Revision of the Aarhus Regulation: A collective sigh of relief

Political agreement reached on the contentious Aarhus dossier, reports Christian Doleschal

By Christian Doleschal

Christian Doleschal (DE, EPP) is Parliament’s rapporteur on the report on the application of the provisions of the Aarhus Convention

19 Jul 2021

Late last Monday night, there was a collective sigh of relief felt across all three trilogue-interlocutors: Parliament, Council and Commission. Finally, a political agreement had been reached on the contentious Aarhus dossier.

For me, as EPP rapporteur, shaping this law has been an exciting ride from the beginning. Squeezed into the tight pre-summer schedule of my colleagues from the European Parliament, the Commission and the Council, discussions evolved into bargaining in the hallways and last-minute calls requesting the approval of concessions.

But let me start from the beginning. Why was this file of such importance? And what does the trilogue agreement mean for the future?

The backstory is that both the European Union as well as all of its Member States individually are parties to the international Aarhus Convention on public participation and access to justice in environmental matters, and are thereby bound by the commitments of the Convention.

However, the Union’s corresponding secondary legislation, the 2006 Aarhus Regulation, was heavily criticised as insufficient by the environmental law charity ClientEarth.

This turn of events led to an examination of the Union’s compliance with the Convention by the Aarhus Convention Compliance Committee (ACCC) which published its recommendations for reform as far back as 2017.

"For me, as EPP rapporteur, shaping this law has been an exciting ride from the beginning. Squeezed into the tight pre-summer schedule of my colleagues from the European Parliament, the Commission and the Council"

The European Commission’s proposal for a revision of the Aarhus Regulation was only published in October 2020, which left relatively little time for the Parliament and Council as co-legislators to find common ground on what the revised law should look like, before the Meeting of the Parties of the Aarhus Convention this October.

The Meeting of the Parties is the body that will ultimately decide whether or not the trilogue agreement is capable of ensuring the Union’s compliance with its international obligations.

So what does the trilogue agreement ultimately entail? The scope of the Aarhus Regulation will be broadened in line with the ACCC recommendations, but in a way that also respects the EU treaties, the rule of law, and the carefully balanced system of checks and balances between the Union’s institutions.

One major concern from the EPP Group’s point of view, but also of the Council and the Commission, was the sensible allocation of resources for the implementation of the EU’s freshly decided Green Deal and Climate Law.

It is certainly true that the public should be able to challenge unlawful decisions relating to the environment. However, we must not forget that there is already a system in place that ensures that this is possible.

Article 267 TFEU ensures that the validity of all EU acts can be verified via the preliminary reference procedure. What is more, every individual already possesses the right under Article 263 to request the annulment of EU measures that are unlawful.

"In the end, there was agreement that we first need further insights into what the contestability of state aid decisions would entail in practice. The Commission will therefore announce its intention to conduct a thorough impact assessment and following this, examine which further steps are required"

If we install an additional, far-reaching, recourse for review under the Aarhus Regulation, there is a real risk of over-burdening the very same institutions that we expect to deliver on the important goals of the Green Deal with redundant requests for review.

In view of this, I am proud of the solution we found, which is indeed that not every single EU citizen can request an internal Aarhus-review of EU administrative acts potentially infringing environmental laws.

Applications have to be supported by 4000 individuals across at least five Member States, and they must be submitted by an NGO or a lawyer. This ensures both that the problem at the base of the request has a truly European dimension and that a satisfactorily clear reasoning is attached to the request.

What is even more important is that we refrain from overly restricting the capacity of Member States to grant state aid, a vital tool across many different sectors, but it is now more important than ever in delivering a solid recovery from the economic effects of the pandemic.

State aid is also an essential factor in the Union’s effort to reduce reliance on fossil fuels. Without state aid, there is no relief for those communities where there is an acute loss of jobs due to the obligatory transition to more sustainable forms of production and energy generation.

That is why, despite there being some discussion on this point, the trilogue agreement does not foresee that there should be any immediate changes to the fact that state aid decisions cannot be challenged under the Aarhus Regulation.

In the end, there was agreement that we first need further insights into what the contestability of state aid decisions would entail in practice. The Commission will therefore announce its intention to conduct a thorough impact assessment and following this, examine which further steps are required.

I am proud of the solution embraced by the co-legislators. It meets all of the central concerns voiced during negotiations.

There will be a broader access to justice for EU citizens, the continued effectiveness of the EU institutions is ensured, and Member States remain unencumbered in counteracting the economic repercussions of the pandemic by granting state aid where it is most needed.

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