EDUARDO SALAZAR ORTUÑO UNIVERSITY OF MURCIA (SPAIN) THE EFFECTIVENESS OF THE AARHUS CONVENTION COMPLIANCE COMMITTEE’S ACTION AFTER THE FIRST AND SECOND SPANISH CASES. EDUARDO SALAZAR ORTUÑO UNIVERSITY OF MURCIA (SPAIN)

PURPOSE OF THE PRESENTATION Analyze two Spanish communications to the Aarhus Convention Compliance Committee (ACCC). 1. Access rights’ local conflicts behind the cases 2. Procedure before the ACCC 3. Common Follow-up process and Meeting of the Parties (MOP) Decisions 4. Reaction and actions from the Party concerned 5. Success/Effectiveness in practice

Aarhus Convention Compliance Committee Useful Compliance Tool for some Multilateral Environmental Agreements Created by Decision I/7 in 2001 Why the ACCC is different? Open for the public through communications Members of the public in its composition Participatory procedure Tremendous work the last 15 years (140 communications, including 9 against the European Union) Importance of the ACCC’s interpretation of the AC provisions

Spanish and EU Aarhus legal framework Ratification of the Aarhus Convention (AC) in 2005 Directives 2003/4, 2003/35 on access to environmental information, public participation and some parts of access to justice No Directive on Access to Justice (art. 9.3 AC) – not yet Spanish Act 27/2006, regarding the 3 pillars

«First Spanish Case» ACCC/C/2008/24 Building Project in Murcia’s Orchard (protected traditional garden) Neighbours Association wants to participate in the planning decisions: What they found at Local and Regional Authorities and the Courts Lack of Access to Information (costs and no answer) Not sufficient Public Participation (short time-frames and in holidays) Barriers for the Access to Justice (length, costs and interim relief/precautionary measures)

ACCC Findings and Recommendations, december 2009 May 2008 – communication submitted June 2008, during the 3rd MOP, preliminary decision on admissibility Spain didn’t reply April 2009: hearing in Geneve  Spain din’d attend The ACCC: found Spain in a non-compliance status regarding several AC articles/obligations (4,6,9) Recommended: Substantives changes in local and regional regulations To carry out a study about Access to Justice in Spain Capacity building for authorities and campaigns for the public

«Second Spanish Case» ACCC/C/2009/36 Local NGO against Pollution in Almendralejo wanting to participate regarding two projects: wine distilliry and oil refinery What they found at the Local authority and the Courts Lack of information Harrasment Costs of justice Troubles by accessing to legal aid schemes

ACCC Findings and Recommendations june 2010 March 2009 – communication submitted December 2009 – hearing with the Party concerned The ACCC: Found Spain in a non compliance status regarding AC articles/obligations (3.8, 4, 6, 9). Recommended, together with ACCC/C/2008/24: change the legal system of legal aid for environmental NGOs to make it clear and accessible Study the double representation at the Court

Common «Follow Up Process» for the both cases Before the 4th MOP ACCC asked the Aarhus Focal Point in the Spanish Ministry of Environment (MAGRAMA) to meet the Recommendations Spain didn’t take proper actions before the 2011 MOP, only at the state level some capacity building The communicants informed the ACCC about the poor implementation of the Recommendations by Spain Before the 5th MOP - Spanish Ministry of Environment presented a Study on Access to Justice recognizing the need of legal reforms in the field of precautionary measures and legal aid, but with the disagreement of Ministry of Justice

MOP Decisions of Non-Compliance During 4th MOP in Chisinau the Recommendations were endorsed and Spain was declared in non-compliance (2011). During 5th MOP in Maastricht Spain was declared again in non-compliance (2014) In 2015, after the pressure from the AC Focal Point in Madrid, Murcia City Council reduced urban planning and building infrmation to 0,03€ The legal aid system remain not accesible for small NGOs, due to the lack of environmental NGOs in the General Act on Legal Aid’s reform Many Courts and Legal Aid Comissions are asking for extra requirements for environmental NGOs as the «public utility declaration»

Conclusions Local conflicts show how “access rights” of citizens groups for environmental protection are violated by regional and local Administrations, as well Courts. The common elements of both cases are the general obstacles to access to information, participation and access to justice and they show they are not isolated cases. Aarhus Convention ratification and implementation of laws and regulations do not guarantee in Spain and Europe the Treaty enforcement : daily practice evidence the lack of guarantees for the citizens. The initial procedure before the ACCC is easy, transparent and timely – if compared with court’s length in Spain - and participatory. Communicants can allege anytime, and it is very important they do that during the follow-up process. Questions regarding national and regional law and administrative organization bring complexity to the case. Follow-up process can be too long to achieve results for the communicant. The Party concerned can promise and not act.

Conclusions (2) Spain’s attitude changed from an initial silence to a constructive dialogue through the Aarhus National Focal Point in the Ministry of Environment, specially after the MOP’s Non-Compliance Decisions. Except the Focal Point, the other concerned authorities – Ministry of Justice and Regional and Local Administrations and Courts – do not have the aim to collaborate and to change the situation. Spain met the Recommendations only partially, there is no way to influence the Judicial and Legislative Power The Study about Access to Environmental Justice in Spain recognize officially some gaps in the court practice and can be a important resource for citizens asking for effective justice by defending the environment. Some questions/recommendations were missing in the follow up process (time-frames por participation, interim relief, specific procedure after no answer to an information request). Legal Aid for small NGOs remains as a non-compliance situation, difficult to overcome without the Legislative Power.

Conclusions (3) Way to obtain changes in the national law and practice using International Law tools Access Rights need guarantees for its enforcement, as the 3rd Pillar and the ACCC. The three pillars are interdependent. It is necessary to have a progressive interpretation of the Aarhus Convention to avoid national or local practices in order to impede the access rights’ exercise. An “Aarhus Culture” it is needed by all the administrative levels, national, regional and local. All the authorities must be ready to implement the Convention.  

THANK YOU FOR YOUR ATTENTION ¡GRACIAS! THANK YOU FOR YOUR ATTENTION eduardo.salazar@um.es