Aarhus Convention Article 92 Áine Ryall School of Law University College Cork IRELAND Warsaw 5 March 2015 Objectives and Outline Presentation Introduce Aarhus Convention amp EU Law provisions governing access to justice to enforce the rig ID: 374088
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Slide1
Access to Justice in the Public Participation Context
Aarhus Convention, Article 9(2)
Áine
Ryall
School of Law, University College Cork, IRELAND
Warsaw
,
5
March
2015Slide2
Objectives and Outline Presentation
-
Introduce Aarhus Convention & EU Law provisions governing access to justice to enforce the right to participate in environmental decision-making at Member State level
- Analyse the CJEU case law on the access to justice clauses in the EIA Directive & the Industrial Emissions
Directive
Slide3
Objectives and Outline Presentation
- Consider the role of
the national judge
in delivering access to justice under EIA Directive & Industrial Emissions Directive
- Identify and explore current issues on access
to justice at national level via a
Case Study
- Consider likely future developments
Slide4
Significance of accessible review procedures & effective remedies?
- Rule of Law
- Environmental rights, including the right to participate in decision-making, are meaningless without
effective remedies
- Aarhus Convention,
Recital 18
: to ensure the public’s legitimate interests are protected & the law is enforced
Slide5
Legal Framework: Three Levels of Legal Authority
- Aarhus Convention: Article 9(2), (4) & (5)
- Directive 2003/35/EC: introduced access to justice clauses to EIA Directive and Industrial Emissions Directive
- National measures and review procedures designed to transpose Aarhus and EU law obligations Slide6
Aarhus Convention, Public Participation & Access to Justice
Article 2 Key definitions: “the public” & “the public concerned”
Article 3(8) Acknowledges power of national courts to award “
reasonable costs
” in judicial proceedings. But no definition of “reasonable” is provided
Article 6 Right to participate in decision-making
on specific activitiesSlide7
Aarhus Convention, Public Participation & Access to Justice
Article 9(2) Right of access to a review procedure for “the public concerned”
to challenge the
substantive and procedural legality
of any decision, act or omission subject to the provisions of
Article 6
[...]
Standing
rules & special provision for
ENGOs
. Aim is to deliver “
wide
access to justice
”
Article 9(3) General right of access to a review procedure to enforce environmental lawsSlide8
Aarhus Convention, Public Participation & Access to Justice
Article 9(4) Sets minimum standards for review procedures
Must provide “
adequate and
effective remedies
”, including injunctive relief, where appropriate, & must be “
fair, equitable, timely and not
prohibitively expensive
”
Written and publicly accessible decisions must be provided
Slide9
Aarhus Convention, Public Participation & Access to Justice
Article 9(5)
Information
must be provided to the public on access to review procedures
Parties must “
consider
” the establishment of
appropriate assistance
mechanisms
to remove or reduce financial & other barriers to access to justice
Slide10
EU Law: General Principles
National procedural autonomy
Member States have discretion in implementing Aarhus
Article 9, subject to the principles of
equivalence
&
effectiveness
Member States must determine which court of law, or independent & impartial tribunal, has jurisdiction to carry out the review procedure & what procedural rules will applySlide11
EU Law: Directive 2003/35/EC
Directive 2003/35/EC – the “public participation directive”
Introduced explicit
access to justice clauses
to:
-
EIA Directive
(Art.10a) – now Art. 11 of Consolidated EIA Directive (Directive 2011/92/EU)
- IPPC Directive (Art. 15a) – now Art. 25 of
Industrial
Emissions Directive
(IED) (Directive 2010/75/EU)
Modelled closely on Aarhus Article 9(2) and (4), but with some interesting variationsSlide12
EIA directive & access to justice
Article 11: Aims to implement Aarhus Article 9(2) & (4)
No express reference to obligation to deliver “adequate and effective remedies”, including injunctive relief
But these requirements already exist under EU law and established CJEU jurisprudence on
effective judicial protection
No equivalent of Aarhus Article 9(5) regarding duty to consider establishing financial assistance mechanismsSlide13
EIA directive & access to justice
Directive 2014/52/EU - amends EIA Directive
Deadline for transposition:
16 May 2017
No changes to the access to justice clause
But: a
new obligation
has been added (a new Article 10a) requiring Member States to set down rules providing for
penalties applicable to infringements of national EIA rules
.
These penalties must be “effective, proportionate & dissuasive”
Slide14
CJEU Jurisprudence on access to justice clause in EIA directive & IED
General principles emerging from CJEU jurisprudence:
- EU is a Party to the Aarhus Convention
→
Convention is “
an integral part
” of EU legal order
- EIA Directive & IED, including access to justice clauses, must be interpreted in light of the wording and purpose of Aarhus Convention
Slide15
CJEU Jurisprudence on access to justice clause in EIA directive & IED
-
Strong
emphasis on delivering the goal of “
wide access
to justice
” to tighten Member State
discretion
- Strong
emphasis on
the role of ENGOs
in the enforcement of environmental law
- CJEU has championed
the public interest
in
effective
environmental protectionSlide16
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Standing & right of access to review procedure
Case C-263/08,
Djurgården-Lilla
Värtans
Miljöskyddsförening
Scope of Member State
discretion to prescribe criteria
that ENGOs must meet in order to be entitled to invoke the right of access to a review procedure [40] – [52]
Any criteria must deliver “wide access to justice” & must ensure effectiveness of EIA directive
Slide17
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Member States may require an ENGO to have as its
object
the protection of nature & the environment
Swedish standing rules governing ENGOs provided that only
associations
with at least 2,000 members
could bring an appeal against an environmental decision
CJEU: Number of members required cannot be set at such a level that it runs counter to the objectives of the EIA directive, including facilitating judicial reviewSlide18
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Participation in environmental decision-making under Article 6 of the EIA directive is
separate
& has a different purpose from judicial review [38] and [48]
Participation in the decision-making procedure has no effect on the conditions for access to the review procedure [38]
Suggests that participation in the (administrative) decision-making procedure
is not a pre-condition
to the right of access to a review procedure
Slide19
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Case C-240/09,
Lesoochranárske
zoskupenie
(Grand Chamber) – “Slovak Brown Bear case”
Strong emphasis on ensuring
effective judicial protection
in the fields covered by EU environmental law
Aarhus Article 9(3) does not have direct effect in EU law
But: duty on national courts to interpret domestic law, to the fullest extent possible, to ensure consistency with Aarhus Article 9(3) Slide20
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Case C-115/09,
Bund
für
Umwelt
und
Naturschutz
(
Trianel
)
Under national law, access to a review procedure was conditional on demonstrating that the contested administrative decision impaired an individual right
CJEU:
S
uch a limitation could
not
be applied to ENGOs
Aarhus & EIA directive give ENGOs a right to protect the general public interest
→
no requirement to demonstrate impairment of an individual right can be imposed on ENGOsSlide21
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Projects authorised by legislative act
Joined
Cases C-128/09 to C-131/09, C-134/09
&
C-135/09,
Boxus
(Grand Chamber) & Case C-182/10,
Solvay
When a project is
adopted by a legislative act
, a review procedure must be available to verify that the legislative act in question fulfils certain conditions & to ensure that the objectives of the EIA directive are met through the legislative process
Slide22
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Interim measures to suspend the application of a permit pending final determination of review procedure
Case C-416,
Križan
(Grand Chamber)
The effectiveness of the right of access to a review procedure under the access to justice clause in the IPPC directive (now IED) demands that the public concerned must have
the right to seek interim measures
Slide23
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Review procedure must not be “prohibitively expensive”
Case C-427/07,
Commission v Ireland
A
judicial discretion
to determine costs liability, for example by
disapplying
the usual “loser pays principle” in certain circumstances, was not sufficient to transpose the ban on prohibitive costs
Slide24
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Case C-260/11,
Edwards
Case C-530/11,
Commission v United Kingdom
Meaning of “not prohibitively expensive” review procedure?
Criteria
to be applied by national court in assessing that requirement?
Objective is to give public concerned “wide access to justice” to ensure the public play “
an active role
” in environmental protection
Slide25
CJEU Jurisprudence on access to justice clause in EIA directive & IED
The public concerned
should not be prevented from seeking review
by the courts by reason of the financial burden that might arise as a result
Account must be taken of the interest of the person wishing to defend their rights
&
the public interest in the protection of the environment
Slide26
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Not an exclusively subjective approach, but
also
an objective analysis of the costs involved
→
Costs must not exceed the financial resources of person concerned and must not be “objectively unreasonable”
Relevant assessment criteria
:
National legal context must be considered, incl. all the relevant provisions of national law, any national legal aid scheme or costs protection regime
Slide27
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Other factors that may be taken into account:
- Situation of the parties concerned
- Whether applicant has a reasonable prospect of success
- Importance of what is at stake for the applicant & for protection of the environment
- Complexity of the relevant law & procedure
- Potentially frivolous nature of the claim
- Costs already incurred at earlier levels in the same dispute Slide28
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Cross-undertakings for the grant of interim relief
Case C-530/11,
Commission v United Kingdom
Ban on prohibitive expense
also applies
to the financial costs resulting from measures which the national court might impose as a condition to the grant of interim measures
(e.g. an undertaking in damages)
Slide29
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Temporal application of access to justice clause in EIA directive?
Case C-72/12,
Altrip
Access to justice obligation applies to developments consent procedures
initiated before 25 June 2005
(the deadline for transposition of Dir. 2003/35/EC) when they result in the granting of development consent
after that dateSlide30
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Limitation on grounds on which legality of decision may be challenged?
Case C-72/12,
Altrip
Member States cannot limit the right to challenge a decision to situations where no EIA was carried out
It must also extend to situations were the EIA was allegedly defective
Slide31
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Case C-137/14,
Commission v Germany
Infringement proceedings pending before CJEU
Raises a number of interesting issues around implementation of the access to justice clauses in the EIA Directive & the IED
Including: restrictions on standing and limitations on the grounds on which the legality of a decision may be challengedSlide32
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Remedies for breach of EIA directive
Case C-420/11,
Leth
Fact that an EIA was not carried out, in breach of EIA directive, does not, in principle, by itself, confer a right to compensation on an individual for purely pecuniary damages caused by the decrease in value of their property due to environmental effects
National court must examine the facts & determine whether the criteria for State liability have been established
Slide33
CJEU Jurisprudence on access to justice clause in EIA directive & IED
Private property rights? – Not a trump card
The right to property is not an absolute right – must be viewed in relation to its social function & its exercise may be restricted for objectives of general interest – including the protection of the environment
Case C-416,
Križan
(Grand Chamber)
Cf. Case C-206/13,
Siragusa
Slide34
CJEU Jurisprudence
Remedies where Member State is found to be in breach of EU environmental law
Case C-404/13,
Client Earth,
judgment delivered 19 November 2014
In the event of non-compliance with the Air Quality Directive (Directive 2008/50/EC) Arts 13 &/or 22, what remedies must a national court provide?
Slide35
Case C-404/13 Client Earth
Strong statements from CJEU on
effective legal protection
at national level in the fields covered by EU law [
paras
52-54]
Recalls
Case C-237/07
Janecek
& the clear obligation on Member States to establish an air quality plan that meets certain requirements
Natural or legal persons directly concerned must be in a position to bring an action before the national courts to require competent authorities to meet this obligation
[
paras
55 and 56]
Slide36
Case C-404/13 Client Earth
Where a Member State has failed to comply with its obligation to establish an air quality plan as required under Directive 2008/50, then:
It is for the national court to take
“any necessary measure, such as an order in the appropriate terms”,
so that the national authority concerned establishes an air quality plan as required by Directive 2008/50.Slide37
Impact of Charter of Fundamental Rights of the EU
Article 47 Right to an effective remedy
Article 47(3)
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justiceSlide38
Role of the National Judge
Enforce the right to participate in environmental decision-making – be proactive – there is a lot at stake here
EU law becoming
more prescriptive
about how enforcement/remedies operate at Member State level
Aarhus/EU law
→
major impact on Member State legal systems. Potentially highly disruptive impact
Unexpected & very challenging consequences for national standing rules & costs regimes in particular
Slide39
Role of the National Judge
Are national rules & procedures compatible with Aarhus/EU law?
Difficult points of interpretation continue to arise
Some guidance from existing body of CJEU jurisprudence
A reference for a preliminary ruling may be necessary
Extra judicial engagement
→
highlight issues & solutionsSlide40
Future Directions?
We need legal certainty & predictability urgently
Highly complex & rapidly evolving body of law
→
strong case for judicial specialisation?
The requirement that the review procedure must be “timely”
- where will this lead? Serious resource implications here
Relationship between CJEU and Aarhus Convention Compliance Committee
Slide41
Future Directions?
The national judge as “environmental champion”
Legal tools at the national judge’s disposal
Impact of the
new Article 10a
in the EIA directive (penalties)?
Difficult and gradual transition to an
Aarhus-compliant system
Mainstream
Aarhus obligations at local level
Slide42
Courts are the cornerstones of democracy & the Rule of (Environmental) Law
What will you contribute to the realisation of Aarhus obligations?