time limits for judicial review proceedings and is discussing this with the judiciary and other interested parties

Separately, in August 2010 Sullivan LJ's Working Group on Access to Environmental Justice published an update to its earlier report on ensuring access to environmental justice in England and Wales. The original report called for improvements to PCOs. The update report instead:

References:

Ensuring access to environmental justice in England and Wales—update

Ensuring access to environmental justice in England and Wales—original report

• recommends qualified one-way costs shifting, and
• proposes a different formulation to the rule for qualified one-way costs shifting than that proposed by Jackson LJ's review

In October 2020 Defra launched a consultation on the content of its National Implementation Report for 2021. The report covers legislative, regulatory and other measures through which the UK implements the Aarhus Convention, and provides examples of the practical steps being taken to implement the provisions of the Convention in the UK. For more information see LNB News 06/10/2020 2.

The Stichting cases

The EU General Court held that the EU Regulations relating to access to information, public participation and access to justice are deferential to the Aarhus Convention.

References:

Stichting Natuur en Millieu v European Commission [2012] All ER (D) 34 (Jul)

Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v European Commission

Regulation (EC) 1367/2006 (the ‘Aarhus Regulation’) allows an NGO to request a review of an administrative act adopted by a community institution or body, in relation to environmental law.

References:

Regulation (EC) 1367/2006, art 10(1)

The wording of the Aarhus Regulation defines an administrative act as any measure of individual scope. In contrast, the relevant provisions in the Aarhus Convention, art 9(3), define an administrative act as any acts or omissions and thereby provide a more expansive definition.

References:

Regulation (EC) 1367/2006, art 2(1)(g)

The court accepted that the EU regulation was enacted with the purpose of transposing the Aarhus Convention into EU institutional law. The Regulations were clearly inconsistent with the Aarhus Convention. As the Convention is an international treaty to which the EU is a party, it prevailed over secondary EU legislation. In each case, the court annulled the decision not to permit a review of the Commission measures.

Commission proposal to block Aarhus Committee findings

On 3 July 2017, the Commission issued a proposal challenging the findings of the Compliance Committee in its March 2017 report, which found that the EU is failing to comply with the Aarhus Convention due to restricted opportunities for non-governmental organisations (NGOs) and members of the public to access justice at EU level. It stated that the Committee’s findings conflict with the fundamental principles of the EU legal order and of its system of judicial review and has issued a proposal that the EU block the findings of the Committee by casting a negative vote on endorsement of those findings.

References:

Proposal for a Council Decision on the position to be adopted, on behalf of the European Union, at the sixth session of the Meeting of the Parties to the Aarhus Convention regarding compliance case ACCC/C/2008/32

The EU Council of Ministers has rejected the Commission’s proposal.

For more information, see New Analysis: Commission proposal for a Council Decision on compliance with Aarhus and LNB News 19/07/2017 59.

Jackson reforms 2013

From 1 April 2013, new rules are introduced in the form of amended Civil Procedure Rules 2013, SI 2013/262.

From 1 April 2013, the Pre-Action Protocol requires that where the claim is an Aarhus Convention claim the claimant must state this on the claim form. Unless the defendant contends this, providing reasons, in the defendant’s acknowledgment of service, the claim will proceed on the basis that it is an Aarhus Convention claim.

From 1 April 2013, Aarhus Convention claims will be cost capped. Where the claimant is an individual the maximum costs order against them will be £5,000, and £10,000 in all other cases. Defendants’ costs will be capped at £35,000. It is possible for a claimant to opt out of the new rules governing costs in Aarhus Convention claims where they explicitly state this on the claim form. It is possible for the claim to still proceed on the basis that the Convention applies in other respects while excluding the rules on costs.

References:

Civil Procedure Rules 1998, SI 1998/3132, r 45.43(1)

Interim injunctions and damages can also be awarded. From 1 April 2013, changes apply to the Practice Direction on Interim Injunctions (CPR PD 25A). If the claim is an Aarhus Convention claim and the court is satisfied that an injunction is necessary to prevent significant environmental damage, the court will

• consider whether or not to require an undertaking from the applicant, and
• have regard to not making the claim prohibitively expensive for the applicant and further make sure the case is heard promptly

References:

CPR PD 25A, r 5.1B (1)

In Austin v Miller Argent (South Wales), the Court of Appeal held that a private nuisance claim which had a close link to the environmental matters regulated by the Aarhus Convention and which, if successful, would confer significant public environmental benefits was in principal capable of attracting a protective costs order. Elias LJ, giving the judgement of the court, said that the court would only be obliged to grant a protective costs order if it was satisfied that the proceedings would otherwise be prohibitively expensive and the claimant was able to rely upon provisions in either the Aarhus Convention, which was concerned with protecting the environment, or in Directive 2011/92/EU which implemented it, at least in part. Private nuisance actions were in principle capable of constituting procedures which fell within the scope of article 9.3 of the Aarhus Convention which ensured that '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'. Plainly that was not true in all actions in private nuisance. There had to be a significant public interest in the action to justify conferring special costs protection on the claimant and two requirements had to be met. First, the nature of the complaint had to have a close link with the particular environmental matters regulated by the Convention, even though the action in private nuisance did not directly raise them. Second, the claim had to, if successful, confer significant public environmental benefits.

References:

Austin v Miller Argent (South Wales) [2014] EWCA Civ 1012

However, in Venn v Secretary of State for Communities and Local Government, the Court of Appeal held that under CPR 45.41, the availability of protective costs orders for environmental cases falling within the Aarhus Convention had been deliberately limited to judicial review claims and did not extend to statutory appeals or applications. It was not appropriate for the court to exercise its discretion to grant costs protection in respect of an application to quash planning permission under the Town and Country Planning Act 1990, s 288 as that would side-step a limitation deliberately enacted in the CPR to give effect to a Convention which had not been directly incorporated into domestic law. Legislative action was necessary to remedy CPR 45.41's non-compliance with the Convention.

References:

Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539

In R (on the application of Evans) (Respondents) v Attorney General (Appellant), the Supreme Court pointed out that article 6.1 of the Aarhus Convention requires that, following a refusal by a public body of a request for environmental information, the refusal must 'be reconsidered… or reviewed administratively', that article 6.2 requires that thereafter the applicant has 'access to a review procedure before a court of law or [similar body]… whose decisions may become final', and that article 6.3 requires that 'final decisions under para 2 shall be binding on the public authority holding information'. In the light of these provisions, the Court considered that it would be impermissible for the executive to have another attempt at preventing disclosure, after a court decision, and that therefore regulation 18(6) of the Environmental Information Regulations 2004, SI 2004/3391 is incompatible with art 6 of Council Directive 2003/4/EC.

References:

Environmental Information Regulations 2004, SI 2004/3391, reg 18(6)

R (on the application of Evans) (Respondents) v Attorney General (Appellant) [2015] UKSC 21

In the case of Client Earth v European Commission, following appeal from Client Earth, it was held in September 2018 that impact assessments commissioned and used by the European Commission in its decision-making process, should be considered as public documents and cannot be hidden from public scrutiny. For more information, see: LNB News 05/09/2018 104.

References:

Client Earth v European Commission [2015] All ER (D) 254 (Jul)

In the case of ClientEarth v European Investment Bank the applicant, Client Earth, (UK) succeeded in its application for annulment of the decision of the European Investment Bank (EIB), rejecting as inadmissible the request for an internal review of the resolution of the EIB's board of directors to approve the financing of a biomass power generation plant in Galicia (Spain). The applicant had submitted that request in application of Council Regulation (EC) No 1367/2006, Article 10. The General Court of the European Union (Second Chamber, Extended Composition) held that although the EIB had not infringed its obligation to state reasons for the contested act, it had misapplied certain conditions necessary for an act to be capable of being characterised as an 'administrative act' within the meaning of art 2(1)(g) of the Aarhus Convention.

References:

ClientEarth v European Investment Bank T-9/19, [2021] All ER (D) 99 Jan

Regulation (EC) 1367/2006, art 10(1)

Costs protection in environmental claims

The MoJ consulted on costs protection in environmental claims, and in November 2016 the response was issued.

The MoJ stated that it intended to:

• extend the environmental costs protection regime (ECPR) to environmental reviews under statute engaging EU law, as well as judicial reviews
• allow a ‘hybrid’ regime so that, in appropriate cases, the financial caps can be varied
• introduce more certainty that appropriate claimants will have grants of costs protection in appropriate cases in the Court of Appeal, and inviting the Supreme Court to amend its rules to do likewise
• introduce a more of a level playing field so that defendants are not unduly discouraged from challenging a claimant’s entitlement to costs protection
• clarify certain issues, including that the ECPR can only be used by claimants who require costs protection because of EU law or the Aarhus Convention; the factors for a court to consider in ECPR cases when deciding whether to require a cross-undertaking in damages for an interim injunction; and that a separate costs cap applies to each claimant or defendant in cases with multiple parties

The Civil Procedure (Amendment) Rules 2017, SI 2017/95 amend the provisions of the CPR governing costs protection in Aarhus Convention claims and entered into force on 28 February 2017.

References:

Civil Procedure (Amendment) Rules 2017, SI 2017/95

CPR 45.41 and 45.42 now make the above costs limitations available where:

References:

CPR Part 45 Fixed Costs

• the challenge is made under section 289 of the Town and Country Planning Act 1990 (TCPA 1990) or section 65(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (although challenges by way of judicial review and pursuant to the TCPA 1990, s 288, continue to qualify) (note that the Civil Procedure (Amendment No 3) Rules 2019, SI 2019/1118 effective from 1 October 2019 extend costs protection in environmental claims to include more statutory review. For more information, see below and News Analysis: CPR changes—1 October 2019)
• the claimant is a 'member of the public'—'member of the public' is not defined, but CPR 45.41(1)(b) states that 'references to a member or members of the public are to be construed in accordance with the Aarhus Convention', which defines 'public' as 'one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups' and 'public concerned' as 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest'. This suggests that 'member of the public' is likely to be broadly interpreted
• the claimant has 'filed and served with the claim form a schedule of the claimant’s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth'
• the claimant has stated in the claim form that the claim is an Aarhus Convention claim

As before, where the above conditions are met, the claimant's costs are capped at £5,000/£10,000 with costs they can receive from the defendant capped at £35,000. However, CPR 45.44 now allows the court to vary or remove altogether those amounts if it is satisfied that:

• to do so would not make the costs of the proceedings prohibitively expensive for the claimant, and
• in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant

Proceedings are to be considered 'prohibitively expensive' for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either:

• exceed the financial resources of the claimant (having regard to any financial support provided), or
• are objectively unreasonable having regard to the situation of the parties, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant, the complexity of the relevant law and procedure, and whether the claim is frivolous

In R (Bertoncini) v London Borough of Hammersmith and Fulham, the High Court has held that interested parties can also ask that the court vary the costs cap. See News Analysis:Can interested parties apply to increase the size of an Aarhus costs cap? (R (Bertoncini) v London Borough of Hammersmith and Fulham).

References:

R (Bertoncini) v London Borough of Hammersmith and Fulham [2020] Lexis citation 270

By virtue of the Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017, SI 2017/100 which entered into force on 28 February 2017, the cost capping regime as set out in sections 88 to 90 of Criminal Justice and Courts Act 2015 does not apply to judicial review proceedings commenced on or after 28 February 2017 to which the separate costs protection regime for Aarhus Convention claims applies.

References:

Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017, SI 2017/100

In February 2017, ClientEarth, Friends of the Earth and the Royal Society for Protection of Birds (RSPB) applied for permission for judicial review to challenge the new costs rules. ClientEarth argues the new rules weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. It also believes judges will be able to increase the costs cap at any stage, making it impossible to know how much a case will cost from the start. For more information, see: LNB News 28/02/2017 135 and LNB News 21/04/2017 51.

The High Court issued its decision in September 2017. The decision provides much clarity to the way the new rules apply, particularly CPR 45.44. It is now clear that the costs cap will be set at the permission stage. This will normally be done on paper but, if a hearing is required, it will be in private. All costs involved in the litigation, including a claimant’s own legal fees, should be considered when setting the level of the costs cap. For more information, see News Analysis: Will changing the rules for environmental costs create greater transparency in costs liability? (RSPB v SoS).

References:

Royal Society for the Protection of Birds v Secretary of State for Justice [2017] EWHC 2309 (Admin)

On 13 December 2017, a note from the judicial listing office was issued which confirms that hearings relating to the costs capping arrangements for an Aarhus Convention claim, under CPR Part 45.43, will be heard in private in the first instance.

References:

Courts and Tribunals Judiciary: Aarhus Convention costs capping arrangements

The Civil Procedure (Amendment No 3) Rules 2019, SI 2019/1118 effective from 1 October 2019 extends costs protection in environmental claims to bring statutory reviews relating to national environmental law within the ECPR. This will facilitate full compliance with Article 9(3) of the Aarhus Convention. This is a technical change to amend CPR 45.42(2)(a) which defines an Aarhus Convention Claim, so that the definition includes a Statutory Review which is within the scope of Article 9(3) of the Aarhus Convention, in addition to a Judicial Review within the scope of Article 9(3)

References:

Civil Procedure (Amendment No 3) Rules 2019, SI 2019/1118

For more information, see News Analysis: CPR changes—1 October 2019.

In Campaign to Protect Rural England—Kent Branch v Secretary of State for Communities and Local Government, the Court of Appeal, in refusing permission to apply for statutory review, held that there was no limit to the number of parties to which claimants could be liable to in costs and that the court was correct not to limit further the Aarhus cap on the basis that the claim failed at the permission stage. Nevertheless, successful defendants and/or interested parties may only recover reasonable and proportionate costs. Permission to appeal was granted on 28 February 2020.

References:

Campaign to Protect Rural England—Kent Branch v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230

Costs in statutory/judicial reviews where the claim fails at the permission stage (Campaign to Protect Rural England—Kent Branch v SSCLG)

In R (on the application of Kent) v Teeside, the Administrative Court considered the position of the parties on costs pursuant to the background that pursuant to CPR 45.45(3), if the court decided that the claim was an Aarhus Convention claim then it would normally order the defendant to pay the claimant's costs on the standard basis. It held that:

References:

R (on the application of Kent) v Teeside Magistrates Court [2020] All ER (D) 89 (Feb)

• where the claimant had established that the Aarhus Convention applied, the reference to a defendant only in CPR 45.41–45.44 was not material: interested parties were not outside the provisions relating to the Aarhus cap (the point made by the interested party had been dealt with in Campaign to Protect Rural England—Kent Branch v Secretary of State for Communities and Local Government , in which the Court had held that there was no limit to the number of parties to which claimants could be liable in costs and the reference to a defendant only in CPR 45.41–45.44 was not material: interested parties were not outside the provisions relating to the Aarhus cap (see [8], [9] of the judgment)

References:

Campaign to Protect Rural England—Kent Branch v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230

Costs in statutory/judicial reviews where the claim fails at the permission stage (Campaign to Protect Rural England—Kent Branch v SSCLG)

• costs would be ordered in the claimants favour and against the interested party and
• a modest reduction would be made from the costs claimed by the claimant to reflect the fact that although the costs of legal research were not disallowed where the case was unusual, as in the present case, there was a question as to whether those costs might be excessive

In R (on the application of Friends of the Earth Ltd) V SoS for Transport, the Court of Appeal held that the capped costs of £35,000 that the respondent had been ordered to pay included VAT.

References:

R (on the application of Friends of the Earth Ltd) v Secretary of State for Transport [2021] All ER (D) 49 (Jan)

Impact assessment on implementation of Aarhus Convention

In May 2018, the European Commission launched an initiative impact assessment on the implementation of the Aarhus Convention by the EU in the area of access to justice in environmental matters. The objective of the initiative is to enable the EU to fulfil its commitment to continue to explore ways and means of compliance. For more information, see: LNB News 11/05/2018 84.

References:

Implementing the Aarhus Convention: Access to justice in environmental matters

In June 2018, following allegations by the Aarhus Convention Compliance Committee that the EU has failed to comply with requirements under the Aarhus Convention on access to justice, the European Council requested a study into the Aarhus Convention to be submitted by the European Commission, including possible review of the Aarhus Regulation. For more information, see: LNB News 19/06/2018 142.

The Council requested the Commission to submit by 30 September 2020 a proposal for amending the Aarhus Regulation, or to inform the Council on other measures.

In the European Green Deal communication, the Commission committed to ‘consider revising the Aarhus Regulation to improve access to administrative and judicial review at EU level for citizens and NGOs who have concerns about the legality of decisions with effects on the environment’ and to ‘take action to improve their access to justice before national courts in all Member States'.

On 14 October 2020, the Commission adopted, along with a communication on improving justice in environmental matters, a legislative proposal amending the Aarhus Regulation with the aim of improving the internal review of administrative acts. The proposal:

• broadens the scope of the internal review procedure to include non-legislative acts of general scope (excepting those provisions of such acts for which EU law explicitly requires implementing measures at EU or national level);
• aligns the references to environmental law with the convention’s requirements;
• extends deadlines for the internal review procedure

In December 2020, the European Council reached a general approach which proposed only a few changes to the Commission's proposal. It introduces, among others, a new recital clarifying the concept of a legally binding act, in line with the case law of the CJEU. It also clarifies that those provisions of an administrative act for which EU law explicitly requires implementing measures at EU or national level cannot be the object of a request for internal review.

The Commission requested the Aarhus Convention Compliance Committee to provide it with advice on the legislative proposal. In its advice communicated on 12 February 2021, the Compliance Committee, while welcoming the proposal as a significant positive development, suggested that the proposal be extended.

The ENVI Committee adopted its report on 23 April 2021. Amendments to the Commission proposal include the opening of the review mechanism to members of the public other than NGOs demonstrating sufficient interest or impairment of a right in accordance with the regulation. The Commission would specify by delegated act the criteria they need to fulfil. During the consideration of a request for review, third parties directly affected by the request (eg companies or public authorities) would be able to submit comments to the EU institution or body concerned. The report requires the Commission to adopt guidelines to facilitate the assessment of the compatibility of state aid with relevant provisions of EU law relating to the environment. To limit court proceedings costs, it insists that EU institutions and bodies make reasonable cost reimbursement requests when successful in litigation. The Report was adopted in May 2021.

In July 2021, MEPs reached an informal agreement with member states on amending the Aarhus Regulation. The revision of the Aarhus Regulation aims to ensure that EU administrative acts are in line with green goals. Under the agreement:

• groups of individuals consisting of at least 4000 citizens including at least 250 from each of five member states, who have specific concerns about certain administrative acts’ compatibility with environmental law, will now also be able to request a review of administrative decisions for their conformity with environmental law. Previously, this was only possible for recognised NGOs
• the costs of the review process should be limited in order to enable NGOs and groups of individuals to benefit from more affordable access to justice. To ensure this, EU institutions will only request reimbursement for reasonable costs in such proceedings
• any administrative act that contravenes EU environmental law may be subject to review, irrespective of its policy objectives
• it will become possible to request a review for any non-legislative administrative act of 'general scope'

The updated regulation aims to ensure that a formal examination of the Aarhus Regulation by the Meeting of the Parties (the Aarhus Convention’s governing body) in October 2021 will not hold the EU in violation of its obligations under international law. For further information, see: LNB News 13/07/2021 13.