This update is published every second month. It reports on Aarhus-related developments at EU-level. Contributions from all sides – public authorities, NGOs, private persons – are welcome as they help ensure greater transparency.

This update covers the period from 1st May - 30th June 2012 - please note amended date (previously read 1st May - 26th July).

In case T-338/08, the NGO Applicants made a request pursuant to Article 10 of Regulation 1367/2006 to the Commission to review Regulation 149/2008 setting maximum residue levels for certain products1.

In case T-396/09, the NGOs asked the Commission to review the decision granting the Kingdom of the Netherlands a temporary exemption from the obligations laid down by Directive 2008/50/EC on ambient air quality and cleaner air for Europe2.

In both cases, the Commission considered the requests inadmissible as the concerned acts were not "administrative acts" as defined in Article 2(1)(g) of Regulation 1367/2006 because they were not of individual scope.

In both cases, the Court expressly considered that because Article 10(1) of Regulation 1367/2006 limits the concept of “acts” that can be challenged by NGOs to “administrative acts” defined in Article 2(1)(g) of the Regulation as “measures of individual scope”, it is not compatible with Article 9(3) of the Convention. The Court held that ".. Article 9(3) of the Aarhus Convention cannot be construed as referring only to measures of individual scope"3.

The Court also considered in case T-338/08 that acts adopted by the Commission in the exercise of its implementing powers (conferred on the Commission by Council Decision 1999/468/EC of June 1999) were not legislative acts and could thus be challenged under the Regulation4. That is an important clarification as the Commission was arguing that the act in question was a legislative act.

However, in neither of the decisions did the Court examine the substance of the cases. That is the lawfulness of the decisions, the review of which was requested. It only annuls the Commission's decisions about the inadmissibility of the requests made under Article 10 of Regulation 1367/2006. The decisions do not therefore bring any changes in the case law of the Court or any clarifications on the NGOs' right of standing to challenge EU institutions' decisions before the Courts.

Paradoxically, in both cases the Court refers to case C-240/095 with regard to EU institutions. In case C-240/09, the Court considered that Article 9(3) of the Convention had to be interpreted by national courts and authorities in a way to provide legal standing to environmental NGOs. This could be interpreted as meaning that the Court considers that standing should be provided to NGOs before the EU courts.

However, this is far from being clear, on the contrary, as the Court states in both cases that the provision of Article (ex) 230(4) (new 263(4) TFEU) still needs to be complied with. It implies either that the NGO be individually and directly concerned or only directly concerned by the acts they want to challenge depending on whether the act is a regulatory act or not. The risk here is therefore that the Courts reassert their case-law on the interpretation of the individual concern criteria adopted in the Plauman case and still bar all access to the Courts to NGOs.
Additionally, if the Courts stick to the recent case-law on the interpretation of the “direct concern” criteria, it is very doubtful that NGOs will have standing.

The Commission decided to appeal the decisions of the General Court before the Court of Justice (see below the press release from ClientEarth and the EEB). We will therefore have to wait for a few years to know whether the EU is willing to adopt the right measures to bring EU law in line with the Aarhus Convention and to allow its citizens to challenge decisions of EU institutions before courts of law as would a democratic union.

Read the press release from ClientEarth and the EEB here.

 

1. Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes UU, III and IV setting maximum residue levels for products covered by Annex I thereto (OJ 2008 L 58, p.1).

2. Decision C(2009) 2560 final of 9 April 2009 granting the Kingdom of the Netherlands a temporary exemption from the obligations laid down by Directive 2008/50/EC on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p.1).

3. Case T-338/08, paras 71-79, case T-396/09, paras 58-59.

4. Case T-338/08, para 65.

5. Case C-240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, judgment of 8 March 2011.

 

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Judgment of 4 May 2012 in case T-529/09
Sophie in ‘t Veld v. Council

The applicant is a member of the European Parliament. She wanted to have access to the opinion of the Council’s legal service concerning a recommendation from the Commission to authorise the opening of negotiations between the EU and USA. The Council refused access, arguing that disclosure would weaken the Union’s negotiating position. Furthermore, disclosure would undermine the protection of legal advice, since it would make known to the public an internal opinion of the legal service, intended only for the members of the Council. The Council saw no overriding public interest in disclosure.

The General Court held that the exception “public interest in the field of international negotiations” in Regulation 1049/2001, Article 4 could only be invoked, where the specific content of the envisaged agreement were discussed. For the rest – the legal basis of the future agreement – the document had to be disclosed.

The General Court confirmed the jurisdiction of the Turco-case (C-52/05P). It accepted that when negotiating an international agreement, the Council does not act in a legislative capacity. Nevertheless, it considered that the Council did “not invoke any specific argument to justify derogation from that finding [the Turco-case] in the present case” (paragraph 77), and argued in detail on this aspect.

 

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Judgment of 24 May 2012 in case C-366/11 Commission v. Belgium

The case concerned water legislation. Belgium had not adopted, within the period foreseen by Directive 2000/60, river basin management plans for all river basins on its territory. The Court found that this constituted an infringement of the obligations under Articles 13 and 15 of Directive 2000/60. Furthermore, the Directive requires in Article 14(1)(c) that draft river management plans must be made available to the public at least one year before the beginning of the period to which the plan refers. On request, also background documents and information shall be made available. The public must have at least six months at its disposal for submitting written comments.

Belgium had not informed the public of such draft plans, and the Court found thus also a breach of Article 14(1)(c) of Directive 2000/60.

 

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Judgment of 21 June 2012 in case C-135/11P IFAW v. Commission

Airbus company wanted to build a private airport in a Natura 2000 area close to Hamburg (“Mühlenberger Loch”). The Commission gave a positive opinion on the project, based on Article 6(4) of Directive 92/43. IFAW is an environmental organisation. It wanted to have access to a number of documents which the Commission had received from the German authorities, in particular to a letter which the then German Chancellor Schröder had written in 2001, to the President of the Commission. The Commission granted access to some documents, but refused access to the Schröder-letter. This decision was upheld by a judgment of the General Court (T-168/02), but annulled on appeal by the Court of Justice (C-64/05).

IFAW repeated its request to have access to the Schröder-letter in February 2008. The Commission refused access in June 2008, because the German authorities had not agreed to the disclosure (Article 4(5) of Regulation 1049/2001). That decision was upheld by the General Court (T-362/08 of 13 January 2011). IFAW appealed against that decision in the present case.
The Court of Justice found that the General Court should have consulted the Schröder-letter and that, without such consultation, the General Court was not in a position to assess, whether access to the document could validly be refused by the German authorities. It thus set aside the judgment of the General Court and sent the case back for a new decision.

It is bitter to see that a document which is eleven years old, has still not been disclosed and that four judgments of the EU courts did not change this situation. Of course, the airport exists in the meantime.

 

 

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Resolution of 14 June 2012 on public consultations and their availability in all EU languages (P7-256(2012))

"1. ...whereas the Commission has proposed designating 2013 as the European Year of Citizens, in order to raise people’s awareness of the benefits and rights afforded by EU citizens and stimulate their active participation in Union policy-making

2. urges the Commission to ensure that every EU citizen's right to address the EU institutions in any of the EU official languages is fully respected and implemented by ensuring that public consultation is available in all EU official languages, that all consultations are treated equally and that there is no language-based discrimination between consultations;

3. asks the Commission to ensure that all consultations are understandable to ordinary citizens and are carried out over a sufficiently long period of time to allow for increased participation.”

In 2006 27 citizens complained to the Commission that work concerning the extension of the Vienna airport had not complied with the requirements of EU environmental law. The Commission examined the issue and concluded that the relevant works had been carried out without the obligatory environmental impact assessment. It then agreed with the Austrian authorities that an ex-post environmental impact assessment would be made.

In 2008 the complainants again turned to the Ombudsman, arguing that the authority in charge of the impact procedure was the same authority that had granted permits for the works to be carried out and that there was thus an obvious conflict of interest. Furthermore, the complainants argued that they were not given the opportunity to participate in the environmental impact procedure. The Ombudsman examined the case. The Commission informed him that it would only close the infringement case against Austria when it was satisfied that the Austrian authorities had taken the necessary steps. The Ombudsman then closed the case.

In November 2010 the complainants turned to the Ombudsman again. The Ombudsman opened another inquiry and found that the files did not contain any significant correspondence between the Commission and the Austrian authorities during the period, when the ex-post assessment was carried out; in particular, the representations of the complainants had not been discussed with the Austrian authorities, and the Ombudsman’s own findings had not been discussed either. The Ombudsman made a draft recommendation, urging the Commission to reconsider its position. That draft recommendation was not successful.

The Ombudsman concludes in its present report “that the present case constitutes a deplorable example of a situation where the Commission (i) failed to take appropriate remedial action in relation to a clear infringement of EU law in an important case and (ii) chose to ignore the Ombudsman’s advice”.

The Court of Justice found that ex-post environmental impact assessments are not legal (case C-215/06 Commission v. Ireland). All the more is it frustrating that such a procedure is accepted by the Commission and that then the conditions linked to this acceptance are neither monitored by the Commission nor respected by the operators.

 

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