1.Introduction

The Aarhus ConventionConvention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998. For a comprehensive overview of the Aarhus Convention, see recently E Barritt, The Foundations of the Aarhus Convention. Environmental Democracy, Rights and Stewardship (Hart Publishing 2021); also ‘The Aarhus Convention: An Implementation Guide’ (2^nd edn, United Nations Publication 2014). is an international environmental agreement that establishes a number of obligations that contracting parties have towards the public (both as individuals and in the form of associations).Aarhus Convention, art 2(4). The Convention is based on three pillars: the right of members of the public to receive environmental information from public authoritiesibid, art 4. and the obligation for public authorities to collect and disseminate information in this field;ibid, art 5. the right of the public to participate in environmental decisions on specific activities,ibid, art 6. in the preparation of plans and programmes,ibid, art 7. and in the preparation of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment;ibid, art 8. and the right of the public to have access to legal review procedures to enforce the provisions of the Convention on access to information and public participation, as well as other provisions of the Convention and of domestic environmental law (access to justice).ibid, art 9.

The third aspect of access to justice is of central importance here. Article 9(3) of the Convention refers to a specific class of cases by which members of the public can enforce national environmental law ‘either directly, i.e., by bringing the case to court to have the law enforced (rather than simply to redress personal harm), or indirectly, by triggering and participating in administrative procedures so as to have the law enforced’.‘The Aarhus Convention: An Implementation Guide’ (n 1) 197. This provision potentially refers to a wide range of procedures, which may be either judicial or administrative and the parties may therefore establish different review mechanisms ‘for different kinds of acts and omissions’.ibid, 197 and 198. See also J Ebbesson, ‘Access to Justice in Environmental Matters’ (last updated December 2020), in A Peters and R Wolfrum (eds), TheMax Planck Encyclopedias of International Law (Oxford University Press 2009) www.mpepil.com, paras 22-23 [accessed 12 June 2022]. For example, the parties may recognise the right of members of the public to initiate administrative or criminal proceedings to ensure the enforcement of environmental law.‘The Aarhus Convention: An Implementation Guide’ (n 1), 198.

Moreover, Article 9(4) of the Convention sets out general minimum standards that apply to these appeal procedures: contracting parties ‘shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’.See in general Ebbesson (n 10), para 23, as well as A Andrusevych and S Kern (eds), Case Law of the Aarhus Convention Compliance Committee Case Law of the Aarhus Convention Compliance Committee (2004–2014) (3^rd edn, RCSE 2016), 130-140. For the purposes of this article, it should be noted that ‘adequate and effective remedies’ should be understood as remedies that ‘ensure the intended effect of the review procedure’‘The Aarhus Convention: An Implementation Guide’ (n 1) 198. and are ‘capable of real and efficient enforcement’.ibid On the other hand, according to the Aarhus Convention Implementation Guide, ‘fair procedures’ are those that require ‘the process, including the final ruling of the decision-making body, to be impartial and free from prejudice, favouritism or self-interest’.ibid, 201. See also Aarhus Convention Compliance Committee (ACCC), ‘Findings and recommendations with regard to communication ACCC/C/2011/57 concerning compliance by Denmark’ adopted on 30 March 2012, para 44. On the connection between fair procedures and impartiality in general, see, eg, P Cane, Administrative Law (5^th edn, Oxford University Press 2011), 69-73.

The Aarhus Convention was approved by the European Union (EU) in 2005,Council Decision 2005/370/CE of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L 124/1. In general, on the relationship between the Aarhus Convention and EU environmental policies, see, eg, M Hedemann-Robinson, ‘EU Implementation of the Aarhus Convention’s Third Pillar: Back to the Future over Access to Environmental Justice? - Part 1’ (2014) 23(3) European Energy and Environmental Law Review, 102-114. and was then implemented for European institutions and bodiesIn Member States the Convention was (partially) implemented through a number of Directives: see, eg, Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26; Consolidated Version of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L 156/17. On this issue, see M Hedemann-Robinson, ‘EU Implementation of the Aarhus Convention’s Third Pillar: Back to the Future over Access to Environmental Justice? - Part 2’ (2014) 23(4) European Energy and Environmental Law Review 151-170; I Hadjiyianni, ‘Judicial protection and the environment in the EU legal order: Missing pieces for a complete puzzle of legal remedies’ (2021) 59(1) Common Market Law Review, 777-812, 798-808. by means of Regulation 1367/2006 (the Aarhus Regulation).Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L 264/13. This Regulation, in addition to extending the scope of application of the European legislation on access to documents of the institutions to the environmental fieldRegulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L 145/43, art 3. On this, see, eg, U Etemire, ‘Access to Environmental Information under EU Law’, in M Peeters and M Eliantonio (eds), Research Handbook on EU Environmental Law (Edward Elgar 2020) 117-132. and introducing rules that oblige Community institutions and bodies to collect and disseminate environmental information,Regulation 1049/2001, art 4. also implemented Article 9(3) of the Aarhus Convention.Article 9(2) of the Convention was instead implemented through Article 9 of the Aarhus Regulation: on this see, however, Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies’ COM(2003)0622 final, COD (2003)0242, 13-15.

To this end, the original version of the Regulation 1367/2006 established that any non-governmental organization meeting certain criteria could make a request for internal review to the Union institution or body that adopted an administrative act of individual scope under environmental law or, in the case of an administrative omission, should have adopted such an act.Regulation 1367/2006, art 10. The applicant NGO could (and can) then challenge the decision taken by the institution or body on the request for internal review or its failure to act before the General Court.ibid, art 12. Regulation 1367/2006, however, did not make any changes regarding access to the Court of Justice of the European Union (CJEU). Consequently, according to Article 263(4) of the Treaty on the Functioning of the European Union (TFEU) as interpreted by the CJEU, NGOs do not have standing to challenge acts issued in breach of environmental law, unless they are the addressees of such acts. Similarly, natural persons may take legal action against acts in violation of environmental law only under the conditions laid down in the Treaty. In essence, under the Aarhus Regulation, access to justice basically revolved around internal review.

This system, however, did not guarantee the full compliance of European law with Article 9(3) and (4) of the Aarhus Convention.See, eg, GJ Harryvan and JH Jans, ‘Internal Review of EU Environmental Measures. It’s true: Baron Van Munchausen doesn’t exist! Some remarks on the application of the so-called Aarhus Regulation’ (2010) 3(2) REALaw, 53-65; M Pallemaerts, ‘Access to Environmental Justice at EU Level. Has the “Aarhus Regulation” Improved the Situation?’, in M Pallemaerts (ed) The Aarhus Convention at ten (Europa Law Publishing 2011) 271-311. First, it granted only a limited number of NGOs the right to request the legal review of acts issued in alleged breach of environmental law, while excluding other members of the public. Second, it allowed for the legal review of a limited number of acts with effects on the environment. Third, the review mechanism provided for by the Aarhus Regulation did not (and does not) result in an impartial procedure. This is because the remedy was (and is) entrusted to the responsibility of the same institution or body that issued the contested act. Moreover, according to the CJEU case law, acts subject to internal review could not be subsequently subject to judicial review.

These problems were addressed by the Aarhus Convention Compliance Committee (ACCC) – a convention advisory body tasked with monitoring the conformity of contracting parties with the obligations of the ConventionOn the ACCC, see V Koester, ‘The Compliance Committee of the Aarhus Convention – An Overview of Procedures and Jurisprudence –’ (2007) 37/2-3 Environmental Policy and Law, 83-94; and G Samvel, ‘Non-Judicial, Advisory, Yet Impactful? The Aarhus Convention Compliance Committee as a Gateway to Environmental Justice’ (2020) 9(2) Transnational Environmental Law, 211-238. – in the course of a procedure that was initiated in 2008 at the request of the non-governmental organization ClientEarth, with the backing of other NGOs,The list of NGOs supporting the communication of ClientEarth is https://unece.org/DAM/env/

pp/compliance/C2008-32/communication/SupportingNGOs.pdf [accessed 12 June 2022]. and concluded, after an initial position statement in 2011,ACCC, ‘Findings and recommendations with regard to communication ACCC/C/2008/32 (Part I) concerning compliance by the European Union’, adopted on 14 April 2011. in 2017.Compliance Committee of the Aarhus Convention (ACCC), ‘Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32 (part II) concerning compliance by the European Union’, adopted on 17 March 2017. After having ascertained the existence of the first two non-compliance problems in the EU, the ACCC recommended that the European Union take the steps necessary to provide the public with access to justice in environmental matters in accordance with the relevant provisions of the Convention.ibid, para 123(a).

As a result, in 2018 the Council requested that the Commission submit a study on the Union’s options for addressing the findings of the Aarhus Convention Compliance Committee and, if necessary, set out a legislative proposal for a Regulation amending Regulation 1367/2006.Council Decision (EU) 2018/881 of 18 June 2018 requesting the Commission to submit a study on the Union’s options for addressing the findings of the Aarhus Convention Compliance Committee in case ACCC/C/2008/32 and, if appropriate in view of the outcomes of the study, a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1367/2006 [2018] OJ L 155/6. In September 2019, the Commission published extensive external research findingsMilieu, Study on EU implementation of the Aarhus Convention in the area of access to justice in environmental matters, Final report, September 2019 https://ec.europa.eu/environment/aarhus/pdf/Final_study_EU_implemention_environmental_matters_2019.pdf [accessed 13 June 2022]. and in October 2019, released a report on the implementation of the Aarhus Convention in the area of access to justice in environmental matters.Commission Staff Working Document ‘Report on European Union implementation of the Aarhus Convention in the area of access to justice in environmental matters’, SWD(2019)378 final. In October 2020, it launched the legislative process to amend the Aarhus Regulation.Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies’, COM(2020) 642 final, 2020/0289 (COD). In May 2021, the European Parliament approved a number of substantial amendments to the Commission’s proposal,‘Amendments adopted by the European Parliament on 20 May 2021 on the proposal for a regulation of the European Parliament and of the Council Amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies’, P9_TA(2021)0254. in July the Permanent Representatives Committee in the Council endorsed the agreement reached in trilogues (although this agreement does not contain many of the amendments approved by the European Parliament),General Secretariat of the Council, ‘Letter to the Chair of the European Parliament Committee on the Environment, Public Health and Food Safety (ENVI)’, 11044/21, of 23 July 2021. and in October, Regulation 2021/1767 (the New Aarhus Regulation) was approved at the first reading.Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2021] OJ 356 L 356/1. On this Regulation, see GC Leonelli, ‘Access to the EU Courts in Environmental and Public Health Cases and the Reform of the Aarhus Regulation: Systemic Vision, Pragmatism, and a Happy Ending’ (2021) 40(1) Yearbook of European Law, 230–264; R Traves Lanceiro, ‘A light at the end of the tunnel? the amendment of the Aarhus Regulation and Eu compliance with the Aarhus convention’ (2021) 71 Weekend EU Law Live Edition; I Anrò, ‘Il difficile accesso alla giustizia ambientale per le ONG e la riforma del Regolamento di Aarhus: nuove vie verso la Corte di giustizia dell’Unione europea?’ (2022) 11 federalismi.it. The ACCC also made comments and recommendations on the Commission’s legislative proposal in an opinion delivered in February 2021.ACCC, Advice to the European Union concerning the implementation of request ACCC/M/

2017/3, adopted on 12 February 2021: https://unece.org/sites/default/files/2021-02/M3_EU

_advice_12.02.2021.pdf [accessed 16 June 2022].

Despite some critical issues, the New Aarhus Regulation has substantially tackled the first two non-compliance problems; it has, in fact, significantly broadened the types of acts for which internal review may be requested and, as of 29 April 2023, the entitlement to make use of this administrative remedy will be greatly expanded. On the contrary, with the exception of some limited aspects, the structure of the administrative review has remained substantially unchanged.

This article has two aims. First, to illustrate the main novelties brought about by Regulation 2021/1767. Second, to demonstrate that the European legislator could provide for review mechanisms that are fully in line with the requirements of Article 9(4) of the Aarhus Convention. This would be possible given that the provisions of the Treaty on administrative remedies are fairly flexible.

This article is structured as follows: after a brief reference to the case law of the CJEU on the standing of natural and legal persons (Section 2), the main critical aspects of access to justice under Regulation 1367/2006 are examined in the light of the 2017 ACCC findings and recommendation, and the corresponding solutions adopted by Regulation 2021/1767 are illustrated. In particular, the issues of who is entitled to request an internal review of acts issued in violation of environmental law (Section 3); the acts for which such a review may be requested (Section 4); and the impartiality of the administrative review procedure (Section 5) are discussed. Since the last problem was not addressed by Regulation 2021/1767, after brief considerations on administrative remedies in the Treaty, some proposals are made on how the legal framework of the administrative review of acts in breach of environmental law could be made compatible with the standards established by the Aarhus Convention (Section 6). The article concludes with brief remarks regarding the need for the European legislator to act less defensively towards civil society organizations in the future (Section 7).

2.Access to Justice under Article 263(4) TFEU

In order to understand the legal framework of internal review under Regulation 1367/2006, it should be recalled that the application of Article 9(3) of the Convention to EU institutions and bodies is strongly conditioned by Article 263(4) TFEU. The crux of the matter here is that this provision, in the interpretation of the CJEU, is very restrictive regarding the legal standing of natural and legal persons and does not allow them to take legal action in the general interest.See, eg, L Krämer, ‘Public Interest Litigation in Environmental Matters before European Courts’ (1996) 8(1) Journal of Environmental Law 1-18; O De Schutter, ‘Public Interest Litigation before the European Court of Justice’ (2006) 13(1) Maastricht Journal of European and Comparative Law, 9-34; M. Eliantonio, ‘Collective Redress in Environmental Matters in the EU: A Role Model or a ‘Problem Child’?’ (2014) 41(3) Legal Issues of Economic Integration, 257-273; more recently see GC Leonelli, ‘A threefold blow to environmental public interest litigation: the urgent need to reform the Aarhus Regulation’ (2020) 45(3) European Law Review, 234-347. As the issue of access to justice for non-privileged applicants in EU law is very well known, a few brief remarks on this matter will suffice.See, eg, A Arnull, ‘Private applicants and the action for annulment under Article 173 of the EC Treaty’ (1995) 32(1) Common Market Law Review 7-49; P Craig, ‘Standing, Rights, and the Structure of Legal Argument’ (2003) 9(4) European Public Law, 493-508; P Craig, EU Administrative Law (3^rd edn, Oxford University Press 2018), 332-346; and more recently Leonelli (n 36).

Article 263(4) TFEU, as was the case with Article 230(4) of the Treaty establishing the European Community, provides that any natural or legal person may institute proceedings against an act addressed to that person, or one which is of direct and individual concern to them. The CJEU consistently states that the standing requirement of ‘individual concern’ is to be interpreted as meaning that the contested act must affect 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’ (now known as the ‘Plaumann test’).Case C-25/62 Plaumann v Commission [1963] EU:C:1963:17. On the other hand, the requirement of ‘direct concern’ means that the act ‘must, first, directly affect the legal situation of the individual and, second, leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules’Case C-352/19 P Région de Bruxelles-Capitale v Commission EU:C:2020:978 [2020] para 30, where further references to case law. On this issue see, eg, K Lenaerts, I Maselis and K Gutman, EU Procedural Law (Oxford University Press 2014), 318-323..

The Lisbon Treaty subsequently introduced a third test of standing, i.e., any natural or legal person may institute proceedings against a regulatory act which is of direct concern to them and does not entail implementing measures.See, eg, Craig, EU Administrative Law (n 39) 342-346; previously, eg, C Werkmeister, S Pötters and J Traut, ‘Regulatory Acts within Article 263(4) TFEU–A Dissonant Extension of Locus Standi for Private Applicants’ (2011) 13 Cambridge Yearbook of European Legal Studies, 311-332; A Albors-Llorens, ‘Remedies against the Eu Institutions after Lisbon: an Era of Opportunity?’ (2012) 71(3) The Cambridge Law Journal, 507-536; H Roer-Eide and M Eliantonio, ‘The Meaning of Regulatory Act Explained: Are There Any Significant Improvements for the Standing of Non-Privileged Applicants in Annulment Actions?’ (2013) 14(9) German Law Journal, 1851-1865. In this regard, the CJEU has specified that the concept of a regulatory act encompasses all measures with general scopeSee, eg, Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [2018] EU:C:2018:873, paras 27-28; on this judgment see R Caranta, ‘Knock, and it shall be opened unto you: Standing for non-privileged applicants after Montessori’ (2021) 59(1) Common Market Law Review, 163-186. but does not include legislative acts.Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] EU:C:2013:625, paras 58-61; on this judgment, see, eg, A Kornezov, ‘Shaping the new architecture of the EU system of judicial remedies: comment on Inuit’ (2014) 39(2) European Law Review, 251/263; and P-A Van Malleghem and N Baeten, ‘Before the law stands a gatekeeper – or what is a regulatory act in art 263(4) TFEU? Inuit Tapiriit Kanatami’ (2014) 51(4) Common Market Law Review, 1187-1216. See more recently Case C-565/19 Carvalho and Others v Parliament and Council [2021] EU:C:2021:252, paras 37-43; and Case Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [2018] EU:C:2018:873, para 23.

According to a widely held, but highly contested, case law,See, eg, Case Joined Cases C-622/16 P to C-624/16 P Scuola Elementare Maria Montessori v Commission [2018] EU:C:2018:873, para 60, where further case law references. For criticism of this case law, see, eg, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] EU:C:2002:197, Opinion of AG F Jacobs; P Craig, ‘Standing, Rights, and the Structure of Legal Argument’ (n 39) 493-508; S Bogojevic, ‘Judicial Protection of Individual Applicants Revisited: Access to Justice through the Prism of Judicial Subsidiarity’ (2015) 34(1) Yearbook of European Law, 5-25; Hadjiyianni (n 17) 804-809; and more recently Leonelli, (n 36)

248-256. these limits to access to the European courts are compensated for by the fact that private individuals can bring actions before national courts (which may request preliminary rulings from the ECJ) vis-à-vis acts of state administrations implementing acts adopted by European institutions or bodies.

In any event, this jurisprudence has also been applied in full to environmental cases.See, eg, Case C-321/95 P Greenpeace and Others v Commission [1998] EU:C:1998:153, paras        30-34; more recently see Case C-565/19 P Carvalho and Others v Parliament and Council [2021] EU:C:2021:252; and Case C-297/20 P Peter Sabo and Others v European Parliament and Council of the European Union [2021] EU:C:2021:24. On this see, eg, M von Wolferen and M Eliantonio, ‘Access to Justice in Environmental Matters in the EU: The EU’s Difficult Road towards Non-compliance with the Aarhus Convention’, in M Peeters and M Eliantonio (eds) Research Handbook on EU Environmental Law (Edward Elgar 2020), 148-163; Hadjiyianni (n 17), 781-791, where other case law references are given; Leonelli (n 36). As a result, despite the changes introduced by the Lisbon Treaty, the CJEU has consistently held that NGOs do not have legal standing in environmental litigation regarding acts infringing environmental law (unless, of course, they are the addressees of such acts).The CJEU, however, identified three exceptions in this respect, stating that actions for annulment brought by associations (including environmental protection associations) are admissible in any one of the three following situations: 1) where a legal provision expressly grants a series of procedural powers to associations; 2) where the association represents the interests of its members, who would themselves be entitled to bring proceedings; and 3) where the association is distinguished individually because its own interests as an association are affected, for instance where its negotiating position has been affected by the act in respect of which annulment is sought: see, eg, Case T-122/96 Federolio v Commission [1997] EU:T:1997:142, para 61, and, more recently, Case T-330/18 Carvalho and Others v Parliament and Council [2019] EU:T:2019:324, para 51; and Case C-565/19 P Carvalho and Others v Parliament and Council [2021] EU:C:2021:252, paras 85-93. However, as far as environmental matters are concerned, these conditions are very unlikely to occur: see, eg, Leonelli (n 36) 239-40. Moreover, the Court of Justice has ruled that Article 9(3) of the Aarhus Convention cannot extend the standing requirements of the Treaty, as this provision ‘does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals’.Joined Cases C-404/12 P and C-405/12 P Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe [2015] EU:C:2015:5, para 47; on this judgment see S Gáspár-Szilágyi, ‘The relationship between EU law and international agreements: Restricting the application of the Fediol and Nakajima exceptions in Vereniging Milieudefensie’ (2015) 52(4) Common Market Law Review, 1059-1077; H Schoukens, ‘Articles 9(3) and 9(4) of the Aarhus Convention and Access to Justice before EU Courts in Environmental Cases: Balancing On or Over the Edge of Non-Compliance?’ (2016) 25(6) European Energy and Environmental Law Review, 178-195.

The rigidity of the Court of Justice’s case law on legal standing explains why the European legislator implemented Article 9(3) of the Aarhus Convention by providing an administrative remedy: ‘the internal review procedure under Article 10 is meant to facilitate for «qualified entities» access to justice which those entities would not have under Article 263(4) TFEU as interpreted by the Court’.Case C- 82/17 TestBioTech and Others v Commission [2018] EU:C:2018:837, Opinion of

AG M Szpunar, para 36. In short, in the absence of a substantial change in the case law of the CJEU, this solution appears to be the only one compatible with the Treaty. This means that, in these hypotheses, the review of acts issued in violation of environmental law can only be of an administrative nature. However, since the current legal framework of the internal review does not meet the standards of fairness set by Article 9(4) of the Convention (Section 5), the question arises as to how it could be brought into line with these standards (Section 6).

On the other hand, Article 263(4) TFEU has a less direct impact on the identification of those who are entitled to request internal review (see Section 3) and of the acts for which such review may be requested (see Section 4). For this reason, with Regulation 2021/1767, following the recommendation of the ACCC, the EU legislator was able to intervene very decisively on these two issues, superseding the previous restrictive approach.

3.Entitlement to Internal Review

The first critical aspect of the Aarhus Regulation concerned the parties entitled to apply for internal review of acts issued in alleged violation of environmental law.

Pursuant to Article 9(3) of the Convention, ‘each Party shall 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’. Although Article 9(3) gives the contracting parties a wide margin of discretion as to the subjects to be granted legal standing, according to the ACCC case law, however, the phrase ‘the criteria, if any, in national law’ must be interpreted restrictively: ‘Access to such procedures should thus be the presumption, not the exception’.ACCC, ‘Findings and recommendations with regard to compliance by Belgium with its obligations under the Aarhus Convention in relation to the rights of environmental organizations to have access to justice (Communication ACCC/C/2005/11 by Bond Beter Leefmilieu Vlaanderen VZW (Belgium))’, adopted on 28 July 2006, para 36; see also ‘The Aarhus Convention: An Implementation Guide’ (n 1) 198.

On this point, Article 11 of Regulation 1367/2006 states that any NGO can make a request for internal review provided that it is an independent non-profit-making legal person in accordance with a Member State’s national law or practice, it has the primary stated objective of promoting environmental protection in the context of environmental law, it has existed for more than two years and is actively pursuing the environmental protection. Moreover, the subject matter, in respect of which the request for internal review is made, must be covered by the objective and activities of the applicant organization.On this regard, see also Commission Decision 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the Aarhus Convention as regards requests for the internal review of administrative acts [2008] OJ L 13/24, arts 3 and 4 and annex, which establish detailed criteria for the assessment of the entitlement of the requesting NGOs.

For the ACCC, this provision constituted a violation of Article 9(3) of the Convention,ACCC (n 28) paras 92-93. which requires contracting parties not to set criteria for standing that are ‘so strict that they effectively bar all or almost all environmental organizations or other members of the public from challenging acts or omissions under paragraph 3’.ACCC, ‘Findings with regard to communication ACCC/C/2006/18 submitted by Mr Søren Wium-Andersen (Denmark)’, adopted on 29 April 2008, para 29.

Accordingly, Regulation 2021/1767 has considerably broadened the range of those entitled to request an internal review, inserting paragraph 1a into Article 11 of Regulation 1367/2006.Regulation 2021/1767, art 2. The Commission proposal did not include this provision: Commission (n 33). However, the ACCC in its Advice of February 2021 recommended extending the entitlement to internal review to members of the public other than NGOs: ACCC (n 37) paras 36-42 and 71(a). Pursuant to this provision, as of 29 April 2023, in addition to non-governmental organizations meeting the criteria set out in Article 11 of Regulation 1367/2006, members of the public – i.e., ‘one or more natural or legal persons, and associations, organisations or groups of such persons’Regulation 1367/2006, art 2(1)(b). – will also be entitled to make a request for internal review under two alternative conditions:

a) They demonstrate an ‘impairment of their rights caused by the alleged contravention of Union environmental law and that they are directly affected by such impairment in comparison with the public at large’.Consolidated Version of Regulation 1367/2006, art 11(1a)(a). In other words, members of the public must demonstrate, on the one hand, that an administrative act leads to ‘a violation of their rights’ which ‘may include an unjustified restriction or obstacle to the exercise of such rights’Regulation 2021/1767, Recital No 18. and, on the other hand, that they are directly affected by the violation of environmental law (‘for example in the case of an imminent threat to their own health and safety’);ibid, Recital No 19.

b) They demonstrate ‘a sufficient public interest and that the request is supported by at least 4,000 members of the public residing or established in at least five Member States, with at least 250 members of the public coming from each of those Member States’,Consolidated Version of Regulation 1367/2006, art 11(1a)(b). where the presence of a ‘sufficient public interest’ is linked, for example, to the existence of ‘a public interest in preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, or in combatting climate change’.Regulation 2021/1767, Recital No 20.

In both cases, the members of the public must be represented by a non-governmental organization which meets the criteria set out in Article 11(1) or by a lawyer authorized to practice before a court of a Member State.Consolidated Version of Regulation 1367/2006, art 11(1a). This provision is intended to ensure that, in line with the case law of the CJEU,Case C-82/17 P TestBioTech and Others v Commission [2019] EU:C:2019:719, paras 65-69. requests for internal review ‘put forward facts or legal arguments of sufficient substance to give rise to serious doubts as to the assessment made by the Union institution or body’.Consolidated Version of Regulation 1367/2006, Recital No 21.

The second hypothesis appears to be very innovative, since members of the public are allowed to file the administrative complaint only to protect the public interest, in the absence of any individual interest. For this reason, the provision lays down rather complex conditions for admissibility: the aim of these requirements seems to be to limit internal review to acts that affect several (at least five) Member States and are of concern to a significant number of people.On this provision, see Regulation 2021/1767, Recital No 20; see also Anrò (n 36) 21 where further references are given.

On the other hand, the first hypothesis appears more difficult to fully understand, not least due to its somewhat convoluted wording. In this respect, Recital No 19 of Regulation 2021/1767 states that ‘Members of the public are not required to demonstrate that they are directly and individually concerned within the meaning of Article 263, fourth paragraph, TFEU, as interpreted by the CJEU. However, … they should demonstrate that they are directly affected in comparison with the public at large’. This probably means that members of the public whose rights are injured by an act issued in alleged violation of environmental law – i.e., who are ‘directly affected’ by such an act – can request an internal review without having to meet the other requirements set forth in Article 263(4) TFEU. Therefore, in these cases, the conditions for gaining access to the administrative remedy should be easier than those established for instituting proceedings.On this issue, see also Traves Lanceiro (n 36) 6 f.

On this point, however, a clarification must be made for acts of general application that do not entail implementing measures. Article 11(1a)(a), together with Recital 19 of Regulation 2001/1767, seem to indicate that the term ‘directly affected’ is equivalent to that of ‘direct concern’ in Article 263(4).On this, see in general, eg, Case C-197/18 Wasserleitungsverband Nördliches Burgenland and Others [2019] EU:C:2019:274, Opinion of AG J Kokott, paras 43-63, where further case law references are given; Case C-197/18 Wasserleitungsverband Nördliches Burgenland and Others [2019] EU:C:2019:824, para 32. Should this be correct, there is a potential overlap of administrative and judicial remedies in these cases: if members of the public can demonstrate that the infringement of environmental law by an EU act directly damages their rights and that the act is of a general scope and does not require implementing measures, based on the new provision they can make a request for internal review of that act or, according to the third limb of Article 263(4) TFEU, they can take action before the General Court. The administrative remedy here is an alternative to the judicial remedy, and this undoubtedly represents an increase in the means of protecting both the environment and the rights of the public.

Moreover, the New Aarhus Regulation partly changed the rules on proceedings before the General Court.

Regulation 2021/1767 amended Article 12(2) of Regulation 1367/2006, providing that, if ‘the Union institution or body fails to act in accordance with Article 10(2) or (3), the non-governmental organization or other members of the public that made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty’. Basically, in the event of inaction of the institution or body to which the request for internal review is addressed, applicant NGO and members of the public, under the conditions laid down in Article 265 TFEU, are entitled to take legal action without having to be represented by a non-governmental organization or a lawyer.

On the other hand, under Article 12(1), which has not been amended, ‘The non-governmental organization which made the request for internal review … may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty’. Given that members of the public are not mentioned here, it follows that only the requesting non-governmental organization can appeal to the General Court. In the new context, this provision can be interpreted in two different ways: members of the public are never allowed to institute proceedings against the decision on internal review, or they can do so only if they requested the internal review through an NGO (but not if they lodged the administrative complaint through a lawyer). Although not entirely satisfactory, the second interpretation seems preferable as, by ensuring wider access to justice, it is more in line with Article 9(3) of the Convention.

Despite these doubts, the New Aarhus Regulation has, in any case, addressed an important concern expressed by the ACCC in its findings and recommendations in 2017.

4.Challengeable Acts

The second critical aspect of the Aarhus Regulation concerned the limited number of acts for which a legal review could be requested.

According to the original version of Regulation 1367/2006, the internal review could only regard acts ‘of individual scope’Regulation 1367/2006, art 2(1)(g). On acts of individual scope and differences from those of general scope, see, eg, Case C-784/18 P Mellifera eV,Vereinigung für wesensgemäße Bienenhaltung v Commission [2020] EU:C:2020:630, paras 66-73 and Case T-12/17 Mellifera eV,Vereinigung für wesensgemäße Bienenhaltung v Commission [2018] EU:T:2018:616, paras 55-76. It should be noted that in the Commission’s legislative proposal the concept of an ‘act’ was defined in a much broader way (‘any administrative measure taken under environmental law by a
Community institution or body having legally binding and external effect’): Commission

(n 21) 26: see also Joined Cases C-401/12 P to C-403/12 P Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht [2014] EU:C:2014:310, Opinion of

AG N Jääskinen, para 126. with ‘legally binding and external effects’.Regulation 1367/2006, art 2(1)(g). The remedy could not (and cannot) concern legislative and judicial actsibid, art 2(1)(c). and those individual acts issued under the rules on competition, infringement proceedings, Ombudsman proceedings and those before the European Anti-Fraud Office.ibid, art 2(2). Moreover, only acts adopted ‘under environmental law’ could be challenged on the basis of Regulation 1367/2006. According to the General Court (GC), however, the concept of ‘environmental law’ had to be interpreted ‘very broadly’,Case T-9/19 ClientEarth v EIB [2021] EU:T:2021:42, para 120 and previously Case T-33/16 TestBioTech v Commission [2018] EU:T:2018:135, para 46. to include ‘any measure of individual scope subject to requirements under secondary EU law which, regardless of their legal basis, are directly aimed at achieving the objectives of EU policy on the environment’.Case T-9/19 ClientEarth v EIB [2021] EU:T:2021:42, para 126. In essence, ‘all acts of public authorities which run counter to the provisions of environmental law should be open to challenge’.ibid, para 125.

The ACCC criticized the Aarhus Regulation as it limited the internal review to acts of individual application.ACCC (n 28) paras 51 and 94. Moreover, for acts of general scope (to which Regulation 1637/2006 did not apply), the ACCC stated that Article 263(4) TFEU, as interpreted by the CJEU, constitutes an obstacle to access to justice in violation of Article 9(3) of the Convention.ibid, paras 58-78; see also ACCC (n 27). With reference to the changes made by the Treaty of Lisbon concerning legal standing, it then observed that it is highly unlikely that an NGO can be considered to be directly affected by an act of general scope in environmental matters and, therefore to be entitled to bring an action before the General Court to protect the environment.ACCC (n 28) paras 71-74. On this point, the ACCC recommended that ‘all relevant European Union institutions within their competences take the steps necessary to provide the public concerned with access to justice in environmental matters in accordance with article 9, paragraphs 3 and 4, of the Convention’ either by adopting a new or amended legislation implementing the Aarhus Conventionibid, para 123. or by establishing a ‘new direction in the jurisprudence of the European Union courts that will ensure compliance with the Convention’.ibid, para 121.

Consequently, the New Aarhus Regulation broadened the types of acts that can be subject to internal review. According to Regulation 2021/1767, an ‘administrative act’ now refers to ‘any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law’.Consolidated Version of Regulation 1367/2006, art 2(1)(g). The new definition – which also applies to administrative omissionsibid, art 2(1)(h). – contains some significant changes. First, it also comprises non-legislative acts of general scope, including those requiring implementing measures at national or Union level.In this regard, it should be recalled that in the Commission proposal, the definition of an administrative act excluded the act ‘for which Union law explicitly requires implementing measures at Union or national level’: Commission (n 33) 22. However, the ACCC expressly requested that this exception be removed: ACCC (n 37) paras 67 and 68. See also, eg, ClientEarth, ‘Comments on the third progress report on the implementation of request of the Meeting of the Parties ACCC/M/2017/3 (European Union)’ of 28 October 2020, paras 8-12: https://unece.org/fileadmin/DAM/env/pp/compliance/Requests_from_the_MOP/ACCC-M-2017-3_European_Union/Correspondence_with_the_communicants___observers/frComm_C32_M3_28.10.2020/frComm_C32_M3_28.10.2020_comments.pdf [accessed 16 June 2022]; and ClientEarth, ‘Practical examples requested by Committee’ of 25 November 2020, where, through a few examples, the scope of the change requested from the Commission is clarified: https://unece.org/fileadmin/DAM/env/pp/compliance/Requests_

from_the_MOP/ACCC-M-2017-3_European_Union/Correspondence_with_the_communicants___observers/frCommM3_ClientEarth_25.11.2020/frCommM3_ClientEarth_25.11.2020_practical_examples.pdf [accessed 16 June 2022]. The fact remains, however, that ‘acts adopted by public authorities of the Member States, including national implementing measures adopted at Member State level required by a non-legislative act adopted under Union law, do not fall within the scope of Regulation (EC) No 1367/2006, in accordance with the Treaties and the principle of the autonomy of the national courts’.Regulation 2021/1767, Recital No 16. Second, the new definition refers to acts containing ‘provisions that may contravene environmental law’.Consolidated Version of Regulation 1367/2006, art 2(1)(g). In essence, in line with the most recent case law of the General Court,Case T-9/19 ClientEarth v EIB [2021] EU:T:2021:42, para125. it is now possible to make a request for an internal review of all the measures adopted in alleged breach of environmental law and not only those which, pursuant to the original wording of Article 2(1)(g) of Regulation 1367/2006, were taken 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’: Commission (n 33) 5. Third, an administrative act is now to be understood as any act having ‘legal and external effects’. The replacement of the expression ‘legally binding and external effects’ with ‘legal and external effects’ clearly reflects the aim of the European legislator to broaden the number of acts for which internal review may be required.See on this Case C-16/16 P Belgium v Commission [2017] EU:C:2017:959 Opinion of

AG M Bobek, also See also M Eliantonio, ‘Judicial Review of Soft Law before the European and the National Courts. A Wind of Change Blowing from the Member States?’, in M Eliantonio, E Korkea-aho, and O Stefan (eds), EU soft law in the member states: Theoretical findings and empirical evidence (Hart 2021), 283-302. However, also in the light of Recital No 11 of Regulation 2021/1767,‘Preparatory acts, recommendations, opinions and other non-binding acts that do not produce legal effects vis-à-vis third parties and cannot therefore be considered to have external effects, in accordance with the case law of the CJEU, should, therefore, not be considered to constitute administrative acts under Regulation (EC) No 1367/2006’. See also Regulation 2021/1767, Recital No 12. the precise scope of the new wording is not entirely clear, especially with regard to soft law measures.Anrò (n 36) 17 f.

On the contrary, the New Aarhus Regulation has not changed the fact that the administrative remedy does not apply to legislative and judicial acts and those acts issued under rules on competition, infringement proceedings, Ombudsman proceedings and those before the European Anti-Fraud Office.Consolidated Version of Regulation 1367/2006, art 2(1)(c) and (2).

In any case, the new Aarhus regulation gave a satisfactory answer to another of the ACCC’s main concerns.

5.The Impartiality of the Internal Review

The third criticism of the Aarhus Regulation concerns the compatibility of the internal review mechanism with the requirements of Article 9(4) of the Aarhus Convention. The problem arises because the remedy is entrusted to the same institution or body that took the contested act and the subsequent legal proceedings cannot focus on the legality of the act allegedly breaching environmental law.

5.1.The Aarhus Regulation

Apart from a few marginal aspects, the legal framework of the internal review procedure remained largely unchanged under Regulation 2021/1767. The scope of the remedy is to assess the substantive and procedural legality of the challenged measure. To this end, non-governmental organizations can, within a peremptory time limit (originally six weeks), submit a written request for internal review to the EU institution or body that has adopted an administrative act allegedly infringing environmental law or, in case of an administrative omission, should have adopted it.Regulation 1367/2006, art 10. The request must put forward ‘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’.See, eg, Case C-82/17 P TestBioTech and Others v Commission [2019] EU:C:2019:719, para 69. In turn, within a peremptory time limit (originally eighteen weeks) from receipt of the request, the institution or body concerned must provide a reply, stating its reasons.Regulation 1367/2006, art 10(2). Neither the Aarhus Regulation nor any other implementing rulesThe Commission implemented Regulation 1367/2006 by means of two Decisions: Commission Decision 2008/50/EC and Commission Decision 2008/401/EC, Euratom of 30 April 2008 amending its Rules of Procedure as regards detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institution and bodies [2008] OJ 140/22, which identified the responsibilities for taking decisions on requests for internal review within the Commission itself. specifically regulates this procedure nor do they provide for any form of participation of the interested parties (e.g., the recipient of an authorization whose review has been requested by an NGO).

Pursuant to Article 12 of Regulation 1367/2006, non-governmental organizations could (and can) then challenge the decision taken by the institution or body of the Union on the request for internal review or its failure to act before the General Court. More specifically, the appellant can allege lack of powers, infringement of essential procedural requirements, infringement of the Treaties or of any legal rule relating to their application, or misuse of powers.Eg, Case T-108/17 ClientEarth v Commission [2019] EU:T:2019:215, para 56. The CJEU has made it clear that ‘such proceedings cannot be founded on new grounds or on evidence not appearing in the request for review’.Case C-82/17 P TestBioTech and Others v Commission [2019] EU:C:2019:719, para 39; also Case T-108/17 ClientEarth v Commission [2019] EU:T:2019:215, para 55. On the other hand, the General Court clarified that the institution or body concerned may not use arguments that are not mentioned in the reasoning of the contested decision as a grounds of defence: see Case T-9/19 ClientEarth v EIB [2021] EU:T:2021:42, paras 80-90. The Regulation, therefore, establishes an administrative remedy which is mandatory in nature.See, however, Section 3 above regarding Article 11(a)(a) in relation to acts of general application that do not entail implementing measures. In the legislative proposal which led to Regulation 1367/2006, the Commission clarified that

‘This preliminary procedure was introduced in order not to interfere with the right to access to justice under Article 230 EC Treaty, under which a person may institute proceedings with the Court of Justice against decisions of which it is individually and directly concerned. The addressee of the decision of internal review may have recourse to Article 230 EC Treaty …’.Commission (n 21) 17.

The consequences of this are reflected immediately in the different subject matter of the administrative remedy and that of the subsequent court proceedings. A decision of the General Court taken in December 2016, which was later confirmed by other rulings, stated that ‘The purpose of the internal review procedure is … to obtain a finding that the authorization decision is unlawful or unfounded’,Case T-177/13 TestBioTech and Others v Commission [2016] EU:T:2016:736, para 56. so that the institution or body that adopted the contested act ‘may either reject the request for internal review as unfounded by reasoned decision or on the ground that the internal review did not lead to a different result than the one obtained by the authorization decision or, as legally permitted, take any other measure it deems appropriate to amend the authorization decision, including amendment, suspension or repeal of an authorization’.ibid, para 52; similarly, Case C-82/17 TestBioTech and Others v Commission [2018] EU:C:2018:837, Opinion of AG M Szpunar, paras 39-42; Case C-82/17 P TestBioTech and Others v Commission [2019] EU:C:2019:719, para 38; and Case C-458/19 P ClientEarth v Commission [2021] EU:C:2021:802, para 49. On the other hand, the judicial review may only concern the legality of the decision rejecting the request for internal review and not the legality of the first decision.See GC Leonelli, ‘GMO authorisations and the Aarhus Regulation: Paving the way for precautionary GMO governance?’ (2019) 26(4) Maastricht Journal of European and Comparative Law, 505-523, 509-510. In other words, the pleas raised in the application for judicial review should ‘seek to show any errors of law or of assessment committed by the Commission in the decision on the request for internal review and not any errors committed’Case T-108/17 ClientEarth v Commission [2019] EU:T:2019:215, para 53; similarly, eg, Case

C-458/19 P ClientEarth v Commission [2021] EU:C:2021:145, Opinion of AG J Kokott, para 76; and Case C-458/19 P ClientEarth v Commission [2021] EU:C:2021:802, para 49. by adopting the initial measure.

This conclusion is based on Article 263(4) TFEU and cannot, therefore, be changed by the European legislator.See, eg, Commission (n 32) 24-25. As the recipient of the decision on the request for internal review, the NGO may challenge the result before the General Court;See, eg, T Crossen and V Niessen, ‘NGO Standing in the European Court of Justice – Does the Aarhus Regulation Open the Door?’ (2007) 16(3) Review of European Community & International Environmental Law, 332-340. however, it does not have the standing under Article 263(4) TFEU to challenge the first act, as it is neither directly nor individually concerned by that act.Case C-82/17 P TestBioTech and Others v Commission [2018] EU:C:2018:837, Opinion of

AG M Szpunar, para 67.

This explains the difference between this procedure and other forms of internal review laid down in EU law.See, eg, P Chirulli and L De Lucia, Non-Judicial Remedies and EU Administration (Routledge 2021), ch. I. Consider, for instance, the review provided for regarding access to the documents of institutions,Regulation 1049/2001, art 8. where the decision on the confirmatory application ‘entirely replaces the previous statement of position’ of the institution or body concerned;Joined cases T-355/04 and T-446/04 Co-Frutta Soc. coop. v Commission [2010] EU:T:2010:15, para 36 and more recently Case T-210/15 Deutsche Telekom AG v Commission [2017] EU:T:2017:224, para 81. or the administrative review available for matters of civil service,Consolidated Version of Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, art 90(2) and (3). where, depending on the case, the decision of the ‘appointing authority’ on a complaint made by an official, can lead either to the replacement of the first decision or its confirmation (so that the initial measure becomes the subject of judicial review).See, eg, Case T-21/17 RL v Court of Justice of the European Union [2017] EU:T:2017:907, para 26. In these cases, the legal action has a devolutive effect, in the sense that the General Court can reappraise the dispute as a whole; on the other hand, according to Article 263(4) TFEU, the legal action under Article 12 of the Aarhus Regulation cannot have such an effect and the General Court can only verify that the remedy has been handled and decided correctly.

However, this circumstance raises doubts as to the compatibility of the internal review with Article 9(4) of the Aarhus Convention.

5.2.Evaluation of the Internal Review

As a matter of fact, during the course of the compliance procedure, ClientEarth pointed out that the remedy provided for in Article 10 of the Aarhus Regulation does not constitute a review procedure for the purposes of Article 9(3) and (4) of the Convention, given that it is neither adequate, nor effective or fair.ACCC (n 28) paras 112-113. The ACCC found that this problem could arise if internal review were the only remedy available; however, it is superseded by Article 12 of the Regulation, which allows the NGO concerned to institute proceedings against the decision on internal review.ibid, paras 114-116. Despite this consideration, ClientEarth expressed concern that the European courts might limit their review to investigating how the European institution or body dealt with the complaint, rather than examining the initial act itself.ClientEarth, ‘Comments on the European Commission’s submission made on behalf of the European Community in relation to communication ACCC/C/2008/32’, 28 August 2009,

3-4: https://unece.org/DAM/env/pp/compliance/C2008-32/correspondence/28.08.2009/ClientEarthCommentsACCC-C-2008-32.pdf [accessed 13 June 2022]. The ACCC countered this by pointing out that Article 12(1) of Regulation 1367/2006 can be interpreted as meaning that judicial proceedings may have a broader scope, as they can also concern the legality of the initial decision.ACCC (n 28) para 118. Accordingly, the Committee concluded as follows: ‘unless and until there is a contrary interpretation by the European Union courts, the Committee does not conclude that article 12 of the Regulation is inconsistent with the requirements of the Convention’.ibid, para 119.

In essence, from the ACCC’s reasoning, it follows that when an administrative act is issued in alleged violation of environmental law, it must be possible to subject that act to a fair (i.e., an impartial)‘The Aarhus Convention: An Implementation Guide’ (n 1) 188. review: if the administrative review does not meet this requirement, it must subsequently be possible for the contested act to be subject to the control of a judicial body - the legal action should then have a devolutive effect. Any solutions that lead in a different direction are not compatible with Article 9(3) and (4) of the Convention.

In this regard, however, it should be recalled that the ACCC findings were published only a few months after the General Court had issued its first judgement in which it ruled that the judicial review could only relate to the decision on the internal review and not the first measure challenged by an NGO.Case T-177/13 TestBioTech and Others v Commission [2016] EU:T:2016:736, para 56; subsequently see, eg, Case C-458/19 P ClientEarth v Commission [2021] EU:C:2021:145, Opinion of AG J Kokott, para 76; Case T-108/17 ClientEarth v Commission [2019] EU:T:2019:215, para 53; and Case

C-458/19 P ClientEarth v Commission [2021] EU:C:2021:802, para 49.

This is a key point. The consequence of this case law is that the only permissible remedy vis-à-vis acts allegedly breaching environmental law is the internal review. However, contrary to Article 9(4) of the Convention,It is also worth noting that, according to the Court of Justice, Article 9(3) of the Convention requires Member States to ensure that NGOs have access to an impartial review mechanism to challenge acts issued in violation of environmental law: see, eg, Case C-240/09 Lesoochranárske zoskupenie [2011] EU:C:2011:125 and Case C-664/15 Protect Natur-, Arten- und Landschaftschutz Umweltorganisation [2017] EU:C:2017:987. Regulation 1367/2006 does not ensure that this procedure is fair, i.e. ‘impartial and free from prejudice, favouritism or self-interest’.ACCC (n 15) para 44; ‘The Aarhus Convention: An Implementation Guide’ (n 1) 201. Beyond the reference to the ACCC case law and the Aarhus Implementation Guide,‘The Aarhus Convention: An Implementation Guide’ (n 1) 188 and 198; on the legal status that the CJEU accords to this Guide (which, in turn, is based on ACCC case law) when assessing the compatibility of European law with the Aarhus Convention, see I Hadjiyianni, ‘The CJEU as the gatekeeper of international law: the cases of WTO law and the Aarhus Convention’ 70(4) International & Comparative Law Quarterly, 895-933, 919-927. the issue can be clarified by referring to the principle of impartiality enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union. See, in general, Case C-894/19 P Parliament v UZ [2021] EU:C:2021:497, Opinion of

AG P Pikamäe, where an extensive review of case law can be found. In this regard, the Court of Justice established that it is incumbent upon

‘institutions and bodies to comply with both components of the requirement of impartiality, which are, on the one hand, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice and, on the other, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned’.Eg Case C-680/16 P August Wolff and Remedia v Commission [2019] EU:C:2019:257, para 27; and previously Case C-439/11 P Ziegler v Commission [2013] EU:C:2013:513, para 155.

The internal review provided for in Regulation 1367/2006 does, in fact, lack impartiality since the decision-making power is vested in the same institution or body that issued the contested act, meaning that will tend to adopt a defensive behaviourSee, in general, Chirulli and De Lucia (n 105) 57-59. and to show bias in favour of that act.Case C-680/16 P August Wolff and Remedia v Commission [2019] EU:C:2019:257, para 37; and Case C-894/19 P Parliament v UZ [2021] EU:C:2021:863, para 54. In these cases, there may be legitimate doubts about the lack of impartiality of the institution or body concerned.In this regard, a point deserves clarification: while a problem of impartiality arises for most forms of internal review under European Union law, this is compensated for by the fact that in these hypotheses the legal action has the effect of submitting the entire dispute (including the first act) to review by the European courts. On this, see Subsection 5.1. above.

This is particularly evident in the case of the Commission, where the Director General or the head of department ‘responsible for the application of the provision on the basis of which the administrative act was adopted’Commission Decision 2008/401/EC, art 3(1). is empowered to take decisions on the admissibility of a request for internal reviewibid, art 4(3). and the Member of the Commission responsible for the application of the provisions on the basis of which the administrative act concerned was adopted is empowered to decide that the administrative act whose review is sought, or the alleged administrative omission, is not in breach of environmental law.ibid, art 5(2). These circumstances also call into question the effectiveness of the internal review, or in other words, its ability to ‘ensure the intended effect’.‘The Aarhus Convention: An Implementation Guide’ (n 1) 198. This is confirmed by the data available, which show that, out of the forty-eight requests for review submitted to the Commission between 2007 and October 2021 (when the New Aarhus Regulation come into force), the majority were declared inadmissible as they were directed against acts of general application; those declared admissible, on the other hand, were all rejected as unfounded.The data are https://ec.europa.eu/environment/aarhus/requests.htm [accessed 15 June 2022]. See also Hadjiyianni (n 17) 793. See also Milieu (n 31) 43 and annex 2.

The problem also arises for the other institutions and the EU bodies. For example, as far as the Council is concerned, it does not even appear that a specific procedure has been adopted for conducting the internal review. This lack of attention to the fairness of the administrative remedy is now of greater concern, since between the approval of the New Aarhus Regulation and 15 June 2022, six applications for internal review had already been submitted to the Council.See the data https://www.consilium.europa.eu/en/documents-publications/public-register/

public-register-search/results/?WordsInSubject=&WordsInText=&DocumentNumber=7725%2F22&InterinstitutionalFiles=&DocumentDateFrom=&DocumentDateTo=&

MeetingDateFrom=&MeetingDateTo=&DocumentLanguage=EN&OrderBy=DOCUMENT_DATE+DESC&ctl00%24ctl00%24cpMain%24cpMain%24btnSubmit=

[accessed 15 June 2022].

The New Aarhus Regulation did not address these critical issues and only made marginal changes to the internal review.In detail, the New Aarhus Regulation extended the time limit for submitting the request for internal review from six to eight weeks (Consolidated Version of Regulation 1367/2006, art 10(1)(2)) and that for communicating the decision of the requested institution or body from eighteen to sixteen weeks (ibid, art 10(2)) and in particular cases to twenty-two weeks (art 10(3)(2); it provided for the possibility for institutions and bodies to deal jointly with multiple requests for review of the same administrative act or administrative omission (ibid, art 10(2)); it established online systems for the receipt of requests for internal review (ibid, art 11a(2)); and it set out the obligation for Union institutions and bodies to publish all requests for internal review and all final decisions on those requests (ibid, art 11a(1)). However, the lack of impartiality of the administrative remedy potentially neutralises the important innovations introduced by the Regulation 2021/1767.

6.The Lack of Impartiality of the Internal Review and Possible Solutions

At this point, the question arises as to whether regulatory interventions that are more in line with conventional obligations are conceivable.On this issue, see, eg, Schoukens (n 48) 193-195. The discussion above has made it clear that, in theory, the European legal system could comply with Article 9(4) of the Aarhus Convention in two different ways. Firstly, it could be stipulated that an act issued in breach of environmental law should also be challengeable before the EU courts once the internal review has been carried out. However, this solution is not feasible, since it is contrary to Article 263(4) TFEU, as interpreted by the CJEU.See Subsection 5.1. above. Secondly, the EU legislator could make the internal review more impartial, and this seems to be the only viable solution at the moment.

To illustrate the avenues that could be pursued to this end, it is worth starting with the approach used by Peter Cane to analyse the system of Administrative Tribunals in the United Kingdom and Australia.See P Cane, ‘Judicial Review in the Age of Tribunals’ (2009) Public Law, 479-500, 480;

P Cane, Administrative Tribunals and Adjudication (Hart Publishing 2009), 12 f. On EU law, see Chirulli and De Lucia (n 105) 20-23. In short, he identified two basic models for carrying out the review of an administrative decision at the request of a private individual or an association. In the first model, ‘implementation’, the review is conducted by the same office that adopted the contested measure or by a different office that is nonetheless part of the same administration. The review body, in principle, acts here with a view to promoting the public interests underpinning the rules, while respecting the interests of individuals. The second model, ‘adjudication’, is conducted by an impartial, often external, body with the primary objective of ensuring the protection of the rights of the parties involved in a dispute, ‘without unduly hindering the promotion of social goals’.Cane, Administrative Tribunals (n 134) 13. The review in these cases must comply with certain principles, including the independence and impartiality of the decision maker, the procedural equality of parties involved and the adversarial structure of the procedure. Although adjudication is typical of judicial bodies, it can also be entrusted to administrative bodies.Cane, ‘Judicial Review’ (n 134) 480.

Two points should be made about these two basic models. First, there could be a combination of the two: for example, a remedy inspired by the implementation logic could be structured in such a way as to ensure an adversarial procedure and the respect for the principle of the procedural equality of the parties concerned. Second, the two models are generally used in connection with requests for review filed by individuals to protect their own rights. However, this does not exclude that they may also apply where the request for review is made by an NGO promoting an issue of general interest: in such cases, it is as if the NGO were asserting a right of its own.

That being said, the internal review provided for by Regulation 1367/2006 clearly follows the implementation rationale. It would, however, be possible for Article 9(3) and (4) of the Aarhus Convention to be applied to EU law by means of administrative appeals that are more in line with the adjudication logic. In fact, the Treaty contains a number of provisions that directly (e.g., Article 263(5) TFEU) or indirectly (e.g., Article 298(1) TFEU)See also Charter of Fundamental Rights of the European Union, art 41. concern administrative remedies. Nonetheless, apart from the provisions concerning the EU Ombudsman (Article 228 TFEU)See also ibid, art 43. and the protection of personal data (Article 16 TFEU),See also ibid, art 8. the Treaty leaves the EU legislator with a much wider scope for choice (including that of standing) than in the case of legal proceedings.Chirulli and De Lucia (n 105) ch VII, Section 5. To clarify this issue, a distinction should be made between EU agencies and institutions.

For some decentralised agencies, EU law based on Article 263(5) TFEU already provides for a system of rights protection entrusted to ‘quasi-judicial’ bodies (the Boards of Appeal), which follows the adjudication logic.See, eg, Joined Cases T‑133/08, T-134/08, T-177/08 and T‑242/09 Ralf Schräder v Community Plant Variety Office (CPVO) [2015] EU:C:2015:332, para 137. This involves the administrative review of certain acts of a number of agencies which is carried out by independent bodies at the request of the parties concerned.On this issue see, eg, P Chirulli and L De Lucia, ‘Specialised adjudication in EU administrative law: the Boards of Appeal of EU agencies’ (2015) 40(6) European Law Review, 1305-1347 and more recently M Chamon, A Volpato and M Eliantonio (eds), Boards of Appeal of EU Agencies (Oxford University Press 2022). On this matter, it is interesting to note that Boards of Appeal have been set up, inter alia, within the European Chemicals AgencyConsolidated Version of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC [2006] OJ L 396/1, arts 89-94. and the European Aviation Safety Agency,Consolidated Version of Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 [2018] OJ L 212/1, arts 105-115. i.e., two agencies which issue measures that can have a significant impact on the environment and which should, therefore, in principle, be appealable under Article 9(3) of the Aarhus Convention. Since the Treaty does not contain provisions on the Boards of Appeal, the EU legislator could certainly allow non-governmental organizations to challenge acts of the two agencies (possibly including soft law acts) which are in breach of environmental law before these bodies; at the same time, it could identify a regulatory framework regarding the suspension of the decisions challenged by NGOs.Under Regulation 1907/2006, art 91(2) appeals brought before the Board of Appeal against decisions of the European Chemicals Agency have suspensive effect, whereas, under Regulation 2018/1139, arts 108(2) and 111(2), the Executive Director or the Board of Appeal of the European Union Aviation Safety Agency may suspend the application of the decision appealed against. In such cases, moreover, it would be possible to calibrate the powers of the Board of Appeal, in order to differentiate them from those of ordinary proceedings. One important point must also be highlighted here: the opportunity for environmental associations to use an administrative remedy in line with the model of adjudication, would in itself suffice to fulfil the obligations arising from Article 9(3) and (4) of the Aarhus Convention, making a further stage of proceedings before the General Court unnecessary.In this regard, a clarification is necessary. The establishment of the Boards of Appeal is based on Article 263(5) TFEU, which has a broad scope. The expression ‘specific conditions and arrangements concerning actions brought by natural or legal persons’ may indeed concern not only the establishment of the Boards of Appeal, but also ‘persons actively entitled to institute proceedings’: see Final report of the discussion circle on the Court of Justice, set up within the European Convention, of 25 March 2003, CONV 636/03, para 26. Consequently, for individual agencies, the founding Regulations could depart from Article 263(4) TFEU by extending the right to bring an action for annulment on condition that the appellants are impacted by the contested act (ie, the act must ‘produce legal effects in relation to them’). It would be possible, for example, to recognise that the public concerned (ie, the ‘public affected or likely to be affected by, or having an interest in, the environmental decision-making’: Aarhus Convention, art 2(5)), may bring an action directly before the General Court. Obviously, this is a solution that would fully meet the obligations laid down in Article 9(3) and (4) of the Aarhus Convention.

However, the heart of the problem does not lie with the agencies, but with the Commission, as demonstrated by the fact that, as far as is known, the Commission itself has been the addressee of almost all requests for internal review to date.Hadjiyianni (n 17) 793. It should be noted, however, that between the entry into force of Regulation 1367/2006 and its amendment one request for an internal review also concerned the European Investment Bank: see Case T-9/19 ClientEarth v EIB [2021] EU:T:2021:42; and another concerned the Council: see Harryvan and Jans (n 24) 58. For internal review requests addressed to the Council after the entry into force of the New Aarhus Regulation, see n 130 above. In this regard, the matter is more complex. Unlike for agencies (Article 263(5) TFEU), the Treaty does not provide that acts issued by the Commission (and of the other institutions) may be subject to forms of administrative review based on adjudication logic, i.e., forms of independent and impartial review entrusted to entities other than the CJEU.The Treaty can of course provide for exceptions: see, eg, TFEU, Art 16 and Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC [2018] OJ L 295/39, arts 57 and 58. This is because it would call into question the exclusive responsibility of the Commission for its own decisions, in breach of Article 13(2) of the Treaty on European Union.The statement can probably be traced back to the principle of institutional balance: on this issue see, eg, P Craig, ‘Democracy and Rule-making Within the EC: An Empirical and Normative Assessment’ (1997) 3(2) European Law Journal, 105-130; K Lenaerts and A Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’, in C Joerges and R Dehousse (eds) Good Governance in Europe's Integrated Market (Oxford University Press, 2002), 44;

J-P Jacqué, ‘The principle of institutional balance’ (2004) 41(2) Common Market Law Review,

383-391; see also, in a different perspective, A Fritzsche, ‘Discretion, Scope of Judicial Review and Institutional Balance in European Law’ (2010) 47(2) Common Market Law Review

361-403. This possibility must, therefore, be ruled out.It is obviously a different matter for the European Ombudsman, who, in his action against maladministration, cannot take decisions that are binding on European institutions and bodies: see now Regulation (EU, Euratom) 2021/1163 of the European Parliament of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom [2021] OJ L253/1, arts 1(4) and 4.

This does not exclude the fact that the internal review could be regulated in a manner that is more consistent with the requirements of Article 9(3) and (4) of the Aarhus Convention. Without prejudicing the competence of the Commission to take the final decision on complaints from NGOs, the review procedure could be complemented by an adjudicative step. For example, an impartial and independent, permanently established body could be entrusted with the task of giving its opinion on the request for review, at the end of an adversarial procedure involving all the parties concerned (including the Commission Directorate or department which dealt with the first decision).When deciding on the request for internal review, the Commission should, in turn, take due account of this opinion, although it would not be bound by it. Vis-à-vis the final decision of the Commission, the NGO could then appeal to the General Court, asking for an assessment of the formal and substantive legality of the review procedure.

A similar mechanism could also apply to acts of the Council and the other institutions, as well as the European Investment Bank, that have an impact on the environment.

It should also be noted that this procedural scheme has already been tested in EU law within the so-called Single Supervisory Mechanism. As is well known, Article 24 of Regulation 1024/2013Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions [2013] OJ L 287/63, art 24; see also Decision of the European Central Bank 2014/360/EU of 14 April 2014 concerning the establishment of an Administrative Board of Review and its Operating Rule [2014] OJ L 175/47. established an administrative commission (the Administrative Board of Review) within the European Central Bank composed of experts in the fields of banking or other financial services, which has the task of carrying out, at the request of the natural and legal persons concerned, an administrative review of the decisions adopted by the ECB itself in the field of credit supervision.See, eg, K Lackhoff and M Meissner, ‘Contesting Decisions in the Single Supervisory Mechanism: What Banks must observe for a proceeding at the Administrative Board of Review’ (2015) 30 Journal of International Banking Law and Regulation, 285-295; C Brescia Morra, R Smits, and A Magliari, ‘The Administrative Board of Review of the European Central Bank: Experience After 2 Years’ (2017) 18 European Business Organization Law Review, 567-589. The Administrative Board of Review acts impartially and independently, following an adversarial procedure (involving the possible hearing of all the parties involved, including the ECB), expresses its opinions to the Supervisory Board, not only on the possible suspension of the contested decision, but also on its procedural and substantive compliance with Regulation 1024/2013.

In short, this is a case of administrative review inspired by the implementation rationale, tempered, however, by the fact that the central stage of the proceedings follows the adjudication logic. This means that the strengthening of the rights of the interested parties is aimed at conditioning the powers of the final decision-maker while leaving them formally unaltered.Chirulli and De Lucia (n 105) ch. II.

This balance also seems to be optimal in order to fully apply Article 9(3) and (4) of the Aarhus Convention to EU institutions.

7.Conclusions

In its desire to act in accordance with Article 263(4) TFEU, as interpreted by the CJEU, the European legislator overlooked some options that would have ensured greater compliance of EU law with the Aarhus Convention and in particular the possibility of making internal review fairer and more effective. It is unclear why these solutions were not considered by the legislator, nor why the amendments adopted by the European Parliament aimed at ensuring that the review process was more open to the participation of all stakeholdersEuropean Parliament (n 34), Recital No 12a and art 10(2). According to Recital No 12a, ‘During the consideration of a request for internal review, other parties directly affected by the request in question, such as companies or public authorities, should be able to submit comments to the Union institution or body concerned within the deadlines set out in Regulation (EC) No 1367/2006’ and according to Article 10(2) ‘Within four weeks of submission of such a request, third parties directly affected by the request may submit comments to that Union institution or body’. were not incorporated into Regulation 2021/1767.

The fact remains that leaving the internal review structure unchanged means not only circumventing the obligations of the Convention, but also pursuing a policy of closure,See in general, L De Lucia, ‘Locus Standi and distrust of the public administration. A comparison of three models’ (2017) 10(2) REALaw, 7-26. based ultimately on the conviction that the results produced by European executive power are indisputable. In this way, the European legislator confirmed, in substance, its unwillingness to subject administrative action in environmental matters to an effective control by the ‘indirect powers’ disseminated throughout European societies.P Rosanvallon, Counter-Democracy. Politics in an Age of Distrust (Cambridge University Press 2008), 253. The fact that not a single decision was found to violate environmental law and has been revised or withdrawn by the Commission since 2007 leaves no need for further comment on this point.

The EU should, as the Aarhus Convention requires, pursue exactly the opposite policy, and allow the distrust expressed by its citizens to emerge through fair, objective and effective remedies that can lead to the modification of decisions that have already been taken.See, eg, Barritt (n 1) ch. III. To this end, however, even in environmental matters, the legislator should free itself from traditional and reassuring legal constructions and, as has occurred in other sectors (such as that of banking supervision), should take new and bolder paths, always in full compliance with the Treaty. Only by abandoning this defensive attitude towards citizens is the EU likely to be able to make the qualitative leap forward that it badly needs.