Failing to preach by example? The EU and the Aarhus Convention

The sixth Meeting of the Parties (MOP) of the Aarhus Convention, in Budva, Montenegro, 11-13 September 2017, was expected to end an eventful story that started in 2008. The MOP had to examine a draft decision of non-compliance by the EU in relation to article 9 regarding access to justice, but this decision (VI/8 f) was postponed to the next MOP, in 2021. The case (ACCC/C/2008/32), raised almost nine years earlier by environmental law NGO, Client Earth, expressed the continuing demand of European NGOs for standing before the Court of Justice of the European Union (CJEU). At the heart of the complaint was the fact that Regulation 1367/2006, applying the Aarhus Convention to EU institutions, limited access to an administrative review of measures of individual scope. NGOs and members of the public thus have no standing, as most acts or omissions that they would challenge concern measures of general scope. Here, based on observation of the sessions and interviews with NGOs and members of national delegations (September 2017), I track the negotiation process leading to this decision in order to assess its outcomes. Has it diminished the authority of the Convention? Does it call into question the future role of the EU within the Convention? To understand the meaning of this decision, it is useful to reflect on the sequence of events in Budva, and to consider the negotiation dynamics between the Aarhus Parties as well as between EU institutions.