Aarhus Convention and the - PowerPoint Presentation

Slide1

Aarhus Convention and the eu: a general overview

PARTICIPATORY AND PROCEDURAL RIGHTS IN ENVIRONMENTAL MATTERS

Warsaw,

4

-

6

th

March

2015Slide2

ContentGenesis and historical developmentFunctioning of the Aarhus Convention Implementation of the

Aarhus

Convention

into

EU lawSlide3

Genesis of the Aarhus ConventionConceptual roots – better environmental

governance

,

participatory

environmental

democracy

,

citizens

to

get

involved

,

have

their

say

,

influence

,

contributing

to

decision-making

NGOs

as

watchdogsSlide4

Genesis of the Aarhus ConventionCommunity (EU) lawDirective 85/337 EIADirective 90/313 access to environmen

tal

information

Directive 96/61 IPPC

Trends in international law

Rio Declaration – soft law

F

ragmented

approaches in binding agreements

-

need for comprehensive binding rules

Political context

Framework

UN Economic Commission for Europe

Environment for Europe ProcessSlide5

Genesis of the Aarhus ConventionConvention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters1998 - adopted

and signed in A

a

rhus

(

Denmark

)

200

1 - e

ntry

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 2012Slide6

Functioning of the Aarhus ConventionOrganisational structure of the Aarhus ConventionPolitical level – BureauCoordination and administration – Aarhus SecretariatPreparation 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 Slide7

Functioning of the Aarhus ConventionRole of the Aarhus Compliance Committee (ACC)nine independent members having „recognised competence”

e

lected

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 publicSlide8

Functioning of the Aarhus ConventionFindings and recommendations of CCFindings compliance or non-complianceRecommendations

steps

to be

taken

Party

concerned

steps

to be

taken

by MOP

Adoption

by MOP

declaration

of non-

compliance

caution

suspension of

rights

and

priviligesSlide9

Functioning of the Aarhus ConventionThree pillar structurePillar I – access to informationPillar II – public participationPillar III – access to justice (the guarantee element)

Interconnectivity

between

the

three component parts in order to ensure effectivenessSlide10

Functioning of the Aarhus ConventionThe Aarhus ConventionArticle 2 definitionsArticle 3 principlesArticle 4 and 5 on informationArticles 6, 7 and 8 on participationArticle 9 (1), (2), (3), (4), (5)Access to justice covering access to info, participation and general environmental topicsSlide11

Functioning of the Aarhus ConventionMain 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. Slide12

Functioning of the Aarhus ConventionMain 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

.Slide13

Functioning of the Aarhus ConventionMain definitionsEnvironmental information:any information in written, visual, aural, electronic or any other material form onThe 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 structuresSlide14

Functioning of the Aarhus ConventionMain 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."Slide15

Functioning of the Aarhus ConventionMain definitions:"public authorities”Covering:- Public functions,- Emanation

of

state

- Main idea,

those

are

covered

who

de facto

carry

out

public

functions

even

if

private

entitiesSlide16

Functioning of the Aarhus ConventionThe Aarhus Convention and access to justiceArticle 9 (1), (2), (3), (4), (5)Access to justice covering access to info, participation and general environmental topicsSlide17

Functioning of the Aarhus ConventionArticle 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

interestsSlide18

Functioning of the Aarhus ConventionArt 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

publicSlide19

Functioning of the Aarhus ConventionArticle 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

justiceSlide20

Functioning of the Aarhus ConventionDefinitions: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.Slide21

Functioning of the Aarhus ConventionDefinitions: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

Slide22

Functioning of the Aarhus ConventionDefinitions: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. Slide23

Functioning of the Aarhus ConventionDefinitions:Cross-undertakings in damages:

Requiring

to

give

a

bond

or

guarantee

,

if

one

wants

to

appeal

HOWEVER, VERY IMPORTANT:

Cannot

be

prohibitiveely

expensive

Slide24

Functioning of the Aarhus ConventionDefinitions:"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

Slide25

Introduction: the EU and AarhusArt. 1 TEUThis 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. 103. 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. Slide26

Introduction: the EU and AarhusRecent 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.Slide27

Introduction: the EU and AarhusInstruments 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)Slide28

Introduction: the EU and AarhusFor the EU: Regulation 1367/2006Interpretation 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

…”

Slide29

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.[…]"Slide30

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,”Slide31

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 (…)"Slide32

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 2014However, on-going impact assessmentPositive signal from the Commission’s Impact Assessment Board in May 2014Alternatives are identified in order to ensure effective access to justiceSlide33

Introduction: the EU and Aarhus – recent political signals Main problems encountered on access to justiceThe general and special uncertainties on theCourt'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.Slide34

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

lawSlide35

Introduction: the EU and AarhusMain judicial considerations in favour of harmonized rulesClearly

applicable

rules

Legal

certainty

No

undue

delays

in

interpreting

unclear

law

Clear

rules

for

the

public

to

defend

its

EU

derived

rights

Slide36

The judges' perspective: Approach to judicial reviewIndication regarding transpositionOriginal 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.Slide37

The judges' perspective: Approach to judicial reviewGeneral 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