43 - The Compliance Committee and the exhaustion…

We all know that the Aarhus Compliance Committee (“ACCC”) is overworked, under resourced and staffed. The time it is taking to hear cases and make decisions is far, far too long. It is unacceptable.

Moreover, additional staffing and resources may well not be forthcoming.

So, for the compliance system to carry on functioning at all it will have to become somewhat more selective on the cases it determines to be admissible.

Decision I/7 says:
“ 20. The Committee shall consider any such communication unless it determines that the communication is:
…
(d) Incompatible with the provisions of this decision or with the Convention.

21. The Committee should at all relevant stages take into account any available domestic remedy unless the application of the remedy is unreasonably prolonged or obviously does not provide an effective and sufficient means of redress.”

The 5th Meeting of the Parties in July 2014 reinforced the principle on domestic remedies in Decision V/9 (ECE/MP.PP/2014/2/Add.1).

In this regard I would note the recent decision in ACCC/C/2023/2026. This ruled inadmissible a communication against Spain based on non-exhaustion of domestic remedies.

The communication concerned the alleged failure to provide environmental information in relation to the initiation of the construction of a Competitive Motor Circuit Racetrack in the municipality of Granadilla de Abona, Tenerife. Allegations were made of a large number of breaches of the Convention. In the communication itself it was noted that:

A complaint had been made to “the Defensor Del Pueblo”, in effect an Ombudsman, but it was said that having been notified of acceptance of the complaint nothing more had been heard;
That the only other remedy was Court proceedings, but this had not been initiated as such proceedings would take years and by then the Motor Circuit would be built.

The ACCC in holding the communication to be inadmissible said:

“ … the Committee determined the communication to be inadmissible under paragraphs 20 (d) and 21 of the annex to decision I/7 of the Meeting of the Parties to the Convention, for failure to demonstrate that the available domestic remedies have been used and completed. With respect to the allegations within the scope of the communicant’s complaint to the Ombudsman, those allegations are inadmissible due to the Ombudsman’s procedure still being ongoing. Regarding any allegations outside the scope of the complaint to the Ombudsman, the communicant has not shown that any available remedies have been used and completed.”

This was clearly the right decision.

The compliance mechanism will fail if the ACCC allows complaints to be brought where domestic remedies have not been used.
But the ACCC has not always been hot on this issue.

Take for example, ACCC/C/2010/53, the first case I appeared in Geneva on.

It concerned the Edinburgh Tram – now up and running and which I used for the first time recently! The communication related principally to the failure of the Edinburgh City Council to disclose environmental information. The ACCC’s decision under the heading “Domestic remedies” referred to a failed complaint to the Ombudsman and then said at para. 69 “No other domestic or international procedures have been initiated to address the matters referred to in the communication.” But then in the decision it is also noted that “In the context of release of data, the Committee also takes note that the communicant did not use the free-of-cost administrative procedure of complaint to the Scottish Information Commissioner.” The communication self-evidently should have been rejected on that basis, but it was not. On behalf of the UK in that communication it was submitted:

“if the communicant nonetheless believes that Edinburgh City Council are holding further relevant data which has not been communicated it has domestic remedies which it could pursue but appears not to have. The Environmental Information (Scotland) Regulations 2004 implement Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC (O.J. No. L 41, 14.2.2003, p.26) as regards Scottish public authorities (which includes Edinburgh City Council). They provide for the making available of environmental information held by those authorities, subject to exceptions allowed for by the Directive. If a request for disclosure under these Regulations is refused complaint can be made to the Scottish Information Commissioner. If the complaint is upheld he can require disclosure. If the Commissioner refused to uphold the complaint the complainant can take the case to the Court of Session”

Of the 207 communications made to the ACCC only 59 have been rejected as inadmissible with only a handful of those rejected on the basis of failure to exhaust local remedies. It is clear that more could have been, and should have been, rejected on that basis.

In one of its earliest decisions ACCC/C/2004/07, and the first to be ruled inadmissible, the ACC said of para 21 of the Annex to Decision I/7

“The Committee’s view is that this provision does not imply any strict requirement that all domestic remedies must be exhausted, i.e. the Committee would not be precluded from considering a case even where the application of the remedy was not unreasonably prolonged. On the other hand, the failure by a communicant to make use of available domestic remedies might be grounds for the Committee to advise that the matter be pursued at the level of domestic procedures rather than (for the time being) through the compliance mechanism.”

See similarly, ACCC/C/2022/196:

“5. Furthermore, in accordance with paragraph 21 of the annex to decision I/7, the Committee “should at all relevant stages take into account any available domestic remedy unless the application of the remedy is unreasonably prolonged or obviously does not provide an effective and sufficient means of redress”. The Committee’s view is that this provision does not imply any strict requirement that all domestic remedies must be exhausted, i.e., the Committee would not be precluded from considering a case even where the application of the remedy was not unreasonably prolonged. On the other hand, the failure by a communicant to make use of available domestic remedies might be grounds for the Committee to determine that the matter should be pursued at the level of domestic procedures rather than (for the time being) through the compliance mechanism”.

Interestingly I came across the following recent answer given by Mr Sinkevičius on behalf of the European Commission (6 May 2024)

“Written question

The Ombudsman offers an alternative non-judicial remedy on alleged instances of maladministration but cannot make a legally binding decision on an alleged breach of the Aarhus Convention and the respective implementing legislation at the EU level. Only the EU courts have this role.

The Commission notes that the ACCC has already accepted the preliminary admissibility of this case. The Commission will still submit its observations, both on admissibility and on substance …”

So, for context this relates to ACCC/C/2024/207 where the ACCC have held the communication admissible. The communicant had gone to the Ombudsman but not taken proceedings before the European Courts.

The ACCC rules the communication admissible saying:

It does seem an odd decision to hold that it is not necessary to pursue General Court proceedings to exhaust domestic remedies.

The Commission’s submissions on exhaustion of domestic remedies are now available here. They make compelling reading in my view.

Thus, it is said (emphases in the original):

“a) Exhaustion of domestic remedies

24. The European Commission notes that the Communicant did not exhaust the judicial means of redress available at the level of the European Union.

25. As far as requests for public access to documents are concerned, the available means for redress are, first, to address a confirmatory application to the SG.

26. Against a negative reply by the Commission (SG) to a confirmatory request for access to documents, the means of redress are then to bring proceedings before the General Court of the European Union, under the conditions of Article 263 TFEU, or to file a complaint with the European Ombudsman, under the terms of Article 228 TFEU. These means of redress are always indicated in the reply, so that the applicant is fully informed about the judicial and non-judicial remedies available.

27. In the case at hand, making a complaint to the European Ombudsman cannot be regarded as exhausting the available domestic remedies, as the Communicant implies.

28. Firstly, the decisions by the European Ombudsman are not legally binding, so that it is highly questionable whether bringing a case before the European Ombudsman qualifies as a "remedy" in the sense of paragraph 21 of the Annex to Decision I/7 on Review of Compliance.

29. Furthermore, the European Ombudsman is an alternative non-judicial remedy that does not necessarily have the same objective as judicial proceedings. Unlike the General Court, the European Ombudsman cannot annul the Institution's decision, should she find maladministration or otherwise disagree with the substance of the reply to the confirmatory request for access to documents.

30. It is clear from the Communicant’s allegations that it addresses issues on which the Ombudsman cannot make a legally binding decision, namely on an alleged breach of the Aarhus Convention and the respective legislation at the level of the EU that falls under the competence of the EU Courts, which have not been seized in the case at hand”

The submissions then turn to the adequacy of the domestic remedies:

“31. In the Preliminary Determination of Admissibility of this Communication, the ACCC underlines that the "Committee's view is that this provision does not imply any strict requirement that all domestic remedies must be exhausted" (page 1, paragraph 5).

32. As already mentioned in its observations to a previous compliance case, the European Commission does not share this interpretation. The terms of paragraph 21 of the Annex to Decision I/7 on Review of Compliance leave no doubt that domestic remedies are to be taken into account, unless they are unsatisfactory.

33. As outlined above, the remedy of proceedings before the General Court of the EU is available against a Commission decision giving a negative reply to a confirmatory request for access to documents.

34. These Court proceedings do not unreasonably prolong the remedy, and they do without any doubt provide an effective and sufficient means of redress. As a matter of fact, the Court of Justice is the only EU institution that can make legally binding interpretations of Regulation (EC) No 1049/2001 and conclude on its incorrect application ..”

I shall watch out for, and update on, what happens on this one …

The previous case referred to by the Commission where it contested the notion that there was not a strict requirement to exhaust domestic remedies is ACCC/C/2013/96. See the Commission’s submissions here:

The plain and brutal truth is that the ACCC simply does not have the staff and resources to undertake its current case-load. Whether it will be given more resources by the State parties is uncertain. If it wants to ensure that the compliance mechanism continues functions it needs to get stricter on rejecting cases where there is an unused domestic remedy.

This blog post was written by James Maurici KC.

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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.