A ARHUS C ONVENTION AND THE EU : A GENERAL OVERVIEW PARTICIPATORY AND PROCEDURAL RIGHTS IN...

AARHUS CONVENTION AND THE EU: A GENERAL OVERVIEW

PARTICIPATORY AND PROCEDURAL RIGHTS IN ENVIRONMENTAL MATTERS

Warsaw, 4-6th March 2015

Content

Genesis and historical development

Functioning of the Aarhus Convention

Implementation of the Aarhus Convention into EU law

Genesis of the Aarhus Convention

• Conceptual roots – • better environmental governance, • participatory environmental

democracy, • citizens to get involved, have their

say, influence, contributing to decision-making

• NGOs as watchdogs


Community (EU) law– Directive 85/337 EIA– Directive 90/313 access to environmental

information– Directive 96/61 IPPC

• Trends in international law• Rio Declaration – soft law• Fragmented approaches in binding agreements -

need for comprehensive binding rules• Political context• Framework

– UN Economic Commission for Europe– Environment for Europe Process


Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters– 1998 - adopted and signed in Aarhus (Denmark)– 2001 - entry into force

Aarhus Convention as a benchmark in the EU– part of the acquis as of 2005,- Integral part of EU legal order (Art 216 of the TFEU),– Member States implement Aarhus via EU law and

via their own obligation stemming from the Aarhus Convention

- See example of Ireland until 2012


Organisational structure of the Aarhus Convention

Political level – Bureau Coordination and administration – Aarhus

Secretariat Preparation of the political level meetings:

Working Group of the Parties (WGP) Main decision-making body: Meeting of the

Parties (MOP) Unique compliance mechanism – Compliance

Committee (ACCC) Ground work – 3 Task Forces, one for each

pillar


Role of the Aarhus Compliance Committee (ACC)– nine independent members having „recognised

competence” – elected to serve in personal capacity– regional balance

Compliance procedure - triggers– Submission by Party about another Party– Submission by Party about itself– Referrals by secretariat– Communications by the public


Findings and recommendations of CC– Findings

• compliance or non-compliance– Recommendations

• steps to be taken Party concerned• steps to be taken by MOP

Adoption by MOP– declaration of non-compliance– caution– suspension of rights and priviliges


Three pillar structure Pillar I – access to information Pillar II – public participation Pillar III – access to justice (the

guarantee element) Interconnectivity between the three

component parts in order to ensure effectiveness


The Aarhus Convention Article 2 definitions Article 3 principles Article 4 and 5 on information Articles 6, 7 and 8 on participation Article 9 (1), (2), (3), (4), (5) Access to justice covering access to info,

participation and general environmental topics


Main objectives: accountability of and transparency in

decision-making and to strengthen public support,

Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being,

fully integrating environmental considerations in governmental decision-making,

Environmental rights of present and future generations.


Main principles and common features: Non-discrimination – citizens, NGOs

involvement – coming from other Member States,

Non-penalisation of citizens participating in the proceedings (taking cases to the courts, expressing their opinions, etc.),

In some casese SLAPP-cases taken against NGOs/citizens

Timely procedures Not prohibitively costly procedures.


Main definitions Environmental information: any information in written, visual, aural,

electronic or any other material form on The state of elements of the environment Factors, such as substances, energy,

noise and radiation, and activities or measures

The state of human health and safety, conditions of human life, cultural sites and built structures


Main definitions: "The public concerned” means the

public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."


Main definitions: "public authorities” Covering: - Public functions, - Emanation of state - Main idea, those are covered who de

facto carry out public functions even if private entities


The Aarhus Convention and access to justice

Article 9 (1), (2), (3), (4), (5) Access to justice covering access

to info, participation and general environmental topics


Article 9(2) requires review of - substantive and procedural legality

within a participation context for - Individuals with a sufficient interest or

whose rights are impaired- Priviliged status for non-governmental

organisations protecting environmental interests


Art 9 (3) incorporates in the area of air quality, water, nature cases involving acts and omissionsScope: anything apart from information and public participation as regards decisions and omissionsStanding: for citizens and eNGOsThat is: members of the public


Article 9(4) covers the aforementioned articles and requires procedural guarantees that are:- Effective- Timely- Fair and equitable - Remedies - including injunctive relief - made

available – to avoid irreversible damages to the nature

- Not prohibitively expensive Article 9 (5): financial assistance mechanisms and

access to information on justice


• Definitions: Access to justice (a possible definition):

Ensuring effective redress for citizens and their associations, including environmental associations, by allowing them to challenge acts or omissions of the public administration before a court of law or other independent and impartial body established by law (also known as "locus standi" or standing). This involves broad access rights, with timely and not prohibitively expensive procedures, including effective remedies covering also injunctive relief, as appropriate.


• Definitions: Actio popularis: as clarified by the

Implementation Guide, it is not a requirement under the Aarhus Convention

What is the meaning? Action possible to be brought before courts by

anybody, without any specific criteria to be fulfilled by the litigant

NGOs can be granted locus standi under actio popularis, but no specific requirement

There can be further (non-restrictive) conditions set by Member States, like prior registration


• Definitions:• Scope: acts, decisions and omissions (failure

to act)• "Effective remedy" is the action

ordered/taken by the national court if it finds that there has been a breach of procedural or substantive environmental law by a public authority or other party. This would mean in particular, revocation of consent; interim measures, until a final decision is delivered (injunctive relief) or ensure compensation for damages suffered.


Definitions: Cross-undertakings in

damages: Requiring to give a bond or

guarantee, if one wants to appeal

HOWEVER, VERY IMPORTANT: Cannot be prohibitiveely

expensive•


• Definitions:• "Interim measures" measures delivered by

a court of law or another independent and impartial body established by law aimed at mitigating the potential damages to the environment by providing a partial or full, and/or temporary or final administrative or judicial injunction relating to the execution or omission of an administrative act.

• Preclusion: legal framework for excluding litigants from going to court if the arguments are not presented already at a prior administrative stage

Introduction: the EU and Aarhus

Art. 1 TEU– This Treaty marks a new stage in the

process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

Art. 10– 3. Every citizen shall have the right to

participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.


Recent changes in the Treaties :Adoption of the Lisbon Treaty Article 6 (ex-article 6 TUE) Lisbon Treaty

the Charter of Fundamental Rights of the European Union has the same legal value as the Treaties.

Charter of Fundamental Rights Art 37 and Art 47. Article 19 TUE (…)Member States shall provide remedies

sufficient to ensure effective legal protection in the fields covered by Union law.


Instruments to implement the Aarhus Convention at the EU level For the EU: Regulation 1367/2006 For the Member States:

• Pillar I + Art. 9(1): Directive 2003/4• Pillar II + Art. 9(2), 9 (4): Directive 2003/35,

EIA, IPPC, SEVESO III• Pillar III - Art. 9(3) & 9(4): COM(2003)624 –

still existing gap in implementation – marginally covered by some instruments: 2004/35/EC Liability Dir and Recommendations on collective redress (2013)


For the EU: Regulation 1367/2006 Interpretation of access to justice given by the Court of Justice

recently in two cases In Joined Cases C‑401/12 P to C‑403/12 P Main elements of the ruling: Problem: only decisions of individual scope can be challenged under

the Regulation First instance court found that this requirement was against the

Aarhus Convention Second instance in grand chamber the Court said that everything is

as it should be „…the Convention lacks the clarity and precision required to be

properly relied on before the EU judicature…”

Introduction: the EU and Aarhus – recent political signals

The Commission's Communication COM(2012)95 of 7 March 2012 aiming at Defining at EU level the conditions for efficient as well as effective access to national courts in respect of all areas of EU environment law.

7th Environment Action Programme (Decision 1386/2013/EU): 63. e) The principle of effective legal protection for citizens and their organisations is facilitated.

This requires, in particular: v. Ensuring that national provisions on access to justice

reflect the case law of the CJEU and promote non-judicial conflict resolution as a means of finding amicable and effective solutions to conflicts in the environmental field.[…]"


Other political documents: 1) Council conclusions of 11 June 2012 (document

11186/12) II. Better implementation, enforcement, monitoring and

strengthening of environment policy and legislation 6. (…) ENCOURAGES the Commission and as

appropriate the Member States, (…) to further develop and implement the objectives and initiatives set out in the Communication such as:

- improving complaint handling at national level, including options for dispute resolution, such as mediation,;

- improving access to justice in line with the Aarhus Convention,”


2) European Parliament report of 29 February 2012 (document A7-0048/2012) 68. Underlines that the 7th EAP should provide for the full implementation of the Aarhus Convention, in particular regarding access to justice; stresses, in this connection, the urgent need to adopt the directive on access to justice;”

3) Report by EP in 2013 "42. Calls on the Commission and the Member

States to explicitly define a specific timeframe in which court cases relating to the implementation of environmental law shall be resolved (…)"


What about a general access to justice Directive in the environmental field?

Proposal pending – withdrawn by Commission in May 2014

However, on-going impact assessment Positive signal from the Commission’s

Impact Assessment Board in May 2014 Alternatives are identified in order to ensure

effective access to justice


Main problems encountered on access to justice The general and special uncertainties on the Court's case-law trends – popping up rulings also at

national level (De: air quality in Darmstadt; SE wolves cases based on the SK brown bear ruling and Janecek)

The Court of Justice of the EU defined what not to do, not what to do;

Some specific areas of problems: costs of bringing actions; Standing uncertainties, etc. The efficiency of national court procedures.


Main economic considerations in favour of harmonized rules

No pollution havens No distortion of competition No undue delays caused by uncertainty and

further preliminary references (Trianel 2 years)

No surprizes for investors who take investment decisions based on formal law


Main judicial considerations in favour of harmonized rules

Clearly applicable rules Legal certainty No undue delays in interpreting unclear law Clear rules for the public to defend its EU

derived rights

The judges' perspective: Approach to judicial review

Indication regarding transposition– Original directive– Amending directives

Directive – Text including recitals (preamble)– Guidance

• CJEU verdicts• EC Guidance

Recitals (preamble)– reference to Aarhus Aarhus

– Text including recitals (preamble)– Guidance

• Findings of ACC• Implementation Guide• Mastricht Recomendations, etc.

The judges' perspective: Approach to judicial review

General considerations for judges, when applying EU law in the area:- Multiple layers of law (national, international, EU),- CJEU often says what not to do, but not

exactly what to do, question on what is too restrictive?

- National trends of direct application of CJEU verdicts, in the absence of EU or national rules (Article 9 (3) cases)

- The growing importance of preliminary references

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