Access to justice in relation with SEA procedures Wouter Poelmans Purpose of the research Conflict of interests in huge building projects Eg City of Antwerp Oosterweel ID: 614715
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Slide1
Procedural participation
Access to justice in relation with SEA procedures
Wouter PoelmansSlide2
Purpose of the research
Conflict of interests in huge building projectsE.g.: City of Antwerp (Oosterweel)Huge port and traffic jamsBigger
infrastructure
is
necessary
Tunnels or
bridges
? How do we do
it
?
Environmental
impact? NIMBY?
Result
:
participation
Slide3
Research QuestionIs there a right of access to justice
for challenging a strategic environmental assessment and an environmental impact assessment? Slide4
Environmental assessments (SEA and EIA)
Art. 8 SEA-directive: “shall be taken into account”Art. 8 EIA-directive: “shall be
duly
taken
into
account”Slide5
Belgian Council of StateUnilateral
administrative actPreparatory acts => not admissible However: preparatory acts can be admissible
,
if
it’s
a
preparatory
final
decision
E.g.: public
contractsSlide6
Aarhus Convention (1998)3
pillars: Access to informationPublic participation on decision-makingAccess to justice
in
environmental
issues
Third
pillar
: art. 9 Aarhus
Convention
9.3:
violation
of
national
law
relating
to
the environmentSlide7
Aarhus Convention (Art. 9,3)4
aspects: Administrative or judicial procedures*Acts and omissionsPrivate persons and public
authorities
Breach
of the
provisions
of the
national
law
relating
to
the environment
Conclusion
:
approval
of the SEA
and
EIA
falls
within
the
scope
of
Art
. 9,3 Aarhus
Convention
.Slide8
Aarhus Convantion (Art. 9,3)Violation
? Yes, because Council of State declared the appeal inadmissable?Question: Does the Aarhus Convention foresee a right of direct appeal?Implementation
guide
Does not
determine
that
it
must
be
final
or binding
Conclusion
by
Gruber
(CJEU)
You
may
not
enforce
an
act
that
is not
suable
Purpose
of the Aarhus
Convention
Protection
of the environment
No
violation
!!Slide9
ECHRArt. 6,1 ECHR: access to
justiceLimited scope:Determination of civil rights and obligationsCase Karin Andersson
/ Sweden
Strategic plan
falls
within
the scope of Art. 6,1 ECHR
SEA
and
EIA?
Right of
immediate
appeal
No
violation
!Slide10
ConclusionAccess to
justice must be foreseen for environmental assessments in the light of the Aarhus Convention and the ECHR,
buth
the
access must not
be
foreseen
directly
If
access
to
justice
is
foreseen
together
with
the plan or
permission
,
there
is no
breach
of the Aarhus
Convention
or the ECHR.