Legally and politically important
Not cleared from scrutiny; further information requested; draw to the attention of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee
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.
Articles 192(1) and 218(9) TFEU; QMV
Environment, Food and Rural Affairs
(38876), 10791/17, COM(2017) 366
14.1The background to the Aarhus Convention is provided in chapter 13 of a related document in this week’s Report. The Convention seeks to ensure that the public can actively participate in the protection of the environment, including by ensuring them access to environmental justice.
14.2When the EU acceded to the Convention in 2005, it notified the Aarhus bodies about the specific “institutional and legal context” of the then European Communities and the division of tasks between it and the Member States in the areas covered by the Convention. The obligations of the Convention have been implemented as regards the EU principally by Regulation No 1367/2006 (the Aarhus Regulation).
14.3On 17 March, the Convention Compliance Committee issued its findings in a complaint brought by the NGO ClientEarth concerning access to justice at EU level. The Committee held that EU Treaty rules on access to justice before the EU Courts, as interpreted by them, and access to administrative review under the Aarhus Regulation are in breach of the Convention. The details of the alleged breaches and the Complaint Committee’s findings are set out at paragraphs 14.12–14.13 below.
14.4The Commission intends to reject the findings and proposes a negative vote on the endorsement of the findings in the compliance case. If the findings are carried at that meeting, the Commission says that “they would gain the status of official interpretation of the Aarhus convention and therefore binding on the Contracting Parties and the Convention Bodies”.
14.5The Government stated in its Explanatory Memorandum that it supported the position of the Commission to reject the Complaint Committee’s findings as being outside the scope of the Convention. In the event of insufficient Member State support for that approach, the UK’s fall-back position was to back the EU in only ‘taking note’ of the findings at the Meeting of the Parties in Montenegro in September. It had no intention of supporting any EU position which formally endorsed the findings.
14.6The Council’s Press Release of 17 July states that the Council adopted a decision based on a “take note” EU position on the same day. This was a unanimous decision by Member States to support an amended proposal, including the UK as the Government now confirms in a subsequent letter.
14.7We thank the Minister (Dr Thérèse Coffey) for her Explanatory Memorandum and her advance indication of how the Government might vote on the proposal.
14.8We note that the Government has now written to explain how it supported a “take note” version of the proposal at the Council meeting of 17 July. Given that the Government was unable to seek a scrutiny waiver before our formation as a Committee, we do not take issue with the scrutiny override.
14.9We would be interested to learn to what extent, if any, the UK approach to this proposal has been influenced by the UK’s own difficulties in the past in meeting its obligations under Article 9 of the Aarhus Convention, particularly as concerns the requirement that the means of legal challenge are not “prohibitively expensive”. We refer more to these difficulties and whether UK compliance with the Convention will be affected at all by Brexit in a related chapter in this Report (chapter 13).
14.10We also note that the use of Article 218(9) TFEU as a legal basis for this proposal has been the subject of a well-known CJEU judgment: C399/12 Germany v Council—the International Wine and Vine Organisation (OIV) case. We note what the Commission says about the legally-binding nature of the Committee’s findings in international law if adopted (see paragraph 14.4 above). But we ask the Government to confirm its own independent position that it is satisfied that in the terms of the OIV judgment, the the decision that the Meeting of the Parties is either legally binding (in international law) or will produce legal effects in the EU’s internal legal order. Relying on the latter ground would be problematic, since the EU itself is proposing no remedial legislative action to address any perceived shortcomings.
14.11We retain the document under scrutiny, pending the Minister’s response, but draw the document and chapter to the attention of the Environmental Audit Committee and the Environment, Food and Rural Affairs Committee.
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: (38876), .
14.12The Committee finds that the EU’s breaches concern Article 9(3) and (4) of the Convention:
14.13In summary, the Compliance Committee finds that:
14.14The Commission rejects the findings, saying that the Compliance Committee has not understood the “peculiarities of the legal order of the Union”. It states in its Explanatory Memorandum to this proposal that:
“The specific nature of the system of judicial review is indeed carefully drafted in the EU Treaties, so that every Union citizen has access to justice. Access to judicial review of EU measures is not limited to direct actions lodged before the EU Courts but can occur also before a national court, which can – and in some circumstances must – raise a question of legality before the CJEU, which can declare the EU act or measure invalid”.
14.15It rehearses the development of the CJEU’s interpretation of Article 263(4) TFEU and the test in the Plaumann case for “individually concerned”. It notes that the Lisbon Treaty then widened the rules on standing in actions for annulment brought by private parties, by adding in paragraph (4) “and against a regulatory act which is of direct concern to them and does not entail implementing measures” with no proof of individual concern being required.
14.16The Commission points out that it is not within the gift of the EU secondary legislators (Council, EP) to amend those Treaty rules and they must respect the case law of the CJEU. The EU’s room for manoeuvre is further reduced by the fact that the Convention cannot enable a derogation from Article 263(4) TFEU because the Convention cannot have primacy over the EU Treaties as primary law.
14.17It adds that the Committee fails to recognise the important central role of the national court as EU courts when they enforce EU rights, provided in EU environmental law, based on interpretations of that law from the CJEU, often provided by preliminary rulings under Article 267 TFEU. The EU legal order represents a complete system of legal redress, with individuals who do not have standing under Article 263(4) TFEU being able to either directly address the national courts and the CJEU through preliminary reference or indirectly plead the invalidity of acts of general application before EU courts under Article 277 TFEU.
14.18The Commission also rejects the Compliance Committee’s request that the EU should grant review of acts of general scope in environmental matters because it finds no corresponding obligations in the Convention to justify that.
14.19The Commission concludes that the Committee’s findings challenge constitutional principles of EU law and conflict with EU institutional separation of powers, such that it is legally impossible for the EU to comply. The EU requested a second hearing during the compliance procedure to try to explain the special nature of the EU legal order but this request was denied. It also laments the lack of an appeals procedure to contest the findings. In the circumstances it says that the only option it has is to cast a negative vote on endorsement of the findings being sought at the Meeting of the Parties of the Convention due to take place in September 2017 in Montenegro.
14.20In her Explanatory Memorandum of 12 July 2017, the Parliamentary Under Secretary of State for the Environment and Rural Life Opportunities (Dr Therese Coffey) first rehearses the Government’s usual statement on the UK’s position on negotiating and complying with EU legislation during the UK’s remaining EU membership. She then comments on the policy implications of the proposal. She says:
“The Commission proposal identifies the following issues:
“The first calls into question the Compliance Committee findings as the Committee has failed to consider or acknowledge all the evidence (paragraph 2).
“The second concerns the opening up of the judicial review mechanism—and ultimately access to the CJEU—to an enormous pool of potential litigants, to acts that do not have any legal effects and to areas going beyond the scope of environment. This is outside the scope of the Convention.
“The third is about rejecting the Compliance Committee findings because the findings recommend the Meeting of the Parties take a course of action which is overall in clear conflict with the principles on which it approved the Convention in 2005.
“The UK continues to meet its commitments to and iterates its support for the important objectives of the Aarhus Convention. We continue to work on improving the effectiveness and efficiency of the Compliance Committee. In this context, we note the Commission’s concerns and share their view to reject the findings because they are outside the scope of the Convention. In the event that there is insufficient support for the Commission’s proposal to reject the findings, the UK’s position is for the EU to only ‘take note’ of the findings at the Meeting of the Parties in Montenegro in September as we cannot support that the EU formally endorses the findings.”
14.21On timing, the Minister says:
“On 5 July 2017 the Presidency of the EU advised that it would consider the Commission proposal at a meeting of Coreper II on 7 July and at a meeting of Coreper I on 11 July 2017. The Presidency advised the decision taken in the 11th July meeting will go forward to the EU Agriculture and Fisheries Council Meeting on 17 July 2017 for approval.”
14.22The Minister now writes as follows:
“I write to advise you that as a result of the EU Presidency’s quick timetabling to consider the Commission’s proposal for a Council Decision regarding the Aarhus Convention, I had to apply an override of the UK scrutiny reserve on this occasion.
“The Council proposal was to reject the Aarhus Convention Compliance Committee’s non-compliance findings against the EU relating to the Convention’s access to justice obligations. The European Commission considered that the Compliance Committee failed to consider or acknowledge a number of fundamental points calling into question the findings. They also considered that some of the findings opened up access to justice outside the scope of the Convention.
“The UK entered a scrutiny reserve during the first Working Group discussion on 3 July 2017. The Estonian Presidency expressed its wish to close this file before the summer recess and listed the proposal for discussion at Coreper II on 6 July and Coreper I on 11 July. During the 11 July discussion, the UK supported the Commission but there was no qualified majority. The UK then agreed to a German amendment to ‘take note’ of the Compliance Committee findings and recommend that the Party concerned ‘considers’ rather than ‘endorses’ the findings. This matter was then listed as an ‘A’ Point for agreement at the Agriculture and Fisheries Council on 17 July. I agreed to apply the override of the scrutiny reserve for the UK. The ‘A’ point was adopted without comment.”
73 (38700), 8752/17: Commission Notice on Access to Justice in Environmental Matters.
76 Germany v Council.
77 Case 25/62 Plaumann v Commission.
78 Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.
28 November 2017