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 decisionmaking
• NGOs as watchdogs
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Genesis of the Aarhus Convention
 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
Genesis of the Aarhus Convention
 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
Functioning of the Aarhus Convention
 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
Functioning of the Aarhus Convention
 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
Functioning of the Aarhus Convention
 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
Functioning of the Aarhus Convention
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
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Functioning of the Aarhus Convention
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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
Functioning of the Aarhus Convention
 Main objectives:
 accountability of and transparency in decisionmaking 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.
Functioning of the Aarhus Convention
 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.
Functioning of the Aarhus Convention
 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
Functioning of the Aarhus Convention
 Main definitions:
 "The public concerned” means the public
affected or likely to be affected by, or having
an interest in, the environmental decisionmaking; 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."
Functioning of the Aarhus Convention
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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
Functioning of the Aarhus Convention
 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
Functioning of the Aarhus Convention
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
Functioning of the Aarhus Convention
Art 9 (3) incorporates in the area of air
quality, water, nature cases involving acts
and omissions
Scope: anything apart from information and
public participation as regards decisions and
omissions
Standing: for citizens and eNGOs
That is: members of the public
Functioning of the Aarhus Convention
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
Functioning of the Aarhus Convention
• 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.
Functioning of the Aarhus Convention
• 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
Functioning of the Aarhus Convention
• 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.
Functioning of the Aarhus Convention
 Definitions:
 Cross-undertakings in damages:
 Requiring to give a bond or
guarantee, if one wants to appeal
 HOWEVER, VERY IMPORTANT:
 Cannot be prohibitiveely expensive
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Functioning of the Aarhus Convention
• 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.
Introduction: the EU and Aarhus
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.
Introduction: the EU and Aarhus
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)
Introduction: the EU and Aarhus
 For the EU: Regulation 1367/2006
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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
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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.[…]"
Introduction: the EU and Aarhus – recent
political signals
 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,”
Introduction: the EU and Aarhus – recent
political signals
 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 (…)"
Introduction: the EU and Aarhus – recent
political signals
 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
Introduction: the EU and Aarhus – recent
political signals
 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.
Introduction: the EU and Aarhus – recent
political signals
 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
Introduction: the EU and Aarhus
 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
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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