The Extraterritorial Reach of EU Environmental Law and Access to Justice by Third Country Actors
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The EU conducts its external relations through different types of tools, including through unilateral domestic measures with extraterritorial implications that extend its regulatory power to processes occurring partly abroad. These are increasingly prevalent in the area of environmental protection, including climate change. Examples include the sustainability criteria for biofuels, the inclusion of aviation emissions in the EU emissions trading system, ship recycling, exports of electrical and electronic waste and imports of timber. Because these measures are unilateral in nature, developed within the EU legal order, but have important legal and policy effects beyond EU borders, they raise complex legitimacy questions and may give rise to an external accountability gap. The role of EU administrative law, which controls the exercise of EU public power, is important in “disciplining” the exercise of EU power beyond EU borders and filling this gap. The Article explores some of the novel regulatory techniques employed in these kinds of internal measures to conduct external action and how administrative law responds to their complexities. It focuses on access to justice in the EU legal order in exploring the extent of an external accountability gap. The constraints of accessing the EU judicial system may accentuate the external accountability gap if the EU cannot be held into account on the basis of its own rule of law by third country actors affected by its action.