35 - ClientEarth v Council of the European Union…

In this claim before the General Court (9^th Chamber), ClientEarth sought to annul two decisions taken by the Council of the EU (the “Council”) on 09 August 2021 (Decisions SGS 21/2869 and SGS 21/2870) and obtain access to an opinion issued by the Council’s legal service relating to amendments to the Aarhus regulations.

The background in brief

The EU approved the Aarhus Convention in June 1998. In 2006, it adopted Regulation (EC) No 1367/2006, more commonly known as the “Aarhus Regulation”. Art 10 of the Aarhus Regulation provided for any NGO which met certain criteria (outlined in Art 11) to be able to ask an EU institution or body to review certain internal acts (defined as “any measure of individual scope under environmental law, taken by an EU institution or body, and having legally binding and external effects.”).

In March 2017, in decision ACCC/C/2008/32 the Aarhus Convention Compliance Committee (“ACCC”) said the Regulation was not compliance with Art 9(3) and (4) because (i) of the restrictive nature of acts which could be reviewed and (ii) because of the limited scope of who could ask for a review.

In 2020, the Commission published a proposal to amend the Aarhus Regulation, which in February 2021 the ACCC said was a “significant positive development” but it still had concerns.

In May 2021 the Council’s legal service issued an opinion on the proposal (the snazzily titled document 8721/21), and it was that which ClientEarth sought.

In July 2021 the Council and European Parliament reached an agreement on the amendment of the Aarhus Regulation, and the Commission duly informed the ACCC of that provisional agreement. The ACCC reiterated its observations of February 2021.

They asked for in May 2021, and the Council granted access to certain paragraphs. ClientEarth then made confirmatory applications, leading to the Council to give them a couple more paragraphs but still refused access to the opinion as a whole. ClientEarth appealed to the CJEU.

The CJEU’s decision

ClientEarth’s application was made under Regulation (EC) 1049/2001 regarding public access to European parliament, Council and Commission Documents (the “Access Regulation”). It alleged (1) error of assessment in applying Art 4(3) relating to the protection of the decision-making process; (2) error of assessment in applying the Art 4(2) exception relating to the protection of legal advice; (3) error of assessment relating to the protection of the public interest regarding international relations and (4) infringement of Art 4(6) of the regulation in failing to grant wider access to the requested document.

ClientEarth won on points (1)-(3) so the CJEU did not need to consider point (4) ([120]). It is the claim based on Art 4(2) that is most interesting, as it shows the wide ways in which legal advice is disclosable under the Access Regulation. The applicants argued that that the requested document, issued in the context of a legislative process, is “not particularly sensitive” such that the Council erred in considering its disclosure would undermine the protection afforded to legal advice. As the Access Regulation imposes, in principle, an obligation to disclose legal advice relating to legislative processes unless it is of a particularly sensitive nature or of a particularly wide scope ([52]). The CJEU held that it was not – the document itself wasn’t sensitive (even if the context was) and even if it would put the Commission in difficulty in defending matters before the EU Courts – that was “too general an argument to justify an exception to the openness provided for by the [Access Regulation]” [74]. As to width, having reviewed the document, the various arguments put forward by the Commission against disclosure were not made out ([86]).

Overall the decisions were annulled.

Stepping back, this is a helpful reminder of how broad the Access Regulation is, and what a powerful tool it is for those operating in the EU.

This blog post was written by Nick Grant.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.