The biter bit – EU does NOT like being criticised by Aarhus body

23 September 2017 by

ACCC Findings in ACCC/C/2008/32

Last week’s post concerned the judicial review costs system in environmental cases and its compliance with the prohibitively expensive rule Art.9(4) of the Aarhus Convention. 

Now for some more Aarhus developments which happened over the summer, this time involving the Aarhus Convention Compliance Committee (ACCC) having a pop at the narrow EU standing rules applicable to challenges to an act or omission by a EU body, and the EU not liking those findings at all.

The relevant rule in Aarhus Art.9(3) is reasonably straightforward. Members of the public must be able to challenge acts or omissions by public authorities which contravene provisions of its national law relating to the environment.

The EU  (as well as all EU states and others) is a party to Aarhus, and it has plenty of provisions relating to the environment (which count as “national” law when one is talking about the EU as a party). So if an individual or NGO wants to say that the EU is in breach of its own laws in relation to the environment, then, for the EU to be Aarhus-compliant, the EU must enable that challenge to proceed – it must not be ruled out simply because of the EU’s special rules on standing.

The ACCC’s job is to police the application of the Convention to all of its subscribing parties – see the map in my pic, with its remit going well beyond the EU.

EU rules on standing

The problem is that since early day the EU has had very narrow rules on standing in its own courts. Before touching on the opaque reasons for this, let us see their effect in two cases

  • In 2013, Inuit seal traders who wished to challenge an EU Regulation were refused standing to go to the CJEU. This regulation prohibited the placing of seal products on the EU market unless they were traditionally hunted or occasional or on a non-profit basis. But could the traders go to Luxembourg to say it was unlawful and should be annulled? Short answer – no because of restrictive rules of standing – for the detail, see my posts on the CJEU decision here and the rather more cerebral views of A-G Kokott in the same case here.
  • in a case about challenges by pesticide NGOs to maximum pesticides concentrations stipulated in a EU Regulation, no standing for the NGOs – see the judgment of the CJEU here disagreeing with initial more liberal view of EU General Court (my post on the latter here).

Further back in time, but no less relevant, a challenge was brought by a company which converted catering waste for pig feed. They sought an annulment of the ban on kitchen waste for farm animal food under the Animal By-Products Regulation. Again, the applicants were prevented from arguing their case for lack of standing. See the CJEU decision here and Rosalind English’s post here.

For a bit more burrowing down into the detail of recent cases outside the environmental field, and the intricacies of the EU Treaties, see the excellent post by Michael Rhimes on our blog here.

The CJEU says that the answer is to be found in the Treaties and the EU’s legal order. The Treaties have changed a bit over the years, but to no overriding effect. The critical question is how the ECJ/CJEU has conceived of standing ever since the key decision of Plaumann in the 1960s – answer, restrictively.

  • “individual” concern means that the person is affected “by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision.”

Any clearer? Shorn of the verbiage, this makes it almost impossible for an NGO to complain that an environmental measure is unlawful.

ACCC findings: March 2017

So where does the ACCC come in?

In 2008, ClientEarth and others complained to the ACCC about these standing rules, given as we have seen they particularly affect the ability of environmental NGOs to go to court in Europe. A company who loses out in a competition fight who wants to challenge some EU decision does not seem to face the same hurdles, as the NGOs were not slow to point out. One rule for business, another for the environment.

The ACCC initial findings in 2011 (here) were critical of the EU, but at that stage the NGO pesticide case was rumbling through, so the ACCC decided to stay its hand until that had been decided, in case the CJEU decided to modify its previous hard line on standing.

The CJEU’s answer in the pesticide case was peculiarly short and unconvincing (despite the fact that it was disagreeing with the General Court).

So the matter went back to the ACCC who adopted the critical findings which head this post – here. This is a masterly hatchet job on the CJEU’s inadequacies of reasoning, and is a must-read for anyone tangling with the EU rules of standing.

The bottom line is that, put it how you will, the standing rules do not accord with the requirement in Art. 9(3) that members of the public may challenge acts or omissions by EU institutions – not just in the way that EU rules allow, but generally. The same applies for the internal rules of standing applicable under Art.10 of the EU’s own Aarhus Regulations: Regs here.

The most withering passage comes at paras.82-83 of the findings: the ACCC cited a bit of the CJEU’s own words in the Slovak Bears case, addressed at a member state’s compliance with Aarhus:

49      Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law

50      It follows that…. it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.

The ACCC then added

The Committee regrets that despite its finding with respect of the national courts, the CJEU does not consider itself bound by this principle.

the principle that it must not be practically impossible or excessively difficult for an NGO to bring a challenge.

Game, set and match, you might have thought.

These findings were then listed for ratification at the next Aarhus Meeting of the Parties scheduled for September 2017.

EU not happy

EU dovecotes were mightily rattled by this, and enter the Commission publicly on a very high horse indeed.

In June 2017 it wrote a proposal here  to the EU Council, inviting the Council to say NON to these findings at the next Aarhus meeting of the parties. The proposal is a marvellously patronising piece of work. ACCC has been made aware of the “peculiarities of the legal order of the Union” which offers a” complete system of means of redress.” It was not possible due to the separation of powers for the EU to adopt findings; it was legally impossible to follow and comply. The ACCC findings do not recognise the EU’s “special legal order”.

In short, and stripped of the rhetoric, that is not how we do things in the EU institutions, and we have no intention of changing the way we do it just because someone tells us we are in breach of our own treaty obligations.

But just because it may well be “a special legal order” it does not make it adequate when judged against Art.9(3).

This refusal to accept the recommendations of an international body drew forth a swift letter from ClientEarth, the EEB and others to all EU environment ministers – 4th July 2017 here – as they put it, behind the argumentation and spin here is a bureaucratic institution putting its own interest above the Europe public.

Happily, the Council did not follow the Commission’s lead and came up with a very anodyne decision on 17 July accepting the ACCC decision with some minor edits.

Hence, the draft recommendations which were put before the Aarhus Meeting of the Parties in Montenegro said – could do better. Lets have your proposals for remedying these problems. In particular, in carefully chosen words

7(a) All relevant European Union institutions within their competences take the steps necessary to provide the public concerned with access to justice in environmental matters in accordance with article 9, paragraphs 3 and 4, of the Convention;

This skewers the point that a party to a treaty can’t just blame another domestic institution for a breach of the treaty – all pretty trite stuff, and which the EU Commission use every day of the week when they bring  infraction proceedings against member states.

The Montenegro MoP happened this month, by the sea in Budvar. The Parties seem to have decided that EU things should be put on hold – here

In the spirit of reaching the consensus, considering exceptional circumstances, the Meeting of the Parties decided by consensus to postpone the decision-making on draft decision VI/8f concerning the European Union to the next ordinary session of the Meeting of the Parties to be held in 2021. The European Union recalled its willingness to continue exploring ways and means to comply with the Convention in a way that is compatible with the fundamental principles of the Union legal order and with its system of judicial review.

So the ACCC findings remain, albeit not formally adopted by the MoP, and it remains for the EU to come up with some amendment to its own legal order to put it into compliance. Pity about the long grass, though.


Do not misunderstand this post as the blast of a cross Brexiteer. I am far from that, not least because of the powerful and broadly beneficent contributions of EU law to our domestic environmental law over the last 40 years. And I have also been going on about the disjunction between the way in which the EU applies Aarhus to its member states versus itself for many a year.

But the rather dispiriting thing about this episode is the apparent lack of self-awareness by the Commission as to how it comes across to the outside world when others ask difficult questions. Perhaps the more emollient view of the Council, and the agreement to think things over, might point towards a Commission engagement with the real issues.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. Pat Swords says:

    The link below provides and account from somebody, who was actually there and played a role in the first part of the draft decision above to be adopted against the EU, a continuation of Decision V/9g from the previous UNECE Meeting of the Parties:

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: