When the EU implements Aarhus against itself, oh, how minimally it does it.
3 July 2012
On the EU watch again, I am afraid. We have looked at getting documents out of the EU, in the context of the IFAW case about the German Chancellor’s letter, via Regulation (EC) No 1049/2001 (the EU Access to Information Regulation). And also on how to seek annulment of EU laws and decisions from the EU courts (Inuits and all that). Both apply to all EU issues. We have mused on what might happen if the EU institutions sign up to the ECHR, so that complaints about them can go to the Strasbourg Court.
Now we return to environmental cases, where there is a specific measure, EU Aarhus Regulation 1367/2006, which applies the Aarhus Convention to EU institutions. We have seen how in a specific context this Regulation must be interpreted in the light of the meaning of the Convention: my post on the pesticides and air quality challenges, where the General Court of the EU effectively ignored the words “of individual scope” in the Regulation to make the Regulation comply with the Convention. But I am now going to have a look at this measure more generally. Remember we are not here dealing with getting environmental information out of member states; that question is dealt with via a separate EU Directive (2003/4), transposed in the UK by the Environmental Information Regulations 2004.
The Aarhus Convention applies to access to information, public participation in decision-making, and access to justice – the last seeks to give an applicant an opportunity to enforce its rights both judicially and administratively. The EU Aarhus Regulation says it enforces all three elements (or pillars, in Euro-speak).
Article 3 confirms that the general EU Access to Information Regulation 1049/2001 applies to environmental information, but Article 6(1) deems an overriding public interest in disclosure where the information relates to emissions into the environment (matching a similar provision applicable to member states in Directive 2003/4). An issue is whether the Commission can be required to produce letters of formal notice to member states and reasoned opinions stating that member states are in breach of their obligations under the Treaty. The Commission claim that these fall within the exclusion in 1049/2001 for “inspections, investigations and audits.” Yet they are formal documents prepared as part of the preliminary and necessary stages before infringement proceedings can be commenced against member states; indeed “reasoned opinions” are specifically required by Article 258 TFEU. Why ordinary people or NGOs cannot see the reasons given by the Commission as to why a member state is in breach of EU law escapes me. Perhaps a little member state embarrassment at an earlier stage in the procedure might not be a bad thing for EU enforcement purposes. And a similar view applies to pleadings filed in current cases, the disclosure of which supposedly would undermine the protection of the parties whilst the proceedings lasted. The truth is that the preparation of infringement proceedings is, in part, a political game, and the Commission may want to reverse out of proposed proceedings against a member state and reach an amicable settlement without having to explain themselves too closely to its citizens. This means that a citizen can only see the critical documentation if and when it actually surfaces in the CJEU. Various attempts have been made to change these rules on transparency, but recent efforts by the Danish presidency seem to have run into the sand.
One difference between the general measure and the Aarhus measure is that the latter gives anyone the right to information, unlike the former which only assists EU citizens and residents.
Article 9 of the EU Aarhus Regulation contains some rather woolly measures designed to facilitate public participation in respect of EU plans and programmes relating to the environment – but not financial or budget plans or programmes (see Article 2(1)(e)). Proposals shall be publicised, and at least 8 weeks shall be set aside for receiving comments (which may be shortened in urgent cases). The EU shall take “due account” of the outcome of the public participation.
Article 10 provides for an internal review. This right is conferred by Article 12 only on NGOs, which are independent legal persons, whose primary objective is the promotion of environmental protection in the context of environment law, which have existed for more than 2 years, and where the review sought relates to one of their objectives and activities. NGOs may institute proceedings before the Court of Justice under the Treaty in respect of such a request or in respect of an omission by the EU institution in respect of the request. But this is miserably ungenerous. If you are an NGO, you probably do not have standing to challenge the subject-matter of the internal review before the CJEU, though as addressee of the decision you may be able to make some procedural complaint about how the Commission handled your request for the review. As academics, Professors Jans and Vedder, put it at p.250 of their recent book
“In other words, the regulation might be capable to provide for administrative review, but not for judicial review…For a Union that claims to be based on the rule of law, this is clearly insufficient.”
The limitation arises because, as we have seen, it is very difficult for an individual or an NGO to challenge a decision by an EU institution under Article 263 of the Treaty, and it is almost impossible to do so where the intent is to improve environmental protection. The whole point is that standing under the Treaty is granted to only those directly affected; but we are all affected by environmental degradation, so in most cases the two concepts are mutually exclusive (see the 1998 case of Greenpeace v. Commission for an example), and it is doubtful that the law under Article 263(4) has really changed since Lisbon. Paradoxically, the more serious the environmental harm and the wider the group affected, the less likelihood that a complainant will have standing. And this is not just my solo view; the Aarhus Compliance Committee so ruled in April 2011 that
it is clear to the Committee that this jurisprudence established by the ECJ is too strict to meet the criteria of the Convention. 
The Committee has concluded in paragraph 87 that the established jurisprudence of the EU Courts prevents access to judicial review procedures of acts and omissions by EU institutions, when acting as public authorities. This jurisprudence also implies that there is no effective remedy when such acts and omissions are challenged. Thus, the Committee is convinced that if the jurisprudence of the EU Courts examined in paragraphs 76–88 were to continue, unless fully compensated for by adequate administrative review procedures, the Party concerned would also fail to comply with article 9, paragraph 4, of the Convention.
The other point about Article 10 is that it gives a right of internal review only to an NGO. The Aarhus Convention applies its scope of protection to allcomers rather than just established NGOs. So not really generous in scope.
Any change likely? The logical extension of the findings by the Aarhus Compliance Committee and by the General Court in the pesticides and air quality challenges is that Articles 9(3) and 9(4) of the Aarhus Convention require that the EU provides effective judicial review of acts or omissions relating to environmental law by EU institutions, and that therefore the EU Aarhus Regulation should be so interpreted by the CJEU. Hmm, can’t see it happening somehow.
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It’s a pleasure to read your blog posts – admirably clear and to the point.
I share your bewilderment at the Commission’s stance on information on infringements. It claims that confidential and amicable discussions are the best way to ensure that Member States bring themselves into compliance. If only we ordinary mortals had such a right when we break the law.
A case to watch is the LPN v. Commission dispute, which led to a disappointing ruling from the General Court (confirming that documents from the preliminary investigation stage can be withheld, even in environmental cases, Regulation 1367/2006 notwithstanding), but it is currently under appeal. We at Greenpeace have filed a case on the same question with the Ombudsman, arguing that the Aarhus Convention only allows information related to criminal and disciplinary proceedings to be withheld, and that infringement proceedings do not fall under those headings. No doubt this issue will go before the Aarhus Compliance Committee sooner or later.
@Daniel: As far as I know, when you are negotiating with the public prosecutor about a “transaction”, as it is euphemistically called in the Netherlands, i.e. a plea bargain, the negotiations are also confidential. The same goes for the fiscal negotiations that the Netherlands is so famous for, where “disagreements” between the tax authorities and a citizen about the correct interpretation of the tax code can be settled through a negotiation in advance. (Along the lines of “we’ll let you declare 20% of the cost of that private jet as a business expense”.) So I don’t think the confidentiality of these negotiations is that unusual.
Note that only last week the Court of Justice overruled two General Court judgements that were too generous in allowing public access to documents generated in a merger review procedure, which also falls in the “negotiations” category.
I stand corrected, although in the Netherlands we have an alternative disclosure system involving prosecutors who place their old computers under a tree. I will check the two cases you refer to, thanks!
Thanks for this. I shall keep my eyes on these cases as they rumble through the system. Is your Ombudsman filing in the public domain?
When we worked on applying the Aarhus Convention to the EU Institutions themselves, we had to go all the way to 3rd reading – to conciliation – in order to get this Regulation passed. So no, that’s not something anyone will do again if they can avoid it. (I write “we” because this Regulation was my baby when I did my stage at the Secretariat-General of the Council.)
Even the European Ombudsman doesn’t understand the Convention.
Decision of the European Ombudsman closing his inquiry into complaint 49/2011/AN against the European Commission.
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