The Concept of “Provisions that May Contravene Environmental Law” Pursuant to the (Reformed) Regulation (EC) 1367/2006: Filling the Gap between Acts and Omissions Amenable to Internal Review

In Bloom, the General Court was confronted with the interpretation of one of the conditions for the admissibility of requests for internal review introduced by the 2021 reform of the Aarhus Regulation: the requirement that the act contested contains “provisions that may contravene environmental law.” That issue emerged from an NGO request to the Commission seeking the review of an external act that prevented the binding legal effect of new international provisions on tuna fishing. Given that such an act did not entail any modification of the pre-existing legal framework, the Commission contended that it did not contain any provision contravening environmental law. The General Court’s judgment contradicts the Commission’s stance by unveiling that the dividing line between acts and omissions is not self-evident. Indeed, the peculiar layout of some decision-making procedures at the EU and international levels may give rise to legal instruments sitting on the boundary between acts and omissions. That is the case of the act at issue in Bloom, which, similarly to an omission, does not entail any amendment to the legal status quo. Against this background, the case under analysis shows that even such hybrid “formally acts/substantively omissions” decisions must be amenable to internal review.