The EU institutions need to engage with members of the public if the European Green Deal 1 is to succeed and deliver lasting change. The public is and should remain a driving force of the transition and should have the means to get actively involved in developing and implementing new policies.

Engaging with the public means not only engaging with individuals but also engaging with civil society. Across Europe, environmental non-governmental organisations (NGOs) play a crucial advocacy role for the environment. This implies that, under certain conditions, they should have the right to seek the review of decisions taken by public authorities on the grounds that these contravene environmental laws.

As Advocate General Sharpston said, ‘the natural environment belongs to us all and its protection is our collective responsibility. The Court has recognised that the rules of EU environmental law, for the most part, address the public interest and not merely the protection of the interests of individuals as such. Neither water nor the fish swimming in it can go to court. Trees likewise have no legal standing’. 2

When carried out by the public administration, the review is called an 'administrative review'. When carried out by a court, it is called a 'judicial review'.

The objective of the proposal is to revise the administrative review mechanism created in 2006 for the benefit of NGOs with regard to administrative acts and omissions of EU institutions and bodies. The mechanism is found in Regulation 1367/2006, known as the Aarhus Regulation (the Regulation) 3 .

The proposal aims to improve the implementation of the Aarhus Convention 4 following the adoption of the Lisbon Treaty and to address the concerns expressed by the Aarhus Convention Compliance Committee (the Committee) regarding the EU’s compliance with its international obligations under the Convention. It aims to do so in a way that is compatible with the fundamental principles of the EU legal order and with its system of judicial review. The amendment of the Regulation is called for by the European Parliament and the Council and was anticipated by the Commission in its Communication on the European Green Deal, as detailed in section 1.A.II below.

The proposal broadens the possibilities currently available to NGOs to seek administrative review. Whereas currently an administrative review can only be requested for acts of ‘individual scope’ (acts which are directly addressed to a person or where the person affected can be distinguished individually), in the future NGOs will also be able to request review of administrative acts of ‘general scope’.

The proposal also aims to change the references to environmental law: while currently the administrative acts subject to review needs to contribute to the pursuit of environmental policy objectives, it is proposed that, in the future, any administrative act that contravenes EU environmental law may be subject to review, irrespective of its policy objectives.

Finally, it is proposed to extend the time frames for requests and replies, in order to improve the quality of the administrative review process.

As the CJEU recalled in landmark judgments concerning the relevance of the Aarhus Convention in the EU legal order, judicial and administrative procedures concerning access to justice in environmental law currently fall ‘primarily’ within the scope of national law. 5 Therefore, any improvement in the access to administrative and judicial review at EU level is complementary to the proper functioning of access to justice in EU environmental matters in the national courts of the Member States.

In particular, national courts are under an obligation to grant access to justice in environmental matters under Articles 9(2) and 9(3) of the Convention, also when implementing EU environmental law.

Where implementing measures of an administrative act adopted by an EU institution or body should exist at national level, the NGOs concerned should first seek redress before the competent national court of the Member State which has adopted the measure. They then have subsequent access to the CJEU under the preliminary reference procedure under Article 267 TFEU. This procedure can also concern the validity of acts of the EU institutions.

Therefore, the Commission puts forward this legislative proposal as part of a wider effort to improve access to justice in environmental matters. The role of the Member States and national courts will be outlined in an accompanying Communication 6 .

The EU adopted the Regulation in order to contribute to the implementation of the obligations arising from the Convention. The EU formally became a Party to the Convention in 2005 7 .

Article 9(3) of the Convention states that each Party to the Convention must ensure that 'where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.' In the EU context, national law means EU law and members of the public include NGOs.

The Regulation made it possible for NGOs to request EU institutions and bodies to review certain decisions – acts of individual scope – adopted under environmental law. However, the Convention does not distinguish between acts of individual scope and acts of general scope in its Article 9(3).

The Committee, set up to review the Parties' compliance with the Convention, found that the EU does not fully comply with its obligations under the Convention's requirements on access to justice in environmental matters (case ACCC/C/2008/32 8 ).

More specifically, the Committee considered that: (i) the Regulation should also encompass general acts and not only acts of individual scope; (ii) that every administrative act that is simply ‘relating’ to the environment should be challengeable, not only acts that fall ‘under’ environmental law; (iii) that the administrative review mechanism should be opened up beyond NGOs to other members of the public; and (iv) that acts that do not have legally binding and external effects should also be open to review.

In September 2017, at the most recent Meeting of the Parties to the Convention, the EU declared that it will 'continue to explore ways and means to comply with the Aarhus Convention in a way that is compatible with the fundamental principles of the Union legal order and with its system of judicial review, taking into account concerns expressed within the Convention' (the Budva Declaration).

The case will be discussed again at the next Meeting of the Parties to the Convention in October 2021.

In 2018, in its Decision (EU) 2018/881 9 , the Council requested that the Commission submit the following, based on Article 241 of the Treaty on the Functioning of the European Union (TFEU):

On 10 October 2019, the Commission published a detailed external study 10 on the functioning of access to justice in environmental matters in relation to acts and omissions of EU institutions and bodies, as well as the options for improving the current situation. This included a detailed examination of the administrative reviews carried out by the Commission under the Regulation. Based on this study, the Commission services reported on the EU's implementation of the Convention in the area of access to justice in environmental matters (the Report) 11 . Both the study and the Report took account of the Committee's findings but were broader in scope; both addressed the findings in the context of the fundamental principles of the EU legal order and its system of judicial review, in line with the Budva Declaration, and in the context of the rights enshrined in the Charter of Fundamental Rights of the European Union (the Charter).

In the Communication on the European Green Deal, which followed on 11 December 2019, the Commission committed to 'consider revising the Aarhus Regulation to improve access to administrative and judicial review at EU level for citizens and NGOs who have concerns about the legality of decisions with effects on the environment' and to 'take action to improve their access to justice before national courts in all Member States'.

The European Parliament, in its resolution of 15 January 2020 on the European Green Deal 12 , reiterated that ‘it is essential to guarantee EU citizens the genuine access to justice and documents enshrined in the Aarhus Convention’; called on the Commission to ‘ensure that the EU is complying with the Convention’ and welcomed the Commission’s consideration of revising the Regulation.

With regard to the Committee's first two findings, based on analytical work and taking into account the changes introduced by the Lisbon Treaty in Article 263 TFEU, the Report identified two shortcomings in the Regulation that are now proposed to be remedied by way of legislative action:

In addition, the Report found that there was scope for improvements as regards the time-frames for administrative review set out in the Regulation. In particular, it noted that the 12 weeks available for the EU institutions and bodies to respond to a request for administrative review, have proven to be too short and difficult to respect. 13

The Commission proposes to broaden the definition of an ‘administrative act’ in order to make it possible for NGOs to request an administrative review of any non-legislative act adopted by an EU institution or body, which has legally binding and external effects and contains provisions that may, because of their effects, contravene environmental law within the meaning of point (f) of Article 2(1), excepting those provisions of this act for which EU law explicitly requires implementing measures at EU or national level. This is a significant change of scope from the current legal text of the Aarhus Regulation, which refers to ‘acts of individual scope’ only. 14

The proposal clarifies that the administrative act must contain provisions which may, because of their effects, contravene environmental law within the meaning of Article 2(1)(f) of the Regulation.

The current wording of Article 2(1)(g) of the Regulation allows the review of administrative acts ‘under environmental law’. This means that, up until now, when assessing whether an act may be subject to a request for internal review, EU institutions and bodies have looked so far exclusively at whether the challenged administrative act was meant to contribute to environmental policy objectives, rather than focusing on whether or not it contravenes environmental law.

However, it is necessary to ensure that the internal review is possible for all those acts with effects on environmental policy objectives. Indeed, it is as regards ‘environmental matters’ that access to justice under Article 1 of the Convention has to be ensured, 15 and it is ‘in the field covered by the Convention’ that the EU committed to applying the ‘relevant rules of EU law’ when depositing its instrument of ratification of the Convention. 16

In order to ensure effective access to justice, it is therefore necessary to adapt the definition of administrative acts to also include acts that were not adopted under environmental law, but which contain provisions which may, because of their effects, contravene EU environmental law as defined in Article 2(1)(f) of the Regulation.

This corresponds to the current status of integrating environmental considerations into other EU policies, under Article 11 of the TFEU, according to which ‘environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development.’

The scope of the internal review mechanism has to be made consistent with Article 9(3) of the Convention, which relates to those acts ‘which contravene environmental law’. Therefore, it is the identification of a contravention of EU environmental law that is the decisive criterion in defining the grounds on the basis of which the internal review can be carried out.

As to the definition of what is EU environmental law, Article 2(1)(f) of the existing Regulation gives environmental law a broad definition. Accordingly, it defines ‘environmental law’ to mean ‘[Union] legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of [Union] policy on the environment as set out in the Treaty: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems’. 17

It is proposed that the Regulation specifically provide that, when stating the grounds of the request for review, the applicant should demonstrate how the administrative act contravenes EU environmental law. As required by case law, ‘in order to state in the manner required the grounds for conducting the [internal] review, a party requesting the internal review of an administrative act under environmental law is required to put forward the facts or legal arguments of sufficient substance to give rise to serious doubts as to the assessment made in that act by the EU institution or body’. 18

The proposal extends the deadlines for the internal review procedure to allow for an appropriate quality of assessment. In particular, it includes a two-week extension for NGOs and a four-week extension for EU institutions. The additional time available for NGOs should enable them to provide the necessary factual and legal arguments when calling into question administrative acts and omissions contravening EU environmental law. Extending the time available for EU institutions and bodies to provide a reply should make it possible for them to carry out more in-depth reviews. The additional time available should also strengthen the right to good administration under Article 41 of the Charter.

The administrative review under the Regulation is only one of the ways in which the EU fulfils the requirements of Article 9(3) of the Convention. Compliance with Article 9(3) is not dependent on the Regulation alone.

Article 9(3) of the Convention can be implemented either through administrative review or through judicial review (or both). It is intended for the benefit of ‘members of the public’, within the meaning of Article 2(4) of the Aarhus Convention. 19 This covers both individuals and NGOs; precise entitlements are to be defined by (in this context) EU law, pursuant to Article 9(3) of the Convention. 20

First, although individuals cannot request an administrative review under the Regulation, they have the possibility to request a judicial review of acts and omissions of EU institutions and bodies in cases where the conditions laid down in the TFEU are met, as explained below. The Convention requires Parties to make available either the administrative or the judicial review, but not necessarily both.

Where national implementing measures exist, individuals can challenge them before a national court and request the national court to make a reference to the CJEU to review the validity of the relevant EU act under Article 267 TFEU.

Furthermore, under the fourth paragraph of Article 263 TFEU, individuals can bring direct challenges to the General Court for: (i) acts addressed to them; (ii) acts of direct and individual concern to them; and (iii) regulatory acts of direct concern to them which do not entail implementing measures.

Second, the Convention itself recognises that NGOs should enjoy privileged access to justice as compared to individuals 21 . Limiting the use of the administrative review mechanism to NGOs is consistent both with this differentiation and with the need to provide NGOs with direct access to justice at EU level (by a challenge under the fourth paragraph of Article 263 TFEU against the reply to the request for internal review) without having to modify the Treaties 22 .

Third, many acts adopted by EU institutions and bodies are of general scope. Granting NGOs access to the administrative review mechanism is justified by the fact that, as recalled above 23 , NGOs are often best positioned to effectively represent public interest and civil society concerns in this area with professional, well-founded and substantiated argumentation.

Fourth, opening up administrative review to all individuals would amount to a situation similar to that described by the Aarhus Compliance Committee as actio popularis, which is not required under the Convention 24 .

In turn, for regulatory acts which do not entail implementing measures, subject to them fulfilling the conditions of standing under the fourth paragraph of Article 263 TFEU, if the Regulation were to provide standing for individuals, this could mean giving individuals the right to request both administrative review and judicial review for the same subject-matter. Once again, however, this is not required by the Convention. Parties can provide for either administrative review or judicial review.

Fifth, consistency with the level of access to justice provided at national level under the Convention is also relevant. It would be inconsistent to create a right of review in favour of individuals at EU level without having an equivalent level of access at national level for similar categories of acts and omissions (such as national governmental decrees or other acts of general application).

In conclusion, although the redress mechanisms available to NGOs and individuals are different, the EU system grants each applicant access to administrative and/or judicial redress. 25 As explained, the revision of the Aarhus Regulation is part of a broader effort to ensure effective access to justice in environmental matters for all.

The Report also analysed the issue of excluding from the scope of the internal review those acts which do not have ‘legally binding and external effects’. This is currently the case pursuant to the definition of administrative acts laid down in Article 2(1)(g) of the Regulation. This is a point also raised by the Committee in its findings. 26

Although the terminology is not identical, the scope of this exclusion in the Regulation is consistent with the scope of Article 263(1) TFEU, as interpreted by CJEU case law. 27 Article 263(1) TFEU gives the CJEU jurisdiction to review ‘the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties’. It further provides that the CJEU ‘shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties’.

The wording of both the current Article 2(1)(g) of the Regulation and of Article 263(1) TFEU shows that acts that are not intended to produce legal effects fall out of the scope of, respectively, the administrative review under the Regulation and the judicial review under the Treaties. This is confirmed by the fact that recommendations and opinions (which are non-binding) are excluded from the scope of Article 263(1) TFEU. 28

As regards the requirements of access to justice according to the Aarhus Convention, it should be recalled that only acts that are intended to produce legal effects are capable of ‘contravening’ environmental law, as indicated in Article 9(3) of the Convention. Clearly, acts that do not produce legal effects cannot then be considered as contravening environmental law, within the meaning of Article 9(3) of the Aarhus Convention.

Based on the foregoing, and as the ACCC in its findings took into account the internal review mechanism provided for in the Aarhus Regulation only as a way to ‘compensate’ the requirements applicable to access to justice under Article 263 TFEU, 29 it is not appropriate to allow administrative review of acts that are not intended to produce legal effects.

At the same time, case law confirms that the name or form of the measure is irrelevant. What is crucial is its effects, content and scope. 30 Measures with binding legal effects despite their label and which may affect the applicant's interests, changing his legal position, may be contested. 31

The proposal is consistent with and complementary to existing provisions in the area of access to justice. These include, in particular:

These cover decisions, acts and omissions concerning requests for environmental information, those subject to the public participation provisions of the EIA Directive, industrial permits and those concerning environmental liability.

The proposal contributes to strengthening the rule of law, in accordance with the current Commission priorities on the European Green Deal and on protecting our European way of life. 38 In particular, it contributes to the effectiveness of the EU system of administrative and judicial review and, as a result, strengthens the application of Articles 41 and 47 of the Charter.

The legal basis for action in this area is Article 192(1) TFEU. This is consistent with the original legal basis of the Regulation the proposal aims to amend (Article 175(1) of the Treaty establishing the European Community), now Article 192(1) TFEU. 39 The proposal aims to improve the protection of the environment, by improving the administrative review procedure available to NGOs as regards administrative acts and omissions of EU institutions and bodies where those contravene environmental law.

The EU has shared competence with its Member States to regulate on environmental issues. This means that it can only legislate as far as the Treaties allow, and must respect the principles of necessity, subsidiarity and proportionality.

Action at EU level is necessary here because the EU is a Party to the Convention and must comply with the obligations under the Convention which is binding on the EU in accordance with Article 216 TFEU. The initiative concerns the application of the Convention's provisions on the administrative or judicial review of certain categories of EU acts. Therefore, the objectives can only be achieved at EU level and the initiative's EU added value is confirmed.

At the same time, it is appropriate to exclude from the scope of the proposed amendment those provisions of administrative acts for which EU law explicitly requires implementing measures at national level.

This is because these measures will be directly challengeable before national courts. According to Article 267 TFEU, Member States' national courts are part and parcel of the system of preliminary references on validity and interpretation as ordinary courts of EU law. 40

The proposal does not go beyond what is necessary to achieve compliance with the Convention's provisions. The policy choices made confirm the proportionality assessment. In particular, the proposal:

The proposal is based on the findings of the Report and the accompanying study. The policy choice was confirmed by a detailed analysis that found that there are no viable options apart from the proposed measures.

The legal instrument chosen is a Regulation, as was the legal instrument that it proposes to amend.

The proposal is based on evidence gathered in the Report; further evidence and analysis is available in the published study. The documents provided a comprehensive ex-post assessment of the Regulation's provisions on access to justice in environmental matters at the EU level.

In line with the Better Regulation Guidelines, a 12-week public consultation was launched on 20 December 2018 to support the study on EU implementation of the Convention in the area of access to justice in environmental matters. It remained open until 14 March 2019. The consultation featured an online questionnaire in all EU languages disseminated via the EU Survey tool.

The public consultation followed up on the initial roadmap on the topic of EU implementation of the Convention in the area of access to justice in environmental matters, which was published for feedback between 8 May 2018 and 5 June 2018; the results are available online 41 . The process was complemented by other targeted consultations involving stakeholders from a broad range of interest groups, including businesses, NGOs, academia, Member States, national judiciaries and EU institutions.

The public consultation 42 received 175 replies; the highest percentage came from individuals (30%). It also elicited contributions from environmental organisations, including NGOs (19.4%) and public authorities (18.9%). Businesses and business associations accounted for 17% of total replies received.

Responses submitted by environmental organisations, including NGOs and individuals showed a dissatisfaction with existing means of redress against EU acts and called for action. On the other hand, responses submitted by businesses, business associations and public authorities showed mainly a positive perception of the current situation. The consultation results confirmed the priorities identified by the Commission on issues that raised concerns as regards the Regulation. In particular, the issues that were accorded the highest degree of importance by respondents were the fact that the act or omission to be challenged must be of individual scope and that the Regulation limits challenges to acts or omissions under environmental law. Most businesses and business associations considered the importance of these and other issues low. In contrast, environmental organisations and NGOs gave these issues a high degree of importance overall. 43

In addition, the contractor who carried out the study organised two stakeholder focus group meetings on 22 January 2019, with the participation of industry representatives and NGOs. 44 The results of these meetings confirmed the findings of the public consultation.

The Commission also held a number of meetings with Member State experts, 45 to inform them of progress on the study and to exchange views. These meetings confirmed that certain Member States have issues concerning the right to challenge national implementing measures.

Furthermore, the Commission convened several meetings with other stakeholders at which they presented progress on the study and exchanged views:

Finally, a roadmap outlining the legislative initiative was published on 6 March 2020 and was open for feedback until 3 April 46 . This elicited a total of 175 replies, approximately two thirds from individuals and one third from organisations, including business and environmental associations. The analysis of the replies confirmed that most concerns had already been raised during prior stakeholder consultations. As such, they had already been assessed in detail in the study and the Report, and were taken into account in the proposal.

Most individuals raised concerns as regards access to justice at national level. These concerns will be addressed by the actions outlined in the Communication accompanying the proposal. Some people also asked for the possibility to introduce complaints and petitions directly to the EU institutions; such mechanisms are already available. 47

Several business associations also contributed. As before, they expressed concerns about possible additional burden and economic consequences. Based on the extensive assessment of the available evidence base, it was concluded that the legislative changes proposed and the actions under the Communication adopted would not result in significant additional administrative burden or legal uncertainty, and would provide a balanced approach.

Environmental NGOs also reiterated a number of important issues. These were not new and were all carefully assessed. However, one merit particular attention.

It was raised that the proposal should also include EU acts entailing national implementing measures. In this regard, and for the reasons explained in section IVa.3, reliance on national courts is justified: NGOs must indeed have workable possibilities at national level to contest national implementing measures and the Commission, as guardian of the Treaties, will work together with Member States to help ensure compliance on the ground. In turn, national courts must make it possible for NGOs to access the CJEU through the preliminary ruling procedure under Article 267 TFEU.

Based on the results of the public consultation, including feedback on the roadmap, and the extensive analysis carried out by the Commission in the Report based on the accompanying study, and taking into account the concerns expressed by the Committee 48 , it was considered that there are no other viable options than to remedy the two main identified issues with the Regulation by way of a legislative proposal (see more details in the section on impact assessment).

The consultation activities covered all relevant issues so no further public consultation was necessary on the details of the proposal.

The Commission Report on the EU's implementation of the Convention in the area of access to justice in environmental matters and the underlying study supported by the extensive consultation process are the main sources of expertise and serve as the evidence-base for the proposal.

The comprehensive study and the Commission Report analysing the functioning of the provisions on access to justice in environmental matters at the EU level provide a strong factual evidence-base for the present initiative.

In accordance with Tool #9 of the Better Regulation toolbox on ‘When is an impact assessment necessary?’, an impact assessment was deemed unnecessary, for the following reasons:

A number of references and terms in the Regulation pre-date the Lisbon Treaty and the current proposal only includes some partial updates. The Regulation therefore requires a codification. However, considering the political priority of enabling a swift amendment of the Regulation in light of the EU’s international commitments, the Commission intends to come forward with a proposal for codification once the current proposal has been adopted, in conformity with paragraph 46 of the Interinstitutional agreement on better law-making. 50

The Report and the study addressed the fundamental rights aspects of the proposed legislative measures. It was found that these measures would contribute to improving the effectiveness of the EU system of administrative and judicial review, and as a result, would strengthen the rule of law and application of Articles 41 and 47 of the Charter (see for example Section 3.4.2 of the study).

In particular, Article 41, the right to good administration, will be strengthened. As a result of a broader and more precise definition of the scope of challengeable administrative acts and grounds for review, qualified NGOs will have more legal certainty and a more effective way to ask for a review of administrative acts where these contravene environmental law. Furthermore, extending the time available for the public administration to consider requests and provide a reply is expected to result in more in-depth analysis and assessment. Hence, the additional time available will strengthen the requirements of good administration under Article 41 of the Charter.

The Regulation will be amended only in terms of the conditions for administrative review. However, NGOs may seek a judicial review of any reply provided by the EU institution or body before the CJEU. Therefore, the amendment will also have an indirect effect on the possibilities for judicial review, and will strengthen the application of Article 47 of the Charter.

The Report and the accompanying study carefully assessed the impact of the different options on internal resources for EU institutions, in particular, for the Commission and the CJEU. They concluded that such impact will be limited if the options introduced by the proposal are followed. The extent of the impact on resources is explained by several factors:

Further guidance on the internal review procedure under the Regulation will be provided to case handlers and NGOs. The Commission’s internal working arrangements will also need to be reviewed in light of the new requirements resulting from the proposed amendments, to minimise the negative effects of the extra workload that will highly likely flow from the changes. It will be necessary to further improve the effectiveness and efficiency of the internal review procedures, for example, by:

Despite these initiatives, there will be an extra administrative burden on the Commission, including some of its agencies, but it could, to a certain extent, be mitigated, subject to respecting the above considerations. However, it is also clear that the future impacts are also a function of the actual number of cases and their distribution between policy areas. While at present it is not possible to quantify these, it is necessary to observe if there is a significant overall increase in the workload and how it impacts specific policy areas. It will therefore be necessary to continuously monitor the developments in the workload and its distribution to allow action to be taken if required.

The accompanying Communication outlines further actions to facilitate implementation of the Convention in the area of access to justice in environmental matters at national level. Further guidance on the internal review procedure under the Regulation will also be provided both for the public and for the EU institutions and bodies, to help them adapt to the new requirements.

Not applicable.

Article 1(1)

Article 1(1) amends the definition of administrative acts under Article 2(1)(g) of the Regulation.

Broadening the review to include acts of general scope

The amendment broadens the definition of ‘administrative act’ to ensure that any non-legislative act adopted by an EU institution or body, having legally binding and external effects and that may, because of its effects, contravene environmental law within the meaning of Article 2(1)(f), may now be subject to internal review. Should however be excluded those provisions for which EU law explicitly requires implementing measures at EU or national level. Accordingly, under the new definition, a measure can be the subject of an internal review whether or not it has an individual or general scope. Until now, only acts of individual scope were included in the definition.

Acts entailing implementing measures

The extension of the definition aims to cover those non-legislative measures that correspond to ‘regulatory acts’ under the fourth paragraph of Article 263 TFEU. In doing so, the amendment uses the elements of established case law 52 on the notion of ‘regulatory act’ under Article 263 TFEU.

Under the fourth paragraph of Article 263 TFEU, those directly concerned may obtain a judicial review from the CJEU of regulatory acts that have been adopted by the EU institutions and bodies and do not entail implementing measures. CJEU case law has clarified that, for the purposes of the fourth paragraph of Article 263 TFEU, it does not matter if the implementing measure is to be taken at EU or at national level. 53 The Court has also confirmed that, for the purposes of this new possibility introduced by the Lisbon Treaty, regulatory acts encompass all acts of general application other than legislative acts. 54

Accordingly, under the Proposal, those provisions of an administrative act for which EU law explicitly requires implementing measures at national level would not be subject to administrative review. As regards these provisions, it is possible to seek remedy before the national jurisdiction, with further access to the CJEU under Article 267 TFEU.

To ensure consistency with the fourth paragraph of Article 263 TFEU, the review of those provisions of an administrative act for which EU law explicitly requires implementing measures at EU level may be sought when the review of the Union-level implementing measure is requested.

In order to ensure legal certainty, the new definition clearly specifies that only those provisions of the act for which EU law explicitly requires implementing measures at EU or national level are excluded from the scope of internal review. Ascertaining whether this requirement exists, one must not look at the administrative act as a whole, but rather whether the contested provisions of the administrative act entail implementing measures. It is not relevant whether or not other, unrelated provisions of the administrative act entail implementing measures. There may be situations where some provisions of the administrative act subject to administrative review require implementing measures, whereas other provisions are directly applicable. For example, some provisions of a Commission regulation may be directly applicable, while others may require implementing measures at EU or national level 55 .

In such situations, where the national implementing measure concerns the contested provisions of the administrative act, NGOs may only request review of the implementing measure before the national jurisdictions. Similarly, where the EU-level implementing measure concerns the contested provisions of the administrative act, NGOs must wait until the implementing act is adopted, or, in case of omissions, until it should have been adopted. In contrast, if the implementing measures concern only unrelated provisions of the act, the directly applicable provisions of the administrative act can be challenged in the administrative review under the Regulation.

As a result, an NGO would have different possibilities for implementing acts that entail implementing measures at EU level, depending on which provisions they wish to challenge.

NGOs would be entitled to request an internal review of those provisions of the regulatory act, which do not entail EU-level implementing measures.

However, as internal review is provided in order to improve access to justice in environmental matters, whose system of remedies is laid down in the TFEU, and in keeping with the possibilities available under Article 263 of the TFEU, NGOs would not be able to make a request for internal review directly against the provisions of the regulatory acts entailing EU-level implementing measures.

Rather, much like any other individual or organisation accessing justice under Article 263 TFEU, NGOs can only submit a request at a later stage, when the EU-level implementing act in question is adopted. 56 A request to review those provisions of the non-legislative act which entail the implementing measure can also only be made at this time.

References to environmental law

The amendment removes the phrase ‘under environmental law’ from the definition of administrative act. Instead, it requires that the administrative act must contain ‘provisions which may, because of their effects, contravene environmental law within the meaning of Article 2(1)(f)’. This amendment should be read jointly with Article 1(2) below, which specifies that only those acts or omissions which contravene EU environmental law can be subject to review.

The amendment builds on applicable case law, which has interpreted the current wording of the Regulation in light of the Convention's objectives. 57 It provides clarity and legal certainty on the fact that any administrative act that contains provisions which may contravene EU environmental law may be challenged, irrespective of the act's legal basis or policy objective, as it is required under Article 9(3) of the Convention.

At the same time, the definition preserves the link between the administrative act whose review is requested and environmental policy objectives. It does so by allowing the internal review of only those acts which contain provisions which may, because of their effects, contravene EU environmental law within the meaning of Article 2(1)(f) of the Regulation.

Article 1(2)

References to environmental law

Similarly to Article 1(1), which amends the definition of ‘administrative act’, this amendment removes the ‘under environmental law’ requirement also from the first paragraph of Article 10(1) of the Regulation. The new provision also clarifies that only those acts and omissions that contravene EU environmental law may be subject to a request for review. Therefore, the amendment ensures that the wording of the Regulation reflects the requirements of Article 9(3) of the Convention.

Extension of time limits

Article 1(2) also amends the second paragraph of Article 10(1) to extend the time limit available for NGOs to introduce an internal review from the current six to a proposed eight weeks. It also amends Article 10(2) to extend the time available to EU institutions and bodies to reply to the request for internal review from the current 12 to a proposed 16 weeks.

As a logical consequence of the above, for cases where an EU institution or body is unable to reply within 16 weeks despite exercising due diligence, Article 1(2) also amends the second paragraph of Article 10(3) to extend the overall time available to EU institutions and bodies to reply to a request for internal review from the current 18 to a proposed 22 weeks.

The amendments would provide a two-week extension for NGOs and four-week extension for EU institutions and bodies. The extension for NGOs aims to improve the quality of submissions, whereas the extension for EU institutions and bodies aims to improve the quality and depth of the review. The additional time will allow more in-depth analysis, which should result in a more solid evidence-base and clearer justifications provided in the final internal review decision. Thus, the extension will also have an impact on the principle of good administration and will improve public confidence in EU decision-making processes.