Explanatory Memorandum to COM(2021)532 - EU position at the seventh session of the Meeting of the Parties to the Aarhus Convention regarding compliance cases ACCC/C/2008/32 and ACCC/C/2015/128 - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)532 - EU position at the seventh session of the Meeting of the Parties to the Aarhus Convention regarding compliance cases ... |
|---|---|
| source | COM(2021)532  |
| date | 03-09-2021 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the seventh Meeting of the Parties to the Aarhus Convention in connection with the envisaged adoption of Decision VII.8f concerning compliance by the European Union with its obligations under the Convention
2. Context of the proposal
2.1.The Aarhus Convention
The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention") 1 is a multilateral environmental agreement concluded under the aegis of the United Nations Economic Commission for Europe (UNECE).
The Aarhus Convention was approved on 17 February 2005 2 by the European Community, which also made a Declaration upon signature 3 . All Member States are Parties to the Agreement. Regulation (EC) No 1367/2006 ("the Aarhus Regulation") contributes to the implementation of the Convention with regard to the EU institutions and bodies 4 .
2.2.The Aarhus Convention
The contracting Parties to the Aarhus Convention meet every four years and one of the standing items on the agenda concerns Parties’ compliance with the Convention. Compliance is assessed by the Compliance Committee established under the Convention according to its Article 15. The findings of the Compliance Committee are final.
The Committee's findings are submitted for endorsement to the Meeting of the Parties to the Aarhus Convention according to Rule 37 of Decision I/7 on review of compliance 5 . If endorsed, they would gain the status of official interpretation of the Aarhus Convention, therefore binding upon the Contracting Parties and the Convention Bodies.
The Meeting of the Parties generally decides by consensus. If all efforts to reach consensus have been exhausted, decisions on substantive matters are taken by a three-fourth majority vote of the Parties present and voting 6 . The EU has 27 votes of the overall 46 votes if all Parties are present.
Prior to the Meeting of the Parties EU positions are established in the Council Working Party on International Environmental Issues.
2.3.The envisaged act of the Aarhus Convention
On 18 – 20 October 2021, during its seventh session, the Meeting of the Parties to the Aarhus Convention is to adopt Decision VII.8f regarding compliance by the European Union with the Convention (‘the envisaged act’).
The purpose of the envisaged act is to determine whether the European Union is in compliance regarding notably cases ACCC/C/2008/32 and ACCC/C/2015/128 and set out the conditions necessary to ensure compliance and possibly incur regular reporting obligations and a request to the Party concerned to take urgent measures to ensure compliance.
3. Position to be taken on the Union's behalf
On 17 March 2017, the Committee issued findings in case ACCC/C/2008/32, brought by the non-governmental organisation (NGO) ClientEarth, regarding access to justice at EU level. 7 The Committee held that the Treaty rules on access to justice before the EU Courts, as interpreted by them, and the criteria for access to administrative review under the Aarhus Regulation are in breach of the Convention.
In a separate compliance case, ACCC/C/2015/128, 8 whose findings were delivered on 17 March 2021, the Committee found that the EU was in breach of the Convention because of the failure to provide access to administrative or judicial procedures for members of the public to challenge decisions on state aid measures taken by the European Commission.
On 14 October 2020, the Commission adopted a proposal to amend the Aarhus Regulation 9 and a communication on Access to Justice 10 in response to the Committee’s findings in case ACCC/C/2008/32. This was a response to the call by Council 11 on the Commission to table a legislative proposal and the Commission’s commitments made in the European Green Deal Communication.
As a final result of the legislative process, a political agreement in trilogue was reached on 12 July 2021 that addressed all of the Compliance Committee’s concerns in case ACCC/C/2008/32.
Case ACCC/C/2015/128 concerns state aid exceptions under the Aarhus Regulation, which was not part of the Commission’s legislative proposal recalled above. However, at the trilogue of 12 July 2021, the Commission issued a statement as part of the compromise leading to the adoption of the revised Aarhus Regulation, in which it committed to assess the findings in this case and publish the outcome by the end of 2022. The Commission also stated that by the end of 2023, if appropriate, it will come forward with measures to address the issue, in light of the obligations of the EU and its Member States under the Aarhus Convention and taking into account the rules of Union law concerning state aid.
The present initiative concerns a draft Council Decision covering these two cases; accordingly, the EU can express a united position at the Meeting of the Parties on 18 – 20 October 2021.
On case ACCC/C/2008/32, the EU expects that the Meeting of the Parties will agree that the EU’s measures, once they will be adopted and will have entered into force, will ensure compliance with the Aarhus Convention. Since the draft MOP Decision has been prepared before the legislative procedure on the Aarhus Regulation was formally concluded, it may be necessary that the EU will need to request that the draft MOP Decision is updated to fully reflect this very significant development in the EU.
On the state aid-related case, the EU will accept a decision acknowledging, but not endorsing, the findings and will revert to the matter at the next Meeting of the Parties, expected in 2025, while reporting to the Convention by the deadlines set forth in the Commission’s Statement.
In view of the above considerations, at the upcoming seventh session of the Meeting of the Parties the EU should accept the findings in case ACCC/C/2008/32, subject to the provisions of this draft Council decision. Further, the EU should acknowledge the findings in case ACCC/C/2015/128 but request the postponement of the endorsement of these findings to the eight session of the Meeting of the Parties.
In addition, it is also essential that the Convention acknowledges the central role of EU national courts as ordinary courts of EU law, 12 and recognise the system of preliminary rulings under Article 267 TFEU as a valid means of access to justice and redress in environmental matters. This should be reflected in the text of the decision adopted at the MOP.
4. Legal basis
4.1.Procedural legal basis
Contents
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 13 .
The Aarhus Convention is a body set up by an agreement under the auspices of the United Nations Economic Commission for Europe.
The act which the Meeting of the Parties is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 15 of the Aarhus Convention and the provisions of decision I/7 on the review of compliance, in particular, its Rule 37 14 .
In turn, the envisaged act does not supplement or amend the institutional framework of the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2.Substantive legal basis
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf.
The main objective and content of the envisaged act relate to environmental policy.
Therefore, the substantive legal basis of the proposed decision is Article 192(1).
4.3.Conclusion
The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with Article 218(9) TFEU.